Rap, Inc. v. District of Columbia Commission On Human Rights, 83-1348.

• Decision Date: 10 December 1984
• Docket Number: No. 83-1348.,83-1348.
• Parties: RAP, INC., Petitioner, v. v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent.
• Court: D.C. Court of Appeals

485 A.2d 173

RAP, INC., Petitioner, v. v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent.

No. 83-1348.

District of Columbia Court of Appeals.

Argued July 24, 1984.

Decided December 10, 1984.

COPYRIGHT MATERIAL OMITTED

Charles J. Simpson, Jr., Washington, D.C., for petitioner.

William J. Earl, Asst. Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Charlotte Brookins-Pruitt, Asst. Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Before NEBEKER and BELSON, Associate Judges, and GALLAGHER, Associate Judge, Retired.

BELSON, Associate Judge:

The District of Columbia Commission on Human Rights held that RAP, Inc., had violated D.C.Code § 1-2512(a)(1) (1981) by discharging its employee Senetra Rose for a discriminatory reason based on her sex.¹ RAP petitions for review of the Commission's ruling. Because it must be concluded on the record before us that Ms. Rose failed to prove that RAP's stated reason for discharging her was a pretext for discrimination, we reverse.

Senetra Rose and her husband, Greg, were both employees of RAP, Inc., a private nonprofit organization that provides rehabilitative programs to drug users and others. Ms. Rose worked as an executive secretary at one RAP location, Mr. Rose as a counselor at another.

One evening, after her work day was over, Ms. Rose came to the RAP building where her husband worked to pick up their car. She could not start the car. The evidence conflicted as to whether she then had Mr. Rose paged, or he saw her in the street and came out of his own accord.

Mr. and Mrs. Rose then got into a heated argument. Both were shouting and swearing. A physical tussle ensued. The Commission credited witnesses who said that Mr. Rose initiated physical contact by shoving Ms. Rose, knocking her to the ground. It is uncontested that Ms. Rose then drew a hawk-billed knife from her purse and swung it at Mr. Rose. She testified that she swung the knife at him because she "was going to cut him. Those were my intentions." When asked whether she had said she was going to kill him, she testified "I could have. I was just that mad; I could have." Mr. Rose and Pharis Williams, a RAP employee who had watched the incident, restrained Ms. Rose and took the knife from her. Mr. Rose had a screwdriver or pair of pliers in his possession, but there was no evidence he used either as a weapon.

Pharis Williams, whose testimony the Commission did not credit, stated that Mr. Rose did not shove Ms. Rose and that Mr. Rose did not act aggressively but rather acted in self-defense.

RAP's executive director, Ron Clark, investigated the incident, obtaining the Roses' and other employees' accounts of what had happened. Clark determined that both Mr. Rose and Ms. Rose had violated a RAP employment rule. The rule, which is in the employee manual, prohibits "physical violence or threats of physical violence." The manual states that "[a]ny . . . employee . . . is subject to immediate expulsion from RAP, and immediate dismissal from employment" for violating the rule.

Clark decided that RAP should discharge Ms. Rose and reprimand Mr. Rose. Clark testified at the hearing that the evidence he gathered indicated that Mr. Rose had acted primarily in self-defense. While Mr. Rose's conduct had been deplorable, it had not been as bad as Ms. Rose's: Ms. Rose had used a dangerous weapon. He viewed the parties as equally at fault up to the point that Ms. Rose introduced the knife into the altercation. Her use of the weapon convinced him to discipline the two employees differently, he testified.

Ms. Rose filed a complaint, alleging that RAP had been motivated by illegal discriminatory intent in firing her while merely reprimanding her husband. The Commission ruled in her favor and awarded her damages.

The Supreme Court has set out the order and burdens of proof for a claim of disparate treatment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982). This court generally follows the Title VII analysis in discrimination cases brought under our Human Rights Act. See Greater Washington Business Center v. District of Columbia Commission on Human Rights, 454 A.2d 1333, 1338 (D.C. 1982); Newsweek Magazine v. District of Columbia Commission on Human Rights, 376 A.2d 777, 789 (D.C. 1977).

The proof proceeds in three steps. First, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). This burden is "not onerous." Id. at 253, 101 S.Ct. at 1094. The prima facie case raises a presumption that the employer's action, if otherwise unexplained, was more likely than not based on a consideration of impermissible factors. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).

The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The defendant need not persuade the fact-finder that the proffered reason was the actual motivation for the employment action. The employer need only raise a genuine issue of fact as to whether it discriminated against the plaintiff. Burdine, supra, 450 U.S. at 254-55, 101 S.Ct. at 1094-95; Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam).

Finally, the plaintiff must show that the employer's proffered reason was in fact a pretext for discrimination. McDonnell Douglas, supra, 411 U.S. at 804, 93 S.Ct. at 1825; Greater Washington Business Center, supra, 454 A.2d at 1338. The plaintiff always retains the ultimate burden of persuading the court or agency that she has been a victim of intentional discrimination. She may prove pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095.

The Commission in the instant case held that Ms. Rose had proven a prima facie case at the first step, that RAP had not articulated a legitimate nondiscriminatory reason at the second step, and that Ms. Rose had proved pretext at the third step. We must accept the agency's findings of fact if they are supported by substantial evidence, D.C.Code § 1-1510(a)(3)(E) (1981), and we must decide all relevant questions of law. Id. § 1-1510(a)(1).

Ms. Rose argued, and the Commission agreed, that she had proven a prima facie case of discrimination by showing that RAP treated its two similarly situated employees differently. The Commission cited Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317 (5th Cir. 1981), which held that an employee proves a prima facie case when she shows that "two employees were involved in or accused of the same offense and are disciplined in different ways." Id. at 322. The agency believed that Mr. Rose's conduct had been just as reprehensible as Ms. Rose's, or more so. Thus the two had been involved in, and should have been accused of, the same offense. The agency concluded that the difference in the sanctions meted to each supported a prima facie case of discrimination.

RAP argues that Mr. and Ms. Rose were not involved in the same offense. She used a weapon and he did not. Thus, RAP contends, it did not discipline two similarly placed employees differently; it disciplined two differently placed employees differently. RAP concludes that no inference of discrimination could arise from its action.

As the Supreme Court explained in Furnco Construction Corp. v. Waters, supra, 438 U.S. at 577, 98 S.Ct. at 2949, the prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." The Supreme Court has also made it clear that the trier of fact is to apply a preponderance of the evidence test at this stage; thus requiring consideration of an employer's showing that the two employees had not committed the same offense. Given the particular facts of this case, in which RAP has tendered an explanation for its course of conduct that relates directly to the details of the incident giving rise to the employment action, our analysis of the first of the three stages identified in Burdine, supra, 450 U.S. at 252-56, 101 S.Ct. at 1093-95, necessarily merges with our analysis of stage two (employer's articulation of a legitimate nondiscriminatory reason) and stage three (employee's showing that the reason is pretextual).² We therefore turn directly to our review of the Commission's holding, abandoned on appeal, that RAP failed to proffer a legitimate, nondiscriminatory reason for its decision to discipline the Roses differently.

RAP's executive director stated in his memoranda to the Roses, in his subsequent position statement on the complaint and in his hearing testimony that he imposed different sanctions because Ms. Rose used a weapon and Mr. Rose did not. The Commission held that his justification "is simply neither adequate nor convincing."

Behind the Commission's holding may lurk a misconception of the employer's burden at the second stage of the proof of a disparate treatment case. The employer need not "convince" the decision-maker that its proffered reason was the actual reason for the employment decision. The employer "is not required to prove by a preponderance of the evidence the existence of the nondiscriminatory reason for the action. Rather, the defendant `need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated...