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CARPENTER v. FANNIE MAE

December 19, 1996

JOANN CARPENTER, Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.



The opinion of the court was delivered by: RICHEY

 On October 17, 1996, the plaintiff, JoAnn Carpenter, filed a complaint alleging sex discrimination and retaliation by her employer pursuant to various sections of the District of Columbia Human Rights Act. The defendant, Federal National Mortgage Association ("FNMA"), has moved to dismiss the plaintiff's discrimination claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, the defendant's motion shall be denied.

 Ms. Carpenter is one of eight people in the General Counsel's Office at FNMA who hold the position of Vice President and Deputy General Counsel. She alleges that FNMA unlawfully discriminated against her when a male Vice President and Deputy General Counsel, Joseph Biegel, was given a "new supervisory position as part of reorganization of the Office of General Counsel." Complaint at P 12. Specifically, she claims that on July 29, 1996, FNMA vested Mr. Biegel with responsibilities, power and influence in the General Counsel's office equivalent to that held by a higher-ranked Senior Vice President, despite the fact that Mr. Biegel's formal job title remained that of a Vice President and Deputy General Counsel like the plaintiff's. Id. at PP 12 and 14. As a consequence, the plaintiff alleges, Mr. Biegel effectively now holds a position in the corporate hierarchy higher than the position she holds, has increased supervisory responsibility in the General Counsel's office, and performs some tasks that traditionally have been preserved for Senior Vice Presidents. See First Affidavit of JoAnn Carpenter at PP 7-10. By virtue of his new responsibilities, Mr. Biegel purportedly has increased access to the Executive Vice President, access which allegedly places him in a "favored position for increased compensation and further advancement." Id. at 12.

 Ms. Carpenter claims that she was more qualified than Mr. Biegel to receive this additional responsibility and influence with FNMA because (1) she had trained and supervised Mr. Biegel for a seven-year period; (2) she had been promoted to the position of Vice President and Deputy General Counsel five years before Mr. Biegel received his promotion to that position; (3) she held the same job title as Mr. Biegel; and (4) she has had four more years of service with FNMA than Mr. Biegel. Id. at 12, 23. She further claims that her sex was a substantial factor in FNMA's "decision to reorganize the Office of General Counsel in a manner that discriminated against [her] in the terms and conditions of employment." Id. at 25.

 The defendant argues that the plaintiff has pled her claim solely as a promotion denial. It further argues that an essential element of any failure to promote claim is that someone actually be promoted, and that because FNMA never promoted anyone to Senior Vice President -- Mr. Biegel does not hold the title of Senior Vice President -- the plaintiff cannot even make out a prima facie case of discrimination. The defendant is mistaken.

 While it is true that the complaint intermittently invokes the word "promotion," the crux of the plaintiff's allegations is that she was denied certain privileges of employment, namely certain job responsibilities associated with a Senior Vice President, because of her sex. Therefore, it is not appropriate to "pigeonhole" the complaint into the failure to promote rubric, when it is apparent from all of the allegations that the plaintiff has alleged a claim of disparate treatment in the terms, conditions or privileges of her employment. See D.C. CODE ANN. § 1-2512(a)(1) (1992) (making it unlawful for an employer "to discriminate against any individual, with respect to his . . . terms, conditions or privileges of employment . . .").

 To the Court's surprise, the defendant further argues that D.C. Human Rights Act "does not reach an employer's allocation of responsibilities among employees of equal rank." If this is so, the defendant has managed to eviscerate a substantial body of employment discrimination law recognized by the United States Supreme Court. *fn1" See Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 210, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (holding that a battery manufacturers' policy of prohibiting fertile female workers, but not fertile male workers, from performing tasks in which they would be exposed to lead violated Title VII); accord Johnson v. Sheahan, 69 F.3d 144, 146 (7th Cir. 1995) (noting that Title VII would preclude a prison from prohibiting female prison guards -- but not male prison guards -- from monitoring male prisoners in various states of undress), cert. denied sub nom, Johnson v. Sheahan, U.S. , 136 L. Ed. 2d 397, 1996 U.S. LEXIS 7161, 117 S. Ct. 506 (U.S. 1996); Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (ADEA case; holding that the plaintiff had suffered an adverse employment action for purposes of his prima facie case when the employer filled a position with a younger employee through a lateral transfer, despite the fact that this employment action involved no change in pay or grade for either the plaintiff or the younger employee). *fn2" The D.C. Human rights Act does "reach an employer's allocation of responsibilities among employees of equal rank" if the employer's allocation is based on sex.

 Where, as here, the plaintiff has alleged that FNMA assigned significant job responsibilities to Mr. Biegel because of her sex, responsibilities which purportedly place him in a better position for increased compensation and further advancement in FNMA, she has alleged a materially adverse employment action against her, and, therefore has stated a claim for disparate treatment under the D.C. Human Rights Act. See, e.g., Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 885 (7th Cir. 1989) (holding that in order to prove an age discrimination claim, "a plaintiff must prove that she suffered a materially adverse change in the terms or conditions of her employment because of her employer's discriminatory conduct"). *fn3" Whether the plaintiff in fact will be able to marshal admissible evidence in support of these allegations is not for the Court to resolve at this juncture.

 December 19, 1997

 CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 ORDER

 For the reasons set forth in the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 19th day of December, 1996

 ORDERED that the defendant's motion to dismiss the plaintiff's claim for sex discrimination shall be and ...


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