U.S. at 568. This factor is one to be balanced when a public employee wants to publicly comment about his employer on matters of public concern.
19. The Court concludes that Elijah Rogers' actions in not promoting plaintiff were taken pursuant to a District of Columbia statute granting the Mayor, or his delegate, broad discretion in promoting to the position of Deputy Fire Chief. Furthermore, the Supreme Court had, by August 1980, long held that it was permissible to weigh the interest of a public employee in voicing criticism on matters of public concern against the interest of promoting the efficiency of providing services. The concern of maintaining harmonious Fire Department forces was voiced by both Mayor Barry and Elijah Rogers at the May 1980 meeting following the rally and by Elijah Rogers at trial. Insofar as Rogers' decision not to promote plaintiff was motivated by these concerns which surfaced after plaintiff's participation in the rally, the Court concludes he may claim the qualified immunity privilege.
20. At least since the enactment of Title VII, an employer has been prohibited from taking any adverse action against an employee who files a discrimination complaint. Clearly this is law of which a reasonable person would have known. Norman Richardson testified that Elijah Rogers resisted Richardson's recommendation of Dougherty for promotion. Plaintiff testified that Richardson told him he had not been promoted because of his discrimination complaint. There was evidence that Rogers knew of the complaint during the time of the July-August, 1980 period of promotion discussions. Inasmuch as Rogers' decision not to promote plaintiff was based on plaintiff's filing and prosecution of his OHR complaint, Rogers cannot be shielded by the qualified immunity privilege.
LIABILITY UNDER THE D.C. HUMAN RIGHTS ACT
21. The District of Columbia Human Rights Act provides that it is unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, including promotion" on the grounds of "race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, matriculation, or political affiliation. . . ." D.C. Code § 1-2512 (1981). The Act also provides that an aggrieved individual may bring a private cause of action "in any court of competent jurisdiction for damages and such other remedies as may be appropriate. D.C. Code § 1-2556.
22. The District of Columbia Court of Appeals has held that "the private right of action established by D.C. Code § 1-2556 (1981) and its predecessor . . . is available only to non-government employees." Williams v. District of Columbia, 467 A.2d 140, 142 (D.C. 1983). Thus, as a District employee, Dougherty may not maintain an action for damages under the Human Rights Act and that portion of his claim must be dismissed.
DAMAGES AND INJUNCTIVE RELIEF
23. The basic purpose of a § 1983 damage award is to provide compensation for injuries resulting from constitutional violations. In considering the appropriate measure of relief, the Court must take care to insure that the award is compensatory; substantial damages may be awarded only for actual injury. See Carey v. Piphus, 435 U.S. 247, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978). Compensatory damages may include amounts for mental and emotional distress. Id. at 265. See also Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979), cert. denied, 445 U.S. 938, 63 L. Ed. 2d 772, 100 S. Ct. 1331 (1980). Punitive damages are also available where the defendant's conduct is motivated by ill will or when the conduct demonstrates a reckless or callous attitude towards federally protected rights. Smith v. Wade, 461 U.S. 30, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983); Clark v. Beville, 730 F.2d 739 (11th Cir. 1984).
24. In this case, the plaintiff undoubtedly suffered some embarrassment and indignation, as well as other emotional injury, due to the unlawful acts of the defendants. See 21 D.C. Reg. 1615 (1975) (automatic award of damages under D.C. Human Rights Act because "the natural and unavoidable consequences of any unlawful discriminatory acts or practices are personal embarrassment, humiliation and indignity). Plaintiff testified to a loss of self-esteem and difficulty in adjusting to retirement. Yet, the emotional distress suffered by plaintiff is not easily quantifiable. Beyond plaintiff's brief statements as to his condition, the Court would have to speculate as to the extent of injury suffered by plaintiff. In the absence of sufficient proof of mental or emotional injury, the Court cannot speculate, Carey, 435 U.S. at 264-65.
25. With respect to tangible (non-emotional or mental) damages, there is ample evidence of injury and causation of that injury by the defendants' unlawful conduct. Accordingly, based on evidence of injury to plaintiff's career arising from the violation of his First Amendment rights, the Court orders defendants Rogers and the District of Columbia to: 1) retroactively promote plaintiff to Deputy Fire Chief effective October 5, 1980; 2) pay plaintiff the salary he would have received as a Deputy Fire Chief from October 5, 1980 to March 31, 1983, less the pension benefits plaintiff actually received during that period; 3) pay plaintiff the difference between the pension benefits plaintiff is entitled to receive as a Deputy Fire Chief and the pension benefits he actually received from April 1, 1983 to the date of this judgment. An appropriate Order will issue in accordance with the terms of this Opinion. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 604 F. Supp.]
In accordance with the Court's Findings of Fact and Conclusions of Law and based on the Court's holding that the District of Columbia and Elijah B. Rogers unlawfully retaliated against plaintiff in violation of his rights under the First Amendment to the Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983, it is hereby this 7th day of March, 1985,
ORDERED that Defendants shall:
1) retroactively promote plaintiff to Deputy Fire Chief effective October 5, 1980;
2) pay plaintiff the salary he would have received as a Deputy Fire Chief from October 5, 1980 to March 31, 1983, less the pension benefits actually received by plaintiff during that period;
3) pay plaintiff the difference between the pension benefits plaintiff is entitled to receive as a Deputy Fire Chief and the pension benefits he actually received from April 1, 1983 to the date of this judgment; and continue to provide plaintiff the appropriate benefits in accordance with the retroactive promotion.