TURCIOS v. U.S. SERVICES INDUSTRIES, 95-CV-992

• Citation: 680 A.2d 1023
• Decision Date: 18 July 1996
• Docket Number: No. 95-CV-992,95-CV-992
• Parties: Rolando Bermudez TURCIOS, Appellant, v. UNITED STATES SERVICES INDUSTRIES, Appellee.
• Court: Court of Appeals of Columbia District

680 A.2d 1023

Rolando Bermudez TURCIOS, Appellant, v. UNITED STATES SERVICESINDUSTRIES, Appellee.

No. 95-CV-992.

District of Columbia Court of Appeals.

Argued May 21, 1996.

Decided July 18, 1996.

APPEAL FROM THE SUPERIOR COURT, FREDERICK D. DORSEY, J.

Diana Orantes Ceresi, with whom Orrin Baird and Eunice Washington were on the brief, for appellant.

Joel I. Keiler, for appellee.

Before FERREN, TERRY, and REID, Associate Judges.

FERREN, Associate Judge:

Appellant Turcios, a janitor, sued United States Services Industries ("USSI") for violating the D.C. Human Rights Act (the "Act"), D.C. Code §§ 1-2501, et seq. (1992 Repl.), by requiring him to cut his hair, or else wear a hat at work, or instead transfer to another USSI work location. On appeal, Turcios contends (1) the trial court erred as a matter of law in allowing the jury to consider USSI's affirmative defense under the "prescribed standards" exception of the Act, D.C. Code § 1-2502(22); (2) the jury's verdict was contrary to undisputed record evidence; and (3) reversal is required because opposing counsel improperly remarked on Turcios' role in a dispute between Local 82, Service Employees International Union (the "Union"), and USSI. We affirm.

I.

Turcios worked for USSI from March 13, 1992, until May 26, 1993, from 6:00 p.m. to midnight, mopping floors and taking out the garbage at Washington Harbour, an office building which had contracted with USSI for janitorial services. USSI's written personal appearance policy, in effect during Turcios' employment, provided:

Good hygiene is important and includes the following:

— Neat hair style

— Clean shaven face (trimmed mustache is acceptable)

— Black shoes or black tennis shoes are recommended

— No hats allowed inside of building¹

USSI had no specific written policy with respect to hair length.

In May 1993, Turcios had his hair cut into a style that left a tail of hair at the nape of his neck. Mauricio Portillo, Turcios' immediate supervisor, asked Turcios if there were anything he could do about his hair; requested Turcios to "cooperate"; told Turcios that Joel Rivas, another supervisor with a similar haircut, had cooperated by cutting his hair; and informed Turcios that if he did not cooperate, USSI would lose its contract with Washington Harbour and all the employees would lose their jobs. When Turcios replied that he did not want to cut his hair, Portillo told Turcios that he could either wear a hat during work or transfer to another USSI location. Two days after his conversation with Portillo, Turcios stopped working for USSI.²

USSI's contract with Washington Harbour provided that USSI would "assure that its employees are neatly attired at all times in a manner that will reflect credit both upon the Contractor [USSI] and the Building in which they are working [Washington Harbour]." The contract further provided that either party could terminate the contract upon sixty days' written notice, and that if USSI failed to cure, within five days, any failure to perform its obligations under the contract, Washington Harbour could terminate the agreement immediately upon written notice.

II.

Preliminarily, we address USSI's claim that Turcios' appeal should be dismissed because it was not timely filed. The jury returned its verdict on March 15, 1995, and judgment was entered outside the presence of the parties and mailed to them on March 29, 1995. Turcios filed a motion for new trial on April 12, 1995. On July 19, 1995, Judge Dorsey ruled that the new trial motion had not been timely filed under Superior Court Rule 59(b) (requiring filing within ten days of the date judgment is entered) and accordingly treated Turcios' motion as a request for relief from judgment under Rule 60(b). He then denied the motion. Turcios filed his notice of appeal on July 28, 1995.

Although a timely filed Rule 59 motion tolls the thirty-day period for filing a notice of appeal from a court's final order, a Rule 60(b) motion does not. See Fleming v. District of Columbia, 633 A.2d 846, 848 (D.C. 1993). USSI contends that, because Judge Dorsey treated Turcios' motion under Rule 60(b), the period for filing an appeal was not tolled. In this connection, USSI points out that Turcios has not appealed the judge's ruling that his motion was untimely filed under Rule 59 on April 12, 1995. Therefore, USSI argues, because Turcios filed this appeal on July 28, 1995, more than thirty days after the March 29, 1995 judgment, the appeal cannot go forward.

In his opening brief, Turcios indicates that he has chosen not to appeal the trial court's ruling that his new trial motion was untimely — i.e., that the motion in effect was a request for relief from judgment under Rule 60(b) — because, as he sees it, the ruling under Rule 60(b), rather than under Rule 59, did not "substantially affect his rights." In response to USSI's assertion that the appeal should be dismissed as untimely because Rule 60(b) did not toll the period for appeal, Turcios argues in his reply brief that the crucial fact is the trial court's "obvious and indisputable error in arithmetic," which cannot"deprive this Court of its jurisdiction of the appeal."

Turcios first explains his calculation:

[U]nder Superior Court Civil Rule 6(a)[,] when a time limit prescribed under the rules is less than eleven days, as here [under Rule 59(b) (ten days after entry of judgment)], the computation of that time excludes intervening Saturdays and Sundays. Both the formal Judgment and the docket sheet indicate that the judgment was entered on March 29, [1995] not on March 27[, 1995] as Judge Dorsey erroneously presumed in his order. Accordingly, pursuant to the rules, the ten day period for filing a motion for new trial ended on April 12, the date that [Turcios] filed his motion. Furthermore, as Judge Dorsey noted in his order, when as here a judgment is rendered outside of the presence of the parties and is mailed to them, an additional three days is added to the filing deadline which thereby became April 15, 1995.

He then adds that, because "the trial court took three months to issue its ruling on [the] motion, during which [time Turcios] had no reason to believe that the tolling provisions of [D.C.App.] Rule 4 were inapplicable, equitable principles alone preclude a result that would deny [Turcios] the ability to bring this appeal. See Thompson v. INS, 375 U.S. 384, 386-87 [84 S.Ct. 397, 398-99, 11 L.Ed.2d 404] (1964) [(per curiam)]."

Under the circumstances, we do not believe Turcios' failure to contest on appeal the court's refusal to apply Rule 59, rather than Rule 60, is fatal to this appeal. It is apparent that Turcios has sought this court's ruling on the merits — which both parties have addressed — despite his failure to address the threshold question whether the trial court used the proper rule for considering his new trial motion. We decline to dismiss Turcios' appeal simply because his counsel, in addressing the merits, neglected to realize the tolling issue had to be resolved first. Dismissal of the appeal on that basis, when we can see clear error in the trial court's calculation under Rule 59, would be contrary to our policy of construing parties' pleadings in order to "do substantial justice." Super. Ct. Civ. R. 8(f) (1996); cf. Super.Ct.Civ.R. 1 (1996) (rules "shall be construed and administered to secure the just, speedy and inexpensive determination of every action"); Industrial Bank v. Allied Consulting Serv's, 571 A.2d 1166, 1167 (D.C. 1990) (Superior Court Rules, like the corresponding federal rules, " 'reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome[,] and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' ") (quoting Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)); Tenants of 2301 E Street v. District of Columbia Rental Housing Comm'n, 580 A.2d 622, 624 n. 3 (D.C. 1990) (suggesting that, on remand, hearing examiner could afford landlord relief despite landlord's failure to cross-appeal); Wallace v. Warehouse Employees Union No. 730, 482 A.2d 801, 808-09 (D.C. 1984) (rules of civil procedure should be liberally construed).

Concerns for judicial economy might dictate a different result if the tolling question were complicated, but the analysis here — as Turcios' calculation makes clear — is quite easy. We agree with Turcios' reading of the record and with his analysis of the applicable Superior Court Civil Rules. See Super.Ct.Civ.R. 6(a), 59(b). Turcios' new trial motion was timely filed within the Rule 59(b) time period, as computed under Rule 6(a). The thirty-day period in which Turcios could file an appeal was therefore tolled during the period the court considered the new trial motion, and thus the appeal was timely filed. Accordingly, we turn our attention to the merits.

III.

A.

D.C. Code § 1-2512 forbids discrimination "against any individual, with respect to his [or her] compensation, terms, conditions, or privileges of employment" (among other things), on the basis of "personal appearance." Turcios contends the trial court erred in allowing USSI to proceed with its affirmative defense, namely, that USSI had not discriminated against him on the basis of hispersonal appearance because its conduct fell within the "prescribed standards" exception.³ D.C. Code § 1-2502(22) provides:

"Personal appearance" means the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed standards, when uniformly applied for admittance to a public accommodation, or when uniformly applied to a class of employees for a reasonable business purpose; or when such bodily...