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LONG v. DISTRICT OF COLUMBIA

June 2, 1998

LISA LONG, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: GREEN

MEMORANDUM

 Before the Court are opposing motions for summary judgment. For the reasons that follow, the Court grants the Defendant District of Columbia's Motion for Summary Judgment, and denies the Plaintiff's same styled motion.

 BACKGROUND

 This is a cause of action for money damages based upon a claim by the Plaintiff, Lisa Long, that the District of Columbia Office of Human Rights ("DCHR") failed properly to investigate and adjudicate her claim of sexual harassment and employment discrimination. Plaintiff states that the DCHR, during its preliminary investigation, improperly made credibility findings without an evidentiary hearing in deciding not to pursue her claim. Ms. Long alleges Constitutional Due Process violations stating that she was improperly deprived of a property interest, that is, proper adjudication of her claim for employment discrimination. *fn1" In so arguing, Ms. Long seeks a ruling that the DCHR's statutory grievance procedures, as they are written, are unconstitutional. Following are those material facts the Court finds to be undisputed.

 On April 4, 1995, Ms. Long filed a complaint with the DCHR alleging that she had been sexually harassed by her former employer between November 1993 and December 1994. She alleged that the employer had made comments about her underwear, asked her for a back massage, offered to buy her lingerie if he could see her in it, called her after hours to ask her to dinner and touched her inappropriately. Ms. Long alleged constructive discharge stating that she had resigned because the employer created a hostile work environment after she had rejected him. The employer denied these allegations and claimed that Ms. Long was a marginal employee.

 The DCHR investigated the charge of discrimination by obtaining the employer's responses to interrogatories and requests for production of documents, and by reviewing sworn affidavits from Ms. Long and the employer. Witnesses were also interviewed. Although given the opportunity, Ms. Long failed to rebut the employer's version of events. Ultimately, the DCHR concluded that there was no probable cause to believe that Ms. Long had been sexually harassed by the employer and issued a letter explaining their decision. Ms. Long did not avail herself of the appellate process in place to challenge the DCHR's determination.

 DISCUSSION

 A motion for summary judgment is made pursuant to Fed. R. Civ. P. 56(c), which provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In deciding a motion for summary judgment, the material before the Court "must be viewed in the light most favorable to the [nonmoving] party." Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 Statutory Scheme and Due Process

 In viewing a claim of a constitutional due process violation, courts must first determine whether there is a protected property interest at stake. Property interests are generally defined by "existing rules or understandings that stem from an independent source such as state law." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 537, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (internal citations omitted). Here, the Plaintiff points to the procedures put in place by the District of Columbia to address claims of employment discrimination as creating a property interest. The Defendant does not dispute this and the Court agrees that the Plaintiff has a property interest in having her grievance heard and redressed. See Logan v. Zimmerman, 455 U.S. 422, 431, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950).

 The Court next turns to whether the process Plaintiff received was the process she was due. See Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Here, of course, the two sides do not agree. The Plaintiff alleges that the statutory scheme used by the DCHR is flawed because it allows a determination to be made on credibility findings without a hearing.

 The statutory scheme at issue is Chapter 7 of Title IV of the District of Columbia Municipal Regulations, which governs private sector complaints filed with the DCHR. Under these regulations, an individual has one year following an incident of sexual harassment to file a complaint with the DCHR. See 4 DCMR § 702.1 (a-c). Once filed, an investigation is conducted utilizing such investigatory methods as field visits, conferences and written inquiries. 4 DCMR 710.1 and 710.2. A report and recommendation is prepared and the DCHR Director must then decide whether there is probable cause or substantial evidence to credit the complaint. If the Director determines that there is no probable cause, a letter issues dismissing the complaint. D.C. Code § 1-2545; 4 DCMR § 718.1.

 If the complaint is dismissed (as it was here), the complainant may apply for reconsideration of the Director's decision. 4 DCMR § 718.2. The basis for reconsideration is "new evidence, misapplication of laws, or misstatement of material facts." 4 DCMR, § 719.1. If the Director's decision is affirmed, the complainant's only recourse is to bring the action in the District of Columbia Superior Court. Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 397 (D.C. 1991).

 This procedural scheme appears designed to give a complainant every opportunity to present her case and to have adverse rulings reviewed. In fact, the procedural safeguards here appear to be substantially similar to New York's, which the Supreme Court has found to be constitutionally adequate. Kremer v. Chemical Construction Corporation, 456 U.S. 461, 483, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982)(due process met where complainant has had a full opportunity to present claim and administrative as well as ...


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