Petition for Review of a Decision of the Compensation Review Board, District of Columbia Department of Employment Services (CRB 05-24).
The opinion of the court was delivered by: Pryor, Senior Judge
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR, Senior Judge.
This petition comes before us upon the reversal of the decision of the District of Columbia's Office of Hearings and Adjudication granting petitioner Daniel Wright ("Wright") disability benefits based upon a finding that Wright had sustained an accidental injury, in the nature of a psychological injury, under the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 32-1501 et seq. (2001) ("the Act"). Wright argues that the Compensation Review Board ("Review Board") erroneously applied our decision in Estate of Underwood v. National Credit Union Admin., 665 A.2d 621 (D.C. 1995), in determining that his claim of injury is not compensable under the Act. In comparing the circumstances of sexual harassment as a basis for an injury claim in Underwood to the instant claim of injury, premised upon a racial epithet which occurred at work, the Board denied Wright's claim because he has not suffered an "injury" within the meaning of the Act. We affirm.
Intervenor Potomac Electric Power Company ("Pepco") is a public utility company providing electrical services in the Washington Metropolitan Area. Petitioner Wright, an African American male, worked in the Cable Splicer occupational group at the Pepco facility on Benning Road in Southeast Washington. His employment required him to perform in proximity to high voltage electrical cable lines. Wright has been promoted four times since he was hired by Pepco in 1986, eventually becoming a First Class Cable Splicer.
On January 3, 2002, Wright returned to Pepco's base headquarters at the end of his shift to await a new assignment. He listened to his African American supervisor, Mr. Tony Duncan ("Duncan"), talking on the phone to a work crew in the field about completing work on an assignment. The conversation was in part about the authorization of overtime work for the crew to complete the job, which Duncan was reluctant to do. As he heard parts of the conversation, Wright made the comment to Duncan that "Aw, man, you don't look out for us." Duncan responded to him by saying, "You're m_____-f_____' right I don't look out for y'all. Ya'll look out for ya'll self; I look out for myself." Wright then stated, "whoa, Tony do we gotta be going like that"? Duncan said, "Man, shut up, you fake a__ n_____." This exchange was witnessed by three co-workers in the immediate area, and several more in the general vicinity. Within a few weeks of the verbal incident, Wright began to experience a change in his demeanor, and to exhibit symptoms of fatigue, decreased appetite, concentration, chest pains, and shortness of breath. On March 13, 2002, Wright sought care and treatment from Dr. Jan Fiske, a psychologist, who opined that Wright was suffering from depression and anxiety resulting from the January 3, 2002 incident.
On March 18, 2002, Wright complained to Pepco's Equal Employment Opportunity office that his supervisor had insulted him with a racial epithet. Pepco investigated the complaint and ultimately disciplined the supervisor. Wright claims that he was so humiliated and emotionally distressed as a result of his supervisor's harassment that he voluntarily resigned from Pepco on August 2, 2002.*fn1 On December 2, 2002, he filed a charge of discrimination with the United States Equal Employment Opportunity Commission.
Wright, along with other present and former African American employees of Pepco, brought suit against their employer in the United States District Court for the District of Columbia, alleging, inter alia, that Pepco discriminated against them on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the District of Columbia Human Rights Act, D.C. Code § 2-1401 et seq. ("DCHRA"), and 42 U.S.C. § 1981 ("Section 1981"). Wright cited the racial epithet with which his supervisor insulted him as the basis of his allegation of racial discrimination. On August 25, 2004, the presiding judge granted Pepco's motion for summary judgment, finding that no named claimant had made a prima facie case of discrimination by a preponderance of the evidence. With regard to Wright, the judge reasoned that "[i]t has long been recognized that an isolated use of a racial epithet, though repugnant, is not actionable under Title VII" (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) ("mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to sufficiently significant degree to violate Title VII" (citation omitted))). The judge also noted Pepco's appropriate steps to answer the alleged conduct of Wright's supervisor through a disciplinary action.
Wright later made a claim for workers' compensation benefits to the District of Columbia's Office of Hearings and Adjudication, pursuant to the provisions of the District of Columbia Workers' Compensation Act of 1979. After an evidentiary hearing, the administrative law judge concluded on November 15, 2004, that Wright had suffered an accidental, emotional psychological work injury on January 3, 2002, which arose out of and in the course of his employment at Pepco and caused his temporary and total disability. On appeal, the Compensation Review Board concluded there was no jurisdiction for Wright's claim under the Act, and vacated the award. This petition followed.