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STEWART v. THOMAS

May 6, 1982

PATSY J. STEWART, Plaintiff,
v.
CHAIRPERSON CLARENCE THOMAS,* Equal Employment Opportunity Commission, and EARL J. HARPER, Defendants



The opinion of the court was delivered by: GREEN

Before the Court is the motion to dismiss of defendant Earl J. Harper. In this action against Harper in his individual capacity and Clarence Thomas in his capacity as chairperson of the Equal Opportunity Employment Commission (EEOC), plaintiff alleges that she was subjected to verbal and physical sexual harassment and sex discrimination while she was employed as a legal clerk in the litigation department of the EEOC. Plaintiff charges the Commission with sex discrimination in violation of § 717 of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16(a). Plaintiff's claims against defendant Harper are founded, according to the complaint, on the common law theories of assault, battery, "outrage", and intentional infliction of emotional distress.

 Plaintiff asserts that from March, 1979 to May, 1980 defendant Harper made periodic sexual advances to her at work and that his unwelcomed conduct included touching her in a sexual manner, caressing her body, attempting to kiss her and verbally pressuring her for sexual relations. She claims that the defendant intentionally created an extremely stressful work situation for her and that her refusal to comply with his demands caused him to place her on leave without pay status, assign her unnecessary work assignments, charge her with leave she had never taken, and inaccurately and unfavorably evaluate her work performance.

 Defendant Harper moves to dismiss the action against him in his individual and official capacities on the grounds that 1) no tort of outrage exists in the District of Columbia, 2) plaintiff has failed to state a cause of action for intentional infliction of emotional distress, 3) the exclusive remedies for plaintiff's complaints lie under Title VII, and 4) the plaintiff's claims are barred by the statute of limitations. Plaintiff contests each of these proposed grounds for dismissal. *fn1"

 1. Plaintiff's Claim of Outrage

 The fact that the District of Columbia has never recognized a tort labelled "outrage" does not mean that there is no such tort, but in the instant case this cause of action is asserted alongside a separate claim for intentional infliction of emotional distress. Neither the Restatement Second of Torts nor any of the cases to which either party refers distinguishes between these torts. The court agrees with the defendant's position that "outrage" is but another name for intentional infliction of emotional distress. The plaintiff's claim of outrage shall be stricken as redundant, pursuant to Fed. R. Civ. P. 12(f).

 2. Plaintiff's Claim for Intentional Infliction of Emotional Distress

 The defendant contends that the plaintiff has failed to state a cause of action for intentional infliction of emotional distress, see Reply to Plaintiff's Opposition to Defendant Harper's Motion to Dismiss at 9, and submits that the acts allegedly committed by him do not rise to the level of outrageousness needed to establish a claim for the tort.

 The seminal case in this jurisdiction states that

 
One who, without just cause or excuse, and beyond all the bounds of decency, purposely causes a disturbance of another's mental and emotional tranquility of so acute a nature that harmful physical consequences might be not unlikely to result, is subject to liability in damages for such mental and emotional disturbance even though no demonstrable physical consequences actually ensue.

 Clark v. Associated Retail Credit Men of Washington, D.C., 70 App. D.C. 183, 105 F.2d 62, 65 (D.C. Cir. 1939).

 This liability "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities;" it is imposed only when the conduct goes "beyond all possible bounds of decency and [is] regarded as atrocious and utterly intolerable in a civilized community." Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. App. 1980); see also Rogers v. Loews L'Enfant Plaza Hotel, 526 F. Supp. 523, 530 (D.D.C. 1981). This Court applied the test above to a recent case in which en employee alleged that she had been subjected to insulting and demeaning remarks, abusive language and sexually-motivated advances from her direct supervisor over a period of two months. The Court found that the plaintiff had "clearly alleged conditions and circumstances which are beyond mere insults, indignities and petty oppressions and which, if proved, could be construed as outrageous." Rogers v. Loews L'Enfant Plaza Hotel, 526 F. Supp. 523, 531 (D.D.C. 1981). The plaintiff in this case alleges sexual harassment at least as blatant and offensive as that endured by the plaintiff in Rogers. It is clear that the facts she alleges present a prima facie case of intentional infliction of emotional distress.

 3. Availability of Tort Remedies

 In support of his motion for dismissal of the actions against him, the defendant further argues that Title VII provides the exclusive remedy for all of plaintiff's claims arising from this set of alleged facts and that the only proper defendant is the EEOC. He bases his argument on the holding of Brown v. General Services Administration, et al., 425 U.S. 820, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976) as ...


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