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DAKA, INC. v. BREINER

April 30, 1998

DAKA, INC., APPELLANT,
V.
JAMES W. BREINER, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, STEPHEN G. MILLIKEN, J. [711 A2d Page 87]

Before Terry, Steadman, and Reid, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge:

[711 A2d Page 88]

Daka, Inc., appeals from a judgment of the Superior Court in favor of James Breiner, a former Daka employee. Alleging age discrimination, Breiner filed suit against Daka under the District of Columbia Human Rights Act, D.C.Code §§ 1-2501 et seq. (1993) ("DCHRA"). After a five-day trial, the jury found that Breiner had not established a prima facie case of wrongful termination, but it returned a verdict in his favor on his age-related hostile environment claim, awarding him $10,000 in compensatory damages and $390,000 in punitive damages. Daka then filed a motion for judgment notwithstanding the verdict or, in the alternative, for remittitur. The trial court denied the motion, and Daka noted this appeal. *fn1 Before us Daka argues that the evidence was insufficient to support Breiner's hostile environment claim, that punitive damages should not have been awarded either as a matter of law or as a matter of fact, and that even if punitive damages were allowable, the court abused its discretion by denying the request for a remittitur. We are not persuaded by any of these arguments, and accordingly we affirm the judgment.

I. FACTUAL BACKGROUND

At all times pertinent to this case, Daka was a contract food service provider *fn2 for the Smithsonian Institution at its Museum of Natural History ("MNH"), Museum of American History ("MAH"), and National Portrait Gallery ("NPG"). In July 1987 Daka hired Louis Sakell to be the general manager of its Smithsonian account. His primary responsibility was to oversee food services for the three buildings and to ensure compliance by Daka with its food service contract. Because this was Daka's biggest account, *fn2 Sakell installed an additional tier of managers, to be known as building directors (one for each building), to supervise the operations in the three museums. In addition to overseeing branch managers, each building director's responsibilities included staffing, sanitation, profitability, the quality of food service, and payroll and cash management.

In April 1990 Sakell hired James Breiner, who was then fifty-four years old, as building director of MNH. *fn3 After the building director of MAH was reassigned to another city, Breiner was transferred, at Sakell's request, to that position in October 1990. Because the food service responsibilities at MAH [711 A2d Page 89]

were greater than those at MNH, Breiner received a raise in salary at that time. Daka fired Breiner little more than a year later, in November 1991, citing a precipitous decline in performance after his transfer to MAH. Thereafter Breiner filed this suit against Daka, seeking damages for age discrimination and intentional infliction of emotional distress.

At trial several former Daka employees testified on behalf of Breiner. Thomas Neff, a branch manager at MNH, was employed by Daka from January 1991 to July 1992. Although Neff worked in MNH and Breiner worked in MAH, two blocks away, the two men had frequent contact with each other from January to November 1991 during Daka's weekly managerial meetings and, on occasion, when Breiner and others would get together in the MNH cafeteria. During these formal and informal meetings, Neff repeatedly heard Sakell make negative, age-related comments about Breiner. *fn4 According to Neff, Sakell described Breiner as "over the hill," referred to him as an "old fogey," and said that he could not "get it up any more." At the regular weekly meetings, Sakell would address Breiner in front of the other managers as the "senior citizen," the "older guy," or the "old fogey." Although Sakell laughed at these remarks, no one else did. Breiner in particular did not laugh; according to Neff, "his face looked like a man who had to endure these insults because he wanted to keep his job." Neff also testified that Sakell, not Breiner, initiated these comments.

Neff's testimony was corroborated by two other branch managers, Jeffrey Gelfand and Alan Eaton. Gelfand, who worked for Daka from April 1991 to April 1992, said that it was not uncommon for Sakell to refer to Breiner as an "old man" or "old fart." Eaton, who was in charge of the MAH staff cafeteria from January 1991 to June 1992, recalled one occasion when Sakell said to him, as Breiner approached, "Get the wheelchair out, here comes the old boy now." According to Eaton, Breiner was also the target of similar comments made by other branch managers.

Breiner testified that his problems with Sakell began as early as the first job interview, when Sakell remarked to Breiner that finding a job at his age "must be tough." About a month later, Sakell began to call Breiner an "old man" and insinuated that Breiner did not have the stamina at his age to walk to the other Smithsonian buildings. At the weekly managerial meetings, Sakell made remarks such as "Let's have an opinion from the old man here," "What's your plan, old-timer?", or "Old man, old man, this gray-haired man to my left, he's as old as my father, you know. . . ." Breiner denied initiating these comments, but admitted that he occasionally participated in them by referring to himself as an "old timer" who was from the "old school."

As time went on, Sakell's insults became more frequent and more caustic. *fn5 Sometimes Sakell would "sort of" laugh when making these remarks, but at other times he would not. Breiner "didn't consider [the comments] to be a joke," nor did he laugh; instead, he "sometimes just stared back at [Sakell] because he had said these things." At least once, Sakell called Breiner an "old fuck," and on another occasion he asked Breiner, "You're not getting senile on me, are you?" Breiner became upset during this latter incident and told Sakell that he did not "appreciate that remark." Sakell's conduct persisted nevertheless. For example, on several occasions Sakell would criticize Breiner's food selection at lunch by saying such things as "Is that what I've got to look forward to when I get to be your age and eat salads just like that?"

Sakell was not the only Daka employee who insulted Breiner with age-related comments. Meg McKenna, a branch manager at [711 A2d Page 90]

MAH subordinate to Breiner, had known him from his days at Marriott and had always referred to him as "Mr. Breiner." However, after a short while at Daka, she began to address him as "old man." Greg Reeves, also a subordinate manager, called Breiner "old man." Once when the two of them were serving a group of young female students in the public cafeteria, Reeves said to Breiner, "What are you looking at those girls for? You can't do anything with them, you can't even get it up any more." Breiner told Reeves that he "ought to cool that kind of talk" and that he was not "supposed to use that kind of language." In response, Reeves turned to another manager named Curry, who was standing nearby, and said, "The old man is criticizing me for talking and calling him an old man. Can you imagine that, Curry?"

Reeves' belligerent attitude toward Breiner continued even in Sakell's presence. On one occasion Reeves, in front of Sakell and a group of customers which included a number of high school students, said aloud, "Hey, Jim, look at that girl there. Can't do nothing with that one, could you?" Breiner rebuked Reeves for using inappropriate language in front of customers, but Reeves turned to Sakell and said, "Lou, would you get this old fart out of my hair?" Breiner asked Sakell to admonish Reeves for his insubordination, but Sakell said, "Oh, you know Greg, he's a pistol. He says that stuff all the time." Breiner responded, "I don't really appreciate that. I don't feel like I'm old. What's he calling me that for?"

Eventually, the persistent insults about his age "started to bother," "irritate," and "really hurt" Breiner. He felt inadequate and wondered whether his job skills had eroded to the point that he was getting too old to do his job properly. He testified:

[I]t hurt me deeply because it had me thinking about myself much more, you know, was I really coming to the end of the road of employment, of working? [The comments] pictured me as being old all the time. . . . It just started to prey on my mind about maybe I'm getting old, and maybe I can't do anything any more.

Breiner's wife testified that, in the weeks before he was fired, her husband became moodier and his eating habits changed. He became obsessed with youthfulness, staying active, and losing weight. He gave up red meat and fattening foods and asked his wife if she thought he was getting old. In addition, he began to suffer from physical ailments, such as a persistent sore throat and prolonged episodes of strained breathing.

Because Daka did not have a formal grievance procedure, Breiner complained directly to Sakell on three separate occasions. He told Sakell that his comments were "against the law" and "illegal" and that he "should know better than that." Despite these complaints, the frequency and severity of the age-related remarks increased to such an extent that Breiner began to record most of them on a piece of paper which he kept in his shirt pocket. *fn6

In defense of its actions, Daka asserted that Breiner was fired because of his poor job performance. During the nineteen months that Breiner worked for Daka, his superiors began to have doubts about his managerial ability. Sakell wrote a memorandum to Breiner, which was introduced in evidence, about his failure to dispose of trash at MAH properly. *fn7 Sakell was also upset that one of Breiner's subordinate managers, Michael Dixon, had been submitting false time records and obtaining paychecks for two "ghost employees" who no longer worked for Daka, and that Breiner had not discovered [711 A2d Page 91]

Dixon's fraud for almost three months. *fn8 Additional concerns were expressed by Sakell and others about Breiner's apparent inability to manage subordinates and to ensure quality food service. *fn8

With respect to the age-related comments directed at Breiner, Daka conceded that such remarks were made, but took the position that it was Breiner who initiated them, and that other employees merely responded in a friendly and joking manner. Mr. Sakell testified that after four or five weeks with Daka, Breiner became more comfortable with his colleagues and began to refer to himself as an "old man" or "old fart." Sakell denied making most of the comments attributed to him by Breiner *fn9 and denied criticizing Breiner's performance on the basis of his age. However, Sakell admitted using such terms as "old fart" and "old timer," but only after Breiner himself had used them in conversation. Any references to Breiner's age were uttered purely in jest and were not inappropriate, in Sakell's opinion, in the context of Daka's informal work environment.

Pamela Leyseth, a branch manager at MNH during Breiner's tenure at Daka, similarly testified that several managers made comments about Breiner's age during company meetings, but that Breiner had initiated them by saying he was from the "old school." Leyseth characterized these comments as made in a "joking" manner and that Breiner had responded "jokingly." Leyseth herself, however, neither joined in them nor laughed at them because she did not think they were funny.

After hearing all the evidence, the jury returned a verdict for Daka on Breiner's claim of wrongful termination. The jury also found, however, that an age-related hostile work environment existed at Daka and found Daka liable for compensatory damages for emotional distress in the amount of $10,000. In addition, the jury awarded $390,000 in punitive damages, based on its finding (recorded on the verdict form) that Louis Sakell and his co-workers had "acted with evil intent or actual malice when they created a hostile work environment." *fn10 [711 A2d Page 92]

II. THE HOSTILE ENVIRONMENT CLAIM

Daka contends first that the trial court erred in denying its motion for judgment n.o.v. on the age-related hostile environment claim because there was insufficient evidence that an abusive atmosphere existed. Specifically, Daka argues that "Breiner was not subjected to unwelcome harassment, that remarks about his age were neither severely nor pervasively abusive, and that these remarks did not alter the conditions of his employment." In our view, this line of argument is based on an overly selective reading of the record. Having reviewed the record as a whole, as we must, we are satisfied that there was sufficient evidence to support the jury's findings.

A. Age-based hostile environment claims under the DCHRA

The DCHRA provides in part:

It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the . . . age . . . of any individual:

(1) By an employer. To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee. . . .

D.C.Code § 1-2512(a)(1) (1997 Supp.). *fn11

Relying significantly on federal cases interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), *fn12 this court in Howard University v. Best, 484 A.2d 958, 981 (D.C. 1984), held that "a plaintiff establishes a prima facie case of sexual harassment [under the DCHRA] upon demonstrating that unwelcome verbal and/or physical advances of a sexual nature were directed at him/her in the workplace, resulting in a hostile or abusive working environment." See also, e.g., Estate of Underwood v. National Credit Union Administration, 665 A.2d 621, 640 (D.C. 1995) (citing Best); Norman v. Gannett Co., 852 F. Supp. 46, 49 (D.D.C. 1994). We conclude that the same test should apply, mutatis mutandis, in any DCHRA case in which a plaintiff alleges unlawful discrimination that takes the form of a hostile or abusive working environment. In other words, applying the Best standard more generically, a plaintiff such as Mr. Breiner has a viable hostile environment claim if he can demonstrate (1) that he is a member of a protected class, (2) that he has ...


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