was constructively discharged from employment (Id. P 44). He attributes this adverse treatment to his race alleging that whites received promised promotions and were treated "more favorably than black employees with respect to the attitude and deportment of management at Career Blazers." (Id. P 45).
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).
A) Retaliation Claims
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] ... believed was ... [racially] discriminatory, and that [he] so informed the employer." Id.
The defendants argue that the plaintiffs mere participation in the March, which they state was in no way related to any allegedly discriminatory employment practices by the defendants, is wholly insufficient to establish a claim of retaliation, i.e., later being the subject of adverse employment action in violation of DCHRA or § 1981. They contend that the record in this case demonstrates that Mr. Beckwith had no complaints of discriminatory conduct on the part of the defendants prior to his participating in the March. (Beckwith dep. at 503-504). It was only after he failed to report to work and failed to notify his employer until late in the afternoon of October 16, that he would not be coming to work on that day that he first was subject to the sanctions about which he complains.
The defendants urge that participation in the March - an unprotected activity, followed by adverse employment action is not sufficient to establish a retaliatory claim under § 1981. The defendants rely on Evans, 65 F.3d at 100-101, wherein the 8th Circuit Court of Appeals concluded that a teacher was not engaged in a "statutory protected activity" when he complained of the principal's plan for implementing a magnet program for a school which was more than 98% black. The court ruled that since the teacher's complaints were not related to his own terms and conditions of employment, his complaints were not remediable under Title VII or § 1981. Id.
The record is clear and unequivocal in this case that Mr. Beckwith's participation in the March was not related to the terms and conditions of his employment. The undisputed facts clearly establish that he was not engaged in a "statutorily protected activity". The March was not a protest against unlawful discriminatory employment conditions he was experiencing but rather a day of national atonement by black men. Mr. Beckwith failed to make out a prima facie case of retaliation for participating in the March under either the DCHRA or § 1981. Accordingly, the defendants' motion for summary judgment on Count I will be granted.
Next, Mr. Beckwith complains that following the filing of this lawsuit on November 1, 1995, he was subject to harassment by the defendants for having filed this action. In other words, he contends that he was subject to retaliation as a consequence of having filed this lawsuit alleging that he lost a promotion, lost income and lost a job title because he participated in the Million Man March. (Pls' 2d amend. compl. at P 54).
The filing of the complaint, regardless of its merits, is a "statutorily protected activity" under both the DCHRA and § 1981. Berger v. Iron Workers Reinforced Rodmen Local 201, 269 U.S. App. D.C. 67, 843 F.2d 1395, 1425 (D.C. Cir. 1988). Mr. Beckwith, therefore, has satisfied the first element of a retaliation claim.
Mr. Beckwith alleges several acts of retaliation: First, on November 2, 1995, Beckwith was asked to surrender for inspection the property he was carrying as he exited the premises of the Learning Center. He says this never occurred prior to that date and that white employees were not subject to the same inspection. (Beckwith dep. at 527-528). Second, Mr. Beckwith says he received a memorandum from Mr. Oxman on November 14, 1995 (Pls' opp. to defs' mot. for s. j., ex. 1), which he claims accused him of theft and criticized him for wearing "sweats." He contends this never occurred before and, therefore, is evidence of unlawful surveillance by the defendants.
The Court agrees that such evidence of adverse personnel action satisfies the second element of Mr. Beckwith's retaliatory claim. Moreover, since these actions occurred within two weeks of his having filed this lawsuit an inference arises that the retaliatory conduct complained of was proximately caused by the filing of the lawsuit,
thereby satisfying the last element of a retaliation claim. See Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993)(citing Rath v. Selection Research, Inc., 978 F.2d 1087, 1089 (8th Cir. 1992)("The evidence necessary to support the allegation of a causal connection for a prima facie case may be circumstantial, i.e., proof that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive.")(internal quotations omitted)); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163-1164 (11th Cir. 1993); Garrett v. Lujan, 799 F. Supp. 198, 202 (D.D.C. 1992). Our inquiry does not end there, however, for once a prima facie case has been established thereby triggering a presumption of unlawful discrimination, the burden of production shifts to the employer to produce evidence "which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 257, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Nevertheless, the plaintiff retains the ultimate burden of persuasion; he "may prove 'pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that he employer's proffered explanation is unworthy of credence.'" Rap. Inc. v. D.C. Comm'n on Human Rights, 485 A.2d 173, 176-177 (D.C. 1984)(quoting Burdine, 450 U.S. at 256). Thus, if a defendant satisfies its burden of production, the plaintiff must then produce evidence that the reasons offered were not the true reasons for the adverse action but are a mere pretext for discrimination. Burdine, 450 U.S. at 256.
In response to Mr. Beckwith's evidence of retaliatory treatment after the filing of his lawsuit, the defendants assert that neither Beckwith nor Attwell were authorized to be on the premises at the time of their after-hours stop while removing boxes from the Learning Center premises on the evening of November 2, 1995, one day after filing this lawsuit and hours after the defendants were served with suit papers. Defendants state that Mr. Beckwith had earlier left the premises at the conclusion of his work day only to return later that evening to retrieve and carry out boxes of documents. This conduct on the part of Beckwith and Attwell was certainly unusual and quite reasonably prompted an inquiry of them by Rogers to determine if they were removing Learning Center property.
The plaintiff characterizes this conduct and a reference to it in the memorandum of November 14, as having been accused of theft; neither of the defendants, however, accused Mr. Beckwith nor Ms. Attwell of theft. Given the setting and totality of the circumstance, a reasonable juror could only conclude that the defendants' conduct was motivated by legitimate concern for the records and documents of the Learning Center.
Moreover, they were permitted to exit the premises with the boxes even though they refused a request by Mr. Rogers to examine the contents of the boxes.
The effect of this evidentiary production by the defendants shifts the burden back to the plaintiff to produce evidence that the defendants' alleged reasons for stopping the plaintiffs and inquiring about the contents of the boxes were not their true reasons but were merely a pretext for retaliation. Mr. Beckwith has offered no proof in this regard.
Mr. Beckwith also complains that a November 14, memorandum from Mr. Oxman to him is further evidence of retaliation. That memorandum (Pls' opp., ex. 1) reprimanded Mr. Beckwith for his behavior on the evening of November 2, as well as for his behavior during the subsequent investigation of that incident, admonished him for wearing sweat clothes to the office, criticized his failure to keep his supervisor, Mr. Rogers, informed in advance of his intention to take leave or work at home, rebuked him regarding his attitude and insubordinate manner, and threatened him with termination if his conduct and attitude did not change.
Mr. Beckwith argues that this memorandum further evidences the retaliation he encountered. A fair reading, however, of the memorandum does not support Mr. Beckwith's allegations. The memorandum recites by chapter and verse recent alleged employment misconduct on the part of Mr. Beckwith. The plaintiff has not challenged the truth of any of the information contained in the memorandum. An employee is not immunized from criticism for wrongful conduct merely because he files a lawsuit. The fact that Mr. Beckwith filed his lawsuit did not allow him to remove property from his employer's premises after hours without challenge, nor did it license him to violate company dress codes and reporting requirements, or to act in an insubordinate manner. Although he alleges others were permitted to dress in sweats and that others failed to report for work on time or at least failed to timely telephone to inform the Learning Center that they may be late for work, Mr. Beckwith offers no evidence in this regard. In the absence of evidence that others were treated differently or that the factual basis for the criticism was pre-textual or untrue, Mr. Beckwith has failed to satisfy his burden of production on his claim for retaliation.
Moreover, mere criticism and warnings concerning alleged misconduct do not, of themselves, constitute adverse changes in the terms and conditions of employment. See Stoeckel v. Envtl. Management Sys., Inc., 882 F. Supp. 1106, 1116 (D.D.C. 1995). Accordingly, the defendants motion for summary judgment with respect to Count II will be granted.
B) Discrimination Claim
In Count III of his amended complaint, Mr. Beckwith charges the defendants with maintaining a segregated workforce and causing a higher turnover of black employees when compared to white employees. This count does not identify the statutory provision relied upon.
While allegations of this kind may be relevant to show that a discriminatory reason more likely motivated the employment actions and decisions that were adverse to Mr. Beckwith, or that the proffered reasons for the disparate treatment that he alleges he received are unworthy of belief, a plaintiff is obligated, nevertheless, to produce evidence "'including facts as to ... (the defendant's) general policy and practice with respect to minori(ties)'". Miller v. Poretsky, 193 U.S. App. D.C. 395, 595 F.2d 780, 791-792 (D.C. Cir. 1978)(Robinson, J., concurring)(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-805, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). While testimony of discriminatory acts against others is relevant evidence ( Id. at 793), such observations and experiences are required to be presented in the proper context. See: Harris v. D.C. Comm'n on Human Rights, 562 A.2d 625, 632 (D.C. 1989). Beckwith has presented no competent evidence in support of his generalized observations that the defendants segregated their work force or that they caused a substantially higher turnover of their black employees when compared to white employees. On the other hand, the defendants have produced evidence that their work force was integrated and that turnover rates of blacks and whites were comparable. The plaintiff has failed to come forward with factual evidence showing that the statistical evidence presented by the defendants in opposition to his charges of disparate treatment of blacks as a whole is inaccurate or lacks credibility. In the absence of such evidence, the plaintiff's generalized observations and opinions are insufficient to sustain his burden with respect to his charges of class segregation and disparate treatment.
In the second part of Count III, Mr. Beckwith alleges that he personally was subject to racial discrimination when denied a promised promotion. The elements of this claim are the same under 42 U.S.C. § 1981 and under §§ 1-2511 and 2512 of the DCHRA, Thompson v. I.A.M., 614 F. Supp. 1002, 1011 (D.D.C. 1985); and consist of the following:
First, the employee must make a prima facie showing of discrimination by a preponderance of the evidence. Once that has been done, a rebuttable presumption arises that the employer's conduct amounted to unlawful discrimination. The burden then shifts to the employer to rebut this presumption by articulating some legitimate, nondiscriminatory reason for the employment action at issue. Finally, if the employer has articulated some legitimate, non-discriminatory reason for the disputed conduct, the burden shifts back to the employee to prove, again by a preponderance of the evidence, that the employer's stated justification for its action was not its true reason but was in fact merely a pretext to disguise a discriminatory practice.