The opinion of the court was delivered by: GREEN
Presently pending are the defendants' motions for partial summary judgment. For the reasons stated below, the motions will be denied.
The plaintiff, Ivy J. Pinkney, alleges that William J. Robinson, Dean of the District of Columbia School of Law ("DCSL"), sexually harassed her. Pinkney claims that during the period that she was Robinson's confidential executive secretary, which spanned September 8, 1989 through November 26, 1991, Robinson "engaged in a repeated and consistent pattern of sexual harassment [that] included explicit remarks and sexual innuendo, fondling his sexual organs in Ms. Pinkney's presence, offensive and unwanted touching, and other harassing and degrading acts." Amended Complaint, at PP 4 & 10.
Robinson terminated Pinkney's employment. Pinkney claims that she was fired on November 26, 1991, because she would not submit to his advances. Amended Complaint, at P 15. Robinson, however, contends that Pinkney was fired on August 27, 1991, because of her poor performance. Memorandum of Points and Authorities in Support of Defendants Motion for Partial Summary Judgment ("Defendants' Summary Judgment Motion under the 1991 Act"), at 9 (citing deposition of William L. Robinson of December 2, 1993, at pp. 61-62 & 81). Robinson also states that although Pinkney was terminated on August 27, 1991, the termination was not effective for 90 days. Id.
Pinkney's Amended Complaint consists of four counts. In Count I, Pinkney charged that the sexual harassment by Robinson violated Title VII of the Civil Rights Act of 1964 ("Title VII,"), 42 U.S.C. § 2000e et seq. (1988 & Supp. V 1993), and that Defendants DCSL and the District of Columbia are liable for the misconduct of their agent, Robinson. In Count II, she alleged that sexual harassment by Robinson violated Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681-1688 (1994), violations for which Defendants DCSL, a law school receiving federal financial assistance, and the District are liable. In Count III, Pinkney averred that the District, Robinson, and DCSL Board of Directors Vincent Gray, Inez Smith Reid and Lee Satterfield violated 42 U.S.C. § 1983, and in Count IV, she sought damages from Robinson, Gray, Reid and Satterfield for intentional infliction of emotional distress.
On May 20, 1994, this Court dismissed Count III as to Defendants Gray, Reid, Satterfield and the District, and the plaintiff withdrew her claim in Count IV as to Defendants Gray, Reid and Satterfield. On October 13, 1995, this Court denied Pinkney's motion to amend the judgment of May 20, 1994; denied Robinson's motion for partial summary judgment on various grounds; and denied in part and granted in part Robinson's motion to dismiss the plaintiffs request for a jury trial and damages under the Civil Rights Act of 1991 ("1991 Act"), R.S. § 1977A, Section 102, Pub. L. No. 102-166, 105 Stat. 1072 (Nov. 21, 1991), codified at 42 U.S.C. § 1981 (Supp. V 1993).
In its Memorandum Opinion and Order of October 13, 1995, this Court held that, based upon Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), the provisions of section 102 of the Civil Rights Act of 1991 are limited to remedy post-1991 Act conduct. Consequently, the plaintiff was not entitled to the broad remedies of the 1991 Act as relief for discriminatory conduct that occurred prior to enactment of the 1991 Act. But, the plaintiff could be entitled to the 1991 Act's remedial provisions for alleged discriminatory conduct that occurred in the six-day period spanning November 21, 1991 to November 26, 1991, her final days as Robinson's executive secretary. Because in its previous motion, the defendants had not complied with Local Rule 108(h), the Court did not consider the additional materials submitted by either party, consideration of which would have required the Court to convert the defendants' motion to dismiss to a motion for summary judgment See Fed. R. Civ. P. 12(b). The Court nevertheless granted the parties leave to move for summary judgment, if they complied with Local Rule 108(h).
On November 3, 1995, the defendants moved for partial summary judgment on Pinkney's hostile work environment claim brought under the 1991 Act, and on December 1, 1995, the defendants moved for partial summary judgment on Pinkney's hostile work environment claims brought under Title VII and Title IX. On December 15, 1995, Pinkney filed her brief, opposing both. On January 11, 1996, the defendants filed an untimely reply to Pinkney's opposition.
Summary judgment is appropriate when there is "no genuine issue as to any material fact and. . . the moving party is entitled to judgment as a matter of law. " Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255, 106 S. Ct. at 2513. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (internal quotations omitted).
A. The Motion for Partial Summary Judgment under the Civil Rights Act of 1991
In moving for partial summary judgment on the claims brought under the 1991 Act, the defendants contend that while Pinkney claims she was sexually harassed from September 8, 1989, until November 26, 1991, she "has completely failed to identify any alleged sexual harassment directed to her after November 21, 1991." Defendants' Summary Judgment Motion under the 1991 Act, supra, at 6 The defendants point out that although Pinkney testified about a number of "alleged incidents occurring at various points throughout her tenure, at no point does she specifically testify that any alleged act of sexual harassment occurred on or after November 21, 1991." Id at 7.
With regard to her termination, the defendants argue that Pinkney was terminated on August 21, 1991, when she was fired in the course of a performance evaluation, but contend she was told that she would have ninety days in which to find another job. Id at 9 (citing deposition of William L. Robinson of December 2, 1993, at pp. 61-62 & 81). Pinkney was not, however, given "official notification of her termination in the form of a letter from the Dean," id., until November 26, 1991. Because Robinson did not reduce his decision to writing until November 26, 1991, Pinkney was paid until December 15, 1991, remaining on administrative leave after November 26, 1991. Id (quoting Exhibit 3, Letter from William J. Robinson to Ivy J. Pinkney of November 26, 1991). The defendants argue that it is the date of the termination that matters, not the date that Pinkney felt its impact; because the decision was made prior to November 21, 1991, the termination decision itself does not entitle Pinkney to a jury trial or the broad damages available under the 1991 Act.
In opposition, Pinkney argues that at least two genuine issues of material fact preclude summary judgment. First, Pinkney claims that Robinson's harassment was continuous and ongoing throughout her employment, and that "Robinson put his hand on her inner right thigh . . . 'just before [she] left'." Plaintiffs Opposition to Defendants' Motion for Partial Summary Judgment on Plaintiff's Claim Under the Civil Rights Act of 1991 and Opposition to Defendants' Motion for Partial Summary Judgment on Plaintiffs Hostile Work Environment Claim Under Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 ("Plaintiffs Opposition"), at 8 (quoting deposition of Ivy J. Pinkney of December 11, 1993, at pp. 244-45). Pinkney argues that her deposition testimony alone is sufficient to establish a dispute of material fact which would be sufficient to survive summary judgment.
Second, Pinkney claims that Robinson never advised her of any termination decision until November 26, 1991, five days after the enactment of the 1991 Act. Id. at 9 (citing deposition of Ivy J. Pinkney of February 8, 1994, at pp. 63-67).
Q: (Mr. Watkins): What's the most offensive touching that Mr. Robinson engaged in while you were ...