Monday, May 23, 2011

D.C. Superior Court Decision: Freedman v. D.C. Department of Human Rights

The D.C. Superior Court opinion in Freedman v. D.C. Department of Human Rights relies for authority on a 1994 Maryland case, Evans v. Bally’s Health and Tennis, 64 FEP Case. 33, 38 (D.Md. 1994).

The Court states:  "As to petitioner’s argument that DHR failed to consider evidence regarding possible fabrication, harassment and/or retaliation, the Court has reviewed the record herein and finds that DHR considered the arguments now raised by petitioner and properly rejected them. It is not the role of this Court to weight the evidence and substitute its judgment for that of the agency. Moreover, neither DHR nor this Court need 'determine whether or not defendant adequately investigated the charges of . . . discrimination before discharging plaintiff.' Evans v. Bally’s Health and Tennis, 64 FEP Case. 33, 38 (D.Md. 1994). See also Bradshaw v. Brookdale Hosp. Medical Ctr., 1993 Westlaw 289435 (E.D.N.Y. 1993) (even if defendant’s investigation resulted in an inaccurate determination, plaintiff offers no evidence that defendant acted with discriminatory intent). Consistent with the holdings of these cases, the Court concludes that any allegations regarding the adequacy of the firm’s investigation cannot negate the credibility of the respondent’s asserted reasons for the termination."

I have not read either of the opinions cited by the Court in the above quote.  However, a citation in the ABA publication Current Developments in Suits by Accused Harassers: The Plaintiff’s Perspective by Loretta T. Attardo, Esq. seems to indicate that one of the cases (Evans v. Bally's) isn't even on point.  Evans v. Bally's seems to concern a lawsuit for wrongful discharge by an accused harasser.  The case does not even appear to be a Title VII action.  Freedman involves a complaint filed by an alleged victim of job harassment arising under a state anti-discrimination statute modeled on Title VII.

The ABA article states: "See also, Evans v. Bally’s Health and Tennis Club, 64 FEP cases (BNA) 33, 40 (D. Md. 1994) (holding that the “mere fact that the plaintiff may have been unfairly accused of sexual harassment does not constitute a basis for a claim of wrongful discharge.”)."

Why would the D.C. Superior Court have relied on a case of dubious authority to support a fundamental point of law that would be better supported by a case involving an alleged victim of job harassment suing under Title VII?  It's a tad askew.


Gary Freedman said...

I wonder what Professor Reinstein would say about this?

Gary Freedman said...

Negligent investigation lawsuits by accused harassers have nothing to do with claims by a harassment victim that the employer carried out a negligent investigation of his harassment complaint. It's really wild that a court would make a mistake like this!!

Accused harassers who have been disciplined may sue for negligent investigation and possibly other claims, such as defamation, "reverse discrimination," and retaliation. This is why, for practical reasons, even if there is no legal obligation to interview the harasser, it should always be done. As a general proposition, claims of negligent investigation will fail, primarily because of the strong public policy in favor of investigating sexual harassment complaints. The duty runs primarily to the victim of harassment, not the alleged perpetrator. In the case of at will employees and independent contractors, courts have held that the employer owes them no duty to investigate in a particular manner.