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February 23, 1998


The opinion of the court was delivered by: SULLIVAN


 I. Introduction

 Plaintiff, Rosemarie Lucero-Nelson, commenced this action for damages and other relief against defendant, Washington Metropolitan Area Transit Authority ("WMATA"), alleging that WMATA subjected her to sexual harassment, national origin discrimination, and a hostile working environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e)(1988 & Supp. V 1993), and the District of Columbia Human Rights Act, D.C. Code 1981, as amended, §§ 1-2501, et seq. Plaintiff also asserts a pendent common law tort claim for damages for intentional infliction of emotional distress, and a claim for damages under 42 U.S.C. § 1983 for deprivation of her rights, privileges and immunities provided by the United States Constitution and federal laws. Plaintiff seeks an award of compensatory and punitive damages, attorneys fees and equitable relief.

 Pending before the Court is WMATA's motion for summary judgment on plaintiff's Title VII claims on three grounds: (1) that the plaintiff failed to timely file her claims with the EEOC; (2) that Title VII does not encompass sexual harassment claims involving members of the same gender ("same sex" claims); and (3) that plaintiff has failed to raise any issue of material fact as to her prima facie case of Title VII hostile work environment. As for plaintiff's other claims, defendant asserts its sovereign immunity as an arm of the state and federal government as grounds for rejecting plaintiff's claims arising out of the D.C. Human Rights Act, her claim under 42 U.S.C. § 1983, and her claims for punitive damages. Finally, defendant contends that plaintiff's tort claim of intentional infliction of emotional distress is barred by the D.C. Workers Compensation Act ("WCA"), or, in the alternative, that this tort claim should be dismissed until the Department of Employment Services can assess whether WCA covers this claim.

 Upon consideration of WMATA's motion for summary judgment, the points and authorities in support of and in opposition to the same, and the arguments of counsel, the motion is GRANTED in part and DENIED in part for the reasons set forth in this Opinion.

 WMATA is entitled to summary judgment on plaintiff's claims under the D.C. Human Rights Act and plaintiff's § 1983 claim. The Court denies summary judgment on plaintiff's claims of sexual harassment, national origin discrimination, and hostile work environment. The Court also denies WMATA's motion for summary judgment as to plaintiff's claim of intentional infliction of emotional distress. Finally, since WMATA is a quasi-governmental entity, plaintiff is precluded from recovering punitive damages against WMATA.

 II. Standard of Review

 WMATA has moved for summary judgment under Federal Rule of Civil Procedure 56 on all counts. Summary judgment should be granted only if defendant has shown that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Aka v. Washington Hosp. Ctr., 325 U.S. App. D.C. 255, 116 F.3d 876, 879 (D.C. Cir.), reh'g en banc granted, 124 F.3d 1302 (1997). Furthermore, the D.C. Circuit has directed that trial courts should apply "an added measure of 'rigor' to motions for summary judgment in employment discrimination cases." Aka, 116 F.3d at 879-80 (finding that "the district court correctly adopted this heightened standard in its memorandum opinion"). In resolving summary judgment motions, the Court must view all of the evidence in the light most favorable to the plaintiff. See id. at 879; see also Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Bayer v. United States Dep't of Treasury, 294 U.S. App. D.C. 44, 956 F.2d 330, 333 (D.C. Cir. 1992).

 A. Allegations of Sexual Harassment

 Plaintiff, a white Mexican-American woman, alleges that her employer, WMATA, subjected her to sexual harassment and sex discrimination in violation of Title VII and the D.C. Human Rights Act. Plaintiff was hired by WMATA as an EEO Compliance Specialist in the Office of Civil Rights ("CIVR") and began working on September 25, 1989. Plaintiff worked under the direct supervision of Ms. Joan Lewis ("Lewis"), an African-American woman EEO Officer in CIVR. Lewis' supervisor was Claude Swanson ("Swanson"), who was director of CIVR at the time. According to plaintiff, Lewis began questioning plaintiff about her sexual habits and experiences and her racial preferences in sexual partners during her first month on the job. In her complaint, plaintiff recites a number of incidents in which Lewis made disparaging comments about plaintiff's clothing and makeup, and accused plaintiff of "not being a Christian." The first incident occurred on October 12, 1989 and incidents allegedly continued until February 9, 1990. On September 30, 1991, Lewis spent approximately two hours reviewing plaintiff's wedding pictures, commenting repeatedly that plaintiff looked "virginal." She also asked plaintiff if she was a virgin when she married. Lewis discussed plaintiff's looks in front of others and asked co-workers to admire plaintiff's legs.

 B. Allegations of National Origin Discrimination

 Plaintiff alleges that the harassment was not only sexual in nature but also was directed toward her because of her national origin. Plaintiff contends that the actions of Lewis and Swanson created a racially hostile work environment for employees of Mexican-American descent, and for plaintiff in particular, and constituted national origin discrimination in violation of Title VII and the D.C. Human Rights Act.

 According to plaintiff, the first indication of Lewis' discriminatory animus toward Latinos occurred three months after plaintiff began working for WMATA, on December 13, 1989, when Lewis told plaintiff that, despite the fact that she was the Hispanic Coordinator, plaintiff had no right to attend WMATA Latino community meetings. Plaintiff also alleges that Lewis accused plaintiff of conspiring with other Latinos to slander Lewis and cause her trouble. Plaintiff also maintains that Lewis stated that plaintiff's support of the Hispanic community was "degrading [to] her as a Black woman." On or about January 30, 1990, Lewis accused plaintiff of considering herself superior to Black women because she is Latino. On February 9, 1990, despite plaintiff's "above average" work performance, Lewis said that she was "disgusted" with plaintiff. Lewis allegedly complained that plaintiff was unable to express herself correctly and that plaintiff should attend English classes. Lewis demanded that plaintiff refrain from speaking Spanish in the hallways at work.

 C. Allegations that WMATA Knew of The Alleged Misconduct and Failed to Act

 Plaintiff argues that WMATA was aware of Lewis's propensity for engaging in unwelcome and offensive conduct of a sexual nature even before it hired plaintiff in 1989 and references a number of alleged incidents involving Lewis at page 7 of plaintiff's complaint. Further, plaintiff argues that defendant knew or, with the exercise of reasonable diligence, should have known, of the sexually hostile work environment at WMATA as early as 1989, but took no action to control, reduce or eliminate this hostile work environment. Plaintiff contends that from October 1989 to February 1991, she complained to Swanson about Lewis' inappropriate and abusive behavior. According to plaintiff, Swanson admitted that Lewis' behavior was inappropriate, yet he excused Lewis' actions by stating that this was just "the way she is." On February 15, 1990, Swanson temporarily removed plaintiff from Lewis' direct supervision. From February 15, 1990 to October 9, 1991, plaintiff reported directly to Swanson. Plaintiff alleges that the incidents of harassment abated to some degree, but by no means disappeared.

 Plaintiff reported each of the following subsequent incidents to Swanson. On January 7, 1991, Lewis accused plaintiff of talking too loudly and of gossiping about her in Spanish. Lewis reprimanded plaintiff saying that "this [is] not a fiesta." On September 30, 1991, Lewis made comments about plaintiff appearing "virginal." On that same day, plaintiff was called into Lewis' office to speak with another Hispanic employee, who Lewis encouraged not to speak Spanish because it was "rude." In response to plaintiff's complaints, Swanson continued to suggest that plaintiff ignore Lewis' behavior.

 On October 5, 1991, Swanson explained to plaintiff that he would be placing her back under Lewis' supervision. According to plaintiff, Swanson said that Lewis would "receive her judgment from a higher being" and recommended to the plaintiff that she "tell [Lewis] off." On October 10, 1991, plaintiff met with an EEOC Federal Investigator to discuss filing a complaint, but decided not to file the complaint at that time because she wanted to resolve the situation internally. In late October 1991, plaintiff met with WMATA officials John Potts, Alma Esparza, and Dr. Warren Eisenhower to discuss attempts to relocate her employment assignment. Plaintiff discussed Lewis' harassment and Swanson's failure to address the problem. On November 18, 1991, when the situation still was unresolved, plaintiff met with EEOC investigator Melvin Bean and signed an affidavit, officially filing her complaint with the EEOC.

 III. Discussion

 A. Plaintiff's Title VII Claims

 Title VII makes it unlawful for an employer covered by the statute "to discriminate against an individual with respect to [her] compensation, terms, conditions or privileges of employment, because of such individual's . . . sex [or] national origin." 42 U.S.C. § 2000(e)-2. Title VII's prohibition against discrimination based on sex provides a cause of action for sexual harassment in the workforce. Harris v. Forklift Sys., Inc., 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). For the following reasons, the Court concludes that defendant's arguments for summary judgment on plaintiff's Title VII claims are devoid of merit. Thus, summary judgment is DENIED as to those claims.

 1. The Timeliness of Plaintiff's Title VII Claims

 First, WMATA challenges plaintiff's sexual harassment and national origin claims on procedural grounds. WMATA argues that these claims fail in part because plaintiff allegedly did not timely file complaints about these claims with the EEOC within Title VII's statutory 180 day deadline. The Court rejects this argument.

 Title VII provides that "[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e). Nevertheless, when a plaintiff alleges a "continuing violation" of Title VII -- i.e., that discriminatory working conditions such as harassment are continuing -- the complaint is not time-barred if the complaint alleges that at least one illegal act took place within the filing period. Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 193 U.S. App. D.C. 326, 595 F.2d 711, 725 (D.C. Cir. 1978). Under this "continuing violation" theory, the applicable limitations period runs from the date of the last discriminatory incident. 595 F.2d at 724 ("As Congress itself has said, for those 'violations that are continuing in nature' it is appropriate to measure the running of the period from the last occurrence of the discrimination."); see Webb v. District of Columbia, 864 F. Supp. 175, 184 (D.D.C. 1994).

 Here, the plaintiff filed her EEOC complaint on November 18, 1991. According to the plaintiff, the first incident of discrimination she complains of occurred on October 10, 1989, and the most recent act of harassment took place on September 30, 1991. Moreover, plaintiff alleges that WMATA's violation of Title VII continued on November 22, 1991 and December 5th and 6th of that year when WMATA ignored plaintiff's request to stop the harassment. The Court is persuaded that plaintiff has alleged a "continuing violation" and that several of the discriminatory incidents occurred within the 180 day limitations period. Thus, plaintiff's sexual harassment and national origin claims under Title VII were timely.

 2. Title VII And "Same Sex" Sexual Harassment Claim

 In supplemental pleadings filed after WMATA's motion for summary judgment, WMATA argues that the Court should grant summary judgment as to plaintiff's Title VII claim because the statute does not provide a cause of action for "same sex" sexual harassment. As support for this argument, WMATA relies on Ryczek v. Guest Services, Inc., 877 F. Supp. 754, 760 (D.D.C. 1995) which merely addressed the "same-sex" issue in dicta.

 Subsequent to the Ryczek decision, Judge Joyce Hens Green of this Court resolved the issue decisively in Williams v. District of Columbia, 916 F. Supp. 1 (D.D.C. 1996). There, the Court unequivocally held that Title VII provides a cause of action for sexual harassment of an employee by a supervisor of the same sex. Id. at 7. In reaching this conclusion, the Court noted the "considerable weight of authority in which federal courts have held directly, implied, or stated in dicta that same-sex sexual harassment is actionable under Title VII." Id. at 7-8 (citing numerous federal cases including Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995); Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir. 1993)(Van Graafeiland, J., concurring), cert. denied, 510 U.S. 1164, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994); Morgan v. Mass. Gen. Hosp., 901 F.2d 186, 192-193 (1st Cir. 1989); Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 942 n. 7 (D.C. Cir. 1981); Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 990 n. 55 (D.C. Cir. 1977); Raney v. District of Columbia, 892 F. Supp. 283, 286-88 (D.D.C.1995); Marrero-Rivera v. Department of Justice, 800 F. Supp. 1024, 1027 (D.P.R. 1992), aff'd, 36 F.3d 1089 (1st Cir. 1994); Joyner v. AAA Cooper Transp., 597 F. Supp. 537, 542 (M.D. Ala. 1983), aff'd, 749 F.2d 732 (11th Cir. 1984)); see also Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994).

 The Williams Court rejected the holding of other federal courts that same-sex harassment is outside of Title VII's scope for two main reasons: (1) the overwhelming weight of authority supports a finding that same-sex harassment is actionable under Title VII; and (2) the reasoning in the cases holding otherwise is unduly flawed. Williams, 916 F. Supp. at 8-10. This Court agrees. The present case, like Williams, clearly "involved [allegations of] an abuse of power by a supervisor over an employee" such that the harassment that plaintiff alleges to have suffered falls "within the contours of sexual harassment law as defined by the Supreme Court: 'Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor [discriminates] on the basis of sex.'" See id. at 9 ...

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