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08/26/93 ROBERT KING AND RAYMOND LAMBERT v.

August 26, 1993

ROBERT KING AND RAYMOND LAMBERT, APPELLANTS
v.
PATRICIA KIDD, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Nan R. Shuker, Trial Judge)

Before Ferren and King, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Senior Judge Gallagher.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : This case presents the question whether a jury reasonably could find that actions by two government agency supervisors, Robert King and Raymond Lambert, amounted to "extreme and outrageous conduct," justifying liability for intentional infliction of emotional distress on an agency employee, Patricia Kidd, who was sexually harassed by another employee, Melvin Carter, while working with Kidd under King's and Lambert's supervision. Plaintiff-appellee Kidd sued defendant-appellants King and Lambert, as well as employee Carter and the District of Columbia, for sexual harassment (statutory claim) and for intentional infliction of emotional distress (tort claim) arising out of Kidd's employment with the District of Columbia Department of Administrative Services (DAS). *fn1 After the trial court directed a verdict in favor of Lambert and the District on the sexual harassment claim, a jury found Carter liable under both the sexual harassment and the emotional distress claims, found appellants Lambert and King liable under the emotional distress claim, found in favor of the District on the emotional distress claim, and found in favor of King on the sexual harassment claim. The jury awarded Kidd $258,000 in compensatory damages, jointly and severally, against King and Lambert and co-defendant Carter. In addition, the jury awarded Kidd punitive damages in the sum of $30,000 against Carter, $10,000 against King, and $2,000 against Lambert. The only verdicts on appeal are those against King and Lambert on the tort claim of intentional infliction of emotional distress. *fn2

Appellants argue that: (1) the Superior Court did not have subject matter jurisdiction over Kidd's emotional distress tort claim because such an action is preempted by the Comprehensive Merit Personnel Act (CMPA); (2) as a matter of law, the actions of King and Lambert, respectively, did not constitute "extreme and outrageous" conduct necessary to hold them liable for intentional infliction of emotional distress; and (3) King and Lambert were held vicariously liable for Carter's actions, contrary to law, under the doctrine of respondeat superior. *fn3 In turn, Kidd contends that appellants are barred from raising: (1) the jurisdictional argument, because appellants failed to raise it in the trial court: (2) the sufficiency of the evidence argument, because appellants failed to raise it in a motion for directed verdict at the close of all the evidence; and (3) the respondeat superior argument, because appellants "consented to all jury instructions." Although we reach all three of appellants' arguments, we only agree with one: the evidence was insufficient as a matter of law to hold appellant Lambert liable for intentional infliction of emotional distress. We affirm in all other respects.

I. Statement of Facts

The jury considered the following evidence at the joint trial of appellants, Robert King and Raymond Lambert, and their co-defendant, Melvin Carter.

A. Background Concerning Co-Defendant Carter

In June 1987, Patricia Kidd began working for DAS as a DS-7 space management specialist. Kidd testified that approximately four weeks after she had begun work, Melvin Carter, her immediate supervisor, began making sexual comments to her. He told her that a lot of men were asking questions about her, that she could have her "pick," and that he was "interested" as well. She rebuffed him. Shortly thereafter Carter explained to Kidd how women "fucked their way to the top, that he had no problem with it." Thereafter, Carter began telling Kidd that he "had a lot of clout," he knew people throughout the District government, and he could make things "easy" for her. He began demanding that she run errands for him and told her how he controlled other female employees in the office through sex. He began calling her at home and once asked her when she would make love to him. When she informed him she had a boyfriend, he said "it didn't mean a motherfucking thing" and that he "wanted" her.

Around December 1987, Carter showed Kidd documents demonstrating that she was a probationary employee. He told her that, because of her probationary status, she could be fired at his recommendation and that no one would question anything. Kidd also testified that Carter had been creating difficulties for her at work by causing "friction," forbidding her to use a computer, and denying her access to clerical help. In December 1987, Carter telephoned Kidd at her work desk and ordered her to come to a nearby hotel. When she hung up, he called back and reminded her of her probationary status. She went to the hotel, and they had sex. Kidd's employment situation improved for a while but then Carter resumed pursuing her. When she rebuffed him, he began mistreating her again. When she attempted to apply for a position in another office, Carter came to her and told her that she would not get it, but that if she had sex with him again she would get a promotion. When she refused he became angry and loud, took away her computer and her clerical assistant, and told people to stay away from her.

In February 1988, Kidd complied with Carter's renewed request and had sex with Carter again. According to Kidd's testimony, Carter also forcibly sodomized her, rupturing her anal tissues and causing her to fear AIDS. Shortly thereafter, he arranged for her to get a promotion to a DS-9-11-12 position, starting as a DS-9, and told her she could get a promotion every year if she "acted right."

Kidd testified that Carter's continual harassment rendered her dysfunctional in her home life; she became hostile or distant to her children and felt humiliated and out of control. Kidd said that she believed Carter effectively had absolute power over her in her probationary year and that if she resisted him, she would be sacrificing her whole career.

After the February incident, Kidd refused to have sex with Carter again. At that point, however, Carter became "out of control" and "obsessed with sex." Because she would not go along with his wishes, Carter kept Kidd's work from her so that she was forced to "sneak in" to accomplish it, and he prohibited a computer analyst from working with her on her program. On May 18, 1988, Carter demanded sex but Kidd refused. Carter then summoned Kidd to his office, verbally admonished her, and gave her a letter of reprimand. In response, she called the personnel office, submitted a letter of complaint and then filed an "informal grievance." When Carter failed to respond satisfactorily, on May 19, 1988, Kidd filed a formal grievance with Carter's supervisor, appellant King. Neither the informal nor the formal grievance explicitly mentioned sexual misconduct, although the formal grievance complained of months of "stress, harassment and mistreatment" and stated that "supervisors should not be allowed to use their title to constrict, harness and abuse subordinate employees' rights and human rights." Kidd also advised King that she feared reprisals or retaliatory actions and that she felt "trapped."

Immediately after Kidd filed the grievance with King, Carter permanently took away her clerical assistant and put that clerical assistant in supervisory control over Kidd. Furthermore, he took Kidd off a computer program she had developed to manage the District's real property, excluded her from program meetings, and stopped giving her work. He also refused to let her serve on a women's committee for which she had been nominated. Kidd related all this to King in a supplementary grievance.

B. Involvement of Appellants King and Lambert

On July 21, 1988, Kidd received a letter of response from King rejecting her grievance in its entirety. The letter related that King had met with Carter, that Carter had tried to resolve office problems, and that Kidd had a negative attitude and wasn't a team member. The letter stated: "Mr. Carter has demonstrated to me that he is a fair and honest person who is very reliable and dependable and shows an exceptional cooperation and teamwork spirit."

Kidd next submitted a handwritten grievance to appellant Lambert, Director of DAS. Although Lambert did not recall ever seeing the grievance, Kidd testified that she submitted it to Sylvia Brown, Lambert's correspondence secretary, and that the document bore the signature of Ms. Brown. This grievance complained of oppressive treatment with reference to sexual harassment. She accused King of failing to protect against reprisals and to investigate allegations equitably, of granting an audience to Carter and not to her, and of displaying bias. She argued that King was concerned about protecting Carter's character and integrity, but not hers, and that he had not met his obligation to give her grievance full, impartial, and prompt consideration. Kidd also stated that she "would consider remaining in the position providing I receive your word in writing that I receive equitable treatment along with other male employees. That I not be harassed."

When Kidd returned from a two week sick leave, after filing her grievance with Lambert, she discovered that Carter had arranged for her to be transferred immediately to a different division in DAS under the supervision of Linton Cheers. Kidd testified that she acquiesced in the transfer because she felt she had no other choice. On September 1, 1988, Kidd filed with the Office of Human Rights (OHR) a sexual harassment complaint which, for the first time, explicitly charged that Carter had coerced her to have sex with him.

At some point in September or October of 1988, King summoned Kidd to a meeting. According to Kidd, King had learned of her OHR complaint against Carter and told her that Carter wanted her to sign a statement that her transfer was voluntary. King said this would help Carter with the OHR complaint. Kidd refused.

Kidd's testimony was corroborated by Linton Cheers, her new supervisor. Cheers testified that Kidd's transfer was supposed to be a reassignment," which gives an employee full credit for time in grade towards a promotion, in contrast with a "detail," which is a temporary transfer that does not give credit for time in grade. Cheers said that he had attended two meetings with King and Carter in which they refused to effect the reassignment. Although King called the meetings, he allowed Carter to run them. According to Cheers, during these meetings Carter made clear that he was "angry and bitter" and that he refused to do anything for Kidd because of her OHR complaint. Kidd was subsequently assigned to another "detail." Several months later, according to Kidd, King denied Kidd her promotion because of her "detail" status, which, he added, had been her choice.

II. Subject Matter Jurisdiction and Preemption

Appellants, relying on District of Columbia v. Thompson, 593 A.2d 621, 625-27 (D.C.) (Thompson II), affg in part and vacating in part 570 A.2d 277 (D.C. 1990) (Thompson I), cert. denied, 112 S. Ct. 380 (1991), argue that the Superior Court did not have subject matter jurisdiction over Kidd's claim for intentional infliction of emotional distress because the District of Columbia Government Comprehensive Merit Personnel Act (CMPA) preempts appellee's tort claim. See D.C. Code §§ 1-615.1 to -615.5 (CMPA Subchapter 15, "Performance Evaluation") and §§ 1-617.1 to -617.3 (CMPA Subchapter 17, "Adverse Actions") (1992 Repl.). They accordingly contend that Kidd's sole recourse -- for the emotional distress tort component of her litigation, in contrast to the statutory sexual harassment component -- was an administrative remedy under the CMPA. Kidd counters that a claim based on, or intertwined with, sexual harassment allegations is not covered under the CMPA; therefore, CMPA does not preempt her tort claim. Kidd also contends that appellants' jurisdictional argument is not properly before this court because appellants failed to raise it in the trial court.

A. Principles of Subject Matter Jurisdiction

Before analyzing the parties' arguments, we first review a few basic principles regarding subject matter jurisdiction. The Superior Court is "a court of general jurisdiction with the power to adjudicate any civil action at law or in equity involving local law." Andrade v. Jackson, 401 A.2d 990, 992 (D.C. 1979). Unless the legislature has divested the Superior Court of jurisdiction of a particular subject matter through enactment of legislation, the court has general jurisdiction under D.C. Code § 11-921 (1989) over common law claims for relief. In a somewhat different context this court has said: "Where claim has a rational nexus to a subject matter within the responsibility of a division of the Superior Court, that division may rely upon its general powers in accepting jurisdiction over the claim." Farmer v. Farmer, 526 A.2d 1365, 1369 (D.C. 1987); see Poe v. Noble, 525 A.2d 190, 195 (D.C. 1987).

Whether the Superior Court accepts jurisdiction over a claim is primarily a threshold matter, determined when the parties file their pleadings and pre-trial motions. Under our rules of civil procedure, a pleading which sets forth a claim for relief must contain "a short and plain statement of the grounds upon which the Court's jurisdiction depends." Super. Ct. Civ. R. 8 (a) (1). In turn, the opposing party may raise the defense of lack of subject matter jurisdiction by pleading or motion, id. at R. 12 (b) (1), although the Superior Court must dismiss the complaint at any point if it becomes apparent that it lacks subject matter jurisdiction, id. at R. 12 (h) (3). In this case appellee Kidd alleged jurisdiction under D.C. Code § 11-921, and there is nothing in the record to indicate appellants objected to that assertion.

The District of Columbia adheres to the traditional rule that a party's acquiescence in the trial court's exercise of subject matter jurisdiction (or a waiver of a defense of lack of subject matter jurisdiction), indicated by the failure to raise the defense before or during trial, does not preclude that party from raising the issue on appeal. *fn4 See Clay v. Faison, 583 A.2d 1388, 1390 n.2 (D.C. 1990); Farmer, 526 A.2d at 1368 n.3; In re An Inquiry into Allegations of Misconduct Against Juveniles Detained at and Committed at Cedar Knoll Inst., Dep't of Human Resources, 430 A.2d 1087, 1100 (D.C. 1981) (Ferren, J., Dissenting) (noting that majority properly addressed subject matter jurisdiction argument of appellant even though appellant failed to raise argument in trial court); see also In re Plummer, 608 A.2d 741, 748 n.3 (D.C. 1992) (Rogers, C.J., Concurring) (citing Clay and In re An Inquiry); id. at 751 (Schwelb, J., Concurring) (discussing same). Under the traditional rule, "'neither silence nor consent of the parties can confer jurisdiction.'" McCray v. McGee, 504 A.2d 1128, 1131 (D.C. 1986) (quoting 1425 F Street Corp. v. Jardin, 53 A.2d 278, 279 (D.C. 1947)). *fn5 Furthermore, as this court said long ago, "it is our duty to notice a lack of jurisdiction even though the parties may desire a decision on the merits." Yeager v. District of Columbia, 33 A.2d 629, 630 (D.C. 1943). *fn6

If we were to conclude that the Superior Court did not have jurisdiction to hear this case, then this court would be without jurisdiction on appeal. Council of School Officers v. Vaughn, 553 A.2d 1222, 1228 (D.C. 1989). In such an event, our only choice would be to "remand the case to the trial court with instructions to vacate its judgment as void and to dismiss the complaint for want of jurisdiction." Id.

B. CMPA Preemption of Appellee's Tort Claim

"Subject matter jurisdiction concerns the court's authority to adjudicate the type of controversy presented by the case under consideration." Appeal of A.H., 590 A.2d 123, 128 (D.C. 1991). The specific jurisdictional issue in this case is whether CMPA Subchapters 15 and 17 preempt Superior Court subject matter jurisdiction over Kidd's common law emotional distress claim. In Thompson II we noted, after reviewing the purpose and text of the CMPA, that the Council of the District of Columbia intended the Act to "address[] virtually every conceivable personnel issue among the District, its employees, and their unions -- with a reviewing role for the courts as a last resort, not a supplementary role for the courts as an alternative forum." 593 A.2d at 634 (emphasis added). We therefore concluded that, even though Subchapters 15 and 17 of the Act do not include an exclusivity provision, *fn7 "the Council intended CMPA to provide District employees with their exclusive remedies for claims arising out of employer conduct in handling personnel ratings, employee grievances, and adverse actions." Id. at 635.

We did not hold, however, that the CMPA preempts tort claims in general or all claims of intentional infliction of emotional distress in particular. Rather, the CMPA implicitly preempts a common law action only if the employee claims wrongful treatment and injury cognizable as a "personnel issue" under the Act's "performance ratings," "adverse actions," and employee "grievances provisions. Id.; see D.C. Code §§ 1-615.1 to -615.5 and §§ 1-617.1 to -617.3; cf. Newman v. District of Columbia, 518 A.2d 698, 705-06 (D.C. 1986) (intentional infliction of emotional distress claim grounded on alleged discrimination based on sexual orientation not preempted by exclusivity provision of CMPA disability compensation subchapter).

For example, the employee-plaintiff in Thompson sued for intentional infliction of emotional distress based on the following acts of her supervisor:

[her supervisor] approved her leave and then changed her status to absence without leave; he refused to consider her for promotion to the next grade level or to give her the computer test she asked for; he isolated her from the other employees; he requested statements from her doctor as to her limited hours; he wrote memoranda on her excessive leave; and he assaulted her and lied about it, resulting in her job loss.

Thompson II, 593 A.2d at 625 (quoting Thompson I, 570 A.2d at 290). After outlining and discussing Subchapters 15 and 17, see id. at 625-27, we concluded that the CMPA preempted Thompson's tort claim for intentional infliction of emotional distress because the above actions by her supervisor constituted personnel evaluation decisions and disciplinary actions fitting squarely within the text and purpose of the CMPA's administrative review and grievance procedures. See id. at 635. *fn8 In contrast, Thompson's claim for assault and battery was not covered by CMPA Suhchapters 15 and 17 and therefore was not preempted by the Act. See id. at 624 n.2, 635.

In this case, Kidd's claim for intentional infliction of emotional distress was premised on, and fundamentally related to, her allegations (supported by evidence adduced at trial) of sexual harassment and retaliation. Appellants acknowledge that claims of sex discrimination (including sexual harassment) are not addressable as "personnel issues" under CMPA Subchapters 15 and 17. They argue, however, that Kidd's tort claim against King and Lambert was really nothing more than a complaint about the classification of her August 1988 transfer and the failure of King and Lambert to respond properly to her grievances. Appellants' characterization of Kidd's claims trivializes her testimony at trial (which the jury believed, as indicated by its award of punitive damages against all three individual defendants) and ignores the link between the actions of Carter and appellants. Carter's actions constituted quid pro quo sexual harassment and were not grievable under the CMPA. *fn9 Kidd's allegations against King and Lambert were directly related to her complaints about Carter's discriminatory behavior. For example, at trial Kidd testified, and produced other supporting evidence, that King colluded with Carter in responding to her grievance against Carter (which included allegations that Carter had abused his position of authority in violation of Kidd's human rights), and that King participated in retaliating against Kidd after she had filed a formal sexual harassment complaint with the Office of Human Rights by changing Kidd's job "reassignment" to a "detail."

In fact, appellants' argument that the CMPA preempted Kidd's tort claim is no more than another way of saying they do not believe the sexual harassment and retaliation foundation of Kidd's emotional distress claim. That, however, is an argument about the sufficiency of the evidence, see infra Part III., not about subject matter jurisdiction.

After reviewing the purposes and text of the CMPA, see Thompson II, 593 A.2d at 625-27, we find no basis to conclude that CMPA's remedial system preempts Kidd's tort claim of intentional infliction of emotional distress based on acts of sexual harassment and subsequent retaliation. We note that the District of Columbia Personnel Regulation on "Adverse Actions and Grievances" expressly excludes from employee grievance procedures "an allegation of unlawful discrimination, or any other matter within the jurisdiction of the D.C. Office of Human Rights." D.C. Personnel Regulations § 1632.1 (o), 34 D.C. Reg. 1845, 1878 (1987). Although the jurisdictional issue appellants raise concerns Kidd's common law claim and not her related Title VII sex discrimination claim, we think the exclusion of sexual harassment claims from CMPA Subchapters 15 and 17 is persuasive evidence that appellee's tort claim -- fundamentally linked to her sexual harassment claim -- is not cognizable as a "personnel issue" under the Act's "performance ratings," "adverse actions," and employee "grievances" provisions. See D.C. Code §§ 1-615.1 to -615.5 and §§ 1-617.1 to -617.3. Kidd's claim for intentional infliction of emotional distress had an inherent "nexus" to her sexual harassment claim, "a subject matter within the responsibility of a division of the Superior Court," and it was therefore proper for the court to "rely upon its general powers in accepting jurisdiction over the claim." Farmer, 526 A.2d at 1369.

"Public employees do not lose their common law rights to sue for their injuries . . . neither those injuries nor their consequences trigger" the exclusive provisions of the CMPA. Newman, 518 A.2d at 705. Because there is no evidence that the Council of the District of Columbia intended to divest the Superior Court of its pre-existing jurisdiction to hear intentional infliction of emotional distress claims arising out of allegations of government workplace sexual harassment and subsequent retaliation, *fn10 we hold that the Superior Court had jurisdiction to hear both Kidd's sexual harassment claim and her interrelated or "pendent" tort claim. *fn11 Cf. Capitol Hill Hosp. v. District of Columbia State Health Planning & Dev. Agency, 600 A.2d 793, 799 (D.C. 1991) (court has subject matter jurisdiction if case is one the sovereign has empowered it to entertain); District of Columbia Employees' Comp. Appeals Bd. v. Henry, 516 A.2d 941, 944 (D.C. 1986) (Superior Court lacked subject matter jurisdiction to hear appeal from decision of Secretary of Labor because "contrary result would impermissibly defy the intent of Congress "). Accordingly, we now turn to appellants' substantive argument.

III. Sufficiency of the Evidence

Appellants argue that, as a matter of law, the evidence failed to show that either of them acted in a manner that was "extreme and outrageous" enough to expose them to liability for intentional infliction of emotional distress. They also contend that they were improperly held vicariously liable for Carter's conduct under a theory of respondeat superior. Kidd responds that appellants waived these arguments on appeal because appellants failed to preserve them in a motion for directed verdict at the close of all the evidence. Below, in Part A. we address Kidd's threshold waiver argument, in Part B. we address appellants' contention regarding vicarious liability, and in Part C. we address the sufficiency of the evidence issue.

A. Appellants' Alleged Failure to Move for Directed Verdict

Appellants moved for a judgment notwithstanding the verdict (j.n.o.v.), contending, among other things, that "defendants Lambert and King did not, as a matter of law, intentionally inflict emotional distress upon the plaintiff." Kidd opposed the motion, arguing, among other things, that appellants were precluded from moving for a j.n.o.v. because they had not moved for a directed verdict at the close of all evidence as required under Super. Ct. Civ. R. 50 (b). See Howard Univ. v. Best, 547 A.2d 144, 147 (D.C. 1988) (Best II); District of Columbia v. Hickey, 150 A.2d 463, 466 (D.C. 1959). In its order denying appellants' motion, the trial court agreed with Kidd's preclusion argument in a footnote but nonetheless reached the merits of the motion.

Our review of the transcript reveals that appellants did not make a precise motion for directed verdict at the close of the evidence. Nonetheless, we think appellants' counsel adequately preserved the issue of evidentiary sufficiency for appeal. During the court's colloquy with counsel, just before court and counsel finalized the jury instructions, defense counsel stated:

I am sorry Your Honor, I have one question about the intentional infliction of emotional distress. Under [ Howard Univ. v. Best, 484 A.2d 958, 985 (1984)] . . . it says, "It is for the trial court to determine[,] in the first instance[,] whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." . . . It seems to me the Court would have to make a finding --

At that point the court interrupted, saying:

I think the Court by submitting this to the jury has ruled, but if you would like me to rule, I would say as follows: If the plaintiffs story is to be believed, and I think the Court must make that finding based on the plaintiffs story, whether it was contradicted or not, it is clearly outrageous enough that you will find that the Court is also sending punitives to the jury as to Mr. Carter.

A few moments later, defense counsel asked for clarification:

: Has the Court determined that the conduct of Mr. Lambert and Mr. King was sufficiently outrageous as to become a question for the jury?

: No, no, but we are dealing with respondeat superior.

Whatever the merits of the trial court's ruling, see infra Part III.B., we conclude that defense counsel in effect made a motion for directed verdict on the intentional infliction of emotional distress claim with respect to both King and Lambert. Defense counsel cited Howard Univ. v. Best, 484 A.2d 958, 985 (D.C. 1984) (Best I), which holds that the trial Judge should decide first whether the plaintiff has made out a prima facie case before sending the case to the jury. See also Waldon v. Covington, 415 A.2d 1070, 1078 (D.C. 1980) (before sending case to jury, court must first determine whether plaintiff's evidence is minimally sufficient to meet elements of intentional infliction of emotional distress tort); RESTATEMENT (SECOND) OF TORTS § 46 cmt. h (1965) (same). The Best I opinion goes on to declare that "the case should be submitted to the jury if reasonable people could differ on whether the conduct is extreme and outrageous" [one of the requirements for making out a prima facie case]. 484 A.2d at 985. The obvious implication is that, if reasonable persons could only conclude that the defendant's conduct was not "extreme and outrageous," the trial court must direct a verdict in the defendant's favor.

In Best II we stated: "The failure to move for directed verdict precludes a party from questioning on appeal the sufficiency of the evidence." 547 A.2d at 147 (internal quotation marks omitted). We also observed, however, that there is a purpose behind that rule, as embodied within Super. Ct. Civ. R. 50 (b). Primarily, it "preserve the sufficiency of the evidence as a question of law" allowing the trial court, in considering a subsequent motion for j.n.o.v., to review "its decision not to direct a verdict rather than engage in a reexamination of the facts found by the jury." Best II, 547 A.2d at 148. In the present case, we think that defense counsel's citation to Best I and questions to the court fulfilled the preservation purpose of a timely motion for directed verdict. "In moving for a directed verdict, technical precision is not required." Id. (internal quotation marks omitted). Therefore, we conclude that appellants are not precluded from raising their sufficiency of the evidence arguments on appeal.

B. Respondeat Superior Theory of Liability

Appellants contend that the jury found them vicariously liable under a theory of respondeat superior, which by law could only apply to the District as the employer of the tortfeasor (Carter) and not to appellants as supervisory employees. *fn12 It is not clear from the transcript whether the trial court intended to send to the jury the tort claim against King and Lambert on both direct liability and vicarious liability (respondeat superior) theories. It does appear, however, that at one point the court said Kidd had made out a prima facie case against King and Lambert "under good old-fashioned respondeat superior." We agree with appellants -- and Kidd conceded during oral argument -- that as a matter of law only the employer, the District of Columbia, could be held liable for the tortious acts of one of its employees (Carter) against another (Kidd).See, e.g., Robertson v. Sichel, 127 U.S. 507, 32 L. Ed. 203, 8 S. Ct. 1286 (1888) (government supervisory employee cannot be held vicariously liable for acts of subordinates; plaintiff must prove supervisor was personally negligent in discharge of his or her own duties); Best I, 484 A.2d at 987; Eskridge v. Jackson, 401 A.2d 986, 989 (D.C. 1979); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §§ 69-70 (5th ed. 1984); STANDARDIZED CIVIL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA No. 6-1 (rev. ed. 1981) ("Vicarious Liability -- Basis"); cf. Hunter v. Countryside Ass'n for the Handicapped, Inc., 710 F. Supp. 233, 239 (N.D. Ill. 1989) (where plaintiff asserted Title VII claim as well as tort claims of assault, battery, and intentional infliction of emotional distress, court dismissed tort claims against employer because plaintiff failed to show tortfeasor's acts were committed in furtherance of employment).

However, our reading of the jury instructions, verdict form, and the evidence presented at trial compels us to conclude that the jury in fact considered each individual appellant's direct liability for his own allegedly tortious acts.

The trial court first instructed the jury on the elements of intentional infliction of emotional distress "across the board with all the four defendants" (Carter, King, Lambert, and the District). After instructing the jury on the elements of the sexual harassment claim under Title VII, the trial court stated that King could be held liable on the Title VII claim only if Kidd had proved the "additional element" of "respondeat superior," meaning "that Mr. King knew or should have known of the harassment in question and failed to take prompt remedial action." Despite the trial court's misuse of the term "respondeat superior," its statement of the standard of liability -- "that King knew or should have known of the harassment in question and failed to take prompt remedial action" -- indicates the court was applying a standard of direct liability attributable to King's own actions or inactions, not a standard of vicarious liability. Furthermore, the court read no respondeat superior charge after instructing the jury on the elements of Kidd's intentional infliction of emotional distress claim against King. It was only later, after finishing its Title VII instructions, that the court read a general instruction on respondeat superior:

An employer is responsible for the acts or omissions of an employee which were committed while the employee was furthering the employer's business. I use the term "furthering the employer's business." This term does not mean that the employer is responsible merely because . . . the accident occurred during working hours, or merely because the accident occurred . . . on the employer's premises or while the employer was using the employer's equipment. Rather it means the employee must be serving or furthering a business interest of the employer. The question is whether the employee at the time of the incident had any business-connected reason for the conduct at issue.

In this case it is admitted that the employee was engaged upon the business of the employer at the time of the incident. Therefore the employer is responsible for any acts or omissions of the employee, although the employer is entitled to the benefit of any defense which is available to the employee.

Without critiquing the specifics of that instruction, we find it correctly stated that only the "employer," i.e., the District of Columbia, could be held vicariously liable for its employees' acts. Although the court did not clarify for the jury who the "employer" was, as Kidd points out, appellants did not object to the instructions as given, nor did they offer any acceptable alternative. Furthermore, the jury verdict form appellants agreed to did not request the jurors to indicate a particular theory under which they held each individual appellant liable. " defendant who fails to request a special verdict form in a civil case will be barred on appeal from complaining that the jury may have relied on [an erroneous theory] when there was sufficient evidence to support another theory properly before the jury." Nimetz v. Cappadona 596 A.2d 603, 608 (D.C. 1991). Finally, our review of the evidence at trial demonstrates that Kidd presented evidence advancing a theory of direct liability for both King and Lambert.

Given all of the above circumstances, we conclude that, despite some confusion between trial counsel and the trial

court over the doctrine of respondeat superior, *fn13 the jury was clearly instructed to consider evidence of appellants' direct liability. We reject appellants' contention that the jury found them liable under a mistaken theory of respondeat superior.

C. "Extreme and Outrageous Conduct"

In reviewing the trial court's decision to submit Kidd's intentional infliction of emotional distress claim to the jury, we must view the evidence in the light most favorable to Kidd, giving her "the benefit of every rational inference therefrom." Sere v. Group Hospitalization, Inc., 443 A.2d 33, 38 (D.C.), cert. denied, 459 U.S. 912, 74 L. Ed. 2d 176, 103 S. Ct. 221 (1982). To succeed on her claim, Kidd had to show that appellants engaged in (1) "extreme and outrageous conduct" which (2) "intentionally or recklessly " (3) caused Kidd "severe emotional distress." Best I, 484 A.2d at 985 (quoting Sere, 443 A.2d at 37); see RESTATEMENT (SECOND) OF TORTS § 46. Appellants argue that "as a matter of law, King's and Lambert's conduct could be found by the jury to constitute the 'extreme' or 'outrageous' conduct required to make a party liable for intentional infliction of emotional distress." Thus, appellants only challenge the sufficiency of the evidence going to the first element of the tort, "extreme and outrageous conduct," and do not challenge the evidence with respect to the second and third elements. *fn14 "If reasonable people could differ on whether the conduct extreme and outrageous," the trial court properly submitted the issue to the jury. Best I, 484 A.2d at 985.

There are two primary components of "extreme and outrageous conduct" we must consider: (1) applicable contemporary community standards of offensiveness and decency, and (2) the specific context in which the conduct took place, for "in determining whether conduct is extreme or outrageous, it should not be considered in a sterile setting, detached from the surroundings in which it occurred." Harris v. Jones, 281 Md. 560, 380 A.2d 611, 615 (Md. 1977), cited with approval in Best I, 484 A.2d at 985. The "context" consists of the nature of the activity at issue, the relationship between the parties, and the particular environment in which the conduct took place.

The court, in determining whether the conduct is outrageous, should first consider the nature of the activity. "The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him [or her] actual or apparent authority over the other, or power to affect his [or her] interests." RESTATEMENT (SECOND) OF TORTS § 46 cmt. e. Courts carefully scrutinize a defendant's conduct "where the defendant is in a peculiar position to harass the plaintiff, and cause emotional distress." Harris, 380 A.2d at 615 (citing authorities); see Contreras v. Crown Zellerbach Corp., 88 Wash. 2d 735, 565 P.2d 1173, 1176 (Wash. 1977), cited with approval in Best I, 484 A.2d at 986. Furthermore, the "extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity." RESTATEMENT (SECOND) OF TORTS § 46 cmt. f.

As the RESTATEMENT indicates, what is extreme and outrageous depends in large measure on the prevailing norms of society:

Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his [or her] resentment against the actor, and lead him [or her] to exclaim, "Outrageous!"

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.

RESTATEMENT (SECOND) OF TORTS § 46 cmt. d. The tort of intentional infliction of emotional distress is therefore an evolutionary tort, because what was considered a "petty oppression," "trivial" or merely "inconsiderate and unkind" fifty years ago may be "extreme and outrageous" conduct under today's social standards and principles (or vice-versa). In general, "it is for the trier of fact to determine, taking into account changing social conditions and plaintiffs own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage." Contreras, 565 P.2d at 1177.

Beginning with the first decision in this jurisdiction that recognized the tort of intentional infliction of emotional distress, our courts have applied a balancing test in determining whether the alleged conduct violates prevailing social norms and is sufficiently outrageous to ensure that "the advantage to society of preventing such harm seems greater than the advantage of leaving ill-disposed persons free to seek their happiness in inflicting it." Clark v. Associated Retail Credit Men, 70 App. D.C. 183, 186, 105 F.2d 62, 65 (1939); accord Waldon, 415 A.2d at 1078. In Clark, the trial court had dismissed plaintiffs complaint alleging that the defendant had attempted to collect a debt from him by writing several threatening letters and engaging in a calculated course of conduct to take advantage of plaintiff's poor health. In ruling that the plaintiff had properly stated a claim for intentional infliction of mental distress, the United States Court of Appeals for the District of Columbia Circuit based its reasoning in part on the awareness that under the law "there a growing tendency to check offensive collection methods." 70 App. D.C. at 188, 105 F.2d at 67.

In Cantreras v. Crown Zellerbach, the trial court had dismissed the plaintiffs claim for relief which alleged Crown Zellerbach's employees and agents had subjected plaintiff, a Mexican-American, "to continuous humiliation and embarrassment by reason of racial jokes, slurs and comments" and, after plaintiffs wrongful discharge, had wrongfully accused him of stealing property, thereby preventing him from seeking and holding employment. 565 P.2d at 1174. In reversing the judgment of dismissal, the Washington Supreme Court rejected the defendant's contention that the plaintiff, because he was a truckdriver, should "have become accustomed to such abusive language." The court stated:

As we as a nation of immigrants become more aware of the need for pride in our diverse backgrounds, racial epithets which were once part of common usage may not now be looked upon as "mere insulting language. Changing sensitivity in society alters the acceptability of former terms.

Id. at 1177.

Similarly, six years ago, in a Title VII case, the Supreme Court of the United States recognized the change in the law of sex discrimination and changing social standards of proper conduct in the workplace. The Court's observations are useful in discerning what also would be outrageous conduct in a common law tort of intentional infliction of emotional distress. In Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986), the Court unanimously held that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." In doing so, the Court acknowledged that

"Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets."

Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)). The Court added the caveat that "for sexual harassment to be actionable [under Title VII], it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (internal quotation marks and brackets omitted). Two years before Vinson, this court recognized that a hostile work environment produced by sexual harassment can provide a factual basis for the kind of intentional tort action at issue here. We said that "women suffer sexual harassment in the workplace, based on outmoded sexual stereotypes and male domination of subordinate female employees," and we concluded that "creation of a hostile work environment by racial or sexual harassment may, upon sufficient evidence, constitute a prima facie case of intentional infliction of emotional distress." Best I, 484 A.2d at 986.

In the present case, Kidd did not allege that appellants had engaged in the type of gross quid pro quo harassment she proved Carter had committed against her. Rather, she alleged and attempted to prove that appellants knew -- on the basis of her grievances, including eventually the OHR complaint -- that she was complaining of Carter's sexual discrimination and intimidation; that she turned to appellants, as Carter's supervisors, to put a stop to his behavior; and that they were deliberately indifferent to her pleas for assistance, thereby frustrating her attempts to grieve to them as purportedly neutral administrators. Furthermore, with respect to appellant King, Kidd also alleged that he had actively worked with Carter in a biased manner to resolve the grievance she addressed to King, and that, after Kidd had filed a sexual harassment complaint with OHR, King had participated with Carter in a scheme to protect Carter and to retaliate against Kidd by impermissibly changing her "reassignment" status to a "detail."

In reviewing the decision of the trial court to submit Kidd's tort claim to the jury, we thus must answer the following question: given the context and nature of appellants' conduct -- as shown by the evidence at trial -- and considering that conduct in light of contemporary social norms, was the evidence as a matter of law sufficient to prove appellants' conduct was "extreme and outrageous"? With respect to appellant Lambert, we answer "no"; with respect to appellant King, we answer "yes."

1. Appellant Lambert

The jury heard the following evidence concerning Lambert's conduct: after King had rejected Kidd's grievance against Carter, Lambert failed to respond in any way to Kidd's handwritten grievance (complaining about Carter's harassment and the biased way King had handled Kidd's informal grievance) delivered to his office and received by his secretary; *fn15 he did not attend a department training session on detecting sexual harassment in the workplace; as director of the department he did not sponsor any training seminars on sexual harassment other than those required by OHR regulations; and he received a copy of Kidd's OHR sexual harassment complaint after he failed to respond to her handwritten grievance. Even viewing the evidence in the light most favorable to Kidd, we conclude that the foregoing acts do not establish a prima facie case of intentional infliction of emotional distress. Although the evidence might show Lambert neglected a duty, it is a type of neglect attributable to "employer-employee conflicts," Best I, 484 A.2d at 986, and thus as a matter of law was not "so extreme and outrageous as to permit recovery," id. at 985.

2. Appellant King

In assessing the trial court's decision to submit the question of King's liability for intentional infliction of emotional distress to the jury, this court must consider the evidence of King's conduct both before and after Kidd filed her sexual harassment complaint with OHR on September 1, 1988.

At the close of plaintiffs evidence, the trial court ruled on appellants' motion for directed verdict on the Title VII claim:

have a complaint, and even if we forget the sexual harassment, just harassment complaint of the magnitude that the plaintiff presented, and although it was not clear I would have to say that it was sexual in nature, I would have to say that if were really a concerned supervisor, could read the plaintiffs complaints [about Carter] as having an undertone of sexual issues, certainly worth exploring, and I believe that the plaintiffs testimony was that she was available to discuss it. never even talked to her. What he did instead was go back to the alleged perpetrator and . . . let the perpetrator respond to that [Carter was not] guilty, and [ ] then basically took the perpetrator's position . . .

As discussed above in Part II.B., Kidd could not use intra-agency grievance procedures to deal with her sexual harassment claim. See D.C. Personnel Regulations § 1632.1 (o), 34 D.C. Reg. at 1878. More specifically, Mirtis Coggins of the District's Personnel Office, with responsibility for matters relating to DAS at the time in question, testified that a grievance containing sexual harassment claims "should be remanded back to the employee," who should be "informed of the correct procedures to follow." She also explained that an employee with a sexual harassment complaint should "file first with the EEO counselor in the agency[, who] has 21 days to respond." After that, the employee "can go outside to the Office of Human Rights."

At trial Kidd stated her reasons for pursuing only the intra-agency grievance route at first instead of immediately filing a sexual harassment complaint: "I didn't want a confrontation. If I could have got this settled informally, I would have. I tried." On cross-examination, she added a reference to her fears of Carter to her explanation: "I'm saying the man threatened me. He told me where his clout was."

District Personnel Regulations § 1634.1 (a) directs agencies to "administer a grievance system in accordance with [the other regulations in] this chapter." 34 D.C. Reg. at 1880. Lambert testified that the previous director of DAS had established grievance procedures that "referred to" the D.C. Personnel Regulations. No one produced these apparently unpublished internal DAS directives in court. For the most part, however, Kidd's description of her actions in the spring and summer of 1988 accords with the procedures set out in D.C. Personnel Regulations §§ 1638 and 1639, 34 D.C. Reg. at 1882-83. These regulations provide the context for judging King's actions toward Kidd.

On April 22, 1988, Kidd wrote Carter a memo complaining of "office harassment," following up previous conversations. According to D.C. Personnel Regulations § 1638.2, an employee should begin the grievance process with an informal complaint, "either orally or in writing." Section 1638.1 requires that it "contain a full and detailed explanation of the dissatisfaction and the remedy sought." Under § 1638.3, the informal grievance "should normally be decided by the lowest level official with authority to grant the relief sought." In Kidd's case, that official was Carter. According to § 1638.4, Carter had twenty days to render a decision on the informal grievance. That date would have been May 12, 1988, but Carter did not respond. Instead he wrote Kidd a letter of direction, i.e., a reprimand (or "adverse action"), on May 18 after she walked out of his office and let the door slam. In Kidd's rebuttal to Carter's reprimand, she "told him that as a result of him not responding to informal grievance on office harassment that was going to go with a formal grievance to his supervisor for relief."

According to D.C. Personnel Regulations § 1639.1, an employee is "entitled to present a grievance under the formal procedure when the following criteria have been met:

(a) The employee has not received a decision under the informal grievance procedure within the time specified in § 1638.4; or the employee has been denied the relief sought under the informal grievance procedure as provided in § 1638.5; and

(b) The employee files the formal grievance within ten (10) days after expiration of the time for decision or receipt of notification of denial of the relief sought, as appropriate.

Carter's response (or failure to respond) satisfied requirement (a). Kidd complied with requirement (b) by filing her formal ...


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