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GREGG v. HAY-ADAMS HOTEL

September 12, 1996

DEBRA DENISE GREGG, ANTHONY LEWIS GREGG, Plaintiffs,
v.
HAY-ADAMS HOTEL, Defendant.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the Court on defendant Hay-Adams Hotel's Motion for Summary Judgment. Plaintiff Debra Denise Gregg has filed a sexual harassment suit for violations of Title VII, (42 U.S.C. Section 2000e et seq.), 42 U.S.C. Section 1981, and the District of Columbia Human Rights Act, (D.C. Code Section 1-2501 et seq.), and seeks $ 1,000,000 in compensatory damages. She also seeks $ 1,000,000 for damages resulting from emotional distress and $ 1,000,000 in punitive damages. Plaintiff Anthony Gregg also brings a claim for damages resulting from loss of companionship and consortium in the amount of $ 1,000,000. For the reasons set forth below, the court will grant defendant's motion on all counts of Debra Gregg's complaint. With respect to Anthony Gregg's claim for loss of consortium, defendant's motion does not appear to have been contested, and this count may be dismissed either as conceded, or alternatively, as based on the merits.

 BACKGROUND

 Plaintiff Debra Denise Gregg is currently employed as an Assistant Pastry Chef in the Hay-Adams Hotel in Washington, D.C. She was hired as such in June of 1993 and has remained in this position since that time. She alleges that within a few months of her hiring, the Executive Chef of the Hotel, Patrick Clark, began to make suggestive remarks toward her, culminating in unwelcome physical contact. Though there is some dispute as to whether this contact was, in fact, unwelcome, for the purposes of this decision, it will be assumed that Clark's actions were unwanted by the plaintiff.

 Still on April 14, 1994, Roberts reported the complaints to Human Resources Director Jeffrey Lea, who instructed Roberts to prepare a memorandum regarding the charges -- which she delivered to him the next day. In the memo, Roberts reported, among other things, that she told Gregg she would assist her and urged Gregg to take down notes concerning the events.

 On Friday morning, April 15, 1994, Lea met with Urs Aeby, the General Manager of the hotel -- who then ordered an immediate investigation of the complaints. Aeby then met with each of the two women to inform them that all appropriate steps would be taken to provide them a harassment-free workplace, and he further assured them that they would not be subject to retribution. Statements were taken from Gregg, Dade, and several other employees who might have knowledge of the events. Clark was told generally about the allegations but not about who had made them.

 On April 26, 1994, less than two weeks after the complaints, Aeby issued Clark a "formal and final written warning." The letter stated that the investigation revealed behavior "verging on harassment" and that even with respect to an unsubstantiated allegation, Clark had "shown a serious lack of judgment." The letter further warned him that any retributive acts could be punishable by termination of employment.

 There have been no subsequent sexual harassment accusations since the April 14, 1994 charges. Gregg has alleged, however, that on three separate occasions Hay-Adams supervisory employees have engaged in retaliatory actions as a result of her complaint.

 The first charge of retaliation develops from a written warning issued to Gregg on June 2, 1994 by Lea as a result of Gregg's failure to follow proper call-in procedures when she failed to report to work on two consecutive days. Judy Schmitt, Pastry Chef and Gregg's immediate supervisor, urged the action.

 The second charge of retaliation stems from a written warning on October 25, 1994, which Graciela Lewis, who replaced Lea as Director of Human Resources, issued to Gregg for insubordination. Lewis was independently told by both Clark and Schmitt that Gregg had been making racial jokes, largely directed at Gregg's co-worker Dade. Lewis met with Gregg on October 14, 1994, and warned her not to confront Dade or to make racial comments in the workplace. When Donnie Sharlein, the Executive Sous Chef, perceived Gregg making another racial comment to Dade, he reported it to Lewis, who considered this a violation of a direct order. Lewis then wrote Gregg up for insubordination.

 The final act of alleged retaliation results from another written warning issued to Gregg on April 24, 1995 for her failing to properly prepare desserts at a function for Vice President Albert Gore, Jr. By then, Clark was no longer employed at the Hay-Adams Hotel, and it was the new Acting Executive Chef, Martin Saylor who reported Gregg to Lewis. Lewis then gave Gregg a "final warning." Gregg alleges that these three warnings constitute prohibited retaliation by Hay-Adams Hotel supervisors, the direct result of her complaints against Clark and the lawsuit filed against the Hotel.

 Anthony Gregg, who married Debra in October of 1993, also claims loss of companionship and consortium as a result of the sexual harassment she endured on the job.

 DISCUSSION

 A party may move for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). This court, upon examination of all the documents in this matter, concludes that there are no genuine issues of material fact in dispute and that defendant is entitled to summary judgment on all counts.

 A. The Title VII Claim

 The thrust of Gregg's sexual harassment complaint is that persistent comments and suggestions of a sexual nature by Gregg's supervisor, Executive Chef Patrick Clark, created a hostile work environment, in violation of Title VII, and that the Hotel management allowed this behavior. Compl. 2.

 Even assuming Clark's behavior amounted to the creation of a hostile working environment -- though this is, indeed, disputed -- plaintiff Gregg must also show that the employer or "any agent" of the employer is responsible for the creation of the hostility. 42 U.S.C. Sec. 2000e(b)(1988). See also, Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391 (D.C. Cir. 1995). In Meritor v. Vinson, 477 U.S. 57, 73, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986), the Supreme Court rejected the notion of an employer's strict liability for sexual harassment, and this Circuit has applied common law agency principles to determine whether an employer may be held liable under Title VII for sexual harassment by its employees. Gary, 59 F.3d at 407.

 Gregg attempts to place liability on the employer by arguing that the Hotel "violated its expressed company policy regarding sexual harassment to refrain from sexually discriminating against plaintiff by allowing its agents and employees to make sexual advances towards plaintiff and by creating an intimidating hostile and offensive working environment ...." Compl. 3.

 Focusing on agency principles, a plaintiff may, in order to extend liability to the employer, establish that a harasser was acting within the scope of his employment when he engaged in the harassing actions, or if not, that he was at least acting with apparent authority to create a hostile work environment. See Gary, 59 F.3d at 1397-98 (relying on Restatement (Second) of Agency ยง 219(2)(a-d)). Gregg neither alleges, nor has evidence to suggest, that the employer actually knew or had reason to know of the harassment, nor that the Hotel approved of it. Gregg is thus forced to establish the Hotel's liability under an apparent authority theory -- that it would be reasonable for an employee to believe Clark was acting with the Hotel's authority.

 An employer may defeat its liability under such a charge, however, if it can show that an employee knew or should have known the employer did not tolerate such conduct. Gary, 59 F.3d at 1398. *fn1" To establish the standard such a policy must maintain before apparent authority will be defeated, Gregg relies on a statement made in Gary where the United States Court of Appeals for the District of Columbia Circuit held that when an employer takes "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, it must be absolved of Title VII liability under a hostile work environment theory of sexual harassment." Id. Gregg forcefully asserts this Gary principle in the negative -- because Hay-Adams's sexual harassment policies did not rise to the level stated in Gary, an issue for trial is created to determine whether the Hotel's policies were effective or ineffective as to creating apparent authority for the harassment. *fn2" What Gregg ignores, however, is that Gary itself states, "we do not suggest that an employer must be found liable if it has failed to adopt such measures." Id.


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