*1 SORRELLS, Appellant, Bettie BROTHERS,
GARFINCKEL’S, BROOKS INC., RHOADS, Appellee.
MILLER & WILLIAMS, Appellant,
Barbara SORRELLS, Appellee.
Bettie 87-944,
Nos. 87-1029. Appeals.
District of Columbia Court
Argued June 1989. Sept.
Decided *2 alternative, In the Williams
рervisor. privileged and her conduct was claims that to al- there was insufficient evidence that priv- to determine whether low McMahon, Martin F. whom Steven with reject ilege by vitiated malice. We was Cynthia on J. Kramer and L. Clark were judgment and arguments affirm both brief, Sorrells, appellant in for Bettie against Williams. appellee No. 87-944 and in No. 87-1029. Garfinckel’s, D’Ana E. Johnson for I Brothers, Inc., Rhoads, Brooks Miller & hired Gar- Before Sorrells was 87-944, appellee in No. for Barbara finckel’s, & she for Woodward worked Williams, appellant in No. 87-1029. chain, Lothrop, department store another line of cosmet- selling Denney the Frances ROGERS, Judge, Before Chief April to work for ics. she went TERRY, Judges. MACK and Associate It is that Sorrells undisputed Garfinckel’s. TERRY, term, Judge: specific not hired for a Associate was employee. she was therefore an at-will Garfinckel’s, Brothers, Miller & Brooks hired, she was a counter from Once allotted Rhoads, Inc., operates depart- a chain of Denney line. to sell the Frances which Washington ment stores in the area known negotiating from with appeals as Garfinckel’s. These arise While for Garfinckel’s, against an action filed Bettie Sorrells Mrs. Sorrells made clear Garfinckel’s, employer, depended heavily her former Barbara the use of the she on Williams, regu- supervisor, Harry telephone stay her to in her former contact with Vandevort, customers, personnel generate in sales. president vice for lar order to Garfinckel’s, Accordingly, special telephone at fired at a line was who Sorrells urging. original complaint at use. Sor- Williams’ The installed Garfinckel’s for her alia, register against alleged, kept comprised Garfinckel’s inter rells of about “wrongful Summary judg- discharge.” past 1500 cards which contained customers’ granted on in favor of needs. re- ment was this claim names and cosmetic She appellant heavily Thus maintain telephone Garfinckel’s. in No. 87-944 lied Sorrells contends that the trial court erred contact with her former customers Lothrop, ruling wrongful encouraging in as a & them to matter of law Woodward discharge buy is not in the District from her now at While actionable Garfinckel’s. by long-established duty, Mrs. from her of Columbia. Bound off Sorrells made calls ruling. keep her of her precedent, we affirm that home to clientele advised urge position at and to them Garfinckel’s also em- Sorrells sued two Garfinckel’s shop She also home her stock there. Williams, inten- ployees, Vandevort and for book, Denney products which showed what em- tional interference her contract of Garfinckel’s, in in stock at and what The trial ployment with Garfinckel’s. book, Using the amounts. stock granted a for Vande- court directed verdict product was know how much of a would plaintiffs close of case but vort at the available, any, and so would be able go to against the claim Williams to allowed telephone make sales from home. jury, in Sor- which returned verdict in that sometime rells’ favor.1 Williams raises two issues Mrs. Sorrells testified First, con- at Barbara appeal, No. 87-1029. she the fall of the direction of her Williams, to a cannot be her sales counter was moved tends that as matter of law she which, view, less purposes third Sorrells’ was party considered a for location was re- At the same time Sorrells intentional interference with contractual desirable. Williams, supervisor, her Mrs. Sorrells’ su- forbidden lations because granted trial a directed ver- verdict distress. The court 1. Sorrells does not contest the directed count, granted sued dict Williams on this which Sorrells Sorrells also for Vandevort. challenge appeal. infliction of emotional does intentional office, forbidding work, kept a restriction it thereafter use the at in- further it home. This largely destroyed ability gen- to take which compensate, sales because erate sales. In an effort to hibited Mrs. Sorrells’ *3 way knowing what attempted to make all her no Mrs. Sorrells home she had home, for tes- in and available products calls from after work.2 Sorrells were stock similarly salespersons tified that all the other were not sale. Other fact, telephones restricted; them, use of allowed the unrestricted in some of during period. In spring this December of 1978 of 1979 In the stock books home. repeated Mrs. Williams her direction no she could told Sorrells that Williams that the tele- Denney Mrs. Sorrells use longer transfers of Frances make office, phonе, except in Williams’ and at stores other Garfinekel’s products from busy. prohibi- times which were not This got the main down- supplies when low at telephone tion on the use of the continued Mrs. Sor- where she worked. town store though for five to six months even eight without spent seven or months rells phone Sorrells offered to have a installed book, and two or three months her stock expense. Ultimately, at her Mr. own being without able to transfer merchandise Yandevort, personnel manager, decided that stores. Sorrells also said between justification prohibi- there was no for the frequently promotional removed Williams telephone tion on Sorrells’ use of the counter, up items which she had set telephone privileges. reinstated her inhibiting At the same further sales.4 Williams denied to that she had Yandevort time, totally set unrealistic sales Williams phone. restricted Sorrells’ use of the goals April 1979 threatened for her and against to take “action” her on June Additionally, Sorrells testified personal Williams also criticized her for her stealing Williams once accused her of appearance. customer, associate’s which Mrs. Sorrells denied. Later Williams told her that she that Williams incorrect- Sorrells testified would never be afforded more counter ar- ly logged in the times when Sorrells space at Garfinckel’s. Mrs. also Sorrells departed from work. Sorrells rived at and provided said that initially she was with a reported this to Mr. Vandevort and threat- sit, stool on which to she had been go ened to to the National Labor Relations told her doctor to have such a stool prohibited Board. Mrs. Williams then her problem available because of a medical af- taking Saturdays off as a direct re- fecting leg. previ- Mrs. Sorrells had complaining Mr. Vandevort sult of her ously given personnel manager at that about the time sheets. Sorrells also testi- time, Peel, copy Karen of a letter from disparaged the Frances fied that Williams prescribing her doctor April a stool. In customers, Denney line in front of 1979, however, away her stool was taken perform- unfairly gave poor her a Williams direction, days for five at Williams’ July and that she ance review in discomfort, pain hеr considerable even despite for a raise not recommended though Williams knew she needed the $37,000 in had netted over fact that she complained, stool.3 When Sorrells wrote a letter sales. Mrs. Sorrells Williams said she did not want Mrs. Sor- honest, fair, requesting “an un- Vandevort sitting job rells down on the and told her to work, opinion” of her in lieu of biased operation if her feet hurt. have an performance review. Vandevort Williams’ testified, Sorrells, January did not act on her met with away request. Williams took her stock book husband, Sorrells, that the re-
2.Mrs. Sorrells’ Dоn testified 3. A co-worker testified stool was doing Mrs. Williams’ assistant on one of that she "became obsessed with work at moved days during period. spend Mrs. Sorrells’ off. home” She would night calling dis- four hours customers and cussing products testimony them the she had avail- 4. This was corroborated a co- worker, able. Veronica Neal. stock between stores would falsely When Williams accused transfers of adversely sales.5 purchasing front of Mr. Vandevort of affect her home, merchandise for resale from Vande- many testimony varied Mrs. Williams’ stop nit-picking vоrt told Williams “to [Mrs. of Mrs. creat- respects from that get and to off back.” When Sorrells] [her] credibility for the ing issues of fact and Sorrells later accused Williams of harass- intimated that she had been jury. Williams ing quit, her in an effort to force her to obtaining responsible initially partially “No, replied, just wait until June Contrary use. for Sorrells’ 1st, my I’ll take action.” Sorrells also com- got along that Mrs. Sorrells other evidence plained to Vandevort that Williams had ac- *4 testi- employees, with fellow well cused her trying to return merchandise complaints fied that she received that had purchased, buying she had not merchandise monopolized phone, and she resale, treating for one occasion use denied that she ever restricted Sorrells’ trying shoplift she were merchan- phone. that she of the Williams also said dise from the store. deprive her stock did not Mrs. Sorrells of 12, 1980, May On Mr. Vandevort called except during book Sorrells’ vacations her, Mrs. Sorrells to his office and told inventory periods, and that she restricted you you “We don’t want here. I want making only Sorrells from stock transfers resign.” resign, When she refusеd to he giving acknowledged once. Williams Sor- presence fifed her in the of Mrs. Williams “fair, rating performance rells an overall employee. gave and another The reason he improvement.” did not recall needs She her, firing for according to Sorrells’ testi- removing any promotional items from Mrs. mony, was that she take had failed to lunch counter, stating task Sorrells’ that such a perform hours and failed to her duties to fall to one of her assistants. She would the satisfaction of Garfinckel’s Frances admitted that she authorized her assistаnt later, Denney. About five minutes as she stool, to remove Mrs. Sorrells’ but she said cleaning locker, was out her Mrs. Sorrells of Mrs. medical she did not know Sorrells’ say, finally overheard “I ac- Mrs. Williams taken need for the stool until after it was complished Iwhat set out to do.” away. Williams also admitted that she rec- times” ommended to Vandevort “several Dougherty, Jane a former co-worker of that he fire Mrs. and that she testi- corroborated Sorrells’ complaining for to Vande- rebuked Sorrells mony that she and other explain vort. She could how Sorrells’ not permitted phone generate to use the might failure to take a lunch hour cause Dougherty sales. and other co-workers any problem at work. home, they said stock books although frequently not as as Mrs. Sor- II importance rells. She also testified to the appeal of interstore stock transfers and the use of At issue in Mrs. Sorrells’ promotional granting materials at Garfinckel’s sales whether the trial court erred in summary judgment counters. on her for Garfinckel’s wrongful discharge Controlling claim. co-worker, Boitel, Ani Another former precеdent compels us to affirm that deci contact stated with clients sion. necessary was a and effective means of generating sales. Boitel testified that it Because Mrs. Sorrells was an at-will em $3,000 ployee, to make terminated at will would be reasonable she “could be $4,000 per any month in sales on a small line reason or no reason [her] Denney’s, Manage Frances but that re- at all.” v. Investors such as Wemhoff (D.C. phone stricting salesperson’s Corp., access to a ment 528 A.2d 1208 n. 3 1987), ability citing Taylor Greenway book or to make Restau- оr a stock raise, Mrs. Sorrells testified that Mrs. Williams told more than double what she sold in that she would have sell and more which Boitel her on one occasion $100,000 than double the amount thought worth of merchandise to receive a reasonable.
289
perceived
and to fill a
(D.C.1961);
Rights Act
rant,
Inc.,
man
trine,
poli-
“statutorily
public
declared
no
cross-appeal
in her
Williams contends
wrongful
cy” supports Sоrrells’ claim of
law,
that,
be
a
she cannot
as matter
(Fer-
discharge in this case.
id. at 833
See
an interference
to Mrs. Sorrells on
liable
J.,
ren,
only policies that
dissenting). The
an
she was
with contract claim because
(1)
urges upon
are
that she
us
employer and be-
agent of Mrs. Sorrells’
corporate employ-
should be able to sue her
supervisor.
was Sorrells’
cause
she
deepest pockets
er
it has the
and is
because
agent
that as an
of Gar-
Williams contends
(2)
pay
damages,”
“better able
party to the
not a third
finckel’s she was
placed
society
a
there is a burden
when
relationship between Sorrells
contractual
income,
discharged employee is without
Garfinckel’s,
tor-
that she could not
and
so
(3)
potential
attorney
a
and
there is
relationship.
tiously interfere with that
when, as in this
conflicts of interest
employer’s attorney
represents a
also
recover in tort for intentional
To
supervisory employee. These concerns
relations, the
contractual
interference with
plainly
“statutorily
not
to a
do
amount
“(1)
elemеnts:
prove
must
four
plaintiff
policy.”
public
declared
contract, (2)
knowledge
of a
existence
contract, (3)
procurement of
intentional
as a
The one statute cited
(4)
defendant, and
dam
by the
its breach
against
possible basis for her claim
Gar-
resulting from the breach.”
ages
Human
finckel’s is the District of Columbia
Alfred
Chatelain,
Altimont,
Samper
Inc. v.
Act,
A.
seq.
Rights
D.C.Code
1-2511 et
§
284,
Nolan, 374 A.2d
288
ton &
(1987
rely
Supp.).
& 1989
But she does not
omitted).
prima
(citation
facie
“Once
specific provision
the Human
any
established,” it becomes the
Act; rather,
has
asks this court to сase
been
Rights
prove “that his
policies expressed in the Hu- defendant’s burden
[or
“broaden”
contrary
(1988) (noting
Legal
that Newman
Services
267
6. Sorrells' reliance on Newman
(D.D.C.1985),
F.Supp.
Corp.,
precedent).
and Wem
of-
628
535
of Columbia
District
Wemhoff
hoff,
entirely misplaced.
supra,
Newman
position
is
support
because
no
for Sorrells’
fers
court,
given
opportuni
that this
an
concluded
ty,
policy
recognize
"public
ex-
did not
Wemhoff
recognize
wrongful
dis
would
the tort of
doctrine,
ception”
the at-will
538-539,
charge,
F.Supp.
this conclu
at
628
exception
only support
for such
because the
support, relying as it does
sion is bereft of
exclusively
Ivy.
See
is the dissent
advanced in Wemhoff
Ivy.
See Hall v.
on the dissent in
Wemhoff, supra,
& n. 3.
1208
255,
301, 313,
Ford,
App.D.C.
F.2d
272 U.S.
856
parties.
(g)the relations between
legally justified
privi
or
conduct was
her]
Id.,
leged.”
citing Deoudes v. G.B. Macke
that because she
Williams contends
(D.C.1959),
Corp., 153 A.2d
supervisor and Garfinckel’s
was Sorrells’
Co.,
Meyer Washington
App.
Times
a third
considered
agent, she cannot be
denied,
D.C.
F.2d
295 U.S.
cert
claim.
purposes of Sorrells’
party for the
(1935). In
55 S.Ct.
pital, 147 Ariz. 370, 386-389, 710 P.2d supervisory employee right that a has (1985) (improper 1041-1044 interfer employee’s to interfere with a subordinate ence with super contractual relations employment only proper contract of supports visor an action for inter tortious purposes, right and that is vitiated contract); City Trimble v. ference & malice, *7 supervisor the acts with Williams Denver, 716, County (Colo. 697 P.2d 726 of grant contends that the court should have 1985) (“even agent can liable for be for a directed verdict be ed her motion improper principal’s interference with the cause there was insufficient evidence that contractual relations.... If the actor is maliciously permit to she acted case solely by motivated a desire to harm one of go jury. agree. In to the We do not contracting parties or to interfere reviewing ruling, trial either on court’s the contractual relations between those a motion for directed verdict or on a motion parties, certainly the interference is im verdict, notwithstanding the judgment (citations omitted)). proper.” The rule has light we must consider the evidence in the applied corporate been even to officers and non-moving party most favorable to the —in Phillips v. Montana Edu directors. instance, A plaintiff this Sorrells. trial Ass’n, 425, cation 419, 187 Mont. 610 P.2d may jury only those court take from a 154, (1980) (“Where 158 an officer or di permits the evidence but issues which rector acts ... with the intent to harm the conclusion, juror one so no reasonable (citations plaintiff, personally he is liable” non-moving party. E.g., could find for the omitted)). purpose It immun Williams, serves no 912, v. Crooks 508 A.2d 914 supervisory employees ize for their tortious (D.C.1986); Oxendine v. Merrell Dow Pharmaceuticals, Inc., they parties 1100, conduct are neither when (D.C.1986); the contraсt between other District Colum 1103-1104 of employer, empowered by (D.C.1982) nor Cooper, bia v. their common A.2d 655 445 Coleman, Corp. (en banc); v. ego to act alter with 441 Ceco as its (D.C.1982). authority abrogate contractual relation 944 the case A.2d bar, evidence that Williams acted ships. while the 292 also enti- telephone. jury The was ing the overwhelming, hold malice was not we ordered Williams tled to decide whether jury. go to the that it was sufficient to spite, out of to be removed stool Sorrells’ malice ‘need not be “Proof of fraud or pain, physical her intent to cause with the may appear all the but direct evidence ordered improperly ” Williams and whether of the case.’ facts and circumstances mate- promotional the removal of Sorrells’ Industries, Johnson, Bay Inc. v. General re- never the counter. Williams rials from (D.C.1980) (citations A.2d had testimony that Williams futed Sorrells’ omitted). qualified “In the context of taking further Satur- her from prohibited ‘in sub- privilege, the definitions of malice going over her in retaliation for days off equivalent to the of bad stance come down undis- complaints. It was also head with ” Ross, A.2d Ingber faith.’ urged Mr. Vandevort puted that Williams omitted). (D.C.1984) (citation 1264 n. 9 tellingly, Most to fire her. several times Further, privi- the issue of whether a while finally “I saying, denied never law, of lege generally question exists do,” nor did I set out to accomplished what it the defendant is “whether was abused statement, made which she explain this she jury.” question of fact for the Mosrie immediately after Sorrells was almost (cita- Trussell, fired. tions a defen- jurors cannot look into Because Following principles, these and consider- mind, they examine all dant’s must light most favorable ing the evidence pat- trying to discern a objective facts in we hold that it was suffi- malice. That is of acts which establish tern question go jury to the on the cient to credibility Resolving all jury function. testified that malice.7 Sorrells and others in Mrs. Sorrells’ fa- issues and inferences dependent sales to do she was find, vor, on the jury that the could we hold made job effectively, her that this fact was evidence, ma- that Williams of all the basis Garfinckel’s, management clear to the gen- ability to liciously destroyed Sorrells’ inexplicably that Williams interfered with eratе sales and otherwise doing to the
telephone away and denied so object with the performance, testified, personnel manager. Sorrells also fired Mr. Vandevort. her to be corroborated, ridi- and others that Williams therefore, judg- appeals, As to both sought products culed her and the court is ment of the trial There was con- sell in front of customers. enti- flicting testimony, which the Affirmed. favor, that tled to resolve in Mrs. Sorrells’ MACK, Judge, concurring: Associate her—and no other em- Williams restricted home, fully opinion, I book I concur ployеe taking the stock While —from *8 favoring reconsid- go transfers, from us- want to on record making stock 7. the court told ilege The privileged be for the shall duct preponderance of the gaged toward [I]n spite, hostility, the defendant absence of even of whether she was dant and is Malice and malice these plaintiff. now [******] qualifiedly privileged involves a state of mind that conduct circumstances, subject explain malice is not a matter of defendant unless best described plaintiff. very was a In this or a deliberate intent jury: carefully this case. In —and to the condition which I competent evidence, your the defendant’s con- by personal ill instructed reason entirely —that you verdict should supervisor, relevant that she of the defen- presence find, of malice fair one. to harm whether is, by a priv- part, it is will, en- or or grounds, Rather, belief, other fendant desired personal the evidence faith in that she was motivated should be for the in bad of Garfinckel’s business conduct dant knew that the further then the defendant’s conduct sequence ate intent hand, faith. any it comes down to whether was not that her conduct was ill of defendant’s to harm the good will, business was a that the defendant acted If the defendant acted you defendant, even if the defen- spite, malicious, faith find substantially termination of bring interest of by preponderance hostility, plaintiff, and not to and on reasonable conduct and interests, it about. On was malicious. in furtherance primarily or a your Garfinckel's, certain con- she acted plaintiff’s then with the deliber- the de- verdict in bad court, eration, of the doc by the en banc employee “could be at-will
trine that an by his
terminated at will her] [or or no reason at all.” any reason Corp., Management Investors Wemhoffv. (D.C.1987), citing n. 3 Restaurant, Inc., Greenway v.
Taylor Ivy Army (D.C.1961); see also
A.2d Co., (D.C. Publishing
Times
1981) (en banc) (Ferren, J., dissenting).
MYCO, INC., Appellant, CO., INC., et CONCRETE
SUPER
al., Appellees.
No. 88-1133. Appeals.
District of Columbia Court of
Argued June 1989.
Decided Oct.