December 22, 1994
HOWARD UNIVERSITY, APPELLANT
LUETHEL TATE GREEN, APPELLEE
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 retaliation case law under federal employment discrimination legislation analogous to the DCHRA ("Title VII"). *fn4
Under the DCHRA *fn5 it is an unlawful discriminatory practice for an employer to retaliate against a person on account of that person's opposition to any practice made unlawful by the DCHRA. See Young v. Sutherland, 631 A.2d 354, 361 (D.C. 1993). To make out a prima facie case of retaliation, the plaintiff must establish: (1) she was engaged in a protected activity, or that she opposed practices made unlawful by the DCHRA; (2) the employer took an adverse personnel action against her; and (3) a causal connection existed between the two. See Young, supra, 631 A.2d at 368; Goos, supra note 4, 715 F. Supp. at 3; Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2nd Cir. 1988). Because Green failed to establish the first element of her prima facie case, her entire claim fails; therefore, we need not discuss the other two elements.
With respect to the first element we note that, while under the DCHRA it is unlawful "to deprive any individual of equal employment opportunities because of his or her sexual orientation," Newman v. District of Columbia, 518 A.2d 698, 700 (D.C. 1986), employment practices such as cronyism and favoritism are not actionable under anti-discrimination statutes such as the DCHRA. *fn6 However, while proof of mere favoritism is insufficient to establish a claim of discrimination under the DCHRA, to make out a claim for retaliation, the plaintiff need only prove she had a reasonable good faith belief that the practice she opposed was unlawful under the DCHRA, not that it actually violated the Act. See Manoharan, supra, 842 F.2d at 593; Love v. Re/Max of Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984) ("every circuit that has considered the issue . . . has concluded that opposition activity is protected when it is based on a mistaken good faith belief that Title VII has been violated.") (citations omitted).
Although in a retaliation action a plaintiff is not required to prove that the activity which she opposed constituted an actual violation of the Act, she nonetheless must voice her complaint about, or oppose, the allegedly unlawful activity in order to prevail on her claim. *fn7 Integral to this opposition requirement is that the plaintiff must alert the employer that she is lodging a complaint about allegedly discriminatory conduct. *fn8 Employer awareness that the employee is engaged in protected activity is thus essential to making out a prima facie case for retaliation. Cf. Manoharan, supra, 842 F.2d at 593 (court's rendition of prima facie case for retaliation under analogous Title VII explicitly states a requisite fourth element "that the employer was aware of that activity"). Therefore, to establish a prima facie case of retaliation, Green must show she opposed or complained of activity which she reasonably, in good faith, believed was based on sexual orientation discrimination, and that she so informed the employer. See Manoharan, supra, 842 F.2d at 593.
While Green complained on many occasions about the alleged favoritism the Director showed for these two women, she repeatedly admitted during her testimony that she never complained to anyone at Howard University about the existence of sexual orientation discrimination until she filed her lawsuit in District Court. *fn9 Indeed, the trial court explicitly found, " never was direct in her complaints [regarding alleged homosexuality] nor did she expressly tell . . . [the Director] or any higher Howard University management official that. . . [the Director] was engaging in sexual orientation discrimination, and that the employment practices she questioned was the result of such discrimination." Further, Green testified that, despite her twenty-year tenure at the Hospital and her familiarity with Howard Employee Handbooks and discrimination complaint procedures, she never indicated to anyone before the RIF that she believed the other Associate Director and Coordinator were homosexual, or that she felt she was being treated less favorably because of the Director's alleged relationships with these women. Additionally, unbeknownst to the Director, Green met with the Chief Executive Officer of the Hospital in June 1989 and with the Interim President of the University in February 1990. During these meetings Green only complained of social cliques and favoritism stemming from personal friendships, and did not allude to favoritism based on homosexual relationships. Moreover, in a letter sent to the new Howard University president in May 1990, expressing concern about the upcoming reorganization in Nursing, Green made no mention of unlawful discrimination or favoritism based on homosexual preference.
The evidence thus clearly shows Green failed to lodge an explicit complaint of sexual orientation discrimination. Nonetheless, the trial court was correct in observing that "the communication of a complaint of unlawful discrimination, in a given set of factual circumstances, may be inferred or implied . . . the use the magic words 'sex discrimination' or 'sexual orientation discrimination.'" (emphasis in original). See, e.g., E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-13 (9th Cir. 1983) (letter which did not "fit the classic mold of protected opposition to an unlawful employment practice [because it] did not protest . . . specific . . . instances of unlawful discrimination," was nonetheless found to fall within scope of statutorily protected opposition, because the letter stated that black employees had been fighting "racism and discrimination" at the company for years). However, the trial court erred in ruling that the surrounding circumstances, added to Green's otherwise innocuous complaints, create a sufficient basis for an impartial jury to find by a preponderance of the evidence that Green actually undertook protected activity. We now set forth our reasons for rejecting the trial court's ruling on this point.
In addition to its consideration of the alleged pervasiveness of rumors of homosexuality and a litany of homosexual stereotypes, the trial court relied heavily upon the taped conversation between Green and the Director as a basis for its finding that the Director was made aware that Green was actually complaining of sexual orientation discrimination. Green taped the conversation, without the Director's knowledge, while the Director was questioning her about rumors that she had used hospital staff to type her doctoral dissertation. In denying this rumor, Green stated she was tired of rumors about "[the Director] this, [the Coordinator] that." *fn10 Based on this vague and ambiguous conversation, the trial court found "it was obvious that was referring to the rumors concerning the two women having an homosexual relationship." Even drawing all reasonable inferences in favor of Green, as we must, no impartial jury could reasonably find that this conversation established that Green was voicing her opposition to discrimination based on sexual orientation.
The Director testified that Green never discussed the Director's sexual orientation with her; the first time she became aware that Green believed she was homosexual was when Green filed her lawsuit in District Court. The Director also related that Green never complained to her about a homosexual relationship with the Associate Director or the Coordinator, and she was never made aware of any complaints about her having homosexual relationships with these women being made to any Hospital official. Finally, she testified that prior to the District Court lawsuit she was not aware that her alleged homosexuality had ever been the subject of an inquiry or Discussion by any Hospital official. There was no evidence, other than the taped conversation relied upon by the trial Judge, which could rationally be viewed as contradicting the Director's testimony on this point. As we observed above, that conversation was too vague and ambiguous to provide the necessary link between Green's complaint and conduct which violates the DCHRA.
Nor do the cases cited by appellee, in which less than explicit complaints were held to qualify as protected opposition activity under civil rights laws, provide support for the trial court's Conclusion. Those cases can all be distinguished because the complainants actually conveyed a complaint of sex discrimination or another protected activity. *fn11 Thus, as the cases illustrate, while an employer's awareness may be inferred in a given set of factual circumstances, the employee must sufficiently alert the employer to the nature of her complaint. In short, the onus is on the employee to clearly voice her opposition to receive the protections provided by the Act. See, e.g., Crown Zellerbach, supra, 720 F.2d 1008, 1013 (9th Cir. 1983) ("a simple assertion that an employer is personally bigoted, without more, is not statutorily protected opposition to an unlawful employment practice.").
In sum, we find nothing in the record to suggest the Director was alerted that Green was actually complaining of sexual orientation discrimination. The trial court's reliance on the taped conversation simply requires too many levels of inference to establish Howard University's awareness of a discrimination complaint. The trial court's implication that the atmosphere of prevalent stereotypes and allegedly rampant rumors of homosexuality somehow established "notice and knowledge on the part of. . . [the Director] as to the nature and substance of the rumors" and thus proved the Director "knew exactly what Dr. Green was complaining about in protests" does not create the requisite managerial awareness to make out a prima facie claim for retaliation. See, e.g., Young, supra, 631 A.2d at 368 (causal connection between adverse employment action and discrimination complaint must be predicated upon employer's knowledge that employee is engaged in protected activity); Jones, supra, 669 F. Supp. 1108 (same). In order to make out a prima facie case of retaliation it is not sufficient, notwithstanding Green's suggestion to the contrary, to assert that, based on the work environment, management should have known a complaint of unlawful discrimination was being made. To establish the crux of a retaliation claim, i.e., a causal connection between an adverse personnel action and protected opposition activity, the employee must first prove she sufficiently alerted management to the nature of her complaint. See, e.g., Young, supra, 631 A.2d at 368; Jones, supra, 669 F. Supp. at 1121; Manoharan, supra, 842 F.2d at 593. It simply defies logic to charge an employer with acting in retaliation for an action of which the employer was not, in fact, made aware. Consequently, the alleged milieu of homosexual innuendo and outmoded stereotypes which the trial court found so probative and persuasive does not elevate Green's work-related complaints to the level of protected opposition activity under the DCHRA.
Retaliation provisions such as the one in the DCHRA are designed to protect those who speak out against unlawful discriminatory activity. To extend protection to potential plaintiffs like Green, who have done no more than complain about workplace favoritism, would expand the boundaries of the statute beyond what was intended. At oral argument Green's counsel admitted that Green had not been more explicit in her complaints because of her fear of retaliation. However, Green cannot have it both ways; she cannot withhold a discrimination complaint to avoid retaliation and then complain of retaliation based on a complaint which omits the charge. Because of that reality, we endorse the view expressed by the Court in Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312-13 (6th Cir. 1989) in analyzing a retaliation complaint under Title VII and Michigan's Civil Rights Act:
The purpose of the statute is to protect access to the machinery available to seek redress for civil rights violations. . . . An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination [in an internal letter or memorandum]. In our view, such would constitute an intolerable intrusion into the workplace.
Id. at 1313. To foster the underlying goal of human rights statutes - an end to discrimination - the burden is squarely on the employee to adequately voice her opposition so that management is made aware of the alleged discrimination, and so that it can take appropriate steps to eliminate the offensive conduct. If the employer, once aware of the discrimination, chooses to retaliate against the employee for opposing the conduct, the employee can then seek redress under the DCHRA.
In Conclusion, we hold, viewing the evidence, as we must, in the light most favorable to Green, Mike Palm, Inc. v. Interdonato, 547 A.2d 1016, 1019 (D.C. 1988), that Green failed to establish the first element of her prima facie case and thus presented insufficient evidence for a jury to reasonably conclude she made management aware of her belief in the existence of sexual orientation discrimination. We therefore reverse the trial court's denial of Howard's JNOV, and consequently, need not reach the merits of Howard's other claims. *fn12