Molovinsky v. Fair Employment Council

• Decision Date: 03 October 1996
• Docket Number: No. 93-CV-1142.,93-CV-1142.
• Citation: Molovinsky v. Fair Employment Council, 683 A.2d 142 (D.C. 1996)
• Parties: Gale S. MOLOVINSKY, t/a Executive Suite, Appellant, v. FAIR EMPLOYMENT COUNCIL OF GREATER WASHINGTON, INC., et al., Appellees.
• Court: D.C. Court of Appeals

683 A.2d 142

Gale S. MOLOVINSKY, t/a Executive Suite, Appellant, v.FAIR EMPLOYMENT COUNCIL OF GREATER WASHINGTON, INC., et al., Appellees.

No. 93-CV-1142.

District of Columbia Court of Appeals.

Argued June 6, 1995.

Decided October 3, 1996.

Gale S. Molovinsky, pro se.

Joseph M. Sellers, Washington, DC, with whom Avis E. Buchanan, John R. Erickson, and Paul D. Manca were on the brief, for appellees.

Before FERREN, TERRY, and STEADMAN, Associate Judges.

PER CURIAM:

AppelleesMaria Henderson, Laura Hodges, Karen Baker, and the Fair Employment Council of Greater Washington, Inc.("FEC"), filed this sex discrimination suit against appellant Molovinsky.In their complaint, the three female plaintiffs alleged that when, in response to an advertisement, they sought employment advice from appellant, he sexually harassed them, in violation of the District of Columbia Human Rights Act, D.C.Code §§ 1-2501 to 1-2557(1992)("DCHRA" or "the Act").The FEC alleged that appellant's conduct violated the DCHRA and frustrated the FEC's purpose by forcing it to divert resources from its established programs in an effort to address appellant's misconduct.A jury found appellant liable and awarded damages to all of the appellees.Before this courtappellant makes several assignments of error.He contends (1) that the FEC and the individual testers (Hodges and Baker) lacked standing to bring an action against him and were therefore not entitled to damages; (2) that the evidence was insufficient to permit the jury to find that his company, "Executive Suite," met the statutory definition of an "employment agency"; (3) that the evidence was insufficient to permit the jury to find that his conduct was a "discriminatory practice" within the meaning of the DCHRA; (4) that the evidence was insufficient to justify an award of punitive damages; (5) that the trial court erred in allowing him to be impeached with evidence of a prior conviction; (6) that the court erred in permitting appellees' counsel to strike a white male juror; and (7) that the court erred in refusing to reread its entire instruction on punitive damages in response to a jury note.We decline to reach the second, third, and fourth arguments because appellant failed to preserved those issues for appellate review.We reject his other arguments and affirm the judgment.

I

In the spring of 1990, Maria Henderson responded to an advertisement by appellant's company, Executive Suite, in the Washington Post which offered career opportunities paying from $25,000 to $100,000.Ms. Henderson called and made an appointment for an interview with appellant Molovinsky, the owner, at the Executive Suite offices in downtown Washington.On the scheduled date, while Ms. Henderson was waiting to meet with Mr. Molovinsky, the receptionist gave her a brochure explaining the various services offered by Executive Suite.The brochure promoted enhancement of personal skills, strategic and educational advice and consultation, and referral services.

During the interview Mr. Molovinsky discussed with Ms. Henderson various ways to improve her résumé.He also said that by using his services she could bypass personnel departments and make contact directly with the chief executive officers of major companies.However, when he told her that he charged between $300 and $1500 for his services, Ms. Henderson explained that she could not afford them.At that point, according to Henderson's testimony, Molovinsky's demeanor changed: he became "very rude and vulgar" and made references to "sugar daddies,""pimps," and "prostitution."Molovinsky's told Henderson that if she would just "give a little bit part of her life,"he would give her "the greatest deal of her life."When Ms. Henderson asked him what he meant, Molovinsky lowered his voice and said, "Sex."He told her that "through sex, that's a way of taking care of the financial problem."

Ms. Henderson reported Molovinsky's conduct to the Washington Lawyers' Committee for Civil Rights("WLC"), which forwarded her complaint to the FEC.After determining that the matter warranted further investigation, the FEC designed a gender discrimination testing program and arranged for four testers — two men and two women — to pose as job seekers and visit Executive Suite.Each tester telephoned Executive Suite individually and arranged for an appointment with Mr. Molovinsky.

The two female testers, Laura Hodges and Karen Baker, had experiences similar to that of Ms. Henderson.When they informed Molovinsky that they could not afford his services, he offered to provide free services in exchange for his being their "sugar daddy" or "pimp."All three women, including Ms. Henderson, testified at trial that Molovinsky's eye contact and sexually suggestive hand gestures had made them uncomfortable, that they had felt humiliated, and that they had lasting negative impressions of their encounter with him.

Agatha Farngalo, a woman who independently had made a similar complaint to the WLC, testified that when she visited Molovinsky in 1990 prior to Ms. Henderson's visit, Molovinsky had asked her also if she had a "sugar daddy" and offered to waive his fees in exchange for sex, even suggesting at one point that they go to a room in a nearby hotel.Ms. Farngalo also testified to the lingering emotional effects and humiliation she had experienced.

The testimony of the two male testers, John Pospisil and Ernest Tuckett, was quite different.They said that when they informed Mr. Molovinsky that they could not afford his services, Molovinsky merely told them to get a job, earn some money, and come back later.Pospisil and Tuckett also testified that Molovinsky had represented Executive Suite as "the only employment agency in town for college graduates."

Inez Smith Reid, the Chairperson of the FEC, testified about the harm that Molovinsky's conduct caused to the FEC.Ms. Reid explained that the FEC's purpose is to promote equal employment opportunity within the District of Columbia, and that its primary goals are to train high school students, to conduct research to identify barriers to equal employment opportunities, to engage in race testing to uncover racial discrimination, and to participate in community outreach and public education.According to Ms. Reid's testimony, Molovinsky's conduct had frustrated the FEC's purpose by forcing it to divert resources from its established programs to undertake sexual discrimination testing.The FEC thus had to incur unexpected costs for counseling victims of sex discrimination, for educating the public about the kinds of unacceptable conduct that constituted sexual harassment, and for placing additional emphasis on community out-reach and public education.¹

Molovinsky's defense consisted solely of his own testimony.He denied propositioning the female testers and Ms. Henderson and denied suggesting to any of them that he would waive his fees in exchange for sex.He admitted that he might have used the term "sugar daddy," but he insisted that if he did, it was merely part of a standard sales pitch that included asking people who lacked funds whether they had "a favorite uncle or somebody" to take care of them.

The jury returned a verdict against Molovinsky and awarded damages to each of the plaintiffs.To Ms. Henderson the jury gave $17,000 in compensatory damages and $10,000 in punitive damages; to Ms. Baker and Ms. Hodges, $5,000 each in compensatory damages and $10,000 each in punitive damages; and to the FEC, $22,000 in compensatory damages.

II

Mr. Molovinsky urges us to reverse on the ground that the individual testers and the FEC lacked standing to bring an action against him.We hold that both the individual testers and the FEC had standing to bring claims under the DCHRA.

A.Individual Tester Standing

Molovinsky relies on Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp.,307 U.S.App. D.C. 401, 28 F.3d 1268(1994), for the proposition that individual testers do not have standing to sue under the DCHRA.BMC, however, has little persuasive value on the tester standing issue.The BMC court did not address the anti-discrimination provision that most closely resembles the DCHRA in terms of prohibited practices and available relief: Title VII of the 1964 Civil Rights Act, as amended by the 1991 Civil Rights Act.²See42 U.S.C. §§ 2000e-1 to 2000e-17(1994);Arthur Young & Co. v. Sutherland,631 A.2d 354, 361 & n. 17(D.C.1993).Thus we turn to the language of the DCHRA itself in deciding the tester standing issue.

The DCHRA allows "any person claiming to be aggrieved" by a discriminatory practice to bring an action in court against the offending party.D.C.Code § 1-2556(a).The Supreme Court has construed the nearly identical language of the Civil Rights Act of 1968("any person who claims to have been injured") to confer standing to the full extent that Article III of the Constitution permits.Trafficante v. Metropolitan Life Insurance Co.,409 U.S. 205, 209, 93 S.Ct. 364, 366, 34 L.Ed.2d 415(1972);seeGray v. Greyhound Lines East,178 U.S.App. D.C. 91, 98, 545 F.2d 169, 176(1976)(construingTitle VII language, identical to the DCHRA, to confer standing to the limits of Article III).Although this court is not bound by Article III, the use of the quoted phrase indicates to us that standing under the DCHRA is co-extensive with standing under Article III.

Violation of a plaintiff's statutory rights may itself constitute an "actual or threatened injury" sufficient to confer Article III standing.Havens Realty Corp. v. Coleman,455 U.S. 363, 373, 102 S.Ct. 1114, 1121, 71 L.Ed.2d 214(1982).In Havensthe Supreme Court held that a tester who alleged a violation of her statutory right to truthful housing information satisfied the Article III requirement of injury in fact.Id. at 374, 102 S.Ct. at 1121.The plaintiff testers in this case alleged a violation of their statutory right to be free from...