GLAA to Corporation Counsel: Stop Undermining Human Rights Act
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GLAA to Corporation Counsel: Stop Undermining Human Rights Act

[Note: The following memo was hand-delivered to DC Corporation Counsel Robert Rigsby at a meeting he held with representatives of GLAA on Wednesday, June 7. The meeting, one of a series of meetings that Rigsby has held with GLAA, was cordial and productive. This memo cites evidence that Corporation Counsel attorneys have repeatedly argued in court that citizens do not have the right to sue the DC Government for discrimination under the DC Human Rights Act. Rigsby immediately pledged to investigate the matter and report back to GLAA. This problem came to the attention of GLAA as a result of the Tyra Hunter case, in which the government has made the same argument — an argument which has been repeatedly rejected by judges.]

Wednesday, June 7, 2000

Memo for: Robert Rigsby
  Corporation Counsel
From: Rick Rosendall
  Public Safety Chair
  Gay and Lesbian Activists Alliance of Washington, DC
Subject: The right of individuals to sue the DC Government
  under the Human Rights Act

After the Hunter case, which still has not been settled, your office has continued to argue in court that individuals who claim that they have been victims of discrimination by the government are prohibited from suing the District or any DC agency or employee under the DC Human Rights Act. This has occurred in two separate cases, which I will discuss separately.

1. In Jefferson v. DC, et al., in which a Fire Department EMT referred to a 6-year-old asthmatic struggling for breath as a "nigger child," refused to touch the child and delayed emergency transport to Children's Hospital, Corporation Counsel attorneys made this outrageous and discredited argument not once but twice before Judge Jose Lopez. They lost once when the Judge ruled against their motion to dismiss. Unfazed, they questioned the Judge's decision and reargued their position. In rejecting their renewed argument, Judge Lopez wrote the following in his January 11, 2000 ruling on the motion:

Defendant's [District of Columbia] first argument, as was made in their motion to dismiss, is that Plaintiff has failed to exhaust her administrative remedies as required under section 1-2543 of the D.C. Code. Defendant DC believes that under this statutory provision, the Mayor "has authority to render decisions under [the] HRA for both District employees and private citizens." After a thorough search, this court was unable to locate any case law that clearly defines the scope of this section, with respect to whether it is applicable to both private individuals and employees of the District of Columbia. There are, however, Court of Appeals decisions that are very instructive on the scope of this statutory requirement.

In Williams v. District of Columbia, an employee of the University of the District of Columbia initially filed a complaint with the Office of Human Rights claiming employment discrimination on the basis of sex and race. 467 A.2d 140 (D.C. 1983). Unable to settle the dispute, the Plaintiff voluntarily withdrew her complaint and filed suit in the Superior Court. Id. at 141. In affirming the dismissal of Plaintiff's complaint, the Court of Appeals found that "the administrative remedies provided by D.C. Code section 1-2543 and its predecessors are the exclusive remedies available to a District of Columbia government employee claiming [employment] discrimination." Id. at 142. The court went on to hold that "the private right of action established in D.C. Code section 1-2556 and its predecessor, is the only available to non-government employees." Id. The decision in Williams was later re-affirmed by the Court of Appeals in Kennedy v. District of Columbia, 654 A.2d 847 (D.C. 1995). The Court in Kennedy held that "[i]n Williams we clearly stated that D.C. government employees, unlike non-government employees, are required to exhaust the administrative remedies available to them under the D.C. Human Rights Act." Id. at 863. See also Newman v. District of Columbia, 518 A.2d 689, 701 (D.C. 1986) (stating that "[i]n Williams, we identified the administrative exhaustion requirement for government employees in D.C. code section 1-2543").

From these decisions, it is evident that section 1-2543 of the D.C. Code, which requires the exhaustion of administrative remedies, only applies to claims made by District of Columbia employees, not by private individuals. In contrast, section 1-2556 applies to all other individuals who seek redress under the D.C. Human Rights Act. There has been no indication by the Court of Appeals, as Defendant asks this court to conclude, that all individuals filing claims under the D.C. Human Rights Act need to exhaust internal administrative remedies before proceeding to the Superior Court. Only, as Plaintiff correctly points out, those individuals employed by the District of Columbia at the time of the incident need comply with the requirement of exhausting all administrative remedies first. As such, it seems clear to this court that there would be no need for Plaintiff in the instant matter to seek the decision of the Mayor with respect to what steps needed to be satisfied to pursue a discrimination claim. Plaintiff has properly complied with the statutory requirements with respect to her Human Rights Act claim and this court, therefore, has jurisdiction over the instant case.

Jefferson v. District of Columbia et al. , slip. op. at 3-4 (January 11, 2000).

2. On March 27, 2000, in a memorandum opinion in the case of Freddy Ramirez et al. v. District of Columbia, U.S. District Judge Thomas F. Hogan expressly rejected the Corporation Counsel's exhaustion-of-administrative-remedies defense to the Plaintiff's DCHRA claim. The case was brought by Freddy Ramirez, a disabled D.C. elementary school student whose wheelchair didn't fit in the bathroom door, and who as a result had to drag himself into the bathroom in order to relieve himself. The Corporation Counsel, as in Hunter and Jefferson, argued that private citizens cannot sue the D.C. Government. Judge Hogan ruled that the restriction on direct suits applies only to D.C. Government employees. Judge Hogan wrote the following:

DCPS [District of Columbia Public Schools] argues that Freddy [Ramirez] is not entitled to relief under the DCHRA, because he (1) failed to exhaust his administrative remedies before filing suit and (2) failed to prove discriminatory intent as part of his cause of action. However, the statutory exhaustion requirement does not apply to private litigants, such as Freddy, and discriminatory intent is not required if the practice has a discriminatory effect. Therefore, because Freddy has established that DCPS is liable for discrimination, he is entitled to relief under the DCHRA.

The DCHRA provides that a private right of action "in any court of competent jurisdiction" is afforded "any person claiming to be aggrieved by an unlawful discriminatory practice.

Footnote 8:
In general, the DCHRA does not require a plaintiff to exhaust his administrative remedies, but there is a statutory exhaustion requirement for D.C. government employees. See D.C. Code § 1-2543; See also Hunt v. District of Columbia Dept. of Corr.'s, 41 F. Supp. 2d 31, 37 (D.D.C. 1999) (citing Newman v. District of Columbia, 518 A.2d 698, 700 (D.C. 1986)). However, because Freddy is not an employee of the District, § 1-2543 is inapplicable, and he is entitled to the cause of action set forth in § 1-2556.

Ramirez et al. v. District of Columbia, Memorandum Opinion, at 7 (March 28, 2000).

In summary: Your office continues to make these legally erroneous arguments in order to deny individuals their day in court to determine whether they have a legitimate claim under D.C.'s comprehensive Human Rights Act. We are not suggesting that the government should simply concede every case in which an individual sues the government for discrimination. Of course we expect the government to defend itself. However, it is an abuse not only of the Corporation Counsel's responsibility to follow the law, but of the people who elect this government, to argue that no one in the District may bring suit against the government under the D.C. Human Rights Act. As the largest service provider in the city, the District government has both the power and the greatest potential to violate the civil rights of a citizen of Washington. This was understood by the framers of the DC Human Rights Act, and has been understood by every judge who has ruled on the issue. It is time for the Corporation Counsel to stop trying to hold the government above the Human Rights Act. Please order your staff attorneys to desist from making this argument, and to withdraw the argument in cases where they have made it.

Thank you for your attention to this.

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