Before Terry and Farrell, Associate Judges, and Abrecht, Associate
Judge, Superior Court of the District of Columbia. *fn1
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia
Hon. Frederick H. Weisberg, Trial Judge
Appellant Leon Hollins sued his former employer, Federal National Mortgage Association ("FNMA" or "Fannie Mae"), for discrimination and retaliation under the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 et seq. (1996) ("DCHRA"). *fn2 In his complaint Mr. Hollins also included claims for breach of contract, wrongful discharge, and intentional infliction of emotional distress. Before discovery was complete, but after Hollins had an opportunity to substantiate his claims, the trial court granted Fannie Mae's motion for summary judgment. On appeal Mr. Hollins presents three assignments of error. First, he maintains that there was sufficient evidence of discrimination, without additional discovery, to require denial of the motion for summary judgment. Second, he contends that the court should have granted his request for broader discovery to prove his claims. Third, he argues that Fannie Mae's reliance on the report of an outside investigator amounted to an "advice of counsel" defense and that he should have been permitted some discovery to test that defense. We reject all of these arguments and affirm the judgment.
Fannie Mae hired Mr. Hollins in July 1992 to be the Vice President of its Human Resources Division. His duties included sharing responsibility for the enforcement of Fannie Mae's policy prohibiting sexual harassment, retaliation, and other forms of discrimination. According to Mr. Hollins, Fannie Mae hired him to improve company relations with its black employees, some of whom, before Hollins' arrival, had signed a petition complaining about the treatment they had received in the workplace. After assuming his post as Vice President, Mr. Hollins issued reports highlighting Fannie Mae's poor record of hiring minorities for senior positions. Hollins alleged that his activities advocating for minority employees often brought him into conflict with Fannie Mae's senior management, including Lawrence Small, Fannie Mae's president, and Douglas Bibby, the Senior Vice President for Administration and Hollins' immediate supervisor.
In January 1995 Fannie Mae received a complaint from Mr. Hollins' executive assistant, Gabrielle Barry, alleging that Hollins had sexually harassed her. Fannie Mae hired the law firm of Robins, Kaplan, Miller and Ciresi ("RKM&C") to conduct an investigation, which was headed by RKM&C partner Sharon Cummings. The investigation concluded that Mr. Hollins had violated Fannie Mae's policy on sexual harassment and recommended that he receive a written reprimand with a warning that future misconduct would result in severe discipline, including termination. On May 3, 1995, Fannie Mae issued a written reprimand to Mr. Hollins consistent with RKM&C's recommendation. The reprimand, which was signed by Mr. Small, set forth the investigation's conclusion that Mr. Hollins had violated Fannie Mae's sexual harassment policy. It also informed him that any future "inappropriate workplace conduct" would result in severe discipline, including termination. Mr. Hollins countersigned the reprimand, acknowledging that he understood and accepted its terms. He also wrote a memorandum to Mr. Small stating that, although Fannie Mae had "arrived at a fair set of conclusions based on the investigator's report," he believed that "both the investigation and the report [were] seriously flawed."
About a month and a half later, three employees complained separately to Mr. Bibby and another officer that Mr. Hollins was retaliating against them for participating in the earlier investigation. Fannie Mae again hired Ms. Cummings and RKM&C to investigate the charges and put Mr. Hollins on administrative leave while the investigation was going on. The investigation concluded that Mr. Hollins had retaliated against the three employees, in violation of company policy, and recommended that Fannie Mae terminate Mr. Hollins' employment. On August 11, 1995, in a letter written and signed by Douglas Bibby, Fannie Mae fired Mr. Hollins.
Hollins filed this suit against Fannie Mae in January of 1996, alleging discrimination based on race. In his complaint he included claims for wrongful discharge, breach of contract, and intentional infliction of emotional distress. Fannie Mae filed its answer and asserted counterclaims for breach of contract, breach of fiduciary duty, conversion, and trespass to chattels, based on Mr. Hollins' failure to respond to requests that he return all Fannie Mae documents and property under his control. *fn3 A few weeks later Fannie Mae filed a motion for summary judgment, to which it attached the two investigative reports and affidavits stating why Mr. Hollins had been fired. In his opposition to the motion, Mr. Hollins acknowledged that Fannie Mae had articulated a legitimate, non-discriminatory reason for his termination, and that he now had the burden to prove that Fannie Mae's justification was only a pretext.
Mr. Hollins, who is black, sought to prove pretext by showing that similarly situated white employees were less severely punished than he was, or not punished at all. He also claimed that the manner of Fannie Mae's investigation of the charges against him, i.e., the use of an outside investigator, proved discrimination because it was different from the manner in which it had investigated similarly situated white employees. To the extent that evidence already in the record did not support his claims, Mr. Hollins requested additional discovery under Super. Ct. Civ. R. 56 (f).
Following a hearing, the trial court entered an order directing Fannie Mae to produce relevant documents concerning three categories of its employees:
(1) . . . any officer accused of or charged with sexual harassment or a violation of FNMA policy regarding sexual misconduct .
(2) . . . any officer found to have violated any FNMA policy or engaged in any other misconduct which resulted in a written reprimand or other formal discipline, who was thereafter found to have violated any FNMA policy or engaged in any other misconduct . . . [and]
(3) . . . any other officer accused of having violated FNMA policy or engaged in any other misconduct in response to which FNMA engaged outside counsel or an outside investigator to investigate the alleged violation of company policy or other alleged misconduct. . . . [Emphasis in original.] *fn4
Shortly thereafter, Mr. Hollins filed another motion seeking much broader discovery before the court ruled on FNMA's motion for summary judgment, including "the broadest scope of discovery" permitted under the civil rules and "the complete panoply of discovery requested." The court denied this motion.
Fannie Mae then filed its response (with documentary support) to the court's discovery order, providing information in each of the three categories designated by the trial judge. In the first category, Fannie Mae showed that five officers, all male, had been accused of sexual harassment or sexual misconduct. Of those, three (two white and one black) were not investigated, either because the charges, even if true, did not violate FNMA policy *fn5 or (in the case involving the black man) because the complaining party had requested that the allegations not be investigated. The investigation of one of the two remaining officers, a white man, concluded that the allegations were unfounded. The fifth officer, also white, was found to have engaged in consensual sexual misconduct and received a written reprimand; his compensation was also reduced. In the second category, it was established that only one officer, a black man, was found to have violated FNMA policy after having been formally reprimanded for an earlier violation of company policy. That officer received a written reprimand; his compensation was also reduced, and he was transferred to another department "subject to certain conditions." Finally, in the third category, the discovery revealed that Fannie Mae had previously hired outside investigators three times to investigate charges of FNMA policy violations. ...