Superior Court of The District of Columbia                           Civil Division GWENDA HARRISON, Plaintiff,    v. AARP Defendant,

Case No. 02ca4443 Calendar 9   Judge Duncan-Peters Courtroom 516

ORDER GRANTING IN PART AND DENYING IN PART DEFENDAINT'S
MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court upon consideration of Defendant American Association of Retired Persons' (hereinafter "AARP") Motion for Summary Judgment and Plaintiff's Opposition. The Court also considered the Errata to the Plaintiff's Opposition, Defendant's Reply to the Plaintiff's Opposition, Plaintiff's Surreply to Defendant's Reply, the Defendant's Corrected Response to Plaintiff's Surreply and the Defendant's Notice of Supplemental Authority. 

        This case arises from the termination of the Plaintiff as an employee of the Defendant. In September of 1997, the Plaintiff, an African-American female, was hired as the Manager of Diversity Programming in the Program Services Division. She directly supervised a staff of ten until July 2000, when the staff was reassigned form the diversity programming unit to other program staffs. In early 2001, the Plaintiff lodged a complaint to her supervisor that she was being discriminated against on the basis of her race. In May 2001, the Defendant informed the Plaintiff that it did not find evidence of discrimination. 

        In September of 2001, AARP instituted a Separation Program, which offered volunteers an enhanced severance package. Additionally, some employees were involuntarily terminated. A new set of positions was created and all current employees who elected not to resign were required to apply. The Plaintiff applied for two different Campaign Director positions. She was denied both these positions and was subsequently terminated in November of 2001. 

        The Plaintiff first argues that the Defendant discriminated against her on the basis of her race by rejecting her for the Director positions and subjecting her to disparate treatment over the course of her employment. See Plaintiff's Opp. at 1. This treatment included receiving a smaller salary than the salary received by other employees in equal or similar positions. It also involved the Plaintiff's office being located further from the office of her immediate supervisor, fewer opportunities to interact with her supervisor, and less support and guidance from her supervisor than that given to other white colleagues. See Plaintiff's Opp. at 5, 6. The Plaintiff also argues that the Defendant retaliated against her for the protected activity of complaining about race discrimination to her supervisor and Human Resources. The retaliation consisted of both a negative performance appraisal and rejection from the Director positions. See Plaintiff's Opp. at 12. 

        The Defendant counters that there was no discrimination or retaliation against the Plaintiff. According to Defendant, the reason Plaintiff was not promoted was that her qualifications were far less than the qualifications of those chosen for the Director positions. See Def.'s Mem. at 20. 

        Summary Judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Super. Ct. Civ. R. 56 (c). Put another way, ¿[a] motion for summary judgment should be granted if (1) taking all reasonable inferences in the light most favorable to the nonmoving party, (2) a reasonable juror, acting reasonably, could not find for the nonmoving party (3) under the appropriate burden of proof." Dorsky Hodgson & Partners, Inc. v. National Council of Senior Citizens, 766 A.2d 54, 56 (D.C. 2001) (citing Nader v. de Toledano, 408 A.2d 31, 42 (D.C. 1979)).
I. DISCRIMINATION CLAIMS BASED ON RACE 
        To establish a claim of racial discrimination, a plaintiff must first set forth a prima facie case, establishing that: (1) she is a member of a protected class; (2) she applied and was qualified for the position for which defendant was seeking applicants; (3) she was denied the position; and (4) the defendant selected a candidate who was not a member of the plaintiff¿s protected class. See Futrell v. Dept of Labor Federal Credit Union, 816 A.2d 793, 803 (D.C. 2003). Such proof creates a presumption that the Defendant unlawfully discriminated against plaintiff. See id. The Defendant may rebut this presumption by articulating a legitimate, nondiscriminatory reason for rejecting the plaintiff for the position(s). Upon this showing, the burden shifts back to the plaintiff to demonstrate that the defendant's proffered explanation is a pretext for unlawful discrimination and that the real motivation behind its decision was the plaintiff's status as a member of a protected class. See id. at 804-805. 
        A. Alleged Disparate Treatment before June 5, 2001 

        As part of her racial discrimination claim, the Plaintiff alleges the Defendant subjected her to discriminatory treatment throughout the term of her employment. From the date of her hire until late 2000, the Plaintiff's office was located on the Ninth Floor, while her Supervisor and the Supervisor's other direct employees were located on the Fourth floor. See Plaintiff's Opp. at 36. The Plaintiff also alleges that she was hired at a lower salary than similarly situated employees were, and this was not changed until she complained to her supervisor in May of 2000. See Plaintiffs Opp. at 35. Moreover, the Plaintiff argues she received less managerial support than other similarly situated white employees did, and had her responsibilities decreased dramatically in September 2000 when the Defendant reorganized the Plaintiffs section. See Plaintiff's Opp at 37. 

        The Defendant contends that since the Plaintiff filed her Complaint on June 5, 2002, all acts that allegedly occurred before June 5, 2001 are time barred. See Defendant's Motion at 1; Defendant's Mem. at 8. The District of Columbia Human Rights Act (hereinafter "DCHRA¿) provides that a private cause of action must be filed "within one year of the unlawful discriminatory act, or the discovery thereof." See D.C. Code ¿ 2-1403.16 (a) (2001). The allegations regarding the Plaintiff¿s office location, her salary, the lack of managerial support, and the reorganization of the Diversity Function all occurred more than a year before the Plaintiff filed her Complaint. Assuming, arguendo, that the claims rise to the level of unlawful discrimination, they are time barred and thus not actionable. 

        The Plaintiff, however, may raise these incidents as background information. In AMTRAK v. Morgan, 536 US 101, 113 (2002), the Supreme Court stated that Title VII does not "bar an employee from using the prior acts as background evidence in support of a timely claim. Thus, during trial, the Plaintiff is permitted to bring forth the alleged history of disparate treatment in support of claims that were filed within the necessary timeframe. Therefore, as to Count I, the Court will grant summary judgment for any incidents that occurred before June 5, 2001. 
        B. Alleged Failure to Hire/Promote for Campaign Director Positions

The Defendant also argues that there are no genuine issues of material fact regarding the Plaintiffs allegation that the Defendant did not hire her for two Campaign Director positions because of her race. Viewing all the facts in a light most favorable to the Plaintiff, a reasonable juror could find that the Plaintiff established a prima facie case against the Defendant. A juror could find that (1) the Plaintiff is African-American, thus part of a protected class; (2) she applied for and was qualified for the positions; (3) she was rejected for the positions; and (4) the Defendant hired two Caucasians, Bridget Small and Jonathan Dauphine, for the position. 

        The burden now shifts to the Defendant, who set forth as its legitimate, nondiscriminatory reason the superior qualifications of the candidates who were selected. The burden again shifts, this time to the Plaintiff, to establish this reason is a pretext for a discriminatory reason. The Defendant contends that the Plaintiff did not meet this burden and the Defendant is entitled to judgment as a matter of law. 

        In regards to this allegation, however, there are several genuine issues of material facts. A reasonable juror could conclude that the plaintiff was as qualified as the candidates selected by the Defendant. For example, there are questions surrounding the experience of the selected candidates and whether they actually worked on social marketing campaigns. Ms. Smalls was absent for a significant portion of the campaign that is credited for making her an "extraordinarily strong candidate." See Def.'s Mem. at 23; Plaintiffs Opp. at 40. A reasonable juror also could conclude that, because he had fifteen less years of work experience than the Plaintiff, Mr. Dauphine was not as qualified than the Plaintiff. See Plaintiff's Opp. at 41. 

        A second issue of material fact is based on the comment made by Mr. Killpack. He stated that he believed the reason the Plaintiff applied for the Director positions was because she intended "to file a complaint about process and hopefully, [gain] financially by doing that" See Plaintiff's Opp. at 16. Particularly since the Defendant presented no evidence in support of this assumption, a juror could reasonably infer that Mr. Killpack's comment was based on the Plaintiff's race. Moreover, a reasonable juror could also infer that race was a motivating factor in rejecting the Plaintiff for the campaign director position. In addition to this issue, there is a dispute as to whether Mr. Killpack was the ultimate decision-maker in the campaign director hiring process. See Plaintiff¿s Opp. at 17-18; Def.'s Reply at 19-20. Although Mr. Killpack was not on the interviewing panel, Plaintiff contends that he had the authority to disregard the panel's recommendations and hire whomever he wanted. See Plaintiff's Opp. at 18; see also Ex. 8 31:13-15 (referring to John Killpack as the "hiring authority"). Thus, a jury could reasonably conclude that Mr. Killpack, who maintained the ultimate hiring authority, unfairly discriminated against the Plaintiff on the basis of her race.

A third genuine issue of material fact revolves around the destruction of notes taken during the interview process. Despite a company policy to retain notes taken during the hiring process in case of legal actions, all three of the panel members destroyed the contemporaneous notes that they took during Ms. Harrison's interviews. See Plaintiff's Opp. at 19, Ex. 35 at 3-8. One of the panel members, however, was able to produce the notes he took during other candidates' interviews. See Plaintiffs Opp. at 20. Based on the destruction of only certain notes, a reasonable juror could conclude that the nondiscriminatory reason proffered by the Defendant was a pretext that was made up after the fact to cover the actual reason of non-hiring. Therefore, as to Count I, the Court denies the Defendant's motion for summary judgment for incidents occurring after June 5, 2001.

II. RETALIATION CLAIMS AGAINST DEFENDANT

The second count in the Plaintiff's Complaint is that the Defendant retaliated against her because she engaged in activity protected by DCHRA, i.e., the lodging of a complaint about her supervisor with Human Resources. DCHRA states that it is an "unlawful discriminatory practice to . . . retaliate against . . . any person in the exercise and enjoyment of . . . any right granted or protected under this chapter." D.C. Code ¿ 2-1402.61(a) (2001). In order to make out a prima facie case of retaliation, the Plaintiff must demonstrate (1) that she was engaged in statutorily protected activity, (2) that her employer took an adverse employment action, and (3) a nexus between the two. See Carter-Obavuwana v. Howard Univ., 764 A.2d 779, 789 (D.C. 2001). 
        A. Alleged Negative Performance Evaluation
        The Defendant argues that there is no genuine issue of material fact regarding this allegation. Specifically, the Defendant contends that: (1) the performance evaluation was not negative; (2) alternatively, a negative or satisfactory employment evaluation alone does not constitute adverse employment action; (3) the Plaintiff was treated the same before and after the protected activity; and {4) the Plaintiff suffered no adverse consequences from the evaluation. See Def.'s Mem. at 17-18. 
 
       The Plaintiff argues that she engaged in the protected activity of complaining to Human Resources about discriminatory and disparate treatment; and that the act of giving her a lower than usual performance evaluation was an adverse employment action. She contends that a nexus exists between the two, as evidenced by the employer's knowledge of the complaint and the passage of only five and a half months between the complaint and the performance evaluation at issue. See Plaintiff's Opp. at 46. 

        Although the Defendant raises several strong points, the burden for summary judgment is extremely high. In fact, summary judgment "should be sparingly granted in cases involving motive or intent." Hollins v. Fannie Mae, 760 A.2d 563, 579 (D.C. 2000). Viewing all the evidence in the light most favorable to the Plaintiff, a reasonable juror could conclude that the performance evaluation was retaliatory. First, while the overall performance evaluation given in November of 2001 was the same as an evaluation given before the Plaintiff filed her complaint (both gave the Plaintiff an "achieved standards" rating), in the November 2001 evaluation, the Plaintiff was given a marking of "requires improvement" in four out of eleven categories. See Plaintiff's Opp. at 48. Prior to this evaluation, the Plaintiff had never received a "requires improvement" marking. See id. Second, prior to the Plaintiff¿s November 2001 evaluation, the Plaintiff's supervisor, Ms. Sloan, had never given a marking of "requires improvement" to any of her direct subordinates. See id. 

        The Plaintiff also presented sufficient evidence to establish a nexus between the filing of a complaint against Ms. Sloan and the lower than normal performance evaluation. "The causal connection . . . may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell v. Baldridqe, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (1985) (remanding the case back to trial, where the defendant was found liable for discrimination and retaliation, although the dispute over injunctive and monetary relief continued for many years). First, the same person who the Plaintiff accused of discriminatory treatment and complained about to Human Resources was also the person to write the performance evaluation - Ms. Sloan. See Plaintiff's Opp. at 8, 48. Thus, the employer had knowledge of the Plaintiff's protected activity. Second, the amount of time that elapsed between the protected activity and the performance evaluation is sufficient for a reasonable juror to infer retaliation. Although the Plaintiff filed her complaint in February 2001, Human Resources did not finish its investigation until May 2001. See Plaintiff's Opp. at 8. Moreover, the Defendant continued to offer the Plaintiff a severance package in exchange for the release of a race claim through September 2001. See id. This timeline could allow a reasonable juror to conclude that the adverse action was proximate enough to establish a link. Although the Defendant may be able to rebut this at trial, the Plaintiff¿s evidence is sufficient to survive a summary judgment motion. Therefore the Court denies summary judgment as to Count II, relating to the performance evaluation. 
        B. Alleged Failure to Hire/Promote for Campaign Director Positions 
        Finally, the Defendant argues that the Plaintiff failed to create any genuine issues of material fact with respect to the claim of retaliation, which stems from the Defendant's failure to hire the Plaintiff for two Campaign Director positions. Specifically, the Defendant argues that the Plaintiff failed to show a nexus between the adverse employment action and the protected activity. See Def's Mem. at 19. The Plaintiff argues that she did indeed meet the prima facie requirements for retaliation. See Plaintiff's Opp. at 42. 
      
        As to the first element, the Plaintiff met this burden by establishing she had engaged in a protected activity. She lodged a complaint with Human Resources that she was being subjected to discriminatory treatment in violation of the DCHRA. See D.C. Code ¿ 2-1402.61 (a) (2001). As to the second element, there are genuine issues of material facts as to whether the Defendant took adverse employment action against the Plaintiff by rejecting her for positions. The Defendant argues that the Plaintiff simply wasn't as qualified for the positions as the selected candidates were, but as previously stated, the Plaintiff presented evidence to dispute this argument. See Def¿s Mem. at 20; Plaintiff's Opp. at 38. Regardless, it is well established that denying an employee a promotion or refusing to hire an employee is considered an adverse employment action. See Burlington Industries, Inc. y. Ellerth, 524 U.S. 742 (1999) (finding that a tangible employment action is signified by a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits"). 

        As to the third element, there is a genuine issue of material fact as to whether there is a nexus or causal connection between the protected activity and the adverse employment action. The amount of time that elapsed between the complaint and the adverse action could allow a reasonable juror to infer a causal connection. As stated above, the Plaintiff filed her complaint in February 2001, but the investigation was not completed until May 2001. See Plaintiffs Opp. at 8. Moreover, Human Resources approached the Plaintiff as late as September 2001 in hopes of offering her a severance package in exchange for a release on her race claim. See id. The interviews were held in November 2001. Based on this timeline, a reasonable juror could infer a nexus or causal connection between the two events. 

        Another genuine issue of material fact surrounds Mr. Killpack's statement that he believed the reason the Plaintiff applied for the positions was so she could "file a complaint about process and hopefully, [gain] financially by doing that." See Plaintiff's Opp. at 16. Based on this statement, a reasonable juror could infer that Mr. Killpack was aware of the Plaintiffs complaint of discrimination. Moreover, the Plaintiff presented evidence that her supervisor, Ms. Sloan, reported directly to Ms. Dawn Sweeny, who was aware of the complaint filed by the Plaintiff. See Plaintiffs Opp. at 60. Coincidentally, Ms. Sweeney is also the direct supervisor of Mr. Killpack and there is evidence that Mr. Killpack and Ms. Sloan worked together on recruitment. See id. Based on this evidence, there are sufficient issues of material fact for the case to move forward.

Therefore, the Court denies the motion for summary judgment in respect to the Count II Retaliation allegations.

III. CONCLUSION

For the foregoing reasons, it is this 11th day of February 2004,

ORDERED that the Motion of the Defendant AARP 'for Summary

Judgment is GRANTED IN PART and is DENIED IN PART as set forth herein. Specifically, as to Count I, the Motion is granted only as to the incidents that occurred before June 5, 2001. As to the incidents that occurred on or after June 5, 2001, it is denied. As to Count II, the Motion is denied. 
 
                                           ---------------------------------------------
                                            Stephanie Duncan-Peters 
                                                 Associate Judge
                                             (Signed in chambers)