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Vogel v. District of Columbia Office of Planning

March 13, 2008


Appeal from the Superior Court of the District of Columbia. ( CAP 7473-04) (Hon. James E. Boasberg, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued May 4, 2006

Before FARRELL, GLICKMAN and KRAMER, Associate Judges.

Appellant Mary Vogel is a former community planner with the District of Columbia Office of Planning ("OP"). She was terminated at the end of her probationary employment period. Vogel complained to the District of Columbia Office of Human Rights ("OHR"), which found that OP had retaliated against her for activity protected by the District of Columbia Human Rights Act ("DCHRA"). OHR directed OP to reinstate Vogel with back pay. The Superior Court reversed OHR's determination, finding that Vogel was not entitled to relief because she had not engaged in protected activity. Vogel has appealed. We affirm.


Mary Vogel commenced her employment with the Office of Planning in July of 1999. Vogel, who was fifty years old and had a master's degree in urban and regional planning, was hired as a DS-11 employee, the lowest salary grade level, for a one-year probationary period. Her duties as a community planner included preparing plans, reports, and studies, and reviewing and commenting on proposed zoning revisions.

In August 1999, Andrew Altman became the Director of OP. Altman brought in Maria Wallace as Director of Operations and Ellen McCarthy as a Deputy Director. McCarthy became Vogel's supervisor. Altman also hired a number of other employees, some of them as Special Assistants to the Director, at relatively high grade levels. A majority of the new hires (though not Wallace or McCarthy*fn1 ) were under forty years old and younger but better paid than the staff members who had been at OP before Altman arrived. The latter group of workers, including Vogel, perceived that they were being treated inequitably and disrespectfully by Altman and Wallace. In January 2000, Vogel met privately with Altman to complain about her low pay, Wallace's overbearing management style, and Altman's unavailability to meet with Vogel about her work.

Some five months later, on June 7, 2000, McCarthy recommended that Vogel be terminated.

According to McCarthy, Vogel did not meet the needs of her department because her expertise was in environmental planning rather than zoning. OP accepted McCarthy's recommendation and terminated Vogel's employment at the end of the month. Vogel was offered an opportunity to continue working for OP under a consulting contract, which she declined.

Instead, Vogel complained to OHR that OP had terminated her on account of her age and in retaliation for complaining of age discrimination in her January 2000 meeting with Altman. Vogel alleged that Altman and his second-in-command Wallace "treated the older workers who were there prior to his arrival differently than . . . the younger workers that he had hired." Specifically, the new Special Assistants were paid more than the "older Community Planner employees" even though they "performed essentially the same duties." In particular, Vogel stated, "[t]hese Special Assistants were paid $20,000 to $50,000 a year more than I was paid." Moreover, Vogel asserted, Altman "systematically shunned" the older employees (while being "friendly" and "more available" to the employees he had hired), and Wallace was discourteous and "tyrannical" to the older staff members, like "an army drill sergeant at boot camp," which "created an atmosphere of fear and distrust."*fn2

With respect to her meeting with Altman, Vogel alleged the following:

Because of what they felt was an obvious difference in treatment, many of the older workers believed Mr. Altman was trying to push them out of their positions. At first, I did not believe their perceptions were correct. I believed that Mr. Altman only needed further information and he would change my co-workers' perceptions of himself and Ms. Wallace's treatment of all of us. I believed that because he was out of the office so often that he was unaware of the poor employee morale situation that Ms. Wallace was creating. I was sure that once he knew about it, he would act to change it. In January 1999*fn3 , I met with Mr. Altman and expressed to him my concerns about: 1) Ms. Wallace; 2) unequal pay scales for the same work; and 3) his lack of availability to discuss my cases.

Vogel believed that the reason McCarthy gave for her termination was pretextual, "because I have a broad background and experience in urban planning and community development, and I had performed my duties as a zoning planner very well. . . . I never received any negative comments about my work performance from Ms. McCarthy or Mr. Altman."

OHR duly undertook to investigate Vogel's complaint. It does not appear that the Office's investigators interviewed Altman, Wallace or McCarthy (though apparently they did interview other OP employees). However, OHR served interrogatories and requests for documents on OP. In its answers to that written discovery, OP disputed Vogel's claims and pointed out that it was difficult to tell if her allegation of disparate treatment of employees was based on age or date of hiring. OP explained that Altman's Special Assistants were paid more than Vogel and other community planners because they were doing "vastly different work, requiring long hours, specialized skills and experience, and other characteristics deemed essential by Mr. Altman." While OP acknowledged that Altman had a meeting with Vogel in which she "raised a number of issues," it insisted that Altman "never had a conversation with [Vogel] about salary inequities." OP stated that Vogel ...

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