At trial, the Court will have the discretion to allow the jury to hear evidence of pre-1991 Act conduct. See, e.g., Davidson v. MAC Equipment, Inc., 878 F. Supp. 186, 189 (D.Kan. 1995); Douglas v. Coca Cola, No. 94-97- L, 1994 U.S. Dist. LEXIS 18653 at *4 (D.N.H., Dec. 27, 1994). But, although the jury may be allowed to hear evidence of the pre-1991 Act conduct, it will only be allowed to determine Title VII liability with respect to the six-day period between November 21-26, 1991. Similarly, compensatory and punitive damages, if awarded, would be limited to that 6-day period. See, e.g., Hatley v. Store Kraft Mfg. Co., 859 F. Supp. 1257, 1259-60 (D.Neb. 1994).
B. The Motion for Partial Summary Judgment on the Hostile Work Environment Claims Under Title IX and Title VII
The defendants have also moved for summary judgment on Pinkney's claims under Title IX of the Education Amendments of 1972
and Title VII of the Civil Rights Act of 1964,
arguing that they are entitled to summary judgment on the hostile work environment claim (under both Title IX and Title VII) since "it is undisputed that defendants had no notice or reason to know of the allegations by plaintiff in sufficient time to take any steps to address plaintiffs claims prior to her departure from DCSL." Defendants' Motion for Partial Summary Judgment on Plaintiffs Hostile Work Environment Claim Brought Under Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 ("Defendants' Motion for Partial Summary Judgment on the Hostile Work Environment Claim"), at 9-10.
Relying upon Pinkney's admissions that she never notified the defendants of Robinson's alleged misconduct until months after she had left DCSL, the defendants argue that a finding of liability against either DCSL or the District of Columbia is precluded under both Title VII and Title IX. Id. at 10-11 (citing deposition of Ivy J. Pinkney of February 8, 1994, at p. 121). As authority for this proposition, the defendants offer M Meritor Savings Bank, F.S.B., v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), in which the Supreme Court rejected a rule holding employers strictly liable for the sexually harassing conduct of their employees. Id. at 72, 106 S. Ct. at 2408. The defendants admit, however, that the Supreme Court in Meritor Savings Bank also rejected the contention that an employer could escape liability "simply by claiming it lacked notice of the allegations." Defendants' Motion for Partial Summary Judgment on the Hostile Work Environment Claim, supra, at 11. Alternatively, the defendants argue that they are not liable under traditional agency principles, because Robinson's alleged misconduct was beyond the scope of his employment. Id. at 14 n.4.
In opposition, Pinkney contends that an employer is liable under both Title IX and Title VII for the sexually harassing conduct of its supervisors. She implies that notice by the victim to the employer is not a prerequisite to liability under either statute. In arguing that the U.S. Court of Appeals for the District of Columbia has long held employers liable for the discriminatory acts of supervisor personnel under Title VII, Pinkney relies solely upon Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 943 (D.C. Cir. 1981). See Plaintiffs Opposition, supra, at 15. To support her Title IX argument, Pinkney also relies upon and quotes a First Circuit decision in which a court upheld a finding of liability in a sexual harassment case even though the employee failed to provide notice of her complaint: "an educational institution is liable upon a finding of hostile environment sexual harassment perpetrated by its supervisors upon employees if an official representing that institution knew, or in the exercise of reasonable care, should have known, of the harassment's occurrence, unless that official can show that he or she took appropriate steps to stop it." Id. (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1988)). In sum, Pinkney argues that the defendants are liable under both Title VII and Title IX for Robinson's conduct based on traditional agency principles, because Robinson was a supervisor and used his authority to sexually harass her. Id. at 18.
As a threshold matter, this Court will look to Title VII principles to review the plaintiff's claim of Title IX liability. As the parties note in their briefs, neither the Supreme Court nor the U.S. Court of Appeals for the D.C. Circuit have directly addressed this question. However, other circuits have used Title VII to "define the contours. . . of Title IX." Murray v. New York University College of Dentistry, 57 F.3d 243, 248 (2nd Cir. 1995); see also Preston v. Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203, 206 (4th Cir. 1994); Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832 (10th Cir.), cert. denied, 510 U.S. 1004 114 S. Ct. 580, 126 L. Ed. 2d 478 (1993); Lipsett v. University of Puerto Rico, 864 F.2d 881, 896-98 (1st Cir. 1988); Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311, 316 (10th Cir.), cert. denied, 484 U.S. 849, 108 S. Ct. 148, 98 L. Ed. 2d 103 (1987); O'Connor v. Peru State College, 781 F.2d 632, 642 n.8 (8th Cir. 1986). Cf. Cohen v. Brown University, 991 F.2d 888, 902 (1st Cir. 1993) (declining to apply Title VII burden-of-proof rules; limiting Lipsett to employment context). But see Franklin v. Gwinnett County Pub. Schools, 911 F.2d 617, 622 (11th Cir. 1990) (in alleged harassment of student by teacher, declining to apply Title VII to a Title IX school), rev'd on other grounds, 503 U.S. 60, 117 L. Ed. 2d 208, 112 S. Ct. 1028, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992).
While the Supreme Court in Franklin did not reach the question whether Title VII principles control Title IX sexual harassment cases, U.S. at n.4, 112 S. Ct. at 1032 n.4, the Court did rely upon a Title VII case for its central proposition: "Unquestionably, Title IX placed on the [educational institution] the duty not to discriminate on the basis of sex, and when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor discriminate[s] on the basis of sex." Franklin, 503 U.S. 60, 75, 112 S. Ct. at 1037 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986) (internal quotations omitted)). Not only did the Franklin Court rely heavily upon Meritor Savings Bank, a Title VII case, but previously the Court had held Title IX's protections should "sweep as broad as its language." North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S. Ct. 1912, 1918, 72 L. Ed. 2d 299 (1982).
Even though the Supreme Court has not expressly reached the question whether the remedies under Title IX are equivalent to those of Title VII, both the legislative history underlying Title IX and the EEOC's employment discrimination guidelines lead this Court to conclude that, at least in the employment context, the same rules should apply to determine liability. The House Report indicates that when Title IX was crafted in 1972, Congress intended that it would be Title VII's analogue for employment-related discrimination at educational institutions. See H.R. Rep. No. 554, 92d Cong., 2d Sess. 51-52, reprinted in 1972 U.S. Code Cong. & Admin. News 2462, 2512. And, for employment-related claims, the Department of Justice has instructed federal agencies investigating or adjudicating discrimination cases to "consider Title VII case law and EEOC Guidelines in determining whether a [Title IX institution] has engaged in an unlawful employment practice." 28 C.F.R. § 42.604 (1995). In its landmark decision on sexual harassment, the Supreme Court accorded great weight and relied heavily upon the EEOC's guidelines on sexual harassment. See Meritor Savings Bank, 477 U.S. at 66-72; 106 S. Ct. at 2404-08; see also Vinson v. Taylor, 243 U.S. App. D.C. 323, 753 F.2d 141 (D.C. Cir. 1985) (D.C. Circuit also "attach[es] considerable weight to [EEOC's] interpretation"). The Department of Justice's determination that EEOC guidelines should be applied to investigate allegations of discrimination under Title IX are entitled to similar deference, see Chevron, U.S.A., Inc., v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984), and the EEOC's guidelines are equally persuasive in the context of employment-related sexual harassment under Title IX.
Having determined that the plaintiff's claims under Title VII and Title IX will be analyzed similarly, the question presented is whether summary judgment is an appropriate vehicle in which to excuse the defendants from liability for Robinson's alleged conduct. The defendants argue that judgment as a matter of law in their favor is appropriate, because they lacked actual or constructive notice of Pinkney's allegations, see Defendants' Motion for Partial Summary Judgment on the Hostile Work Environment Claim, supra, at 9-10 & 13, and because traditional agency principles should not be applied woodenly: "Therefore, in the absence of any definitive guidance from the Supreme Court on this issue, this Court should not simply apply traditional agency principles to determine whether an employer is liable for the acts of its employees in creating a hostile work environment under Title IX." Id. at 13.
In opposition, the D.C. Circuit case upon which the plaintiff primarily relies is Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934 (D.C. Cir. 1981). The plaintiff suggests that Bundy established a rule of strict liability. However, the rule cannot be stated so simply. In Bundy, while the D.C. Circuit held that an employer is liable for the discriminatory acts of its supervisory personnel, the Court of Appeals recognized that Title VII liability is not without some limits. 641 F.2d at 943. Citing Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 993 (D.C. Cir. 1977), the Bundy Court noted: "Barnes did suggest that the employer might be relieved of liability if the supervisor committing the harassment did so in contravention of the employer's policy and without the employer's knowledge, and if the employer moved promptly and effectively to rectify the offense." Bundy, 641 F.2d at 943.
Later, in Vinson v. Taylor, 243 U.S. App. D.C. 323, 753 F.2d 141 (D.C. Cir. 1985), the D.C. Circuit did adopt a rule that employers are strictly liable for the sexual harassment of their supervisors: "Today ... we are confronted by the question that was not directly and actively litigated in Barnes or Bundy: Whether Title VII imposes upon an employer without specific notice of sexual harassment by supervisory personnel responsibility for that species of discrimination. We hold that it does." 753 F.2d at 147. The D.C. Circuit had "no difficulty in concluding that an employer may be held accountable for discrimination accomplished through sexual harassment by any supervisory personnel with authority to hire, to promote or to fire." Id . at 149-50. See also McKinney v. Dole, 246 U.S. App. D.C. 376, 765 F.2d 1129, 1139 n.22 (D.C. Cir. 1985).
While affirming the judgment in Vinson, the Supreme Court expressly rejected the rule of strict liability under a hostile work environment. Meritor Savings Bank 477 U.S. at 73, 106 S. Ct. at 2408, aff'g on other grounds, Vinson v. Taylor, 243 U.S. App. D.C. 323, 753 F.2d 141 (D.C. Cir. 1985). The Court held that "as to employer liability, we conclude that the Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case." Id., 106 S. Ct. at 2408. Instead, the Court directed the use of agency principles for guidance in determining Title VII liability, keeping in mind that "such common law principles may not be transferable in all their particulars to Title VII." Id. at 72, 106 S. Ct. at 2408. While the Court rejected strict liability, it also rejected the suggestion that lack of notice would, by itself insulate an employer from liability. Id., 106 S. Ct. at 2408. Significantly, the Court held that an employer is not excused from liability as a result of the "mere existence of a grievance procedure and a policy against discrimination, coupled with [the victim's] failure to invoke that procedure." Id., 106 S. Ct. at 2408.
If the inapplicability of a rule of strict liability in Title VII hostile environment cases was not made clear enough by the Supreme Court in Meritor Savings Bank, the Court of Appeals has certainly done so in the recent case of Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391 (D.C. Cir. 1995). Like Pinkney here, Coramae Gary failed to notify her employer, the Washington Metropolitan Area Transit Authority ("WMATA"), that she was being sexually harassed by her supervisor while the harassment was ongoing. Gary, 59 F.3d at 1394. Among other things, Gary alleged that supervisor Long harassed her with language of a sexual nature, fondled her body and threatened her with termination if she told anyone of his sexual advances. Ultimately, he drove her to a WMATA worksite under the pretext of conducting an inspection and, once there, raped her. Id. Only after the alleged rape did Gary notify WMATA, which investigated but was unable to corroborate her complaint. Id.
In upholding the dismissal of Gary's hostile environment claim against WMATA, the Court of Appeals added some gloss to the Supreme Court's command in Meritor Savings Bank to rely upon agency principles in determining employer liability in sexual harassment hostile environment cases. The Gary Court confirmed that where a supervisor wields his or her power as a supervisor, power which arises from the existence of the agency relation, employer liability is appropriate even if the employer lacked actual or constructive knowledge of the harassment. Id. at 1397 (citing Restatement (Second) of Agency ("Restatement") § 219(2)(d)).
However, the Court of Appeals imposed limits on the reach of this provision. Id. Under Gary, in assessing an employer's liability for sexual harassment in hostile work environment cases, the district courts in this Circuit are to consider whether the employer has "taken energetic measures to discourage sexual harassment in the workplace and has established, advertised and enforced effective procedures to deal with it when it does occur." 59 F.3d at 1398. The viability of this defense depends, at least in part, "on the ability of the employer to establish that its employees could not reasonably have failed to know of those measures." Id. Therefore, for an employer to avoid liability for its supervisor's sexual harassment creating a hostile work environment, an employer must not only show that it lacked actual or constructive knowledge of the harassment, but the employer must demonstrate that it had an effective and responsive system ("energetic measures") in place at the time of the alleged harassment and that this system was one of which the victim knew or should have known and which he or she could have relied upon for a prompt and effective remedy.
This Court's review of the defendants' motion for partial summary judgment on the hostile work environment claims has been based on Gary, which makes clear that resolving the question of defendants' liability on summary judgment is inappropriate in this case. There is no evidence before the Court to show that the defendants had taken energetic measures to discourage sexual harassment through a responsive system that offered Pinkney and prompt redress for her claim. Nor is there any evidence before the Court that would satisfy the defendants' evidentiary obligation "to establish that its employees could not reasonably have failed to know of those measures." Gary, 59 F.3d at 1398.
Consequently, these questions raise genuine issues of material fact which preclude summary judgment.
Accordingly, for the reasons stated above, it is
ORDERED that Defendants' Motion for Partial Summary Judgment on Plaintiff's Claim Brought Under the Civil Rights Act of 1991 is denied; and it is
FURTHER ORDERED that Defendants' Motion for Partial Summary Judgment on Plaintiffs Hostile Work Environment Claim Brought Under Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 is denied.
IT IS SO ORDERED.
January 22, 1996.
JOYCE HENS GREEN
United States District Judge