DC high court says there is no "safe harbor" for retaliation
In a long-awaited ground-breaking decision, the District of Columbia Court of Appeals today held that an employer engages in unlawful retaliation when it adds a new demand for a release as a condition for concluding a consulting agreement. The case is Propp v. Counterpart International and LeLaulu, No. 07-CV-988 (D.C. Mar. 8, 2012).
Counterpart International is a nonprofit development organization. Brian Propp worked for Counterpart from 1995 to 2004. In 2001, Propp was promoted to General Director of Counterpart's Humanitarian Assistance Program (CHAP). His duties included fundraising. He also led the Counterpart Communities initiative which became known as his "brainchild." Lelei LeLaulu became Counterpart's President and CEO in 2002.
In 2004, LeLaulu proposed to the Board that Propp be terminated due to a budget deficit in Propp's program in Muldova and CHAP's overall budget reduction. The Board approved of the termination. Propp was the only person laid off. Before anyone told Propp about his termination, Congress voted to give Counterpart $12 million. In a later meeting with Propp to tell him about his termination, LeLaulu offered him an opportunity to receive three months' severance pay in exchange for a release of all claims. Propp refused. Nevertheless, the parties agreed to have Propp continue working for Counterpart as a contractor. LeLaulu sent an email to all staff saying that Propp would now be working on Counterpart Communities and other initiatives, but not on CHAP. A week later, Propp's attorney sent Counterpart a letter asserting that Propp was opposing practices he believed were discriminatory. Counterpart and LeLaulu then became non-responsive to efforts to conclude the negotiations for a new contract. Instead, they insisted that Propp sign a release, and even gave him a 48-hour deadline to do so. Counterpart also abandoned the $12 million earmark from Congress. On October 7, 2005, Propp filed his lawsuit alleging discrimination and retaliation.
During discovery Counterpart admitted that “Defendants never engaged or otherwise permitted [Propp] to concentrate on Counterpart Communities and other strategic opportunities for the organization because [Propp] refused to sign a separation agreement and release.” The DC Superior Court still dismissed the lawsuit on summary judgment. Propp appealed only the decision that dismissed his retaliation claim. He argued that Counterpart and LeLaulu added the requirement for a release only after Propp opposed unlawful discrimination. Today, the DC Court of Appeals agreed that adding the requirement for a release was retaliatory and unlawful.
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