On July 3, 2008, the D.C. Court of Appeals issued a good D.C. Human Rights Act decision, although one that took a long time - the employee was fired in 2000, and the oral argument on the appeals was almost three years ago, in September 2005. Some key points - this was on appeal from a grant of summary judgment to the employer: (1) This decision should drive the nail in the coffin regarding filing with the EEOC as constituting cross-filing with the DC OHR, and reiterates that the 1 year statute of limitation under the DCHRA is tolled while the complaint is pending at the EEOC. (2) A DCHRA claim can be based on being terminated for lack of English proficiency (which is a proxy for national origin discrimination - here, the plaintiff is Peruvian), where there are disputed facts as to whether full English proficiency was required on the job, or if the employer did not terminate all employees who lacked that proficiency. There are lengthy quotations from the Supreme Court's Reeves decisions, (3) The Court cites the EEOC's probable cause finding to buttress other evidence supporting the denial of summary judgment on the grounds that the employer's proffered reasons are pretextual. This is somewhat unusual; federal courts are probably less willing to afford this level of deference to EEOC probable cause findings. (4) The Court recognizes that while Title VII jurisprudence is often helpful, there are key ways in which DCHRA differs from Title VII, and those need to be recognized. Some excerpts follow:
No. 04-CV-1093
JUAN R. ESTENOS, APPELLANT, V. PAHO/WHO FEDERAL CREDIT UNION, APPELLEE.
No. 04-CV-1679
PAHO/WHO FEDERAL CREDIT UNION, CROSS-APPELLANT, V. JUAN R. ESTENOS, CROSS-APPELLEE.
Appeal and Cross-Appeal from the Superior Court of the District of Columbia
(01-CA-9125)
(Hon. Natalia M. Combs Greene, Trial Judge)
(Argued September 13, 2005 Decided July 3, 2008)
James E. Rubin, with whom Mindy G. Farber was on the brief, for appellant.
F. Joseph Nealon, with whom Jeffrey W. Larroca and Kirsten E. Keating were on the brief, for appellee.
Emmett B. Lewis and Victor Tabak appear on the brief for Washington Lawyers' Committee, as amicus curiae on behalf of appellant.
Before RUIZ, Associate Judge, and STEADMAN and SCHWELB,* Senior Judges.
Opinion for the court by Associate Judge RUIZ.
Opinion concurring in part and dissenting in part by Senior Judge SCHWELB at p. 33.
RUIZ, Associate Judge:
Juan Estenos, in alleging discrimination against his former employer, presents an issue of first impression: does the District of Columbia Human Rights Act, D.C. Code § 2-1401.01 et seq. (2001) ("DCHRA"), allow an employee to initially raise a claim of national origin discrimination on evidence of an English proficiency requirement? We hold that it does. We also hold that timely filing a claim with the U.S. Equal Employment Opportunity Commission ("EEOC"), which in turn cross-files with DCHRA, tolls the time for filing a private cause of action under D.C. law. Accordingly, we reverse the trial court's grant of summary judgment for appellee and remand the case for further proceedings.
. . . Mr. Estenos filed a complaint with the EEOC on September 7, 2000, claiming that his firing was discriminatory, based on national origin, "because of [his] lack of fluency in English." On September 14, 2000, the EEOC gave notice of the claim to PAHO/WHO-FCU and to the D.C. Office of Human Rights ("DC OHR"). PAHO/WHO-FCU confirmed that the reason it fired Mr. Estenos was his lack of English proficiency, adding that "[t]his deficiency ma[kes] it impossible for Mr. Este[n]os to communicate with our members and to understand and communicate with some staff members." The following year, after an investigation, the EEOC found "reasonable cause to believe" that PAHO/WHO-FCU violated Title VII, by discriminating on the basis of national origin due to Mr. Estenos's inability to speak English. It also found the employer's proffered reason to be "pretextual" because it had not similarly fired another employee (Ms. Alfaro) who spoke only English and had trouble communicating with some of the credit union's Spanish-speaking customers. PAHO/WHO-FCU disputed the EEOC's determination, citing Mr. Supchak's record of hiring Peruvians, and the necessity that he be able to communicate with the office clerk, without having to resort to other staff as interpreters. Because the EEOC "could not obtain a settlement," on September 14, 2001, it advised appellant of his right to sue, stating again that it found "reasonable cause to believe that violations of [Title VII] occurred with respect to some or all of the matters alleged in the charge." Although the EEOC announced that it did not intend to sue the employer "at this time," it reserved the right to sue the employer at a later time or to intervene in a lawsuit filed by Mr. Estenos. Three months later, on December 14, 2001, appellant filed his complaint in D.C. Superior Court, essentially tracking and referencing) the findings of the EEOC.
The trial court denied appellee's motion to dismiss the action as time-barred by the one-year statute of limitations, reasoning "that the EEOC cross-filing [with D.C. OHR] satisfies both the intent and language of" the DCHRA statute of limitations.
After having previously denied appellee's motion for summary judgment as premature, the trial court reheard the motion after discovery was completed, and granted summary judgment on two grounds. First, although the trial court recognized that a person's foreign accent or ability to speak a foreign language could form the basis for a charge of national origin discrimination, it was of the view that the DCHRA does not also protect those who lack the ability to speak English proficiently. In any event, the trial court held, "plaintiff cannot establish the fourth element of a prima facie case, which requires that a similarly situated employee be treated more favorably." Therefore, the trial court granted summary judgment to appellee because appellant was not entitled to relief as a matter of law. In this appeal, Mr. Estenos challenges both prongs of the summary judgment ruling; PAHO/WHO-FCU cross-appeals the trial court's denial of its motion to dismiss under the statute of limitations.
[Statute of Limitations]
. . . Appellee argues, as it did in the trial court, that plaintiff did not actually file a complaint with the DC OHR, but this is not determinative, for as the trial court correctly ruled, a plaintiff does not need to file personally with the OHR to satisfy the statute's tolling requirement. The DC OHR's and EEOC's procedural requirements are to be read broadly and flexibly in the employee's favor in light of their remedial purposes and because they are designed for lay persons. . . . Under such a broad reading of the statute's filing requirement, appellant's timely filing with the EEOC, of which DC OHR promptly received a copy under the existing agreement between the federal and local agencies, sufficed to toll the limitations period for filing in court. Moreover, even under a literal reading of the DCHRA, "any person or organization, whether or not an aggrieved party, may file with the Office," D.C. Code § 2-1403.04 (a) (emphasis added), and "[t]he timely filing of a complaint . . . shall toll the running of the statute of limitations." D.C. Code § 2-1403.16 (a) (emphasis added). As the EEOC qualifies as "any" organization, its timely cross-referral of appellant's EEOC claim to DC OHR tolled the running of the one-year statute of limitations. We, therefore, conclude that the trial court properly denied appellee's motion to dismiss the complaint as time barred.
[Merits of the National Origin / English speaking claim]
. . . . An overriding difference is that in enacting the DCHRA, the Council of the District of Columbia intended to go above and beyond the protections afforded to employees by Title VII. The DCHRA not only enumerates more protected classes than Title VII, compare D.C. Code § 2-1402.11, with Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2 (a) (2003), but also announces, "the intent of the Council of the District of Columbia, in enacting this chapter, [is] to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to," the enumerated classes. D.C. Code § 2-1401.01. That does not mean, however, that this court will create new protected classes not identified by the legislature. See Sorrells v. Garfinckel's, 565 A.2d 285, 289 (D.C. 1989) (rejecting extension of DCHRA where employee failed to claim a protected class membership). But it does mean that we must read the words of the DCHRA liberally consistent with the Act's sweeping statement of intent. . . .
. . . Yet another difference derives from how federal and District of Columbia law accommodate to the defense of business judgment in evaluating whether a requirement or practice that has an adverse impact on a protected class - which would otherwise be actionable as impermissible discrimination - is nonetheless justified by a "neutral," independent, and non-discriminatory reason. Under Title VII, "it shall not be an unlawful employment practice for an employer to hire and employ, employees . . ., on the basis of . . . national origin in those certain instances where . . . national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." 42 U.S.C. § 2000c-2 (emphasis added). Applying Title VII [with respect to claims of national origin discrimination], federal courts have held that "an English-only rule . . . does not violate Title VII as applied to bilingual employees so long as there is a legitimate business purpose." Prado v. L. Luria & Son Inc., 975 F. Supp. 1349, 1354 (S.D. Fla. 1997) (emphasis added). The DCHRA, however, does not contain an exception that explicitly permits outright discrimination on the basis of national origin in employment. Instead, it statutorily limits justifying unintentional discrimination to "business necessity," which is narrowly defined: . . . D.C. Code § 2-1401.03(a) (2001).
This exception, we have said, requires "a good deal more than a mere difficulty in conducting a business by non-discriminatory means." Natural Motion by Sandra v. D.C. Comm'n on Human Rights, 687 A.2d 215, 218 (D.C. 1997) (citation omitted) (upholding D.C. Commission on Human Rights finding that "occasional absences" due to employee's physical handicap - AIDS - that "caused 'an unspecified increase in inefficiency in the operation of [a] salon'" is insufficient to meet business necessity exception). The DCHRA places the burden of proving the exception of "business necessity" squarely on the employer, who must meet that burden "in each individual case." D.C. Code § 2-1401.03. Moreover, the business necessity exception should be "interpreted narrowly and with the greatest of caution." COMMITTEE ON EDUCATION AND YOUTH AFFAIRS REPORT ON TITLE 34, THE HUMAN RIGHTS LAW, at 4, Oct. 15, 1973 (tracing the origin of the exception for "business necessity" to Griggs v. Duke Power Co. and disavowing subsequent cases "obscur[ing]" the meaning of the exception as well as certain practices permitted by the EEOC guidelines such as, for example, "the preferences of co-workers, employers, customers or any other person(s)"). Thus, we have held that the business necessity exception "could not be invoked to insulate [a company] from the bias or 'preferences of co-workers [and] employees'" where the company's contractor refused to provide plumbing services to a person with AIDS. Joel Truitt Mgmt., Inc. v. D.C. Comm'n on Human Rights, 646 A.2d 1007, 1009 (D.C. 1994) (per curiam) (quoting D.C. Code § 2-1401.03). As we review Title VII caselaw, therefore, we do so with the understanding that practices that are merely questionable under Title VII may suffice to establish discrimination under the DCHRA. Compare Prado, 975 F. Supp. at 1354 (finding legitimate business purpose of English-only rule where manager testified customers preferred not to overhear Spanish), with D.C. Code § 2-1401.03 (excluding "preferences of co-workers, employees, customers or any other person" as justification for "business necessity"). . . .
We disagree with the trial court's legal determination that appellant's claim based on lack of English proficiency has "no support" in the DCHRA. In light of the EEOC regulations recognizing a link between linguistic characteristics (such as the inability to speak English fluently) and national origin that have been incorporated into D.C. law, Mr. Estenos has initially presented a cognizable claim of national origin discrimination under the DCHRA, and satisfied the first prong of a prima facie case because appellee's English proficiency requirement may be evidence of discrimination on the basis of his Peruvian national origin. We also reject the trial court's determination that Mr. Estenos failed to meet the fourth prong of a prima facie case because he offered "no evidence that Ms. Alfaro's position demands the same duties and tasks as plaintiff's position as 'Office Clerk.'" (Emphasis added). But the fourth prong's comparison with another employee who is "similarly situated" cannot mean "identical" in a situation where the employee has not been replaced, as contemplated by McManus. See 748 A.2d at 955 n. 5 ("[A]ppellant . . . [is] required to show that the jobs of one or more persons who were not members of the protected class, and who had jobs similar to hers had not been terminated." (emphasis added)). The point is that Mr. Estenos's proffered evidence that Ms. Alfaro was one of the persons who assumed some of his responsibilities and that, in any event, when she had difficulty communicating with the credit union's customers in Spanish - whatever the formal requirements of her job description - she was not fired as he was. This was enough on the particular facts presented here to defeat summary judgment on the ground that he had failed the "not onerous" burden of making out a prima facie case. Therefore, the trial court erred as a matter of law in dismissing the complaint on the ground that Mr. Estenos had not presented a prima facie case of discrimination under the DCHRA. . . .
Moreover, appellant has argued that, even assuming that the English-proficiency requirement predated his hiring (or, alternatively, that the job's requirements changed once Mr. Supchak became CEO), he did not receive proper notice of the rule, having been told when he was hired only that he "should continue studying English" in order to progress to a more advanced position, but, "not . . . that speaking English was a requirement for the office clerk job." In such a case, as there was no question that he otherwise satisfactorily performed as a clerk, appellant argues that appellee discriminated against him by not providing a transition period to permit him to improve his English proficiency or seek some interim alternative to facilitate his communications with Mr. Supchak. In light of the material facts in dispute, summary judgment was improper. Although it is not necessary to our determination that Mr. Estenos has presented enough evidence of pretextuality to survive summary judgment, our conclusion is buttressed by the EEOC's determination, stated in the Right to Sue Letter, that it "found reasonable cause to believe that violations of the statute(s) occurred with respect to some or all of the matters alleged in the charges."
(Alan R. Kabat / Bernabei & Wachtel, PLLC)
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