MOSS v. STOCKARD

• Decision Date: 25 September 1990
• Docket Number: No. 88-360,No. 88-358,88-358,88-360
• Parties: Orby Z. MOSS, Jr., Appellant, v. Bessie A. STOCKARD, Appellee. DISTRICT OF COLUMBIA, et al., Appellants, v. Bessie A. STOCKARD, Appellee. Bessie A. STOCKARD, Appellant, v. Orby Z. MOSS, Jr., et al., Appellees.
• Court: D.C. Court of Appeals

580 A.2d 1011

Orby Z. MOSS, Jr., Appellant, v. Bessie A. STOCKARD, Appellee.DISTRICT OF COLUMBIA, et al., Appellants, v. Bessie A. STOCKARD, Appellee.Bessie A. STOCKARD, Appellant, v. Orby Z. MOSS, Jr., et al., Appellees.

Nos. 88-358 to 88-360.

District of Columbia Court of Appeals.

Argued January 22, 1990.

Decided September 25, 1990.

Appeal from the Superior Court, District of Columbia, Robert A. Shuker, 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 Herbert O. Reid, Sr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief for appellant in No. 88-358 and appellants in No. 88-359, and for appellees in No. 88-360.

John E. Scheuermann, Washington, D.C., entered an appearance on behalf of appellant Moss, and adopted the briefs of appellants in Nos. 88-358 and 88-359 and appellees in No. 88-360.

John M. Clifford, with whom John M. Delaney, Washington, D.C., was on the brief, for appellee in Nos. 88-358 and 88-359 and appellant in No. 88-360.

Before BELSON, STEADMAN, and FARRELL, Associate Judges.

FARRELL, Associate Judge:

This is a consolidated appeal arising from a jury verdict in favor of Bessie A. Stockard on claims of slander and breach of contract against defendants Orby Z. Moss, Jr., the Athletic Director of the University of the District of Columbia, the Board of Trustees of the University of the District of Columbia (UDC), and the District of Columbia (the District). Moss, UDC, and the District appeal from the trial judge's refusal to grant in their entirety their motions for a directed verdict on the slander and breach of contract causes of action. With respect to the slander claim, they argue that Stockard failed to establish the falsity of Moss's statements to others that Stockard's contract as head coach of the UDC women's basketball team had not been renewed because of "misappropriation" of funds entrusted to her. They also contend that Moss, as a public official, enjoyed an absolute privilege to make those statements or, in the alternative, had a qualified privilege which Stockard failed to defeat with the requisite showing that Moss made the statements maliciously. They further assert that Stockard, as a public official or public figure, was required to — but did not — demonstrate by clear and convincing evidence that Moss had made the statements with "actual malice" within the meaning of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Regarding the breach of contract claim, they assert that no coaching contract between UDC and Stockard existed for the 1981-82 basketball season, and that even if Moss's promise to renew the previous year's contract was enforceable, his decision not to do so was within his discretion in light of Stockard's behavior.

On her cross-appeal, Stockard challenges the trial judge's remittitur of the jury's verdict on the slander claim from $300,000 to $100,000, contending the judge invaded the jury's province by disturbing its findings on matters committed to jury discretion.

We conclude that whether Moss's statements were subject to absolute immunity turns upon whether his conduct was a "discretionary" function as defined in our decision in District of Columbia v. Thompson, 570 A.2d 277 (D.C. 1990). Because the present record precludes an informed analysis of the policy factors necessary to resolve that question (Thompson having been decided after the trial in this case), we remand the case to the trial judge for consideration of the issue in light of Thompson and this opinion. To avoid duplicative appellate litigation in the event the trial judge concludes absolute immunity doesnot attach, we reach the remaining issues as well and dispose of them as set forth below.

I.

A. Factual Background

In 1978, Bessie Stockard was a tenured Associate Professor in the Physical Education Department of UDC. Previously, she had acquired considerable experience as a women's basketball coach, having organized the women's basketball team at Federal City College, the predecessor of UDC, and served as coach for the United States World and American University women's basketball teams. In April 1979 Moss, Director of Athletics, offered to appoint Stockard head coach of the new women's basketball team at UDC, and Stockard accepted. The contract term was for one year¹ beginning June 1, 1979, renewable at Moss's discretion. Since Stockard believed, and Moss agreed, that it was impossible to develop a competitive basketball program in one year, they discussed a four or five year time frame. Accordingly, Moss's offer letter noted, "Beginning with the 1980-81 season, the position will hopefully come out of the appropriate budget," and he agreed to work "to set up special contracts for multi-year appointments" to ensure continuity in the program.

In 1980, acknowledging the success of Stockard's coaching and the team,² Moss offered to renew Stockard's contract. In deference to her desire to resume her former status as a full-time tenured professor of physical education, Moss offered the coaching position on a part-time basis with compensation at $9,000 for the coming year. In the renewal offer letter dated April 28, 1980, Moss sought to allay Stockard's concern over the brevity of the appointment, assuring her that "if you continue to meet the goals we jointly decide on each year, barring unforeseen circumstances or circumstances not under our control, you will be rehired." Stockard accepted the offer. Following the 1980-81 season, Moss again wrote Stockard a letter reviewing the progress she and the team had made, and continuing:

At the end of the 1982-83 season, I feel that we should, you, Ms. [Emma] Best [Assistant Director of Athletics for Women's Sports] and I will be able to establish whether the program is progressing the way it should and if these goals are being met. This time frame will have then given you four (4) years to develop your program, along your philosophy tempered by my direction, and Ms. Best's administrative support.

In conclusion, I feel that you are on your way, maybe even ahead of schedule in the area of winning and losing, to establishing a good program. You have until 1983 to put all the pieces into place, academically as well as athletically.

At trial, Moss testified that when he wrote this letter he had already received authorization to renew Stockard's contract and intended to rehire her for the 1981-82 season.

Nevertheless, on March 25, 1981, Moss orally informed Stockard that her contract would not be renewed. The termination resulted from Moss's dissatisfaction with her handling of and accounting for university funds disbursed to cover meal and other expenses during a three-day team trip to Atlanta for two "away" games in December 1980.

Stockard had obtained a cash advance of $1,150.00 for the trip from Curtis Watkins, the Athletic Department Business Manager.³ At the end of the season, she submitteda report to Watkins with receipts indicating that of the $1,150 received for the Atlanta trip, she had paid $145.65 for a team dinner on December 19, which Moss attended; $39.00 for a breakfast for twelve people on December 20; and $800 consisting of $40.00 in cash she had distributed to each of the twenty players as meal money for breakfast, lunch, dinner and a snack for each of the three days they were away. She submitted a "meal money signature sheet" bearing the signatures of each player who received the $40.00.⁴ She had also paid $252 for an airline ticket for a player who decided to attend the trip at the last minute,⁵ and had paid for incidentals such as oranges, ice and taxi fares.

Stockard testified that in mid-March, after Watkins had submitted the receipts and trip report to Moss, Moss called her in for a meeting and asked her if she had any more receipts. When she replied that she did not, Moss stated, "Curtis says these are not all the receipts," and asked her to take them back, look them over, and "fix" them. She insisted that the receipts submitted were all there were, and left them with Moss. Moss testified that after reviewing the receipts, he and Best spoke with several persons who had attended the Atlanta trip. Questions arose when Best informed him that one player told her she had only received $21.00 in meal money. Moss also testified Stockard had submitted a receipt from Paschal's Motor Hotel in Atlanta indicating that a credit balance of $53.34 had been reduced to zero by a payment in cash, when in fact lodging for the team at Paschal's had been prepaid by the university.

Moss directed Stockard to meet with Best to straighten out the receipts, including the meal money and motel bill. Stockard resubmitted her report which was still unsatisfactory to Moss; he testified that the $40 meal money distributions to the players exceeded Departmental guidelines and violated AIAW rules limiting meal money distributions to participating team members.⁶ When Moss and Best met with Stockard again, she told them that she "stood by" the receipts. On March 25, 1981, Moss again met with Stockard and told her she was either misrepresenting her trip reports or giving her players too much money. When Stockard refused to change her position, Moss told her that her contract would not be renewed.

The next day, Stockard wrote to Moss stating:

Based on our two conversations, the first with you, Mrs. Best, and myself; and thesecond conversation with you and myself on March 25, 1981 regarding meal money for the women's basketball team, I was not given orally or in writing during my entire tenure with the Athletic Department, under your administration, any direction as to how much money the team should be given per meal, per day, or per trip. I received all monies, in cash, from our business manager, Mr. Curtis Watkins. I did not request any money from...