In support of their motion, the defendants allege that the emotional distress claim against Strayer College is barred by the exclusive remedy provisions of the D.C. Workers' Compensation Act because an employer-employee relationship existed between the plaintiff and Strayer; that the allegations of misconduct by Bailey, Strayer's president, are insufficient as a matter of law to support a claim for intentional infliction of emotional distress; and, that the plaintiff's has failed to state a claim for negligent infliction of emotional distress against Strayer. In opposition to the motions the plaintiff argues that her "emotional injuries were not a result of the actual working conditions," because it was not until after her termination that Harvey "started to suffer her injuries;" therefore, the remedies of the workers' compensation statute are not available.
Regarding her claim for intentional infliction of emotional distress, Harvey argues that the actions of Bailey, when considered in context, in terminating her employment were sufficiently "outrageous" so as to support a claim for intentional infliction of emotional distress.
Lastly, regarding the negligent infliction of emotional distress claim, the plaintiff elected not to pursue this claim against Bailey and offered no argument in opposition to Strayer's motion for summary judgment on this theory.
Findings of Fact
In April 1990, Harvey began her employment with Strayer College at its Takoma Park branch. In July 1992, she was unexpectedly hospitalized because of complications associated with her pregnancy. As a consequence, she missed one month of work.
In July 1994, Harvey notified her supervisors that she was again expecting. Bailey expressed his concern that she would be unable to perform her job. "I remember what happened last time (referring to her early hospitalization during her 1992 pregnancy); I need to know if you're going to be able to handle the stress of the fall quarter registration; if not, I need to get you out of here and get someone else in." (Harvey deposition at 121).
In September 1994, John Bratton, Strayer's Takoma Park branch admissions department manager and Harvey's immediate supervisor gave Harvey a negative rating in her periodic performance evaluation. On September 14, Harvey provided a written rebuttal to what she believed to be an inaccurate and unfair evaluation.
Two weeks later, on September 29, Harvey was summoned to a meeting with Bailey and Bratton at which she was given a written notice of termination. About ten minutes after the conclusion of the meeting, Harvey returned to inquire of Bailey why she was terminated. Bratton laughed and said Bailey was not available since he had already departed the premises.
Harvey contends that the unsatisfactory performance evaluation was pretextual and that the real reason for her termination was her pregnancy, and therefore she was discriminated against because of her gender. She also seeks damages for intentional and negligent infliction of emotional distress. In support of the emotional distress theories, Harvey contends that her summary termination caused her extreme anxiety and emotional distress, which in turn led to premature contractions. As a consequence, Harvey asserts that she was confined to complete bed rest and placed on medications during the remainder of her pregnancy. She contends that Strayer and Bailey knew or should have foreseen these consequences and that they knew or should have known that her pregnancy was "high risk" because of the difficulties she had with her first pregnancy and that their failure to accommodate her condition was deliberate and intentional, or at best, negligent and caused her emotional distress.
The Workers' Compensation Act
The defendants' claim that the plaintiff's emotional distress claims are barred by the exclusive provision of the D.C. Workers' Compensation Act, D.C. Code Ann. § 36-304(a), (b) (1993). The District of Columbia Court of Appeals has recently held to the contrary.
In Underwood v. National Credit Union Administration, 665 A.2d 621 (D.C. App. 1995) the Court concluded:
We believe it is clear that, when emotional distress allegedly attributable to sexual harassment (in contrast with some other cause) results in disabling injuries in fact, the language of the WCA itself easily demonstrates that these are not statutory "injuries," and thus are not compensable disabilities, under the WCA. Accordingly, as elaborated below, the statutory language does not present a "substantial question" whether disabling injuries from emotional distress caused by sexual harassment are covered by the WCA; such injuries "clearly are not compensable under the statute." (citation omitted.)
Underwood, 665 A.2d at 621.