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finding that the plaintiff presented evidence that employer “knew or should have known of the abuse” since plaintiff reported each incident to a supervisor, who, under the employer's policies, had a duty to report further allegations to the employer's Office of Civil Rights
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Civ. No. 01-0334 (TFH), No. 01-2385 (TFH).
June 27, 2005
MEMORANDUM OPINION
Pending before the Court are Defendants WMATA and Littlefield's Motion for Summary Judgment ("WMATA Motion") [# 71, 85], and Defendant Michael Austin's Motion to Strike Count for Intentional Infliction of Emotional Distress ("Austin Motion") [# 72, 86] or in the Alternative for Summary Judgment. Having carefully considered the motions, Plaintiff's oppositions, the replies thereto, the parties' supplemental filings, and the arguments presented at the hearing held in this matter on June 6, 2005, the Court will grant the Austin Motion, and grant the WMATA motion in part and deny it in part.
I. Background
Plaintiff was employed by Defendant Washington Metropolitan Area Transit Authority ("WMATA") as a bus operator and CDL instructor. Plaintiff claims that she was subjected to sexual discrimination and sexual harassment while employed at WMATA. The alleged harassment and discrimination was primarily at the hands of fellow WMATA employees Jodie Littlefield (her immediate supervisor), Michael Austin (her co-worker), and Gregory Greene (another co-worker), who are all named as individual defendants in Plaintiff's Third Amended Complaint.
Defendant Gregory Greene was terminated as a party to this action on December 20, 2004.
Plaintiff's claims stem primarily from the following series of alleged incidents. Plaintiff alleges that on several occasions while Plaintiff was pregnant, whenever she touched her stomach in the office, Defendant Littlefield would place his hands on his genitals and gyrate while her coworkers looked on and laughed. Plaintiff's Opposition to Defendant WMATA and Littlefield's Motion for Summary Judgment ("WMATA Opp.") Ex. 1 at pp. 88, 90-94. Defendant Littlefield had a practice of making disparaging comments about Plaintiff's pregnancy, as well as about women's ability to make it through WMATA's CDL program. Id. at pp. 94-98. Plaintiff also alleges that Defendant Littlefield attempted to kiss Plaintiff on the mouth while visiting her at the hospital upon the birth of her child. Id. at 88.
While working as CDL instructor before taking her maternity leave, Plaintiff was placed by Defendant Littlefield in an undesirable basement location. Id. at 94-95. After returning from maternity leave, Plaintiff was initially denied permission to return to her former position as a CDL instructor; instead, Plaintiff worked at the lower paying position of Bus Operator for a period of time before eventually being returned to the CDL instructor position. Id. at 99-100.
Plaintiff alleges that Michael Austin exposed himself to Plaintiff while at work on two occasions. Id. at 37; WMATA Opp. Ex. 6 at pp. 46-47.
With regard to Gregory Greene, Plaintiff alleges that Greene grabbed Plaintiff's breast while at work. WMATA Opp. Ex. 11.
Finally, Plaintiff alleges that there were sexually graphic and derogatory drawings regarding her on the walls of a WMATA bathroom at Fourteenth Street and Colorado Avenue, N.W. WMATA Opp. Ex. 17. Plaintiff further alleges that these drawings repeatedly disappeared only to appear again on the WMATA bathroom walls. WMATA Opp. Ex. 10 at p. 57.
II. Legal Standard
"Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A material fact is one that could affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inference are to be drawn in his favor." Id. at 255 (citations omitted).
III. Austin Motion
Count IV of Plaintiff's Third Amended Complaint charges Defendant Michael Austin with intentional infliction of emotional distress arising out of two incidents during which Austin allegedly exposed himself to Plaintiff. Austin asks the Court to dismiss Count IV as an insufficient pleading under Rule 8(a) of the Federal Rules of Civil Procedure because the complaint fails to allege specific dates on which the incidents allegedly occurred. Rule 8 provides the general rules for pleading. A pleading which sets forth a claim for relief requires, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The rule simply requires the complaint to "give the defendant fair notice of what the Plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). "For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter." Fed.R.Civ.P. 9(f).
The Federal Rules of Civil Procedure contemplate liberal notice pleading by the parties, and accordingly do not require a party to plead time and place with particularity. See Bankest Imports, Inc. v. ISCA Corp., 717 F. Supp. 1537, 1539 (S.D. Fla. 1989). Here, however, Plaintiff's complaint omits allegations of time or place as to Count IV entirely. Complaint ¶ 120. The Court finds that Count IV of Plaintiff's complaint is thus insufficient, as it does not give Austin fair notice of the claim against him. The complaint deprives Austin of information needed to prepare his defense. See Supreme Wine Co. v. Distributors of New England, 198 F. Supp. 318, 320 (D. Mass. 1961) (stating that a complaint that entirely omits any allegation of time or place may be insufficient and subject to dismissal). Therefore, the Court will dismiss Count IV of Plaintiff's Third Amended Complaint.
IV. WMATA Motion
A. Counts I and II: Sex Discrimination and Sexual Harassment Claims
Counts I and II of Plaintiff's Third Amended Complaint charge Defendants WMATA and Littlefield with sexual discrimination and sexual harassment, respectively, based on a hostile work environment theory. To establish a prima facie case of hostile work environment, a plaintiff must demonstrate that (1) she is a member of a protected class; (2) she was subject to unwelcome harassment that (3) occurred because of her gender; (4) the harassment affected a term, condition or privilege of her employment; and (5) respondeat superior liability existed. See e.g., Burton v. Batista, 339 F. Supp. 2d 97, 106-07 (D.D.C. 2004).
1. Failure to set forth prima facie case of sexual discrimination
First, Defendants argue that the incidents complained of by Plaintiff are not sufficient to set forth an actionable hostile work environment claim. In such a claim, the harassment complained of must be "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). The factors to consider in determining whether Plaintiff's work environment was sufficiently hostile to trigger Title VII protection are:
(1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or merely offensive; and (4) whether the conduct reasonably interferes with the employee's performance.Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998). This analysis is the type of fact intensive inquiry that is the province of the jury. Defendants argue that Plaintiff's claim amounts to only one incident at the workplace (the Gregory Greene incident), and that a single isolated incident cannot create a hostile work environment as a matter of law. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (holding that an isolated incident does not so alter a plaintiff's employment conditions as to create a hostile work environment under Title VII) (citing Tatum v. Hyatt Corp., 918 F. Supp. 5, 7 (D.D.C. 1994). Plaintiff, however, alleges many workplace incidents in addition to the Greene touching incident, e.g., the bathroom drawings, Littlefield's gesturing, and Austin's exposures. Once there is evidence of improper conduct and subjective offense, as there is here, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury. See Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998) (citing Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997)). Summary judgment is unwarranted on this basis.
2. WMATA Liability
Defendant WMATA next argues that it should be absolved of any liability for the behavior of the individual defendants named in Plaintiff's complaint. In this case, Plaintiff contends that a hostile work environment was created by the actions of Greene, Littlefield, and Austin. Out of the three, it seems that only Littlefield had supervisory authority over Plaintiff. See Defendant WMATA and Littlefield's Statement of Material Facts as to which there is no Genuine Issue ("WMATA SMF") ¶¶ 3, 5.
Plaintiff does assert that "Gregory Greene was a supervisor when he grabbed Plaintiff's breasts;" however, she fails to point to any evidence of that fact beyond this conclusory statement.See Plaintiff's Statement of Genuine Issues of Material Facts which Plaintiff Contends must be Litigated ¶ 22.
"An employer may be held liable for the harassment of one employee by a fellow employee (a non-supervisor) if the employer knew or should have known of the harassment and failed to implement prompt and appropriate corrective action." Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999). Therefore, WMATA is liable for the actions of Plaintiff's co-workers (Greene and Austin) only if it knew or should have known about the abuse. See id. Plaintiff has presented evidence that WMATA knew or should have known of the abuse since Plaintiff reported each incident to a supervisor, who under WMATA's policies, had a duty to further report allegations of sexual harassment to WMATA's Office of Civil Rights. WMATA Opp. Ex. 1 at p. 93; Ex. 4; Ex. 6 at pp. 46-47; WMATA SMF at Ex. 4, 5. Plaintiff has proffered sufficient evidence to survive summary judgment on the claims against WMATA arising out of the actions of Austin and Greene.
In a hostile work environment case, an employer is subject to vicarious liability to the victimized employee where the environment was created by a supervisor with immediate or successively higher authority over the employee. Faragher, 524 U.S. at 807. Therefore, WMATA is liable for the actions of Littlefield and Plaintiff's other supervisors, unless it is able to establish the affirmative defense. See Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998). WMATA asserts that it has established the affirmative defense as a matter of law.
3. Affirmative defense
First, the affirmative defense is unavailable when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.Faragher, 524 U.S. at 808 (citing Ellerth, 524 U.S. at 762-63). The Supreme Court has defined a tangible action as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761. Here, Plaintiff submits that Littlefield's harassment culminated in his placement of Plaintiff in an undesirable location, followed by his refusal to allow Plaintiff to immediately return to her previous position as a CDL instructor after her maternity leave. While Plaintiff was ultimately returned to the CDL instructor position after complaining to higher authority, Plaintiff argues that her temporary demotion constituted tangible employment action that resulted from her refusal to allow Littlefield to kiss her. WMATA argues that although Plaintiff's return to her position was delayed, she was back at her pre-maternity position within a short period of time, and no economic aspect of plaintiff's employment was ever affected.
If the delay in returning Plaintiff to her pre-maternity position and her previous placement in an undesirable location do not constitute tangible employment actions, the affirmative defense is available to WMATA. In order to assert the affirmative defense to a hostile work environment claim, WMATA must prove the following two elements by a preponderance of the evidence:
(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Faragher, 524 U.S. at 807.
WMATA argues that it has satisfied the affirmative defense set forth in Faragher as a matter of law because it had an effective sexual harassment policy in place, which was regularly communicated to its employees. All parties relevant to this action were well trained in these policies and procedures, and WMATA's Office of Civil Rights ("OCR") thoroughly investigated all of Plaintiff's complaints. Plaintiff counters that although WMATA had sexual harassment policies and procedures in place, it failed to exercise reasonable care to enforce those policies and prevent harassment from occurring.
Next, Defendants argue that the second element of the affirmative defense is met because Plaintiff refused to cooperate with OCR's investigation of her allegations against Littlefield, Austin, and Greene. See Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999) (stating that there would be no liability against employer where reasonable person in plaintiff's position would have taken earlier steps to prevent harassment from becoming severe and pervasive). Unlike the defendants inGreene, Defendants here do not argue that Plaintiff inexcusably delayed in reporting the charged incidents to WMATA. Plaintiff has presented evidence that she complained to her supervisors regarding each incident according to WMATA's procedure, that those supervisors failed to report her complaints to WMATA's Office of Civil Rights as required, and finally that Plaintiff followed up on WMATA's inaction by filing a formal complaint with the Equal Employment Opportunity Commission.
WMATA argues instead that it is entitled to the affirmative defense because Plaintiff failed to cooperate in the investigation of her complaints once made. See WMATA Mot. at Ex. 5 pg. 5 (WMATA Investigative Report dated September 2, 1999, stating that Plaintiff failed to avail herself of the opportunity given to her by the investigation to present the facts that she based her allegations upon). Plaintiff argues that she fulfilled her obligation by timely complaining to the proper authority in response to each incident of offensive conduct. The issue is whether, as a matter of law, a reasonable person in Plaintiff's place would have been able to mitigate her damages by cooperating fully with WMATA's investigation. See Greene, 164 F.3d at 674-75. The Court cannot so find on the record before it without improperly resolving disputed issues of fact.
There is a material dispute here as to whether her complaints were sufficient to deprive WMATA of the Faragher defense, or whether her lack of cooperation with the investigation constituted an unreasonable failure to avail herself of the employer's policy. Further, it appears that there is a genuine dispute as to whether WMATA meaningfully enforced its harassment policies in this case. Plaintiff has presented evidence that her supervisors failed to report her complaints as required by WMATA's sexual harassment procedure. Summary judgment is not warranted here: first, there is a genuine dispute as to whether the defense is even available to WMATA in the first place; second, even if it is available, whether WMATA has established both of the required elements of the defense is in dispute.
B. Count III: Intentional infliction of emotional distress (Littlefield)
Count III of Plaintiff's Third Amended Complaint charges Defendant Littlefield with intentional infliction of emotional distress. To establish a claim for intentional infliction of emotional distress, a plaintiff must establish: (1) extreme and outrageous conduct by the defendant; which (2) intentionally or recklessly; (3) causes the plaintiff severe emotional distress.See e.g., Howard University v. Best, 484 A.2d 958, 985 (D.C. 1984). The defendant's conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Jackson v. District of Columbia, 412 A.2d 948, 957 (D.C. 1980).
Defendant Littlefield maintains that his alleged actions, even if proven, do not rise to the level of extreme or outrageous conduct necessary to sustain Plaintiff's claim as a matter of law. Littlefield argues that courts in this and other jurisdictions have repeatedly rejected claims of sex-based discrimination based on conduct that is substantially worse than that attributed to Littlefield, holding that the conduct fails to qualify as extreme and outrageous. The cases Littlefield cites do not support this proposition. See e.g., Kerrigan v. Britches of Georgetowne, 705 A.2d 624, 628 (D.C. 1997) (finding alleged employer conduct of manufacturing false claim of sexual harassment against plaintiff employee, leaking information from sexual harassment investigation to other employees, and unjustifiably demoting plaintiff did not constitute outrageous conduct as a matter of law); Hoffman v. Hill Knowlton Inc., 777 F. Supp. 1003, 1005 (D.D.C. 1991) (finding alleged age discrimination by employer against employee in terminating employee could not sustain claim for intentional infliction of emotional distress). The conduct alleged in the instant case can be distinguished from the conduct in both Kerrigan and Hoffman, as the conduct in the latter two cases was of the "type attributable to 'employer-employee conflicts [that] do not, as a matter of law, rise to the level of outrageous conduct.'" Kerrigan, 705 A.2d at 628 (quoting Best, 484 A.2d at 986). In contrast, the conduct alleged here is much more analogous to that alleged inBest, where the court found that the defendant's conduct in repeatedly touching the plaintiff, propositioning her, and making vulgar comments about her to others was sufficiently outrageous to be actionable as intentional infliction of emotional distress.Best, 484 A.2d at 986.
A reasonable jury could conclude that Littlefield's repeated disparaging comments regarding Plaintiff's pregnancy and pattern of making crude gestures and sexual advances towards her constituted extreme and outrageous conduct exceeding the bounds of decency. This is a clear question of fact for a jury.
C. Count V: Intentional Infliction of Emotional Distress (Greene)
Count V of Plaintiff's Third Amended Complaint charges Gregory Greene with intentional infliction of emotional distress. On December 20, 2004, Plaintiff and Defendant Greene filed a stipulation agreeing to the dismissal with prejudice of Gregory Greene as a named defendant [# 82]. That same day, Greene was terminated as a party to the case. Therefore, Count V is dismissed.
The Court notes that the factual allegations made in Count V may still be used to support Plaintiff's remaining claims.
D. Counts VI and VII: Negligence and Intentional Infliction of Emotional Distress
Count VI in Plaintiff's Third Amended Complaint charges WMATA and Littlefield with Negligence for failure to assure that WMATA's sexual harassment policies were not violated, and more specifically, to assure that Plaintiff was not subjected to a hostile work environment. This claim is preempted by Title VII as the injury arises out of the alleged harassment itself. The precisely drawn, detailed Title VII preempts the more general common law negligence remedy. See Brown v. General Services Administration, et al., 425 U.S. 820, 834-35 (1976) (holding Title VII provides exclusive remedy for employment discrimination). Defendants' motion for summary judgment as to Count VI is granted and Count VI is dismissed.
Count VII charges WMATA with intentional infliction of emotional distress for subjecting Plaintiff to a hostile work environment, and allowing derogatory graffiti regarding Plaintiff to remain on the walls of a bathroom at a WMATA location. Any emotional injuries arising from the alleged harassment are subsumed within Title VII. Boyd v. O'Neill, 273 F. Supp. 2d 92, 96 (D.D.C. 2003) (stating that common law claim is preempted by Title VII claim where both seek to remedy the same wrong). As Plaintiff's emotional injuries were the result of the stressful work environment allegedly created by WMATA, her claim of intentional infliction of emotional distress against WMATA is dismissed as subsumed within Title VII. See Stewart v. Thomas, 538 F. Supp. 891, 896 (D.D.C. 1982). Defendant WMATA's motion for summary judgment is granted as to Count VII and Count VII is dismissed.
V. Conclusion
For the foregoing reasons, the Court will grant the Austin Motion, and dismiss Count IV of Plaintiff's Third Amended Complaint. Further, the Court will grant the WMATA Motion in part and deny it in part. Accordingly, Counts V, VI and VII of Plaintiff's Third Amended Complaint are dismissed. Counts I and II of the complaint may proceed to trial.
An appropriate Order will accompany this Memorandum Opinion.