Furline v. Morrison, No. 04-CV-1029.

• Decision Date: 24 July 2008
• Docket Number: No. 04-CV-1114.,No. 04-CV-1029.
• Parties: Mark FURLINE and Howard University, Appellants/Cross-Appellees, v. Cynthia L. MORRISON, Appellee/Cross-Appellant.
• Court: D.C. Court of Appeals

953 A.2d 344

Mark FURLINE and Howard University, Appellants/Cross-Appellees, v. Cynthia L. MORRISON, Appellee/Cross-Appellant.

No. 04-CV-1029.

No. 04-CV-1114.

District of Columbia Court of Appeals.

Argued December 19, 2006.

Decided July 24, 2008.

Jeanett P. Henry, Washington, with whom Sandra A. Maddox was on the briefs, for appellant/cross-appellee Furline.

Musa L. Eubanks, with whom Phillip A. Lattimore, III, was on the briefs, for appellant/cross-appellee Howard University.

Ellen K. Renaud, Washington, with whom Richard L. Swick was on the briefs, for appellee/cross-appellant Morrison.

Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and STEADMAN, Senior Judge.

GLICKMAN, Associate Judge:

The District of Columbia Human Rights Act (DCHRA) prohibits employers from taking adverse personnel actions for discriminatory reasons or to retaliate for opposition to unlawful discrimination. The instant appeals require us to consider how these prohibitions apply where human resources personnel or other disinterested officials of an employer, who have no discriminatory or retaliatory ax to grind, decide to discipline an employee for legally permissible reasons on the biased recommendation of a low-level supervisor. We conclude that the issue turns on whether the supervisor's biased participation undermined the autonomy of the ultimate decisionmaking process. Where, as in this case, decisionmakers presented with a possibly biased recommendation conducted their own independent investigation, which included hearing from the employee, and did not rely on the supervisor in any material way, the resulting adverse personnel action cannot be said to have been taken by the employer for a prohibited reason, and therefore does not violate the DCHRA. Our conclusion necessitates reversal of the judgment for the employee that is challenged in this appeal.

I.

Cynthia Morrison, a forty-six-year-old registrar in the Emergency Care Area (ECA) of Howard University Hospital, was suspended without pay for five days in June 2001. The ostensible reason for her suspension was her absence from work without leave or justification after having been counseled and reprimanded for her prior unsatisfactory attendance. The five-day suspension was authorized by the applicable collective bargaining agreement and was imposed after a hearing conducted by the hospital's Office of Human Resources. Aggrieved by this disciplinary action, Morrison filed a lawsuit in Superior Court against Howard University and Mark Furline, one of three supervisors who proposed her suspension. Morrison alleged that she was the victim of employment discrimination in violation of the DCHRA. Her central claim, the focus of these appeals, is that Furline recommended her suspension to retaliate against her for lodging an age discrimination complaint against him, and also because of his discriminatory animus against older employees in his department. In addition, Morrison's complaint asserted a claim of hostile work environment.

The trial court granted partial summary judgment to the defendants on Morrison's age discrimination and hostile work environment claims. Regarding the former claim, the court ruled that Morrison had not made a prima facie showing that her suspension evinced intentional discrimination on the basis of age because she presented no evidence that any similarly situated younger employee was treated differently. As to the hostile work environment claim, the court ruled that the alleged harassment on which Morrison relied was largely unsubstantiated or not linked to age discrimination, and in any event was not severe and pervasive enough to alter the terms or conditions of Morrison's employment.

The court did not grant summary judgment on Morrison's retaliation claim, however, and that claim proceeded to trial. Defense motions for a directed verdict were denied and the jury found in Morrison's favor, awarding her $15,000 in compensatory damages and $100,000 in punitive damages. The defendants' subsequent motions for judgment notwithstanding the verdict or a new trial also were denied.

The appeals of Furline and Howard University raise a number of challenges to the judgment against them on the retaliation claim, while Morrison's cross-appeal attacks only the grant of summary judgment on her age discrimination claim (and not the adverse ruling on her hostile work environment claim). As we find it unnecessary to reach or resolve most of the issues the parties raise, we set forth only those facts, established at trial, that are pertinent to the ground on which we rest our decision.

Morrison's Complaint Against Furline

Morrison started working as an ECA registrar at Howard University Hospital in 1983, but her age discrimination and retaliation claims arose after the hospital hired Mark Furline as an ECA supervisor and some thirteen new registrars in late 2000. Most of the new hires were in their twenties. Morrison and others perceived that Furline, who was one of three ECA supervisors, exhibited favoritism toward the younger registrars and hostility toward the older workers. Further roiling the workplace, rumors spread that the younger workers were being paid more than the older veterans, though in fact that was not so.

On March 16, 2001, a screen saver message was left on a computer in the registrars' work area asking why the younger registrars were (supposedly) better compensated than their older, more experienced colleagues. This message came to Furline's attention and he chose to respond with a screen saver message of his own, which he placed on a computer in a registration booth frequently used by Morrison. Furline wrote that the younger employees were being paid more because "they are younger, dependable, and more productive, that's why!" Witnesses testified that Furline told them he "would like to see the expression on Ms. Morrison's face when she sees this."

Morrison saw Furline's screen saver message the following day. Her facial expression is not reported, but she and other employees complained to Benjamin Zachariah, the hospital's Director of Business Operations. The specifics of Morrison's complaint to Zachariah are not entirely clear, but judging by its verdict, the jury found that she charged Furline and the hospital with age discrimination. Zachariah responded to the complaints by chastising Furline for leaving the screen saver message and directing him to apologize to the entire ECA staff, which Furline did, personally and in writing. There was no direct evidence at trial that Furline was informed of Morrison's complaint; Zachariah denied having told Furline who had complained about him, and Furline denied having learned that Morrison had done so. However, in finding that Furline's subsequent disciplinary actions against Morrison were retaliatory, the jury evidently inferred that he knew (or at least believed) she had complained about him. Whether there was sufficient evidence at trial to support that inference is debatable, but we shall assume for the sake of argument that Furline was aware or suspected that Morrison had lodged an age discrimination complaint against him.

Morrison's Disciplinary Suspension

Morrison and the other registrars in the ECA were covered by a collective bargaining agreement, pursuant to which they were subject to "progressive" discipline for absenteeism, tardiness and excessive use of sick leave. Prior to the screen saver incident, Morrison was identified as a candidate for such discipline. In November 2000, hospital management commenced a three-month study to document and address time and attendance problems among the registrars. The study confirmed that problems of absenteeism, lateness, and apparent abuse of leave were widespread; in February 2001, sixteen of the nineteen registrars were counseled about the need to improve their attendance. One of those sixteen registrars was Morrison. The time and attendance study showed that from November through January, Morrison used 55 hours of unscheduled leave, which included five days (40 hours) she took off at the beginning or end of her work week.¹ On February 2 and 5, 2001, a Friday and a Monday, Morrison took an additional sixteen hours of unscheduled leave. Although Morrison charged all this time to sick leave, claiming she was genuinely ill, the pattern suggested she might have been abusing her leave in order to lengthen her weekends. In mid-February, Furline informally counseled Morrison about her attendance — the first step in progressive discipline — and referred her to the hospital's employee assistance program for a fitness-for-duty examination. The examination confirmed Morrison's ability to work without restrictions or accommodations.

The following month, however, Morrison used another sixteen hours of unscheduled sick leave to take off March 5 and 19 — two Mondays. Thus, over the five-month period from November through March, Morrison used a total of 87 hours of unscheduled leave, mostly by taking off Mondays or Fridays (72 hours). As Morrison already had been counseled about her attendance in February, Furline and the other two supervisors in the ECA jointly issued her a formal letter of reprimand on March 27, 2001. This letter, the next step in progressive discipline under the collective bargaining agreement, warned Morrison that if she did not show "immediate improvement" in her "time and attendance," she would face further disciplinary actions "up to and including suspension and/or termination." As Morrison emphasizes, she was given this reprimand only ten days after she complained about Furline to Zachariah.²

The conduct that precipitated Morrison's suspension occurred in May 2001, approximately two-and-a-half months after she complained about Furline's screen saver message. Starting on May 9, the posted work schedules for the ECA showed Morrison as having to work on the Memorial Day holiday, which was Monday, May 28. Morrison objected...