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Nicola v. Washington Times Corp.

May 15, 2008

TELAHUN NICOLA, APPELLANT,
v.
THE WASHINGTON TIMES CORPORATION, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CA-9953-03) (Hon. Gerald I. Fisher, Trial Judge).

The opinion of the court was delivered by: Ferren, Senior Judge

Argued March 12, 2008

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and FERREN, Senior Judge.

Telahun Nicola (appellant) sued his former employer, News World Communications, Inc.*fn1 (appellee) alleging three violations of the District of Columbia Human Rights Act:*fn2 (1) discrimination on the basis of religion, (2) subjection to a hostile work environment, and (3) retaliation for complaining about perceived discriminatory treatment. The trial court denied News World's motion for summary judgment, but after hearing Nicola's evidence, the court granted News World's motion for a directed verdict on all three claims. It found only a "speculative" connection between "the claim of religious discrimination"and the adverse employment actions taken against Nicola. The court also awarded costs and fees to the employer. On appeal, Nicola argues that the trial court erred in both respects. We affirm the grant of a directed verdict, but reverse and remand with respect to the award of certain costs and fees to News World.

I.

News World hired Nicola in March 1997 as its Engineering and Operations Manager in the Facilities Department. As one of his duties he prepared conference rooms for meetings of the Unification Church held in News World's buildings. Indeed, News World has strong ties to the Unification Church. Dong Moon Joo, President of its subsidiary, The Washington Times Corporation, is a Unification Church member. The Reverend Sun Myung Moon, founder and head of the Unification Church, has an office in one of News World's corporate buildings. And Nicola's immediate supervisor, Richard Oben, the company's Director of Facilities, is also a Church member. Other members of the Unification Church with whom Nicola interacted included James Borer, who served as News World's human resources director, in-house counsel, and corporate secretary, and his wife, Lucille Borer, employed as administrative assistant to Richard Amberg, News World's Vice President and General Manager (who was not a member of the Unification Church).

During his tenure at News World, Nicola was commended for his industriousness and praised for his individual accomplishments. He received an employee of the year award in May 2003, and his performance evaluations were largely favorable. However, following a series of incidents with his supervisors and subordinates, Nicola was fired in October 2003. He contends that he lost his job for two principal reasons: he rejected Lucille Borer's invitation to attend a Unification Church blessing ceremony in New York City, and he impeded efforts to hire and promote another Unification Church member, Kevin Quinn, whom Nicola considered unqualified.*fn3

As to the first incident, Nicola testified at trial that in the summer of 2001, Lucille Borer called him to her office to invite him and his wife to attend the New York blessing ceremony. She told Nicola that she and her husband would accompany them and stand by their sides during the blessing. Nicola understood this ceremony to be a mass marriage presided over by the head of the Unification Church, and he believed that his attendance would have made him a member of the Church. Nicola replied that he would discuss the invitation with his wife. Lucille Borer followed up the invitation by calling Nicola at home and leaving a message on the answering machine. Nicola called Borer at home and told her that he and his wife would not be able to attend, as they had to accompany their son to a golf tournament. Nicola testified that after he had rejected the invitation, he was treated differently at News World. Lucille Borer, for example, began to call him to complain about facility maintenance problems, something that she had not done before. And Washington Times president Dong Mong Joo, who had previously been friendly toward Nicola, began to treat him indifferently and ignore him.

Nicola then testified that the reactions of his superiors to his resistance to hiring and promoting of Kevin Quinn, a Unification Church member, as well as their responses to his efforts to discipline Quinn, provide further evidence that his employment termination was the result of religious discrimination. Nicola said that although he usually had significant autonomy in filling vacant positions within his department, Oben had instructed him to re-hire Quinn as a building technician. (Quinn had resigned in 1992 from a job with News World.) Nicola believed that Quinn was unqualified for the position and pointed out to Oben various irregularities in his hiring. On his employment application, Quinn had listed as his minimum desired wage an amount higher than the wage paid the prior incumbent -- a violation of News World's corporate policy for new hires. After Nicola called Oben's attention to that policy, Oben obtained approval from the finance department to pay Quinn the higher wage, and Quinn was re-hired in December 2000. Nicola further testified that later his own signature was forged, and the date altered, on personnel action forms used to award Quinn a raise. Eventually, when Nicola's assistant resigned, Oben urged him to promote Quinn to that position. Nicola insisted that Quinn was not qualified to serve as his assistant, and the position was filled by someone else.

Nicola, in his testimony and written memoranda, contends that Quinn, upon starting work, began to foment trouble in the Facilities Department by acting disrespectfully to Nicola and encouraging other employees to do the same, bragging to co-workers about his friendship with Oben, failing to complete assigned jobs, sleeping on the job, and writing memoranda to Nicola on which Oben was copied, accusing Nicola of being a liar. Nicola stressed that, in spite of this misconduct, Oben would not allow him to discipline Quinn. Moreover, aside from Quinn's on-the-job performance, Nicola was aggrieved by a series of personal confrontations with Quinn that took place in 2003. Nicola testified that after an argument between the two men that took place in the company van, Quinn slammed the door and, in the process, injured Nicola's ear. Nicola further testified that in a meeting he had attended with Oben and Quinn, Quinn read a memorandum to Oben berating Nicola, after which Oben verbally attacked Nicola. Nicola also testified that a few days after this meeting, Quinn confronted him in the company parking lot and challenged him to a fight. Nicola recorded his recollection of the incident in a memorandum and, after consulting with Amberg (the Vice President and General Manager), he issued Quinn a written warning, even though Oben and Borer had discouraged this course of action.

Around the time of these confrontations with Quinn, Nicola was experiencing other difficulties with his employment. In June 2003, he said, Oben and Borer told him to attend a team-building seminar and listen to a series of related audio tapes. Nicola initially refused, writing a memorandum highly critical of his supervisors in which he explained that he did not believe he needed to attend the seminar. Nicola ultimately attended the seminar and listened to the tapes, but Amberg -- called by Nicola as a witness -- testified that he believed Nicola's initial, pointed refusal to attend the seminar was insubordination, and that he would have terminated Nicola's employment at that time had Oben not insisted that the dispute could be resolved.

Nicola received a performance evaluation dated July 30, 2003, in which he was praised for his work ethic and his individual performance, but he was criticizedfor poor management and team leadership. Nicola responded to the evaluation in writing, contesting portions of the evaluation with which he disagreed and criticizing his supervisors. Even before this evaluation, Nicola had written two memoranda to James Boren detailing his disagreements with Oben. In them, he claimed that Oben had: undermined his performance by interfering with his communications with those in other departments and with outside contractors; encouraged unrest among his staff; and sent a complaint to the human resources department based on a false allegation that Nicola had mistreated a subordinate. Although Nicola initially did not send the memoranda, he gave them to Borer after the incident with Quinn that took place in the corporate van. Nowhere in the memoranda did Nicola allege that his maltreatment was the product of religious discrimination. In response to these memoranda, Borer instructed Nicola that he should work with Oben to resolve their difficulties.

Nicola's problems at work intensified in October of 2003. Oben issued him a written warning for insubordination after Nicola threatened to walk out of a meeting and accused Oben of pressuring Ricardo Monzon, one of Nicola's subordinates, to change Monzon's explanation of events leading to correction of a power outage. The warning put Nicola on notice that "any further repetition of insubordinate behavior will result in disciplinary measures including suspension or termination." Ten days later, Nicola received an e-mail warning from Oben, who had learned that Nicola had tape-recorded conversations between Oben and other employees. Four days after Nicola received this e-mail, Oben suspended him for one week without pay for insubordination after receiving "several reports" that Nicola had threatened physical violence against him and made vulgar remarks about him in conversations with other employees.

During his period of suspension, Nicola wrote to Amberg, informing him that he believed he was a victim of discrimination and that he was being maltreated because of his refusal to attend the blessing ceremony in New York (in 2001). He claimed that Oben, Quinn, and James Borer were harassing him, and he outlined specific incidents that he believed supported his claim. Amberg testified that he had suggested to Nicola that Lucille Borer's invitation to the blessing had been a friendly gesture, and that she had assured Amberg that it would not be repeated. And Amberg wrote a memorandum to Nicola in which he advised him to follow directions from his manager and focus on fostering a spirit of teamwork in the Facilities Department upon his return to work.

After serving his suspension, Nicola was involved in a dispute with two of his subordinates, Ricardo Monzon and Ricky Savoy, concerning the repair of a men's room urinal. According to Monzon's written report, he had been working on a plumbing repair when Nicola came into the room and began to berate him and question him about Monzon's personal activity logs. Monzon left the men's room and returned with Savoy, at which point Nicola, according to Monzon, adopted an aggressive posture and accused the two men of conspiring against him. Believing that Nicola wanted to start a fight with him, Monzon testified that he had been extremely upset by the incident and threatened to leave the ...


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