allegedly touched Plaintiff in a sexually offensive manner while she was on duty. (Nelson-Cole Dep. at 314).
In sum, because the Court cannot find that the Defendants are precluded from liability as a matter of law, Defendants are not entitled to summary judgment regarding the Title VII claims alleged against Defendant Borg-Warner.
III. PLAINTIFF'S CLAIM OF "CONSTRUCTIVE DISCHARGE" UNDER TITLE VII SHALL NOT BE DISMISSED.
Count three of Plaintiff's complaint alleges that she was constructively discharged in violation of Title VII.
A finding of constructive discharge in contravention of Title VII requires proof that the employer made the employees' working conditions intolerable and drove the employee to resign involuntarily. Clark v. Marsh, 214 U.S. App. D.C. 350, 665 F.2d 1168, 1173 (D.C. Cir. 1981) (citation omitted). To satisfy this standard, there must be proof of "aggravating factors." Id. at 1174. Upon review of the facts of this case, the Court concludes that there is a genuine factual dispute precluding an award of summary judgment on this issue.
The Plaintiff alleges that after she filed a charge of discrimination with the EEOC, she suffered from retaliation by the Defendants. Specifically, Plaintiff alleges that she was harassed by her supervisors and coworkers after she complained of discrimination. (Nelson-Cole Dep. at 537-38, 692). In fact, Plaintiff even purportedly received a threatening phone call. Id. These facts may lead a jury to conclude that aggravating circumstances existed so as to cause Plaintiff to be constructively discharged. Accordingly, summary judgment with resect to the constructive discharge claim shall be denied.
IV. BECAUSE THERE IS A GENUINE DISPUTE OVER MATERIAL FACTS, DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF WHETHER PLAINTIFF IS ENTITLED TO BACK PAY.
The Defendants contend that because the Plaintiff was offered a position equivalent to her previous job, she is not entitled to back pay. (Defs.' Mot. at 22). The Plaintiff disputes this contention.
Under Title VII, a claimant has a duty to mitigate damages. 42 U.S.C. § 2000e-5(g). The Supreme Court has explained that a claimant "forfeits her right to back pay if she refuses a job substantially equivalent to the one she was denied." Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982). In this case, however, because there is a factual dispute as to whether the Plaintiff was offered a substantially equivalent position, summary judgment is not appropriate.
Plaintiff contends that the Defendants were unable to identify any of the positions, the locations, positions, or work hours available to the Plaintiff when the alleged job offer was made. (Dep. of Thomas T. Parrish, Defendant Borg-Warner designee, at 5, 9). According to the Plaintiff, this shows that she was not offered an "equivalent position." In contrast, the Defendants contend that Plaintiff was offered an equivalent position by Mr. Wali. (Defs.' Mot. for Summ. J. at 22). Because there is a genuine dispute over this issue, summary judgment shall not be awarded. See Fed. R. Civ. P. 56.
V. SUMMARY JUDGMENT REGARDING PLAINTIFF'S CLAIM AGAINST DEFENDANT CAPTAIN GODETTE UNDER THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT SHALL BE GRANTED.
Defendants claim that with respect to the claims against Captain Godette arising under the D.C. Human Rights Act, Plaintiff's claims are time barred. The Court agrees.
Under the D.C. Human Right Act, a party must file a claim within one year following the cessation of the discrimination. D.C. Code § 1-2544; Ravinskas v. Karalekas, 741 F. Supp. 978, 979 (D.D.C. 1990). In this case, the Court concludes that Plaintiff has failed to meet the one year time requirement.
Plaintiff filed this Complaint on September 6, 1994. Plaintiff admits that all of the substantive discrimination allegedly caused by Captain Godette took place prior to August 25, 1993. (Nelson-Cole Dep. at 299, 319, 324, 335). Nevertheless, Plaintiff contends that certain comments subsequently made by Captain Godette qualify as retaliation or continuing harassment. According to the Plaintiff, Captain Godette made two specific comments: (1) Godette informed his subordinates that he was a victim of a sexual harassment claim; and (2) he informed another employee that Plaintiff was transferred after a confrontation with an employee over the sexual harassment policy. (Ekhator Dept. 69-70, 83-84). However, neither comment shows any attempt on the part of Captain Godette to further discriminate or retaliate against Plaintiff. Further, the comments were not made in the presence of the Plaintiff. Thus, the Court cannot agree with the Plaintiff that such comments are acts of retaliation or continuing harassment. Consequently, these comments cannot serve to satisfy the one year time bar under the D.C. Human Rights Act. Accordingly, Plaintiff's D.C. Human Rights claim against Captain Godette shall be dismissed.
Based on the foregoing, the Court finds that the Plaintiff's Title VII and D.C. Human Rights Act claims as to Defendant Captain Henry Godette shall be dismissed. However, Defendants are not entitled to Summary Judgment with respect to the Title VII claims alleged against Defendant Borg-Warner, the claim of constructive discharge, and the issue of back pay. Accordingly, the Court shall issue an order of even date herewith consistent with this Memorandum Opinion.
DATED: April 6, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon careful consideration of the pleadings, the applicable law, and for the reasons articulated in the Opinion of the Court of even date herewith, it is, by the Court, this 6th day of April, 1995,
ORDERED that Defendants' Motion for Summary Judgment regarding the common law claims shall be, and hereby is, DENIED, without prejudice, to renew at the conclusion of the instant proceedings; and it is
FURTHER ORDERED that Defendants' Motion for Summary Judgment regarding the statutory claims shall be, and hereby is, GRANTED, in part, in accordance with the following ordered paragraph; and it is
FURTHER ORDERED that Plaintiff's Title VII claim and D.C. Human Rights Act claim shall be dismissed as to Defendant Captain Henry Godette.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE