Law v. Howard University, Inc., 87-729.

• Decision Date: 19 May 1989
• Docket Number: No. 87-729.,No. 87-925.,87-729.,87-925.
• Citation: 558 A.2d 355
• Parties: Esther LAW, et al., Appellants/Cross-Appellees, v. HOWARD UNIVERSITY, INC., Appellee/Cross-Appellant.
• Court: D.C. Court of Appeals

Page 355

558 A.2d 355

Esther LAW, et al., Appellants/Cross-Appellees, v. HOWARD UNIVERSITY, INC., Appellee/Cross-Appellant.

No. 87-729.

No. 87-925.

District of Columbia Court of Appeals.

Argued November 15, 1988.

Decided May 19, 1989.

John Perazich, with whom Anthony M. Rachal, Washington, D.C., was on the brief, for Esther Law, et al.

John F. Mahoney, Jr., with whom Daniel 0. Bernstine, Washington, D.C., was on the brief, for Howard University, Inc.

Before STEADMAN and SCHWELB, Associate Judges, and PRYOR, Senior Judge.

STEADMAN, Associate Judge:

Law was an employee of Howard University. Suspected of diverting funds, she was fired after a brief hearing before her supervisor. Law was arrested and charged with grand larceny. She was indicted for embezzlement, but the government declined to further prosecute her case. In a civil jury trial, the following damages were awarded: $260,000 for Howard's breach of Law's employment contract; $16,000 for damages arising out of tort claims related to her arrest and indictment; and $2,500 for her husband Roger Law's loss of consortium. The trial court granted Howard's motion for judgment n.o.v. on the tort claims, but denied the motion with respect to the breach of contract and loss of consortium claims. Both parties appeal.

In deciding whether the trial court erred in denying Howard's judgment n.o.v. motion, we note that "[a] judgment notwithstanding the verdict is proper only in `extreme' cases, in which no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party." Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C. 1986). Howard contends that Law failed to establish a case of wrongful termination and that therefore the jury verdict cannot stand.

The trial court instructed the jury that to prevail on the contract claim, Law had to prove by a preponderance of the evidence both that an employment contract existed between her and Howard and that Howard breached that contract by discharging her "without just cause." Law relied on the provisions of Howard's employee handbook as establishing her employment relationship with the University. On appeal Howard argues that under the handbook, the proper test of the rightfulness of Law's discharge was not whether there was "just cause," as the jury was instructed, but rather whether Law had successfully refuted the charges of theft made against her. However, the "just cause" formulation is an arguable extrapolation from the handbook terms and at trial Howard appears to have entered no objection to such a formulation of the test in the instructions, perhaps for tactical reasons.¹ Super.Ct.Civ.R. 51; District of Columbia v. Mitchell, 533 A.2d 629, 645-46 (D.C.1987) and cases cited. Howard may even have benefited by the expansive phraseology of any "just cause" as justifying the discharge, rather than the grounds lisited in the handbook.

Howard also argues that Law's breach of contract claim is not properly before this court because she failed to exhaust employee grievance procedures and remedies provided by the University, relying in part on cases involving government agencies. These cases are inapposite, however. The requirement of exhaustion of administrative remedies flows from the principle of comity between coequal branches of the government and on the judicial reluctance to rule on actions of the executive branch unless a person has taken all possible steps to seek redress within the structure of the executive branch. See McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969) (noting that the exhaustion doctrine an expression of executive and administrative autonomy") (footnote omitted)

Howard's case must therefore be based upon the somewhat analogous principle applicable to private dealings which provides that where a contractual agreement expressly provides that certain modes of relief' be employed as a condition precedent to court action, the failure to invoke such modes constitutes a bar to judicial relief. See, e.g., Seefeldt v. Board of Trustees of the Univ. of the District of Columbia, 487 F.Supp. 230 (D.D.C.1979). Here, it is asserted that since the grievance procedures set forth in the handbook were not followed, Law is barred from seeking relief in our courts. While Howard cites provisions which discuss generally the availability and means of invoking such procedures, none of the handbook provisions cited states that the grievance procedures are in any way mandatory or a prerequisite to filing suit in a court of law.

Even if such a provision were to be found in the handbook, it is well settled that no requirement of exhaustion of contractual or administrative remedies exists in either private disputes or disputes involving the government if the attempt to exhaust such remedies would be "futile." Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969) (private dispute involving employees, their union and their employer); Jordan v. Washington Metro. Area Transit Auth., 548 A.2d 792 (D.C.1988) (employee not required to exhaust remedies provided for in contract when hostility of union officials makes a fair hearing...