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Esteños v. Paho/Who Federal Credit Union

July 3, 2008


Appeal and Cross-Appeal from the Superior Court of the District of Columbia (01-CA-9125) (Hon. Natalia M. Combs Greene, Trial Judge).

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

Argued September 13, 2005

Before RUIZ, Associate Judge,and STEADMAN and SCHWELB,*fn1 Senior Judges.

Opinion for the court by Associate Judge RUIZ.

Opinion concurring in part and dissenting in part by Senior Judge SCHWELB at p. 33.

Juan Esteños, in alleging discrimination against his former employer, presents an issue of first impression: does the District of Columbia Human Rights Act, D.C. Code § 2-1401.01 et seq. (2001) ("DCHRA"), allow an employee to initially raise a claim of national origin discrimination on evidence of an English proficiency requirement? We hold that it does. We also hold that timely filing a claim with the U.S. Equal Employment Opportunity Commission ("EEOC"), which in turn cross-files with DCHRA, tolls the time for filing a private cause of action under D.C. law. Accordingly, we reverse the trial court's grant of summary judgment for appellee and remand the case for further proceedings.

I. Background

Before immigrating to the United States, Juan Esteños was an auditor and accountant in his native Perú. While he initially sought similar work in this country, he instead settled for a position as an office clerk at PAHO/WHO-FCU, the employee credit union for the UN-affiliated Pan-American Health Organization and World Health Organization. At the time, Mr. Esteños had only completed a basic class in English, and his grasp of the language was rudimentary. According to Mr. Esteños, his job interview, in January 2000, was conducted entirely in Spanish by the general manager (then-CEO Carla Decker), the manager of operations (Pablo Hernandez) and the finance manager (unidentified), who are bilingual. Although appellant testified that Ms. Decker told him that in order to progress to a more advanced position he "should continue studying English," she, who did not remember having interviewed Mr. Esteños, also did "not recall any specific conversations with Mr. Esteños regarding his ability to speak English or Spanish."

The parties dispute whether the office clerk position required English proficiency at the time Mr. Esteños was hired. With its motion for summary judgment, PAHO/WHO-FCU submitted a document labeled, "Job Description -- Office Clerk," which names Mr. Esteños as the office clerk, yet lists the following requirements: "High School diploma. Banking experience desired. Very good knowledge of English and Spanish." (emphasis added). Appellant contends that since it is undisputed that he did not have a "very good knowledge of English" at the time he was hired, the language requirement it identifies was either ignored or added only after he was hired. PAHO/WHO-FCU cites Carla Decker's deposition testimony as proof that the requirement pre-dated appellant's hiring. In her deposition, Ms. Decker acknowledges the requirement for English fluency in the position description, but in describing the duties of the office clerk, mentioned only two tasks that could require English reading comprehension -- reading notes that came with checks deposited with the credit union or messages that were added to customers' accounts. She also testified that, as office clerk, Mr. Esteños did not have to deal with the CEO verbally (in her words, "to no extent"), and that Mr. Esteños communicated with his co-workers in Spanish. As concerns his knowledge of English, Ms. Decker testified that she had "spoken to [appellant] in English" at staff meetings.

In April 2000, after a probationary period, appellant received a positive evaluation from his immediate supervisor, Pablo Hernandez, the Member Services Manager. According to the evaluation, appellant's performance was "highly regarded," and appellant was an "eager learner" whose "accomplishments . . . [were] noteworthy." The evaluation concluded with the expectation that appellant's knowledge of the credit union's products would be "develop[ed]" and that his work responsibilities would be increased. There was no mention of his lack of English proficiency or of any resulting deleterious impact on his ability to perform his assigned work. As a result of having successfully completed the probationary period, appellant received a salary increase. That happy state of affairs did not last long, however.

In August 2000, Leonard Supchak, who had been the credit union's CEO some years before Ms. Decker assumed the role, again became CEO. Later that month, Mr. Supchak, who does not speak Spanish, terminated Mr. Esteños "due to [his] inability to fulfill the requirements of the position." The termination letter explained that, "[t]he job requires fluency in both English and Spanish. [Appellant's] lack of fluency in English makes it impossible for [appellant] to fulfill the requirements of the position." According to appellant, Mr. Supchak told him verbally that he was being terminated because Mr. Supchak "did not understand" appellant's limited English. Mr. Esteños was not replaced; instead his duties were distributed among other staff members.

Although the record does not indicate the language proficiency of every member of the staff of PAHO/WHO-FCU, several who are identified are listed as being Spanish-English bilingual, and Ms. Decker testified that the credit union's goal was to have everybody on staff be bilingual, presumably to accommodate the credit union's customers, many of whom are Hispanic and may prefer to conduct their personal financial transactions in Spanish. PAHO/WHO-FCU asserts that every employee can speak at least English, and Mr. Supchak and Marites R. Alfaro both speak only English. Ms. Alfaro was the first of eight new employees hired by Mr. Supchak in 2000, over one half of the staff of PAHO/WHO-FCU. Of those hired, at least two are bilingual, the rest unknown; two are identified as Peruvian.*fn2

Mr. Esteños filed a complaint with the EEOC on September 7, 2000, claiming that his firing was discriminatory, based on national origin, "because of [his] lack of fluency in English." On September 14, 2000, the EEOC gave notice of the claim to PAHO/WHO-FCU and to the D.C. Office of Human Rights ("DC OHR"). PAHO/WHO-FCU confirmed that the reason it fired Mr. Esteños was his lack of English proficiency, adding that "[t]his deficiency ma[kes] it impossible for Mr. Este[ñ]os to communicate with our members and to understand and communicate with some staff members." The following year, after an investigation, the EEOC found "reasonable cause to believe" that PAHO/WHO-FCU violated Title VII, by discriminating on the basis of national origin due to Mr. Esteños's inability to speak English. It also found the employer's proffered reason to be "pretextual" because it had not similarly fired another employee (Ms. Alfaro) who spoke only English and had trouble communicating with some of the credit union's Spanish-speaking customers. PAHO/WHO-FCU disputed the EEOC's determination, citing Mr. Supchak's record of hiring Peruvians, and the necessity that he be able to communicate with the office clerk, without having to resort to other staff as interpreters. Because the EEOC "could not obtain a settlement," on September 14, 2001, it advised appellant of his right to sue, stating again that it found "reasonable cause to believe that violations of [Title VII] occurred with respect to some or all of the matters alleged in the charge." Although the EEOC announced that it did not intend to sue the employer "at this time," it reserved the right to sue the employer at a later time or to intervene in a lawsuit filed by Mr. Esteños. Three months later, on December 14, 2001, appellant filed his complaint in D.C. Superior Court, essentially tracking (and referencing) the findings of the EEOC.*fn3

The trial court denied appellee's motion to dismiss the action as time-barred by the one-year statute of limitations, reasoning "that the EEOC cross-filing [with D.C. OHR] satisfies both the intent and language of" the DCHRA statute of limitations.

After having previously denied appellee's motion for summary judgment as premature, the trial court reheard the motion after discovery was completed, and granted summary judgment on two grounds. First, although the trial court recognized that a person's foreign accent or ability to speak a foreign language could form the basis for a charge of national origin discrimination, it was of the view that the DCHRA does not also protect those who lack the ability to speak English proficiently.*fn4 In any event, the trial court held, "plaintiff cannot establish the fourth element of a prima facie case, which requires that a similarly situated employee be treated more favorably." Therefore, the trial court granted summary judgment to appellee because appellant was not entitled to relief as a matter of law. In this appeal, Mr. Esteños challenges both prongs of the summary judgment ruling; PAHO/WHO-FCU cross-appeals the trial court's denial of its motion to dismiss under the statute of limitations.

II. Statute of Limitations

Unsuccessful motions to dismiss, such as the denial of the motion to dismiss under the statute of limitations raised in appellee's cross-appeal, are reviewed de novo, viewing all facts in the light most favorable to the non-moving party. See Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 730 (D.C. 2000); Johnson-El v. District of Columbia, 579 A.2d 163, 166 (D.C. 1990).

The relevant time-line for statute of limitation purposes is as follows: Mr. Esteños was fired on August 31, 2000; he filed a complaint with the EEOC on September 7, 2000; EEOC informed PAHO/WHO-FCU and the DC OHR on September 14, 2000; EEOC completed its investigation and sent a Right to Sue letter to Mr. Esteños on September 14, 2001; Mr. Esteños filed suit on December 14, 2001.

The DCHRA provides for filing with the DC OHR as follows:

Any person or organization, whether or not an aggrieved party, may file with the Office a complaint of a violation of the provisions of this chapter . . . . Any complaint under this chapter shall be filed with the Office within 1 year of the occurrence of the unlawful discriminatory practice, or the discovery thereof, except as may be modified in accordance with § 2-1403.03 [referring to suits against the DC government].

D.C. Code § 2-1403.04 (a) (2001) (emphasis added). The DCHRA also provides for filing of private actions in court:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate, unless such person has filed a complaint hereunder; provided, that where the Office has dismissed such complaint on the grounds of administrative convenience, or where the complainant has withdrawn a complaint, such person shall maintain all rights to bring suit as if no complaint had been filed. No person who maintains, in a court of competent jurisdiction, any action based upon an act which would be an unlawful discriminatory practice under this chapter may file the same complaint with the Office. A private cause of action pursuant to this chapter shall be filed in a court of competent jurisdiction within one year of the unlawful discriminatory act, or the discovery thereof . . . . The timely filing of a complaint with the Office, or under the administrative procedures established by the Mayor pursuant to § 2-1403.03, shall toll the running of the statute of limitations while the complaint is pending.

D.C. Code § 2-1403.16 (a) (2001) (emphasis added). The trial court ruled that the EEOC's "cross-filing [with the DC OHR] essentially satisfied the requirements of a complaint [with the DC OHR]." Appellee argues, as it did in the trial court, that plaintiff did not actually file a complaint with the DC OHR, but this is not determinative, for as the trial court correctly ruled, a plaintiff does not needto file personally with the OHR to satisfy the statute's tolling requirement. The DC OHR's and EEOC's procedural requirements are to be read broadly and flexibly in the employee's favor in light of their remedial purposes and because they are designed for lay persons. See, e.g., EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115-16 (1988) (providing benefit of full limitations period to claimant who filed directly with EEOC where federal and state agencies had a work-sharing arrangement); Love v. Pullman Co., 404 U.S. 522, 525-27 (1972) (Colorado Civil Rights Commission may waive rights in favor of EEOC); Ivey v. District of Columbia, No. 05-CV-1029, slip op. at 8 (D.C. June 5, 2008) (applying Commercial Office Prods. Co. to work-sharing agreement between EEOC and DC OHR); Fowler v. District of Columbia, 122 F. Supp. 2d. 37, 42-43 (D.D.C. 2000) (DC OHR/EEOC cooperation agreement is designed to avoid double-filing and should be respected). Under such a broad reading of the statute's filing requirement, appellant's timely filing with the EEOC, of which DC OHR promptly received a copy under the existing agreement between the federal and local agencies, sufficed to toll the limitations period for filing in court. Moreover, even under a literal reading of the DCHRA, "any person or organization, whether or not an aggrieved party, may file with the Office," D.C. Code § 2-1403.04 (a) (emphasis added), and "[t]he timely filing of a complaint . . . shall toll the running of the statute of limitations." D.C. Code § 2-1403.16 (a) (emphasis added). As the EEOC qualifies as "any" organization, its timely cross-referral of appellant's EEOC claim to DC OHR tolled the running of the one-year statute of limitations. We, therefore, conclude that the trial court properly denied appellee's motion to dismiss the complaint as time-barred.*fn5

III. Claim of National Origin ...

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