Little v. Dist. of Columbia Water

• Decision Date: 29 May 2014
• Docket Number: No. 12–CV–1812.,12–CV–1812.
• Citation: 91 A.3d 1020
• Parties: Archie LITTLE, Appellant, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, et al., Appellees.
• Court: D.C. Court of Appeals

91 A.3d 1020

Archie LITTLE, Appellant,
v.
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, et al., Appellees.

No. 12–CV–1812.

District of Columbia Court of Appeals.

Submitted Jan. 16, 2014.
Decided May 29, 2014.

[91 A.3d 1023]

David A. Branch was on the brief for appellant.

Grace E. Speights, Washington, DC, and Joselyn R. Cuttino were on the brief for appellee District of Columbia Water and Sewer Authority.

Jeanett P. Henry, Washington, DC, was on the brief for appellee C&E Services, Inc.

Before THOMPSON and McLEESE, Associate Judges, and FERREN, Senior Judge.

THOMPSON, Associate Judge:

Appellant Archie Little appeals from the Superior Court's grant of summary judgment to defendants/appellees C & E Services, Inc. (“C & E”) and the District of Columbia Water and Sewer Authority (“DC Water”) on his claims of age discrimination in violation of the District of Columbia Human Rights Act (“DCHRA”) ¹ and (as to DC Water) tortious interference with his employment relationship with C & E. We affirm the judgment.

I.

For several years prior to May 2009, appellant was employed by C & E, which had a series of contracts with DC Water to supply instrumentation technicians to perform work at DC Water facilities. On April 22, 2009, appellant received a letter from Carl Biggs, the president and owner of C & E, thanking appellant “for all the support that [he] ... provided for C & E services and [DC Water] over the years,” acknowledging that appellant “plan[ned] to retire at the end of the [then-current 2004] contract [with DC Water],” and informing him of a planned retirement luncheon to mark the occasion.

Appellant averred in his Complaint that he never indicated an intent to retire in May 2009 or at the end of the contract, but that, during a meeting on May 8, 2009, Biggs demanded his resignation and stated that his last day would be May 13. Appellant further alleged that DC Water “maintained

[91 A.3d 1024]

control over C & E employees and influenced and directed [C & E] hiring and termination decisions”; and that DC Water supervisors had notified C & E that “in order for [DC Water] to establish a new contract with [C & E], [appellant] could not be on the job” and that C & E's “contract would not be renewed if [appellant] was not removed from employment.” The Complaint also alleges that C & E “was acting out [DC Water's orders]” by “forcing [appellant] to retire.” Count I alleges that DC Water and C & E “forc[ed] [appellant] to vacate his position due to his age” in violation of the DCHRA, and that he was “terminated due to his age”—74 years old as of May 2009—“even though he was more qualified th [a]n several other workers who remained.” Count II alleges that DC Water tortiously interfered with appellant's employment relationship with C & E.

The parties filed cross-motions for summary judgment. In denying appellant's motion, the trial court cited the parties' factual dispute about whether appellant was terminated (as he contends) or retired (as C & E contends ²), a dispute that the court determined could not be decided on summary judgment. In granting summary judgment to C & E and DC Water on Count I of the Complaint, the trial court stated that appellant had not presented “any evidence of prejudicial or biased statements made by decision-makers, in a context related to the decision-making process”; that the evidence appellant did present was of “stray remarks by non-decision-makers outside a context related to the decision-making process”; and that appellant had presented no “direct evidence of age discrimination.” The court also ruled that appellant had “not even come close to satisfying” his burden of presenting a sufficient evidentiary basis from which an inference of discrimination could be drawn, since he had no evidence that he was let go in lieu of younger workers because of contract overstaffing, and no evidence that he was treated less favorably than similarly situated workers. Finally, in granting summary judgment to DC Water on the tortious interference claim, the court reasoned that as an at-will employee of C & E, appellant could not “maintain a suit for interference with prospective advantage where [his] expectancy was based on an at will relationship.” In addition, the court stated that appellant had presented no evidence that anyone at DC Water “ever communicated to Mr. Biggs that [appellant] should not be working on contracts with DC Water[.]”

This appeal followed. Appellant does not challenge the denial of his own summary judgment motion, but contends that the trial court erred in granting summary judgment to C & E and DC Water.

II.

“In reviewing a trial court order granting a summary judgment motion, we conduct an independent review of the record, and our standard of review is the same as the trial court's standard in considering the motion for summary judgment.” Young v. U–Haul Co. of District of Columbia, 11 A.3d 247, 249 (D.C.2011) (internal quotation marks omitted). Thus, we apply the standard set out in Super. Ct. Civ. R. 56(c): “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,

[91 A.3d 1025]

and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Bruno v. Western Union Fin. Servs., Inc., 973 A.2d 713, 717 (D.C.2009). “Though we view the evidence in the light most favorable to the non-moving party, mere conclusory allegations by the non-moving party are legally insufficient to avoid the entry of summary judgment.” Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1281 (D.C.2002) (citation omitted).

III.

“The DCHRA makes it an unlawful discriminatory practice for an employer to take adverse action against an employee wholly or partially for a discriminatory reason based upon age.” Furline v. Morrison, 953 A.2d 344, 352 (D.C.2008) (ellipses and internal quotation marks omitted). ³ To prove discrimination by direct evidence, “the plaintiff must present evidence of conduct or statements by persons involved in the decision making process that may be viewed as directly reflecting the alleged discriminatory attitude sufficient to permit the factfinder to infer that that ... attitude was more likely than not a motivating factor in the alleged adverse action.” Jung v. George Washington University, 875 A.2d 95, 111 (D.C.2005) (alterations and internal quotation marks omitted; emphasis in the original). This is a “heavy burden,” because “not every comment reflecting discriminatory attitudes will support an inference that it was a factor motivating the adverse decision.” Id. For example, “[s]tray remarks in the workplace and statements by decision makers that are unrelated to the decision making process are not considered sufficient to satisfy the direct evidence burden.” Id.

As described above, the trial court found that appellant had presented no “direct evidence of age discrimination” and no evidence of “prejudicial or biased statements made by decision-makers, in a context related to the decision-making process.” We note that the court did not refer to appellant's allegation in the Complaint that Biggs “told him that he planned to hire a much younger man for [appellant's] position,” or to appellant's deposition testimony that Biggs told him that C & E was “probably going to go with younger people at the next contract” (a statement that Biggs denied making). Had appellant cited these putative statements as direct evidence that C & E acted with a discriminatory motive, the trial court possibly would have treated them as evidence of age-related animus. Remarkably, however, appellant did not cite these putative statements in any of his summary judgment papers—either in his own brief in support of his motion for summary judgment, in his Statement of Undisputed Material Facts, or in his opposition to appellees' motions. Therefore, even assuming arguendo that the putative statements were direct evidence of age discrimination (i.e., were direct evidence that, as appellant alleges, “Biggs considered DC Water employees' age-based animus in terminating” him), we cannot conclude that appellant's deposition testimony precluded the trial court from granting summary judgment for appellees. It was “not the burden of the trial court to search the record, unaided by counsel, to determine whether summary judgment [was] proper.”

[91 A.3d 1026]

Vessels v. District of Columbia, 531 A.2d 1016, 1019 (D.C.1987) (internal quotation marks omitted); see also id. at 1019 n. 7 (“[W]here all parties participated in bringing what they felt were the significant factual issues to the court's attention, the court may expect counsel not to completely overlook a genuine issue.”). And, although our review is de novo, in his briefs filed in this court, appellant again has not cited Biggs's putative statements about hiring a younger worker or workers. We can only assume that appellant has abandoned his assertion that Biggs made such any such statements.⁴

Considering the evidence that appellant did bring to the trial court's attention and emphasizes again on appeal, we agree with the trial court that appellant presented no direct evidence of age discrimination by decision makers. Appellant relies on the deposition testimony of DC Water employee Timothy Smith, who testified that he heard fellow DC Water employee Edwin Yaniga refer to appellant as “the old man” and say that he did not want appellant on the contract. Appellant also relies on the deposition testimony of DC Water employee William Jeffrey Washington, Sr., who testified that “first-line supervisors” at DC Water, including Bill Adams, wanted appellant off the contract because they didn't like him; further testified that he heard Adams say that “[w]e just need to get [appellant's] old butt down here and get him off the job”; and described “the animosity that resided [among the supervisors] toward[ ]...