DISTRICT OF COLUMBIA v. THOMPSON

• Citation: 570 A.2d 277
• Decision Date: 12 February 1990
• Docket Number: No. 86-1681,No. 86-1051,86-1051,86-1681
• Parties: DISTRICT OF COLUMBIA and Alfred Maury, Appellants, v. Patricia Joan THOMPSON, Appellee.
• Court: Court of Appeals of Columbia District

570 A.2d 277

DISTRICT OF COLUMBIA and Alfred Maury, Appellants, v. Patricia JoanTHOMPSON, Appellee.

Nos. 86-1051, 86-1681.

District of Columbia Court of Appeals.

Argued February 23, 1989.

Decided February 12, 1990.

Appeal from the Superior Court, William S. Thompson, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Donna M. Murasky, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellants.

Joseph P. Hart, with whom James L. Coffin and Robert E. Glenn, Washington, D.C., were on the brief for appellee.

Before FERREN, BELSON, and SCHWELB, Associate Judges.

FERREN, Associate Judge:

This case arose out of an employment dispute between appellee, Patricia Thompson, who was a library technician in the Northeast branch of the District of Columbia Public Library, and her supervisor, appellant Alfred Maury. Effective August 5, 1983, Thompson was fired. Thompson's notice of proposed discharge stated the reason as "Discourteous Treatment of your Supervisor," referring to an incident on May 25 in which Maury and Thompson each claimed an assault by the other. The notice described Thompson's assault of Maury, as well as other instances in which Maury had corrected Thompson's behavior and Thompson had responded in a "hostile, discourteous manner" with threats and name calling. In response to losing her job, Thompson filed suit against Maury and the District of Columbia. In her complaint, she described her version of the incident on May 25 and claimed Maury's actions constituted assault and battery and false imprisonment. Thompson also claimed that, because Maury's statements giving his version of the incident were false, his statements were defamatory. Thompson further alleged that Maury's "multivalent tortious actions" constituted intentional infliction of emotional distress. Thompson sued the District under the doctrine of respondeat superior.¹ Maury counterclaimed for assault and battery.

While Thompson's complaint appeared to be limited to the events surrounding the May 25 incident, the facts developed at trial were much more far-reaching. Thompson put into evidence her entire career with the library, both to show that she had been a satisfactory employee before her transfer to Northeast and to show Maury's treatment of her at Northeast. Thompson, for example, put into evidence twenty-two memoranda Maury had written about her. Thompson's attorney then argued to the jury that Maury had acted on a mission to have Thompson dismissed from the library, that Maury's entire pattern of behavior for two years had constituted intentional infliction of emotional distress, and that Maury had slandered and libeled Thompson for two years.

The jury found for Thompson on all counts, except on her claim of false imprisonment, and against Maury on his counterclaim. The jury awarded Thompson damages (excluding loss of wages and benefits) of $530 for the assault, $35,000 for defamation, and $42,500 for intentional infliction of emotional distress. The jury also awarded Thompson $280,000 for her loss of wages or diminished earning capacity attributable either to the defamation or to the intentional infliction of emotional distress.

Maury and the District filed this appeal, arguing primarily that (1) Thompson's claims were covered by the disability compensation provisions of the Comprehensive Merit Personnel Act, D.C.Code §§ 1-624.1 to -624.46 (1987), and, therefore, that Thompson was required to submit them initially to the District of Columbia Department of Employment Services (DOES), which had primary jurisdiction; (2) Thompson had otherwise impermissibly attempted to litigate her discharge, which was limited to an administrative remedy or, at least, to exhaustion of administrative remedies; (3) Maury's actions did not constitute intentional infliction of emotional distress as a matter of law; (4) with respect to the alleged defamation, Maury was absolutely privileged to make the statements about Thompson; and (5) as to the claims for assault and battery and defamation, the trial judge erred in excluding evidence of Thompson's prior assaults and threats, as well as evidence of Maury's good character. We agree with Maury's and the District'sfirst, third, and fifth claims of error. Accordingly, we must reverse and remand.

I.

Patricia Thompson began working in the main branch of the District of Columbia Public Library on a part-time basis in 1973. In 1978, she was promoted one grade level and began working full time. In 1979, she was transferred to the Wilkinson branch and then to the Chevy Chase branch. In July 1980, she was transferred to the Benning branch. While at Benning, on January 26, 1981, Thompson underwent cataract surgery on her right eye. She was out for ten weeks. On her return, in March, her doctor wrote a note stating that Thompson could return to work from 1:00 p.m. to 7:00 p.m. for the next four weeks. On April 26, her doctor wrote another note, again recommending the same limited hours. In May 1981, Thompson was transferred to the Northeast branch, where Maury began supervising her.

The parties differ sharply over Thompson's record at the Library before and after her transfer to the Northeast branch. Thompson characterized her tenure with the Library as satisfactory until she arrived at the Northeast branch. Thompson noted, for example, that she regularly received in-grade step increases, which are automatic raises the employee receives on her anniversary date if the supervisor approves. In addition, Thompson was promoted once and, because of her supervisor's recommendations, began working more hours and finally full time. Thompson also characterized her performance evaluations as satisfactory.

In contrast, the District and Maury put on evidence showing that Thompson had not had a wholly satisfactory relationship with the Library before her transfer to Northeast. Thompson had previously complained about her supervisors and about problems with employees at the other branches. Her supervisor at the Benning branch testified that she had had periods of difficulty supervising Thompson because Thompson had had difficulties dealing with her co-workers and the public. Thompson had lost her temper with members of the public and had had arguments in which she swore at her coworkers. In addition, Thompson took a lot of leave time. Usually Thompson took sick leave, but sometimes Thompson would anticipate leaving and yet not let her supervisor know that she was planning to take leave. Thompson received one poor review while at Benning that she refused to sign. When her supervisor gave her the review, Thompson became angry, used profanity, and knocked the contents of the top of her own desk to the floor.

The main dispute at trial concerned Thompson's tenure at the Northeast branch. Thompson put in evidence twenty-two memoranda that Maury had written about Thompson during her two years at Northeast. These memoranda, beginning in June 1981, repeatedly advised and warned her to follow the correct leave request procedures and notified her of problems in the performance of her duties, including conflicts with a summer employee, inaccuracy in putting information into the computer, and insubordination and rudeness to staff and patrons. Thompson claimed that all these memoranda were false, that they defamed her, and that, by writing the memoranda and harassing her, Maury intentionally had inflicted emotional distress. Thompson testified that some of the memoranda blamed her for not doing tasks when she either had been told not to do them or had been asked to do other work. Thompson also testified that some of the memoranda either mischaracterized her disputes with Maury or were absolutely false. She felt some of the other memoranda were excessively critical, and she said they contained complaints that Maury had not told her in person.

At trial, Maury defended the accuracy of these memoranda. Maury testified that during Thompson's two years at the Northeast branch he had had two to four problems per week with her. Maury stated that he had discussed the problems in person with Thompson and tried to learn her side each time. He said he finally had started writing memoranda because he wasrequired to do so as a supervisor. These memoranda, contemplated by the union contract, were either "letters of warning," meant to correct the employee, or "letters of direction," more strongly worded corrections. Maury testified that he did not document all the problems with Thompson in these memoranda.

Althea Neal, Thompson's direct supervisor at the Northeast branch, supported Maury's testimony. She stated that problems with Thompson had begun shortly after her arrival. Thompson kept repeating mistakes in entering information into the computer and cursed Neal whenever Neal called the mistakes to Thompson's attention. According to Neal, Thompson also took excessive leave, as much as four days per week, without requesting it in advance. Neal received complaints from library patrons about Thompson, and Thompson did not get along with her co-workers.

The incidents underlying some of the memoranda were discussed extensively at trial. The first memorandum referred to a meeting Maury had called in response to complaints by other staff members. Maury, Neal, Thompson, and Ernest Dixon (another library employee) met to discuss problems in the allocation of library tasks. According to Maury's testimony, during the course of the meeting Thompson began verbally abusing Neal, calling her a liar and other names. As a result of this meeting, Maury recommended that Thompson be transferred or dismissed, a recommendation that did not result in any personnel action. Thompson also testified about the meeting, denying that she had refused do work...