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Brian R. Propp v. Counterpart International and Lelei Lelaulu

March 8, 2012

BRIAN R. PROPP, APPELLANT,
v.
COUNTERPART INTERNATIONAL AND LELEI LELAULU, APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAB-8109-05) (Hon. Natalia Combs Greene, Trial Judge)

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

(Argued May 21, 2009

Before THOMPSON, Associate Judge, RUIZ, Associate Judge, Retired,*fn1 and FARRELL, Senior Judge.

Opinion for the court by Associate Judge, Retired RUIZ.

Concurring opinion by Senior Judge FARRELL at p. 29.

RUIZ, Associate Judge, Retired: Brian Propp sued his former employer, Counterpart International ("Counterpart"), and its President and CEO, Lelei LeLaulu, (collectively "Counterpart") seeking damages for employment discrimination in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1402.11 (a) (2001), and for actions taken in retaliation against him for raising his claim of discrimination, also in violation of the DCHRA, D.C. Code § 2-1402.61 (2001). The Superior Court of the District of Columbia granted appellees' motion for summary judgment on both claims, and Propp appeals the dismissal on summary judgment of his retaliation claim.*fn2 We agree that summary judgment should not have been granted on the retaliation claim.*fn3 There is evidence in the record that Counterpart changed the conditions for negotiating a previously promised business relationship with Propp and abandoned potential funding for Propp's initiative only after he complained of discrimination. Because this evidence, if credited by the fact-finder, would constitute retaliation forbidden by the DCHRA, we partially reverse the grant of summary judgment and remand the case for further proceedings with respect to Propp's retaliation claim.

I. Record on Summary Judgment

The following evidence was of record when the trial court granted summary judgment. On January 1, 1995, Propp was hired by Counterpart, a nonprofit international development organization, as the Regional Director for the Western Newly Independent States within the Counterpart Humanitarian Assistance Program ("CHAP") division. In January 2001, after six years as Regional Director, Propp was promoted to General Director of CHAP Worldwide.

Among his duties, Propp was responsible for obtaining funding for both new and existing programs. He was also responsible for an initiative called Counterpart Communities which was known as his "brainchild."*fn4 As a result of Propp's efforts, on October 1, 2001, Counterpart received $5.4 million in funding from the United States Agency for International Development ("USAID") for Counterpart Communities. In 2002, LeLaulu became Counterpart's President and CEO, and he nominated Propp for a vice-president position. The board approved, and Propp became Vice-President of CHAP and joined the Senior Management Team.

On September 23, 2004, LeLaulu recommended to the Board that Propp be terminated, citing a budget deficit in the CHAP program in Moldova, which Propp managed, and the need to restructure CHAP due to a budget reduction. The Board voted and approved of Propp's termination. In deposition testimony, however, Propp disputed that these were the reasons for his termination. Propp testified that in response to his inquiries as to why he was being terminated, LeLaulu told him, "a reduction in force affecting one person: You."

Shortly after Propp's termination had been approved, in early October 2004, Counterpart obtained a Congressional "soft earmark"*fn5 in the amount of $12 million for Propp's Counterpart Communities initiative. On October 12, 2004, LeLaulu and Arthur Lovelace, Counterpart's Director of Administration, met with Propp to inform him of the Board's decision to terminate his employment. They asked him to resign. When Propp refused, he was presented with four options: (1) three months severance pay in exchange for his resignation and a release of claims, (2) three months severance pay, but spread over six months, in exchange for his resignation and a release of claims,*fn6 (3) resignation with no severance pay, and (4) termination with no severance pay.

Propp testified in his deposition that he understood the two severance pay options were conditioned on a waiver of claims, but that the other two options (resignation or termination) were not conditioned on a waiver of claims. The record includes the documents presented to Propp at the meeting for each of the four options, and they support Propp's testimony.*fn7 Propp refused to choose among the four options; instead, Counterpart immediately terminated his employment, without severance pay, even though Propp had declined to sign a waiver releasing any claims he might have against them.

Appellees admit that notwithstanding the termination of Propp's employment, they agreed to enter into a contractual relationship with Propp.*fn8 Propp understood that he and LeLaulu would negotiate a consulting agreement for Propp to continue work as a consultant for approximately one year at his current salary and that the consulting agreement would include a release of claims. According to Propp's deposition, on October 12, 2004, he "made it clear to [LeLaulu] . . . that there needs to be one agreement, not two separate agreements, and that the offers that were on the table would have to be revised to incorporate a consulting agreement; and that there should be one agreement that encompassed everything."

That same evening, after having met with Propp and terminating his employment, LeLaulu sent an e-mail to Counterpart staff worldwide in which he announced that "Propp will no longer be working on CHAP-related duties. Instead, [Propp] has agreed to concentrate on Counterpart Communities and other strategic opportunities for the organization. We will be strategizing with [Propp] and will, of course, inform you of developments."

Less than a week later, on October 18, 2004, Propp's attorney sent a letter to Counterpart stating, "Propp hereby opposes practices at Counterpart he reasonably believes to have been discriminatory," intimating that his termination was discriminatory, based on age and ethnicity.*fn9

Propp "was holding out hope for a consulting agreement" andfive months after his attorney sent the letter complaining of discriminatory termination, his attorney again contacted Counterpart in an attempt to negotiate Propp's post-termination business relationship with Counterpart. Propp testified that it came to his attention that "Counterpart at some point said that any consulting arrangement that might be entered into would be contingent upon [his] signing a release such as [he was] presented with on the day that [he] met with LeLaulu that would release all [his] rights." According to Propp, Counterpart made "no efforts to negotiate, to communicate, to try to stimulate any discussions. There was nothing." Instead, Counterpart put the original offer (the four termination options) back on the table and gave him 48 hours to decide. According to Propp, it was "[e]ither sign it or go away."

On May 23, 2005, seven months after Propp was terminated, Propp's counsel sent a letter to Counterpart outlining his attempts to negotiate Propp's continuing business relationship with Counterpart. According to counsel, at the time LeLaulu terminated Propp, "LeLaulu then indicated the organization hoped to have an ongoing relationship with him." But as counsel detailed in his letter, Counterparts' attitude changed after Propp complained of discrimination and "indicate[d] a level of hostility" against Propp:

We first spoke on October 27, 2004. I outlined a general approach to settlement that seemed to me in the interest of both parties, and on November 15th you called to report your client would like to know the specifics. On November 22nd I conveyed an offer. On January 21, 2005, you left a message to the effect your instructions were to say your client was not budging from its original severance proposal. Moreover, after keeping us waiting eight weeks as Mr. Propp contemplated an uncertain future, your client also ordered you to say he had a week to respond. The lack of courtesy did not augur well, but we returned to the drawing board and on January 27th came back with a revised proposal for settlement. Your client then delayed four months before directing you to say again it was not budging -- it could have ordered the same on January ...


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