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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 12-CV-1902

                     CONSIGLIA STACEY GROVE, APPELLANT,

                                         v.

               LOOMIS SAYLES & COMPANY, L.P., et al., APPELLEES.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CAP-3159-11)

                         (Hon. Joan Zeldon, Trial Judge)

(Argued October 24, 2013                               Decided February 27, 2014)

      Barton D. Moorstein for appellant.

      Douglas E. Brayley, of the bar of the State of Massachusetts, pro hac vice, by
special leave of court, with whom Lucy C. Hynes of the District of Columbia bar,
and Peter L. Ebb of the bar of the State of Massachusetts, pro hac vice, by special
leave of court, were on the brief for appellee Loomis Sayles & Company, L.P.

       Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Richard S.
Love, Senior Assistant Attorney General, filed a Statement in Lieu of Brief, for
appellee District of Columbia.

      Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and REID,
Senior Judge.

      REID, Senior Judge: Appellant, Consiglia Stacey Grove, challenges the “no
                                         2



probable cause” finding of the Office of Human Rights (“OHR”) with respect to her

age discrimination complaint against Loomis Sayles & Company, L.P. (“Loomis”).

We hold that (1) OHR imposed an improper and higher burden of proof on Ms.

Grove at the probable cause stage of her claim; and (2) at the probable cause stage,

OHR was required to determine only whether Ms. Grove‟s claims were reasonable

and made out a prima facie claim. Because OHR determined that Ms. Grove made

out a prima facie claim but imposed upon her additional burdens of proof at the

probable cause stage, we are constrained to reverse the judgment of the Superior

Court and to remand this case to OHR for a proper probable cause determination and

further proceedings, as necessary.



                             FACTUAL SUMMARY



      The record reveals that Loomis is an investment management firm, with a

main office in Massachusetts and smaller offices in other parts of the country.

When Ms. Grove filed her complaint, Loomis had East Coast employees in North

Carolina, the District of Columbia, and Pennsylvania. Ms. Grove worked in the

District of Columbia office as an administrative assistant in the Institutional Sales

Department. She provided administrative support to three client services managers

in the District, and remotely, to one manager in North Carolina, and one in
                                         3



Pennsylvania.



      Between May 1, 2009, and July 1, 2009, Loomis conducted a reduction in

force (“RIF”) and terminated four employees in the Institutional Sales Department:

two client services managers (Vice Presidents) in the District (ages 64 and 69), one

client services manager (Vice President) in Detroit (age 80), and Ms. Grove (age

34). At the time of her termination, effective May 1, 2009, Ms. Grove had worked

at Loomis since 1997.



      Ms. Grove filed an employment intake questionnaire with the District‟s

Office of Human Rights on August 4, 2009, followed by a complaint on October 9,

2009. She alleged that Loomis informed her on March 9, 2009, that she would be

discharged (due to “insufficient work for [her] to perform”), that she was the only

administrative assistant laid off, that she “was replaced by a less experienced

employee” (in her twenties), that “this individual had plenty of work assignments

upon her arrival,” and that Ms. Grove “believe[d] that [Loomis‟] decision to lay

[her] off was a maneuver to shield itself from possible age discrimination litigation

stemming from the three Vice Presidents (all over 60) whom Loomis laid off.” She

further averred that Loomis “included [her] in its lay off scheme so that it could

utilize [her] as an example of an employee (under 40 years old) that was laid off
                                          4



outside of the protected class set forth by the federal Age Discrimination in

Employment Act of 1967, as amended.”



      In its response, lodged with OHR on December 9, 2009, Loomis asserted that

its RIF action resulted from the fact that at the end of 2008, it “fac[ed] a severe

business downturn” because the assets that it managed “decreased by approximately

$32 billion” and it “needed to reduce operating expenses by $20 million.”

Loomis decided to retain two higher level Institutional Sales Department employees

in the District who were deemed essential, as well as the office manager for the

department who also served as the administrative assistant to one of these

employees. Because Ms. Grove provided administrative support for two of the

higher level employees designated to be laid off, and because the third person to

whom she provided administrative assistance “required only minimal support,” Ms.

Grove‟s position was identified as non-essential and, as a result, she was terminated.

Subsequent to its preliminary RIF decision, Loomis terminated a Boston-based

administrative assistant for “performance-related reasons,” and the need for another

administrative assistant in the Boston office (with 454 employees) became apparent.

Loomis gave the Institutional Sales Administrator a choice of retaining Ms. Grove or

filling the Boston administrative support position.      However, Ms. Grove had

indicated her intent to return to school and confirmed in an email, dated May 15,
                                           5



2009, that school would begin the day after Labor Day. The remainder of Loomis‟

response concerned its challenge to Ms. Grove‟s legal theory and its assertion of a

legitimate, nondiscriminatory reason for including Ms. Grove in the RIF.



      Following its investigation of Ms. Grove‟s complaint, OHR issued a letter of

determination on July 27, 2010, “find[ing] no probable cause to believe [Loomis]

subjected [Ms. Grove] to disparate treatment on the basis of age (35) when [Loomis]

selected [her] for a layoff, to shield itself from possible age discrimination litigation

from three (3) Vice Presidents (all over 60), who were laid off with [her].” OHR

concluded that Ms. Grove had presented a prima facie case. Nevertheless, OHR

declared that she could not prevail on her complaint, because “OHR finds that

[Loomis] successfully demonstrates that its business decision was [not] motivated

by discrimination.” That is, Ms. Grove “fail[ed] to demonstrate [or prove] pretext.”

Furthermore, OHR stated that “in proving that the protected classes were substantial

factors in the adverse action, a Complainant may introduce evidence that a „similarly

situated‟ person outside Complainant‟s protected class was treated more favorably,”

but OHR declared that Ms. Grove “fails to demonstrate that [a San Francisco-based

administrative assistant] was similarly situated to [her].” OHR added that Ms.

Grove “does not demonstrate that the individuals that [the San Francisco-based

administrative assistant] supported were terminated or that her responsibilities could
                                          6



have been successfully absorbed.”



      Ms. Grove filed a petition for review in the Superior Court of the District of

Columbia. The Superior Court affirmed OHR‟s decision, essentially on the basis

that substantial record evidence supported OHR‟s determination. Although OHR

made no finding about the younger Boston-based, newly-hired administrative

assistant about whom Ms. Grove had made allegations in her complaint, the

Superior Court asserted that OHR took “the younger, Boston-based administrative

assistant into account in its decision.” In addition, the Superior Court declared that

“substantial evidence would support a finding that – like the older, San

Francisco-based administrative assistant – the newly-hired younger, Boston-based

administrative assistant was not similarly situated to Ms. Grove.”         The court

rejected Ms. Grove‟s argument that due process required “a full evidentiary hearing

. . . once she has shown a prima facie case of discrimination.”



                                    ANALYSIS



      In essence, Ms. Grove mainly complains that OHR used the wrong standard in

finding no probable cause, and consequently, OHR denied her a proper opportunity

to be heard regarding Loomis‟ justification of her termination. She states that she
                                           7



“has established a prima facie case of discrimination,” that where it is arguable that

[Loomis‟] justification is a pretext for the discriminatory action,” she is entitled to a

“meaningful opportunity to be heard,” that is, “a full evidentiary hearing.”



      Loomis supports OHR‟s letter of determination and mainly contends that the

record contains “substantial evidence” to support OHR‟s no probable cause finding.

Loomis claims that “[i]n her appeal to this [c]ourt, [Ms. Grove] “puts forth no

evidence to contradict [its] well-documented account of the financial considerations

leading to the regrettable but necessary cost-cutting measures that included Ms.

Grove‟s layoff.” Loomis also maintains that Ms. Grove was afforded adequate

procedural protections before OHR; and that instead of petitioning the Director for

reconsideration on the basis of “misapplication of law, material misstatement of fact,

or discovery of evidence not available during the investigation,” she chose to go

directly to the Superior Court.1




      1
         We note that Ms. Grove was not required to file a petition for
reconsideration with OHR. Nothing in 4 DCMR § 716.3 or § 720 (2013), which
provide for and discuss reconsideration in this type of complaint mandates
reconsideration. Indeed, OHR‟s letter of determination stated that: “Complainant
may apply for reconsideration . . .,” and further stated that if she “does not file a
request for reconsideration with OHR, [she] has three years . . . to file a petition for
review with the District of Columbia Superior Court.”
                                          8



      “Although this is an appeal from the Superior Court, we must approach the

case as if the appeal rose directly from the administrative agency.” Smith v. District

of Columbia Office of Human Rights, 77 A.3d 980, 990 (D.C. 2013) (internal

quotation marks and citation omitted). Our review of legal conclusions is de novo,

but we give deference to the agency‟s interpretation of its statute and regulations,

“unless its interpretation is unreasonable or is inconsistent with the statutory [or

regulatory] language or purpose.” Id. at 991 (internal quotation marks and citation

omitted).



      D.C. Code § 2-1403.01 (c) (2012 Repl.) authorizes OHR and the Commission

on Human Rights to promulgate and issue regulations to carry out their

responsibilities.    The regulatory provision pertaining to the probable cause

determination concerning private complaints alleging unlawful discriminatory

practices is found at 4 DCMR § 716.1 (2013): “A finding of probable cause shall

be based upon credible, probative, and substantial evidence which demonstrates a

nexus between the harm complained of and the protected characteristic or activity of

the complainant.”2

      2
     We note that OHR applied the definition of probable cause found in 4
DCMR § 499 (2013). That definition, found in Chapter four of Title 4 of the
DCMR applies to contested cases involving allegations of unlawful discrimination
                                                                  (continued…)
                                          9



      The probable cause determination must not be confounded with the

preponderance of the evidence standard of proof required to sustain a discrimination

complaint following adjudication. See Smith, supra, 77 A.3d at 997 (stating that

appellant has not proven some element of her claim “confuses the probable cause

standard at the threshold of a proceeding with the higher standard of proof by a

preponderance of the evidence that applies at a full-fledged administrative

adjudication of the charge of discrimination”) (citing Sparrow v. District of

Columbia Office of Human Rights, 74 A.3d 698, 706 (D.C. 2013)). “[A]pplying the

probable cause standard requires consideration of whether [the complainant‟s]

version of events was reasonable, not whether [he or she] failed to disprove

[employer‟s] version of events.” Smith, supra, 77 A.3d at 997 (citing Sparrow,

supra). If the complainant‟s claims are “„reasonable‟ and make out a prima facie

case . . ., there is probable cause to take the next step in the process” where the

claimant “has the burden to prove her claims by a preponderance of the evidence”

during a full hearing.3 Id. at 997-98.


(…continued)
by District of Columbia agencies, not to private complaints alleging unlawful
discrimination.
      3
         If there is a probable cause finding, OHR may attempt conciliation prior to a
full hearing. See D.C. Code § 2-1403.06 (2012 Repl.)
                                        10



      Based upon the applicable regulatory provision governing probable cause,

and upon legal principles we have adopted concerning the probable cause standard

in private complaints alleging unlawful discrimination, we hold that OHR imposed

an improper burden of proof on Ms. Grove at the probable cause stage of her claim.

At the probable cause stage, OHR‟s duty is to evaluate whether Ms. Grove

“provide[d] credible, substantive, and probative evidence” that the allegedly

legitimate, non-discriminatory justification given by Loomis “was not the actual

reason” for her termination. Sparrow, supra, 74 A.3d at 707 (citation omitted).

However, after determining that Ms. Grove had presented a prima facie case of

discrimination, OHR imposed on her a higher burden of demonstrating or proving

that Loomis‟ justification of her termination was a pretext for discrimination. OHR

also placed on Ms. Grove the burden of persuading it that a “similarly situated”

person outside of her protected class was treated more favorably. Indeed, OHR

declared that Ms. Grove failed to demonstrate or prove that the employees whom a

San Francisco-based administrative assistant supported “were terminated or that [the

administrative assistant‟s] responsibilities could have been successfully absorbed.”

In short, OHR determined that Ms. Grove had established a prima facie case of

discrimination, but imposed a higher burden of proof on her than is required at the

probable cause stage of the proceedings.      See Smith, supra, 77 A.3d at 997;

Sparrow, 74 A.3d at 707. Because of the higher burden of proof OHR put on her at
                                         11



the probable cause stage, Ms. Grove did not have a meaningful opportunity to rebut

Loomis‟ justification for her termination.



      Accordingly, for the foregoing reasons, we reverse the decision of the

Superior Court and remand this case to OHR for a proper probable cause

determination, and further proceedings, as necessary.



                                       So ordered.
