Vogel v. Dc Office of Planning, No. 05-CV-186.

• Decision Date: 13 March 2008
• Docket Number: No. 05-CV-186.
• Parties: Mary VOGEL, Appellant v. DISTRICT OF COLUMBIA OFFICE OF PLANNING, et al., Appellees.
• Court: D.C. Court of Appeals

944 A.2d 456

Mary VOGEL, Appellant v. DISTRICT OF COLUMBIA OFFICE OF PLANNING, et al., Appellees.

No. 05-CV-186.

District of Columbia Court of Appeals.

Argued May 4, 2006.

Decided March 13, 2008.

Barbara Kraft, Washington, DC, for appellant.

William J. Earl, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General at the time the brief was filed, and Edward E. Schwab, Deputy Attorney General at the time the brief was filed, were on the brief, for appellee District of Columbia Office of Planning.

Before FARRELL, GLICKMAN and KRAMER, Associate Judges.

GLICKMAN, Associate Judge:

Appellant Mary Vogel is a former community planner with the District of Columbia Office of Planning ("OP"). She was terminated at the end of her probationary employment period. Vogel complained to the District of Columbia Office of Human Rights ("OHR"), which found that OP had retaliated against her for activity protected by the District of Columbia Human Rights Act ("DCHRA"). OHR directed OP to reinstate Vogel with back pay. The Superior Court reversed OHR's determination, finding that Vogel was not entitled to relief because she had not engaged in protected activity. Vogel has appealed. We affirm.

I.

Mary Vogel commenced her employment with the Office of Planning in July of 1999. Vogel, who was fifty years old and had a master's degree in urban and regional planning, was hired as a DS-11 employee, the lowest salary grade level, for a one-year probationary period. Her duties as a community planner included preparing plans, reports, and studies, and reviewing and commenting on proposed zoning revisions.

In August 1999, Andrew Altman became the Director of OP. Altman brought in Maria Wallace as Director of Operations and Ellen McCarthy as a Deputy Director. McCarthy became Vogel's supervisor. Altman also hired a number of other employees, some of them as Special Assistants to the Director, at relatively high grade levels. A majority of the new hires (though not Wallace or McCarthy¹) were under forty years old and younger but better paid than the staff members who had been at OP before Altman arrived. The latter group of workers, including Vogel, perceived that they were being treated inequitably and disrespectfully by Altman and Wallace. In January 2000, Vogel met privately with Altman to complain about her low pay, Wallace's overbearing management style, and Altman's unavailability to meet with Vogel about her work.

Some five months later, on June 7, 2000, McCarthy recommended that Vogel be terminated. According to McCarthy, Vogel did not meet the needs of her department because her expertise was in environmental planning rather than zoning. OP accepted McCarthy's recommendation and terminated Vogel's employment at the end of the month. Vogel was offered an opportunity to continue working for OP under a consulting contract, which she declined.

Instead, Vogel complained to OHR that OP had terminated her on account of her age and in retaliation for complaining of age discrimination in her January 2000 meeting with Altman. Vogel alleged that Altman and his second-in-command Wallace "treated the older workers who were there prior to his arrival differently than . . . the younger workers that he had hired." Specifically, the new Special Assistants were paid more than the "older Community Planner employees" even though they "performed essentially the same duties." In particular, Vogel stated, "[t]hese Special Assistants were paid $20,000 to $50,000 a year more than I was paid." Moreover, Vogel asserted, Altman "systematically shunned" the older employees (while being "friendly" and "more available" to the employees he had hired), and Wallace was discourteous and "tyrannical" to the older staff members, like "an army drill sergeant at boot camp," which "created an atmosphere of fear and distrust."²

With respect to her meeting with Altman, Vogel alleged the following:

Because of what they felt was an obvious difference in treatment, many of the older workers believed Mr. Altman was trying to push them out of their positions. At first, I did not believe their perceptions were correct. I believed that Mr. Altman only needed further information and he would change my co-workers' perceptions of himself and Ms. Wallace's treatment of all of us. I believed that because he was out of the office so often that he was unaware of the poor employee morale situation that Ms. Wallace was creating. I was sure that once he knew about it, he would act to change it. In January 1999[³], I met with Mr. Altman and expressed to him my concerns about: 1) Ms. Wallace; 2) unequal pay scales for the same work; and 3) his lack of availability to discuss my cases.

Vogel believed that the reason McCarthy gave for her termination was pretextual, "because I have a broad background and experience in urban planning and community development, and I had performed my duties as a zoning planner very well. . . . I never received any negative comments about my work performance from Ms. McCarthy or Mr. Altman."

OHR duly undertook to investigate Vogel's complaint. It does not appear that the Office's investigators interviewed Altman, Wallace or McCarthy (though apparently they did interview other OP employees). However, OHR served interrogatories and requests for documents on OP. In its answers to that written discovery, OP disputed Vogel's claims and pointed out that it was difficult to tell if her allegation of disparate treatment of employees was based on age or date of hiring. OP explained that Altman's Special Assistants were paid more than Vogel and other community planners because they were doing "vastly different work, requiring long hours, specialized skills and experience, and other characteristics deemed essential by Mr. Altman." While OP acknowledged that Altman had a meeting with Vogel in which she "raised a number of issues," it insisted that Altman "never had a conversation with [Vogel] about salary inequities." OP stated that Vogel was terminated for the reason stated by McCarthy and "because her work was unsatisfactory" in several respects. OP denied that Vogel was terminated on account of her age or because she met with Altman to discuss "perceived inequities."⁴

Vogel was afforded the opportunity to respond in writing to OP's interrogatory answers. With respect to her January 2000 meeting with Altman, Vogel acknowledged in her initial response that she had complained only about her own salary:

I did not have a conversation with Mr. Altman about salary inequities, rather my own salary inequity, so perhaps technically the Respondent is correct here. (Although I was aware that other older employees perceived salary inequities, I was speaking with him only about myself.)

[I]t was at the end of my conversation with him over Maria Wallace's treatment of me. I said that I found it hard to maintain my enthusiasm for the job when there would be four newer people making nearly twice the salary I was making for doing the same work. His response was that "They would not be doing the same work." When I asked how their work would be different he replied, "Their work would be at a higher level and they will have more experience with zoning than you."

I asked how experience elsewhere helped them to know the geography, politics, zoning regulations and comprehensive plan of DC. He did not respond, but continued to maintain that I was not being treated unfairly. I told him that I felt demoralized by his response and still wanted greater equity.

"To clarify the concerns I expressed to Mr. Altman," Vogel added in a supplemental response to OP's interrogatory answers, "I discussed largely my dissatisfaction with my pay level in comparison to the new people who were to be hired in Development Review [Vogel's department]."

In addition to her salary, Vogel stated in her supplemental response that she discussed two other topics with Altman: "the difficulty of meeting with him to discuss the Office's position in controversial zoning cases and Maria Wallace's abusive behavior." Regarding the former, Vogel explained that she needed to hear from Altman whether OP would support her recommendations. Altman agreed that he was difficult to catch because he was often away from the office, and he promised to institute office hours when he would be available. ("[B]ut this was not done during my tenure," Vogel commented.) As to Wallace's harsh treatment of the older employees, Vogel told Altman, "It is widely believed that you brought Ms. Wallace aboard to get rid of us." Thus, according to Vogel, "Mr. Altman was aware that older workers believed that he was trying to push them out of their positions because I told him this was the case at my January 2000 meeting with him." However, Vogel reported, in their meeting Altman "denied that that was the case."

OHR concluded its investigation and issued a preliminary Letter of Determination on July 8, 2003. The Letter found probable cause to believe that Vogel was terminated because of her age, largely because she had performed her duties well and OP's nondiscriminatory rationale for firing her was "unworthy of credence" and pretextual.⁵ OHR also cited the fact that 21 of 27 employees hired during Altman's tenure as Director were under the age of 40.

The Letter found no probable cause to believe that Vogel's termination was retaliatory, however. OHR found that Vogel met with Altman in January 2000 "to express concerns about the brash treatment from the Director of Operations, the unequal pay scales for the older versus younger workers for the same work, and the Director of OP's lack of availability to discuss [Vogel's] concerns." OHR agreed that this activity, which it characterized as a "complaint of disparate treatment based on age," was protected by the DCHRA (albeit the salary differentials were, in fact, justified,⁶ and there was "no proof" that the other conduct to which Vogel objected was actually due to...