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Welzel v. Bernstein

July 6, 2006


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Karen M. Welzel has sued RB Associates ("RB"), her former employer; Richard Bernstein, the President and sole owner of RB; James Martens, the Executive Vice President and Chief Financial Officer of RB; and Crawford Sherman, the Vice President of Hotel Operations for RB. Plaintiff, who is white, alleges that she was subjected to a series of retaliatory acts following an incident when she responded critically to what she perceived as racial animus by her superior (James Martens), in violation of 42 U.S.C. § 1981 (Count I), and the District of Columbia Human Rights Act, D.C. Code § 2-1401 et seq. ("DCHRA") (Count IV). Plaintiff also asserts retaliation claims against RB under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") (Count II).*fn1 The matter comes before the Court on the parties' cross motions for summary judgment. For the reasons explained herein, the Court will grant defendants' motion, deny plaintiff's motion, and dismiss this case with prejudice.


RB is a real estate management and development company that manages commercial real estate, hotels, and a restaurant in Washington, D.C. and employees over 650 employees. (Defs.' Statement of Material Facts ["Defs.' Stmt."] ¶ 1.) Richard Bernstein, whose primary residence is in Fort Lauderdale, Florida, is the President and sole owner of RB. (Id. ¶ 7; Bernstein Dep. at 11; 120-21.) James Martens is the Executive Vice President and Chief Financial Officer of RB and is in charge of the day-to-day operations of the company. (Defs.' Stmt. ¶¶ 10, 11; Deposition of James Martens, June 8, 2005 ["Martens Dep. I"] at 54; Bernstein Dep. at 64-65, 87.) Crawford Sherman has served as RB's Vice President of Hotel and Restaurant Operations since mid-2002. Prior to that time he was the General Manager of the Washington Plaza Hotel, which is one of the five hotels operated by RB. (Defs.' Stmt. ¶¶ 12, 13; Sherman Dep., Ex. 1.)

Plaintiff was hired as RB's Director of Human Resources in October 1999. (Defs.' Stmt. ¶ 14; Deposition of Karen M. Welzel, May 19, 2005 ["Welzel Dep. I"] at 54; Welzel Dep., Ex. 5.) In that capacity, she was responsible for the human resource functions of the RB hotels, restaurants, and corporate staff. (Defs.' Stmt. ¶ 15; Pl.'s Statement of Material Facts Not in Dispute ["Pl.'s Stmt."] ¶ 8.) According to plaintiff, her job responsibilities included advising the management of RB regarding applicable employment laws and protecting the company from liability exposure. (See Welzel Dep., Ex. 28 (letter from Karen Welzel to James Martens, dated Sept. 28, 2001); Welzel Dep. I ¶¶ 194-95; Welzel Dep., Ex. 57 (affidavit of Karen M. Welzel, Mar. 7, 2003, attached to EEOC charge of discrimination).) From her first day of employment at RB on November 15, 1999 until December 2000, plaintiff reported directly to Wim Pastoor, the Vice President and Director of Hotel and Restaurant Operations at RB, and indirectly to Martens.

(Defs.' Stmt. ¶ 16; Deposition of Karen M. Welzel, May 23, 2005 ["Welzel Dep. III"] at 15-17; Welzel Dep., Ex. 5.) After Pastoor was terminated by RB in December 2000, plaintiff reported directly to Martens. (Defs.' Stmt. ¶¶ 87, 88; Deposition of James Martens, July 28, 2005 ["Martens Dep. III"] at 364-65.) From June 2002 until her termination on March 10, 2003, plaintiff reported directly to Sherman, who had been elevated to Pastoor's position of Vice President and Director of Hotel and Restaurant Operations during a reorganization of RB's hotel management and operations. (Defs.' Stmt. ¶¶ 124, 125; Welzel Dep., Ex. 45.)

In late 1999 or early 2000, Pastoor proposed that RB create a central reservation office ("CRO") in the basement of the Washington Plaza Hotel. (Declaration of Wim Pastoor, July 15, 2005 [Pastoor Decl. I"] ¶¶ 22, 23.) Plaintiff participated in the creation and implementation of the CRO. (Deposition of Karen M. Welzel, May 20, 2005 ["Welzel Dep. II"] at 32.) The CRO, which was staffed primarily with reservation agents who previously had been working as reservation agents at the five RB hotels, consisted primarily of African-American employees. (Defs.' Stmt. ¶¶ 21, 24.) Some time during the fall of 2000, during a training session for CRO employees, Martens visited the basement area of the Washington Plaza Hotel to observe the CRO space. (Id. ¶ 25.) He discovered that the basement had no windows, no ventilation, and no air conditioning. (Id. ¶ 26.) Shortly thereafter, on November 22, 2000, plaintiff attended a meeting with Martens and Pastoor. While plaintiff and defendants dispute whether Martens' subsequent comment was motivated by his observations of the uncomfortable working conditions at the CRO, he did report that when he visited the area, he "saw two rows of black faces" looking at him. (Defs.' Stmt. ¶¶ 45; 51; Welzel Dep. I at 202, 203.) To this, plaintiff responded: "Jim, be careful how you say that." (Pl.'s Stmt. ¶ 54.)

Although the parties dispute what transpired next, plaintiff contends that immediately after she "challenged his opinion" (Welzel Dep., Ex. 57), Martens stood up, closed the door to the conference room, and began to yell at her for approximately twenty minutes. (See Welzel Dep. III at 102-12.) According to plaintiff, Martens told her that he "should be able to have these conversations behind closed doors at the corporate office." (Id. at 108.) She asserts that Martens said that if RB paid more money for the position of reservation agent, RB would be able to get "a better class of people" and "employees from the state of Virginia" to fill that position. (Id. at 103, 105, 106.). Plaintiff further contends that Martens openly questioned whether RB had "the right person in the HR position" and threateningly told her that "he was not going anywhere." (Id. at 108, 109.) During Martens' "tirade," plaintiff remained basically silent. (See id. at 112 ("I just let him go on for the twenty minutes that he was ranting.").) She did, however, testify that "when I was able to get in a comment in all of his yelling at me, I did point out to him that we don't take the color of a person's skin into consideration when we're making hiring decisions." (Id. at 107.)*fn2 Later that day, after the meeting had ended, plaintiff informed Martens that "I wasn't calling you a racist. I was merely trying to tell you that the statements you were making were dangerous. And I was just trying to caution you." (Welzel Dep. III at 122.)

According to plaintiff, this November 22, 2000 meeting is "at the center of this case," and it is the "mainspring" that has "spawned a stream of additional retaliatory incidents that culminated with her firing" over two years later on March 10, 2003. (Pl.'s Opp'n at 1, 5.) Plaintiff alleges that she was subjected to numerous adverse employment actions in retaliation for her opposition to Martens' comments on November 22, 2000 and for several other protected activities that she allegedly engaged in during her tenure at RB. (See Pl.'s Opp'n at 24-27 (listing alleged protected activities); id. at 28-30 (listing alleged adverse employment actions).) She contends that the series of adverse employment actions began during the November 22, 2000 incident and culminated in her termination on March 10, 2003, which occurred three days after she filed an EEOC charge of discrimination on the basis of sex and retaliation. (First Amended Compl., Ex. 6.)

Following her filing of an EEO complaint on March 7, 2003, and receipt of a right to sue letter on June 11, 2003, plaintiff initiated this suit.*fn3 As the parties appear to agree, claims that arose after June 4, 2002 can be brought under Title VII and the DCHRA, but those that predate June 4 are barred by the statute of limitations and may only be brought under §1981, which has a four-year statute of limitations as applied to plaintiff's claims. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382-83 (2004) (four-year statute of limitations for § 1981 claims created by 1991 Act). (See Pl.'s Opp'n at 35 and Defs.' Reply to Pl.'s Opposition to Defs.' Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion for Partial Summary Judgment ["Defs.' Reply"] at 11 n.12.) Thus, according to the parties, retaliatory actions that occurred prior to May 2002 must be analyzed under § 1981, whereas those that arose after May 2002 should be analyzed under Title VII.*fn4 (Id.) Accordingly, before one can address the merits of the parties' positions, it is necessary to set out the legal standards that will govern the Court's analysis, as well as the controlling law under Title VII and § 1981.*fn5


I. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute as to a material fact -- one that "might affect the outcome of the suit under the governing law" -- is "genuine" if a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A moving party is therefore entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

When considering a motion for summary judgment, the Court must draw every justifiable inference in favor of the nonmoving party and accept that party's evidence as true, while abstaining from credibility determinations and any weighing of the evidence. Anderson, 477 U.S. at 255; see also Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir.1989). The non-movant may not rely on unsupported allegations or denials, but must offer affidavits or other competent evidence setting forth specific facts on which a reasonable jury could find in her favor if summary judgment is to be avoided. Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir.1999). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff'd 1999 WL 825425 (D.C. Cir. 1999) (internal citation omitted).

II. Legal Standard for Retaliation Claims Under Title VII

To establish a prima facie case for retaliation under Title VII, plaintiff must demonstrate that she engaged in statutorily protected activity, that she suffered a materially adverse action, and that a causal connection exists between the two. Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003); McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir.1984); Black v. Tomlinson, 425 F. Supp. 2d 101, 105 (D.D.C. 2006); see also Burlington N. & Santa Fe R.R. Co. v. White, __ U.S. __ , 2006 WL 1698958, at *10 (June 22, 2006) (applying the D.C. Circuit's analysis in Rochon v. Gonzales, 438 F.3d 1211, 1217-18 (D.C. Cir. 2006), to Title VII's anti-retaliation provision to include not only actions affecting terms and conditions of employment, but also employer actions that would have been materially adverse to a reasonable employee). Plaintiff bears the initial burden of proving each element of the prima facie case. See McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) (concluding that the complainant carries the burden of demonstrating a prima facie case of racial discrimination). If she succeeds, the burden shifts to defendants to articulate some legitimate, nondiscriminatory reason for their actions. Their burden is only one of production, and they "need not persuade the court that [they were] actually motivated by the proffered reasons." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) ("[T]he determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment.").

If defendants are successful, then "the McDonnell Douglas framework -- with its presumptions and burdens -- disappear[s], and the sole remaining issue [is] discrimination vel non." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (internal citations and quotation marks omitted). At that point, plaintiff has the burden of persuasion to show that defendants' proffered nondiscriminatory reason was not the true reason for the employment decision. Burdine, 450 U.S. at 256; see also Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) ("[a]lthough the McDonnell Douglas framework shifts intermediate evidentiary burdens between the parties, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff") (internal citations and quotation marks omitted). "At this stage, if [plaintiff] is unable to adduce evidence that could allow a reasonable trier of fact to conclude that [defendants'] proffered reason was a pretext for [retaliation], summary judgment must be entered against [plaintiff]." Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C. Cir. 1997).

III. Availability of Cause of Action for Retaliation Under 42 U.S.C. § 1981

Section 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Prior to the Supreme Court's decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), several courts had held that § 1981 provides a cause of action for employees who were retaliated against for engaging in activity protected by § 1981. See, e.g., Choudhury v. Polytechnic Inst. of N.Y., 735 F.2d 38, 42-43 (2d Cir. 1984); Goff v. Cont'l Oil Co., 678 F.2d 593, 598 (5th Cir. 1982); Sester v. Novack Inv. Co., 638 F.2d 1137, 1146 (8th Cir. 1981); Cox v. Consol. Rail Corp., 557 F. Supp. 1261, 1264-66 (D.D.C. 1983). In Patterson, however, the Supreme Court held that the "make and enforce contracts" language of ยง 1981 encompassed discrimination in contract formation but not contract performance. See 491 U.S. at 179. Applying Patterson, several courts concluded that retaliation ...

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