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Daniel Morgan Graduate School of National Security v. Millis

United States District Court, E.D. Virginia, Alexandria Division

April 23, 2018

DANIEL MORGAN GRADUATE SCHOOL OF NATIONAL SECURITY, Plaintiff,
v.
LINDA MILLIS, Defendant.

          MEMORANDUM. OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment on Plaintiff's claims and Plaintiff's Motion for Summary Judgment on Defendant's counterclaims. Plaintiff Daniel Morgan Graduate School of National Security ("DMGS") is a private, non-profit educational institution in Washington, DC, that offers post-graduate programs for individuals interested in the national security and intelligence fields. One of the co-founders of DMGS was Mark Levin, who officially served as an unpaid advisor to the school's president. Defendant Linda Millis began working for DMGS on or about May 31, 2016, and was designated as the Executive Director of DMGS in July 2016. She reported directly to Ambassador Joseph DeTrani, the former President of DMGS.

         On August 29, 2016, Millis reported information to DMGS Board Chair Abby Moffat revealing that Levin had engaged in inappropriate sexual conduct with students at his private residence. DMGS suspended Levin from his role as Special Advisor and engaged attorney-investigator Elizabeth Gramigna to conduct an independent investigation. After completing her investigation, Gramigna submitted to DMGS her final attorney-client privileged investigative report, which consisted of two separate reports: the Executive Summary Report containing all of her findings and recommendations but with individual student names omitted to maintain privacy, and the Confidential Appendix containing individual student names and personal identifying information. The Executive Summary was provided to the Board, but the Confidential Appendix was not. Based on the report, DMGS permanently severed its relationship with Levin in October 2016.

         On November 1, 2016, the Board met with its counsel to conduct an attorney-client privileged meeting to consider the report and recommendations of Gramigna, and Millis attended. Ar the meeting, the Board decided it would not disclose the confidential information in Gramigna's report, and would neither encourage nor discourage any person that thought that he was harmed by Levin from pursuing independent action against Levin. Millis later expressed disagreement with these decisions.

         John Doe, a former employee of DMGS and one of the witnesses interviewed by Gramigna, contacted the Arlington County Police on November 3, 2016, regarding sexual abuse committed by Levin. Detective Brooks of the Arlington County Police Department met with John Doe on November 11, and Millis attended that meeting as well to provide Doe with emotional support. Millis asserts that she did not give Detective Brooks any documents or substantive information during that meeting. According to Millis, Doe provided Detective Brooks with a copy of the Executive Summary Report at Detective Brooks' request. On November 29, 2016, Detective Brooks met with then-President of DMGS Joseph DeTrani and Vice President Alan Kelly, and according to Detective Brooks' testimony, Kelly provided Detective Brooks another copy of the Executive Summary Report at that time.

         In or around March 2017, employees of DMGS advised DMGS of their intent to file a lawsuit against DMGS regarding Levin's conduct. Millis disagreed with DMGS's response to the threatened litigation, leading her to tender her resignation from her position as Executive Director of DMGS. In her resignation letter, Millis stated that

[t]he DMGS Board has refused to accept responsibility for the mental and sexual abuse of more than twenty 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. However, I am willing to work with the staff and faculty for a smooth transition.

         On April 4, 2017, a lawsuit was filed against DMGS and others in D.C. Superior Court by DMGS students and staff members John Doe, Richard Roe, and Paul Poe. DMGS alleges that Millis provided a copy of her resignation letter accusing DMGS of a cover-up to John Doe. The letter was publicly filed as an exhibit in the DC Court action against DMGS.

         On April 5, 2017, the Washington Post published an article about the DC lawsuit, reporting that Millis had resigned in protest of DMGS's handling of the Levin matter. Another article about Levin was published by the Washington Post on May 4, 2017, which included an excerpt from Gramigna's Executive Summary Report, and a third article was published by the Washington Post on May 19, 2017, about DMGS's countersuit against the plaintiffs in the DC lawsuit. Millis asserts that she never provided her resignation letter to anyone, nor did she provide the Executive Summary Report to the Washington Post.

         DMGS filed suit against Millis on May 19, 2017. After this Court dismissed the initial Complaint, DMGS filed an Amended Complaint on August 2, 2017, asserting claims of breach of contract, breach of fiduciary duty of loyalty, and defamation per se. Millis filed her Answer on September 11, 2017, asserting four counterclaims: constructive discharge, unlawful retaliation, abuse of process, and intentional infliction of emotional distress. DMGS filed a Motion for Summary Judgment on Millis's counterclaims on February 14, 2018, and Millis filed a Motion for Summary Judgment on DMGS's claims on February 27, 2018. Both motions were argued on March 9, 2018.

         Under Federal Rule of Civil Procedure 56, a court should grant summary judgment if the pleadings and evidence show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) . In reviewing a motion for summary judgment, the court views the facts in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made, the opposing party has the burden to show that a genuine dispute of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The Court finds there is no genuine dispute of material fact and this case is ripe for summary judgment.

         Millis is entitled to summary judgment on all of DMGS's claims. First, DMGS's defamation per se claim fails as a matter of law because DMGS has failed to present evidence to establish that Millis published a false and defamatory statement to a third party. In order to prove a claim of defamation under D.C. law, the plaintiff must show that the defendant published a false and defamatory statement without privilege to a third party. Farah v. Esquire Magazine, 736 F.3d 528, 533-34 (D.C. Cir. 2013). According to the record, however, Millis only provided her resignation letter to employees and agents of Plaintiff DMGS. There is no evidence that Millis provided her resignation letter to the Washington Post. Millis has denied doing so in an affidavit, and DMGS has produced no evidence that Millis did so. None of the three Washington Post articles discuss Millis's resignation letter, quote from it, or attribute to Millis any statement describing a "cover up."

         DMGS alleges that publication occurred when Millis provided her resignation letter to subordinates who filed suit against DGMS "so that the letter could in turn be published by her subordinates and also transmitted to the Washington Post." The only employee subordinate of Millis who received her resignation letter and filed suit against DMGS was John Doe, who testified at his deposition that he shared the resignation letter with no one beside his attorneys. DMGS has produced no evidence contradicting this. Millis's resignation letter was ultimately filed as an exhibit to a pleading in the D.C. lawsuit against DMGS. However, under D.C. law, statements made in the course of a judicial proceeding are protected by absolute privilege. Teltschik v. Williams & Jensen, PLLC, 748 F.3d 1285, 1287 (D.C. Cir. 2014). Thus, DMGS has failed to prove the publication prong of its defamation claim.

         The Complaint further alleges that Millis breached her fiduciary duty to DMGS by improperly disclosing confidential student information and attorney-client privileged information to the Washington Post and litigants adverse to DMGS, by subverting the DMGS Board's decision not to pursue Levin's prosecution with law enforcement, and by encouraging ...


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