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Ottenberg's Bakers, Inc. v. Dist. of Columbia Commission on Human Rights

March 8, 2007


Petition for Review of a Decision of the District of Columbia Commission on Human Rights. (P-326-95).

Per curiam.

Argued March 5, 2002

Before WASHINGTON, Chief Judge,*fn2 and WAGNER and STEADMAN, Senior Judges.*fn3

Petitioner, Ottenberg's Bakers, Inc. (the employer or company), petitions for review of a decision of the District of Columbia Human Rights Commission (DHR or Commission) awarding intervenor, Laverne Robinson, a former employee, damages and other relief it found to have been caused by the wrongful termination of his employment. The employer argues that the Commission's order is not supported by substantial evidence or in accordance with law, specifically with respect to its finding of pretext.*fn4 It also contends that Robinson is not entitled to relief because he unreasonably refused a prompt and unconditional offer of the position he was denied initially. Finally, the employer challenges various elements of the damages awarded as illegal, beyond the Commission's jurisdiction, unconstitutional, or beyond the period of limitations. We sustain the Commission's finding on liability, vacate the award of damages for the reasons specified herein and remand to the Commission for a determination of damages consistent with this opinion.


A. Factual Summary

The facts underlying Robinson's claims as found by the Commission are as follows. The employer hired Robinson as a "swing man" in February 1991, with the intention of making him a Regional Manager when the position became available. Robinson began working as Regional Manager in July 1991, and his pay increased from $21,320 to $40,000 per annum. In July 1992, Robinson and Jim Sonne, another Regional Manager, were promoted to Division Sales Managers under the supervision of Wolfgang Kulp.*fn5 In 1993, Robinson received a pay increase from $42,000 to $43,260 per year, and Sonne received a pay increase and a $750 bonus.*fn6 In a company reorganization in May 1994, both Robinson and Sonne were promoted to Sales Managers, again under the supervision of Kulp.*fn7 That same year, Robinson received an overall evaluation of having exceeded standards of expectations. During a sales meeting on February 23, 1995, Kulp commended Robinson and Sonne for their work and said that he would try to secure bonuses for them. Sonne inquired about a reorganization chart that was in the meeting room which showed Regional Manager Positions, but no Sales Manager positions. Although generally aware that there would be a reorganization, Kulp had no actual knowledge of the details, and he did not tell Robinson and Sonne that their Sales Manager positions would be eliminated. Sonne mentioned that he could not travel, and therefore would not really want a position as Sales Manager, but that he would take a Regional Manager position. Robinson made a statement to the effect that he would not be interested in the Regional Manager position if it was like it was when he was a Regional Manager; however, he did not say that he would refuse the position if offered. Kulp later told Mary Jollett, Vice President of Marketing, and Bill Walker, the Director of Human Resources, about Robinson's statement concerning his reservation about the position. After the meeting, Sonne told Robinson that Jollett had told him a week earlier that the Sales Manager positions would be eliminated.

The employer's initial plan was to offer Regional Manager positions to both Robinson and Sonne. Jollett, who presented the proposed reorganization plan, told Lee Ottenberg, one of the company's owners, that the sales positions held by Robinson and Sonne would be eliminated and replaced by Regional Manager positions. The Commission found that Jollett told Lee Ottenberg that Robinson had told Kulp "very strongly that he was not interested in working as a Regional Manager," and she recommended that Sonne be offered the position and that Robinson be terminated.*fn8 The decision on who would fill the new positions was reached by consensus among Lee Ottenberg, Kulp and Jollett. Lee Ottenberg made the final decision to terminate Robinson without further inquiry concerning Robinson's interest in the position.

In a meeting on March 15, 1995, Bill Walker, the Director of Human Resources, informed Robinson that the Sales Manager positions were being eliminated, that two Regional Manager Positions were being created, that he was not being offered one of them, and that his employment would be terminated immediately. Jollett, who was at the meeting, explained to Robinson that he was not being offered the new position because it was known that he was not interested in it and that she knew that he would hate the job.*fn9 Robinson was also told that Walker and Jollett had decided that Sonne would be a better fit for the position. Jollett offered to assist Robinson to secure other employment, but he declined the offer. It is undisputed that Robinson was qualified for the Regional Manager position. Robinson concluded that he had been treated unfairly because of his race (African-American), told Jollett and Walker that he had been discriminated against, and left the meeting. At the suggestion of George Diggs, another employee, Robinson asked Walker and Jollett for a termination letter, and Walker told him that a letter would be mailed.*fn10 The Commission found that Robinson was no longer an employee of Ottenberg's as of that time.

A few minutes after Robinson left the meeting, Jollett thought that they had made a mistake, and she and Walker met with Lee Ottenberg to inform him. Jollett suggested, and Walker agreed, that the company should offer Robinson a position as Regional Manager. Lee Ottenberg called Ray Ottenberg, the other owner of the business, and informed him about what had happened. The next day, Walker sent Robinson a letter apologizing for the manner in which the situation was handled and explaining that the decision not to offer him the position was based partly on their perception of his attitude toward the job. The letter then states that since that perception was in error, the company wanted to remedy the situation and that "Ottenberg's hereby offers you the position of Regional Sales Manager to become effective immediately upon your acceptance." Robinson did not learn of the employer's offer until the next week when he returned from New York and returned a call to Lee Ottenberg, who requested a meeting and told him that a letter had been sent offering him the Regional Manager position. A copy of the letter was faxed to him, and a meeting was scheduled.*fn11

Robinson met with Lee Ottenberg on March 22, 1995, and Walker joined them during the latter part of the meeting. Lee Ottenberg told Robinson that he understood how he could conclude that discrimination had occurred and that he thought that Robinson's termination had not been handled well.*fn12 Robinson expressed frustration at the way his termination had been handled. He also stated his belief that if he accepted the position, he would have to be alert constantly for acts of reprisal. Lee Ottenberg tried to alleviate this concern by telling Robinson that the grievance process would be available if he accepted the job offer. Neither Ottenberg nor Walker questioned Robinson about his concerns or offered any additional suggestions for alleviating them. Robinson declined the job offer and requested a severance package, and he sent a written letter to that effect to Walker dated March 24, 1995.*fn13 The Commission found that if the reorganization had been explained to Robinson when it was explained to Sonne, Robinson would have accepted the Regional Manager's position.

B. Procedural Background

Robinson filed a discrimination complaint with the Department of Human Rights and Minority Business Development (now known as the Office of Human Rights) alleging that the employer discriminated against him because of his race, African-American. After an investigation, DHR found probable cause to credit the allegations and issued a Letter of Determination (LOD) to that effect. Ottenberg's filed a motion to remand the case to DHR, contending that the LOD contained factual errors. After attempts at conciliation failed, DHR certified the case to the Commission for a public hearing.*fn14

Following an evidentiary hearing, Chief Hearing Examiner Cornelious Alexander, Jr. issued a Proposed Decision and Order, finding that Ottenberg's "violated the Human Rights Act by discriminating against [Robinson] in the terms and conditions of his employment because of his race." Ottenberg's filed ninety-five (95) exceptions, and Robinson filed responses. The Commission issued a Final Decision and Order with ...

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