Millstein v. Henske

• Decision Date: 28 January 1999
• Docket Number: No. 96-CV-1750, No. 97-CV-609.
• Citation: 722 A.2d 850
• Parties: Constance L. MILLSTEIN, Appellant, v. Stephen J. HENSKE, Appellee.
• Court: D.C. Court of Appeals

722 A.2d 850

Constance L. MILLSTEIN, Appellant, v. Stephen J. HENSKE, Appellee.

Nos. 96-CV-1750, 97-CV-609.

District of Columbia Court of Appeals.

Argued December 17, 1998.

Decided January 28, 1999.

Alex T. Sliheet, North Potomac, MD, with whom Herbert Alan Dubin, Rockville, MD, was on the brief, for appellant.

Joseph S. Crociata, with whom Martha Ann Knutson, Washington, DC, was on the brief, for appellee.

Before SCHWELB and FARRELL, Associate Judges, and KING, Senior Judge.

FARRELL, Associate Judge:

In this appeal from the grant of summary judgment to the defendant ("Henske"), the plaintiff ("Millstein") contends that triable issues of fact exist as to whether Henske (1) unlawfully retaliated against her because of a fellow employee's participation in filing a gender and race discrimination complaint with the employer, see D.C.Code § 1-2525(a) (1992); and (2) defamed her in a written performance evaluation. We reject Millstein's invocation of a third-party reprisal theory on the facts of this case; hold as to defamation that she has not overcome Henske's qualified "common interest" privilege; and therefore affirm.

I.

A. The Facts

In 1983 Millstein, a nurse practitioner, began working at the Georgetown University Law Center Student Health Services Clinic (the "Law Clinic"). Although she was the Law Clinic's sole clinician, her work was supervised by doctors. At the time and for some years thereafter, an apparent practice existed whereby doctors would pre-sign prescription forms to enable Millstein and other practitioners to fill out certain prescriptions for students. The practice continued at the Law Clinic during the period of 1988 to 1994 when Millstein was supervised by Dr. Jane Chretien. Chretien's relationship to Millstein, as the doctor stated in her deposition, was a "[p]rofessional one"; she had been "a colleague [of Millstein] for twelve ... or thirteen years."

In January 1993, nine student health employees¹ lodged a complaint with the Georgetown Office of Affirmative Action Programs alleging gender and race discrimination and unprofessional behavior on the part of defendant Henske, the Director of Student Health Services. Dr. Chretien, who was Acting Medical Director of Health Services at the time, wrote the complaint and was apparently the liaison between the employees and the university's affirmative action committee. Millstein, on the other hand, was not a complainant, was not interviewed in connection with the complaint, and by her admission had "zero to do with it." The complaint was resolved in March 1993 with a finding of no evidence of race or gender discrimination, but some evidence of differential treatment and unprofessional behavior.

Soon after the complaint was resolved, Dr. Chretien applied twice for the position of permanent Medical Director of Health Services. Each time, the committee to select the director dissolved itself, and in fact no director was selected because the Georgetown University Medical Center proposed to take over management of the Student Health Center. During a subsequent staff meeting which was to become important to this litigation,² Millstein publicly asked why Dr. Chretien had not received the medical director position, pointing to her 22 years at Georgetown and her dedication to student health. In doing so, though, Millstein made no reference to the earlier discrimination complaint. While he was in the hospital sometime after this meeting, Henske asked Nurse Larkin, a fellow employee of Millstein, why "Connie [Millstein] is against me," presumably referring to her criticism at the meeting. In this conversation, neither Larkin nor Henske linked the criticism to the 1993 discrimination complaint. Dr. Chretien left Georgetown University in September 1994, and Henske became Millstein's direct supervisor.

At a meeting on September 7, 1994, Henske told Millstein that a law student had complained about the use of pre-signed prescriptions at the Law Clinic. Henske and Dr. Wills, a senior health physician who was also present, told her that the practice had ended at Main Campus and should be stopped immediately at the Law Clinic. Henske and Millstein met again on December 13, 1994, and Henske told her that she would not receive her performance review in December (as had previously been the case) because he felt the evaluation would be negative in light of the student complaint and Millstein's use of the pre-signed scripts. Millstein wrote a letter to Henske the next day, with copies to the university president and other officials, in which she protested (among other things) that she had not been informed of the change in the prescription practice — which had been in effect since 1983 — until the September 7 meeting.³ She followed this up with a December 15 letter to Dr. James Donahue, Dean of Student Affairs, asking rhetorically whether Henske's conduct toward her on December 13 had not reflected discrimination and retaliation. Henske, apparently informed of the letter, responded in late January 1995 with a memo to Millstein stating that "our time would be far better spent addressing the quality of your performance rather than being immersed in a dispute over the timing of your evaluation."

Accordingly, on February 1, 1995, Henske wrote an evaluation of Millstein in two parts. The first was a form to be placed in her Human Resources file, in which he rated her performance "satisfactory" overall and gave her a 3.3% raise. The second was a memorandum not to become part of her file, but carbon-copied to Dean Donahue, two Deans of the law school, and the law school Registrar. In it Henske explained that, while Dr. Chretien had "felt that [Millstein] had (at least) satisfactorily met the performance requirements of [her] job," he could not give her her performance review at that time because he had not had enough time to evaluate her and, further, had become aware of "deficiencies [in her] ... performance" that precluded a satisfactory rating at the time. After listing several deficiencies, Henske described how Millstein's future supervision would be carried out, and concluded with these paragraphs:

You and I have also discussed the use of pre-signed prescription pads. As I have told you the use of pre-signed prescriptions is illegal and unprofessional. Since my employment at Georgetown University, there has never been an approved policy to make pre-signed prescriptions available to the practitioner. Dr. Wills assures me that such a policy or practice does not exist in the Main Clinic. In my opinion, anyone pre-signing or knowingly completing a blank pre-signed prescription form (especially for a controlled dangerous substance) also demonstrates faulty professional judgment. You have advised me that this practice ended in August, 1994. It may not be reinstated at any time in the future.

I will be conducting a follow-up to this evaluation in approximately 60 days. By that time, I expect significant progress to have been made on the issues I have outlined in this memo.

I look forward to the opportunity to work with you on these concerns.

B. The Proceedings

In September 1995, Millstein sued Henske for (among other things) defamation and retaliation, the latter count alleging reprisal for her support of Dr. Chretien's role in the discrimination complaint.⁴ Initially it appeared that Millstein had abandoned the retaliation claim, and the trial court granted summary judgment for the defendant on all counts, noting that Millstein "apparently concedes the claim of retaliation." In a motion for reconsideration — essentially a motion under Super. Ct. Civ. R. 59(e) — Millstein disputed this conclusion, arguing that she had presented evidence of a retaliatory motive on Henske's part relevant both to the defamation claim (as proof of malice) and violation of the District of Columbia Human Rights Act;⁵i.e., Henske harbored a "carried state of retaliation in his mind stemming from Ms. Millstein's previous statements supporting Dr. Chretien." The retaliation allegedly took the form of the "defamatory" February 1, 1995, written evaluation and other adverse actions.

Apparently disagreeing with Henske's response that Millstein was seeking to resuscitate a retaliation claim she had previously abandoned, the trial court granted the motion to reconsider, but again entered summary judgment for Henske presumably on the ground that Millstein had not made out a prima facie case of retaliation.

II. Discussion

A. Retaliation under the Human Rights Act

Millstein contends that she indeed raised triable issues of fact concerning retaliation under the Human Rights Act ("DCHRA" or "the Act"). D.C.Code § 1-2525(a), the anti-retaliation provision of the Act, states:

It shall be an unlawful discriminatory practice to . . . retaliate against . . . any person in the exercise or enjoyment of, or on account of having exercised or enjoyed, or on account of having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected under this chapter.[⁶]

A plaintiff makes out a prima facie case of retaliation by establishing that "(1) she was engaged in a protected activity, or that she opposed practices made unlawful by the DCHRA; (2) the employer took an adverse personnel action against her; and (3) a causal connection existed between the two." Howard Univ. v. Green, 652 A.2d 41, 45 (D.C.1994).⁷

Millstein argues that she made out the first element of a prima facie case by presenting evidence of "third-party reprisal," i.e., that Henske retaliated against her for Dr. Chretien's part in filing the discrimination claim with the university. Millstein thus studiously avoids on appeal any argument that she herself engaged in an activity protected by the DCHRA, and this prompts Henske to object that she has abandoned her sole theory of reprisal below — which was that she herself, by publicly supporting Dr. Chretien, had engaged in and been punished for...