that will survive a motion for summary judgment." Id. at 236.
In this case, Ms. Jackson claims that she received encouragement and promises of promotion to the exempt administrative assistant position from her supervisor, Michael Phillippe, in several conversations in late 1987 and early 1988. See Jackson Aff. PP 20-23. Ms. Jackson further claims that, notwithstanding Mr. Phillippe's assurances, Phillippe told her on April 1, 1988, that she would not be appointed to be his administrative assistant after all and that the position had been given to Ms. Britt. See id. P 24. Ms. Jackson alleges that, on that occasion, Phillippe specifically told her, "Marie, my hands are tied," meaning that the appointment of Ms. Britt was out of his control. See Jackson Dep. at 159. Ms. Jackson further alleges that Phillippe then told her that, during his college days, he had been called "nigger lover" for agreeing to accept a black roommate.
The Court is satisfied that these allegations, viewed in the light most favorable to the non-moving party, at least suggest that racial bias may have been a factor in the decision to appoint Ms. Britt to the administrative assistant position over Ms. Jackson. Mr. Phillippe's alleged "nigger lover" remark, apparently made by him without any prompting, supports an inference that Ms. Jackson's race may have been considered in filling the administrative assistant position. Moreover, taken together with Phillippe's alleged comment that his hands were tied, that remark could also be interpreted as providing some circumstantial evidence that others at ACS, if not Mr. Phillippe, were unwilling to promote Ms. Jackson to the administrative assistant position because she is black. Ms. Jackson recites several other instances of remarks allegedly made by co-workers and supervisors, and changes in her work environment after she filed an internal complaint in mid-April, 1988, which, if true, could be interpreted as evidence of racial animus directed toward her.
Under the summary judgment standards summarized above, the Court believes that this testimony, contained in Ms. Jackson's affidavit and deposition, sufficiently disputes ACS's proffered legitimate, non-discriminatory reason for not promoting her so as to survive summary judgment. It may be, as ACS argues, that Ms. Jackson had difficulties working with others, that she was overly sensitive to perceived slights, and that she was too quick to read racial animus into the remarks and actions of others. The Court is satisfied, however, that the persuasiveness of these assertions rests on questions of credibility that should not be determined at this stage in the litigation. See Jackson, 826 F.2d at 233.
2. The § 1981 Claim
Summary judgment on plaintiff's claim under 42 U.S.C. § 1981 should also be denied. That claim is to be evaluated under the standards for § 1981 actions articulated by the Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), which was the law in effect at the time plaintiff filed her complaint, rather than under the more generous provisions subsequently enacted by Congress in the Civil Rights Act of 1991, Pub. L. No. 102-166, § 101, codified at 42 U.S.C. § 1981. See Gersman v. Group Health Ass'n, Inc., 975 F.2d 886 (D.C. Cir. 1992) (holding that the 1991 amendments to § 1981 have no retroactive effect).
Nevertheless, even under Patterson's more restrictive view of the law, plaintiff's § 1981 claim survives summary judgment because she has raised a triable issue of material fact whether a promotion from her non-exempt position as an administrative secretary to the exempt position of administrative assistant "rises to the level of an opportunity for a new and distinct relation between the employee and the employer" so as to be actionable under this statute. Patterson, 491 U.S. at 185. Specifically, plaintiff has come forward with evidence that the work of an administrative assistant differed substantively from that of a secretary and involved far less direct supervision and more independent work so as to support the inference that the promotion sought by Ms. Jackson would have entailed a new and distinct relationship between her and ACS. See Jackson Dep. at 132, 169, 178; Phillippe Dep. at 88; Pl.'s Exh. 10.
3. The Claim of Intentional Infliction of Emotional Distress
The Court will grant summary judgment on plaintiff's supplemental claim for intentional infliction of emotional distress, although it does so on different grounds than those argued by defendants.
Under District of Columbia law, a claim for intentional infliction of emotional distress, in the absence of physical injury, requires the plaintiff to demonstrate 1) extreme and outrageous conduct by the defendant that 2) intentionally or recklessly 3) caused the plaintiff severe emotional distress. See Abourezk v. New York Airlines, Inc., 283 U.S. App. D.C. 34, 895 F.2d 1456, 1458 (D.C. Cir. 1990); Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.), cert. denied, 459 U.S. 912, 74 L. Ed. 2d 176, 103 S. Ct. 221 (1982). The D.C. Court of Appeals has recognized that, in certain cases, "actions which violate public policy may constitute outrageous conduct sufficient to state a cause of action for infliction of emotional distress." Howard Univ. v. Best, 484 A.2d 958, 986 (D.C. 1984) (citing Macey v. New York State Elec. and Gas Corp., 80 A.D.2d 669, , 436 N.Y.S.2d 389, 436 N.Y.S.2d 389, 391 (3d Dep't 1981)).
It is clear from her affidavit, deposition, and the deposition of her psychologist, that the allegedly outrageous behavior that Ms. Jackson contends caused her emotional distress consisted entirely of defendant's acts of discrimination. Courts in this jurisdiction have held in similar cases that dismissal of the intentional tort claim is warranted because the conduct and the injury complained of are subsumed by Title VII: "To the extent that plaintiff's claim results from a stressful work situation created by defendants' alleged acts of discrimination, it is subsumed within her discrimination claim." Green v. American Broadcasting Companies, Inc., 647 F. Supp. 1359, 1363 (D.D.C. 1986) (citing Stewart v. Thomas, 538 F. Supp. 891, 896 (D.D.C. 1982); see also Weiss v. International Bhd. of Elec. Workers, 729 F. Supp. 144, 147 (D.D.C. 1990) (dismissing an IIED claim, citing both Stewart, supra, and Green, supra, as authority for so doing). The Court agrees and will grant summary judgment to ACS on this count.
Accordingly, for the reasons stated above, the Court will GRANT defendant's Motion for Summary Judgment as to plaintiff's claim for intentional infliction of emotional distress, and DISMISS Count IV of her complaint. Summary judgment as to Counts I and II is DENIED.
Counsel for the parties shall attend a status conference at 9:00 a.m. on March 26, 1993, for the purpose of scheduling further proceedings in this case.
GEORGE H. REVERCOMB
UNITED STATES DISTRICT JUDGE