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ROGERS v. LOEWS L'ENFANT PLAZA HOTEL

November 13, 1981

Norma L. ROGERS, Plaintiff,
v.
LOEWS L'ENFANT PLAZA HOTEL, et al., Defendants



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

Plaintiff, Norma Rogers, alleges in her complaint that while employed by the defendant Loews L'Enfant Plaza Hotel (Hotel) she was subjected to physical and emotional harassment by her superiors. Claiming that defendants' conduct has deprived her of rights guaranteed under the Constitution and federal, local and common law, she seeks monetary, declaratory and injunctive relief. Motions to dismiss are presently before the court. A recitation of the allegations is germane to the rulings on those motions.

 In September, 1979, plaintiff was hired by the defendant Hotel as Assistant Manager of the Greenhouse Restaurant. Defendant James Deavers, Manager of that restaurant, was plaintiff's immediate supervisor with whom she was required to work closely in order to assure the smooth operation of the restaurant. Plaintiff alleges that after being employed a few weeks, Deavers began to make sexually oriented advances toward her, verbally and in writing, which extended over a period of two months. The defendant would write her notes and letters, pressing them into her hand when she was busy attending to her duties in the restaurant, or placing them inside menus that plaintiff distributed to patrons of the restaurant, or even slipping them into plaintiff's purse without her knowledge.

 Plaintiff further claims that defendant would also telephone her at home or while she was on duty at the restaurant, which conversations included sarcastic, leering comments about her personal and sexual life. Plaintiff was frightened and embarrassed by this defendant's actions and uncertain as to how she could protect herself. She contends that she continually rejected his suggestions and rebuffed his advances by telling defendant that she was not interested in him personally, and that his suggestions and advances were distressful and unwanted.

 Plaintiff avers that for a short time after the telephone incident between herself and Ms. Deavers, the advances ceased, but soon they resumed again. This time in addition to leaving more notes, Deavers would pull at plaintiff's hair, touch her and try to convince her to spend a night or take a trip with him. The complaint states that he offered her gifts and favors and at times used abusive crude language, stating that he found her attractive and would never leave her alone.

 The explicit sexual advances ceased at the end of November, but then the employment atmosphere and working conditions at the Greenhouse became difficult and very uncomfortable according to plaintiff. Defendant Deavers would sometimes exclude her from meetings of the Greenhouse staff; he suggested to the staff that plaintiff was unhappy with her job and might not stay; he used abusive language, belittling plaintiff in the presence of the staff; he refused to cooperate with her or share necessary information on occasion. Plaintiff claims he generally made it difficult for her to perform her job.

 Plaintiff attempted to arrange a meeting with defendant Randy Gantenbein, the Hotel's Food and Beverage Manager, who had authority to resolve staff problems in the Greenhouse, in order to discuss defendant Deavers' conduct. She asserts Gantenbein avoided her and for three weeks declined to meet her. Near the end of this period, Deavers advised Rogers that defendant Gantenbein intended to discharge both Deavers and Rogers. After pursuing the matter, plaintiff was able to meet with Gantenbein in January, 1980, but only after the Hotel Manager suggested he do so. At that time, plaintiff states she explained the atmosphere and working conditions in the restaurant beginning with defendant Deavers' past sexual advances. Defendant Gantenbein denied he had any intention of discharging plaintiff as Deavers had warned, but acknowledged that he had known, prior to their meeting, about Ms. Deavers' telephone call to plaintiff in mid-October. *fn1" Gantenbein, according to plaintiff, advised her to be patient and to wait and see if the situation would improve.

 Plaintiff's allegations continue that by the end of February, 1980, defendant Deavers notified her that he would do everything in his power to have her fired. Plaintiff contacted her attorney and requested Gantenbein to meet with him, which Gantenbein refused to do. The next day Gantenbein asked plaintiff to take an evening position with the Hotel, noting that it was obvious that things would not work out between plaintiff and defendant Deavers. She refused, again requesting that the Hotel management or its attorney promptly meet with her attorney, but the request was denied.

 Plaintiff and her counsel eventually met with Hotel management on March 14, 1980. By a letter dated March 17, attorneys for the Hotel advised plaintiff that they had "admonished and reprimanded" Deavers. Hotel management, however, saw no reason to separate the two employees, and insisted that plaintiff report back to work with defendant Deavers. They advised Rogers that the company would "monitor" the relationship through weekly meetings. Plaintiff rejected this solution.

 Essentially then, the complaint before the Court alleges that defendant Deavers with knowledge of defendant Gantenbein and other supervisory employees at the Hotel willfully and with premeditation forced himself on plaintiff and attempted to force her either to submit to his importunings or lose her employment. She asserts that she has been severely damaged both mentally and physically by the conduct described above in violation of rights guaranteed her by 42 U.S.C. §§ 1981 and 1983 and by the District of Columbia Human Rights Act, D.C.Code Ann. § 1-2501 et seq. (formerly § 6-2201 et seq.). Plaintiff further claims that defendants engaged in tortious conduct, specifically 1) invasion of plaintiff's right to privacy at her home, in her place of employment, and in her personal life; 2) infliction of extreme emotional distress; 3) assault and battery. The corporate defendants, it is charged, failed to exercise proper supervision and control over their employees, thereby causing plaintiff injury and making defendants jointly and severally liable to plaintiff.

 Defendants have presented motions to dismiss pursuant to the Federal Rules of Civil Procedure 12(b)(6), 12(b)(1), and for partial summary judgment pursuant to Rule 56, as well as a motion to strike or dismiss. Each motion will be considered separately.

 I

 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants have moved to dismiss on the following grounds: (a) the complaint fails to state a claim upon which relief can be granted under Section 2000e-2(a) of Title 42 of the United States Code and Section 1-2512(1) (formerly § 6-2221(a) (1)) of the District of Columbia Human Rights Act; and (b) the complaint fails to state a claim upon which relief can be granted under District of Columbia common-law principles of tort.

 "For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. And, the complaint is to be liberally construed in favor of plaintiff." *fn3" A complaint "should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Mere vagueness or lack of detail is not ground for a motion to dismiss...." *fn4"

 (a) The Title VII and D.C. Human Rights Act Claims

 Plaintiff filed a complaint with EEOC in March, 1980. In July, 1980, her charge was dismissed because the Hotel had made a written settlement offer which EEOC concluded afforded full relief for the harm alleged. The Notice of Right to Sue which then issued, however, was withdrawn by EEOC in August, 1980, due to "administrative error." It was not until June, 1981, that a second Notice of Right to Sue was issued. This time plaintiff's charge was dismissed by EEOC on the basis that examination of the evidence indicated that there was no reasonable cause to believe that the sex discrimination allegation was true. However, the plaintiff then received a Notice of Reconsideration in August, 1981, which stated that the Letter of Determination, as well as the Notice of Right to Sue had been revoked and that further review of the charge would follow. The matter appears to be pending still.

 Since plaintiff has not received a Notice of Right to Sue from EEOC and chooses not to bring her Title VII claim at this time, *fn5" the Court need not dismiss a claim which does not exist. As to her claim under the D.C. Human Rights statute, which is inextricably entwined with her Title VII claim, it shall be dismissed without prejudice.

 (b) Common-law Tort Claims

 Right to Privacy: "To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff "to be let alone.' " *fn6" The type of invasion of privacy applicable to this case falls within the rubric of intrusion, *fn7" a tort recognized in the District of Columbia by the United States Court of Appeals in Pearson v. Dodd, 133 U.S. App. D.C. 279, 410 F.2d 701, 704 (D.C.Cir.), cert. denied, 395 U.S. 947, 89 S. Ct. 2021, 23 L. Ed. 2d 465 (1969):

 
We approve the extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff's position could reasonably expect that the particular defendant should be excluded.

 Plaintiff has alleged in this case that defendant Deavers called her at home, as well as at work when he was off duty, and that he made leering comments about plaintiff's personal and sexual life to her. Complaint PP16 & 19. While not alleging that defendant Deavers publicized specific information about her, she does contend he used abusive language and belittled her in the presence of staff. Id. P20. However, "unlike other types of invasion of privacy, intrusion does not involve as one of its essential elements the publication of the information obtained," but it ...


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