Estenos v. PAHO/WHO Federal Credit Union

the Agreement established DCPS lead agency charged with identifying students with disabilities who be enti- services, including

tled transition voca-

tional desig- rehabilitation services. This entirely

nation was appropriate because had the obligation

DCPS under IDEA to

provide transition services to such stu-

dents. 20 U.S.C. 1412. The ALJ’s de- arbitrary

termination was neither nor ca-

pricious.

So Ordered. ESTEÑOS, Appellant,

Juan R.

v. FEDERAL CREDIT

PAHO/WHO

UNION, Appellee. Union, Federal Credit

PAHO/WHO

Cross-Appellant, Esteños, Cross-Appellee. R.

Juan 04-CV-1093,

Nos. 04-CV-1679. Appeals.

District of Columbia Court of

Argued Sept. 2005. July

Decided among agencies manuals or Personnel internal staff directives District Columbia and is solely applicable employees agents or applicable agents solely employees expressly the District Furthermore, of Columbia exclud- the District Columbia. it is publication requirement. ed from the Therefore, regulation. rule or did not a (2007 2-551(5)(B) Supp.). published have to be valid. Agreement understanding internal (“EEOC”), sion turn cross-files DCHRA, filing tolls time for private cause of action D.C. under law. Accordingly, we reverse the trial court’s grant of summary judgment appellee proceed- and remand the case further ings. Background

I. immigrating Before to the United States, Juan Esteños was an auditor and accountant his native Perú. While he initially sought work in similar this coun- try, he instead for position settled as an PAHO/WHO-FCU, clerk at office the em- ployee credit union for the UN-affiliated Pan-American Organization Health and Rubin, E. Mindy James with whom G. time, Health Organization. World At the brief, Rockville, MD, Farber was on the only completed Mr. Esteños had basic appellant. for in English, class and his of the grasp Nealon, Joseph F. Washington, with language rudimentary. According was Jeffrey whom W. Larroca and Kirsten E. Esteños, interview, job January Mr. his brief, Keating were on for appellee. entirely Spanish by conducted Tabak, Emmett B. and (then-CEO Lewis Victor general manager Carla appear Washington, on the brief (Pablo for Wash- Decker), operations manager Lawyers’ Committee, ington Hernandez) as amicus cu- (un- manager and the finance riae on of appellant. behalf identified), bilingual. Although who are ap- pellant testified that Ms. told him Decker RUIZ, Before Judge, Associate and in order to to more progress ad- SCHWELB,* STEADMAN and Senior position vanced he “should study- continue Judges. English,” she, ing who did not remember having Esteños, interviewed Mr. also did RUIZ, Judge: Associate any specific “not recall conversations Esteños, alleging Juan Mr. Esteños regarding ability speak his against employer, presents his former English Spanish.” impression: issue of first District does the Act, Rights parties of Columbia Human dispute whether the office (2001) (“DCHRA”), seq. 2-1401.01 et position English clerk required proficiency employee initially allow an raise a claim at time Mr. Esteños hired. With summary judgment, of national discrimination on evi- its motion for PAHO/ labeled, an English proficiency require- dence of WHO-FCU submitted document Clerk,” it Description ment? We hold that does. also We “Job —Office clerk, timely claim filing yet hold that with the U.S. names Mr. Esteños as the office Equal Employment following requirements: “High lists the Opportunity Commis- * Judge Judge changed Judge Schwelb was an Associate status to Senior on June argued. court at the time this case was His successfully completed the having diploma. Banking experience de- result School English received a Very good knowledge period, appellant probationary sired. added). Appel- (emphasis salary happy That state of af- Spanish.” increase. undisputed lant that since long, contends fairs did not last however. “very good did not have a knowl- he Supchak, Leonard who August hired, edge English” time he was some the credit union’s CEO had been it identifies was language requirement role, assumed the Ms. Decker years before ignored or added after he was either month, Mr. Later that again became CEO. cites Carla hired. PAHO/WHO-FCU Spanish, speak who not ter- Supchak, does testimony proof deposition Decker’s inability to [his] Mr. Esteños “due minated pre-dated requirement appellant’s that the position.” of the requirements fulfill the hiring. deposition, In her Ms. Decker ac- that, explained letter The termination requirement English knowledges the English fluency in both job requires “[t]he position fluency description, but fluency lack of Spanish. [Appellant’s] clerk, describing the duties of the office [appel- English impossible makes it only two tasks that could re- mentioned posi- requirements to fulfill the lant] English quire reading comprehension— According appellant, Sup- Mr. tion.” reading notes that came with checks de- verbally being told him that he was chak posited messages with the credit union or Supchak Mr. “did not terminated because to customers’ accounts. were added English. limited appellant’s understand” that, clerk, She also testified as office Mr. instead his replaced; Mr. Esteños was Esteños did have to deal with the CEO among other staff duties were distributed (in words, extent”), verbally her “to no members. that Mr. with his Esteños communicated not indicate Although As record does Spanish.

coworkers concerns his every knowledge language proficiency of member English, Ms. Decker testified PAHO/WHO-FCU, “spoken that in En- several [appellant] she had to the staff of glish” meetings. at being staff are identified are listed as who bilingual, and Decker Spanish-English Ms. In April probationary peri- after a goal was to that the credit union’s testified od, appellant positive received a evaluation bilingual, pre- everybody have on staff be from supervisor, his immediate Pablo Her- to the credit union’s sumably accommodate nandez, Manager. the Member Services customers, many Hispanic of whom evaluation, According appellant’s to the may prefer personal to conduct their and regarded,” performance “highly was and Spanish. financial transactions in PAHO/ appellant “eager whose was learner” every employee asserts that WHO-FCU “accomplishments noteworthy.” [were] Sup- and English, at least Mr. speak can the expecta- The evaluation concluded with speak R. both and Marites Alfaro chak appellant’s knowledge tion that of the was the first of English. Ms. Alfaro products credit union’s would be “devel- by Sup- hired Mr. eight employees new responsibilities his op[ed]” and that work one half the staff of chak in over There was no men- would increased. hired, those at Of English proficiency or of tion his lack of PAHO/WHO-FCU. unknown; bilingual, the rest least two are any resulting impact on his deleterious assigned work. As a two are identified as Peruvian.1 ability perform to his America, Phillip- and one in the one Iran 1. All the remainder were also born outside Supchak pines. appears Mr. had It also that States: four elsewhere in Latin United Mr. Esteños a complaint respect filed with the of [Title VII] occurred with to 7, 2000, September EEOC on claiming that all alleged some or of the matters firing discriminatory, his was based on na- charge.” Although the EEOC announced origin, tional lack “because of flu- [his] that it to employer did intend sue the ency 14, 2000, in English.” September On time,” “at right it reserved sue gave the EEOC notice of the claim to a later time or to inter- and to D.C. Office PAHO/WHO-FCU vene in lawsuit filed Mr. Esteños. (“DC OHR”). Rights of Human PAHO/ later, Three months on December WHO-FCU confirmed that the reason it appellant complaint filed his in D.C. Supe- fired Mr. English Esteños his lack of (and Court, essentially rior tracking refer- proficiency, adding deficiency “[t]his encing) the findings EEOC.2 impossible ma[kes] Mr. Este[ñ]os appellee’s The trial court denied communicate our motion with members to dismiss the understand and action communicate some time-barred year, limitations, staff members.” following one-year after statute of reasoning an investigation, the EEOC found “reason- “that cross-filing [with EEOC D.C. able cause to believe” PAHO/WHO- satisfies OHR] both intent and lan- VII, by FCU violated discriminating Title guage of’ DCHRA statute of limita- origin the basis of national due to Mr. tions. speak Esteños’s inability English. It having previously After appel- denied also employer’s proffered found the reason summary lee’s motion for judgment pre- to be “pretextual” because it had simi- mature, the trial court reheard motion (Ms. Alfaro) larly employee fired another discovery after completed, grant- spoke only English who had trouble summary ed grounds. on two communicating with some of the credit First, although the trial court recognized union’s Spanish-speaking customers. foreign that a person’s ability accent or disputed the EEOC’s PAHO/WHO-FCU speak foreign language could form the determination, citing Mr. Supchak’s record basis charge dis- Peruvians, of hiring necessity crimination, it of the that view the he be able to communicate the with office protect DCHRA does not also clerk, those who having without to to resort other ability lack speak English proficient- the to staff interpreters. as Because EEOC settlement,” ly.3 any event, held, the trial court “could not obtain Sep- on 14, 2001, “plaintiff cannot fourth tember it advised of establish the ele- appellant his sue, right stating again prima to that ment of a facie requires found employee “reasonable cause to believe that that a similarly violations situated be PAHO/WHO-FCU, during prior hired another Peruvian ten- as with his less than 15 em- ployees. ure as CEO. She then the District of remanded Rights Human Act to Columbia count Appellant’s alleged complaint originally Court, vio- Superior compe- as a matter of local of VII lations both Title and the District of Judge party appealed tence. Kollar- Neither Rights Columbia Human Act. PAHO/WHO- Kotelly's order. The DCHRA contains no re- FCU removed the lawsuit to the U.S. District quirement regarding the minimum number of Columbia, Court of for District employees. promptly have moved to the Federal count "plaintiff’s alleged as a of 3. The court dismissed matter law. United States trial ruled sub-class, Judge Kollar-Kotelly District Colleen dis- 'Peruvian immi- ground grants yet proficient missed on the have become the Federal claim who organizations, English’ supported Title VII does not cover such under the DCHRA.” 2-1403.04(a) (2001) Therefore, (emphasis § favorably.” the D.C.Code treated more added). for provides The also DCHRA summary granted trial court court: actions in filing private of was not entitled appellee appellant because aggrieved be Any person claiming to appeal, In this to relief a matter law. discriminatory practice shall an unlawful challenges prongs Mr. both Esteños court of any have a cause of action summary judgment ruling; PAHO/WHO- damages and jurisdiction for competent court’s denial cross-appeals trial FCU appro- such other remedies under the statute of its motion dismiss has filed person unless such priate, of limitations. hereunder; provided, complaint such has dismissed where Office II. of Limitations Statute grounds on of administra- complaint dismiss, motions to Unsuccessful convenience, complain- or tive where the of the motion to dismiss such as the denial such complaint, ant withdrawn a has raised under statute limitations bring rights maintain all person shall de appellee’s cross-appeal, reviewed filed. complaint if no had been suit as novo, light all most viewing facts maintains, in a court person who No non-moving party. See favorable to jurisdiction, action based competent Shoppe, Inc. v. Carr Executive Sandwich an unlawful an act which would be upon (D.C.2000); Realty Corp., 749 A.2d chap- under this discriminatory practice Columbia, Johnson-El v. District complaint with the may file the same ter (D.C.1990). 163, 166 A.2d private pursu- A cause action Office. chapter ant shall be filed time-line statute of lim- The relevant jurisdiction within competent court of purposes itation is as Mr. Esteños follows: discriminatory year of the unlawful one 31, 2000; August fired he filed a on act, discovery thereof.... complaint September on with the EEOC complaint timely filing of 2000; informed EEOC PAHO/WHO-FCU pro- Office, or under the administrative 14, 2000; September and the DC OHR on Mayor pursu- cedures established investigation completed its EEOC 2-1403.03, run- toll the ant to shall Right to Mr. Esteños sent Sue letter while ning the statute limitations 14, 2001; Mr. filed September Esteños pending. complaint 14, 2001. suit on December (2001) 2-1403.16(a) (emphasis added). ruled that The trial court filing provides The DCHRA “cross-filing OHR] the DC [with EEOC’s with the OHR as follows: DC a requirements of essentially the satisfied or whether or Any person organization, Appellee the complaint OHR].” DC [with party, may court, with that aggrieved not an the trial argues, as did file a violation of complaint actually complaint the file a did not plaintiff Office of Any chapter.... OHR, this not determi- provisions the of but this is the DC with correctly chapter native, shall be court complaint under as the trial for file ruled, 1 not need to year the Office does plaintiff filed with within satisfy the discriminato- with the OHR personally occurrence of the unlawful DC thereof, requirement. The discovery tolling or the ry practice, statute’s require- procedural and EEOC’s may modified accordance OHR’s except as be flexibly and broadly read ments be [referring § to suits are 2-1403.03 with their light of favor employee’s in the government]. the DC against 886 they purposes

remedial and because pellant’s EEOC claim to DC tolled OHR See, designed lay persons. e.g., EEOC running of limi one-year of statute Co., v. Commercial Prods. U.S. 486 We, therefore, tations. conclude that the Office 107, 115-16, 108 1666, 100 S.Ct. L.Ed.2d 96 trial properly appellee’s court denied mo (1988) (providing benefit of full limitations complaint tion to dismiss the time- as period directly to claimant who filed with barred.4 EEOC agencies where federal and state

had a work-sharing arrangement); Love v. Origin III. Claim of National Co., 522, 525-27, Pullman 404 92 Discrimination 616, (1972) (Colorado S.Ct. 30 L.Ed.2d 679 Rights A. rights Civil Commission Title VII and DCHRA waive EEOC); Ivey in favor of v. District of construing follow We cases Title Columbia, 607, (D.C.2008) 949 A.2d in interpreting applying provi VII and (applying Commercial Prods. Co. to Office of appropriate,” sions the DCHRA “when work-sharing agreement between EEOC is, to the extent the acts use OHR); and DC v. Fowler District Co of pur and similar words reflect similar lumbia, (D.D.C. 37, F.Supp.2d. 42-43 pose. Corp. Klieforth, v. Commc’n Benefits 2000) (DC cooperation agree OHR/EEOC see, (D.C.1994); e.g., 642 A.2d designed ment is double-filing avoid Ass’n, Lively Packaging v. Flexible should be respected). such a broad Under (D.C.2003) (en banc); A.2d cf. reading of filing the statute’s requirement, (“In (1995) § DCMR 500.2 general, EEOC, appellant’s timely filing with the of adopt Office Commission and in which DC OHR promptly copy received corporate by reference current regulations existing under the agreement between Equal of the U.S. Employment Opportuni federal and agencies, local sufficed to toll ty general Commission shall follow period filing limitations in court. principles Rights of Title VII of Civil Moreover, reading even under a literal of amended, applica Act wherever DCHRA, “any person or organization, in interpreting Rights ble the D.C. Human an aggrieved party, may whether not specific guidelines Act 1977 ... unless Office,” 2- D.C.Code file 1403.04(a) contrary.”) state the Our reliance fed added), (emphasis and “[t]he VII, eral timely construing gen cases Title while filing complaint shall toll erally apt, must be running mindful differences statute limitations.” 2-1403.16(a) laws, between the federal and D.C. howev (emphasis add ed). er, qualifies significant. As the EEOC or which can be “any” See Wallace Skadden, Slate, Flom, ganization, timely ap Arps, its cross-referral Meagher & unpersuaded by 4. We are effect at time Mr. Esteños filed his PAHO/WHO-FCU’s Group, complaint reliance on v. Acacia No. 97- claim with the EEOC Griffin Superior 1998 U.S. Dist. LEXIS 10854 at *12-13 Court. when Griffin (D.D.C. decided, 1998), proposition provided for the since law D.C. that the statute of jurisdiction filing "DC OHR did assume in this limitations for would tolled court plaintiff's complaint pending case ... DC OHR never had “while the before (1980) any 'pending § and there never was action be [D.C.] D.C.Code 1-2556 Office." OHR, added). (emphasis longer the DC which would allow toll That no case. is the fore added) ing.” (emphasis (quoting D.C.Reg. Rights 44 The Human Amendment Act eliminat 4857)(1997); (1997 § requirement pending D.C.Code 1-2556 ed that the claim be 14-189, Supp.). if we Even were to consider the U.S. "before the Office.” See D.C. Law 1, 2(i) (Oct. 2002); unpublished opinion, § District it Court’s is 2- D.C.Code 1403.16(a). statutory language on based different that was

887 of national dis- 873, (D.C.1998); possible Arthur 715 A.2d 889 354, Sutherland, crimination. v. 631 A.2d Young & Co. (D.C.1993) given lan- (permitting,

371-72 under the “Effects held that We have history, legislative and guage of DCHRA DCHRA, § 2- D.C.Code of the Clause” Title damages not under punitive available 1402.68,5 any inten- “despite the absence of VII). discriminate, unlawful practices are tion to pro- on a they disproportionately

if bear in is that overriding An difference jus- independently not tected class and are DCHRA, enacting the Council of nondiscriminatory reason.” for some tified go intended to above Georgetown District Columbia Univ. Gay Rights Coalition of Univ., beyond protections afforded A.2d 536 Georgetown Law Ctr. v. (en banc) (D.C.1987) v. by (citing Griggs employees Title VII. DCHRA Co., 424, 424, classes Duke Power protected enumerates more (1971)) (finding VII, § 2- S.Ct. 28 L.Ed.2d 158 compare than Title Rights Act’s that “none of the Human 1402.11, Rights Act of with Civil narrowly-drawn exceptions,” such as (a) (2003), VII, Title U.S.C. 2000e-2 “ in necessity exception’ cases ‘business announces, but also “the intent of discrimination,” applied unintentional Columbia, in Council of the District of group’s based on excuse discrimination an end enacting chapter, this secure [is] orientation). “Ef- sexual The DCHRA’s discrimina the District of Columbia to lan- parallel has no fects Clause” that of tion for reason other than VII, of Title and was modeled guage merit, including, individual but not limited v. opinion Griggs Supreme Court’s to,” the enumerated classes. D.C.Code well, respect, Duke Power Co. So this as however, mean, § 2-1401.01. That does not of the DCHRA statutory language protected this court will create new VII scope broader in than that of Title legislature. identified classes not interpreted has (although not it been Garfinckel’s, See Sorrells 565 A.2d practices that have prohibit Court (D.C.1989) (rejecting extension disparate impact). employee DCHRA where failed claim a protected-class membership). But it does derives Yet another difference mean that we must read words of Columbia from how federal and District liberally consistent with the Act’s DCHRA to the defense of busi law accommodate George sweeping statement of intent. See evaluating whether ness Zoning Washington Univ. v. D.C. Bd. ad requirement that has an practice (D.C.2003) Adjustment, 831 A.2d impact protected on a class—which verse (“The Rights imper Human Act is a broad reme would otherwise be actionable generously to be dial statute and nonetheless missible discrimination —is construed.”). “neutral,” infra, explain independent, As we this justified by discrimination, Title non-diseriminatory the claimed reason. Under case basis VII, employ an unlawful appears both Title VII “it shall origin, to hire and DCHRA, ex for an regulations practice and D.C. ment ..., on the basis of employ, employees pressly adopt regulations federal concern certain instances origin in those as national English-proficiency requirements ing § 2- discriminatory practice.” D.C.Code "Any or conse- ful practice which has effect violating provisions quence any of the 1402.68. an unlaw- chapter shall be deemed to be 888 2-1401.03(a) (2001). origin

where ... a § bona fide D.C.Code ex- This said, occupational ception, requires we have qualification reasonably good nec “a difficulty deal more than a essary mere con- operation par to the normal of the a ducting by business non-discriminatory enterprise.” ticular or business U.S.C. means.” added). Natural Motion Sandra (emphasis 2000c-2 Applying Ti D.C. Rights, Comm’n on Human 687 A.2d respect tle VII [with claims of national (D.C.1997) (citation omitted) (up- origin discrimination], federal courts have holding D.C. Commission on Human English-only held that “an rule does Rights finding that “occasional absences” applied violate VII to bilingual Title as employee’s due to physical handicap— employees long legitimate so as there is a AIDS —that “caused ‘an in- unspecified purpose.” business Prado v. L. Luria & inefficiency crease in operation of [a] Inc., (S.D.Fla. F.Supp. Son ” is salon’ insufficient to meet ne- business 1997) added). DCHRA, (emphasis The cessity exception). The places DCHRA however, does not exception contain an exception the burden of proving that explicitly permits outright discrimina necessity” “business on em- squarely emp tion origin on basis of national ployer, who must that burden “in meet Instead, loyment.6 statutorily it limits 2-§ each individual case.” D.C.Code justifying unintentional discrimination to Moreover, 1401.03. necessity the business necessity,” “business which is de narrowly exception be “interpreted narrowly should fined: greatest and with the of caution.” Commit- Any practice which has discriminatory tee on Education and Youth Re- Affairs effect and which would otherwise be port Rights Law, on Title Human prohibited by chapter this shall not be 4, Oct. (tracing of the if can deemed unlawful be established exception for necessity” “business practice intentionally such is not Griggs v. disavowing Duke Power Co. and or operated devised contravene subsequent “obscurfing]” cases the mean- prohibitions chapter of this and can be ing exception as well certain justified by necessity. business Under permitted practices by the EEOC guide- chapter, necessity” ex- “business as, example, prefer- lines such “the only ception applicable in each individ- co-workers, employers, ences of customers ual ease it can proved where be Thus, any other person(s)”). we have that, respondent without exception, such held necessity business exception conducted; such be business cannot “could not be invoked compa- [a to insulate necessity” exception “business cannot ny] from ‘preferences the bias or of co- ” justified by the facts increased cost to employees’ workers where the [and] com- business, efficiency, business the com- pany’s provide contractor refused to parative group characteristics one as plumbing to person services with AIDS. another, opposed stereotyped Mgmt., Joel Truitt Inc. v. D.C. Comm’n opposed characterization of one group (D.C. Rights, Human 646 A.2d another, 1994) curiam) preferences co- (quoting § 2- (per workers, 1401.03). employers, caselaw, customers or As we review Title VII therefore, person. understanding other we so do with exceptions— age police DCHRA contains two mum and maximum limits necessity” in addition to em- firefighter "business programs. officer See cadet —for discrimination, ployment for "bona fide” se- D.C.Code 2-1402.12. systems niority plans, or benefit and mini-

889 he that, his was despite qualifications, merely practices questionable that are (iv) that, rejec- after his rejected; and may Title suffice to establish under VII tion, open and position remained under the DCHRA. Com- discrimination applicants to continued seek employer Prado, (finding at 1354 pare F.Supp. 975 complainant’s qualifica- of persons from English- legitimate purpose business of tions. manager testified custom- only rule where Spanish), to preferred not overhear

ers burden complainant’s The (excluding 2-1401.03 with a case discrimi establishing prima facie co-workers, employees, “preferences of Dep’t Tex. “not onerous.” nation is justifi- person” customers or other 248, Burdine, 450 U.S. Cmty. v. Affairs necessity”). cation for “business (1981). 1089, 253, L.Ed.2d 207 101 67 S.Ct. prima a complainant Once makes facie Douglas B. The Test McDonnell case, shift burden then must to “[t]he employment “In an discrimina legitimate, employer to articulate some ..., adopted court has tion case nondiscriminatory employ reason for the Supreme approach respect Court’s Douglas rejection.” McDonnell ee’s proof un the allocation of the burdens of 802, 93 1817. Fi 411 at S.Ct. Corp., VII_” Title Atlantic Co. der Richfield employee may employ nally, the rebut Rights, D.C. Comm’n on Human 515 v. non-discriminatory pretex er’s reason (D.C.1986). 1095, 1099 For A.2d cases his ultimate tual and endeavor meet disparate alleging treatment7 based discrimi showing impermissible burden of impermissible discriminatory ground, the 1817; 804, 93 nation. See id. at S.Ct. Supreme Court established a burden-shift- Prods., Plumbing Sanderson Reeves v. ing analytical framework McDonnell 2097, Inc., 133, 146-47, 120 530 U.S. S.Ct. Green, 792, 802, Douglas Corp. v. 411 U.S. (2000). test, of The 147 L.Ed.2d (1973):8 1817, 36 L.Ed.2d 668 S.Ct. course, to the facts should be modified complainant termination, a Title VII trial hand, not a which involve a carry the initial under the hire, proper inquiry must burden is failure a establishing prima statute of on the “termination was based whether facie placed case of ... discrimination. This characteristic that [claimant] (i) class,” he MCI showing belongs done a McManus v. protected (ii) 949, (D.C. class]; [protected applied Corp., that he 748 A.2d Commc’ns 2000). employer did job for which qualified Whenever (iii) actually replace seeking seek or did applicants; ap- test "mixed motives” is conceptual establishing Price Waterhouse A basis for 7. different disparate prima im- plied. discrimination the doctrine make a case discrim- To facie pact, Effects ination, embodied in the DCHRA’s plaintiff only provide need Clause, supra, analyzes the discussed prejudice possesses that a decision-maker facially practices partic- neutral on a effect bias, prove to the factfinder and then group. 2- protected See D.C.Code ular likely than not attitude was more "that 1402.68, Griggs, supra; 401 U.S. note employer’s decision motivating factor 158; Gay Rights 28 L.Ed.2d 91 S.Ct. Mortgage v. Nat’l Hollins Fed. to terminate.” Coalition, A.2d at 29. Ass’n, (D.C.2000) (quot- A.2d 574-75 Hopkins, 490 U.S. ing Price Waterhouse Douglas It that the McDonnell is understood 228, 258, 104 L.Ed.2d 109 S.Ct. test is a means to establish (1989)). "similarly In such situat- If inferentially circumstantial evidence. Douglas irrelevant. ed” test of McDonnell circum- employee direct rather than offers discrimination, then stantial evidence here, claimant with employee, another origin EEOC “defines national discrimina- we have modified the fourth factor of broadly, tion as including, but not limited prima require to, case to that claim- equal the denial of employment oppor- facie “similarly person ant show that a individual’s, situated” tunity of an because or his or protected outside of his ancestor’s, class “w[as] place her or origin; because but terminated instead w[as] treated more physical, an individual has the cultural Id. That favorably.” person, appellant has linguistic characteristics of a ori- national claimed in appeal, the trial court and on 1606.1(2008). gin § group.” 29 C.F.R. Alfaro, was Ms. who is from Phillip- regulations The EEOC establish that pines, and was not fired notwithstanding principles title of disparate “[t]he VTI her inability speak Spanish caused treatment impact ap- and adverse equally difficulties her communications with Id. ply origin to national discrimination.” some of the credit union’s customers. §at 1606.2.9 respect “linguistic With to the persons characteristics” of aof national Regulations C. Title VII and Caselaw origin group, the EEOC has identified Language-proficiency requirements “fluency-in-English”10 can “English- perfectly be based legitimate only” requirements on for employment consider- ations, they and, thus, but capable possibly discriminatory are also of use to it will against “carefully discriminate investigate charges involving nationals of countries generally where the language spo- procedures dispa- is not these selection for both regulations ken. In rate implement impact issued treatment and adverse on the prohibition Id. against employment origin.” dis- basis national at 1606.6(b)(1).12 § crimination based national origin, the reason, example, times, 9. For height speak-English-only rule at certain weight requirements, "which tend to exclude employer employees should its inform origin” individuals on the basis of national general speak- circumstances when impact by must be evaluated for adverse em- ing only English required is ployers "regardless of whether the total selec- consequences violating rule. If process impact tion has an adverse based on employer effectively notify fails to its em- origin.” 1606.6(a)(2). § national 29 C.F.R. at ployees of the rule and makes an adverse employment against decision an individual requirements "Fluency-in-English” in- rule, based on a violation of the the Com- employment opportunities clude denial of be- employer’s appli- mission will consider person’s foreign cause of a accent or "inabili- rule cation of the as evidence of discrimina- ty English.” to communicate well origin. tion on the basis 1606.6(b)(1). § C.F.R. § 29 C.F.R 1606.7. regulations provide, 11. The EEOC with re- 12. Although requirements subject such are spect "speak-En- to the related but distinct scrutiny, they may ultimately grounds job glish-only” rules: justified for discrimination under Title VII if § Speak-English-only 1606.7 rules. concept. under “bottom line” 29 C.F.R. (b) applied only When at certain times. An 1606.6(b). § concept The "bottom line” employer may requiring have a rule impact,” defined in terms of "adverse speak only English employees at certain rule.” Id. at in turn refers to the "four fifths employer times where the can show that Height weight require 1607.4 C-D. justified by and. necessity. rule business ments, hand, (c) on the other ex considered Notice of the rule. It is common for Id. ceptions concept. to the "bottom line” primary language individuals whose is not 1606.6(a)(2). We need not English and do not con inadvertently change from deciding English speaking sider the context of whether speaking primary their sum Therefore, language. mary judgment appropriate if an be- (or whether) necessity concept” lieves it has a business for a how the "bottom line constitute un- applied, could potential improperly if recognize Federal courts lawful national discrimination. discriminatory impact linguistic of certain Oklahoma, 750 University and, Carino consequently, have requirements (10th Cir.1984), court F.2d employees pro- found that Title VII offers accent was plaintiffs Filipino the held that discrimination, against that kind of tection employ- a valid reason to terminate understanding, example, that “[a]ccent laboratory supervisor. ment as a dental origin obviously and national inextrica- 596-98, on the F.2d at Fragante, In bly many Fragante in intertwined cases.” hand, court held that Mr. Fra- the other Honolulu, City County & 888 F.2d ... “pronounced Filipino accent gante’s (9th Cir.1989).13 591, 596 Consistent with job perform- with materially interfered policy “carefully the EEOC’s investi- ance,” ability com- required the which gate” fluency-in-English English-only and orally interacting the when with municate court requirements, appellate one federal of Motor at the Honolulu Division public very look” “encourage[d] searching has Licensing.14 Vehicles and in such otherwise cases because easy refuge be an in would therefore [i]t D. District Columbia unlawfully for an context Regulations Law & against someone based on discriminating the District of The OHR and origin falsely national to state Rights Human have Commission Columbia person’s origin was not the national above-quoted specifically adopted the employment promotion caused the dealing regulations with EEOC problem, inability to but the candidate’s See DCMR discrimination. up to the communications skills measure (“The and § 511.1 Office Commission by job. demanded adopt incorporate by and reference re- surprisingly, Id. Not decided cases Origin Discrimina guidelines on National [EEOC], veal that the of whether an determination which by tion promulgated employment employee’s 1606”); § action based on an see also appear 29 C.F.R. (“In linguistic discriminatory general, characteristic the Office DCMR 500.2 and, reason, highly un- adopt incorporate fact-bound for that Commission likely summary judg- by regulations to be resolved on reference current general principles ment. For what on its face and shall follow example, [EEOC] ... applicable requirement, of Title VII wherever appear legitimate business proficien- regulations mentioned his lack of with the chak’s letter the EEOC meshes DCHRA, exception necessity” cy English, "business but Mr. Esteños testified proven employer in by is to be Supchak could not under- told him he Mr. § 2- "each individual case.” English, possibly a reference stand his 1401.03(a). Spanish heavy accent. Esteños’s perceive overlap We some between cases 13. followed Although Fragante the court 14. employees are fired because of their in which guidance “carefully investi- the EEOC’s require- there is accent and those where gate[d]” employment requirements based on sense, fluency. English In some ment of language, interestingly it disavowed deference significance the two could be viewed between rules, language see 29 C.F.R. EEOC’s out, points degree. appellant As one 1606.6, constituting EEOC's au- as not require- English proficiency the basis for an law, but due interpretation of the thoritative very applied to law ment is different when 888 F.2d at consideration.” "careful janitor cleans the court- clerk and to who event, why exact reason house. Sup- fired is unclear. Mr. Mr. Estenos was (D.C.2002). specific unless guidelines state the con- 1281 In considering a motion trary”)- Since the regulations EEOC have summary judgment, all evidence and incorporated been into the regu- District’s inferences from that evidence must be latory agencies law charged light viewed most favorable to the DCHRA, implementing the we owe them non-moving party. See id. The opposi deference in interpreting the DCHRA. tion, however, must consist of more than Noble, See U.S. Parole Comm’n v. 693 conclusory allegations, and supported (1997) (en banc). A.2d 1096-97 competent affidavits or other agency “[W]e defer to construction of stat- tending prove disputed material issues utes because of the agency’s presumed of fact. Goodyear See Beard v. Tire & expertise construing the statute it ad- Co., (D.C. 195, Rubber A.2d 587 198-99 ministers .... We therefore have deferred 1991). case, In a summary discrimination ... ... example to the Office of Hu- is appropriate where the plain Rights man presented when with different present or, tiff fails to a prima case facie possible interpretations of the Human a assuming prima even where facie Rights Act....” (citing Id. Timus v. D.C. genuine there is no of issue material fact Dep’t Rights, 751, Human 633 A.2d “that the employer’s non-discriminatory (D.C.1993) (en banc)).15 758-60 We see no pretextual.” DCX, reason is v. Mitchell reject agency’s reason to broad inter- Inc., 33, (D.D.C.2003). F.Supp.2d 274 39 pretation as the inference of national ori- gin discrimination flowing linguistic from disagree We with the trial recognized characteristics in the EEOC legal court’s appellant’s determination that regulations adopted by the DC OHR is English claim based on lack of proficiency reasonable and statutory footing finds “no support” light has the DCHRA. the “Effects Clause” of the DCHRA. See regulations of the recognizing EEOC a 2-1402.68, 5, supra. note

link between linguistic characteristics (such Summary Judgment inability E. speak English as the fluently) origin and national that have This grant court reviews the incorporated law, been into D.C. Mr. Este novo, a summary judgment motion for de initially presented ños has a cognizable Ass’n, Velasquez see v. Essex Condo. 759 claim of national un 676, (D.C.2000), A.2d 679 under the same DCHRA, der the and satisfied the first standard as the trial court: whether there prong a prima appel case because material in dispute issues of fact facie lee’s moving English-proficiency requirement may party judg is entitled to ment as matter of v. be evidence of discrimination on the law. See Joeckel basis Veterans, 1279, Disabled Am. 793 origin.16 A.2d of his Peruvian national We also 576, 587, 1655, necessarily County, 15. The same deference is not ris 529 U.S. 120 S.Ct. Compliance (2000); owed to the EEOC's Manual. 146 L.Ed.2d 621 Clackamas Gastroen Passenger Corp., Assocs., Wells, See National Railroad 440, v. Mor terology P.C. v. 538 U.S. 101, 6, 2061, gan, 536 U.S. 111 n. 122 449, S.Ct. 1673, (2003) 123 S.Ct. 155 L.Ed.2d 615 (U.S.2002) ("[Tlhe 153 L.Ed.2d 106 EEOC’s (all citing the lower-deference standard from interpretive guidelines do not receive Chev Co., 134, 140, Skidmore v. & U.S. 323 65 Swift Council, Natural ron[v. Resources 467 161, (1944)). Defense S.Ct. 89 L.Ed. 124 U.S. 104 S.Ct. L.Ed.2d Thus, deference," (1984)] possible an issue is raised of discrim- and are useful cases, ination on basis of Mr. Estenos's status as Title VII "to extent that those inter " Peruvian, (ci pretations regardless 'power persuade.' have the existence vel non omitted)); protected tations see also Christensen v. Har of distinct "subclass” non-En- of produc burden tion, which reject shifts trial court’s determination action justify its tion to the fourth to meet Mr. Esteños failed non-dis independent product as the he prong prima case because facie Mary’s Hon criminatory See St. reason. po- “no that Ms. Alfaro’s offered evidence Hicks, Ctr. the same duties and tasks sition demands ” (1993). On 125 L.Ed.2d 407 S.Ct. position as ‘Office plaintiffs Clerk.’ us, undisputed the record before added). prong’s (Emphasis But the fourth stated was fired on the Mr. Esteños who is comparison employee with another not meet ground that he did PAHO/ “identi- “similarly situated” cannot mean requirem fluency-in-English WHO-FCU’s employee has cal” in a situation where the ent,17 employer asserts is which the contemplated Mc- replaced, not been En non-discriminatory reason because (“[A]p- n. Manus. See 748 A.2d at 955 for the “required” glish proficiency was required to show that the pellant [is] clearly re position.18 What office clerk jobs persons of one or more were not who conflicting dispute, mains class, protected and who members sides, by Mr. as demonstrated both jobs hers had not been had similar summary opposition to the Estefios’s added)). (emphasis terminated.” motion, is, first, En whether point proffered that Mr. evi- is Estefios’s necessary proficiency in fact a glish was dence of the per- that Ms. Alfaro was one office requirement particular who some responsibili- sons assumed of his by position, asserted clerk that, event, in had ties and when she and, termination, as the for the reason difficulty communicating with the credit second, the of Mr. Estefios’s actual level Spanish union’s customers in —whatever Ap- time. proficiency English in at that requirements job the formal of her de- lack pellee “appellant’s has asserted that not fired as he was. scription was —she impossible fluency English of in made enough particular This was facts requirements to fulfill the appellant presented summary judg- to here defeat English-profi and that the position,” ground ment on the that he had failed a ciency requirement applied was in non making “not onerous” burden of out discriminatory light appel manner Therefore, prima case. the trial facie But English. lant’s actual command of court as a matter of law dismiss- erred points, and disputed both appellant has ground on the that Mr. ing complaint on the facts that bear these material presented prima Esteños had facie by open to resolution pretext issue the DCHRA. case discrimination under may be Although there the fact finder. employer’s an prima of a certain situations where Presentation facie with a subordinate to communicate presumption case raises a discrimina need Peruvians, According job description proffered glish-speaking relied on 18. to issue we by employer, requirement need of the office clerk by the trial court but 3, supra. appeal. note knowledge English address on this See good position "[v]ery sent to Spanish.” The termination letter argued It could be that PAHO/WHO-FCU job requires flu- "the Mr. Esteños stated that speak-English-only rule also enforced Spanish.” ad- ency English We both times,” "applied only see note at certain solely English proficiency issue dress here the 11, supra, namely, Supchak wanted when Mr. presented by em- precise context speak employee, but this basis to with the (i.e., carry indispensable on the ployer appellant the trial by before not asserted position). duties of the court. employee may require law, that the latter lit- subject credibility rather than its erally to speak supervisor’s be able assessment at trial by the finder fact. Gloor, language, see Garcia v. 618 F.2d Moreover, appellant that, argued has (5th Cir.1980) En- (upholding assuming even English-proficien- glish-only requirement so “provid[e] as to cy requirement predated (or, hiring his English speaking supervisors ability alternatively, job’s requirements that the manage enterprise knowing changed Supchak CEO), once Mr. became area”), what was said in the work there is he did not proper receive notice of the disputing that such case was the rule, having been told when he was hired here, given the favorable evaluation of only that he “should continue En- studying Mr. performance Esteños’s of his glish” duties in order to progress to a ad- more but, as office clerk position, and Ms. vanced “not Decker’s testimo- that speak- ny ing English requirement that the CEO had no was a need to commu- for the job.” clerk office In such a nicate as there verbally with the office clerk. question was no Moreover, that he otherwise satisfac- dispute there as to the torily performed clerk, appellant as a ar- extent to which Mr. English Esteños’s gues that appellee discriminated against limited) (though concededly somewhat him not providing a period transition was sufficient for his position, light of permit improve him English his profi- was, Ms. Decker’s testimony that she ciency or seek some interim alternative to fact, speak able to with Mr. Esteños in facilitate his communications with Mr. English during staff meetings. These Supchak.19 light of the material facts in disputed issues of preclude material fact dispute, summary judgment improper. grant summary judgment on the Although it not necessary is to our deter- employer basis that the proven has a val- mination that Mr. presented Esteños has id, non-discriminatory reason for termi- enough evidence of pretextuality to survive nating employment. his example, For summary judgment, but- our conclusion is Co., Kyriazi v. Western F.Supp. Elec. 461 determination, tressed the EEOC’s (D.N.J.1978), 894 a sex discrimination Letter, Right stated to Sue that it case, the court pretext dismissed as “found reasonable cause to believe that employer’s allegations that Kyriazi Ms. statute(s) violations of the occurred awas “slow learner” “inability with an respect to some all of the matters al- English,” communicate in pointing out leged charges.” any immigrant that a graduate who earns degree University from Columbia should stress, however, We surviving that bright be enough articulate to com- far summary judgment from establish job require municate a that a does ing liability for discrimination under the Here, college degree. ap- See at id. DCHRA. appellant prim Once made a a accountant, pellant, a trained was per- case and the a employer presented facie duties, forming clerical reason, EEOC’s non-discriminatory “the McDon Washington field office determined that Douglas nell pre framework —with its appellee’s proffered non-discriminatory sumptions and disappeared, burdens — pretextual, it making inappro- reason was remaining the sole issue was discrimina Reeves, priate 142-43, to decide that as issue a matter tion vel non.” 530 at noted, done, (itself previously 19. As most of the credit union’s em- had if and when a fact) disputed ployees bilingual probably could have issue of the office clerk needed any interpretation, they provided necessary communicate with the CEO.

895 em- jury for the setting verdict aside (quotation marks and cita 2097 S.Ct. omitted). alleg- case age ployee trial court in an discrimination Because the tions Applying support ing treatment. disparate that the DCHRA did ruled law that the of evidence “general principle of national claim characteristics, party’s par to consider linguistic factfinder entitled based as ‘affir- a factual basis from fact develop dishonesty ties did not about a material ” jury could whether held guilt,’ which the determine Court mative evidence of was, requirement English proficiency of a “prima presentation a claimant’s appellee, required per claimed evi- with sufficient combined facie position appellant the duties of the form employer’s asserted dence to find that held, Dalmau v. Fragante, as in see also false, trier may permit the justification is Rio-Grandense, S.A., Aerea Vicao un- that the of fact to conclude (S.D.Fla.2004) (upholding F.Supp.2d 147-48, lawfully Id. at discriminated.” requirement cargo omitted). Brazilian airline’s (citation ulti- “The S.Ct. 2097 representatives fluent Portu speak sales dis- question every employment mate pretextual guese), or whether involving dispa- claim of case crimination not focus requirement. The trial court did plaintiff was is whether the rate treatment degree import on the any significant of intentional discrimination.” the victim origin hiring appellee’s actual national 2097; see Id. at 120 S.Ct. id. among Mr. other practice. Supchak Since “it is not (explaining 120 S.Ct. in the same actions hired two Peruvians enough employer; to disbelieve Esteños, year that he fired Mr. plaintiffs PAHO/ must believe the the factfinder strong argues that it has evi WHO-FCU explanation intentional discrimina- Supchak preju that Mr. harbors no tion”).20 dence emphasized the in- The Court against issue, dice Peruvians. ultimate nature of the tense factual so that: deciding must that this case remanded, of law is as a matter rely on the particularly [w]hether we Reeves, will particular case Supreme appropriate Court’s decision .... 142, 2097, [ number of factors reversing depend ] at on a 120 S.Ct. includ[ing] strength plaintiffs of as a of law the grant judgment matter discussed, treatment, impact, disparate and already disparate the of- 20. As DCHRA also Douglas against protection analyzed intentional discrim- fers un under the McDonnell Clause, the in which ination under Effects determining the ultimate framework. employer the on case defend based in a question of intentional narrowly-drawn exceptions the case, con- disparate a fact finder's treatment DCHRA, George- Gay Rights Coalition see of position in fact re- that the did not clusion Ctr., 536 A.2d at 29. Under town Univ.Law English proficiency beyond that of Mr. quire impact good theory, employer's disparate the jury necessarily preclude a does not Esteños’s proce- employment redeem faith "does not contrary appellee’s view determination that testing operate dures mechanisms or v. good faith. See Fischbach was one held minority groups for and 'built-in headwinds’ 186, Corr., Dep't U.S.App. D.C. D.C. of measuring job capability.” are unrelated 1180, (D.C.Cir.1996) 189, 86 F.3d 228, 234, Jackson, City 544 U.S. Smith v. of (“Once a non- employer has articulated the (2005) 1536, (quot- 161 L.Ed.2d 410 125 S.Ct. action, explanation ... discriminatory for its 849). 432, 91 ing Griggs, 401 U.S. at S.Ct. desirability or is not 'the correctness the issue challenging language require- Although cases the ... whether [but] reasons offered [the] of analyzed a dis- been under ments have often honestly in the reasons employer believes impact theory, claim parate Mr. Esteños’s ” (alterations original)). offers.’ as a case of presented to the trial court case, prima probative value “many of faet that had hired man facie proof that the employer’s explana- agers age relevant, over of although 50— ” false, tion is other evidence certainly dispositive (citing Furnco supports employer’s case and that Waters, 567, 580, Corp. Constr. v. 438 U.S. properly may be considered on a motion (1978) (em 98 S.Ct. 57 L.Ed.2d 957 judgment as a of matter law. added)); phasis id. at 120 S.Ct. 2097 148-49, Id. 120 S.Ct. 2097. Based on (noting question that “the ultimate of lia presented evidence that had been at bility ordinarily should not be taken from trial, Court held that the lower court jury plaintiff once the has introduced” “impermissibly had judg- substituted its prima case and of pretex- facie concerning weight ment of the evi- J., tuality) (Ginsburg, concurring); see also jury’s.” dence for the Id. at 120 S.Ct. Univ., v. Dantley Howard 801 A.2d 962 2097.21 (D.C.2002) summary (reversing judgment Here, grant we are sum reviewing of remanding to trial court for further trial, mary and, judgment before unlike in relating consideration to material fact in Reeves, parties oppor have not an had dispute)); Cormier D.C. Water and tunity fully present their evidence and (D.C.2008) Auth., Sewer A.2d submit its credibility to the trier of fact. (same respect to damages). amount of (as does) Assuming colleague our that the The grant summary ap- employees existence other appellant’s pellee is reversed and the case remanded same origin appellee’s work proceedings further consistent with could, law, force as matter defeat a opinion. this prima origin case of national discrim facie ination where evidence of pretextuality has So ordered. presented, been but see 29 C.F.R. 1606.1 origin (defining national discrimination as SCHWELB, Judge, Senior concurring the denial of equal opportunity “because of part: part1 dissenting in ... place origin; individual’s be principal issue this cause an individual has linguistic court, maj. framed op. at characteristics a national group” whether, DCHRA, a under the claim of added)), on (emphasis authority employment discrimination based on na- unwilling Reeves we are on this limited origin may properly tional early pro and at be founded point record solely upon employer’s imposition of a ceedings to rest an re- affirmance Reeves, ground. quirement employees proficient this alternate that its See (noting at in English.2 120 S.Ct. 2097 that the I do not doubt that there are performing 21. The Court considered that as a ños had been his in a work satis- appropriate matter of law would be if evi- factory Supchak’s manner before Mr. arrival. “conclusively dence of record revealed some other, non-discriminatory reason the em- agree, substantially I1. for the reasons stated decision,” ployer’s pre- if or opinion, in Part II of court’s that Esteños' textuality "weak and was there was action is not time-barred. independent abundant and uncontroverted no evidence that discrimination had oc- My separate opinion only addresses this is- 2. Reeves, curred.” 530 U.S. 120 S.Ct. majority sue. The does not base its decision Neither situation obtains here. In 2097.. maj. “disparate impact” analysis, op. on a see pretextuality this the evidence of text, controverted, "weak," accompanying 7 and at 889 n. and I it but was employer's test records showed that Mr. Este- would vote to affirm under that as well.

897 Ac- origin complainant. of the national question should be in which situations its affirmative; language the statute inability cording in the answered is difficult to proxy meaning, for national it English may be a and literal speak plain where, discharge it e.g., is used could origin comprehend how Esteños’ a work keep Latinos and to to exclude Act. have violated the Anglo. all-Anglo predominantly or force from record that when appears It 1606.6(b). my § In opinion, See 29 C.F.R. job, union was his the credit Esteños lost however, trier of fact could impartial no office, employ- nine very small find, record, light reasonably on this August, discharged ees. Esteños was and non- overwhelmingly Latino hired be- eight employees were union’s Anglo composition of the credit 14 2 and November August tween Latino force and of its numerous work eight of these The countries birth year. customers, plaintiff Juan R. Esteños employees were as follows: (or discharged because of his Peruvian was 2 Peru Latino) I origin. Accordingly, 1 Venezuela summary judg- affirm the award of would employer’s favor. ment Bolivia Ecuador

I. El Salvador unlawful, it inter The DCHRA makes Philippines alia, discharge “wholly par- person or discriminatory for a reason based tially” Iran race, color, religion, nation-

upon [or] “the Thus, were eight employees six of the .... individual.” al America, Euro- none was from Latin (2001). (Emphasis 2-1402.11 noted, a Anglo. previously or As pean added.) origin” “the “National means “opera- hired as Peruvian-American was state, country a person or nation which manager” days before Esteños ten tions born.” or his or her ancestors were Further, to be discharged. appears was The stated reason for DCMR many union’s of the credit undisputed that discharge not his Esteños’ was Peruvian speak Spanish. are Latino and customers rather origin, Latin-American national but scenario, Clap- “man on the Given this fluency. undisput- English his It is lack of days personification, ham bus”—the who that a or other Latino ed Peruvian person by, of the reasonable gone —would origin, who is shares Esteños’ national but startling suggestion indeed the find sufficiently English, acceptable fluent in from because he comes was fired Esteños fact, days ten to the credit union. things, Peru. Facts are stubborn fired, the credit union before Esteños force, as of the work composition ethnic who, like Operations Manager hired circumstances, are surrounding as the well Esteños, Conversely, born in Peru. in most conven- from the facts far removed to doubt no reason provides the record na- based on of discrimination tional cases purely Euro- individual of that a Caucasian origin. tional Swedish, origin French, national pean — posi- illogic plaintiff’s Perhaps the German, ineligible for Czech—would following his by illustrated tion can best be (just as employment with the defendant Suppose logical is) theory its conclusion. fluent in if he or she were not Esteños employees union’s all of the credit speak English ade- Inability English. origin and decisive, of Peruvian national of the were regardless thus quately is 898 spoke

all them English. Sup- experience excellent Our wide with cases involv- pose, further, ing the person education, who fired racial discrimination in Esteños was also from employment, segments Peru. At least at and other of soci- summary ety judgment stage, rely heavily have led us to under the in Title plaintiffs theory, cases apparently empirical VTI on the data agreed by court, predominance employer’s pattern show overall of Latino em- conduct in ployees determining whether he Anglos virtual absence of has Therefore, against discriminated particular makes individ- no difference. Esteños uals claim, or class as a whole. successfully could even the all- Peruvian situation that I have hypothe- Burns, 305). (quoting So, Id. 483 F.2d at sized, perceived that based on the close too, City York, in Arrocha v. Univ. Newof language proficiency connection between (E.D.N.Y.2004), 2004 grant WL 594981 origin, and national reason his dis- ing partial summary judgment in favor of charge origin. was his national He could the defendant against 'a Panamanian in summary avoid judgment, under the ma- structor’s claim of discrimination based on jority’s analysis, though even all of the national origin, the court held that employees, other well person as the the record reasonably fails to support a responsible challenged decision, for the finding prohibited national origin dis- were Surely, Peruvian-American. the law Although crimination. there is evi- no does not countenance such a counter-intui- regarding dence number Panama- (in view) and my tive absurd result. MEC, employed by nians five of the

eight adjunct instructors reappointed are natives of South or Central Ameri- II. countries, Peru, can including Argentina, Although majority appears Mexico, accord Republic. and the Dominican little, any, if weight to the tale told Diversity employer’s in an staff under- above, statistics described law case cuts discriminatory an inference of in- “ pays greater them heed. ‘In prob tent. discrimination,3 lem of racial statistics of (Citations omitted.)5 court’s The reason- ” much, ten tell and Courts listen.’ Harris ing applies Arrocha to the fortiori v. District Columbia Comm’n Hu on even compelling more statistics in this (D.C.1989) Rights, 625, man 562 A.2d 632 case. (quoting State Alabama United III. States, (5th 583, Cir.), aff'd, 304 F.2d 586 371 U.S. 83 S.Ct. 9 L.Ed.2d In reversing summary the award of (1962));4 Burns v. Thiokol Chemical judgment, majority heavily relies on (5th Cir.1973). F.2d Corp., 483 Supreme Court’s decision Reeves v. Further, Harris, applied Products, Inc., we statisti Sanderson Plumbing cally-oriented analysis utilized fed S.Ct. L.Ed.2d 105 (2000), appellate eral courts: involving age case claim of And, by analogy, 3. University's based 5. The court denied the motion for origin. respect summary judgment plain to the tiff’s claims of discrimination based on color Alabama, 4. In State the court added that and on retaliation. "[h]ere, spectacular.” [the aré statistics] may fairly F.2d same be said here. recog- the Court opinion, the course of its My col- employment.

discrimination employer’s [stat- the “[pjroving nized that separate prop- for two leagues cite Reeves employee] (1) discharging an reason discriminatory ed] [for intent that ositions: (and often consider- part of inferred if the trier false becomes may properly be often assists) enterprise ably greater the employer’s explanation of fact finds the intention- incredible; that the real reason was proving challenged action to be the at (2) 530 U.S. employer’s al discrimination.” presence the the “[Ojnce justifi- employer’s managers age same S.Ct. 2097. work force of eliminated, discrimination has been not cation range plaintiff does warrant likely most alternative be the employer’s well of a verdict direction the employer especially since explanation, Reeves The differences between favor. forth the case, however, position put strik- is in the best present (cita- Id. reason for its decision.” ing. Supreme analysis in actual The Court’s omitted). in the context tion Reeves must be considered compelling evidence of discriminato- purposes for the Significantly ry in that present animus was case, however, the made it Court present completely but absent from the which is always showing will not clear that such present record. contrary, it On the will be sufficient. only a Reeves, plaintiff “if the created fifty- inadequate plaintiff, In who was em old, as to whether the years issue of fact seven and who had worked for weak and there was forty reason was untrue years, ployer’s was dis- independent uncontroverted charged position. brought from his He abundant and oc no had discrimination against employer, alleging, suit inter (em alia, Id. at 120 S.Ct. supervisor, the hus- curred.” that his who was added). Further, if “the circum owner, company’s phasis band of told him gave the come that the defendant that he was “so old must have stances show [he] something oth Mayflower” explanation to conceal over on the and that he was false discrimination, inference of job.” at than “too damn old to do 530 U.S. er [his] will be weak or nonexis disputed 120 S.Ct. 2097. There was (internal quotation had tent.” Id. citation testimony regarding whether Reeves omitted). The also stated job satisfactorily marks Court performed his and wheth- many company employed that the fact the discharge er his was warranted. age fifty, rele managers over the while jury The in Reeves’ returned verdict conclusively vant, “was not sufficient favor, Ap- the United States Court of but employer’s] actions [the demonstrate that reversed, Fifth hold- peals for the Circuit discriminatorily motivated.” Id. were although properly ing jury could origi (emphasis 120 S.Ct. employer’s explanation have found that the nal) Corp. v. Wa (citing Furnco Constr. discharge pretextual, for its of Reeves 567, 580, ters, 98 S.Ct. 438 U.S. insufficient, proof even con- such (1978)). L.Ed.2d age-based junction with the evidence in Reeves’ animus, support a verdict IV. Plumbing Reeves v. favor. Sanderson Cir.1999). (5th de- Supreme Court’s Products, Inc., my opinion, 197 F.3d 688 support reversal Court, however, cision in Reeves does reversed Supreme First, readily be the case cannot here. Appeals the decision of the Court context, and, particu- from its In wrenched judgment. verdict and reinstated the lar, from the remarks of Reeves’ that firing Esteños, boss real motive for however Reeves must have on May- eome over be, might unwarranted that motive was flower and was “too damn old.” such words, With that Esteños is from In Peru. other record, in evidence it is difficult to even if English Esteños’ was better than understand how the United Supchak be, States Court claimed it to and even if it Appeals, obliged which was to view the permit was sufficient to Esteños do his in light record most job, favorable to the one cannot reasonably infer from this plaintiff, could hold that the plaintiffs case alleged fact Supchak that fired Esteños was insufficient as matter of law. Un- because Esteños is of Peruvian national surprisingly, Supreme origin. Court’s decision Aside from the overwhelmingly reinstating the verdict was composition force, unanimous. Latino of the work Peruvian-American hired a manag was Reeves, This case differs from aside just days er ten before Esteños’ was dis proof from the absence of of discriminato charged. In my opinion, if Supchak even animus, ry because there limited disbelieved, is the notion that Esteños’ present- evidence record that Peruvian or Latino national origin played a employer’s grounds stated for dismissal role in the credit union’s action is entirely Reeves, were false. at Cf. without foundation. 120 S.Ct. 2097. Esteños claims that his English was, fact, good enough, espe I recognize presence that the of other cially given the job, Latinos, nature of his and that including that of a Peruvian- a genuine issue of material fact present is manager, American automatically does not ined regard. that Supchak, Leonard require a finding that Esteños was not a CEO, credit union’s who speak does not victim of discrimination based on national Spanish, apparently Reeves, origin. told Esteños that he In the Court reiterated (Supchak) did not understand Esteños’ point, 530 U.S. at 120 S.Ct. English limited and could not communicate and I dispute would not it even if I were with him effectively. Even if we free do But were so. the statistical evidence assume, arguendo, Supchak’s that stated in this case differs from that in Reeves reason for Esteños’ pre- termination was that all almost of the em- credit union’s textual, Supchak and that concealing ployees were the same motive, basis, his true there simply is no that which supposedly constituted the rea- record, on this inferring Supchak’s son for discharge.6 eight Esteños’ Of the States, 6. In Khiem v. United 612 A.2d keep opinions sion. To within reasonable (D.C.1992), explained: precludes writing we bounds every into them might sug- limitation or variation which Kraft, (D.C.1959), 155 A.2d 910 Kraft gested by the circumstances cases not pointed the court out that: expressions the Court. General before significance It well remember transposed to other facts are often mislead- given general to broad and statements of ing. only by comparing law the facts from Khiem.) (Emphasis added in they arise with those facts which nothing There is suggest Reevesto all they supposedly apply. employer's managers almost all of the were 155 A.2d at See also Armour & Co. v. roughly plaintiff’s age, or that there Wantock, 126, 132-33, 323 U.S. 65 S.Ct. younger managers. were few or no Without (1944), Supreme 89 L.Ed. 118 where the persuasive age-based animus Court Reeves, stated: plaintiff directed the Court timely again It is to remind might counsel that well have viewed the inclusion of man- opinions words our agers to be read in the employer's their fifties in the work light of the facts of the persuasive order under discus- plaintiff force as evidence that the time that at or near the employees hired MITRANO, Paul In re Peter Latino, (75%) fired, six were

Esteños was Respondent. (25%) Asian, single one and not a two were concealing Anglo.7 Supchak If was the District of the Bar of A Member he malign when unknown motivation some (Bar Appeals Court Columbia proficiency discharged Esteños for lack 410441). Registration No. remarkable statistics English, 07-BG-656. Supehak’s moti- No. this case demonstrate on Esteños’ surely not based vation Appeals. Court District of Columbia origin. national 12, 2008.

Argued June July 2008. Decided y. summary Ultimately, the question whether, viewing the record in

judgment is Esteños, favorable to an light most rationally find

impartial trier of fact could he is of fired because Esteños was (or Latino) origin.

Peruvian Co., 587 Goodyear & Rubber

Beard v. Tire (D.C.1991) (“the test

A.2d summary judgment

deciding a motion for a motion essentially the same as that for verdict”) alia, (citing, inter

for a directed Inc., Liberty Lobby, 477 U.S.

Anderson v.

242, 252-53, 106 91 L.Ed.2d S.Ct.

(1986)). am a to understand how I loss juror reasonably so find. impartial could from respectfully I dissent

Accordingly, in the credit reversal

union’s favor. against class Ordinarily, one age. discharged because of his was not class a different to favor group is intended or Moreover, the animus evi- in the absence of group has the favored group. In this dence, might jury have reached different plaintiff or identified not been

verdict. surely no majority, but there Anglos. preference for of a this case

Case Details

Case Name: Estenos v. PAHO/WHO Federal Credit Union

Court Name: District of Columbia Court of Appeals

Date Published: Jul 3, 2008

Citation: 952 A.2d 878

Docket Number: 04-CV-1093, 04-CV-1679

Court Abbreviation: D.C.