*1 original majority opinion April 1997. is, therefore,
It majority opinion
ORDERED that 17,1997
April hereby adopted by majori-
ty of the full court. It is majority
FURTHER ORDERED that the
opinion opin- of that date is reinstated as the
ion of the It en banc court.
FURTHER ORDERED that the certified
question is answered the affirmative. certify
The clerk shall this answer to the Appeals
United States Court of for the Dis-
trict of Columbia Circuit.
So ordered.
SCHWELB, Judge, dissenting: Associate my separate
For the reasons stated in
opinion in United States Parole Comm’n
Noble, 1106-17
(Noble I), respectfully I dissent.
DAKA, INC., Appellant, BREINER, Appellee.
James W.
No. 95-CV-441. Appeals.
District of Columbia Court of
Argued April April
Decided
five, for remittitur. The trial court denied motion, appeal.1 and Daka noted this argues Before us Daka that the evidence was support insufficient to Breiner’s hostile envi- claim, ronment should *3 been awarded either as a matter have fact, law or as a matter of and that even if allowable, punitive damages were the court by denying request abused its discretion persuaded by are not for a remittitur. We arguments, accordingly of these and we judgment. affirm the BackgRound I. Factual case, pertinent At all times to this Daka provider2 for was a contract food service Dorman, IL, Chicago, Keith A. with whom Museum of Smithsonian Institution its Vecchione, John Washington, J. DC and Neil (“MNH”), History Museum of Amer- Natural Wolf, IL, brief, Chicago, G. were on the for (“MAH”), History ican and National Portrait appellant. (“NPG”). Gallery July In 1987 Daka hired Brown, DC, Gary Washington, ap- T. for general manager of its Louis Sakell to be the pellee. primary responsi- Smithsonian account. His bility services for was to oversee food TERRY, STEADMAN, REID, Before and compliance buildings to ensure three Judges. Associate contract. Because Daka with its food service account,3 biggest in- was Daka’s Sakell TERRY, Judge: Associate managers, an to be stalled additional tier Daka, Inc., appeals judgment from a (one building known as for each directors Superior Breiner, Court in favor of James a operations in building), supervise former employee. Alleging age Daka dis- overseeing three museums. addition crimination, against Breiner filed suit Daka building managers, branch each director’s re- the District of Columbia Human sanitation, sponsibilities staffing, included Act, §§ seq. D.C.Code 1-2501 et service, profitability, quality of food (1993) (“DCHRA”). trial, five-day After a payroll management. and cash found that Bremer had not estab- prima Breiner, wrongful April lished a case of termi- 1990 Sakell hired James facie nation, old, fifty-four years building but it returned a verdict in his favor as who was then claim, age-related building on his hostile environment director MNH.4 After director $10,000 city, him awarding compensatory reassigned dam- of MAH to another $390,000 transferred, ages punitive damages. request, Breiner was Sakell’s judgment Daka then position filed motion for not- to that in October 1990. Because or, withstanding responsibilities in the alterna- at MAH verdict the food service untimely 1. Breiner moved for leave to note an 3. Mr. that Daka had an "annual Sakell testified approximately $8.5 million from its cross-appeal wrongful income” of on his termination claim. three Smithsonian facilities. Finding neglect Ct.App. no excusable under D.C. 4(a)(4), Rule the trial court denied his motion. previously had worked to- Sakell and Breiner sponte summarily This court sua affirmed that Corporation, gether where for the Marriott Daka, unpublished denial in an order. Breiner v. thirty years spent in its food service Breiner had Inc., (D.C. 1995). No. 95-CV-1391 October job initially Sakell offered Breiner as division. manager Daka. After Breiner de- a branch with acronym Dining 2. The name "Daka” is an for offer, again and clined that Sakell contacted him and Kitchen Administration. position building higher-level offered him the director, accepted. which he MNH, him, approached, as “Get the wheel- greater were than those at Breiner Breiner out, boy now.” comes old salary a raise in at that time. Daka chair here received Eaton, later, year Breiner was also the According Breiner little than a fired more by other target comments made citing precipitous decline of similar November managers. performance after his transfer MAH. branch against Breiner this suit Thereafter filed problems that his Breiner testified Daka, seeking damages age discrimina- inter- early job began as the first Sakell tion intentional infliction of emotional view, remarked to Bremer that when Sakell distress. tough.” finding job at his “must later, began to call employees At trial several About month former Neff, behalf of Breiner “old man” insinuated that testified on Breiner. Thomas *4 MNH, at his manager Breiner not have stamina employed branch was did buildings. January to walk other Smithsonian July from Al- to the Daka 1991 to weekly managerial meetings, At the Sakell though Neff worked in MNH and Breiner opinion an MAH, made remarks such as “Let’s have away, worked in two blocks two here,” your plan, from man the old “What’s frequent each men had contact with other man, man, old-timer?”, gray- “Old this old January to 1991 during from November left, my my haired to as old as man he’s and, weekly meetings managerial Daka’s on know_” father, you initi- Breiner denied occasion, get when Breiner and others would comments, ating but admitted he these together During cafeteria. MNH by referring occasionally participated them meetings, these formal and informal Neff to an “old who was from himself as timer” repeatedly negative, age- heard Sakell make the “old school.” According related comments about Breiner.5 Neff, to Sakell described Breiner as “over on, As went Sakell’s insults became time hill,” to fogey,” referred him as an “old more frequent more and caustic.6 Some- “get that he it up any and said could not laugh when times Sakell would “sort of’ regular weekly At the meetings, more.” Sa- remarks, making times these but at other he kell would address Breiner front of the [the would Breiner consider not. “didn’t citizen,” managers as other the “senior laugh; joke,” he to be a nor did comments] guy,” fogey.” or the Although “older “old instead, just “sometimes stared back at he remarks, laughed Sakell no these one else things.” he had these because said [Sakell] particular laugh; did. Breiner not did once, At least Breiner “old Sakell called Neff, according to like “his face looked a man fuck,” he and on another occasion asked to endure Breiner, who had these insults because he me, getting not on “You’re senile keep job.” wanted to his Neff also testified you?” upset during are Breiner became Sakell, Breiner, initiated these com- told that he did not latter incident and ments. conduct “appreciate that remark.” Sakell’s example, on persisted For nevertheless. testimony Neffs was corroborated two . several Sakell would criticize occasions managers, Jeffrey other branch Gelfand and by saying selection at lunch Breiner’s food Gelfand, Alan Eaton. who worked for Daka got I’ve to look things such as “Is what April from 1991 to said April that it get your age I to and eat forward to when uncommon was not for Sakell refer just that?” salads like as an “old man” or “old fart.” Ea- Breiner ton, employee only not the Daka charge who was of the MAH staff Sakell was com- age-related Breiner with January cafeteria from 1991 to June who insulted McKenna, manager Meg one when Sakell to ments. branch recalled occasion said also testified that he was not 5. Neff testified in the cafeteria he heard Breiner subjected age-related employee who was separate five Sakell make such comments on point, example, Sakell At one comments. approached also occasions. He recalled five other instances fire a subor- Breiner told him to during which Sakell made remarks similar Pohlmann, manager, "[b]ecause Gail she's dinate weekly managerial meetings. her, way at the slowing look at look down and how is.” she walks ... look slow she Breiner, deeply him hurt me because it had me [I]t MAH had known subordinate more, thinking myself you much days always from his at Marriott and had about know, However, really coming I the end of the him was referred to as “Mr. Breiner.” Daka, employment, working? [The road of began after a short while at she Reeves, pictured being old all the comments] me Greg him man.” address as “old just prey my time.... It started to manager, also a Breiner subordinate called old, maybe getting I’m mind about them were “old man.” Once when the two of maybe anything any I more. can’t do serving group young female students cafeteria, Breiner, public Reeves said to that, in the weeks Bremer’s wife testified you looking girls at those for? “What fired, her husband became before he was them, anything you You do can’t can’t eating changed. habits He moodier and up any get even more.” Bremer told youthfulness, staying became obsessed with “ought Reeves that he to cool that kind of active, up losing weight. gave He red “supposed talk” and that he was not to use fattening meat and foods and asked his wife response, language.” that kind of Reeves thought getting if she he was old. addi- manager Curry, to another turned named tion, physical ail- began he to suffer from said, standing nearby, who old “The ments, persistent such as a sore throat and criticizing talking calling man is me for episodes breathing. prolonged of strained *5 that, you imagine him an old man. Can griev- Because Daka did not have a formal Curry?” directly procedure, complained Bremer ance belligerent Brein- Reeves’ attitude toward separate on three occasions. He to Sakell presence: er continued even Sakell’s On “against told that his comments were Sakell Reeves, one occasion in front of Sakell and a “illegal” that he the law” and and “should group of customers which a number included Despite com- know better than that.” these students, aloud, high “Hey, school said severity of the plaints, frequency and Jim, girl nothing look at that there. Can’t do to such an age-related remarks increased one, you?” with that could Breiner rebuked began to record most of extent that Breiner using inappropriate language Reeves for paper kept in his piece them on a which he customers, front of but turned to Reeves pocket.7 shirt said, “Lou, you get this Sakell and would old actions, Daka asserted defense of its my fart out of hair?” Bremer asked Sakell poor of his that Breiner was fired because insubordination, to admonish Reeves for his During job performance. the nineteen said, “Oh, you Greg, but Sakell know he’s a Daka, months that Bremer worked for his pistol. says He all the time.” stuff superiors began to have doubts about his responded, really appreciate Breiner “I don’t managerial ability. wrote a memoran- Sakell that. I don’t feel like I’m he old. What’s Breiner, which was introduced dum calling me that for?” evidence, dispose about his failure to of trash upset Eventually, persistent properly.8 MAH was also insults about his Sakell bother,” “irritate,” managers, age “real- that one of Breiner’s subordinate “started to and Dixon, submitting ly inadequate been false hint” Bremer. He felt and Michael had paychecks job obtaining for two wondered whether his skills had eroded time records and longer for point getting “ghost employees” he too to do who no worked to the that was old Daka, job properly. He testified: and that Bremer had discovered by arranging frequent immediately for more 7. On cross-examination Breiner admitted that lem down, age-related, though by having pickups during the remarks he wrote trash the summer and quality did not reflect on the of his work. dumpster periodically em- scrubbed Daka Eaton, go ployees. According the odor did not complaints 8. Bremer received several from Sa- fired, away Breiner was but Smithsonian after supervisors kell and from Smithsonian that the management employees said that trash dumpster outside MAH leaked and exuded a bad previous much worse than under Breiner was during mana- odor. The matter was often raised managers. gerial meetings. Both Gelfand and Eaton testi- fied, however, prob- that Bremer addressed this Leyseth, manager three Ad- Pamela a branch Dixon’s fraud for almost months.9 Daka, during tenure at simi- expressed by MNH Breiner’s ditional concerns were Sakell apparent inability managers made larly testified that several and others about Breiner’s age during compa- manage quali- and to comments about Breiner’s subordinates ensure meetings, initiated ty ny but that Bremer had food service.10 by saying from school.” them he was the “old respect age-related With to the comments as Leyseth characterized these comments Breiner, directed at Daka conceded that such “joking” in a manner that Breiner made made, position were took remarks but herself, responded “jokingly.” Leyseth had them, it was who Breiner initiated however, joined laughed in them nor neither merely in a employees responded that other they she did not think were at them because friendly joking manner. Mr. tes- funny. Daka, tified that after four or five weeks with evidence, jury hearing Bremer became more with his After all comfortable colleagues began to refer for oh Breiner’s to himself returned verdict wrongful jury man” or fart.” termination. also “old “old Sakell denied claim found, however, making age-related most of comments that an hostile attributed criticizing him Bremer11 and work environment existed Daka and found denied performance compensatory damages Bremer’s on basis of his Daka liable for However, $10,000. age. using such Sakell admitted emotional distress amount timer,” addition, $390,000 terms as “old fart” and “old awarded (re- finding punitive damages, after Breiner himself had used them con- based its form) Any versation. references Breiner’s on the that Louis Sakell corded verdict jest in- purely were uttered and were not his co-workers had “acted with evil inappropriate, opinion, in Sakell’s in the con- tent or actual malice when created text of Daka’s informal work work environment.”12 environment. hostile *6 Breiner, now, know; May get you it’s back 9. Sakell discovered in 1991 that an old man hard to responsible monitoring response, who was the staff and un- into business.” In SakeE said he MAH, payroll had detect functions at failed to his father had similar derstood because had scheme, though Dixon’s criminal even “it was his problems. Regarding the with confrontation job things right Reeves, audit it to these and was hearing Greg did not recall SakeE pocketed $3500 his nose.” and Dixon between say inability anything to Reeves about Breiner’s $3800 before Sakell his fraud discovered. Instead, up." "get that it SakeE remembered reprimanded orally writing Breiner both and in quite "joked and Reeves and Breiner a bit back "major screwup” seriously for this consid- youthful age about Breiner’s and Reeves’ forth” firing ered him at that time. inexperience. again reprimanded 10. Breiner was when he subject judge punitive damages, of 12.On facility improvements failed to make Sakell as foEows: instructed had recommended. In October Sakell con- intentionaEy you discrimi- If find defendant inspection walk-through ducted a of the ice you, against plaintiff, the nated law aEows parlor at defi- cream MAH noticed several you, punitive require to dam- does not award problems, fix ciencies. He told Breiner to these punitive ages. may an of You consider award reinspection but a in November revealed thereafter, claim. under each Shortly had not been corrected. purpose punitive an award dam- detailing sent a memorandum Breiner is, first, punish ages conduct, wrongdoer for mis- Breiner’s Nevertheless, do what done. failure to needed be second, against rating others gave be- warn SakeE Breiner a doing "competent” “high competent” on his same. tween you may punitive dam- performance In this award evaluation in October 1991. case evaluation, ages you engaged in a that Brein- if that defendant SakeE recommended find improve practices safety precautions, pay discriminatory practice atten- or with mal- er more staff, greater evaluating rights tion to his and instiE indifference ice or reckless loyalty plaintiff in his Breiner also re- dis- subordinates. free from such intentional $5000 October— employment. ceived a raise and a bonus in crimination in just a was fired. you month before he con- If determine that defendant’s damages, justifies duct an award may punitive dam- example, during you an amount of award 11. For SakeE testified that Breiner, agree ages jurors proper. In fix- job which all with was Breiner second interview amount, age ing you the fol- initially by saying, "I’m should consider who to his referred tunities, II. The Hostile adversely or otherwise affect his ENVIRONMENT Claim employee.... status as an Daka contends first the trial court denying judgment erred its motion for 1-2512(a)(1) (1997 Supp.).13 § D.C.Code age-related on the hostile n.o.v. environment Relying significantly on federal claim because there was insufficient evidence interpreting cases Title VII of the Civil that an atmosphere Specifi- abusive existed. §§ Rights Act of 42 U.S.C. 2000e et cally, argues that “Breiner was not (1994),14 seq. University this court in Howard subjected harassment, to unwelcome that re- Best, (D.C.1984), 484 A.2d held age severely marks about his were neither plaintiff prima that “a establishes facie case abusive, pervasively nor and that these re- of sexual harassment [under DCHRA] marks did not alter the conditions of his upon demonstrating that unwelcome employment.” view, verbal argu- our this line of physical advances of a sexual ment is nature overly reading based on an selective and/or workplace, were directed at Having of the record. reviewed the record him/her whole, must, resulting or working as a in a hostile abusive as we we are satisfied that also, e.g., there environment.” Estate support was sufficient evidence to See Un jury’s findings. derwood v. National Credit Union Adminis tration, (citing Age-based A. hostile environment Best); Co., F.Supp. Norman Gannett claims under the DCHRA (D.D.C.1994). 46, 49 We conclude that the provides part: The DCHRA mutandis, apply, same test should mutatis It discriminatory shall be an unlawful any plaintiff alleges DCHRA case in which practice acts, any following to do unlawful discrimination that takes the form wholly partially or discriminatory for a working of a hostile or abusive environment. upon reason based the ... ... of words, applying- In other Best standard individual: genetically, plaintiff more such as Mr.
(1) By
employer.
To fail or refuse to Bremer has a viable hostile environment
hire,
individual;
(1)
discharge, any
or to
claim if he can demonstrate
that he is a
(2)
against any
class,
otherwise to
protected
discriminate
indi-
of a
member
that he has
vidual,
(3)
respect
compensation,
subjected
harassment,
to his
been
to unwelcome
terms, conditions,
privileges
employ-
that the
harassment was based member
ment,
limit,
(4)
including promotion;
class,
ship
protected
or to
that the
*7
segregate,
classify
employees
or
pervasive enough
harassment
is severe and
way
deprive
term, condition,
which would
or tend to
to
privilege
de-
affect a
or
of
'
prive any
Best,
employment oppor-
individual of
employment.
Id.
that a
Harris
Meritor hold
However,
incidents,
specific number of
“[n]o
prove
plaintiff in a Title VII action need not
specific
egregiousness”
no
level of
need
injury”
psychological
in order
tangible
“a
proved.
plaintiff has met
Id. Whether the
hostile work environ
prove
existence of a
totality
depends on
of the
his burden
Harris,
at
at
114 S.Ct.
ment.
Id. at
This
circumstances.
980-981.
means
Meritor,
at
106 S.Ct.
(citing
477 U.S.
determining
the DCHRA has
whether
2404).16
holding is
for this
at
rationale
violated,
“the trier
fact should consid-
been
environments,
those
work
even
abusive
conduct,
...
er
amount and nature
seriously
employee’s
that do not
affect
conduct,
plaintiffs response to
such
de
well-being, “can and often will
emotional
harassing party
relationship
between the
employees’ job performance, dis
tract from
plaintiff.” Id. at
and the
courage employees
remaining on
from
applying
Before
the Best standard
job,
keep
advancing
them
in their
from
case, we
two
must address
threshold issues:
Harris,
at
careers.”
510 U.S.
Supreme
whether
recent
Court decisions
plaintiff
a
has an
at 371. Thus
actionable
modifying
elements of a hostile work
Title
hostile
claim
work environment
under
should be
environment claim
Title VII
permeated
workplace
is
“[w]hen
VII
applied similarly
arising
to cases
under the
intimidation, ridicule,
‘discriminatory
and in
DCHRA, and
environment
whether
hostile
‘sufficiently
perva
sult’
...
severe
theory
appropriate
age-based
even
sive
the conditions of the victim’s
to alter
in turn.
claims. We shall consider each
working
employment and create an abusive
issue,
parties disagree
As to the first
environment’_”
Id.
damage
on whether actual emotional
must be
Meritor,
(quoting
477 U.S.
plaintiff
proving
shown
when
a hostile
2405).
standard,
plain-
S.Ct. at
Under this
claim
work environment
under the DCHRA.
objectively
tiff
both an
must demonstrate
Daka,
Best,
relying
University
on Howard
environment, i.e.,
hostile
one that
supra, argues
or abusive
that Breiner not
must
prove
person
that a
person
reasonable
would have
find hostile or
a reasonable
would
found the work environment hostile and abu-
abusive,
subjective
perception
sive,
present objective
also must
evidence plaintiff that
the environment
is abusive.
damage.
of actual emotional
See Estate
addition,
prove,
plaintiff
But
need
Underwood, supra, 665
at 640.
psychologi-
actual
that he or she suffered an
opinion,
requirement
showing
Daka’s
“a
of a
injury.
cal
psychological
particularly impor-
harm” is
Certainly Title VII bars conduct
age-based
age re-
tant with
claims “because
per-
seriously
would
affect
reasonable
marks,
nature,
by their
less
invidious
*8
well-being,
stat-
psychological
but the
son’s
groups.”
other protected
than remarks about
long
ute
limited
conduct. So
is not
to such
maintains,
contrary,
Breiner
to the
that two
reasonably be
as
environment would
Court,
Supreme
post-Resi decisions of the
hostile or
perceived,
perceived,
as
Inc.,
17,
Systems,
Harris v.
510 U.S.
Forklift
(1993),
...
no need for it also
367,
abusive
there is
Harris,
22,
ns,
court
assuming
510 U.S.
114
371
followed Harris after
S.Ct.
(citation omitted).
apply
that this court “would
similar stan-
approach
interpretation
dard and
to the
persuasive,
A quite
argument can be made
the reach of the
Drake v. Henk-
[DCHRA]”.
put
significant gloss
has
Harris
Inc.,
McKay,
Daily
Rptr.
123
Wash. L.
els &
Best,
superseded
or even that Harris has
2217,2223 (D.C.Super.Ct.1995).
Best to the extent
the two eases are
court,
inconsistent. We note first that this
however,
this,
Having said all
we con
DCHRA,
deciding
arising
issues
under the
point
that we need not decide
here.
clude
consistently
upon
relies
decisions of
fed- We note instead that the trial court’s instruc
eral
in Title
particularly
courts
VII cases as
case,
based on
tions in
which were
Har
See,
persuasive authority.
e.g.,
(and
Benefits
nothing
ris
not Best
therefore said
Corp. Klieforth,
v.
642
Communication
A.2d
injury),
psychological
about actual
elicited no
1299,1301-1302 (D.C.1994);
Young
Arthur
& complaint from either
We therefore
side.
Sutherland,
354,
17,
v.Co.
631
361 n.
A.2d
objection might
hold that Daka waived
(D.C.1993);
University
367-368
American
v.
any arguable
from
have had
omission
on Hu-
District
Columbia Commission
(re
Super.
Civ. R. 31
instructions. See
Ct.
(D.C.1991).
416,
Rights,
man
598
422
A.2d
specific objection
instructions
quiring
be
applied
Even in
itself
Title
Best
we
VII
retires).
fore the
principles
resolving
plaintiffs
discrimi-
Turning
ques-
preliminary
to the other
nation claim. See 484
977-982. Sec-
hostile
age-related
tion—whether an
environ-
ond,
DCHRA,
primary purpose
discrimination
ment claim viable under
discrimination,17
employment
eradicate all
such as the DCHRA—we find that
statutes
following
would be furthered
our
Harris
only a few courts
this issue
have considered
upon
and Meritor because the burden
anything
close to it.
courts have
Federal
plaintiff
prima
to establish
case would
facie
Discrimination in
Age
done so under the
Best,
heavy
abe
little less
than it was under
amended,
(ADEA),
Employment Act
29
plaintiff
longer
would no
have to
(1994),
seq.
§§ 621 et
and have unani-
U.S.C.
prove
psychological injury.
actual
See Har- mously held that
environment
hostile work
ris,
22,
Third,
114
510 U.S. at
S.Ct. at 370.
equally
an ADEA
cognizable
claims are
holding
such a
compatible
would be
with
See,
e.g.,
case as
are under Title VII.
brought
recent
hostile environment cases
Sischo-Nownejad
Community
v. Merced
the District
Columbia
under Title VII.
District,
1104,
(9th
College
934 F.2d
1109
University,
See Park
v. Howard
315 Cir.1991);
County
Young
Dep’t
v. Will
196,
904,
198,
U.S.App.
(7th
D.C.
71 F.3d
906
Aid,
290,
Cir.1989);
Public
882 F.2d
294
—
cert,
(1995)
Harris),
denied,
(citing
Community
Eggleston v. South Bend
School
-,
57,
(1996);
(N.D.Ind.
117
136
20
L.Ed.2d
841,
F.Supp.
Corp., 858
845-852
403,
Gary
Long,
U.S.App.
313
Co.,
D.C.
408-
1994);
Casualty
Spence Maryland
803
(1995) (citing
(W.D.N.Y.1992),
59
F.3d
1396-1397
affd,
F.Supp.
cert,
Meritor),
denied,
(2d
Harris and
516 U.S.
Cir.1993);
Squibb
v. E.R.
Drez
F.2d
(1995);
Inc.,
Sons,
L.Ed.2d 493
F.Supp.
1436-1437
&
(D.Kan.1987).
Management Sys-
Stoeckel v. Environmental
have concluded
These courts
tems,
(D.D.C.
Inc.,
F.Supp.
that,
no material
between the
difference
1995)
Harris). Moreover,
VII,18
(citing
is no reason
ADEA and Title
there
reported Superior
Court decision
Har-
between
discrimination
since
differentiate
See,
Underwood,
e.g.,
VII of the Civil
Act makes it
Estate
Title
*9
employer
against
illegal
an
to "discriminate
("[ajccording
legislative history,
for
at 637
to
enact-
compensation,
any
respect
individual
ment
the
of the Human
Act underscored
terms, conditions,
employment
privileges of
or
Council’s intent
the elimination of discrimi-
race, color, religion,
of
because
such individual’s
nation within the District of
should
Columbia
sex,
§
origin.”
U.S.C.
2000e-2
or national
42
(citation
priority"
highest
have the
internal
(a)(1). The ADEA forbids the identical conduct
Sutherland,
omitted));
quotation
marks
of such indi-
when the discrimination is "because
95 because protected on or sexual harassment and members of other based racial claimants age are considering hostile about less invidious groups spoken when a environ- remarks epithets ADEA are slurs. Daka plaintiffs rights ment claim. An racial or sexual than statute, is simply protected by age-based a different harassment less maintains that any rights “everyone progresses that those have been violat- objectionable claim because words, comparable rights to a group”—in ed is substance civil other protected into the See, Drez, supra, e.g., claim under Title VII. or later. On this grow all old sooner we will F.Supp. at 674 1486-1437. in its brief: point, Daka states environment sexual Unlike a hostile only state court decision we have typically claim involves harassment this under a state found that addresses issue conduct, and even sexual ad- photographs, statute, Kelly Bally’s v. discrimination vances, hostile envi- age-related Breiner’s Grand, Inc., N.J.Super. 285 solely is on verbal ronment claim based (1995), 355 a similar reached conclusion is regard, In this it more akin to remarks. adapting Jersey’s New sexual harassment deni- arising from remarks or slurs age “to claims analysis hostile environment fit an origin. person’s or national grating Id. 667 a race animus claim-” Thus, so, age-related claims still stand Jersey’s equivalent 362.19 New But even DCHRA, membership protect- plaintiff claiming age apart, of the dis because (1) in a membership have that: is mi- group crimination “would to establish ed not complained-of nority everyone the have To group. contrary, conduct would not the (2) age; enough enjoy but for her occurred conduct a modicum fortunate (3) pervasive; enough to severe or make longevity become a member will older-aged person ... reasonable believe protected age group. (4)
that; employment have conditions Thus, if says, references Daka “even working been altered and environment may man’ ‘old fart’ have Breiner as ‘old or omitted). (citation or Id. hostile abusive.” given impolite, they simply cannot been Jersey’s significance calling Like New stat- legal anti-discrimination same as wom- ute, the DCHRA to eliminate all using derogatory was enacted ... an a ‘bitch’ ... just not workplace, epithets” against discrimination in the sex- members hateful slurs and ual or racial See discrimination. D.C.Code of another race. (statute § 1-2501 is intended to “secure reject argument, mainly it We this because end in the District of Columbia discrimina- DCHRA wrong is made in the forum. The added)). any (emphasis tion reason” for prohibits on thirteen all discrimination based prima of a Since elements discrimi- facie race, sex, factors, age. including listed may according nation claim be reformulated l-2512(a). any § It does not draw D.C.Code case, particular facts see of each factors, among thirteen nor these distinction Green, Corp. Douglas McDonnell types of hint that certain dis- does even n. n. more than are deemed serious crimination (1973), why no L.Ed.2d 668 we see reason unlawful contrary, it makes others. On the age-based should hostile environment claims workplace any all discrimination differently any from other harass- be treated categories. Council of Since the thirteen ment claims under the DCHRA has fit to not seen the District Columbia classify types different of discrimination argues that Breiner’s hostile environ- Daka, court is suggested age-related harassment the manner ment claim based kinds of dis- not free declare that some unprecedented, and should novel than footing or less unlawful claims crimination more be considered on same Pierce, (D.D.C. any Douglas F.Supp. or the ADEA. filed under the DCHRA event, 19. In granted summary judgment 1988), opinion, U.S.App. D.C. the court without affd plaintiff employer, holding (1990), that the United States Dis- favor F.2d 783 case, present prima and that implicitly failed to District Columbia had trict Court facie "give indication that age-based the evidence did not recognized the existence of an hostile claim, hostility plaintiff’s alleged was as result of [the] but it is unclear from environment *10 F.Supp. age.” at 573. opinion plaintiff’s claim was whether the court’s (or else) anyone If quent other Daka he kinds. be- ridicule received was much more provide, place lieves the statute should so egregious and offensive. It also is evident legislature, seek recourse is the not the sought that discourage Bremer this behav courts. by making known, ior it especially well Sakell, Mr. that he inap found these insults Sufficiency B. evidence propriate. separate three On occasions Daka contends its that motion for approached Bremer told him his judgment n.o.v. granted. should have been “against comments or “illegal.” were the law” judgment Because notwithstanding “[a] But Sakell was these undeterred com only cases,” proper verdict is in ‘extreme’ plaints and, anything, if became more abu Pharmaceuticals, Oxendine v. Merrell Dow only sive toward Breiner. Not did he insult Inc., (D.C.1986), A.2d we re of, to, directly Bremer in front Breiner’s view the denial such a motion deferential subordinates, but he also condoned Reeves’ ly. is “Reversal if ‘no warranted rea improper Viewing conduct. the evidence in person, viewing sonable the evidence Breiner, light most favorable to as we light prevailing party, most favorable to the ” must, we that conclude there sufficient could reach a party.’ verdict favor age-related evidence that the comments were Young Sutherland, Arthur & v. supra, Co. unwelcome, notwithstanding (citations Daka’s evidence omitted); accord, at 363 A.2d Store, contrary. Inc., point On this there was e.g., Peoples Drug Clement cases). (citing clearly an issue to resolve. this prove case Breiner had to that he was
subjected pervasive to unwelcome 2. harassment based on Severe and abuse age, and that this harassment was so dispute There is no conduct pervasive severe or as to alter the conditions of Sakell others was based Breiner’s employment by creating of his a hostile or maintains, however, age. it was working abusive We hold environment. not severe to sufficiently warrant the evidence was sufficient to meet this bur argument under the DCHRA. We find this proof. den of wanting. Although the Harris and Best
1. Unwelcome conduct
“mathematically precise,”
standards
Harris,
supra, 510
U.S. at
S.Ct. at
strongest argument
Daka’s
is that the evi
is
whether
environment
hostile or
dence at trial showed that Breiner welcomed
abusive can
considering
be determined
age.
comments about his
“Unwelcome” con
factors,
several
none of which
itself is
employee
duct is
which
conduct
did not
dispositive.
solicit
employee
According
Supreme
or invite and which the
re
to the
garded
undesirable or
Court,
offensive. Howard
may
these
include:
Best,
University
The Court held Meritor substantially pat- DCHRA is right because the employees the to work Title VII affords (which per- federal law does discriminatory terned after free from an environment intimidation, ridicule, insult.” 477 U.S. mit award plaintiff. harassing party words, In other and the those Harris factors consistent with totality of must be the circumstances "the amount and in Best. These include discussed Best, (footnote conduct, plaintiff's response to considered.” omitted). nature of conduct, relationship between such *12 98 claims),22 ages appropriate
discrimination
trial court
in
erred
case under
permitting
in
serve
to
DCHRA would
the statute’s
even
consider an
“broader
purpose
eliminating
in
punitive damages.
emphatical-
of
of
discrimination
soci-
award
We
ety.”
Gorp.,
Holt v.
Care
121
ly reject
Services
reading
this narrow
of Sutherland.
Life
(D.C.Su-
1517,
Daily
Rptr.
L.
1522
Wash.
court,
after examining
Sutherland this
per.Ct.1993).
dispel
Accordingly,
to
lin-
legislative
DCHRA,
history of the
con-
doubts,
gering
explicitly
we now
hold that
legislature
cluded that
specifically
had
punitive
damages are
all
available
discrim-
patterned the statute
both
after
Title VII
DCHRA, “subject
ination cases under the
(which
not then
punitive damages23)
did
allow
only
principles governing any
general
(the
predecessor
§
and the
of 42 U.S.C. 1981
Sutherland,
punitive damages.”
award of
1866,
1870,
Civil
Act of
as amended in
(citation omitted).
punitive damages in the arsenal of available
behalf, preclud-
faith”
its
good
evidence of
remedies for
Id. at
discrimination.”
371.
ing
damages.
disagree
exemplary
We
Daka’s assessment
the evidence.
contention,
Contrary to Daka’s
there
is nothing
holding
of Sutherland to
punitive
purpose
The twofold
suggest
solely
was
limited
sex
punish
conduct
is to
unlawful
and to
Subsequent
discrimination claims.
cases
repetition.
deter its
North
See BMW of
arising
DCHRA have drawn no
Gore,
559,
America,
567,
Inc.
517 U.S.
116
States,
such distinction. See Reese v. United
1595,
1589,
(1996);
134
809
S.Ct.
L.Ed.2d
(Fed.Cir.1994)
228,
24
(gender
232
F.3d
dis
Haslip,
Co. v.
Mutual
Insurance
Pacific
Life
harassment);
crimination and sexual
Shep
1032,
499 U.S.
111
113
S.Ct.
Cos.,
herd
Broadcasting
v. American
862
Sutherland,
(1991);24
L.Ed.2d 1
631
(D.D.C.1994) (racial
F.Supp. 486, 500
held, therefore,
A.2d at 372. This court has
discrimination),
sexual
vacated on other
punitive damages
only
may
be awarded
grounds,
U.S.App.
314
D.C.
62 F.3d
a mental
when the defendant acted with
state
(1995).
attempt
Daka’s
to bolster its which in
we characterized
Sutherland
argument by analogizing the DCHRA to the
“evil
or actual
Id. Other
motive
malice.”
ADEA
specifi
must fail because
ADEA
language,
cases
different
have used
cally
enforcement,
limits its
see 29 U.S.C.
requisite
all make
that the
mental state
clear
626(b),
§
goes
while the DCHRA does not.
beyond
We
well
a mere intention
be
unpleasant.
that an
annoying
E.g.,
convinced
award of
dam-
Vassiliades
Age
brought
Haslip,
22.
were unlawful.
that
fact
were “reason-
instead that the sums awarded
persisted
hostile comments even after
jury’s finding
Brein-
light of the
that
stop
perhaps
able”
urged
Breiner
him to
piece
proving
er
met
hostile
strongest single
supporting
had
his burden
evidence
jury’s finding
of malice. As
Suther- work environment.
Breeden,
appeal,
665 A.2d
argues,
time on
that
Woodner Co. v.
Daka
first
Jonathan
cert,
(D.C.
(citations omitted),
1995)
motive
Breiner failed
establish malice or evil
de-
by
convincing
nied, -U.S.-,
clear and
evidence.
relevant
L.Ed.2d
recently
proof
only
standard of
has
been decided
217(1997).
by this court:
jury that
court here did not instruct the
The trial
punitive
an award of
[I]n order
sustain
convincing
proper
evidence was the
clear and
plaintiff
prove, by prepon-
damages, the
must
requi-
evidentiary
determining the
standard for
evidence,
derance of the
that the defendant
note, however,
this
of mind. We
site state
act,
by
committed a tortious
clear and
tried before we issued our decision in
case was
accompa-
convincing
was
evidence that
act
Woodner, at a time when the law was
Jonathan
by
evincing
nied
conduct and a state of mind
pre-
was not
Because
issue
still unsettled.
equivalent....
jury
its
must
[T]he
malice or
court,
de-
we decline—as we
served in the trial
punitive damages may
be instructed that
Dyer
Bergman
S.
& Associ-
v. William
clined in
by
clear and con-
awarded
if it
shown
(D.C.1995)—to
ates, Inc., 657 A.2d
by
vincing
tort committed
evidence
of error. See Jonathan
consider Daka’s claim
Woodner,
aggravated
egregious
was
con-
defendant
(discussing Dyer).
verdict, we have held that excessive verdicts
damages
Punitive
B.
strictly
should not be
on compar
measured
argues
that the trial court abused its
Instead,
ative basis.
denying
discretion in
its motion for a remitti-
necessarily
[e]aeh case
this area
rises or
award,
tur
punitive damage
which was
falls on its own
trial
facts and the
court in
thirty-nine
compensato-
times the amount of
ruling
question
on the
or
whether
not a
Daka,
ry
this
damages. According to
award
jury verdict is excessive must determine
fairness
“fails fundamental standards of
totality
on the
of facts
before whether it
process,
justified by
pur-
due
is not
passion, prejudice,
was the result of
poses
designed
punitive damages are
mistake.
however,
ruled,
serve.” The trial court
Devercelli,
May Department
jury’s
Stores v.
314 the
award of
was not
(D.C.1973);
excessive,
Safeway
noting
also
than
see
that it was less
five
Stores,
percent (actually
percent)
ing
a
is constitu
whether
award
unlawful,
re-
him that
were
Sakell’s
told
fair,
tionally
Insurance
Mutual
Pacific
Life
continue
The trial
sponse was to
the insults.
18,
Haslip, supra,
at
111 S.Ct.
Co.
U.S.
subjected
court concluded that Bremer “was
1043,
process
at
as matter of due
such
pervasive
and
abusive conduct”
to severe
“grossly
propor
awards must not be
out of
“substantially di-
and that Sakell’s actions
severity
tion to the
of the offense and have
effective,
ability to be
[Bremer’s]
minished
relationship
compen
some understandable
or
let alone comfortable
fulfilled.”
22,
satory damages.” Id. at
111 S.Ct. at
disproportion
1045.28 But such
must be
Second,
actually
Breiner was found to have
clearly shown.
can
“Only when an award
$10,000.
in the amount of
While
suffered
categorized
in
fairly
‘grossly
excessive’
damages,
punitive
compensatory
of
ratio
[legitimate punitive]
relation to
interests does
one,
suspicious
thirty-nine
may
“raise a
the zone of
that violates
enter
arbitrariness
TXO,
at
judicial eyebrow,”
supra, 509 U.S.
Gore,
process].”
[due
517 U.S. at
(O’Connor, J.,
at 2732
dissent-
113 S.Ct.
at 1595.
S.Ct.
Supreme
upheld an
ing), the
Court in TXO
$19,000
damages
compensatory
in
award of
Supreme
recent
Under
Court’s
punitive
a ratio
damages,
million in
and
Gore,
$10
in
of an
decision
the reasonableness
Gore,
one. In
more than five hundred to
of
punitive damages
is to be deter
award
hand,
reversed
the other
the Court
(1)
repre
three “guideposts”:
mined
$4,000
damages
in
and
(2)
$2
actual
conduct,
award
hensibility of the
defendant’s
ratio of five
punitive damages,
in
million
potential
between
or
difference
the actual
and
together, TXO
to one. Read
puni
hundred
plaintiff
harm suffered
Haslip:
(3)
award,
reaffirm what
Court said
Gore
damages
tive
the difference
cannot,
not,
draw
need
indeed we
punitive
any po
“We
damages
between the
bright
the consti-
line between
Id. at
mathematical
penalties.
tential civil
criminal
constitutionally
1598;
acceptable
supra,
tutionally
and the
Haslip,
at
see
also
1046-47;
23-24,
every case.”
unacceptable
TXO
that would fit
Robinson
million
extent that
court held in
$8.5
testified
was Daka’s
28. To the
27. Sakell
account,
damage
Sarisky,
“punitive
income”
the Smithsonian
amounts
"annual
from
asked)
(because
specify
not
he was not
compensatory
but did
dam-
bear
relation to
need not
gross
figure.
Howev-
whether that was
or net
must be
ages,"
that statement
er,
punitive damages
award was
because
Supreme
light
subsequent
Court
read in
amount,
tiny percentage
deci-
our
such
Haslip and
Gore.
decisions
depend
gross
was
does not
on whether it
sion
net;
way.
it would be the
either
same
Moreover,
jury’s
ages generally, we hold
at 1043.29
award
U.S. at
million a
was not excessive.
Sakell testified that Daka made
We
$8.5
year
sites alone.
jury
properly
at the three Smithsonian
also that the
instruct-
note
$390,000
noted,
puni-
trial court
punitive
As the
objection—on when
ed—without
represents
damages
tive
a mere 2.9
award
purpose
their
appropriate, what
percent of Daka’s income from the Smithso-
is,
fixing
to consider
their
and what
employ-
during
nian
the time of Breiner’s
told the
instruction also
amount. The
ment. Because it is so small in relation to
reason”
use “calm
and sound
discretion
income,
Daka’s total
conclude that it does
we
by sympathy for or
not
be “influenced
punishment
the boundaries of
“exceed
case.”
any party
See note
dislike
bankruptcy.”
and lead to
Jonathan Wood-
instruction,
view,
in our
supra. Such an
ner,
supra note
Third,
difference, if
ness of the award.
any,
we look to the
between the
and the civil or
award
no
we find
abuse of
For these reasons
penalties
criminal
authorized. While the
trial court’s denial Daka’s
discretion
damages,
not limit
DCHRA does
allowable
motion for remittitur.
caps
damage
federal law
all
awards for em-
ployment discrimination under Title
atVII
V. Conolusion
$300,000
employer
when the
has more than
employees,
as Daka does. See 42 U.S.C.
court is in all
judgment
of the trial
(b)(3)(D) (1994).
§ 1981a
But Title VII is
respects
DCHRA,
not the
source for the
as we
Sutherland,
explained in
Thus,
circumstances,
ple; namely,
trigger an
in order to
under all the
in
punitive damages,
the conduct
particularly
light
Supreme
in
of the
Court
award
TXO,
Gore,
required to
Haslip,
question
simply
be that
decisions
as well
cannot
Rather,
governing punitive
impose liability
place.1
as our own
first
ease law
dam-
Gore,
Supreme
"rejecting]
might
been diffi-
29. The
Court in
after
harm
have
noneconomic
cult to determine.
notion that the constitutional line is marked
formula,”
at 1602.
simple
517 U.S. at
a
mathematical
went on to
say:
Admittedly,
a bit on this
we have wavered
Indeed,
Assocs.,
compensatory damages
low awards of
Bergman
point.
Dyer
S.
&
See
v. William
Inc.,
("Ar-
may properly support
higher
high
ratio than
1139 n. 10
awards, if,
compensatory
example, partic-
alleged
guably,
is an intentional
where the tort
one,
ularly egregious
inherently containing
act has resulted in
elements of willful-
ness,
damages.
higher
damages
punitive
small amount of economic
A
must rest
an award of
may
justified
outrageous
upon
being
ratio
also be
in cases in which the
that tort
committed in an
‘outrageousness’
injury
monetary
way;
cannot
is hard to detect or the
value
in other words the
hostile environ-
said,
The
threshold of tolerance.
punitive
an award of
dam-
as we have
solely by
in this case was created
showing
aggra- ment
ages requires a
of “extreme
words;
or discrimina-
physical
no
misconduct
question
Id. at 37. The conduct
vation.”
motive,
various
tory
were demonstrated.
actual
actions
must be characterized
“evil
instances,
actively
some of the
used
malice,
oppression,” or
Bremer
violence or
deliberate
complains of.
language he now
“outrageous ...
in willful disre-
same hostile
it must be
power
supervisory
had
fact that Breiner
v. Sar- The
gard
rights.”
for another’s
Robinson
McKenna,
(D.C.1988) (internal
not at-
but did
Reeves and
over
isky, 535 A.2d
omitted).
discipline them for their insubordi-
tempt to
perpetrated
It must be
quotations
behavior,
severe
relevant
to how
nate
“maliciously, wantonly, oppressively, or with
their conduct.
to Breiner himself viewed
spirit
of mischief or criminal indifference
obligations.” Chesapeake & Potomac
civil
Nonetheless,
majority
agree
I
with
Clay, U.S.App.
Tel.
D.C.
Co.
here,
especially that of
the conduct
(1952).
888,892
194 F.2d
sufficiently “severe
superior,
immediate
was
for a
“discriminatory
pervasive”
envi- or
to form
basis
Before us is a
hostile
all,
company is
liability.
part
I
finding
cause
Where
ronment” case. To succeed at
“
proven
conduct
requires workplace
‘permeated
proposition
of action
justify
intimidation,
ridicule,
sufficiently aggravated to
discriminatory
was
$390,000
damages.
I do
punitive
sufficiently
perva-
severe or
award of
and insult
jury finding
“evil intent or
victim’s not think the
sive to alter the conditions of the
here,
circumstances
working
actual malice”
employment and create
abusive
more,
equa-
significantly to the
without
adds
environment.’” Oncale
Sundowner Off-
—
intimidation,
Seros., Inc.,
-,-,
“discriminatory
shore
118 tion. Where
(1998)
998,1001,140
pervasive”
(quot-
insult” of a “severe or
L.Ed.2d 201
ridicule and
Inc.,
components
hos-
ing
Sys.,
necessary
Harris v.
510 U.S.
nature are
Forklift
environment,
367, 370,
easy
imagine a
it is not
Equally, important, if not more can damages may ‘grossly propor- not out of damages best tailor the amount of ” severity to the Id. at tion offense.’ under which and the circumstances (quoting Mut Congress to be awarded. This is what has Pacific 1, 22, Haslip, Ins. Co. respect done with to Title VII of the Civil Life (1991)). 1032, 1045, 113 L.Ed.2d legislation Rights Act of 1964—the which exemplary damages must principle “The recovery provides the basis for of hostile relationship’ compensa- bear ‘reasonable many environment for federal tory damages long pedigree.” has a Id. at claimants—and, clearly, in Age albeit less recently 116 S.Ct. at As we have Employment Discrimination in Act. See 42 held, punitive damages must have an anchor (b) (1994) (a)(1), (providing § U.S.C. 1981a compensatory damages. in the existence of cases); cap punitive damages in Title for VII Gallagher, Maxwell 626(b) (1985) § (citing 29 29 U.S.C. U.S.C. (D.C.1998). I think that such an anchor 216(b) (providing “liqui- § (Supp.1998)) for proportionality must extend to substantial damages equal unpaid wages dated” generally with the latter’s more concrete ele- ADEA). violations of the And of willful damages, provide ment so as some routinely legislatures course do this when a meaningful standard of measurement. Con- punisha- new offense is created that is made stitutional extremes should be deemed fine ble a criminal fine civil here; punitive dam- consideration imposed by government. ages, concept, may com- a common-law entail mon-law standards as well. A 39 to ratio join my regret colleagues I I cannot must, majority says, suspicious as the raise a affirming punitive damages award here. further; judicial eyebrow. go I would here, given significant circumstances obli- review,21 judicial
gation of do not think that imposition disproportionately of such a
high punitive award can be sustained. *18 that, might retrospect,
I add I harbor
considerable doubt that our decision Suth-
erland, 370-72, supra, properly 631 A.2d at punitive damages
held that are available in un-
court-initiated hostile environment cases is,
der the Human Act. The Act itself terms, express subject. silent agency primari- Rights,
Office of Human
Gore,
S&l,
supra,
has
2. See