The full case caption appears at the
end of this opinion. FERREN, Senior Judge: The questions presented in this employment discrimination case are: (1)whether the trial court erred in granting summary judgment to appellees MCI Communications Corporation,Jonelle Birney, and Terri Sallay on appellant’s claims for discrimination based on race and personalappearance, in violation of the District of Columbia Human Rights Act (DCHRA), D.C. Code � � 1-2501to 1-2557 (1999 Repl.), and for wrongful discharge, interference with prospective advantage, andintentional infliction of emotional distress; and (2) whether the trial court erred in dismissing a second action,against MCI and another defendant, Bonnie Handy, filed by appellant while the summary judgment motionwas pending in the first case. We affirm both trial court orders. I. The following facts, unless otherwise indicated, are undisputed. In 1986, MCI hired appellantWandra McManus, an African-American woman, as a secretary. In May 1995, she became administrativeassistant to appellee Jonelle Birney, a white woman, for several months after Birney had been named VicePresident of the Public Relations (PR) Department. When Birney hired a permanent secretary, appellantwas reassigned to the PR Department’s Public Policy unit, managed at the time by Robert Stewart, a whitemale. In June 1996, Birney approved appellant’s request for a transfer to the newly created BusinessOperations Group as a budget coordinator, assigned to provide support to the PR Department. The PRDepartment continued to fund her position. In November 1996, appellee Bonnie Handy, Senior Managerof the Business Operations Group and a white woman, hired appellee Terri Sallay, an African-Americanwoman, as Manager of Financial Operations. Sallay was assigned to provide financial and personnelsupport to the PR Department, and appellant was assigned to report to Sallay until appellant’s employmentwas terminated in 1997. Another African-American woman hired at that time, Roslyn Blake, was assigned(among other duties) to provide support to other, smaller departments, similar to the support Sallay wasgiving the PR Department. Both Sallay and Blake had accounting degrees. During the period that appellant had been a budget coordinator, her former supervisor, Birney, hadused her as a backup secretary in the PR Department during the frequent absences of Birney’s secretary,Ruth Modlin. Appellant complained about this to Sallay, who conveyed the complaint to Birney.According to appellant, her situation improved somewhat after that, although she continued to be pulledaway from her work “every once in a while.” As evidence of discriminatory animus, appellant also cites an occasion on which an employee ofBirney asked appellant, through another employee, to “fetch” some cookies for a meeting. Additionally,in October 1995 – twenty months before the decision to terminate appellant’s employment – whileappellant was working in the PR Department’s Public Policy unit, her manager, Stewart, replaced hisAfrican-American secretary with a white woman and moved his new secretary from a desk “behind thefiling cabinets” to appellant’s desk outside Stewart’s office, after moving appellant to a desk behind thecabinets. Appellant often came to work in African-styled attire and wore her hair with dreadlocks, braids,twists, and cornrows. She based her claim of personal appearance discrimination on comments – atunspecified times – by Stewart, Birney, and Frank Walter, a manager with no authority over her. Morespecifically, Stewart remarked about appellant’s appearance: “That is a pretty outfit. Oh, my, yourearrings are interesting. Oh, you have a new hair style, I like your hair.” Birney told appellant at least oncethat she liked appellant’s clothing and hair: “I like the way you wear your hair up, because it makes yourfacial features look better.” “Oh, what kind of hair style is this, how did they do this?” “You look like anAfrican princess.” Walter told appellant that her African styled dress would make nice pillows for a roomin his house with African artifacts and pictures; and on another occasion he noted that she was starting a”trend” around the office of African-American women wearing their hair in African styles. In June 1997, Handy and Sallay decided to eliminate appellant’s position and replace it with ahigher level job because, they said, Sallay had become overburdened; she was unable to delegate someof the more complex finance tasks to appellant. Handy and Sallay discussed the proposed termination withMaryann Adams and Eileen O’Brien of the Human Resources Department, and also met with JonelleBirney to let her know of their intended action. On August 15, 1997, Handy and Sallay met with appellantto notify her that her employment was to be terminated. Appellant testified at her deposition that Sallayhad told her that her job was being eliminated because the department was being realigned. They told her,she further testified, that she was eligible for rehire, that she could use the company’s electronic bulletinboard to search for other opportunities, and that she could contact Adams and O’Brien if she had questionsor needed assistance in looking for another position. Later that evening, Sallay called appellant at home.Appellant says, and Sallay disputes, that in the course of that telephone conversation Sallay told her thatBirney had been responsible for her termination. At about the time of appellant’s job termination, Birney’s secretary, Modlin, a white woman, alsowas let go, and another white woman, Lugene Nigh, was dismissed from the Public Policy Group andoffered a lower level position in the same group.
[FOOTNOTE 1] In August 1997, within a week after appellant’s dismissal, MCI advertised a vacancy for a “BudgetCoordinator / Staff Admin IV”; appellant’s most recent position had been “Budget Coordinator / StaffAdmin III.” MCI’s announcement stated a preference for an accounting or finance degree and includedsome duties that appellant had not been performing.
[FOOTNOTE 2] Appellant proffers that she applied for this position,and MCI replies that it has no record of any such application but that appellant would not have beenconsidered for the position because she lacked the necessary qualifications. After appellant filed suitagainst MCI, the job was re-posted with the added requirement of a bachelor’s degree in finance oraccounting; appellant did not have a college degree. MCI had not budgeted funding for this position,
[FOOTNOTE 3]although Sallay said MCI would have found the money if the position had been filled. In September 1997, the newly created position was offered to Trina Sebron, an African-Americanwoman with a bachelor’s degree in finance, who turned it down. In October 1997, MCI hired CrystalWashington, also African-American with a college degree in finance, as a temporary employee to performthe duties associated with the position; when she left after four months MCI hired an Hispanic woman, Regla Perez Pino, as a temporary employee. Perez had been classified as a “Vendor Specialist,” a positionwhich does not require a college degree. In January 1998, the Budget Coordinator posting was furtherrevised, and in March 1998 the position was offered to Angela Fifer, an African-American woman witha degree in accounting, who turned it down. II. In granting summary judgment, the trial court ruled: “plaintiff has failed to establish a prima faciecase of race discrimination – her position was offered to two other African-American women before it waseliminated. Nor is there a prima facie case made out of personal appearance discrimination. Stewart &Walter played no part in her dismissal[,] and Birney’s comments were complimentary and do not show anydiscriminatory animus. Beyond that MCI has shown that the reasons for plaintiff’s dismissal were notpretextual. The remaining counts of subterfuge, wrongful discharge, interference with prospectiveadvantage, and intentional infliction of emotional distress are frivolous for the reasons noted” in defendants’motion. III. We agree with the trial court that appellant failed to make out a prima facie case of race orpersonal appearance discrimination.
[FOOTNOTE 4] In order to survive appellees’ summary judgment motion, appellantwas required to show, with respect to each contention, that “(1) she belongs to a protected class; (2) thatshe was qualified for the job from which she was terminated; (3) that her termination occurred despite heremployment qualifications; (4) and that her termination was based on the characteristic that placed her inthe protected class.” Blackman v. Visiting Nurses Ass’n, 694 A.2d 865, 868-69 (D.C. 1997) (citingMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Under the fourth criterion,moreover, she was required to show that race or personal appearance was a substantial factor in thetermination decision by demonstrating that: “(1) she was replaced by a person outside of her protectedclass, or if the position has remained vacant, that the employer has continued to solicit applications for theposition; or (2) that other similarly situated employees . . . were not terminated but were instead treatedmore favorably.” Id. at 871 (citing O’Donnell v. Associated Gen. Contractors, Inc., 645 A.2d1084, 1087 (D.C. 1994)). The requirement of a showing that similarly situated employees were treatedmore favorably is imposed when a plaintiff has not alleged that someone replaced her when she wasterminated. O’Donnell, supra, 645 A.2d at 1088. A. As to her claim of racial discrimination, appellant contends that she belongs to a protected class,that she was qualified for the job she held, that she was fired nonetheless, that her position itself never hadbeen eliminated, and that a person of a different race had filled it.
[FOOTNOTE 5] If this were true, all elements of a primafacie case, including the “substantial factor” requirement of the fourth criterion, would have been satisfied. Appellant’s argument, however, is premised on MCI’s hiring of Regla Perez, the second temporaryemployee engaged to perform appellant’s duties after her termination.
[FOOTNOTE 6] But the first person hired to perform appellant’s duties was Crystal Washington, an African-American woman. Although Ms. Washington leftMCI after several months, there is no proffered evidence that she had not been qualified for the job, thather leaving MCI had not been voluntary, or that her hiring had been a subterfuge to create, temporarily,an appearance of a nondiscriminatory African-American successor before replacing appellant with anemployee outside her protected class. The record thus provides no basis for passing over Ms. Washingtonand identifying Ms. Perez as appellant’s successor. Because appellant accordingly did not show that MCIreplaced her with someone outside her protected class, she failed to establish a prima facie case of racediscrimination. B. Appellant also did not present a prima facie case of discrimination based on personalappearance. None of the statements made about her personal appearance was attributable to either of thetwo supervisors, Handy or Sallay, who made the decision to let appellant go and notified her of thatdecision. Among those alleged to have made statements about appellant’s personal appearance – Stewart,Walter, and Birney – only Birney is alleged to have been involved in the termination decision. But Birney’scomments about appellant’s appearance were facially complimentary (as were Stewart’s and Walter’s, forthat matter) and thus do not give rise to a reasonable inference of discrimination unless proffered withevidence tending to show that, in reality, the apparent compliments actually were snidely made, implyingdiscriminatory animus. We turn to the case law to put appellant’s proffered evidence of discrimination in the appropriatelegal context. Decisions interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. � � 2000e et seq.(1994), and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. � � 621 et seq. (1994), haverequired that, for evidence of discrimination, there must be a nexus between the alleged discriminatorystatement and the challenged termination decision.
[FOOTNOTE 7] “Evidence of a supervisor’s occasional or sporadic useof a slur directed at an employee’s race, ethnicity, or national origin is generally not enough to sustain aclaim under Title VII.” Hong v. Children’s Mem. Hosp., 993 F.2d 1257, 1266 (7 Cir. 1993)(internal citations omitted). Indeed, “such remarks, when unrelated to the decisional process, areinsufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements wereuttered by a decision maker.” Id. Under the ADEA, as well, federal courts generally have held thatisolated comments, unrelated to the challenged action, are insufficient to show discriminatory animus intermination decisions and do not survive motions for summary judgment or judgment notwithstanding theverdict. See, e.g., Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9 Cir. 1993) (no prima facie casewhere plaintiff’s supervisor previously had made statement to plaintiff that “[w]e don’t necessarily like greyhair,” since comment was uttered in ambivalent manner and was not tied directly to plaintiff’s jobtermination); Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10 Cir. 1994) (“[i]solatedcomments, unrelated to the challenged action, are insufficient to show discriminatory animus in terminationdecisions” where CEO previously had made statement that hospital “needs some new young blood” and that “long-term employees have a diminishing return”); Waggoner v. City of Garland, 987 F.2d 1160,1166 (5 Cir. 1993) (where plaintiff’s supervisor had commented that plaintiff was an “old fart,” the courtstated: “As we have held on several occasions, a mere ‘stray remark’ is insufficient to establish agediscrimination.”); Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1026 (6 Cir.), cert. denied, 510 U.S.861 (1993) (statement made by plaintiff’s supervisor about plaintiff’s birthday one year before her jobtermination was too ambiguous to establish necessary inference of age discrimination, and was made toolong before layoff to have influenced termination decision).
[FOOTNOTE 8]In contrast, these same courts have held that summary judgment was not appropriate where theplaintiff established a sufficient nexus between the alleged remark and the challenged termination decision.See, e.g., Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479 (10 Cir. 1996) (sufficientnexus where supervisor’s recommendation to terminate plaintiff “was clearly before the decision maker”at time supervisor made statements); EEOC v. Pape Lift, Inc., 115 F.3d 676, 683 (9 Cir. 1997) (age-related comments made by plaintiff’s supervisor in months before plaintiff’s termination, and associated withattempts to transfer plaintiff to another position, were not merely “stray remarks”); Woodhouse v.Magnolia Hosp., 92 F.3d 248, 254 (5 Cir. 1996) (rejecting employer’s argument that statement bytrustee of hospital that “[t]hey’re gonna lay off those old people,” made two weeks before reduction inforce, was “vague” or “remote in time” and therefore “merely a stray remark”). In this case, there is no evidence linking the alleged statements about appellant’s appearance to thedecision to terminate appellant’s job. Indeed, there is no evidence indicating when the comments weremade, and there is no evidence that they were made in the context of the decision-making process. Atmost, the record confirms that the comments were “stray remarks” that do not reflect discriminatory animusin the decision to dismiss appellant from her job. Because no other facts were presented to supportappellant’s claim for personal appearance discrimination, the trial court did not err in granting summaryjudgment. Appellant suggests, nonetheless, that because she was an African-American who displayed herheritage through her clothing and hairstyle, appellees discriminated against her based on the combinationof her race and personal appearance. More specifically, we understand appellant to be arguing that,because of her choice of clothing and hairstyle, she represents a subset of African-Americans whose claimof discrimination based on race, coupled with personal appearance, cannot be defeated by hiring to replaceher an African-American whose dress more typically reflects corporate America. While there may becircumstances in which such a claim of discrimination would be legally cognizable, appellant has notproffered facts sufficient to support such a claim here; there is no demonstrable nexus on this recordbetween the comments allegedly made about her personal appearance and the decision to terminate heremployment. Let us assume, nonetheless, that a jury reasonably could infer that the ostensibly benign commentsby Birney, Walters, and Stewart about appellant’s appearance actually were snide, when viewed inconjunction with the decision to move appellant’s desk to a less visible location, and with the eventualdecision to terminate appellant’s employment. Even so, any inference of discrimination based on thissequence of events – occurring as it did over a two-year period – would be too attenuated for a reasonableinference of discharge based on personal appearance discrimination. Not enough is proffered, withessential specificity, for this court to conclude that MCI would have had to replace appellant with acandidate who shared her pro-African sense of style in order to rebut a reasonable inference ofdiscrimination. Because appellant has provided no other basis for an inference that MCI’s replacementof her with an employee who dressed differently was indicative of discriminatory animus, we must rejectthis contention. IV. The trial court properly dismissed appellant’s claim for wrongful discharge. It is undisputed thatshe was an “at will” employee. This court already has rejected the argument appellant now makes underCarl v. Children’s Hosp.
[FOOTNOTE 9] that a public policy exception to the at-will doctrine applies to an allegedstatutory violation. See Freas v. Archer Servs., Inc., 716 A.2d 998, 1002 (D.C. 1998) (“there is noneed to apply the Carl rationale because the legislative policy [in the statute allegedly violated] is explicitand may apply directly to [appellee's] alleged discharge of [appellant]“). Having previously concluded thatMCI did not violate appellant’s rights under the DCHRA, there is no room to make the argument again under Carl. V. This court has described “prospective advantage,” in defining the tort of interference withprospective advantage, as “business expectancies, not grounded on present contractual relationships butwhich are commercially reasonable to anticipate, [and] are considered to be property.” Carr v. Brown,395 A.2d 79 (D.C. 1978). It is clear that, as an at-will employee, appellant did not have a contractualemployment relationship she could use as the basis for a suit for tortuous interference with a contractualrelationship. See Bible Way Church v. Beards, 680 A.2d 419, 432-33 (D.C. 1996). Appellantargues, nonetheless, that this claim is available because she had a long-term employment relationship andan expectancy of continuing employment relations with MCI. This court never has held that an employee can maintain a suit for interference with prospectiveadvantage where her expectancy was based on an at-will relationship, and we do not do so now.However, even were we to afford appellant contractual protections based on her alleged expectancy(which we are not willing to do), appellant still could not survive summary judgment on this record. Shecould not proceed against MCI because it is axiomatic that an employer cannot interfere with its owncontract. See Sorrells v. Garfinckel’s, et al., 565 A.2d 285, 290 (D.C. 1989) (citing Press v.Howard Univ., 540 A.2d 733, 736 (D.C. 1988)). As to Sallay and Birney, “the law affords to asupervisor . . . a qualified privilege to act properly and justifiably toward a fellow employee and thatemployee’s true employers – those who have the power to hire and fire.” Id. at 291. “The defendant’semployees acting within the scope of their employment are identified with the defendant . . . so that theymay ordinarily advise the defendant to breach his [or her] own contract without themselves incurring liabilityin tort.” Id. (citing W. KEETON, PROSSER & KEETON ON THE LAW OF TORTS � 129, at 990 (5 Ed.1984)). Appellant could survive a summary judgment motion on her claims against Sallay and Birney (ifavailable) only if she produced facts that suggest that they “procure[d] a discharge of the plaintiff for animproper or illegal purpose.” See id. (citing KEETON, supra, at 990 n.25 (citations omitted)). Asdiscussed above in the context of appellant’s discrimination claims, she has not made such a prima faciecase. VI. To prevail on a claim for intentional infliction of emotional distress, appellant was required to provethat appellees engaged in extreme or outrageous conduct which intentionally or recklessly caused hersevere emotional distress. See Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 627(D.C. 1997). Appellant has alleged that appellees acted maliciously toward her and that she sufferedsevere emotional distress as a result. She contends that racist conduct is clearly extreme and outrageous,and that the comments made about her appearance offended her personal dignity and were offensive toher heritage as an African-American woman.The actions of MCI and the individual defendants do not rise to the level required to proceed witha claim for intentional infliction of emotional distress. Liability is imposed only for conduct “so outrageousin character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regardedas atrocious, and utterly intolerable in a civilized community.” Homan v. Goyal, 711 A.2d 812, 818(D.C. 1998) (internal citations omitted). This court has refused to impose liability for conduct even moreoutrageous than that alleged by appellant. See, e.g., Kerrigan, supra, 705 A.2d at 627 (employerallegedly manufactured evidence to establish a claim of sexual harassment against plaintiff and then demotedhim and leaked information to other employees); see also Waldon v. Covington, 415 A.2d 1070 (D.C.1980) (employers’ actions taken with aim to embarrass and then terminate plaintiff’s employment). Moreover, appellant’s argument that public policy concerns dictate resolution of this claim in her favor areunavailing; see, e.g., Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991) (discharge ofemployee who refused to disobey law by driving unsafe truck was not extreme and outrageous). VII. Appellant filed a second action against MCI (McManus II) while appellees’ summary judgmentmotion in appellant’s original complaint (McManus I) was pending. The second complaint almost wasidentical to the one in McManus I, with a few differences. First, the individual defendant was different: thesecond suit named Bonnie Handy in place of Birney and Sallay. Second, McManus II alleged additionalfacts regarding MCI’s failure to rehire appellant. The two cases asserted the same six legal claims, withthe second complaint alleging an additional claim, for conspiracy. After the court entered summaryjudgment in McManus I, the trial court dismissed McManus II, ruling that res judicata barred the claimsagainst MCI and that collateral estoppel precluded the claims against Handy. Under the doctrine of res judicata, i.e., claim preclusion, “a final judgment on the merits . . .precludes relitigation in a subsequent proceeding of all issues arising out of the same cause of actionbetween the same parties or their privies, whether or not the issues were raised in the first proceeding.”Carr v. Rose, 701 A.2d 1065, 1070 (D.C. 1997). Thus, res judicata “prevent[s] the same parties fromrelitigation of not only those matters actually litigated but also those which might have been litigated in thefirst proceedings.” Stutsman v. Kaiser Found. Health Plan, 546 A.2d 367, 369-70 (D.C. 1988)(citations and internal quotation marks omitted). “If there is a common nucleus of facts, then the actionsarise out of the same cause of action.” Faulkner v. GEICO, 618 A.2d 181, 183 (D.C. 1992).Although appellant contends that she did not know the facts out of which McManus II arose untillate in discovery during McManus I, it is undisputed that Handy – the new individual defendant in McManusII – was present at appellant’s job termination. In one of the earliest depositions, moreover, Sallay testifiedthat Handy had “instigated” appellant’s termination. As to the additional facts alleged relating to MCI’sfailure to rehire appellant, these were known to appellant during the pendency of McManus I, includingMCI’s hiring of Regla Perez as a vendor specialist.
[FOOTNOTE 10] The two cases accordingly arose out of the same common nucleus of facts; res judicata barred appellant from relitigating the action against MCI. SeeFaulkner, supra, 618 A.2d at 183. Because Handy was not a party to the first suit, res judicata might not bar appellant’s claims againsther. See Redevelopment Land Agency v. Dowdey, 618 A.2d 153, 163-64 (D.C. 1992). Appelleescontend, however, that collateral estoppel, i.e., issue preclusion, bars the McManus II complaint againstHandy – as the trial court held in dismissing appellant’s claims against her. Collateral estoppel “restrictsa party in certain circumstances from relitigating issues or facts actually litigated and necessarily decidedin an earlier proceeding.” Ringgold v. D.C. Dept. of Employment Servs., 531 A.2d 241, 243 n.3(D.C. 1987) (citing Montana v. United States, 440 U.S. 147, 153 (1979), and RESTATEMENT(SECOND) OF JUDGMENTS � 27). At issue in McManus I was the liability of MCI, Birney, and Sallay fortheir actions in terminating appellant’s employment. The only issue left to be litigated in McManus II,therefore, was the liability, if any, for Handy’s actions implicated in the termination of appellant’semployment. This issue was not “actually litigated and necessarily decided,” id., in McManus I. We conclude, however, that the McManus II complaint fails to allege facts sufficient to make outa prima facie case against appellee Handy. Most of the questions of fact that bear on appellant’s claimsagainst Handy in McManus II have been litigated in McManus I, and appellant is precluded from relitigating those facts that were necessary to the court’s judgment against her in that proceeding. See id. InMcManus II, appellant alleges only two facts specific to actions taken by Handy: that she had offered aposition to Lugene Nigh that Handy had not offered to appellant, and that Handy had written amemorandum that provided justification for terminating appellant’s employment. Neither of these facts,however, if proved, would advance appellant’s claims for violations of the District of Columbia HumanRights Act, since they are not probative of appellant’s assertion that she was replaced by a person outsideher protected class; and Handy is not alleged to have made any comments about appellant’s personalappearance. Nor do these facts advance appellant’s claim for wrongful discharge or for interference withprospective advantage, in the absence of a contract of employment. Appellant’s claim of intentionalinfliction of emotional distress also fails since, even with these additional facts, Handy’s alleged conduct isnot “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,and to be regarded as atrocious, and utterly intolerable in a civilized community,” see Homan, supra,711 A.2d at 818. Dismissal of appellant’s claims against Handy, therefore, was correct.Although McManus II includes claims for “failure to rehire or recall,” appellant has not identifiedany basis for appellees’ obligation to rehire or recall her, and we cannot divine any such ground that wouldnot have arisen out of her other claims. Because appellant did not advance facts sufficient to sustain herother claims, her claim for “failure to rehire” also was appropriately dismissed. Affirmed. :::FOOTNOTES:::
FN1 Appellees cite a third termination that occurred in the same time period, that of Alan Garrett, awhite male. Appellant disputes the relevance of Garrett’s situation, because he was a manager in anotherpart of the corporation. She also disputes that Modlin was fired, asserting that Modlin had been allowed to retire.
FN2Appellant described her duties as including processing check requests, tracking purchase orders,doing monthly accruals, reviewing variance reports, and updating the expense database; she further testifiedat deposition that she had a little experience with journal ledger entries, and that she had never performedvariance analysis and did not work on annual operating budgets or capital budgets. The job posted onAugust 18 included processing invoices, updating the expense database, reviewing variance reports,assisting in the preparation of the annual operating and capital budgets, and preparing journal entries.
FN3In her brief, appellant cites this fact as evidence that MCI did not intend to fill the new positionand that MCI accordingly had advertised it solely to provide a pretext for her termination.
FN4Appellant’s complaint also included a claim for “subterfuge” under the DCHRA. The DCHRA’ssubterfuge provision makes it unlawful to “do any of the [prohibited] acts for any reason that would nothave been asserted but for, wholly or partially, a discriminatory reason. . . .” D.C. Code � 1-2512 (b)(1999 Repl.). Because this provision presupposes a discriminatory act which is alleged to have beencommitted by subterfuge, appellant’s claim under this heading necessarily fails upon the judgment againsther on her claims for race and personal appearance discrimination.
FN5Solely for purposes of reviewing on summary judgment the legality of appellant’s job termination,we accept her contention that she was fired and replaced, rather than reaching appellees’ contention thather job had been eliminated. Appellees argue, to the contrary, that appellant’s position had been eliminatedand a new one created. If we were to conclude that the record unambiguously supported this contention,then appellant’s required prima facie showing would be different; however, she still would be requiredto show circumstances giving rise to an inference of discrimination. See Texas Dept. of CommunityAffairs v. Burdine, 450 U.S. 248, 253 (1981). In making a prima facie case of employmentdiscrimination in the absence of an allegation that someone had replaced her in the same job, appellantwould be required to show that the jobs of one or more persons who were not members of the protectedclass, and who had jobs similar to hers, had not been terminated. Cf. O’Donnell, supra, 645 A.2d at1088. MCI identified three white employees who had been let go at the same time appellant wasdismissed. Appellant argues, however, that the circumstances surrounding the termination of two of thoseemployees make it inappropriate to consider them in conjunction with her own job termination. Even so,it is undisputed that the third employee, Lugene Nigh, a white female, had been let go at the same timeappellant departed. Although Nigh had been offered another position in her group at MCI, it also is notdisputed that her managers knew she would not accept the proffered position. Nigh’s employment withMCI thus ended when her position was terminated, and appellant accordingly cannot show that a similarlysituated MCI employee, not a member of her protected class, was not terminated. In any event, we thinkthe wiser course is to disregard appellees’ contentions in assessing appellant’s prima facie case. Cf.MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d 1115, 1119-21 (10 Cir. 1991)th(placing issue of employee’s qualification for position at pretext stage of inquiry by treating employer’scontention that employee was “not qualified” as articulation of legitimate non-discriminatory reason ratherthan as negation of an essential element of employee’s prima facie case).
FN6Appellant has singled out MCI’s hiring of Perez as evidence of discrimination notwithstandingthe fact that she was a temporary employee whom MCI did not identify as a permanent replacement forappellant. Appellant’s argument appears to be premised on the fact that Perez remained in the temporaryposition throughout the period of discovery in the case.
FN7This court often has looked to cases interpreting Title VII to aid in construing the D.C. HumanRights Act. Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 n.17 (D.C. 1993). We alsohave recognized that DCHRA is analogous to the ADEA in some important respects. East v. GraphicArts Indus. Trust, 718 A.2d 153 (D.C. 1998).
FN8In Cone, Waggoner, and Phelps, the court assumed the existence of a prima facie case andheld that the alleged discriminatory statements did not satisfy the plaintiff’s burden of persuasion.
FN9Carl v. Children’s Hosp., 702 A.2d 159 (D.C. 1997) (en banc) (holding that court mayrecognize additional public policy exceptions to at-will doctrine).
FN10Although appellant raised, in McManus I, the circumstances of MCI’s subsequent hiringpractices as material to her claim of discrimination, she did not directly argue that MCI had an obligationto rehire her, and because she is estopped from raising that argument against MCI in McManus II, the trialcourt was correct in not reaching the merits of the argument as to that defendant. We note, however, thataccording to appellant’s own testimony at deposition, Sallay offered appellant the use of the company’s electronic bulletin board and personnel staff for help in looking for other opportunities within MCI. Weare unable to discern any record basis for a ruling that MCI acted wrongfully as alleged.
McManus v. MCI Communications Corp. District of Columbia Court of Appeals Wandra McManus, Appellant, V. MCI Communications Corporation, et al., Appellees. Nos. 98-CV-1268 & 98-CV-1504 Appeals from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge) Argued: November 3, 1999 Decided: April 13, 2000 Before: STEADMAN and WASHINGTON, Associate Judges, and FERREN, Senior Judge. Counsel: Robert L. Bell, with whom C. Vaughn Adams, was on the brief, for appellant. Harvey D. Rumeld, with whom Thomas F. O’Neil III, was on the brief, for appellees.
