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HARVEY v. DISTRICT OF COLUMBIA

December 2, 1996

CHARLENE HARVEY, Plaintiff,
v.
DISTRICT OF COLUMBIA and D.C. FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT, Defendants.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 I.

 INTRODUCTION

 The Court has before it a complaint by the plaintiff, Ms. Charlene Harvey, against the District of Columbia and the D.C. Fire and Emergency Medical Services Department ("D.C. EMS"). The plaintiff is an emergency medical technician for the D.C. EMS. At the initial status call in this case on August 30, 1996, the plaintiff's counsel completed and submitted to the Court a "Specification of Plaintiff's Claims Form for Employment Discrimination Suits and Civil Rights Cases" (hereafter a "claims specification form"). The plaintiff's claim specification form indicates that she has brought this case solely under Title VII of the Civil Rights Act of 1964, as amended. However, within the complaint, but without referencing specific facts to make the claims cognizable, the plaintiff also asserts claims under 42 U.S.C. § 1981 (prohibiting racial discrimination in the making and enforcement of contracts) and § 1983 (prohibiting a violation of rights secured by the Constitution or the laws of the United States committed by a person acting under color of state law).

 Since the D.C. EMS is a part of the D.C. government, and in view of the defendant's answer to the complaint, and because it is not sui generis, the plaintiff's claims against the D.C. EMS will be dismissed.

 Through her complaint, Ms. Harvey brings to this Court's attention a series of acts, approximately eleven in number, dating back to September 21, 1992 when, according to Ms. Harvey, she was raped by a shift supervisor at the supervisor's home. Contact between the plaintiff and this supervisor continued through January 1993, and the Court obviously and vigorously condemns such conduct as inappropriate.

 In December 1994, a co-worker made lude remarks to the plaintiff, but he never repeated such conduct. In the same month, another co-worker put his head on the plaintiff's buttocks. The undisputed facts show that no supervisor of the defendants knew of these two incidents and that the plaintiff failed to report these incidents to any management-level employee.

 The next alleged incident (or incidents) involved the plaintiff's purported attendance problems in 1993 and 1994. The plaintiff's chief supervisor allegedly called the plaintiff's EMT unit on at least two occasions to check on the plaintiff's attendance. In another incident or series of incidents, the plaintiff's name failed to appear on an attendance roster on an unspecified number of occasions.

 In 1994, the plaintiff was reassigned to a new supervisor, Mr. Jerome Stocks, ostensibly because of the plaintiff's attendance problems. According to the plaintiff, Mr. Stocks called her a "habitual liar." Also in 1994, various of the plaintiff's requests for leave were denied, and the plaintiff was repeatedly placed on AWOL status. Finally, during some unspecified period of time, the plaintiff was the subject of "rumors" that she was "real easy" and a "whore." The plaintiff has submitted no evidence identifying the employees of the defendants, if any, who spoke such rumors. The plaintiff filed her first EEOC charge on July 21, 1994.

 As indicated by the foregoing, the plaintiff has not made out a claim, nor even sufficiently alleged a claim, under either 42 U.S.C. § 1981 or § 1983. Furthermore, according to her counsel's own pleading, the plaintiff relies exclusively on Title VII. That being so, the court will not address those statutes further, because it is unnecessary.

 The question now before the court is whether the defendants' motion for partial summary judgment as to the plaintiff's sexual harassment claim is cognizable and may be heard before a jury.

 
A. The Plaintiff's Claim Por Hostile Work Environment Sexual Harassment Is Not Cognizable, And The Defendant's Motion For Partial Summary Judgment Will Be Granted.

 Pursuant to the D.C. Circuit's holding in Valentino v. United States Postal Serv., 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C. Cir. 1982), the plaintiff's failure to exhaust her administrative remedies and to assert a claim of harassment within 300 days before July 21, 1994 precludes the plaintiff from relying on the alleged rape and other conduct occurring before that time period. The law under the continuing violations doctrine is clear that the alleged acts of sexual harassment by the plaintiff's co-workers, about which defendants' supervisors neither knew nor should have known, does not give rise to a cognizable sexual harassment claim and will not revive an otherwise stale sexual harassment claim. See Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir. 1995) ("Because no harassment event occurring during the violation period was ever brought to the attention of [the employer] while [the plaintiff] was still employed, there is no violation during the limitation period that can serve as the anchor for the earlier conduct."). Additionally, the plaintiff cannot rely on the continuing violations doctrine, because there is no nexus between the conduct of the co-workers in 1994 and the earlier incidents going back to 1992. See Id. (holding that the plaintiff could not rely on the continuing violations doctrine, because she had failed to demonstrate "a sufficiently close nexus between alleged touching incidents by a supervisor and the later conduct of fellow employees). Accordingly, there being no dispute as to these material facts, no liability can attach against the District of Columbia based solely on the un-reported co-worker incidents. Under these particular circumstances, ...


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