D.C. v. Bryant

307 A.3d 443

DISTRICT OF COLUMBIA, Appellant,

v.Janet BRYANT,^* Personal Representative for the Estate of Tyrone Bryant, Appellee.

No. 16-CV-1135

District of Columbia Court of Appeals.

Argued February 12, 2019

Decided January 4, 2024

Appeal from the Superior Court of the District of Columbia (2009-CA-006832-B), (Hon. Maurice A. Ross, Trial Judge)

Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia at the time, and Loren L. AliKhan, Acting Solicitor General at the time, were, on the brief, for appellant.

Steven C. Kahn, Rockville, MD, for appellee.

Stephen B. Pershing, Reston, VA, with whom Alan R. Kabat, Washington, was on the brief, for Metropolitan Washington Employment Lawyers Association, amicus curiae, in support of appellee.

Before Beckwith and Easterly, Associate Judges, and Glickman,^** Senior Judge.

Dissenting opinion by Senior Judge GLICKMAN at pages 461–62.

Beckwith, Associate Judge:

[1–3] Beckwith, Associate Judge: The District of Columbia asks us to revisit and rethink our prior decisions characterizing the standard for demonstrating causation for retaliation claims under the District of Columbia Human Rights Act (DCHRA) as a less than but-for standard rather than a but-for standard. In the context of employment discrimination plaims, but-for causation requires the employee to show "that the causal link between injury and wrong is so close that the injury would not have occurred but for the act." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). Motivating-reason causation—the standard on which the jury was instructed here—is a "lessened causation standard" under which "[i]t suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision." Id. The jury here found that appellee Tyrone Bryant, who had brought retaliation claims against his former employer, the Department of Youth Rehabilitation Services (DYRS), under the DCHRA and Title VII of the Civil Rights Act of 1964, had proven that his support of a former colleague’s sexual harassment lawsuit against their employer was a motivating reason in DYRS’s decision to fire Mr. Bryant. The jury also concluded that Mr. Bryant had not met the higher burden of proof to show that his participation was a but-for cause of his termination—the causation necessary to prevail on his separate Title VII retaliation claim.

The District argues that we should reexamine the causation standard for DCHRA retaliation claims because, in its view, the plain language of the retaliation provision and the act’s structure and history support a but-for causation standard. And while the District acknowledges that a less than but-for standard has long been the accepted standard for retaliation claims in D.C.—a fact bolstered by a consistent line of cases and a longstanding jury instruction to that effect—it contends that the Supreme Court’s holding in Nassar that a but-for standard applies to Title VII retaliation claims, while not controlling, warrants our following suit.

We decline the District’s invitation and affirm the jury’s verdict in Mr. Bryant’s favor on the DCHRA claim. The District argues that our cases have assumed, without deciding, that a less than but-for causation standard applies to DCHRA retaliation claims. To the contrary, the decisions have consistently discussed, applied, and espoused—rather than simply assumed—a less than but-for causation standard for retaliation claims under the DCHRA. While the matter is not uncomplicated or one-sided, and an en banc court may set that line of precedent on a new Course, this panel is bound by that case law. See M.A.P. v. Ryan, 285 A.2d. 810, 312 (D.C. 1971) (stating that only the en banc court can "overrule a prior decision of this court" (footnote omitted)). And the Supreme Court’s decision in Nassar does not, in our view, constitute the kind of intervening case law that would merit a three-judge division overruling a consistent line of precedent on this issue.

I.

The Record on appeal and evidence presented in the second trial1¹ show the following relevant facts. Mr. Bryant worked for approximately 18 years at DYRS, the District of Columbia agency that "administers detention, commitment, and aftercare services for youth living in its facilities or residing in the community." For several years until his termination in 2008, Mr. Bryant served as a shift commander at the facility formerly known as Oak Hill, where he was responsible for the care and custody of the youth who resided in the facility’s units and for supervising the Youth Correctional Officers.

After DYRS terminated Mr. Bryant, Mr. Bryant sued the District for violations of the DCHRA and Title VII of the Civil. Rights Act of 1964—statutes that prohibit retaliating against employees who aid or participate in another employee’s discrimination claim. D.C. Code § 24402.61(a); 42 U.S.C. § 2000e-3(a). Specifically, Mr. Bryant alleged that he was fired in retaliation for his participation in, and planned testimony in support of, a sexual harassment suit filed by his former coworker, Zina Hunter, against the District. DYRS provided evidence that it terminated him for other, nonretaliatory reasons.

At trial, the court instructed the jury that the questions whether Mr. Bryant had engaged in a protected activity and whether he had suffered an adverse action were not disputed and that the jury need only decide whether there was a causal connection between the protected activity and the adverse action.² Over the District’s objection, the court gave the jury the two-part causation instruction proposed by Mr. Bryant: The jury could find that Mr. Bryant met the causation element of his DCHRA claim if he proved that his engagement in a protected activity was a motivating reason for the District’s adverse employment action, while a Title VII violation required proof that the protected activity was a but-for cause of the adverse action. The jury found on a special verdict form that Mr. Bryant had proven by a preponderance of the evidence that his engagement in a protected activity was a motivating reason for DYRS’s decision to terminate him but that he had not met the higher but-for causation standard. The trial court accordingly entered a judgment against the District on Mr. Bryant’s DCHRA claim (but not his Title VII claim) in the amount of $663,360 and denied the District’s motion for judgment notwithstanding the verdict.

II.

[4–6] The District makes two main arguments on appeal: (1) that the trial court erred in rejecting its request to apply a but-for standard of causation to Mr. Bryant’s DCHRA claim³ and (2) that even under the lesser causation standard, the evidence was insufficient because it failed to show that the decisionmaker had actual knowledge of his protected activity at the time of his termination.

[7–10] We review de novo issues of statutory interpretation and issues regarding the propriety of a jury instruction. Lewis v. Washington Hosp. Ctr., 77 A.3d 378, 379-80 (D.C. 2013); Wilson-Bey v. United States, 903 A.2d 818, 827 (D.C. 2006) (en banc). We also apply a de novo standard of review—using the same standard as the trial court—to the trial court’s ruling on the District’s motion for judgment as a matter of law after the jury verdict. Railan v. Katyal, 766 A.2d 998, 1006 (D.C. 2001). Judgment as a matter of law may be granted only if the evidence viewed in the light most favorable to Mr. Bryant provides "no legally sufficient, evidentiary basis for a reasonable jury to find" for him. Id. (citing Super. Ct. Civ. R. 50). "This is an exacting standard," id., that is met "only in the unusual case[ ] in which only one conclusion could reasonably be drawn from the evidence." Etheredge v. District of Columbia, 635 A.2d 908, 915 (D.C. 1993).

A. Binding Precedent Dictates That a Less Than But-For Causation Standard Applies to DCHRA Retaliation Claims

For decades—including a full decade since the Supreme Court decided Nassar—we have consistently applied a less stringent standard than but-for causation to retaliation claims under the DCHRA.⁴ In the District’s view, this court is not bound by its previous statements on this causation standard because, among other things, this issue has never been squarely presented to the court. See Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994) ("A point of law merely assumed in an opinion, not discussed, is not authoritative." (quoting In re Stegall, 865 F.2d 140, 142 (7th Cir. 1989))); id. ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925))).

But the issue has not "merely lurk[ed] in the record" of our cases. In 1993, this court discussed and ruled upon the appropriate causation standard in Arthur Young & Co. v. Sutherland, 631 A.2d 354, 369 & n.32, 370 (D.C. 1993), In that case, we affirmed a judgment based on a "substantial contributing factor" jury instruction⁵ against a challenge that such a causation standard was too low and that a higher causation standard should apply. See id. The question whether "substantial contributing factor" was the proper causation standard for a DCHRA retaliation claim was "brought to the attention of the court" and "ruled upon." See Murphy, 650 A.2d at 205. The defendant had proposed a jury instruction with a higher causation standard⁶ and on appeal had argued that the instruction the court gave had "erroneously permitted the jury to find retaliation even if [the employer] had a legitimate business reason" for taking the allegedly retaliatory action. See Arthur Young, 631 A.2d at 369 & n.32 (rejecting the defendant’s argument that having a...