Washington Welfare Ass'n, Inc. v. Poindexter

• Decision Date: 23 July 1984
• Docket Number: No. 81-1424.,81-1424.
• Citation: 479 A.2d 313
• Parties: WASHINGTON WELFARE ASSOCIATION, INC., et al., Appellants, v. Agnes M. POINDEXTER, Appellee.
• Court: D.C. Court of Appeals

Page 313

479 A.2d 313

WASHINGTON WELFARE ASSOCIATION, INC., et al., Appellants, v. Agnes M. POINDEXTER, Appellee.

No. 81-1424.

District of Columbia Court of Appeals.

Submitted April 18, 1984.

Decided July 23, 1984.

J. Leon Williams and Franklin A. Anderson, Washington, D.C., were on the brief for appellants.

No brief was filed and no appearance was entered for appellee.

Before BELSON and TERRY, Associate Judges, and PAIR, Associate Judge, Retired.

TERRY, Associate Judge:

Appellee sued appellants, Washington Welfare Association, Inc., a non-profit corporation doing business as Southeast Neighborhood House, and its executive director, Laplois Ashford, for breach of contract and defamation. The trial court granted appellants' motion for a directed verdict on the defamation count at the conclusion of appellee's case. The jury later returned a verdict of $42,000 against appellants on the breach of contract count. Appellants appeal from the trial court's denial of their motion for judgment notwithstanding the verdict or, in the alternative, for a new trial or remittitur. We affirm the trial court's ruling on the issue of liability but remand for a modification of the damages award.

I

In 1975 appellee was hired as an accountant by James Speight, the executive director of Southeast Neighborhood House (SENH). Her duties included the preparation of various journals, quarterly reports, budgets, and the payroll. The amount of work required was too much for one person, however, and after a few months appellee requested additional help from Vivien Cunningham, who had replaced Mr. Speight as executive director. Soon thereafter a junior accountant was hired. Appellee testified that although the situation improved, "still there was too much work for just two people to do. . . ."¹

On January 15, 1978, appellee increased the salary of Wilsonia Williams, an employee of SENH, by $10 per pay period. Appellee acknowledged at trial that she had no authority to raise anyone's pay and that it was up to the executive director to decide who should receive merit increases. She explained, however, that the reason why she implemented the increase in the case of Williams was that she had been informed by Zefferine Wheeler, Williams' supervisor, that the executive director had approved it.²

On February 23 appellee received a memorandum from Gloria Jackson, assistant to the director of SENH,³ stating that she had found "no justifiable reason" for Williams' pay increase. Jackson further noted that Cunningham had told her she had not authorized the increase⁴ and that Wheeler said she had not made any representations that the increase had been authorized by Cunningham. Jackson concluded the memorandum by stating that she regarded appellee's actions "as a flagrant disregard for [her] authority and an abuse of [appellee's] position as Senior Accountant" and gave appellee "the option of resigning with a 30-day notice or being terminated with cause." Jackson expressed regret at the action she was taking but maintained that she could "not continue to ignore or excuse the problems in the accounting office." She told appellee that if she did not voluntarily submit her resignation to the executive director by the close of that business day, the director would "formally terminate [her] services for cause on Friday, February 24, 1978." Appellee did not submit her resignation, and the following day she received a memorandum from Laplois Ashford, the executive director, informing her that she would be terminated on March 31.

Appellee then retained counsel, who wrote to the executive director on February 27 stating that appellee intended to appeal her termination under the Personnel Policy and Procedures Manual of SENH. Counsel added, however, that the hearing on appellee's appeal would have to be postponed because appellee was scheduled for surgery at Washington Hospital Center on March 2.⁵ An exchange of letters followed, but the hearing on appellee's appeal from Ashford's decision to fire her was never held.

Appellee testified that she was released from the hospital on March 11 and spent approximately the next three months at home recuperating.⁶ She then started to look for a job but could not find one. She applied for and received unemployment compensation benefits for thirty-two weeks, from June 1978 to January 1979, in the amount of $160 per week. In January she secured a part-time job as an accountant which lasted six weeks.⁷ She did not work again until October 1980, when she found a full-time job as an office manager and bookkeeper with a construction company.

Laplois Ashford, the executive director, testified that he had concurred in Jackson's decision to terminate appellee. Ashford also stated that the appeal process on appellee's termination was thwarted when she filed suit.

II

Appellants contend that the trial court's instruction to the jury that appellee was a permanent employee who could be discharged only for cause was erroneous. Appellants argue that the court "should have decided . . . as a matter of law, that [there] was an employment relationship of indefinite duration and therefore terminable at will and without cause." Assuming that good cause for appellee's termination was required, however, appellants maintain that the court erred in not entering a judgment in their favor, since the evidence was "clear and convincing" that SENH had good cause to fire her. Finally, appellants contend that the jury's award of damages was excessive.⁸

A motion for judgment notwithstanding the verdict under Super.Ct.Civ.R. 50(b) may be granted "only when the evidence, viewed in the light most favorable to the nonmoving party, permits only one reasonable conclusion as to the proper judgment." Lewis v. Washington Metropolitan Area Transit Authority, 463 A.2d 666, 669 (D.C.1983) (citations omitted). Thus, "[w]hen there is `some evidence from which jurors could find the necessary elements,' . . . or when the case turns on disputed facts and witness credibility . . . the case is for the jury." District of Columbia v. Gandy, 450 A.2d 896, 900 (D.C.1982) (citation and footnote omitted), modified on other grounds, 458 A.2d 414 (D.C.1983). On the present record, we hold that appellants' motion for judgment notwithstanding the verdict was properly denied. We find error, however, in the denial of appellants' alternative motion for a remittitur or a new trial.⁹ This error may or may not require a new trial on the issue of damages, depending on the outcome of the remand proceedings which we direct the trial court to conduct.

III

Appellants attack the trial court's instruction that appellee was a permanent employee under the employment contract who could be discharged only for cause.¹⁰ They argue that because appellee's contract was of indefinite duration, the court should have ruled as a matter of law that it was terminable at the will of either party and that no cause had to be shown. Additionally, appellants maintain that the court's "attempt to incorporate the personnel manual into a contract [was] contrary to District of Columbia law and [was] extremely prejudicial to [their] cause." The problem with these contentions, however, is that the theories underlying them are advanced for the first time on this appeal.¹¹

Appellants never argued below that because appellee's employment contract was of indefinite duration, either party could terminate it at will, nor did they contend that the provisions embodied in the Personnel Policy and Procedures Manual were not part of appellee's employment contract. Rather, appellants maintained that appellee's unauthorized decision to award a salary increase to one of SENH's employees, coupled with the allegedly incompetent manner in which she handled her responsibilities as senior accountant, provided good cause for her discharge. Since "[p]arties may not assert one theory at trial and another theory on appeal," Hackes v. Hackes, 446 A.2d 396, 398 (D.C. 1982) (citation omitted), appellants are barred from making new arguments on appeal based on the duration and terms of appellee's employment contract.

Appellants also challenge the court's denial of their motion for judgment n.o.v., contending that the evidence was clear and convincing that SENH had good cause for terminating appellee. The record does not support this contention. There was evidence from which the jury could have reasonably concluded, as it did, that appellee's dismissal was not for just cause and that SENH therefore breached her employment contract.

First, with regard to appellee's alleged incompetence, appellee testified that the accounting department, which consisted of herself and a junior accountant, was understaffed. This testimony was corroborated by audits of SENH performed before and during her employment there, as well as the testimony of Vivien Cunningham, SENH's former executive director. Indeed, in her last evaluation of appellee, conducted approximately three months before appellee was fired, Cunningham wrote:

Agnes Poindexter has been an outstanding employee under a very stressfull [sic] situation. She has had to accept blame for many problems created by her predecessors which I feel has made her a little sensitive to criticism. Ms. Poindexter could however cultivate more discipline in her dealings with abrasive personalities.

Second, with regard to the unauthorized salary increase for Wilsonia Williams, appellee explained that she had relied on Zefferine Wheeler's representations that executive director Cunningham had orally approved it. This explanation was corroborated by the testimony of both Wheeler and Cunningham. On this evidence we hold that a factual issue was presented which the jury permissibly resolved in appellee's favor.

IV

Finally, appellants argue that the verdict was excessive. They contend that in calculating damages, the jury failed to deduct monies received by appellee from unemployment compensation...