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August 18, 1994

JOYCE WEBB, Plaintiff,
ERIAS HYMAN, et al., Defendants.

The opinion of the court was delivered by: CHARLES R. RICHEY


 A four-day jury trial in this Court resulted in a jury verdict on March 21, 1994 in favor of Plaintiff Joyce Webb on her claims of (1) sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. as amended by the Civil Rights Act of 1990, and (2) the common-law tort of intentional infliction of emotional distress. Prior to trial and pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, the Plaintiff elected to proceed on these two claims, as she and her able counsel represented to the Court that they were her strongest claims upon which relief was sought. The Jury of ten returned a Verdict totalling $ 300,000.00 in favor of the Plaintiff, awarding $ 75,000.00 in damages against Defendant Edward Paylor and $ 225,000.00 against Defendant District of Columbia.


 Ms. Joyce Webb, the Plaintiff in the above-captioned case, originally filed suit on August 30, 1993. As set forth in her First Amended Complaint, filed on September 13, 1993, she names as Defendants the District of Columbia and certain officials in the District of Columbia Department of Corrections in their official capacity (collectively "Defendant District of Columbia" or "the District"), as well as Mr. Edward Paylor, both individually and in his capacity as Chief of the Records Office of the District of Columbia Department of Corrections, Central Detention Facility. She brings this action on the allegation that as a Correctional Officer in the D.C. Department of Corrections, she was subjected to outrageous and illegal behavior by her supervisor and the District of Columbia. More specifically, Ms. Webb raises seven causes of action in her First Amended Complaint: (1) Deprivation of Equal Protection of the Law Based on Sex -- Quid Pro Quo Sexual Demands As A Condition of Employment, pursuant to 42 U.S.C. § 1983; (2) Deprivation of Equal Protection of the Law Based on Sex Maintenance of a Hostile Working Environment, pursuant to 42 U.S.C. § 1983; (3) Deprivation of First Amendment Rights; (4) Gender Discrimination by Sexual Harassment, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (5) Assault & Battery; (6) Intentional Infliction of Emotional Distress; and (7) Negligent Supervision and Selection of Officials.

 At a status conference on December 10, 1993, held by the Court pursuant to Rule 16 of the Federal Rules of Civil Procedure, the Court instructed the Plaintiff to notify the Court of her two strongest claims. On January 11, 1994, in response to this Order, the Plaintiff filed a Notice designating her two strongest claims for damages which she believed should take priority for a jury trial. In the interests of justice, with the consent of all counsel, and pursuant to Fed.R.Civ.P. 42(b), on February 17, 1994, the Court ordered that this action would proceed to trial on these two claims, and separated out all other claims. Accordingly, the Court submitted to the Jury the following issue, with respect to each Defendant: (1) whether the Plaintiff has proved, by a preponderance of the evidence, each element of her claim of sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended in 1991, on the basis of (a) quid pro quo sexual harassment; (b) creation of a hostile or abusive work environment; and (c) retaliation; (2) whether the Plaintiff has proved, by a preponderance of the evidence, each element of her claim for Intentional Infliction of Emotional Distress.

 On March 24, 1994, the Court vacated its Judgment on the Verdict against Edward Paylor, to the extent that the Judgment was based on the Jury's response to the Title VII claim against that Defendant individually. Because the parties' counsel had failed to bring to the Court's attention that the Plaintiff had no cognizable claim on Title VII against the individual Defendant Edward Paylor, the Court issued its Vacatur Order in light of the fact that Title VII only imposes liability upon "employers." 42 U.S.C. §§ 2000e-2, 2000e(b).


 Both Defendants move the Court to enter judgment as a matter of law pursuant to Fed.R.Civ.P. 50. Under this rule, where a party has been fully heard on a given issue and "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party . . . ." Fed.R.Civ.P. 50(a)(1). The United States Court of Appeals for the District of Columbia Circuit has provided firm guidance in following this rule:

An entry of judgment as a matter of law is warranted only if "the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men [and women] could not disagree on the verdict." Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1227 (D.C. Cir. 1984). In making that determination, a court may not assess the credibility of witnesses or weigh the evidence.

 Hayman v. National Academy of Sciences, 23 F.3d 535, 537 (D.C. Cir. 1994) (citations omitted). Due to public policy concerns, entry of judgment as a matter of law is the exception, and not the rule. "Because a judgment as a matter of law intrudes upon the rightful province of the jury, it is highly disfavored." Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994); see also Howard University v. Baten, 632 A.2d 389 (D.C. 1993) (stating that a judgment notwithstanding the verdict is not to be entered routinely, but "is proper only in 'extreme' cases, in which no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party") (citations omitted).


 Both Defendants argue that the Comprehensive Merit Personnel Act ("CMPA") preempts the Plaintiff's claim for intentional infliction of emotional distress. According to the Defendants, the remedial scheme of the CMPA precludes the Plaintiff from bringing a civil action for the same claims, and therefore, this Court may not hear her tort claim. However, finding King v. Kidd, 640 A.2d 656 (D.C. 1993) to be controlling, the Court must hold that the CMPA does not bar the Plaintiff from bringing her claim for intentional infliction of emotional distress, because that claim is fundamentally related to her claims of sexual harassment and retaliation.

 As the cornerstone of their argument, the Defendants rely on District of Columbia v. Thompson, 593 A.2d 621 (D.C. 1991) (Thompson II), aff'g in part and vacating in part 570 A.2d 277 (D.C. 1990) (Thompson I), cert. denied, 112 S. Ct. 380, 116 L. Ed. 2d 331 (1991), for the proposition that Webb is barred by the CMPA's remedial scheme. Thompson II precluded a District employee from suing the District and her supervisor for certain torts. After reviewing the goals and language of the CMPA, the District of Columbia Court of Appeals in Thompson II stated that the Council of the District of Columbia intended that 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." Id. at 634.

 The Court must reject the Defendants' arguments because the District of Columbia Court of Appeals' recent decision in Kidd limits Thompson II, and definitively states that the CMPA does not bar a claim for intentional infliction of emotional distress when that claim is fundamentally linked to charges of sexual harassment and retaliation. Like the case at hand, Kidd found that "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," Kidd, 640 A.2d at 663 (emphasis added), and concluded that there was no CMPA preemption. That Court went on to state:

After reviewing the purposes and text of the CMPA, . . . 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. . . . 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. . . . 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."

 Id. at 664 (citations omitted). In light of the above approach by the highest appellate court in the District charged with responsibility for interpreting local law, this Court is not persuaded by the District's attempt to distinguish Kidd. Regardless of whom the Defendant may be, a tort claim fundamentally linked to a sexual harassment claim is more than a mere "personnel issue" under the CMPA, and therefore is not barred under that Act.

 Not only is Thompson II outdated by Kidd, but Thompson II is also distinguishable for other reasons. For example, while Thompson II found that an employer's actions of refusing to consider an employee for promotion, or isolating her from other employees, were preempted by the CMPA, that Court ruled that Thompson's claims for assault and battery were not covered by the CMPA, and therefore not preempted. Moreover, Thompson II is also distinguishable because that case did not involve the intertwining of intentional infliction of emotional distress with Title VII sex discrimination.

 Similarly, the Court is not persuaded by Paylor's argument that the Workers' Compensation Act ("WCA"), D.C. Code § 36-301 et seq., preempts Webb's claim. Mason v. District of Columbia, 395 A.2d 399, 403 (D.C. 1978), held that common-law tort claims such as assault and battery are not barred by the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8101, et seq. Extending this holding, Coleman v. American Broadcasting Companies, Civ. Action No. 84-1594, 1985 WL 365 (D.D.C. June 18, 1985) (Parker, J.) rejected the defendants' contention that the WCA precludes common law tort recovery, and the late Judge Barrington D. Parker explained that Mason

completely blunts and disposes of such argument. . . . Likewise, Ms. Coleman's allegations of assault, battery, defamation, and intentional infliction of emotional distress, all resulting from alleged sexual harassment, are not the sort of claims covered by the D.C. Workers' Compensation Act.
Since Ms. Coleman's common law tort claims are so inextricably linked to her sexual harassment claim, a cause of action not covered by the Act, plaintiff's right to recovery for such torts should not be confined exclusively to the Workers' Compensation Act.

 Coleman at *4 (citations omitted) (footnote omitted) (emphasis added). Thus, because Coleman is applicable to the facts at hand, there is no statutory bar to the Plaintiff bringing her tort claim before this Court.


 In making their Motions, the Defendants list a series of arguments which they believe justify the entry of a judgment notwithstanding the verdict. However, because all the inferences from the evidence are not so one-sided that reasonable individuals could not arrive at the Verdict reached by the jurors in this case, the Court must affirm its entry of that Verdict.


 To succeed on her tort claim, Webb had to show that the Defendants engaged in (1) "extreme and outrageous conduct" which (2) "intentionally or recklessly" (3) caused the Plaintiff "severe emotional distress." Kidd, 640 A.2d at 667-68 (citations omitted). Defendant Paylor argues that no reasonable jury could conclude that he intentionally inflicted emotional distress on the Plaintiff, because there was no evidence of conduct rising to the level of being "outrageous," and even if there were, that conduct is too remote from any emotional trauma to establish any causation. However, the Court notes that the record contains testimony of conduct that reasonable individuals could find outrageous, as well as evidence that the Plaintiff's trauma arose as a consequence of this conduct.

 Despite Paylor's attempt to downplay his behavior, there was sufficient testimony from witnesses describing his outrageous conduct. The District of Columbia Court of Appeals has provided considerable guidance for the review of this element of the common law tort claim:

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 . . .
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.

 Id. at 668. Ms. Webb's testimony on its own is sufficient to show this outrageousness, as she testified to repeated sexual assaults and retaliatory tactics by Paylor, her supervisor, which was known or should have been known by the Defendant District of Columbia. For example, she told the Jury that on June 20, 1992, Paylor locked her into a strip search room, forcibly kissing her and sticking his tongue in her mouth. In addition, she testified that Paylor fondled her, made a series of harassing phone calls, and, when she refused his advances, changed her work schedule and falsely accused her of stealing inmate property. In light of testimony from Ms. Webb, Ms. Teresa Washington, and others, as to Paylor's misuse of his supervisory powers, as to transgression of departmental rules on leave, as to false accusations, and by virtue of other unacceptable behavior, there is no question that a jury of reasonable people could find Paylor's behavior outrageous.

 The Court also rejects Paylor's assertion that his acts could not possibly have constituted outrageous conduct leading to severe emotional disturbance, on the theory that any threats occurred during 1992, and therefore did not cause the trauma which led her to leave work in May, 1993. First, Ms. Webb stated at trial that there was a course of harassing and discriminatory conduct from June, 1992 through May of 1993. Merely because the most offensive behavior subsided somewhat after the latter portion of 1992 does not prevent a jury from finding a continuing course of conduct.

 Second, even if Paylor had not mistreated Webb in 1993, there was sufficient opinion testimony to connect Paylor's outrageous behavior in 1992 with Webb's breakdown in 1993. In reference to sexual abuse by Ms. Webb's father, testimony from Dr. John Breeskin, Ms. Webb's psychologist, included the following:

Once she had overcome her initial reluctance to bring up this painful aspect of her past, it became clear to me, and it is my opinion to a reasonable degree of psychological certainty, that her supervisor's sexually abusive conduct had tapped in to deeply repressed emotions about her childhood abuse. Although Ms. Webb had previously confronted many significant stressors in her life successfully, it was the re-exposure to unwanted sexual demands by a person with authority over her that destroyed the coping mechanisms that she had constructed over the years, and caused her to react so severely to the harassment at this time.

 Direct Testimony of John Breeskin, Ph.D. at 4-5 (emphasis added). Dr. Breeskin went on to testify that he had diagnosed Ms. Webb as suffering from Post-traumatic stress disorder ("PTSD"), and that, while PTSD's are based on "traumatic events" which may be cumulative, Paylor's repeated sexual advances constituted a "traumatic event" in Dr. Breeskin's PTSD diagnosis. Dr. Breeskin's explanation that her PTSD culminated in a psychosomatic rash and emotional trauma, therefore, adequately supports a claim for emotional distress.

 A variety of other testimony further supports the Plaintiff's claim of trauma induced by Paylor which caused the Plaintiff to be emotionally distressed. Even one of the District's own witnesses, forensic psychiatrist Carol C. Kleinman, Ph.D., provided evidence of this causation. After interviewing the Plaintiff and reviewing a variety of medical and legal documents, Dr. Kleinman stated that Joyce Webb has been in a great deal of distress, and that Ms. Webb's perception of harassment caused that stress. More specifically, while the events causing distress were cumulative, according to Dr. Kleinman, they included sexual advances toward her by her supervisors; the fact that she was denied leaved to which she felt entitled; and the fact that her supervisor had asked her to come to his house and talked to her about oral sex. In light of these statements, including Dr. Kleinman's acknowledgment that it is possible that Ms. Webb's perception of harassment is accurate, and all inferences that can reasonably be drawn therefrom, a jury determination that Paylor's behavior caused Webb's injury should not be cast aside.

 Other lay testimony and evidence provide even more support for the Plaintiff's claim that she was traumatized by Paylor through various means of harassment. The Plaintiff submitted evidence indicating that Paylor insisted that Ms. Webb's record be marked as "AWOL," despite other officers' statements that she had leave available. In fact, there was evidence before the Jury that Paylor reversed authorization for leave which had originally been granted due to illness. Additionally, the Plaintiff's fiance testified that he perceived distress symptoms starting in the fall of 1992, which worsened through the spring of 1993. There was also sufficient evidence regarding her supervisor's efforts to silence her complaints and get back at her for refusing his solicitations. Reasonable individuals may well be offended by the retaliatory conduct in Paylor's own testimony, which revealed that he violated the legal mandate to process her compensation paperwork within five days by taking it home with him, thus knowingly impairing an injured woman's rights for over two months.


 The District argues that it is entitled to judgment as a matter of law because there was insufficient evidence produced at trial to sustain the verdict of quid pro quo sexual harassment. In support of this argument, the District puts forth its version of legitimate, nondiscriminatory reasons for nine claims of quid pro quo harassment which, according to the District, constitutes the Plaintiff's case, and for which the Plaintiff has not submitted sufficient evidence to show that these reasons are pretextual. Because the District mischaracterizes the basis of the Plaintiff's case, and because the Plaintiff proffered sufficient evidence to convince a reasonable jury of pretext, the Court must reject the District's argument.

 Under Title VII, an employer may not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the Supreme Court first established its system of applying this statute by allocating the order of presentation of proof and the burden of production in Title VII discrimination cases. This burden-shifting approach has been refined over the years, most notably in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) and, more recently, in St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).

 By a preponderance of the evidence, a plaintiff must first make out a prima facie case for relief by proving

(1) that the employee was a member of a protected class; (2) that the employee was subjected to unwelcomed sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to the unwelcomed advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and (5) the existence of [employer] liability.

 Highlander v. K.F.C. National Management Co., 805 F.2d 644, 648 (6th Cir. 1986). Knowledge of employment decisions based on impermissible sexual factors is imputed to the employer, and the employer in a quid pro quo sexual harassment action is held strictly liable for the conduct of supervisory employees. Id. at 648-49. Upon the establishment of a prima facie case, the employer has the burden to "articulate some legitimate, nondiscriminatory reason" for the challenged action. McDonnell Douglas, 411 U.S. at 802.

 In St. Mary's v. Hicks, Justice Scalia clarified the status of a discrimination action where a defendant has properly articulated a legitimate basis for an action in dispute:

If . . . the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework -- with its presumptions and burdens -- is no longer relevant. . . . The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture. The defendant's "production" (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven "that the defendant intentionally discriminated against [her]" because of [her gender].

 St. Mary's v. Hicks, 113 S. Ct. at 2749 (citations omitted). Significantly, the Supreme Court emphasized that "although the McDonnell Douglas presumption shifts the burden of production to the defendant, 'the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Id. at 2747 (citations omitted).

 At trial, the Plaintiff presented a litany of adverse employment practices. According to the District, these actions all had legitimate, nondiscriminatory bases, and the Jury's finding of quid pro quo discrimination against the District was without sufficient support. However, this argument must fail, because a reasonable jury may find that these adverse employment actions resulted from her denial of Paylor's insistent and coercive requests for sexual favors.

 In the case before the Court, sufficient evidence was presented to the Jury which would allow reasonable people to find that the supposedly legitimate reasons for adverse employment actions were pretextual. In fact, Ms. Webb's testimony alone gives rise to a prima facie finding of quid pro quo harassment, and further provides significant direct and circumstantial support for a finding that the District's attempted justifications are pretextual. In other words, assuming arguendo that the Defendants have successfully met the burden of production in explaining Paylor's adverse actions for quid pro quo discrimination, the Plaintiff has presented sufficient evidence that he intentionally discriminated against her.

 Taken by itself, Ms. Webb's testimony demonstrates an adequate evidentiary basis for a finding of intentional sex discrimination. According to the Plaintiff, she dated Edward Paylor several times in the beginning of 1982, when she first started to work at the D.C. Department of Corrections. She stopped dating him after February, 1982, and although they parted on good terms, she had no direct contact with him for 10 years. Over the next decade, she worked in different areas of the Department, and while she did receive notices regarding improper use of leave, she had also been promoted and selected as "Officer of the Month." She also testified that she had drug problems and underwent drug treatment while employed at the Department, but she continued to receive satisfactory ratings.

 The Plaintiff testified that Defendant Paylor called her in June, 1992, saying that he had heard she was having problems with her present supervisor, and offered to transfer her to Female Receiving and Discharge ("Female R&D") under his supervision. Female R&D processes inmates entering and leaving the D.C. Jail, logging their movements and handling their property. Paylor informed Webb that the job was at the same rate of pay, but that she would be able to earn "night differential" and "Sunday premium" pay, and that she would not have a problem with days off.

 According to Webb, on her first day after her new assignment, Paylor told her that leave would not be a problem as long as her shift was covered. He then asked about their prior relationship, and indicated he was interested in resuming it. After she told him it was over, he asked if she had a boyfriend, to which she replied affirmatively and stated that she needed to move on. Paylor said "Okay, we'll see, Webb," wrote down his home, car phone and beeper numbers, and told her not to forget ...

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