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GOOS v. NATIONAL ASSN. OF REALTORS

May 11, 1989

JULIE GOOS, Plaintiff,
v.
NATIONAL ASSOCIATION OF REALTORS, Defendant



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Julie Goos alleges that defendant National Association of Realtors ("NAR") fired her in retaliation for her refusal to carry out instructions she felt were racially-motivated to terminate Reina Squire, an NAR employee under her. Her complaint has two counts. First she alleges unlawful reprisal under the District of Columbia Human Rights Act, D.C. Code Ann. ยง 1-2525, which makes it an unlawful discriminatory practice to retaliate against a person who opposes any practice made unlawful by the Act. Second she alleges breach of contract on two theories: 1) that an "Employee Handbook" and other documents created a contract; and 2) that there was at least an "implied covenant of good faith." NAR has moved for summary judgment on both counts. For the reasons set forth below, the Court shall deny summary judgment as to the unlawful retaliation claim and grant summary judgment as to the contract claims.

 I. RETALIATION CLAIM

 The elements of a prima facie retaliation case are that 1) plaintiff was engaged in a protected activity; 2) the employer took an adverse personnel action, and 3) a causal relationship existed between the two. Moreover, in such a case the plaintiff does not have to prove that the conduct opposed was in fact a violation of Title VII. Instead, the rule is that opposition activity is protected if it is based on a "good faith, reasonable belief that the challenged practice violates Title VII." Parker v. Baltimore & Ohio Railroad Co., 209 U.S. App. D.C. 215, 652 F.2d 1012, 1020 (D.C. Cir. 1981); *fn1" see also Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984) ("the opposition activity is protected [even] when it is based on a mistaken good faith belief that Title VII has been violated") (citations omitted). Thus in the present case plaintiff only need make out a prima facie case that her opposition to firing Ms. Squire was based on a reasonable, good faith belief that Ms. Squire was being terminated for discriminatory reasons. Simply put, Ms. Squire herself, had she sued over her termination, did not have to have a winning case for plaintiff to prevail in this suit.

 The Title VII prima facie case analysis established in McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), has been held to apply to such suits under the District's Human Rights Act, as the Act was modeled on Title VII. E.g., Thompson v. International Association of Machinists, 614 F. Supp. 1002, 1011 (D.D.C. 1985). Once plaintiff has established a prima facie case, the burden of production shifts to the defendant to show a legitimate non-discriminatory reason for the contested personnel action. If defendant does so, the burden shifts back to plaintiff to show that the reason was a "pretext." NAR argues that the complete burden shifting analysis need not be done in the present case because plaintiff has failed to make out a prima facie case of retaliatory discharge. On the present record, however, the Court must disagree.

 Plaintiff's abrupt termination on the heels of voicing her opposition to Ms. Squire's termination is also sufficient at this stage to establish a prima facie case that there was a causal connection. The instructions from Ms. Crowdus came on June 23, 1988; a meeting between Brenda Yankaskas, an NAR director, and Charles Morrison, a vice president of marketing, at which plaintiff's termination was discussed, took place as late as July 14, 1988; and plaintiff was terminated on August 1, 1988. This temporal proximity is enough to survive summary judgment. *fn2"

 II. CONTRACT CLAIMS

 District of Columbia law recognizes that contractual terms may be implied from an employee handbook or manual. Washington Welfare Association Inc. v. Wheeler, 496 A.2d 613, 615 (D.C. 1985); McConnell v. Howard University, 260 U.S. App. D.C. 192, 818 F.2d 58, 62-63 (D.C. Cir. 1987); Greene v. Howard University, 134 U.S. App. D.C. 81, 412 F.2d 1128, 1132 (D.C. Cir. 1969). And, in general, "whether a personnel manual creates contractual rights for the employee is a question for the jury." Wheeler, 496 A.2d at 615.

 An employer, however, may effectively disclaim any implied contracts. E.g., Doe v. First National Bank of Chicago, 865 F.2d 864, 873 (7th Cir. 1989) ("We fail to see how a document which clearly disclaims in unambiguous language any purpose to bind the parties can constitute 'a promise clear enough that an employee would reasonably believe that an offer has been made.'") (citation omitted) (Illinois law); Lee v. Sperry Corp., 678 F. Supp. 1415, 1418 (D. Minn. 1987) (Illinois law); Castiglione v. Johns Hopkins Hospital, 69 Md. App. 325, 517 A.2d 786, 793 (Ct. Spec. App. 1986) (Maryland law), cert. denied, 309 Md. 325, 523 A.2d 1013 (1987). *fn3" Moreover, the legal effect of any such disclaimers is, in the first instance, a question for the Court. E.g., Nettles v. Techplan Corp., 704 F. Supp. 95, 97-98 (D.S.C. 1988) ("even though the jury would decide if the manual created a contract absent a conspicuous disclaimer, the issue of whether the disclaimer was appropriately conspicuous is, in the first instance, one for the court to decide").

 Here the manual in existence at the time plaintiff was terminated contains two relevant disclaimers:

 
This handbook does not constitute an employment contract in whole or in part, and the Association reserves the right to add, amend or delete any policy ...

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