The opinion of the court was delivered by: ATTRIDGE
The plaintiffs, Charles Beckwith, Cordelia Attwell and Ervin Hodges, all former employees of the defendant, Career Blazers Learning Center of Washington, D.C. [Learning Center], seek equitable relief as well as compensatory and punitive damages alleging they were discriminated and retaliated against by the Learning Center and its Director, John Rogers.
Messrs. Beckwith and Hodges allege claims of racial discrimination, while Ms. Attwell alleges, in separate counts, claims of racial and sexual discrimination. Their claims are brought pursuant to the District of Columbia Human Rights Act [DCHRA], D.C. CODE § 1-2501, et seq. (1981) and 42 U.S.C. § 1981.
Pursuant to 28 U.S.C. § 636(C), the parties have consented to proceed before a U.S. Magistrate Judge for all purposes, including the entry of final judgment.
The Learning Center operates a proprietary business school in the District of Columbia. At all pertinent times, Mr. Rogers served as the Center's Director, and Mr. Jeffrey Oxman as its President. Mr. Beckwith and Ms. Attwell began their employment with the Learning Center as admission representatives on September 5, 1995. Mr. Hodges commenced his employment with the Learning Center on April 19, 1995.
Each was supervised by Mr. Rogers.
In his second amended complaint, Mr. Beckwith claims that, on October 12, 1995, Mr. Rogers told him that he was being promoted from the position of admissions representative to that of Director of Admissions with a $ 3000 a year salary increase (Pls' 2d amend. compl., P 14); that on October 13, he was told a liberal leave policy was in effect for October 16, the day of the Million Man March in Washington, D.C. (Id. PP 16-18); and, on the afternoon of October 16, he telephoned his office to advise that he was taking the day off (Id. P 17). He further claims on his return to work on October 17, after informing Mr. Rogers that he participated in the Million Man March, he was told that "he had lost his promotion, raise and job title" (Id. P 21); moreover, he claims he was placed "under surveillance; wrongfully accused... of taking company property from its premises"; denied the opportunity of wearing "sweats" to the office as he had done previously; and "threatened with discipline" (Id. P 23). He attributes these actions to Rogers' hostility toward him because of his race and because of his advocacy of black rights. (Id. P 22).
In Count I of his second amended complaint, Mr. Beckwith alleges he was retaliated against in violation of the DCHRA, [D.C. CODE § 1-2501, et seq. (1981)] for encouraging others to exercise their civil rights and because of his participation the Million Man March.
Mr. Beckwith also contends he suffered retaliation for having filed this law suit [Count II]; and claims that he was discriminated against in the terms and conditions of his employment because of his race in that blacks and whites were work-force segregated and treated dissimilarly resulting in a higher turnover of black employees compared to white employees [Count III].
Lastly, Mr. Beckwith charges that he was subject to unspecified retaliation in violation of 42 U.S.C. §§ 1981 and 1981(a) [Count IV].
Ms. Attwell alleges in her second amended complaint that the defendants retaliated against her by depriving her of the opportunity to audition for a promotion to Director of Student Services [DSS] because she had complained that she was sexually harassed by Mr. Rogers. (Id. P 30). She further complains she was retaliated against when wrongfully accused of taking company property (Id. P 34), by being placed under surveillance, and by being threatened with disciplinary action (Id. P 34). Ms. Attwell also contends she was passed over for a promotion in favor of a white female because of her race. (Id. P 32).
In her multi-count complaint, Ms. Attwell charges the defendants with sexual harassment in violation of § 1-2512 of DCHRA [Count V]; discrimination in denying her a promotion because of her race in violation of the DCHRA [Count VI] and 42 U.S.C. § 1981 [Count VII]; and, lastly, retaliation, adverse treatment and denial of an employment promotion because of her race in violation of D.C. Code § 1-2525 (1981) [Count VIII].
Mr. Hodges charges he was discriminated against in the terms and conditions of his employment because of his race in violation of D.C. CODE § 1-2525 (1981) [Count IX].
All three plaintiffs further allege discriminatory treatment in terms of promotions and demotions because of their race in violation of D.C. CODE § 1-2512 (1981) [Count X].
Defendants' Motion for Summary Judgment
The defendants moved for summary judgment on each and every claim. They argue that Mr. Beckwith's retaliation claims fail as a matter of law because he cannot establish a prima facie claim of unlawful retaliation for failure to promote [Counts I and IV] or for having filed this law suit [Count II and IV], and that his disparate treatment claim must fail for lack of record evidence [Count III].
The defendants argue that Ms. Attwell's claims fail as a matter of law because the evidence of record does not support a claim of sexual harassment [Count V], and that she cannot establish a prima facie case for discriminatory failure to promote [Counts VI and VII], nor for retaliation or adverse treatment because of her race [Count VIII].
Lastly, the defendants urge that Mr. Hodges claims of racial discrimination and constructive discharge fail for lack of record evidence [Count IX].
Summary Judgment Standard
Summary judgment "should be granted only where there are no genuine issues of material fact, and all inferences must be viewed in a light most favorable to the non-moving party." Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C. Cir. 1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The mere existence, however, of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The dispute must involve no genuine issue of material fact. Liberty Lobby Inc., 477 U.S. at 247. "Material" facts are facts in dispute that "might affect the outcome of the suit under the governing law." Id.
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When evidence from the entire record could not lead a rational fact-finder to find for the non-moving party, no genuine issue for trial exists and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Mr. Beckwith has charged the defendants under § 1-2525 of DCHRA with retaliation for having participated in the Million Man March in Washington D.C. on October 16, 1995 [Count I], and for having filed this lawsuit [Count II]. He also claims retaliation under 42 U.S.C. § 1981(a) for undescribed conduct [Count IV].
The elements of a retaliatory claim are the same under DCHRA as under the federal employment discrimination laws. Howard Univ. v. Green, 652 A.2d 41, 45 (D.C. App. 1994). A prima facie case of retaliation requires a plaintiff to show: (1) that he was engaged in a statutorily protected activity or that he opposed practices made unlawful by the DCHRA; (2) that his employer took adverse personal action against him; and (3) that a casual connection existed between the two. Howard, 652 A.2d at 44; Barnes v. Small, 268 U.S. App. D.C. 265, 840 F.2d 972, 976 (D.C. Cir. 1988)(citing McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984)); Evans v. Kansas City Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995) cert. denied 306 U.S. 665, 83 L. Ed. 1061, 59 S. Ct. 790(1996), 134 L. Ed. 2d 472, 116 S. Ct. 1319 (1996).
The defendants urge that Mr. Beckwith's attendance at the Million Man March [Count I] was not a "statutorily protected activity". They argue that he, therefore, is unable to satisfy the first element of a retaliation claim under either the DCHRA or § 1981. They contend that the term "statutorily protected activity" encompasses only "explicit complaints" about an alleged unlawful employment practice. "The March was not a protest of employment discrimination generally, much less to the employment discrimination on the part of the defendants in particular." (Defs' s.j. points & auth. at 21). The defendants argue that the March was "'a holy day of atonement and reconciliation' for black men to pledge responsibility to themselves and their families and to promise to reject behavior that has led many to abandon their children, commit crimes and indulge in drugs." (Id. at 21)(quoting The March on Washington: The Overview, NY TIMES, Oct. 16, 1995, § B, at 6.).
In Howard, 652 A.2d at 46, the Court held that to successfully plead and prove a retaliatory claim under the DCHRA, a plaintiff must first show that he lodged a complaint with his employer about allegedly discriminating conduct. In other words, he must show that he "opposed or complained of activity which [he] ... ...