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SHEPHERD v. ABC

June 13, 1994

MICHELE E. SHEPHERD, et al., Plaintiffs,
v.
AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This case comes before the court on plaintiffs' original and final proposed orders for relief and defendant's oppositions to both, and other responsive documents. Upon consideration of the proposed orders, the oppositions, and the entire record in this case, this court shall order that defendant ABC shall pay plaintiff Shepherd $ 125,000.00 in damages, shall pay plaintiff Graves $ 184,293.33 in damages, and shall desist from the discriminatory conduct against plaintiff Shepherd that was described in the complaint.

 I. BACKGROUND

 Plaintiff Michele Shepherd is a black woman who works as a staff artist at the American Broadcasting Companies, Inc.'s ("ABC") Washington, D.C. News Bureau. Her co-plaintiff, LaRue Graves, is a black male who was fired from his position as a freelance graphic arts designer at the ABC Washington News Bureau Graphics Department in 1985. Together they brought this action for racial and sexual workplace discrimination under the District of Columbia Human Rights Act, 2 D.C.C. §§ 1-2501 et seq. (1981) ("DCHRA"). They sued the American Broadcasting Companies, Inc.; Capital Cities/ABC, Inc.; their immediate supervisor Kenneth Dyball; and ABC Washington bureau chief George Watson.

 On April 15, 1992, this court granted plaintiffs a default judgment as a sanction against defendant's discovery misconduct. (Upon reconsideration in a memorandum opinion of September 3, 1993, this court modified certain elements of that holding, but the default judgment stands.) The sole issue now before the court is the size of plaintiffs' damage award.

 Shepherd and Graves both seek damages against all defendants, but for reasons described below (see infra Section II), they may only collect damages from defendant ABC. Plaintiffs have several claims against ABC: for compensation for emotional injury caused by defendant's discrimination, for harms caused by defendant's allegedly unlawful retaliation, for punitive damages, for injunctive relief, and for attorney's fees and costs. Each claim is analyzed in turn below.

 II. DEFENDANTS DYBALL, WATSON, and CAPITAL CITIES

 A. Dyball and Watson

 Plaintiffs' claims against defendants Dyball and Watson shall be dismissed for plaintiffs' failure to prosecute. The default judgments against both Dyball and Watson were vacated upon reconsideration in September, 1993. *fn1" Since then, plaintiffs have done nothing to prosecute their claims against these two defendants -- other than to improperly claim damages from them in their final proposed order for relief, filed several months after the vacating order. *fn2" Perhaps plaintiffs abandoned their claims against these two defendants because they feared that a jury -- reviewing plaintiffs' allegations and Dyball's and Watson's defenses -- might differ with the default judgment's determination that as a matter of law almost everything that plaintiffs have alleged is true. In any event, by failing to prosecute for over nine months after their default judgments were vacated, plaintiffs have clearly abandoned their claims against defendants Dyball and Watson.

 This dismissal as to defendants Dyball and Watson is without prejudice only if the default judgment against ABC is set aside. In that case alone may plaintiffs reinstate their claims against defendants Dyball and Watson. Otherwise, they may not. Accordingly, defendants Dyball and Watson shall not be held liable for any damages or injunctive relief in the order accompanying this memorandum opinion.

 B. Capital Cities

 The damages claims against defendant Capital Cities must be dismissed because Capital Cities is merely a shareholder of the corporate successor to defendant ABC. *fn3" A party seeking to claim damages from a shareholder for the wrongful acts of a corporation has the burden of showing "unity of interest and ownership." Vuitch v. Furr, 482 A.2d 811, 816 (D.C.App. 1984) (Rogers, J.). There is no precise test for determining whether a claimant has met this burden, but plaintiffs in this case -- who have presented no evidence at all on this point -- certainly have not. Accordingly, Capital Cities shall not be held liable for any damages in the order accompanying this memorandum opinion.

 III. DEFENDANT ABC

 Although a default judgment forces a defendant to concede liability, it does not force it to concede liability for the amount of damages that a plaintiff has claimed. See 10 Wright & Miller, Federal Practice and Procedure § 2688 at 450 (1983). The task now before this court is ascertaining the amount of damages plaintiffs are due from the sole remaining defendant, ABC.

 This task can be performed without an evidentiary hearing. Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that "if, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages, . . . the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States." *fn4" In this case, this court may resolve the damages claims on the papers alone, without wasting the judicial resources required of holding a live hearing on the issue. The record in this case is extremely thorough and contains volumes of detailed deposition testimony. The parties have painstakingly combed this testimony for relevant facts and have presented them well in memoranda for the court. Significantly, few of the issues resolved below hinge on witness credibility such that judging demeanor in live testimony would be a necessary adjunct to the sworn written testimony already before the court. The court is intimately familiar with the facts of this case, having presided over it since 1988. All of this makes the complete record a suitable substitute for live testimony and makes it possible for damages to be ascertained without the added litigation costs of a live hearing.

 A. Compensatory Damages

 By virtue of the default judgment against ABC, ABC is held to have violated the District of Columbia Human Rights Act. Concededly, the default judgment, which rendered judgment for plaintiffs because of defendant's misconduct in discovery, did not expressly rule on any of the allegations of discrimination underlying plaintiffs' damage claims. Nevertheless, "so long as the facts as painted by the complaint 'might. . . have been the case' they may not now be successfully controverted." *fn5" After default, allegations will be taken as true if they are "well-pleaded," that is, if they are not made "indefinite or erroneous by other allegations in the same complaint," not contradicted by "'indisputable facts' . . . which could not possibly be rebutted if the non-defaulting party were permitted a trial," not contrary to uncontested facts in the record, and provable by legitimate evidence. Hughes, 449 F.2d 51, 63.

 Plaintiffs' complaint states well-pleaded allegations of racial discrimination against Graves (Complaint at PP 27-41) and racial and sexual discrimination against Shepherd (Complaint at PP 9-25). The discrimination allegations are, of course, hotly disputed by defendant, but the time for such disputes is past. "There was a time for that and [the defaulted party] cannot elect to default and then defend on the merits. It cannot have its cake and eat it too." Hughes, 449 F.2d at 63-64.

 As victims of employment discrimination, plaintiffs are entitled under the D.C. Human Rights Act to "compensatory damages and other such remedies as may be appropriate," *fn6" which may include, among other things, backpay and reinstatement. *fn7" The court turns now to each plaintiffs' compensatory damages claims.

 1. Shepherd's Compensatory Damages Claim

 Shepherd claims $ 1,000,000 in compensatory damages for defendant's discrimination against her. *fn8" Her claim rests on her contention that defendant's racial and sexual discrimination caused her to suffer from post-traumatic stress disorder ("PTSD"). As discussed below, her PTSD claim is so implausible that as a matter of law it must be denied. Nevertheless, she is entitled to a more modest award for the mental distress that she clearly did suffer.

 a. PTSD

 PTSD claims may be denied as a matter of law if the underlying allegations, even if taken as true, simply could not have induced the trauma necessary to trigger PTSD. *fn9" Because Shepherd's claims do not rise to the trauma-inducing level, her PTSD claim must be denied.

 The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d rev. ed.) ("DSM-III-R") *fn10" defines PTSD as follows: *fn11"

 
The essential feature of this disorder is the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience (i.e., outside the range of such common experiences as simple bereavement, chronic illness, business losses, and marital conflict). The stressor producing this syndrome would be markedly distressing to almost anyone, and is usually experienced with intense fear, terror, and helplessness. . . .
 
The most common traumata involve either a serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence. In some cases the trauma may be learning about a serious threat or harm to a close friend or relative, e.g., that one's child has been kidnapped, tortured, or killed.
 
The trauma may be experienced alone (e.g., rape or assault) or in the company of groups of people (e.g., military combat). Stressors producing this disorder include natural disasters (e.g., floods, earthquakes), accidental disasters (e.g., car accidents with serious physical injury, airplane crashes, large fires, collapse of physical structures), or deliberately caused disasters (e.g., bombing, torture, death camps). Some stressors frequently produce the disorder (e.g., torture) and others produce it only occasionally (e.g., natural disasters or car accidents).

 Shepherd's traumata are simply not severe enough to meet this standard. Her psychiatrist, Dr. Hamlin, testified that the traumata in her case included some physical stressors -- including the explosive, drunken behavior of Dyball, her supervisor; his cursing; his tearing or burning of her work or his talking loudly in her face -- and some non-physical stressors -- including Dyball's giving others credit for her work, and his giving her the silent treatment. (Shepherd Aff. at P 25 (quoting Hamlin Depo. at 155) (Ex. A to Pls.' Proposed Order for Relief).) Shepherd herself attributes her PTSD to Dyball's practice of permitting and making racist and sexist jokes, cartoons, and remarks; the onerous schedule and inadequate facilities she had to work with; and the facts that she was forced to witness the burning of her work, endure unfounded criticism of her work, and undergo remedial training designed to humiliate her. (Pls.' Proposed Order for Relief at 10.) All these and other stressors created a "hostile, intimidating and discriminatory work environment" that triggered her PTSD. (Shep. Aff at P 13 (Ex.1 to Pls.' Proposed Order for Relief).)

 Even if all of these allegations are taken as true, Shepherd could not have suffered PTSD. None of her claimed traumata are the sort of "psychologically distressing event that is outside the range of usual human experience" that trigger PTSD. (DSM-III-R at § 309-89.) They did not trigger anything like the "intense fear, terror, and helplessness" associated with PTSD. Serious threats to life or limb like kidnapping, torture or murder may trigger PTSD. Ugly and inexcusable sexist and racist jokes and insults -- although deplorable (and, in this case, actionable and compensable) -- generally do not trigger PTSD. Shepherd has made no special showing that her case is exceptional.

 Further, the facts that she has since functioned well in her job under the very people she claims traumatized her and that she never sought psychiatric help *fn12" also mitigate against a finding of PTSD in her case. In sum, Shepherd need not have been traumatized to show racial or sexual discrimination under District of Columbia law, *fn13" but she must have been traumatized to show that she suffers post-traumatic stress. Accordingly, Shepherd's PTSD claim shall denied as a matter of law.

 b. Intentional Infliction of Emotional Distress

 Although Shepherd cannot show that defendant's discrimination traumatized her, she can show that defendant's acts intentionally caused her severe emotional distress. In order to make this showing, she must demonstrate that (1) defendant's extreme and outrageous conduct (2) intentionally or recklessly (3) caused her severe emotional distress. See, e.g., Abourezk v. New York Airline, Inc., 705 F. Supp. 656, 665 (D.D.C. 1989), aff'd, 283 U.S. App. D.C. 34, 895 F.2d 1456 (D.C. Cir. 1990); Green v. ABC, 647 F. Supp. 1359, 1362 (D.D.C. 1986). Of course, "mere employee-employer conflicts, even those marked by charges of sexual harassment, are not necessarily characterized by the degree of serious misconduct that gives rise to" the tort of intentional infliction of emotional distress. Green, 647 F. Supp. at 1362. "But a ...


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