Appeals from the Superior Court of the District of Columbia Court of Appeals (CA-4677-01) (Hon. Joan Zeldon, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Argued September 26, 2006
Before RUIZ, REID, and FISHER, Associate Judges.
The case before us was tried by a jury, which found in plaintiff Langdon Johnson's favor on claims of age discrimination, violation of the District of Columbia Family and Medical Leave Act ("DCFMLA"), and unequal pay. In a post-trial motion, the Washington Convention Center Authority ("WCCA") and Lewis Dawley (collectively, "defendants") requested judgment as a matter of law. The trial court denied their request, but reduced the damages award. Johnson also moved to alter or amend the judgment to award front pay. The trial court denied this motion. Each party has appealed.
We affirm the judgment of the Superior Court, with one exception related to damages on the equal pay claim.
In the late 1990s, WCCA was planning to build a new state-of-the-art convention center in the District of Columbia, and General Manager Lewis Dawley, who had been hired in June 1997, was eager to develop an aggressive marketing strategy.Langdon Johnson was WCCA's Director of Sales and Marketing and he reported directly to Dawley.
Johnson had been hired as an advertising sales executive in 1988, and the previous General Manager had promoted him to Sales Manager in 1990. In 1992, he was named Director of Sales and Marketing.Johnson had been responsible for marketing the existing convention center at both the national and local levels, he had received favorable evaluations and at least one bonus, and he won an industry award for a marketing brochure.In April 1998, Dawley changed Johnson's duties and title, stripping him of his responsibility for marketing and naming him Director of Sales. Dawley "assumed sole responsibility for all the marketing activities."
Lana Ostranderbegan working at WCCA as a Sales Associate in 1996.She reported directly to Johnson and Stacy Fleming, the Sales Manager,and earned about $38,000 per year. In September 1997, Ostrander submitted her resignation, but Johnson wanted to retain her services, so he arranged for her to talk with Dawley, who promoted Ostrander to be his Special Assistant. Dawley raised her annual salary to $58,000 and began to give her substantial marketing responsibilities.She was twenty-nine years old at the time of the promotion. In October 2000, Dawley appointed Ostrander to the newly-created position of Director of Marketing.He also increased her annual salary to $74,000.A few months later, in February 2001, Ostrander's salary was raised to $78,200. Ostrander was still employed by WCCA at the time of trial.
After Dawley hired Lee Fehrenkamp as Deputy General Manager in January 2000, Johnson began to report directly to Fehrenkamp. During the spring, Johnson was asked to prepare for the Board of Directors a sales report containing hotel booking information related to the new convention center. At the time, hotel bookings were the responsibility of the Visitors Bureau,*fn1 and because Johnson did not have the knowledge or experience necessary to adequately prepare the report, he was forced to work closely with that bureau. Based on his performance in preparing the report, Fehrenkamp concluded that Johnson did not understand the convention industry. He also concluded, from observing the sales department, that Johnson lacked leadership and planning skills. Fehrenkamp thought that Johnson had failed in his responsibility "to form a bridge of understanding" between WCCA and the Visitors Bureau.The importance of this relationship grew in August 2000, when Dawley negotiated a contract with the Visitors Bureau in order to strengthen the WCCA's positioning as a "destination within a destination."
Later in 2000, Fehrenkamp and Johnson began to interview candidates for two positions, Assistant Director of Sales and Sales Manager, that would have reported to Johnson as Director of Sales. Johnson, Fehrenkamp, and others interviewed Dawn Seay for the Sales Manager position in the summer of 2000. Thirty-six years old, Seay had more than four years of experience working at the Philadelphia Convention and Visitors Bureau, but she had never worked at a convention center. Because Dawley perceived that her qualifications fit WCCA's needs, he decided to hire her. Instead of filling one of the empty positions, however, Dawley hired Seay for the newly created position of Director of Sales (New Convention Center), abolished the position for which she had applied, and changed Johnson's job title to Director of Sales (Existing Convention Center). Ms. Seay began work in September 2000 at an annual salary of $80,000.At this time, Johnson had not received a raise in five years -- he earned an annual salary of $76,395.
Although Dawley intended that Johnson and Seay work as a team,they were unable to do so. For example, they were to submit a jointly developed plan to address the staffing needs of their departments, but they could not cooperate. Dawley realized that the two Directors of Sales were incompatible and decided to return to a single Director of Sales position.On Tuesday, November 7, 2000, Dawley met with Johnson, Seay, Fehrenkamp, and Cecilia Bankins, the Director of Administration, to announce that Seay would be in charge of sales for both the new convention center and the existing convention center. However, just how this new hierarchy would affect Johnson's employment remained ambiguous, at least in the minds of some who attended the meeting.The experiment with two directors of sales had lasted less than two months. Once again there was one Director of Sales for both convention centers, but Seay -- not Johnson -- filled that position. Seay had been at WCCA less than two months and was still a probationary employee.
Over the next couple of days, Johnson sought out Dawley and Fehrenkamp, hoping to clarify his employment status. On Thursday, November 9, Johnson told Fehrenkamp that he was not feeling well and that he needed to see a doctor.*fn2 Johnson "started the dialogue about clarification," but Fehrenkamp said "don't worry about it, you go on and see your doctor." Friday, November 10, was a holiday, but on Monday, November 13, the next work day, WCCA received a doctor's note stating that Johnson had been advised to take leave from work for two to four weeks.
On December 5, 2000, Bankins wrote to Johnson providing "official notice" that his position as Director of Sales (Existing Convention Center) would be abolished, and that he would be terminated from his employment, effective December 8, 2000. The letter informed Johnson that his termination "result[ed] solely from a necessary business decision and is not related to your performance or any other personal factor."The letter also acknowledged that Johnson was then on sick leave and advised him that "[s]hould you decide to apply for and receive approval for job protection under FMLA,"*fn3 his termination date would be adjusted to "sixteen weeks from the date on which you were initially placed in FMLA status."
On December 19, 2000, Johnson requested FMLA leave.The request was approved on January 12, 2001, and his leave was backdated to November 13, 2000. The FMLA leave could have lasted until March 5, 2001, but on January 30, 2001, Johnson's counsel notified WCCA that he was "able and prepared" to return to work.WCCA responded that "[t]here are no vacant positions within the WCCA Sales Division to which Mr. Johnson can return," and it adjusted his termination date to February 2, 2001.There were several other positions available when Johnson was ready to return to work, and WCCA invited him to apply for them,but it did not place him in any of the jobs. At the time of his termination, Johnson was fifty-five years old.He filed this lawsuit in June 2001.
Subsequently, Dawley determined that the appropriate entity for handling sales -- for "spurr[ing] tourism in the District of Columbia" -- was the Visitors Bureau. Therefore, he terminated Seay in July 2002,and sometime later abolished the position of Director of Sales at WCCA. See note 4, infra. Although the WCCA presently has a sales department, its primary responsibility is maintaining the convention center's books and contracts.
Johnson's complaint against WCCA and Dawley alleged age and sex discrimination as well as retaliation in violation of the District of Columbia Human Rights Act ("DCHRA"), violations of the DCFMLA, creation of a hostile work environment, and intentional infliction of emotional distress. An amended complaint added a count alleging "violation of equal pay and wage discrimination."
The case was tried before a jury beginning in the latter part of July 2003. Among other things, the jury heard about comments that Dawley made concerning the age of the older WCCA employees. Johnson testified that, "[e]arly on, when [Dawley] came to the convention center, he made comments about the age of sales staff and event services staff." "And he would say things to me like . . . you might be thinking about retirement. Are you thinking about retirement, or your wife has a nice company, why don't you think about retirement or moving on some place." Johnson also recalled: "I remember a comment [Dawley] made to me that if I didn't move on, I would probably end up like a gentleman by the name of Wild Bill Williams. Wild Bill Williams was an older gentleman who had worked at the Chicago Convention Center for years as a sales manager, I think, in the same position for a long time."
Theresa Miller, Dawley's executive assistant, testified that Dawley asked her why persons on the sales and marketing staff stayed so long. "I said because the environment is electric and . . . the pay is good. And he said that typically sales and marketing and the event services staff are much younger than the staff that we had at the convention center. And that over time the pounding of the pavement, because the floors were concrete, would take its toll on the employees, especially those that were not as young as perhaps he was accustomed to in other convention centers, or in the industry itself."
Johnson also testified that Dawley harassed and degraded him in the spring of 2000. Johnson approached Bankins to complain that Dawley was creating a hostile work environment by yelling at him "in front of clients, staff members, anybody," and that Dawley was favoring the female employees over Johnson. Johnson threatened to file, but ultimately refrained from filing, a formal complaint, and Bankins and Johnson continued to meet every week over the next several months.
Witnesses from the Visitors Bureau testified that Johnson worked well with them. The former president of the Visitors Bureau, Dan Mobley, testified that "[w]e had a very good working relationship with Mr. Johnson, as well as his staff," and that, in his opinion, WCCA sent Johnson on international trips in order to "put [their] best foot forward."Frank Rudman, the former vice president of convention sales at the Visitors Bureau, testified that Johnson was "very good at the trade show floor" -- "He knew the customers. He knew the building well."
The jury found that Johnson's age was a substantial factor in the defendants' decision to terminate him, that defendants violated the DCFMLA by failing to reinstate Johnson to the same or an equivalent position, and that defendants violated the Equal Pay Act. It ruled in defendants' favor on the claims of unlawful retaliation, intentional infliction of emotional ...