These cross-appeals pertain to claims for retaliation and defamation filed by Shire-lette Wilkins, appellee/cross-appellant, against her employer, Howard University (“Howard”), appellant/cross-appellee. A jury rendered a verdict in favor of Ms. Wilkins on her retaliation claim, awarding her $1.00 in compensatory damages. In addition, the jury awarded her $42,677.50 in punitive damages after “find[ing] by clear and convincing evidence that [Howard’s] actions in terminating [her] were undertaken recklessly, maliciously, wantonly, and/or in reckless disregard to Ms. Wilkins’ rights under the District of Columbia Human Rights Act [“the DCHRA”].” Howard appeals the trial court’s (the Honorable Thomas J. Motley’s) denial of its post-trial renewed motion for judgment and new trial on the ground that the trial court erred by failing to reduce the jury’s punitive damages award (Appeal No. 09-CV-318).
Prior to trial, the trial court (the Honorable Patricia A. Broderick) “denied with prejudice” Ms. Wilkins’ defamation claim. Ms. Wilkins challenges the trial court’s ruling, including its conclusion that Howard was entitled to a qualified privilege with respect to the alleged defamatory statements (Appeal No. 09-CV-319). The trial court (Judge Motley) 1 also denied Ms. Wilkins’ post-trial motion for equitable relief. Ms. Wilkins contends that the court erred because she was entitled to reinstatement based on the jury’s verdict on her retaliation claim (Appeal No. 09-CV-544).
We discern neither trial court error nor trial court abuse of discretion, and thus, we affirm the trial court’s judgments for the reasons stated below.
FACTUAL SUMMARY
Ms. Wilkins filed a lawsuit against Howard on January 31, 2005. She alleged two causes of action — defamation and retaliation under the DCHRA. She claimed that Howard retaliated against her by terminating her employment because of her prior sexual harassment claim. She also asserted that Howard defamed her by declaring that she “engaged in ‘theft of grant funds’ and/or ‘serious misconduct.’ ” She maintained that Howard’s “conduct is outrageous, malicious, wanton, reckless, and/or in willful disregard for Plaintiffs rights under law.” She sought compensatory and punitive damages, as well as prejudgment interest and reasonable attorneys’ fees.
Prior to trial, Howard lodged a motion for summary judgment on July 3, 2006. In response, the trial court (Judge Broder-ick) “denied with prejudice” Ms. Wilkins’ defamation claim. Judge Broderick ruled, in part, that Howard’s “statements were qualifiedly privileged,” and that “[qjualified privilege is a defense to what would otherwise constitute defamation, provided that the statements were made in good faith and without malice.” In addition, Judge Broderick stated:
Where authorized staff members of the Human Resources Department convened ... to investigate the stated discrepancies in the Paper Direct invoice,the [c]ourt finds that these authorized Hospital personnel had a common interest in knowing whether or not [Ms. Wilkins] had, in fact, billed [Howard] for supplies that were directly sent to her home.... The [c]ourt finds that only authorized staff members of [Howard] were privy to the information contained in the investigation and [Ms. Wilkins’] file. No parties outside of [Howard’s] authorized staff were privy to the information ... [T]he [c]ourt finds that [Howard’s] statements were privileged where they were made in apparent good faith[,] [w]ithout reckless disregard as to the falsity of the publication, and in the common interest of the ... Hospital.
However, the court allowed Ms. Wilkins’ retaliation claim to proceed to trial, because of “disputed issues of material fact.”
The background for Ms. Wilkins’ complaint, which we now summarize, is reflected in testimony presented and documents introduced at the trial by both parties. Ms. Wilkins began her employment with Howard in 1990 when she was hired “as a secretary in the department of medicine” at Howard University Hospital (“the Hospital”). In March 2002, Ms. Wilkins fell, suffering injuries to her right hand and arm, as well as other parts of her body. She was treated by a neurosurgeon, Dr. Gary Dennis, and ordered not to work due to a 100 % disability. Dr. Dennis reported that Ms. Wilkins was unable to work from the time of her injury to June 1, 2004, because of “bilateral carpel (sic) tunnel syndrome, which require[d] further treatment and rehabilitation.”
About one year before her injury, Ms. Wilkins had filed a February 2001 lawsuit against Howard, alleging a DCHRA sexual harassment violation, due to the alleged actions of her supervisor. Trial on this 2001 lawsuit began in January 2003, and eventually, the jury returned a verdict in favor of Howard.
Six months later, an employee and labor relations specialist at the Hospital, Repun-zelle Johnson, sent Ms. Wilkins a letter (July 1, 2003), which stated: “According to our records, there is no documentation supporting your continued need to be out. As such, Management is requesting that you report back to work. Your failure to respond within ten (10) days or contact this office may be taken as a sign of your resignation.” Ms. Johnson’s letter of July 9, 2003 to Ms. Wilkins, in response to a voice mail message from her, declared that the Hospital expected Ms. Wilkins to return to work on July 15, 2003, and that if she was unable to work, she “must provide medical documentation substantiating that on or before ... July 15, 2003.” Ms. Wilkins’ July 14, 2003 letter to Ms. Johnson advised her that she (Ms. Wilkins) had an appointment with Dr. Dennis on July 18, 2003, and that she would obtain an updated medical report from him at that time. She also asserted that she did not intend to resign. Later, Ms. Wilkins provided the Hospital with a disability certificate from Dr. Dennis, dated July 18, 2003, which stated that she was “100% disabled and cannot perform duties.”
According to Renee Joy Inman-Turner, director of human resources for the Hospital, and Randall McKinney, then administrative director for Howard’s department of medicine,
2
Mr. McKinney learned that on June 27, 2003, Ms. Wilkins had ordered items from Paper Direct Company for delivery to her home and the items were “paid for, or invoiced to an account — that is a grant account out of the department of medicine.” The amount of the invoice was $168.83 but some of the items were re
Although the personnel action form was prepared in October 2003, it was not sent to Ms. Wilkins at that time. Ms. Wilkins received the Personnel Recommendation Form on February 13, 2004, but the termination letter was not attached. Despite her repeated efforts from February to May 2004 to obtain a copy of the termination letter from the department of medicine or from the human resources office, 5 and Howard’s promises that the letter would be sent to her, Ms. Wilkins never received a copy of the letter. Ms. Turner-Inman could not locate a copy of the termination letter.
In May 2004, Ms. Wilkins visited the University for the purpose of obtaining a copy of her termination letter. 6 Ms. Wilkins spoke by phone with Ms. Turner-Inman while she was at the University and asked why her phone calls had not been returned and why she was unable to obtain her termination recommendation letter. Ms. Wilkins claimed that Ms. Turner-In-man responded, “We don’t like being sued.” 7
Ms. Wilkins did not hear from Ms. Turner-Inman in June, July, or August. However, on September 20, 2004, Ms. Turner-Inman sent a letter to Ms. Wilkins
I have not engaged in any theft of grant funds or serious misconduct. I would appreciate a written explanation for your claim for termination for theft of grant funds, as referenced in the justification sheet attached to the personnel recommendation form, and serious misconduct, as referenced in the September [2]0th letter.
Please respond by Tuesday, October 5,2004....
On October 12, 2004, Ms. Turner-Inman sent Ms. Wilkins a letter which read:
Dear Ms. Wilkins, please be advised that I am in receipt of your letter dated September 27, 2004, received on October 8, 2004.
Your letter stated that I should respond to you by Friday, October 8, 2004. I telephoned you at the number indicated in your letter to inform you of such; however, I am not sure I was recorded. Sincerely, Renee Turner-Inman, director, office of human resources.
Ms. Wilkins never received the termination letter, or an investigative report, or any explanation for the allegations of theft. On November 3, 2004, Ms. Wilkins again wrote to Ms. Turner-Inman, repeated her September 2004 letter, and again asked for specific documents, as follows:
For example, an in-depth investigation; notification of charges, and/or allegations, in writing, or in person; detailed report from the Metropolitan Police Department and campus police; the total amount you allege was stolen from the grant, as well as the name of the grant and principal investigator; dates that the funds allegedly were stolen; copies of any cancelled checks, front and back, et cetera.
She asked that the documents be sent to her “no later than Friday, November 12, 2004.” Ms. Wilkins did not receive any response to her November 3, 2004 letter; nor did she receive any of the requested documents.
Ms. Wilkins eventually determined that “there was a discrepancy with regard to the vendor, Paper Direct.” Around the latter part of June 2003, Ms. Wilkins had contacted Paper Direct in her capacity as co-chair of her family reunion, scheduled for the July 4th weekend, and had placed an expedited order for “covers and tassels to be used for the reunion booklet.” She intended to use the tassels as bookmarks. She had opened a personal account at Paper Direct and these items were to be billed to her personal account. Ms. Wilkins used the covers but returned the tassels, and Paper Direct sent her an invoice showing a credit for the tassels. She paid no attention to the “sold to” box on the invoice that identified the purchaser, and she forwarded the invoice for her order to the cousin who was responsible for the bills associated with the reunion. Later, in December 2004, her “counselor” revealed “that there were two accounts [at Paper Direct] associated with [her] name.” She paid the account listed in her name in January 2005. 8
The jury verdict form for Ms. Wilkins’ retaliation claim consisted of four questions. First, “[d]o you find by a preponderance of the evidence that [Howard] retaliated against [Ms. Wilkins] in violation of the District of Columbia Human Rights Act by terminating her?” The jury checked the “Yes” box. The second question instructed the jury to “[s]tate the amount, if any, of compensatory damages that you award to [Ms. Wilkins].” The jury awarded “$1.00.” The third question asked: “Do you find by clear and convincing evidence that [Howard’s] actions in terminating Ms. Wilkins were undertaken recklessly, maliciously, wantonly, and/or in reckless disregard to Ms. Wilkins’ rights under the District of Columbia Human Rights Act?” Because the jury answered that question in the affirmative, the jury proceeded to the fourth question: “State the amount of punitive damages that you award to [Ms. Wilkins.]” The jury indicated “$42,677.50.”
Howard filed a post-trial renewed motion for judgment, and for a new trial, or in the alternative to alter or amend judgment (remittitur) contending, in part, that “[t]he jury could not reasonably conclude that Howard’s actions were malicious and motivated by ill will,” and that the size of the punitive damages award was constitutionally excessive. Judge Motley denied Howard’s motion. With respect to the retaliation claim the trial court concluded that the evidence Ms. Wilkins presented at trial was sufficient to support the jury’s verdict.
ANALYSIS
Howard’s Appeal: The Punitive Damages Issue
Howard argues that “the jury unconstitutionally imposed grossly excessive punitive damages upon Howard University,” and consequently, the court should have granted Howard’s request for remittitur. Ms. Wilkins contends that “Howard’s analysis is misguided and ignores important propositions of law; [and that] the jury’s award of punitive damages should be upheld.”
Whether punitive damages are “constitutionally excessive calls for the application of a constitutional standard to the facts of a particular case, and in this context
de novo
review ... is appropriate.”
Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual and potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.
Id.,
Here, in addressing Howard’s request for remittitur, the trial judge declared, in part:
[T]he jury was free to credit plaintiffs theory and evidence, that defendant attempted to force plaintiff out of her position based on her prior litigation.
This [cjourt also disagrees with defendant’s view that the punitive damages award is so excessive that it violates defendant’s due process rights. Although it is true that “few awards exceeding a single-digit ratio between punitive and compensatory damages ... will satisfy due process,” State Farm, 538 U.S. [at] 425 [123 S.Ct. 1513 ], there are circumstances in which high-ratio awards are appropriate. Specifically, “because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those [courts] have previously upheld may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages.” Id. In the instant case, the jury awarded plaintiff nominal economic damages. Additionally, it found the defendant’s behavior to be reprehensible.
After setting forth the three Gore guideposts, the trial judge concluded: “The jury determined that the defendant retaliated against plaintiff for filing a complaint against it, and sought to punish defendant for its actions. Under these facts and circumstances, this [court] will not disturb the jury’s punitive damages award.” Like the trial judge, we see no need to disturb the jury’s punitive damages award to Ms. Wilkins.
In
Modern Mgmt. Co.,
we reiterated the legal principle that “[p]unitive damages may be awarded only if it is shown by clear and convincing evidence that the tort committed by the defendant was aggravated by egregious conduct and a state of mind that justifies punitive damages.”
Howard complains that the trial judge did not “bother to go through an analysis of all three ‘guideposts’ and “should have considered the ‘guideposts’ collectively.” While the trial court’s order does not contain an explicit analysis of the second and third
Gore
guideposts, it identifies those factors and includes legal principles relating to them. Moreover, “[t]rial courts and appellate courts seem equally capable of analyzing the second factor [a]nd the third
Gore
criterion ... seems more suited to the expertise of appellate courts.”
Cooper Indus., Inc., supra,
With respect to the second Gore guidepost, “the disparity between the actual and potential harm suffered by the plaintiff and the punitive damages award,” Howard emphasizes the jury’s punitive to compensatory damages award ratio and mainly argues that “the ‘harm’ to [Ms. Wilkins] was minor” as “evidenced by the fact that the jury awarded her only $1 in compensatory damages.”
In
Modem Mgmt. Co., supra,
we recognized that, under
Gore,
“a punitive damages award should bear some reasonable relationship to the corresponding award of compensatory damages, but such a relationship is only one factor in an excessiveness analysis.”
Id.
at 58 (citation and internal quotation marks omitted). Although the Supreme Court has stated that “few awards exceeding a single-digit ratio between punitive and compensatory damages ... will satisfy due process,”
State Farm,
In this case, the small compensatory damages award, combined with the District’s strong interest in deterring DCHRA violations,
10
justifies a ratio higher than
As for the third
Gore
guidepost, we examine “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases,”
State Farm,
In
Breiner,
we initially considered the cap of $300,000 in Title VII of the Civil Rights Act pertaining to employment discrimination cases “when the employer has more than 500 employees.”
Id.
at 102 (citing 42 U.S.C. § 1981a (b)(3)(D) (1994)). Despite the Title VII cap, we affirmed the $390,000 punitive damages award even though it exceeded the cap by roughly $100,000. We explained that “because of the need to deter future misconduct of the sort presented on [the] record [in that case], we think the additional $100,000 is not so excessive as to render the jury’s award unconstitutional, especially when there is no ceiling on the damages available under the 1866 and 1870 Civil Rights Acts on which the DCHRA is also based.”
Id.
In
McCrae,
we focused on the obvious gross disparity between the jury’s compensatory award of $187,500 and its punitive damages award of $4,812,500, and determined that, unlike
Breiner, McCrae
fell squarely under the rationale articulated in
State Farm
where “the Court found that the most relevant civil sanction under Utah state law for the wrong done to [the
We believe that our approach in
Breiner
is more appropriate for this case. Unlike
State Farm
and
McCrae
where the trial court awarded compensatory damages in the amount of $1 million and $187,500 respectively, or even
Bremer
where plaintiff received $10,000 in compensatory damages, the jury awarded Ms. Wilkins only $1 in compensatory damages. Hence, as we saw with the second
Gore
guidepost, a greater ratio “may comport with due process.”
Saunders, supra,
Ms. Wilkins’ Appeal: The Defamation and Reinstatement Issues
Ms. Wilkins assigns two errors to the trial court with respect to her defamation claim. First, she argues: “[T]o the extent that the trial court ‘held’ that Ms. Wilkins failed to “prove” that Howard made a defamatory statement about her, it erred as a matter of law.” Second, she contests the trial court’s conclusion that Howard enjoyed a qualified privilege with respect to its statement about the theft of grant funds. Because we agree with the trial court’s ruling on qualified privilege, summary judgment in favor of Howard was proper.
A trial court’s grant of a motion for summary judgement is reviewed
de novo. Clampitt v. American Univ.,
To assert a defamation claim, Ms. Wilkins had to allege the following elements:
(1) That the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.
Blodgett v. The University Club,
To prove her defamation claim, Ms. Wilkins was required to show that Howard published the statement about theft of grant funds without privilege to a third party.
Blodgett, supra,
Ms. Wilkins’ complaint alleges that Howard “published the defamatory material well beyond those individuals necessary to implement its decision (a total of ten people were involved in calling Ms. Wilkins a thief and implementing her removal).” Yet, neither the allegations in Ms. Wilkins’ complaint, nor her opposition to Howard’s summary judgment motion indicates that anyone outside of Howard or outside of the personnel authorized to investigate the alleged theft were privy to the statement. Even assuming more individuals than were necessary viewed the statement, Ms. Wilkins does not allege that such individuals had “no useful business purpose” for doing so.
See Thomas v. Howard,
Moreover, we see no evidence of excessive publication in Ms. Wilkins’ opposition to Howard’s summary judgment motion. The crux of Ms. Wilkins’ bad faith publication argument is that Howard failed to contact her to ascertain why she allegedly charged her personal products to a Howard account. By itself, the failure to contact Ms. Wilkins is insufficient to demonstrate express malice on Howard’s part since Howard reasonably could have expected Ms. Wilkins to deny the theft of grant funds. Moreover, as we said in Moss:
if a plaintiff, to satisfy the burden of proving a prima facie case, may rely on showing a failure to make a reasonable investigation as to the truth before publication of the statement, logically he should not be able to rely on the sameproof — and no more — to defeat a qualified privilege defense.
We turn now to Ms. Wilkins’ reinstatement claim. She contends that: “The trial court wrongly accepted Howard’s representation that Ms. Wilkins was deemed to have been separated from [Howard’s] employment at the time she accepted long-term disability status.” She maintains that Howard is estopped from taking a different position after trial, and hence, Howard improperly reversed its pre-trial position — that it did not retaliate against Ms. Wilkins — and asserted post-trial that “ill will still lingers between Howard and Ms. Wilkins.”
While reinstatement is a preferred remedy, it “is not the exclusive remedy, because it is not always feasible, such as when there exists irreparable animosity between the parties.”
Feldman v. Philadelphia Hous. Auth.,
On this record, we are satisfied that the trial court did not abuse its discretion in determining that reinstatement was inappropriate in this case because (1) Ms. Wilkins was on long-term disability at the time Howard retaliated against her, and (2) fingering animosity between Ms. Wilkins and Howard militated against ordering reinstatement. As the trial court determined, Ms. Wilkins’ long-term disability status militated against reinstatement. Reinstatement may be inappropriate where the employer can no longer guarantee the employee her previous position or where the position no longer exists.
Palasota, supra,
Nor do we see any reason to disturb the trial court’s determination that the antagonism between Ms. Wilkins and Howard was “of such magnitude so that it would be impossible to have a reconciliation.”
Fitzgerald v. Sirloin Stockade, Inc.,
Accordingly, for the foregoing reasons, we affirm the judgments of the trial court.
So ordered.
Notes
. As a result of a routine transfer of caseload. Judge Motley took over this case around December 2006.
. Mr. McKinney left Howard on October 30, 2003.
. Ms. Turner-Inman acknowledged that Howard never paid Paper Direct any money on the invoice, and never informed the campus police or the Metropolitan Police Department about the alleged theft. Nor did Howard attempt to collect any money from Ms. Wilkins to cover the amount of the invoice.
. Howard's employee handbook specified that where charges "of serious neglect of duty or conduct incompatible with the welfare of the [u]niversity” are made against an employee, they "must be substantiated by the supervisor.” The handbook states that: "Failure of the employee to refute successfully such charges constitutes grounds for dismissal.” Ms. Wilkins’ counsel asked her at trial: "Were you offered any opportunity to refute ... these charges?” She replied: “No, I wasn’t.”
. Ms. Wilkins "logged in” thirty-four calls that she made, but did not record some of the other calls she made.
. Ms. Wilkins introduced a human resources intake form, dated May 25, 2004, at trial. She had written, in part:
I have tried on numerous occasions to obtain a copy of my termination letter from your office. I have left messages with virtually everyone of your staff members, and I still cannot obtain a copy of the letter. I also offered to pick the letter up from the desk, and it is still unavailable. I’ve been trying since February 15, 2004.
She left the original intake form at the human resources office, gave a copy to one of the doctors at the department of medicine, and left a copy with an assistant to one of the key persons in the human resources office.
.Ms. Tumer-Inman denied making the statement. There is no record of Ms. Turner-Inman having made the statement, and no one other than Ms. Wilkins claims to have overheard the statement. The statement also did not appear in Ms. Wilkins' initial complaint, her amended complaint, or in her initial responses to Howard University's interrogatories. Ms. Wilkins’ first mention of the statement was in her supplemental responses to Howard's interrogatories, which were filed with the court eleven days before the start of the trial.
. Howard's counsel cross-examined Ms. Wilkins extensively about the Paper Direct invoice, pointing out that the original invoice and the invoice reflecting the credit for the
.
See also Abner v. Kansas City S.R.R. Co.,
.
See Howard Univ. v. Best,
. We also note that, contrary to Howard's assertion, Ms. Wilkins suffered more than just economic harm. She also suffered emotional harm at a time when she was physically and emotionally vulnerable, a matter that can be considered even though the jury awarding her only $1 in compensatory damages.
See Modern Mgmt. Co.,
. Contrary to Ms. Wilkins' assertion, Howard did not waive die affirmative defense of qualified privilege by failing to raise it in its answer. Super. Ct. Civ. R. 8(C) states that “[i]n responding to a pleading, a party shall set forth affirmative defenses, including ... res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.” Howard stated in its motion for summary judgment that "undisputed evidence demonstrates that the Hospital did not disclose Ms. Wilkins' personnel recommendation to a tiiird party,” and "[a]t most, only the parties who provided the requisite signatures for Ms. Wilkins' personnel recommendation form and other authorized administrative staff were privy to the contents of Ms. Wilkins’ personnel recommendation form.” This statement was sufficient to raise the affirmative defense of privilege under Super. Ct. Civ. R. 8(C).
See, e.g., Whitener
v.
Washington Metro. Transit Auth.,
Furthermore, Ms. Wilkins did not satisfy her burden with respect to the second element of a defamation claim. We see no extrinsic evidence in or attached to Ms. Wilkins’ opposition to Howard’s motion for summary judgment that would establish express or actual malice on Howard's part, or that Howard’s statement was "so excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable conclusion than that [Howard] was actuated by express malice.”
Moss, supra,
. Ms. Wilkins continued to receive 60% disability payments through August 2004, despite the fact that she testified at the relief hearing that by June 2004 her condition had improved and she was prepared to return to work.
. Following die jury's retaliation finding, Ms. Wilkins did not request back pay. The trial court noted that "[i]t is unusual for a plaintiff who was wrongfully terminated not to make a claim for back pay, yet to request equitable relief of reinstatement.”
. We reject Ms. Wilkins’ contention that Howard should be judicially estopped from asserting that reinstatement is inappropriate. Judicial estoppel applies "when a litigant switches positions from one proceeding to another,”
Ivey v. District of Columbia,
.The trial court noted that "although the jury decided that the retaliation against plaintiff for bringing a prior sexual harassment suit was a substantial factor in plaintiff's termination, the jury did not resolve the issue of whether or not plaintiff had attempted to steal grant funds.” The trial court did not issue a mixed motive jury instruction in this case. As a result, the jurors were not asked to decide whether Ms. Wilkins’ termination was due solely to retaliation and not her alleged misconduct.