Futrell v. DEPARTMENT OF LABOR FEDERAL CU

• Decision Date: 06 February 2003
• Docket Number: No. 01-CV-499.,01-CV-499.
• Citation: 816 A.2d 793
• Parties: Barbara A. FUTRELL, Appellant, v. DEPARTMENT OF LABOR FEDERAL CREDIT UNION, et al, Appellees.
• Court: D.C. Court of Appeals

816 A.2d 793

Barbara A. FUTRELL, Appellant, v. DEPARTMENT OF LABOR FEDERAL CREDIT UNION, et al, Appellees.

No. 01-CV-499.

District of Columbia Court of Appeals.

Argued April 9, 2002.

Decided February 6, 2003.

C. Hope Brown for appellant.

F. Joseph Nealon, with whom Kirsten E. Keating, Washington, DC, was on the brief, for appellees.

Before STEADMAN, RUIZ and WASHINGTON, Associate Judges.

WASHINGTON, Associate Judge:

Appellant, Barbara A. Futrell, appeals from the grant of summary judgment in favor of appellees, her former employer, the Department of Labor Federal Credit Union (DOLFCU or "credit union"); Robert Kravetz, the President of its Board of Directors ("Board"); and CUNA Mutual Group, the parent company of DOLFCU's bonding company, CUMIS Insurance Society ("CUMIS"). Futrell brought suit against DOLFCU and Kravetz for race and age discrimination under the District of Columbia Human Rights Act (DCHRA), D.C.Code § 1-2501 et seq. (1999 Repl.) (now codified at D.C.Code § 2-1401.01 et seq. (2001)), as well as for wrongful discharge arising out of her demotion and her subsequent termination. In addition, she brought a claim for tortious interference with employment rights against Kravetz and CUMIS, and an intentional infliction of emotional distress claim against all appellees. Futrell also challenges the trial court's ruling denying her motion to compel the production of collective bargaining agreements and the trial court's failure to rule as to the production of complete National Credit Union Administration (NCUA) reports concerning the credit union's performance. Finding no merit to her claims, we affirm.

I.

Appellant Futrell, an African American woman who was 58 years old at the time of her termination, was employed by DOLCU for over 38 years, from March 1, 1961 to December 6, 1999. In 1961, she was hired as a part-time employee, she subsequently became a full-time teller in March of 1962, and was then promoted to Head Teller. She was later promoted to the position of loan processor in the Loan Department and, in 1995 Futrell was made DOLFU's Acting Assistant Manager. In July 1997, Futrell was promoted to Acting Manager and in July 1998, the Board voted unanimously to appoint her as the Manager of DOLFU. At the July 15, 1998 Executive Session Meeting where this decision was made, Bonnye Newkirk, the Board's Treasurer, characterized Futrell as "the best candidate" among the four interviewed for the position because "she has worked well under difficult circumstances and ... the Board needs a handson person immediately."

On May 3, 1999, Futrell received an official performance evaluation from DOLFCU, which referred to the 1998 and 1999 National Credit Union Administration ("NCUA")¹ examination reports. Although the performance evaluation period was for July 1998 through July 1999, she was evaluated in May 1999. The evaluation noted deficiencies in Futrell's performance in several areas, including "Organizational Development & Administration,"² "Financial Management,"³ "Communication/Public Relations,"⁴ "Human Resource Management,"⁵ and "Planning."⁶ The evaluation concluded by describing Futrell as a person who "is willing to do her best but has not performed the duties of Manager at an acceptable level."

On June 10, 1999, during an Executive Session of DOLFCU's Board of Directors' meeting, a majority of the Board members entered a vote of "no confidence" in Futrell's ability to manage the credit union.⁷ In a July 8, 1999 letter on behalf of the Board, Kravetz demanded Futrell's resignation as Manager by July 22, 1999 to be effective August 27, 1999, and presented her with two alternatives-severance pay in the amount of $40,329 or reassignment to the position of Assistant Manager for Special Projects at an annual salary of $58,027. The letter also indicated that she was being presented with these two options because the DOLFCU Board recognized her "prior contributions and many years of service to the Credit Union." On August 19, 1999, Kravetz withdrew the July 8, 1999 letter, and instead demoted and reassigned Futrell to the position of Assistant Manager for Special Projects at a $68,570 annual salary effective September 12, 1999. An older white male, Leonard Supchak, was hired to serve as Acting Manager until a permanent Manager was hired. On December 13, 1999, a younger white female was hired as Manager. During her June 8, 2000 deposition, Futrell conceded that she was unable to perform the duties of the Manager position at an acceptable level.⁸

On May 6, 1999, at a meeting attended by Futrell, the DOLFCU Board adopted a new travel and expense policy for officials and employees of the credit union. The policy prohibited the use of the corporate credit card for personal purchases: "[t]he corporate card is not to be used for any personal purchases by anyone. If it is used for personal purchase [sic] then possession of the card will be revoked ... (Purchase as described above includes both intentional and accidental usage)." In September 1999, DOLFCU learned that Futrell used the corporate credit card for personal purchases on several occasions in violation of the travel and expense policy. These credit card charges, which were incurred between June 27, 1999 and September 11, 1999, were neither supported by the required documentation nor did they appear to be business-related. In a memorandum dated October 18, 1999, Kravetz requested that Futrell provide the Board with an explanation by October 21, 1999 as to the nature of each of the fourteen charges and whether they were business-related. In that memorandum, Kravetz noted that Futrell had already admitted to making several other personal credit card charges, but had not made restitution to DOLFCU for all such charges. Futrell did not provide documentation, but in a letter dated October 21, 1999, her attorney informed DOLFCU that the credit card charges that were not business-related "occurred as a result of an excusable error caused in part by the DOLFCU VISA coordinator," and that such charges had been reimbursed.

In order to protect itself from any losses due to fraud or theft, DOLFCU maintains a bond coverage provided by CUMIS, for its employees. The terms of DOLFCU's bonding by CUMIS are governed by the "CUMIS Credit Union Bond 400 and Special Insurance Package of Protection." The "Coverages" section of that policy provides that "CUMIS will pay you for your loss resulting directly from dishonest acts committed by an `employee' or `director,' acting alone or in collusion with others." Under "Conditions," the CUMIS Credit Union Bond provides that:

1. This Bond's coverage for an "employee" or "director" terminates immediately when one of your "directors," officers or supervisory staff not in collusion with such person learns of:

a. Any dishonest or fraudulent act committed by such "employee" or "director" at any time, whether or not related to your activities or of the type covered under this Bond ...

2. CUMIS at its sole option may terminate coverage for an "employee" or "director." Such termination will be effective 15 days after receipt by you... of written notice of such termination from CUMIS.

3. Termination of coverage for an "employee" or "director" under paragraphs 1. or 2. above terminates CUMIS's liability for any loss resulting from any act or omission by that "employee" or "director" occurring after the effective date of such termination.

In an October 28, 1999 fax, Supchak, the acting Manager, notified CUMIS of Futrell's possible violation of the travel and expense policy by filing a "CUMIS Bondability Notice of Employee Discrepancies." In that form, in response to a question entitled "Detailed description of the activity," Supchak indicated that "Barbara A. Futrell was using the DOLFCU Corporate Visa Credit Card to purchase personal items. She only made restitution after we reviewed the statements [and] found that these items were not purchased for the credit union." In an additional "Note" at the end of the form, Supchak wrote, "[w]e feel you should be put on notice ... in the event we have future claims. We also need in writing from you that she will continued [sic] to be bonded." On October 29, 1999, Wayne Scholze, a CUMIS representative, informed Futrell by letter that such unauthorized use of the corporate credit card would result in the termination of her bond since such activity "places the credit union and CUMIS in a position of increased risk." CUMIS indicated that it would allow her 15 days to provide a detailed written response and supporting documents before terminating her bond coverage on December 6, 1999.

In a November 22, 1999 letter, Futrell's counsel responded to CUMIS's October 29, 1999 letter, explaining that the personal charges "occurred as a result of an error caused in part by the DOLFCU Visa coordinator," and that the charges had been reimbursed to DOLFCU. In a letter dated November 30, 1999, the CUMIS representative notified Futrell that her bond coverage would terminate effective December 6, 1999 because he believed that the personal charges were Futrell's responsibility, not that of the Visa coordinator. As a result of the termination of her bond coverage, Kravetz terminated Futrell on the same day, basing his decision on the fact that federal regulations require that federal credit unions only employ persons who are bonded pursuant to 12 C.F.R. §§ 713.1, 713.3 (2002).⁹ On December 10, 1999, the Board voted to ratify her termination.

II.

A. Summary Judgment Standard

On appeal, we review the grant of a motion for summary judgment de novo, relying on the same standard that was used by the trial court. Hollins v. Fedreal Nat. Mortg. Ass'n, 760 A.2d 563, 570 (2000). Thus, we must conduct an independent review of the record, assessing it in the light most favorable to the nonmoving party and "resolving against the moving party any doubts about the existence of a material factual dispute." Id.¹⁰...