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SCHWARTZ v. PARALYZED VETERANS OF AM.

February 1, 1996

SUSAN G. SCHWARTZ, Plaintiff,
v.
PARALYZED VETERANS OF AMERICA, Defendant.



The opinion of the court was delivered by: ROBERTSON

 This case proceeded to trial before a jury on Susan Schwartz's claim that the termination of her employment by Paralyzed Veterans of America (i) was unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 and the District of Columbia Human Rights Act (DCHRA) and (ii) breached a contract of employment established by provisions of PVA's Personnel Policies and Procedures Manual. After plaintiff rested, defendant moved for judgment as a matter of law pursuant to F.R.Civ.P. 50(a). I granted the motion, ruling from the bench (i) that the PVA Manual was not a contract and (ii) that plaintiff had failed to establish a prima facie case of sex discrimination. This memorandum sets forth the reasons for my decision.

 Facts

 Plaintiff Susan Schwartz applied for the position of media relations manager at PVA in December 1992. She read and signed a statement printed on the application that any employment relationship with PVA would be of an "at will" nature, which was explained (on the application form) to mean, among other things, that "the employer may discharge employee at any time with or without cause." She was offered the job in January 1993 and began work in February 1993. Her supervisor was Phillip Rabin, director of communications. His supervisor was John Bollinger, deputy executive director.

 In April 1993, Mr. Bollinger complimented plaintiff for her work on a media tour in Florida. In the same month, Mr. Rabin evaluated her overall performance as "superior" (in a four step ranking of unsatisfactory, acceptable, superior and exceptional). In September 1993 her overall job performance was rated "superior" (in a five step ladder: unsatisfactory, acceptable, fully competent, superior, exceptional). Her next performance evaluation, in April 1994, was "fully meets" [job requirements] (the steps were unsatisfactory, minimally meets, fully meets, consistently exceeds and far exceeds). The language describing the "fully meets" category, on the evaluation form, was, "Performance fully meets and sometimes exceeds job requirements. Individual skills, initiative and judgement are being used appropriately." In this April 1994 evaluation Mr. Rabin wrote:

 
"Susan continues to be an industrious employee. However, she seems to have reached a plateau at which she is comfortable. She must become less passive and more pro-active both internally and externally. As Media Relations Manager she must become more imaginative in telling PVA's story to the media and other key audiences."

 As goals for plaintiff's future performance, he wrote:

 
"2. Become more proficient in a wider range of communications tools.
 
"3. Become more independent in handling projects."

 Two months later, on June 15, 1994, plaintiff was told, in a meeting attended by Messrs. Bollinger and Rabin, that she was to be replaced as media relations manager because her performance had "plateaued" and that she was not aggressive enough. PVA undertook to consider her for a new position of senior writer, if PVA's board of directors gave approval for the creation of the new position at its August meeting. PVA told plaintiff that if the new position were not approved or not offered to her, she could continue as a PVA employee until the end of the calendar year and that, during the remainder of her employment, she could take liberal leave absences to look for another job. As it turned out, the PVA board of directors did not approve the senior writer position at its August meeting. Plaintiff was released effective December 31, 1994.

 Most of the testimony in plaintiff's case-in-chief focused on her contention that she had in fact done a good job as media relations manager. She contended that she had achieved good publicity for the 1994 wheelchair games in Kansas City. Messrs. Bollinger and Rabin, called as witnesses in plaintiff's case, testified that plaintiff had done well on the wheelchair games but that she had not performed well enough in other aspects of her job, including finding newsworthy material within PVA and disseminating it to the media.

 While she was employed at PVA, plaintiff became pregnant and then suffered a miscarriage. She testified that she became aware of her pregnancy in February 1994, that her pregnancy was at risk, that she experienced bleeding and had to be out of work for one and one-half weeks early in her pregnancy, and that, in mid- to late-March 1994, her doctor advised her against travel. On May 3, 1994, her doctor informed her that the fetus was dead. A surgical procedure was performed the next day, and Ms. Schwartz was out of work for several days thereafter. Nevertheless she went back to work, finding work a "good alternative to sitting around the house and crying." Plaintiff testified that Mr. Rabin was sympathetic but that, several days after she returned to work, he asked how she was doing, she answered, "Not good," and he said to her "So, still feeling some lingering effects, are we?" It was apparent from plaintiff's testimony that she found the remark, and the tone of voice in which it was made, insensitive. About a month after that episode she was told by Messrs. Bollinger and Rabin that she would be replaced as media relations manager.

 Plaintiff's predecessor as media relations manager was a woman. Her predecessor's predecessor was a woman. Her successor was a woman. Other women employed at PVA became pregnant, bore children, and suffered miscarriages without adverse employment actions.

 The PVA Personnel Policies and Procedures Manual contains a number of sections and provisions upon which plaintiff relies:

 
* As a matter of policy, terminations will be "predicated in large part" upon periodic performance evaluations and ...

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