Newsweek Magazine v. Dist. of Columbia Comn.

• Decision Date: 28 March 1977
• Docket Number: No. 8228.,8228.
• Citation: 376 A.2d 777
• Court: D.C. Court of Appeals
• Parties: NEWSWEEK MAGAZINE, Newsweek — Washington Bureau, Mel Elfin, Petitioners, statement. v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent, Samuel F. Yette, Intervenor.

Page 777

376 A.2d 777

NEWSWEEK MAGAZINE, Newsweek — Washington Bureau, Mel Elfin, Petitioners, statement. v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent, Samuel F. Yette, Intervenor.

No. 8228.

District of Columbia Court of Appeals.

Argued February 20, 1975.

Decided March 28, 1977.

Reargued April 11, 1977.

Rehearing En Banc Denied August 8, 1977.

Richard M. Cooper, Washington, D. C., was on the brief, for petitioners.

C. Francis Murphy, Corp. Counsel, Washington, D. C., at the time the brief was filed, Louis P. Robbins, Principal Asst. Corp. Counsel, Richard W. Barton and Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.

James A. Dobkin, Washington, D. C., with whom Clifford L. Alexander, Jr., and Paul S. Ryerson, Washington, D. C., were on the brief and on the petition, for intervenor.

Edward Bennett Williams, Washington, D. C. (on brief), with whom Harold Ungar, Washington, D. C., was on the opposition, for petitioners.

Before FICKLING,^* GALLAGHER and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

Petitioners seek reversal of a decision of the respondent District of Columbia Commission on Human Rights (hereinafter the Commission) awarding complainant Samuel F. Yette $1,000 damages and $20,000 attorneys fees for alleged acts of racial discrimination assertedly perpetrated on him by Newsweek Magazine, his employer, and Mel Elfin, the Washington Bureau Chief. Petitioners also urge this court to overturn the Commission's order requiring the magazine to establish and maintain in its Washington office an affirmative action program and to make regular reports on that program to the Office of Human Rights. In particular, petitioners contend that the Commission's findings were legally insufficient and that the evidence adduced at the hearing did not support the charges made. In addition, they assert that the statutory provision under which the Commission acted, Title 34 of the D.C. Rules and Regulations, was not available for relief in this proceeding since it was not adopted until well after the hearing herein was concluded and the briefs had been submitted. Thus, petitioners argue that D.C. Police Regulation Article 47 was the only provision under which the Commission could validly act, and since this did not provide for the awarding of damages or attorneys fees, or an affirmative action order, a reversal is warranted. We agree with petitioners and therefore reverse the decision of the Commission.

On or about January 5, 1972, a few months after his discharge from Newsweek, Mr. Yette filed a complaint with the District of Columbia Office of Human Rights alleging racial discrimination in violation of D.C.Pol.Reg. Art. 47, § 4(a), relating to the conditions of his employment and the cause of his termination at Newsweek. Specifically he alleged that his superiors at the magazine used "derogatory epithets, adversely affecting the conditions of [his] employment." In addition to this name-calling, which he termed racially motivated, he complained of racially derogatory jokes, negative reaction to the publication of a book he had written while working at the magazine, and "incipient racism" in his discharge in which "competency was not an issue". Newsweek denied the charges and presented testimony that during all the years he worked at Newsweek, Mr. Yette never made any charge of racism to any of his colleagues or to any of the editors in Washington or New York. Though Bureau Chief Mel Elfin was specifically named a respondent in the complaint, petitioners pointed out that Mr. Yette did not directly accuse him of racial discrimination until the day of his termination nor did he mention any racial difficulties whatever to other black or white colleagues on the magazine. Newsweek accordingly asserted that the charge of racial discrimination was concocted only after his dismissal in an effort to explain his termination from employment which the employer attributed to substandard performance.

The evidence adduced at the hearing revealed that Mr. Yette, a well-known black reporter, was hired by Newsweek in January 1968, as a correspondent in its Washington Bureau. Though Mr. Yette did not have prior experience at Newsweek or in Washington reporting, two qualifications that are required normally for a reporter in the Washington Bureau, he had held various jobs both as a reporter on newspapers and, more recently, as an executive in the Peace Corps and in the Public Affairs and Public Information Office of the Office of Economic Opportunity. The chief of the Washington Bureau, Mr. Mel Elfin, thought that this experience would be sufficient to meet the reporting requirements of Newsweek and thus Mr. Yette was hired.

The testimony at the hearing before the Commission was conflicting regarding the complainant's performance during more than three years of employment at Newsweek. Mr. Yette testified that from the very beginning he was highly complimented for his skillful work and that these commendations continued throughout his employment at the magazine. He said that the many speeches he gave to outside groups and his numerous appearances on television news programs were evidence of the high esteem in which he was held by his colleagues. Despite those assertions as to the respect petitioners had for the quality of his work, however, Mr. Yette added he was kept by Newsweek on "general assignment" throughout his tenure at the magazine, frequently being used merely as a back-up reporter for others on the Washington staff and more often than not assigned to cover stories relating to his race.

In addition to his work on what he felt was the demeaning general assignment, Mr. Yette asserted that he was the victim of discrimination when he was addressed by one of his supervisors with what he considered to be racially dehumanizing nicknames. Furthermore, he contended he was subjected to listening to racially insulting jokes told in his presence. This treatment he asserted would have been offensive to any black person, especially one of Mr. Yette's background, experience and sensitivity.

These alleged events occurred against the background of an employment situation in Newsweek's Washington Bureau which Mr. Yette characterized as consisting of "few black employees and a lack of any serious efforts to explore the reasons for the deficiency or to correct it." However, he made no complaint or charge of discrimination until the meeting with his superiors regarding his termination.

Newsweek, on the other hand, produced many witnesses to refute these allegations or explain their context or significance. Basically it contended that Mr. Yette was fired because of his poor performance and inability to adjust to the unusual Newsweek style¹ and produced testimony from some of its editors and officers to support its position. The complainant presented witnesses who testified to his reputation as a journalist but offered no witnesses other than himself to testify either to acts of discrimination, or the quality of his work at Newsweek.

The Commission's findings and comments on the complainant's testimony are set forth in its decision pages one through six. (The decision of the Commission is set forth in full in an appendix to this opinion.) Very little of the defense testimony, some of it uncontradicted, has been the subject of findings or comment by the Commission. In view of the assertions of petitioners on appeal regarding deficiencies in the findings and the failure to treat with most of the testimony offered by petitioners, we examine the evidence adduced at the hearing in further detail.

The magazine produced evidence that Mr. Yette was hired as the result of two separate and parallel initiatives by Newsweek. This was seemingly part of an ongoing affirmative program to recruit black reporters. Newsweek asserted that almost from the beginning, after he was hired, Mr. Yette did not measure up to the magazine's rather strict standards of performance and because of his personal attitudes and qualities Mr. Yette could not participate adequately in group journalism. In addition, according to the testimony of many of his supervisors and fellow workers on the magazine, Mr. Yette was highly resistant to criticism of his work, seeing no need for instruction or guidance from anyone and he viewed editing of his work product as "desecration" and regarded himself as more competent than his more experienced colleagues.

Mr. Elfin said he received criticism of Mr. Yette's files from the editors in New York. Beginning in 1968, and increasingly during 1969 and 1970, several editors requested that Mr. Yette not be assigned to stories for their sections of the magazine. Mr. Elfin testified that he attempted to work with Mr. Yette but his files did not improve. In addition there was testimony that Mr. Yette consistently violated the office rule that each morning reporters should appear at the office in person or inform the bureau chief of their whereabouts. Thus it was said to be difficult to give Mr. Yette new assignments.² These absences from work increased during late 1970 and early 1971 and coincided with the final preparation of a book he was writing entitled, The Choice: Issues of Black Survival in America, which was published in February 1971.

The book became a point of dispute before the Commission. Mr. Yette asserted that this book, which he said "revealed a black man's perception and opinion of the plight of his brothers" and which "asserted his black heritage — with pride", resulted in increasing criticism from New York. He said that Mr. Elfin told him that "the book had been an embarrassment to him personally and to the company in general", and that shortly thereafter Newsweek terminated his employment.

Newsweek, on the other hand, produced uncontradicted testimony that it never hindered Mr. Yette in either writing or publicizing the book. Indeed, Mr. Yette himself...