Antoinette Burns v. Matthew Levy, et al

Filing

OPINION [1698892] filed (Pages: 14) for the Court by Judge Williams. [16-7103]

USCA Case #16-7103

Document #1698892

Filed: 10/13/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2017

Decided October 13, 2017

No. 16-7103
ANTOINETTE BURNS, D.O.,
APPELLANT
v.
MATTHEW D. LEVY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00898)
J. Michael Hannon argued the cause and filed the briefs
for appellant.
Joseph E. Schuler argued the cause and filed the briefs for
appellees.
Before: MILLETT, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

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WILLIAMS, Senior Circuit Judge: Memo to graduate
students: When multiple institutions are involved in a research
fellowship, be sure that every one on which you are relying is
literally on the same page of an agreement.
Lieutenant Colonel Antoinette Burns (Major Burns, at the
time) had a falling out with Dr. Matthew Levy and others who
were overseeing her postgraduate clinical research fellowship
at Georgetown University Medical Center (“the University”)
and MedStar Georgetown University Hospital (“the Hospital”).
Burns believed that she had patched things up and that all
parties had agreed to her voluntary withdrawal. When the
Hospital reported to Burns’s employer, the U.S. Air Force, that
she had been terminated for cause, she brought this diversity
action for breach of contract, defamation, and tortious
interference with a prospective economic advantage.
The district court granted summary judgment in the
defendants’ favor on all counts. On the contract counts, it ruled
that the University did not breach its agreements with Burns,
and that because the Hospital was not a party to any agreement
between Burns and the University, it was not bound to observe
the notice and other procedures afforded by Burns’s agreement
with the University. Burns v. Georgetown Univ. Med. Ctr.,
Civil No. 13-898, 2016 WL 4275585, at *8–12 (D.D.C. Aug.
12, 2016). On the defamation counts, the district court ruled
that the common interest privilege shielded Levy and the
Hospital from liability for their report to the Air Force of their
critical assessment and dismissal of Burns. Id. at *14–15. The
district court discarded Burns’s intentional interference claim
as too speculative. Id. at *16.
Because there is a genuine factual dispute as to whether
Levy and the Hospital gave Burns’s employer false
information, the district court incorrectly granted summary
judgment on the defamation claims. We therefore reverse and

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remand on those claims. We affirm the district court’s grant of
summary judgment on the other claims, for the reasons the
district court identified except as noted.
* * *
Four agreements form the basis of Burns’s suit. The Air
Force
and
the
University
signed
a
Medical
Residency/Fellowship Agreement on June 8 and 9, 2011 (the
“AF-University Agreement”), providing that Burns would
continue to be employed by the Air Force during her fellowship
and would draw no salary from the University, but that the
University would make arrangements to cover Burns’s medical
malpractice insurance. The agreement gave either party the
right to terminate on thirty days’ notice.
Burns and the University signed a Research Fellowship
Agreement in late August 2011 (the “Burns-University
Agreement”), an agreement that lies at the heart of Burns’s
case. It required Burns to meet research and educational
requirements for the University and render clinical services
through the Hospital. In return the University promised to
provide research training and a suitable environment for
educational research. The agreement allowed the University to
terminate Burns for cause, subject (unless she was intentionally
or grossly delinquent in her conduct) to notice and a right to
appeal under the University’s grievance procedure.
The University and the Hospital signed their own Letter of
Agreement on August 10 and 11, 2011 (the “UniversityHospital Agreement”). The agreement stated that as a fellow,
Burns would provide clinical services and instruction to
students through the Hospital. The Hospital in turn gained the
right to control Burns’s manner and method of performance,
subject to the understanding that Burns was an employee of the
Air Force, not of the Hospital or the University. The agreement

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gave either party the right to terminate on thirty days’ notice
and provided for instant termination if, in relevant part, the
relationship between Burns and the University terminated for
any reason.
Finally, Burns and the Hospital signed a Professional
Services Agreement on August 1, 2011 (the “Burns-Hospital
Agreement”). In consideration of the Hospital’s signing the
University-Hospital Agreement, Burns promised to provide
patient care as reasonably requested by the Hospital, to abide
by ethical and professional guidelines, and to keep her
paperwork current. Burns also agreed to abide by the
University-Hospital Agreement (to which she was not a
signatory). The agreement had nothing to say about possible
termination.
To sum up, the University and the Hospital had an
agreement with each other (and the University had one with the
Air Force), and Burns had separate agreements with each of the
two Georgetown institutions.
Burns began her fellowship in August 2011. By April
2012 her relationship with Levy, her supervisor at the Hospital,
had broken down. Burns claims that Hospital personnel
disrespected her and over-assigned her clinical duties,
thwarting the research-intensive purposes of the fellowship.
Hospital personnel lay the blame on Burns’s refusal to take
leadership initiative at the clinic and her occasional unexcused
absences. Whatever the causes of the discord, Levy and Jamie
Padmore, the vice president of academic affairs at the Hospital,
phoned Burns’s Air Force supervisor on April 2, 2012, to say
that Burns’s fellowship was being terminated. The summary
judgment record is unclear whether that conversation
referenced the University or the Hospital as the entity deciding
to terminate Burns. At a meeting with Burns on April 3, Levy
and David Nelson, chair of the University’s pediatrics

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department, handed Burns a letter, on University letterhead,
dismissing her from the fellowship for gross delinquency,
citing the Burns-University Agreement’s provision for
immediate termination in such a case. All three individuals
involved in these relations with Burns—Levy, Nelson, and
Padmore—had appointments at both the University and the
Hospital.
In early December 2012, however, Burns and Nelson
negotiated an agreement for Burns’s voluntary withdrawal
from the fellowship rather than involuntary termination. (One
aspect of the fellowship, namely, coursework towards earning
a master’s degree in public health at George Washington
University, continued independently of the Georgetown
relationship.) Burns sent Nelson a letter, backdated to April 3,
the date of the original termination meeting, requesting release
from the fellowship. In a letter dated December 11, 2012, on
University letterhead, Nelson “confirm[ed]” that on April 3
Burns had requested release from her fellowship agreement,
that her request was granted, and that therefore the BurnsUniversity Agreement terminated effective on the date of that
request—said by the letter to have occurred on April 3. Joint
Appendix (“J.A.”) 173.
On December 12, 2012, the Air Force requested a final
“summative assessment” of Burns’s performance, a routine
request following the end of an employee’s external fellowship.
Padmore wrote to the Air Force (on Hospital letterhead) that
Burns had been dismissed from the Hospital on April 3 and that
“[f]ollowing her dismissal from the Pediatrics Fellowship at the
Hospital, Dr. Burns voluntarily resigned from her Research
Fellowship Agreement with [the University].” J.A. 443.
In February 2013, Levy sent his final summative
assessment to the Air Force as requested. The assessment
reported that “Dr. Burns completed 8 months of the fellowship

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program and was subsequently dismissed for poor academic
performance on April 3, 2012.” J.A. 430. Levy’s assessment
then evaluated Burns’s performance according to six “core
competencies.” Along with the assessment, Levy sent a signed
Verification of Graduate Medical Education Training form.
Next to the question, “Was [Burns] ever subject to any
disciplinary action, such as admonition, reprimand, or
suspension, or termination?” Levy checked “yes.” J.A. 255.
This suit was filed soon after.
* * *
Burns’s theory is that she accepted one fellowship with
multiple parts, including academic research, coursework,
clinical education, and classroom instruction. She argues that
she resigned this one fellowship. Levy’s February 2013 report
that she was fired was thus a breach of contract, since
termination procedures were not followed, and defamation and
tortious interference, since Levy conveyed the false report of
termination to her employer. The view urged by the
defendants, and compatible with the district court’s opinion, is
that Burns had separate agreements with the University and the
Hospital, and although she resigned from the former, she was
fired by the latter. We agree that the contracts unambiguously
distinguish between the rights and duties of the University and
the Hospital and do not support Burns’s claims for breach of
contract. But there is a factual issue as to whether the Hospital
had the authority to dismiss Burns, and whether Hospital
personnel knew, when they made their reports to the Air Force
in December 2012 and February 2013, that they lacked that
power. If resolved in Burns’s favor, these factual issues would
support her claims to relief for defamation and preclude
summary judgment. We therefore remand those claims to the
district court for further proceedings.

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Breach of Contract. Burns’s single-fellowship theory is
plausible as a broad-brush colloquial description of her
activities at the University and Hospital. Her supervisors,
including Nelson and Levy, were both academic faculty at the
University and licensed clinicians at the Hospital, and as the
brief recitation above indicates, they were accustomed to using
one another’s letterhead interchangeably.
Indeed, the
interchangeable letterhead featured not only at Burns’s
termination, but also when the fellowship relationship was
offered. Her original offer letter came on Hospital letterhead,
with an effective date of July 1, 2011. When the program date
was changed to August 1, 2011, a new offer letter was sent on
University letterhead. The separation of the two institutions
was due not to a difference in academic mission, but only to the
Hospital’s distinctive financial characteristics, something of no
apparent relevance to Burns’s unpaid fellowship.
But this seamless appearance was not recorded in the
contracts, and the District of Columbia “adheres to an
‘objective’ law of contracts.” Dyer v. Bilaal, 983 A.2d 349,
354 (D.C. 2009) (citation omitted). “A court must honor the
intentions of the parties as reflected in the settled usage of the
terms they accepted in the contract . . . and will not torture
words to import ambiguity where the ordinary meaning leaves
no room for ambiguity.” Fort Lincoln Civic Assoc. v. Fort
Lincoln New Town Corp., 944 A.2d 1055, 1064 (D.C. 2008)
(internal quotation marks and citation omitted; alteration in
original). Burns makes several claims based on her singlefellowship contract theory. The unambiguous words of the
contracts at issue are fatal to all of her arguments.
First, Burns argues that, assuming she was a third-party
beneficiary to the Air Force Agreement with the University, she
was entitled to that agreement’s thirty-day notice provision
before termination.
But the AF-University Agreement
explicitly recognized that the Hospital was not a party to the

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agreement. The University promised the Air Force that it
would subsequently contract with the Hospital and incorporate
certain terms, including insurance and indemnification terms,
in that future contract. Those terms did not include anything
about the nature of the fellowship or the process of termination.
The Hospital could not, in reporting that Burns had been
dismissed with cause, breach an agreement that didn’t bind it.
As for the University, the district court correctly noted that the
University did not terminate Burns, who withdrew, and so
could not have breached the notice provision of either the
Burns-University Agreement or of the AF-University
Agreement (even if she was in any way a third-party
beneficiary thereof).
Next, Burns argues that all the agreements taken together
add up into a whole unified fellowship agreement between her
and what she calls the “Georgetown Partners.” Appellant’s Br.
4. She cites authority for the uncontroversial proposition that
“a valid contract can be spelled out of multiple papers, some
unsigned, if they are referred to in a signed document and thus
become incorporated by reference.” Superior Oil Co. v. Udall,
409 F.2d 1115, 1121 (D.C. Cir. 1969). The trouble for Burns
is that the Hospital’s agreements do not incorporate the
University’s duties by reference.
Most critically, the
University-Hospital Agreement, the only agreement which
could tether the Hospital to Burns’s claims, contains not just
one but two integration clauses (§§ 5.4, 5.13), as well as a
clause disaffirming any third-party reliance (§ 5.11). J.A. 168–
69. Burns was not a party to this agreement, and the Hospital
did not agree to follow the University’s procedures for
termination. By reporting that Burns was dismissed for cause,
the Hospital was not violating any agreement with Burns, and
its agreement with the University does not give Burns thirdparty beneficiary rights under that agreement. As for the
University, once again the district court correctly concluded
that the University did not breach its agreement with Burns.

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Burns withdrew from the Burns-University Agreement, and the
University retracted its termination letter. The University did
not terminate Burns or report Burns as terminated, so Burns
cannot recover on a breach of contract theory from the
University.
Third, Burns argues that all the parties agreed to a
settlement in December 2012 whereby she would resign her
fellowship rather than contest her dismissal in a breach of
contract suit. Burns insists that, instead of stating a separate
claim for breach of a settlement agreement, she is electing to
revive the contracts she rescinded and sue for breach of the
original agreements. See The Cuneo Law Firm Grp., P.C. v.
Joseph, 669 F.Supp.2d 99, 119 (D.D.C. 2009), aff’d sub nom.,
Joseph v. Cuneo Law Grp., P.C., 428 F.App’x 6 (D.C. Cir.
2011). But for the same reasons stated above, Burns’s revival
theory does not get her where she wants to go. No matter how
revived, no contract to which Burns is a party gives her rights
against the Hospital (at least not rights relevant to her claims
here) or rights breached by the University. The Hospital and
its personnel are not parties to any written agreement with
Burns that would entitle her to notice and due process before
termination. At most, the Hospital may have breached the
notice requirement of its agreement with the University, but as
explained just above, that agreement affords Burns no rights.
The clear language of the contracts bars Burns’s contract
claims.
Finally, Burns argues for the first time on appeal that her
provisional staff appointment to the Hospital as a fellow created
a contract based on the Hospital’s bylaws. We see no basis for
departing from our usual refusal to review claims that were not
raised with the district court in the first instance. See
Keepseagle v. Perdue, 856 F.3d 1039, 1052–53 (D.C. Cir.
2017).

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Defamation. The district court correctly ruled that Burns
had separate agreements with separate entities providing her
fellowship. But although Burns could, contractually, have
resigned from the University while being fired from the
Hospital, that is not necessarily what happened. If she was not
fired by the Hospital, her claim that it defamed her, by its telling
the Air Force she had been, may have legs. The record reveals
enough of a dispute of fact to preclude summary judgment.
The University-Hospital Agreement gave the Hospital the
duty to accommodate Burns’s clinical fellowship and the right
to supervise her and control her performance. Per the
agreement, the Hospital’s rights and duties terminated
immediately if the University terminated its own fellowship
agreement with Burns (the Burns-University Agreement).
Thus, if the University and Burns voluntarily terminated their
agreement first, the Hospital could not have fired Burns
afterwards, because it would by then have lost any right to
supervise her fellowship. In that circumstance, a report that
Burns was dismissed for cause from the Hospital, when the
Hospital had no power to dismiss her, would be a falsehood.
The district court never addressed Burns’s claim that the
Hospital’s report of her firing was false. Instead, it focused on
Levy’s final “summative assessment” and found that the
language used there was not “‘so excessive, intemperate,
unreasonable, and abusive’” to rise to the level of “malice”—
which, the parties agree, would trigger a recognized exception
to the common interest privilege otherwise shielding the
Hospital’s communications to the Air Force. Burns, 2016 WL
4275585, at *15 (quoting Moss v. Stockard, 580 A.2d 1011,
1024 (D.C. 1990)). But Padmore’s December 2012 letter, the
February 2013 Verification Form, and Levy’s final summative
assessment all contain the positive declaration that Burns was
dismissed for cause. No matter how temperate the language,
the common interest privilege “exists only if the publisher

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believes, with reasonable grounds, that the statement is true.”
Moss, 580 A.2d at 1025; see also Rosen v. Am. Israel Pub.
Affairs Committee, Inc., 41 A.3d 1250, 1256 (D.C. 2012).
Whether the statement was false, and whether Hospital
personnel knew or should have known of its falsity, is disputed
on the present record. The Hospital considers itself to have
fired Burns on April 3, 2012, independently of and prior to the
University’s agreement to let Burns withdraw. But in Burns’s
favor, the Hospital never communicated its termination to
Burns except in an April 3 letter on University letterhead citing
a University (and not a Hospital) agreement, a letter that the
University retracted in its letter of December 11. Apparently
Padmore and Levy also drafted a termination letter on Hospital
letterhead on or about December 12, which they backdated to
April 3, substantially repeating the University’s (since
withdrawn) termination letter of April 3 but omitting any
citation to the Burns-University Agreement or its termination
procedures. The parties agree that this backdated termination
letter was never sent out, either to the Air Force or to Burns.
Considering the University’s stated intent to treat Burns’s
withdrawal effective as of April 3, a reasonable jury could
decide that Burns terminated her University fellowship
agreement on April 3 or December 11, and that either
termination was prior to the Hospital’s attempt to dismiss her.
Such a sequence would render that attempt ineffectual; the
Hospital’s accounts of Burns’s dismissal would therefore be
false.
As for whether Levy or other Hospital personnel knew that
they lacked the authority to fire Burns, a reasonable jury could
find that they did. In support of such a finding are the
December 12 attempts by Padmore and Levy to manufacture
an artificial record of Burns’s dismissal. Of course, a
reasonable jury could also find that the Hospital did in fact fire

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Burns first, or that Levy and Padmore acted in good faith in
backdating documents.
The Hospital argues that even if the common interest
privilege does not shield its communications with the Air
Force, the District of Columbia’s statutory privilege for peer
review materials does. Burns argues that the peer review
privilege operates exactly like the common interest privilege,
so that the analysis of malice remains the same. Burns is not
quite correct. While the common interest privilege accepts a
reckless disregard for falsity as its standard for malice, see
Moss, 580 A.2d at 1024, the peer review statute creates an
exception only if “the person or entity providing the
information knew the information was false.” D.C. Code § 44802 (emphasis added). If the peer review privilege applies,
Burns could not sustain her claim against the Hospital for
negligent defamation; negligence as to the truth of the
statement does not meet the knowledge exception to the peer
review privilege. The peer review statute’s stringent concept
of malice wouldn’t beat Burns’s claim for intentional
defamation but plainly would require her to shoulder a heavier
burden at trial.
It is not clear that the peer review statute covers Levy and
the Hospital’s communications with the Air Force, however.
The statute protects communications to a “peer review body,”
defined in relevant part as a “health-care facility, agency, group
practice or health professional association.” D.C. Code § 44802, 44-801(6). Because it granted summary judgment under
the common interest privilege, the district court did not reach
the question whether Burns’s Air Force supervisors fall under
the definition of a peer review body. From the record, her
supervisors appear not to be officers or employees of a health
care facility, but of a military agency in charge of a broad array
of civilian education programs. Cf. Ervin v. Howard
University, 445 F.Supp.2d 23, 28 (D.D.C. 2006). But the

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record is not conclusive. We therefore remand this issue to the
district court, with the guidance that even if the peer review
statute does apply, it does not entirely dispose of Burns’s
intentional defamation claim, although it would alter the
elements necessary for her to prevail.
The Hospital also argues that the peer review statute bars
the discovery and admission of the verification form and final
summative assessment, making Burns’s claim unprovable. As
to discovery, the point is moot, as the challenged documents are
already in the record. As to admissibility at trial, we find that
even if the statute applies, Burns falls into the statutory
exception for health professionals challenging an adverse
employment action by the peer reviewing body. D.C. Code
§ 44-805(c).
Because a reasonable jury could find (1) that the reports by
Levy and the Hospital that Burns was fired were false
statements, and (2) that the statements were made with the
requisite knowledge or notice of their falsity (depending on the
applicability of the peer review statute), we reverse the district
court on Burns’s defamation claims and remand for further
proceedings.
Tortious Interference. Burns argues that the Hospital’s
adverse reporting reduced her chances of a promotion within
the Air Force to “slim to none.” Appellant’s Br. 53. But Burns
has in fact been promoted from major to lieutenant colonel
since her aborted fellowship, and a required element of an
intentional interference claim is a termination of a business
expectancy causing damage. See Modis v. InfoTran Sys., Inc.,
893 F.Supp.2d 237, 241 (D.D.C. 2012). Burns relies for such
an expectancy on the Air Force’s rule that she must either be
promoted to full colonel within 28 years of her first commission
or leave the Air Force’s employ. Burns was commissioned in
1995, meaning her up-or-out promotion must take place no

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later than 2023. The district court rightly concluded that a
possible promotion within the next six years (ten from the last
alleged tortious act) is too speculative to support a claim for
damages. See, e.g., Robertson v. Cartinhour, 867 F.Supp.2d
37, 60 (D.D.C. 2012). We affirm the district court’s judgment
on this count.
* * *
The judgment of the district court is
Affirmed in part, reversed in
part, and remanded.

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