District of Columbia v. Thompson

• Decision Date: 17 June 1991
• Docket Number: 86-1681.,No. 86-1051,86-1051
• Citation: 593 A.2d 621
• Parties: DISTRICT OF COLUMBIA and Alfred Maury, Appellants, v. Patricia Joan THOMPSON, Appellee.
• Court: D.C. Court of Appeals

593 A.2d 621

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

Nos. 86-1051, 86-1681.

District of Columbia Court of Appeals.

Argued December 5, 1990.

Decided June 17, 1991.

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

Joseph P. Hart, Washington, D.C., for appellee.

Before FERREN and SCHWELB, Associate Judges, and BELSON^*, Associate Judge, Retired.

ON PETITION FOR REHEARING

FERREN, Associate Judge:

Appellant Patricia Thompson, an employee of the Northeast branch of the District of Columbia Public Library, sued the District and her supervisor, Alfred Maury, for intentional infliction of emotional distress, defamation, and assault and battery. On February 12, 1990, this division of the court held, in Part II of our opinion, that Thompson's claims against the District presented a "substantial question" whether all her alleged injuries—mental and emotional, as well as physical—were covered under the disability compensation provisions of the District's Comprehensive Merit Personnel Act (CMPA), D.C.Code §§ 1-624.2 to -624.46 (1987). District of Columbia v. Thompson, 570 A.2d 277, 287, 288 (D.C.1990). These CMPA sections contain an exclusivity provision, D.C.Code § 1-624.16(c), see infra note 16, which, if applicable, would preclude Thompson's common law claims against the District. We concluded that if the disability provisions did cover these claims, Thompson could seek compensation from the District only through an administrative proceeding before the Department of Employment Services (DOES). Id. at 288. We therefore remanded to the trial court with directions to stay the proceeding against the District of Columbia until Thompson had had a reasonable time to test the reach of CMPA by filing with DOES for disability benefits. Id. at 288, 300-301.

In Part III of the opinion we considered the District's alternative argument. We held that, in possible contrast with CMPA's disability provisions, CMPA's comprehensive personnel evaluation provisions—more specifically, those in Subchapter 15 governing employee "performance ratings", D.C. Code §§ 1-615.1 to -615.5 (1987), and those in Subchapter 17 covering "adverse actions" and "grievances," id. §§ 1-617.1 to -617.3—did not preempt Thompson's right to bring common law tort actions against the District and Maury. Thompson, 570 A.2d at 289. Nor did these CMPA provisions require exhaustion of administrative remedies. Id. Therefore, had we not decided to stay the proceeding against the District because of possible preemption by the CMPA disability provisions, we would have found no other CMPA bar to reaching the merits of the common law claims against the District. Furthermore, because we perceived no CMPA bar against Thompson's suit against Maury, id. at 288 & n. 7, we reached the merits on those claims. In doing so, we dismissed the claim for intentional infliction of emotional distress (Part IV), id. at 291, 300, and reversed and remanded for a new trial the claims for defamation (Part V), id. at 291-298, 301, and for assault and battery (Part VI), id. at 298-300, 301. We recognized, moreover, that if DOES were to rule that Thompson's claims against the District were not governed by CMPA's disability provisions, our rulings on defamation and assault and battery applicable to Maury would be available to Thompson in renewed trial court proceedings seeking derivative liability against the District. Id. at 288, 301.

After issuance of our first opinion and order, 580 A.2d 144, the District and Maury petitioned for rehearing.¹ We granted the petition, without vacating our opinion and order, primarily to give further consideration to Part III (and, consequently, to Parts IV, V, and VI) of that opinion. Accordingly, we have focused once again on the District's alternative argument under CMPA: that the comprehensive statutory provisions covering employee "performance ratings" (Subchapter 15) and "adverse actions" and "grievances" (Subchapter 17) provide exclusive remedies for employee claims arising out of the kinds of employer activities—performance evaluation and discipline—identified in those subchapters. In short, we reconsider whether those CMPA provisions preempt, and thus preclude court action against the District and Maury on, Thompson's claims of defamation and of intentional infliction of emotional distress arising out of the employment relationship.² We are now persuaded by the preemption argument. Accordingly, while we reaffirm several parts of our earlier opinion—the introduction (except for the last two, dispositional sentences), Part I (facts and proceedings), Part II (CMPA disability provisions), and Part VII (reassignment to different trial judge)—we vacate Parts III, IV, V,³ and VIII (summary of disposition) and modify Part VI to delete reference to the defamation claim.

I.

A.

A jury awarded Thompson damages of $530 for assault and battery, $35,000 for defamation, $42,500 for intentional infliction of emotional distress, and $280,000 for loss of wages or diminished earning capacity attributable either to the defamation or to the intentional infliction of emotional distress. Thompson, 570 A.2d at 280. Thompson's defamation and emotional distress claims are based on twenty-two memoranda that her supervisor, appellant Maury, had written during Thompson's two-year employment beginning in May 1981 as a library technician at the Northeast branch of the District's Public Library. As we noted in our earlier opinion:

These memoranda, beginning in June 1981, repeatedly advised and warned Thompson 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.

Id. at 281. Thompson's emotional distress claim also rests on the following actions:

Maury approved her leave and then changed her status to absence without leave; he refused to consider her for promotion to the next grade level or to give her the computer test she asked for; he isolated her from the other employees; he requested statements from her doctor as to her limited hours; he wrote memoranda on her excessive leave; and he assaulted her and lied about it, resulting in her job loss.⁴

Id. at 290.

B.

Before addressing Maury's memoranda and other alleged tortious conduct, we believe it would be helpful to outline the statutory scheme that, according to the District, provides the exclusive route to resolving Thompson's claims. CMPA establishes a merit personnel system that, among other things, provides for (1) employee "performance ratings," including "corrective actions" when necessary; (2) employee discipline through "adverse action" proceedings; and (3) prompt handling of employee "grievances." See D.C.Code §§ 1-615.1 to -615.5 and 1-617.1 to -617.3. As a general rule, whether a public employee defends a corrective or adverse action by the employer, or initiates a grievance proceeding against the employer, the matter will be resolved either under detailed CMPA procedures or under a CMPA-sanctioned collective bargaining agreement between the employing agency and a public employees' labor union—but not both. See id. §§ 1-615.3(c), -615.4(d), -617.3(d).

More specifically, subchapter 15 of CMPA, D.C.Code §§ 1-615.1 to -615.5, requires the Mayor, "after negotiation with appropriate labor organizations," to establish a "performance-rating plan" for evaluating all covered personnel. Id. § 1-615.1. The plan, at a minimum, must provide for annual performance ratings "used to improve employee performance." Id. § 1-615.2. Employees shall be rated according to at least a five-level scale from "outstanding" to "unsatisfactory;" "may be rated unsatisfactory only after a 90-day advance warning period;" and may be removed only by the "adverse action" procedures outlined in Subchapter 17 of CMPA, D.C.Code §§ 1-617.1 to -617.3, "unless otherwise provided by a negotiated contract" with a public employees labor union. Id. § 1-615.3.

An employee may obtain an impartial review of a performance rating by the board of review within his or her own particular agency, subject to further review by the Office of Employee Appeals (OEA), id. §§ 1-606.3(a), -615.4, and by the Superior Court. Id. § 1-606.3(d). Employees covered by a collective bargaining agreement, however, may be subject to performance rating plans and review procedures that differ from those provided under CMPA itself. See id. §§ 1-615.4(d), -615.5.⁵

In Subchapter 17, CMPA establishes procedures for processing employee "grievances."⁶ Id. § 1-617.2. "The grievance system shall provide for the expeditious adjustment of grievances and complaints and the prompt taking of appropriate corrective action when the complaint or grievance is, upon review, found to be justified." Id. Subchapter 17 also governs "adverse actions," such as removal for cause. Id. §§ 1-617.1, -617.3. When confronted by an adverse action, an employee is entitled to receive a written copy of the charges, to have time to file a written answer, and to receive a decision "within 45 calendar...