Virginia Lawyers Weekly VA Lawyers Weekly
After reports of sexual misconduct appeared in the Washington Post, a private school sued its former executive director for allegedly sharing sensitive documents with the paper, and she counterclaimed based on the circumstances of her resignation. No reasonable jury could find for either party.
Background
Plaintiff Daniel Morgan Graduate School of National Security is a private, non-profit educational institution in Washington, D.C. that offers post-graduate programs for individuals interested in national security and intelligence careers. The School was co-founded by Mark Levin, who officially served as an unpaid advisor to the School’s president. Defendant Linda Millis began working for the School on or about May 31, 2016 and became its executive director in July 2016, reporting directly to the School’s president.
On August 29, 2016, Millis reported to the School Board that Levin had engaged in inappropriate sexual conduct with students at his private residence. The School suspended Levin and had an attorney conduct an independent investigation. The attorney submitted her final investigative report, subject to attorney-client privilege, consisting of an Executive Summary of her findings and recommendations, as well as a Confidential Appendix containing student names and other identifying information redacted in the Executive Summary. Based on the report, the School permanently severed its relationship with Levin in October 2016.
On November 1, 2016, the Board decided that it would not disclose confidential information in the report and would neither encourage nor discourage any person who may have been harmed by Levin from pursuing independent action against him. Millis later expressed disagreement with these decisions.
John Doe, a former School employee, contacted police on November 3, 2016 regarding alleged sexual abuse by Levin. Doe then met with a police detective, and Millis accompanied him for emotional support. Millis asserts that she didn’t give the detective any documents or substantive information during this meeting. At the detective’s request, Doe provided a copy of the Executive Summary, which the School’s vice president also provided when he later met with the detective.
In March 2017, School employees advised of their intent to sue the School based on Levin’s conduct. Millis disagreed with the School’s response to the threatened litigation, and she resigned from her executive director position. Her letter stated:
“[The School’s] Board has refused to accept responsibility for the mental and sexual abuse of more than 20 students and employees of the School by the former Senior Advisor to the President. Instead of aggressively going after the perpetrator of these actions, the Board has decided to vilify and blame the victims. In my view, there has been an effort by some other senior leadership to cover up the severity of these actions. I can no longer serve this organization in good faith.”
Millis’s letter was filed as a public exhibit in subsequent litigation against the School, filed in D.C. Superior Court. In addition, in April and May 2017, the Washington Post published three articles about the lawsuit, including reporting on Millis’s resignation and its basis, as well as the contents of the Executive Summary.
The School filed suit against Millis asserting claims of breach of contract, breach of fiduciary duty, and defamation. In answer, Millis asserted counterclaims of constructive discharge, unlawful retaliation, abuse of process, and intentional infliction of emotional distress. Both parties have moved for summary judgment.
Defamation
Millis is entitled to summary judgment on the School’s defamation claim. The record shows that Millis only provided her resignation letter to employees and agents of the School; there’s no evidence that she provided it to the Washington Post, and she denied doing so in an affidavit. None of the three published articles discuss the resignation letter, quote from it, or attribute to Millis any statement describing a “cover up.”
Although the School argues that Millis published the letter by providing it to subordinates who filed the lawsuit, where it was attached as an exhibit, the only subordinate who received the letter was John Doe, who testified that he shared the letter only with his attorneys. The School has produced no contrary evidence, and under D.C. law, statements made in the course of a judicial proceeding are protected by absolute privilege. Accordingly, the School cannot prove the publication prong of its defamation claim.
Fiduciary duty
The School asserts that Millis breached her fiduciary duty by improperly disclosing confidential and/or privileged information to the Washington Post and to litigants adverse to the School, by subverting the School Board’s decision regarding prosecuting Levin, and by encouraging subordinates to sue the School while she was still its executive director. These claims also fail as a matter of law.
The School has produced no evidence that Millis provided confidential or privileged information to the newspaper. Also, the School waived its attorney-client privilege as to the Executive Summary when its vice president provided the report to the police detective – before the articles were published.
The School has also provided no witnesses or other evidence to corroborate its allegation that Millis encouraged Doe to make a criminal complaint against Levin. Doe testified under oath that he made the decision without Millis’s involvement, and she provided only moral support at the meeting with police.
The claim that Millis encouraged the suit against the School is likewise unsupported. None of the three witnesses the School has identified had any actual knowledge on the issue.
Even if the School had produced supporting evidence for its allegations, it has not shown that Millis’s alleged breach of fiduciary duty caused compensable harm. As a non-profit, the School has never generated income and instead relies on financial grants. And in deposition, the School’s witness was unable to identify any loss of financial grants resulting from Millis’s conduct or any documents illustrating financial loss. The School has also been unable to identify students allegedly disaffected by Millis’s conduct. It identified one lost affiliation – the Aspen Institute – but produced no evidence to support the claim that Millis’s actions caused this loss, rather than the Levin matter generally.
Breach of contract
The School’s breach-of-contract claim against Millis – based on alleged breach of the school’s bylaws – also fails because Millis wasn’t contractually bound by the bylaws. She had two fully integrated employment agreements, neither of which bound her to the bylaws.
Moreover, the asserted breaches arise from the allegations that Millis disclosed the Executive Summary to the Washington Post, encouraged students to sue the School, and defamed the School – allegations that, as explained above, are not supported by any evidence.
Constructive discharge
Millis’s constructive discharge claim fails because she voluntarily resigned her employment. Her testimony, admissions, and letter make clear that she chose to resign in protest of how others were treated and because of her disagreement with the School’s legal strategy.
Retaliation
Similarly, Millis cannot establish a prima facie case for retaliation. She hasn’t demonstrated that she was subjected to a materially adverse employment action. The incidents she cites in support – the School’s vice president raising his voice after she accompanied Doe to his meeting, removing subordinates from her supervision, and a smaller-than-expected pay raise – simply do not rise to the level of materially adverse.
Abuse of process
Miller’s abuse of process claim fails because she hasn’t demonstrated that the initiation of this lawsuit was an improper use of process. She claims that this suit was filed to retaliate against her and discourage her from acting as a witness in other ongoing suits against the School. But the 4th Circuit has held that the regular use of process cannot be abuse, even if actuated by a wrongful motive or purpose. Here, Millis alleges nothing improper about the filing of the suit beyond a wrongful motive, so this claim cannot stand.
IIED
Finally, Millis’s claim for intentional infliction of emotion distress also fails because she has not demonstrated that she suffered severe emotional distress or that the School engaged in outrageous conduct. To prove this claim, she must show conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.
But the only conduct Millis points to is the same set of grievances she asserted were materially adverse employment actions, as well as her contention that she was “expected to go along with blaming and countersuing Levin’s victims.” These allegations simply do not represent conduct utterly intolerable in a civilized community.
Further, Millis has not offered evidence of severe emotional distress. In fact, she admitted in deposition that she didn’t seek any counseling as a result of the School’s conduct, and she considered herself to be in good mental health from 2000 until the present.
Motions for summary judgment granted.
Daniel Morgan Grad. Sch. of Nat’l Sec. v. Millis, Case No. 1:17cv576, Apr. 23, 2018. EDVA at Alexandria (Hilton). VLW No. 018-3-155, 15 pp.
