Before Steadman and Washington, Associate Judges, and Ferren,
The opinion of the court was delivered by: Ferren, Senior Judge
Appeals from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)
(Argued November 3, 1999 Decided April 13, 2000)
The questions presented in this employment discrimination case are: (1) whether the trial court erred in granting summary judgment to appellees MCI Communications Corporation, Jonelle Birney, and Terri Sallay on appellant's claims for discrimination based on race and personal appearance, in violation of the District of Columbia Human Rights Act (DCHRA), D.C. Code §§ 1-2501 to 1-2557 (1999 Repl.), and for wrongful discharge, interference with prospective advantage, and intentional infliction of emotional distress; and (2) whether the trial court erred in dismissing a second action, against MCI and another defendant, Bonnie Handy, filed by appellant while the summary judgment motion was pending in the first case. We affirm both trial court orders.
The following facts, unless otherwise indicated, are undisputed. In 1986, MCI hired appellant Wandra McManus, an African-American woman, as a secretary. In May 1995, she became administrative assistant to appellee Jonelle Birney, a white woman, for several months after Birney had been named Vice President of the Public Relations (PR) Department. When Birney hired a permanent secretary, appellant was reassigned to the PR Department's Public Policy unit, managed at the time by Robert Stewart, a white male.
In June 1996, Birney approved appellant's request for a transfer to the newly created Business Operations Group as a budget coordinator, assigned to provide support to the PR Department. The PR Department continued to fund her position. In November 1996, appellee Bonnie Handy, Senior Manager of the Business Operations Group and a white woman, hired appellee Terri Sallay, an African-American woman, as Manager of Financial Operations. Sallay was assigned to provide financial and personnel support to the PR Department, and appellant was assigned to report to Sallay until appellant's employment was terminated in 1997. Another African-American woman hired at that time, Roslyn Blake, was assigned (among other duties) to provide support to other, smaller departments, similar to the support Sallay was giving the PR Department. Both Sallay and Blake had accounting degrees.
During the period that appellant had been a budget coordinator, her former supervisor, Birney, had used her as a backup secretary in the PR Department during the frequent absences of Birney's secretary, Ruth Modlin. Appellant complained about this to Sallay, who conveyed the complaint to Birney. According to appellant, her situation improved somewhat after that, although she continued to be pulled away from her work "every once in a while."
As evidence of discriminatory animus, appellant also cites an occasion on which an employee of Birney asked appellant, through another employee, to "fetch" some cookies for a meeting. Additionally, in October 1995 - twenty months before the decision to terminate appellant's employment - while appellant was working in the PR Department's Public Policy unit, her manager, Stewart, replaced his African-American secretary with a white woman and moved his new secretary from a desk "behind the filing cabinets" to appellant's desk outside Stewart's office, after moving appellant to a desk behind the cabinets.
Appellant often came to work in African-styled attire and wore her hair with dreadlocks, braids, twists, and cornrows. She based her claim of personal appearance discrimination on comments - at unspecified times - by Stewart, Birney, and Frank Walter, a manager with no authority over her. More specifically, Stewart remarked about appellant's appearance: "That is a pretty outfit. Oh, my, your earrings are interesting. Oh, you have a new hair style, I like your hair." Birney told appellant at least once that she liked appellant's clothing and hair: "I like the way you wear your hair up, because it makes your facial features look better." "Oh, what kind of hair style is this, how did they do this?" "You look like an African princess." Walter told appellant that her African styled dress would make nice pillows for a room in his house with African artifacts and pictures; and on another occasion he noted that she was starting a "trend" around the office of African-American women wearing their hair in African styles.
In June 1997, Handy and Sallay decided to eliminate appellant's position and replace it with a higher level job because, they said, Sallay had become overburdened; she was unable to delegate some of the more complex finance tasks to appellant. Handy and Sallay discussed the proposed termination with Maryann Adams and Eileen O'Brien of the Human Resources Department, and also met with Jonelle Birney to let her know of their intended action. On August 15, 1997, Handy and Sallay met with appellant to notify her that her employment was to be terminated. Appellant testified at her deposition that Sallay had told her that her job was being eliminated because the department was being realigned. They told her, she further testified, that she was eligible for rehire, that she could use the company's electronic bulletin board to search for other opportunities, and that she could contact Adams and O'Brien if she had questions or needed assistance in looking for another position. Later that evening, Sallay called appellant at home. Appellant says, and Sallay disputes, that in the course of that telephone conversation Sallay told her that Birney had been responsible for her termination.
At about the time of appellant's job termination, Birney's secretary, Modlin, a white woman, also was let go, and another white woman, Lugene Nigh, was dismissed from the Public Policy Group and offered a lower level position in the same group. *fn1
In August 1997, within a week after appellant's dismissal, MCI advertised a vacancy for a "Budget Coordinator / Staff Admin IV"; appellant's most recent position had been "Budget Coordinator / Staff Admin III." MCI's announcement stated a preference for an accounting or finance degree and included some duties that appellant had not been performing. *fn2 Appellant proffers that she applied for this position, and MCI replies that it has no record of any such application but that appellant would not have been considered for the position because she lacked the necessary qualifications. After appellant filed suit against MCI, the job was re-posted with the added requirement of a bachelor's degree in finance or accounting; appellant did not have a college degree. MCI had not budgeted funding for this position, *fn3 although Sallay said MCI would have found the money if the position had been filled.
In September 1997, the newly created position was offered to Trina Sebron, an African-American woman with a bachelor's degree in finance, who turned it down. In October 1997, MCI hired Crystal Washington, also African-American with a college degree in finance, as a temporary employee to perform the duties associated with the position; when she left after four months MCI hired an Hispanic woman, Regla Perez Pino, as a temporary employee. Perez had been classified as a "Vendor Specialist," a position which does not require a college degree. In January 1998, the Budget Coordinator posting was ...