Appeal from the Superior Court of the District of Columbia. Civil Division. (Hon. Arthur L. Burnett, Sr., Trial Judge).
Before Schwelb, King, and Kennedy, *fn1 Associate Judges.
The opinion of the court was delivered by: King
KING, Associate Judge: In this civil action for retaliatory termination of employment, appellant Howard University Hospital ("Howard University" or "Hospital"), the former employer of appellee LuEthel Tate Green ("Green"), seeks reversal of a judgment in favor of Green, or in the alternative, a new trial. Howard University contends the trial Judge erred in denying its post trial motion for judgment notwithstanding the verdict ("JNOV") because Green failed to make out a prima facie case for retaliation under the District of Columbia Human Rights Act ("DCHRA"). Alternatively, Howard University claims the trial court's erroneous admission of rumors concerning the homosexuality of certain Hospital employees, including Green's supervisor, so prejudiced the jury that it was unable to fairly decide the case on the merits, thus entitling it to a new trial.
For the reasons set forth below, we hold that Green did not establish her prima facie case for retaliation; accordingly, we reverse the trial court's denial of Howard University's motion for JNOV.
Green, a former Associate Director of Nursing at Howard University Hospital, brought this action under the DCHRA, claiming she had been included in a reduction-in-force ("RIF") in retaliation for complaining of alleged sexual orientation discrimination in the Division of Nursing. *fn2 Specifically, Green alleged her immediate supervisor, who was the Director of Nursing ("Director") and the organizer of the RIF, maintained homosexual relationships with another Associate Director of Nursing ("Associate Director"), and a Patient Care Coordinator ("Coordinator"), a subordinate of Green's, neither of whom were included in the RIF, and that Green was included in the RIF because she complained of these relationships.
Green alleged that throughout her twenty years of employment with the Hospital, the Director frequently showed partiality to both the Associate Director and the Coordinator by granting them extensive overtime pay, liberal sick leave, choice working assignments, and lenient disciplinary action. Green frequently complained of this favoritism, verbally and in writing, to the Director, and on a few occasions, to other Hospital managers, suggesting it undermined her authority, contradicted Hospital policy, and adversely affected department morale. Green conceded at trial that she never explicitly linked these complaints to the alleged homosexual activity or directly complained of sexual orientation discrimination. Nonetheless, she maintains that because of so-called "rampant rumors" of homosexual activity among the three women, the Director knew that Green's otherwise work-related complaints were actually complaints of sexual orientation discrimination.
Over Howard University's objections, the trial court permitted Green to present testimony concerning the rumors of homosexuality among the women to establish that Green was actually protesting preferential treatment of homosexuals.
Specifically, the trial court found that a taped conversation between the Director and Green, in which Green remarked "that the grapevine rumor mill had not been kind to [the Director] . . . and that she was sick of rumors of 'Ms. this, Ms. that,'" was sufficiently clear to place the Director, and thus, the Hospital, on notice that: (1) Green was referring to rumors of alleged homosexuality and, therefore, (2) Green was actually complaining of sexual orientation discrimination.
Also over appellant's objection, the trial court permitted Green to establish that she reasonably believed the favoritism exhibited by the Director was based on homosexual preferences by admitting evidence of: (1) sexual orientation-neutral facts about the women's social activities, such as their taking shopping trips together, their practice of occasionally spending nights in each others' homes, and their dining together; (2) personal facts about the women, such as their marital status, mode of dress, and the length of the friendship among them; and (3) homosexual stereotypes such as the belief that homosexuals can be identified by their appearance, and the view that the provision of financial assistance equates to playing the "male role." At trial, however, the Director unequivocally testified she was not homosexual and had never engaged in homosexual relations with any woman. *fn3
After the nearly four-week trial the jury returned a verdict in favor of Green, awarding her $140,000. In a lengthy Memorandum Opinion, the trial court denied Howard's motions for JNOV and a new trial, holding that Green made out a prima facie case of retaliation and the admission of rumors of homosexuality was not overly prejudicial. This appeal followed.
The dispositive issue in this appeal is whether evidence of mere rumors, regardless of how pervasive and long-established, and a taped conversation vaguely referencing such rumors, provides a sufficient basis on which a jury can reasonably conclude that otherwise work-related complaints rise to the level of activity protected by the DCHRA. In resolving this question we look for guidance to our cases addressing retaliation under the DCHRA and to ...