Howard University v. Green

• Decision Date: 22 December 1994
• Docket Number: No. 93-CV-18.,93-CV-18.
• Citation: 652 A.2d 41
• Parties: HOWARD UNIVERSITY, Appellant, v. LuEthel Tate GREEN, Appellee.
• Court: D.C. Court of Appeals

652 A.2d 41

HOWARD UNIVERSITY, Appellant, v. LuEthel Tate GREEN, Appellee.

No. 93-CV-18.

District of Columbia Court of Appeals.

Argued October 26, 1994.

Decided December 22, 1994.

Janet Pitterle Holt, with whom Susan L. Riley, Washington, DC, was on brief, for appellant.

Alan Banov, Washington, DC, for appellee.

Before SCHWELB, KING, and KENNEDY^*, Associate Judges.

KING, Associate Judge:

In this civil action for retaliatory termination of employment, appellant Howard University Hospital ("Howard University" or "Hospital"), the former employer of appellee LuEthel Tate Green ("Green"), seeks reversal of a judgment in favor of Green, or in the alternative, a new trial. Howard University contends the trial judge erred in denying its post trial motion for judgment notwithstanding the verdict ("JNOV") because Green failed to make out a prima facie case for retaliation under the District of Columbia Human Rights Act ("DCHRA"). Alternatively, Howard University claims the trial court's erroneous admission of rumors concerning the homosexuality of certain Hospital employees, including Green's supervisor, so prejudiced the jury that it was unable to fairly decide the case on the merits, thus entitling it to a new trial.

For the reasons set forth below, we hold that Green did not establish her prima facie case for retaliation; accordingly, we reverse the trial court's denial of Howard University's motion for JNOV.

I.

Green, a former Associate Director of Nursing at Howard University Hospital, brought this action under the DCHRA, claiming she had been included in a reduction-in-force ("RIF") in retaliation for complaining of alleged sexual orientation discrimination in the Division of Nursing.¹ Specifically, Green alleged her immediate supervisor, who was the Director of Nursing ("Director") and the organizer of the RIF, maintained homosexual relationships with another Associate Director of Nursing ("Associate Director"), and a Patient Care Coordinator ("Coordinator"), a subordinate of Green's, neither of whom were included in the RIF, and that Green was included in the RIF because she complained of these relationships.

Green alleged that throughout her twenty years of employment with the Hospital, the Director frequently showed partiality to both the Associate Director and the Coordinator by granting them extensive overtime pay, liberal sick leave, choice working assignments, and lenient disciplinary action. Green frequently complained of this favoritism, verbally and in writing, to the Director, and on a few occasions, to other Hospital managers, suggesting it undermined her authority, contradicted Hospital policy, and adversely affected department morale. Green conceded at trial that she never explicitly linked these complaints to the alleged homosexual activity or directly complained of sexual orientation discrimination. Nonetheless, she maintains that because of so-called "rampant rumors" of homosexual activity among the three women, the Director knew that Green's otherwise work-related complaints were actually complaints of sexual orientation discrimination.

Over Howard University's objections, the trial court permitted Green to present testimony concerning the rumors of homosexuality among the women to establish that Green was actually protesting preferential treatment of homosexuals. Specifically, the trial court found that a taped conversation between the Director and Green, in which Green remarked "that the grapevine rumor mill had not been kind to the Director ... and that she was sick of rumors of `Ms. Director this, Ms. Coordinator that,'" was sufficiently clear to place the Director, and thus, the Hospital, on notice that: (1) Green was referring to rumors of alleged homosexuality and, therefore, (2) Green was actually complaining of sexual orientation discrimination.

Also over appellant's objection, the trial court permitted Green to establish that she reasonably believed the favoritism exhibited by the Director was based on homosexual preferences by admitting evidence of: (1) sexual orientation-neutral facts about the women's social activities, such as their taking shopping trips together, their practice of occasionally spending nights in each others' homes, and their dining together; (2) personal facts about the women, such as their marital status, mode of dress, and the length of the friendship among them; and (3) homosexual stereotypes such as the belief that homosexuals can be identified by their appearance, and the view that the provision of financial assistance equates to playing the "male role." At trial, however, the Director unequivocally testified she was not homosexual and had never engaged in homosexual relations with any woman.²

After the nearly four-week trial the jury returned a verdict in favor of Green, awarding her $140,000. In a lengthy Memorandum Opinion, the trial court denied Howard's motions for JNOV and a new trial, holding that Green made out a prima facie case of retaliation and the admission of rumors of homosexuality was not overly prejudicial. This appeal followed.

II.

The dispositive issue in this appeal is whether evidence of mere rumors, regardless of how pervasive and long-established, and a taped conversation vaguely referencing such rumors, provides a sufficient basis on which a jury can reasonably conclude that otherwise work-related complaints rise to the level of activity protected by the DCHRA. In resolving this question we look for guidance to our cases addressing retaliation under the DCHRA and to retaliation case law under federal employment discrimination legislation analogous to the DCHRA ("Title VII").³

A.

Under the DCHRA⁴ it is an unlawful discriminatory practice for an employer to retaliate against a person on account of that person's opposition to any practice made unlawful by the DCHRA. See Young v. Sutherland, 631 A.2d 354, 361 (D.C.1993). To make out a prima facie case of retaliation, the plaintiff must establish: (1) she was engaged in a protected activity, or that she opposed practices made unlawful by the DCHRA; (2) the employer took an adverse personnel action against her; and (3) a causal connection existed between the two. See Young, supra, 631 A.2d at 368; Goos, supra note 4, 715 F.Supp. at 3; Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2nd Cir.1988). Because Green failed to establish the first element of her prima facie case, her entire claim fails; therefore, we need not discuss the other two elements.

With respect to the first element we note that, while under the DCHRA it is unlawful "to deprive any individual of equal employment opportunities because of his or her sexual orientation," Newman v. District of Columbia, 518 A.2d 698, 700 (D.C.1986), employment practices such as cronyism and favoritism are not actionable under anti-discrimination statutes such as the DCHRA.⁵ However, while proof of mere favoritism is insufficient to establish a claim of discrimination under the DCHRA, to make out a claim for retaliation, the plaintiff need only prove she had a reasonable good faith belief that the practice she opposed was unlawful under the DCHRA, not that it actually violated the Act. See Manoharan, supra, 842 F.2d at 593; Love v. RE/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir.1984) ("every circuit that has considered the issue ... has concluded that opposition activity is protected when it is based on a mistaken good faith belief that Title VII has been violated.") (citations omitted).

Although in a retaliation action a plaintiff is not required to prove that the activity which she opposed constituted an actual violation of the Act, she nonetheless must voice her complaint about, or oppose, the allegedly unlawful activity in order to prevail on her claim.⁶ Integral to this opposition requirement is that the plaintiff must alert the employer that she is lodging a complaint about allegedly discriminatory conduct.⁷ Employer awareness that the employee is engaged in protected activity is thus essential to making out a prima facie case for retaliation. Cf. Manoharan, supra, 842 F.2d at 593 (court's rendition of prima facie case for retaliation under analogous Title VII explicitly states a requisite fourth element "that the employer was aware of that protected activity"). Therefore, to establish a prima facie case of retaliation, Green must show she opposed or complained of activity which she reasonably, in good faith, believed was based on sexual orientation discrimination, and that she so informed the employer. See Manoharan, supra, 842 F.2d at 593.

While Green complained on many occasions about the alleged favoritism the Director showed for these two women, she repeatedly admitted during her testimony that she never complained to anyone at Howard University about the existence of sexual orientation discrimination until she filed her lawsuit in District Court.⁸ Indeed, the trial court explicitly found, "Green never was direct in her complaints regarding alleged homosexuality nor did she expressly tell ... the Director or any higher Howard University management official that ... the Director was engaging in sexual orientation discrimination, and that the employment practices she questioned was sic the result of such discrimination." Further, Green testified that, despite her twenty-year tenure at the Hospital and her familiarity with Howard Employee Handbooks and discrimination complaint procedures, she never indicated to anyone before the RIF that she believed the other Associate Director and Coordinator were homosexual, or that she felt she was being treated less favorably because of the Director's alleged relationships with these women. Additionally, unbeknownst to the Director, Green met with the Chief Executive Officer of the Hospital in June 1989 and with the Interim President of the University in February 1990. During these meetings Green only complained of social cliques and...