firm's Vice President for Administration, Janet Buckley, and told
her that she was having a hard time living on her salary, and
that she was considering taking a part-time job to supplement her
income. Ms. Buckley offered to give Ms. Russ a mid-term raise at
that point, making Ms. Russ's salary $32,000.
In October of 1997, Ms. Russ was told that another firm had a
similar position open which paid $35,000. Ms. Russ told Ms.
Buckley about the other firm's offer and was told that if she
stayed with Van Scoyoc Associates, she would "be where she wanted
to be" after her year-end salary increase. Ms. Russ believed this
to mean that she would receive a raise, making her salary
$35,000, after her year-end review. She also was informed that
she would receive a 10% bonus.
On December 8, 1997, Jan Schoonmaker, a Vice President at Van
Scoyoc Associates, asked Ms. Russ to help him prepare for a
meeting for which he was running late. As she was helping him, he
noticed that some papers were missing. He became irate and, while
brandishing a stack of papers at her, made a number of derogatory
remarks about her abilities. These facts form the basis for the
plaintiff's first count. See Complaint ¶ 134-35.
The next day, December 9, 1997, Van Scoyoc Associates had its
annual Holiday party at the Old Ebbitt Grill. During the party,
several people became very intoxicated, including a Vice
President, Paul Grimm. After the party ended at approximately 3
p.m., Mr. Stewart Van Scoyoc told the employees that no one had
to return to work that day. A number of people, including Mr.
Grimm and Ms. Russ, went to the Bottom Line, a bar, to continue
socializing. While at the Bottom Line, Mr. Grimm sympathized with
Ms. Russ's recent encounter with Mr. Schoonmaker and offered to
have her work for him in the future. Then, as the day worn on, he
began making a number of sexually explicit and offensive remarks
to Ms. Russ, telling her that he admired her breasts, that he
wanted to have sex with her, that he wanted to perform oral sex
upon her, and that "she could make more money working at Hooters
than at Van Scoyoc Associates." This continued for some time
until Ms. Russ left the bar.
Ms. Russ then reported the conduct of Mr. Grimm to her office
manager, Ms. Haley. Ms. Haley then reported the event to Ms.
Buckley, who reported the event to Mr. Van Scoyoc. On December
12, 1997, Ms. Russ spoke with Mr. Van Scoyoc about the incidents
involving Mr. Schoonmaker and Mr. Grimm. Mr. Van Scoyoc told her
to be tolerant of Mr. Schoonmaker because he has "nothing outside
of his work". Plaintiff's Opposition, Ex. 3 Van Scoyoc Deposition
at 46. He also told Ms. Russ that Mr. Grimm was having marital
problems and that it would be better if his wife did not find out
about the incident at the Bottom Line.
Later that day, Ms. Russ was told that her raise would only
bring her salary to $32,000 and her bonus would be only 6%, not
the $35,000 salary she believes she was promised, nor the 10%
The following Monday, December 15, Ms. Russ met again with Mr.
Van Scoyoc and attempted to resign. Mr. Van Scoyoc refused to let
her resign, instead giving her an extended vacation and flying
her home to visit her family in Montana. He told her that they
could discuss her situation in the New Year.
When Ms. Russ returned from vacation, she, Mr. Van Scoyoc, and
Ms. Buckley scheduled a meeting for January 6, 1998. When Ms.
Russ went to this meeting, she brought along an attorney, Claude
Convisser, to negotiate the terms of her return to Van Scoyoc
Associates. However, when Mr. Van Scoyoc saw that Ms. Russ
brought counsel to the meeting, he became upset and abruptly
ended the meeting. Ms. Buckley asked Ms. Russ to hand over her
keys to the office and to leave the building.
Ms. Russ filed this action against Van Scoyoc Associates and
Mr. Van Scoyoc personally on December 28, 1998. Mr. Van Scoyoc
previously filed a motion to dismiss the claims with respect to
him, which was granted for the claims arising under Title VII and
a constructive discharge theory and denied for the claims under
DCHRA. Thus, the only remaining claim against Mr. Van Scoyoc
personally is Count IV, the constructive discharge claim. A
motion to dismiss the constructive discharge claim filed by Van
Scoyoc Associates was also denied. See Russ v. Van Scoyoc
Associates, Inc., 59 F. Supp.2d 20 (D.D.C. 1999).
II. Count I — Sex Discrimination Based on Mr. Schoonmaker's
December 8 Conduct.
Ms. Russ alleges that Mr. Schoonmaker's conduct on December 8,
1997, when he yelled at her and brandished a stack of papers at
her, constitutes sex discrimination in violation of Title VII. To
prevail on a sex discrimination charge, a plaintiff must show
that not only that she is a member of a protected class, and that
similarly situated individuals who are not a member of a
protected class were treated differently, but also that the
plaintiff suffered some adverse employment action. See, e.g.,
McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973); Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.
In the present case, the plaintiff has alleged that she was
discriminated against by Mr. Schoonmaker because he did not yell
at male employees the way he yelled at her, and other female
employees at Van Scoyoc. See Complaint ¶ 135. The adverse
employment action contemplated by the plaintiff, then, is that
she was yelled at by Mr. Schoonmaker. While the D.C. Circuit has
not reached this issue, it is clear that merely being yelled at
by your supervisor does not rise to the level of an adverse
employment action. See e.g., Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633
(1998) ("[a] tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits" and a "bruised ego" is not enough) (quoting Flaherty
v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir. 1994));
Brown, 199 F.3d at 457 (a lateral transfer and a letter of
admonishment, absent "some other materially adverse consequences
affecting the terms, conditions, or privileges of employment" are
not adverse employment actions for the purposes of Title VII)
(citing Smart v. Ball State University, 89 F.3d 437, 441 (7th
Cir. 1996) ("not everything that makes an employee unhappy is an
actionable adverse action")).
Because Ms. Russ has not demonstrated that she suffered an
adverse employment action from Mr. Schoonmaker, summary judgment
is granted to defendants on Count I.
III. Count II Sexual Harassment by Mr. Grimm on December 9
Ms. Russ alleges that when Mr. Grimm made a number of sexually
explicit and offensive comments to her at the Bottom Line after
the Van Scoyoc holiday party, he sexually harassed her such that
it was "sufficiently severe or pervasive to `alter the conditions
of [the victim's] employment and create an abusive working
environment.'" Meritor Savings Bank v. Vinson, 477 U.S. 57, 67,
106 S.Ct. 2399, 91 L.Ed.2d 49 (1985) (quoting Henson v. Dundee,
682 F.2d 897, 904 (11th Cir. 1982)).
The defendant alleges that this one incident at the Bottom
Line, while certainly offensive and unfortunate, is not severe
enough to reach the level of actionable conduct under Title VII.
See Defendants' Memorandum at 31-32. The Court agrees. While
Mr. Grimm's conduct is clearly offensive, degrading, and should
have no place in a working environment, the Supreme Court has
articulated a clear standard — "isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the `terms and conditions of employment.'" Faragher v. Boca
Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662
The plaintiff argues that in some cases a single incident is
sufficient to qualify as hostile workplace sexual harassment.
See Plaintiff's Opposition at 18. Plaintiff cites two cases,
Smith v. Sheahan, 189 F.3d 529 (11th Cir. 1999), and Lockard
v. Pizza Hut, 162 F.3d 1062 (10th Cir. 1998), in support of this
proposition. In Sheahan the 11th Circuit found that a single
incident was sufficient to alter the terms of the workplace, when
a woman was assaulted so severely that she required
reconstructive surgery. 189 F.3d at 531. In Lockard the 10th
Circuit found that an isolated incident where a restaurant patron
grabbed the hair of a waitress, pulled her breast toward him and
put his mouth on it was sufficient to constitute a Title VII
violation. 162 F.3d at 1072. The distinction between these two
cases and the present case is clear. In both Lockard and
Sheahan the plaintiffs were physically assaulted. Without
minimizing the disturbing nature of Mr. Grimm's comments to Ms.
Russ, since there was no physical contact his conduct was simply
not "extremely serious" in the same way.
Summary judgment in favor of the defendant on this count is
IV. Count III Retaliation in Violation of Title VII
Ms. Russ alleges that she did not receive the raise or bonus
that she claims she was promised in October of 1997 after these
incidents happened and after she reported them to Ms. Haley. She
claims that the reduction in her raise and bonus were in
retaliation for reporting Mr. Grimm's conduct to Ms. Haley.
For a plaintiff to prove that she was retaliated against, she
must prove that (1) she engaged in protected activity, (2) she
suffered an adverse employment action, and (3) the adverse
employment action was caused by the protected activity. See
Jones v. Washington Metropolitan Area Transit Authority,
205 F.3d 428, 433 (D.C.Cir. 2000).
The defendant has not argued that Ms. Russ did not engage in a
protected activity. The Court finds that there are two distinct
instances of protected activity she engaged in. First, she
reported Mr. Grimm's conduct at the Bottom Line on December 9,
1997. Second, she arrived with an attorney to discuss her
employment on January 6, 1998. Ms. Russ has met her burden with
respect to this first element of her retaliation claim.
With respect to the second element, the defendant argues that
because "plaintiff had little more than a subjective expectation
about her possible raise and bonus" she did not suffer an adverse
employment action. Defendants' Memorandum at 39. Were it the case
that Ms. Russ had only a "subjective expectation about her
possible raise and bonus" the defendant's argument would succeed.
However, the plaintiff has produced enough evidence that there is
a "genuine issue of material fact" as to whether she was promised
the increased salary and bonus. Anderson v. Liberty Lobby,
477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In October of 1997, Ms. Russ was approached by her roommate
about an opportunity at her roommate's employer which paid
$35,000 a year. See Plaintiff's Opposition, Ex. 2 Russ
Deposition at 119. Ms. Russ spoke with Carolyn Fuller and Janet
Buckley about this other job, and about her dissatisfaction with
her current salary. See id. Ms. Fuller told Ms. Russ that by
the end of the year, she "would be where she wanted to be." See
id. Since the alternative job she was considering paid $35,000 a
year, and this was made explicit to Ms. Fuller, she believed that
Ms. Fuller had promised to raise her salary to $35,000 a year.
See id. Ms. Russ also testified that Ms. Fuller told her that
she would receive a ten percent bonus. See id. at 122. Further,
Ms. Russ has testified that she was told she would be promoted to
legislative assistant at the same time she received the bonus and
raise. See id. at 116. To rebut this evidence, the defendant
has only proffered the testimony of Ms. Fuller, who doesn't
recall a meeting, but acknowledges that she had a number of
conversations about Ms. Russ's frequent requests for a higher
salary. See Defendant's Memorandum Ex. 3, Fuller Deposition at
15. There is enough evidence on this element of the plaintiff's
retaliation claim "that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S.
at 248, 106 S.Ct. 2505. The plaintiff has met her burden with
respect to this element of her claim.
The defendant further argues that there is no evidence of a
causal link between the protected activity and the adverse
employment action. The defendant claims that "[i]t is
uncontradicted that the decision regarding Ms. Russ' raise and
bonus was made a week before the December 8th and 9th events."
Defendants' Memorandum at 7. This is simply false. The plaintiff
has produced evidence that Mr. Van Scoyoc acknowledged that the
decision to finalize Ms. Russ's salary decision was made after
the incident at the Christmas party. See Plaintiff's
Opposition, Ex. 3, Van Scoyoc Deposition, at 34.*fn1 Under the
minimal evidentiary standards for the plaintiff to survive
summary judgment, this evidence is sufficient to show that there
is a genuine issue of fact as to when the decision about Ms.
Russ's salary was made. Where there is a small gap in the amount
of time between the protected conduct and the adverse employment
action and the employer had knowledge of the protected action,
that is sufficient to establish the plaintiff's case if
unrebutted. See, e.g., Carney v. American University,
151 F.3d 1090, 1094 (D.C.Cir. 1998); Mitchell v. Baldrige, 759 F.2d 80,
86 (D.C.Cir. 1985).
Similarly, plaintiff's retaliation claim with respect to the
January 6, 1998 meeting is strong enough to overcome summary
judgment. There is sufficient evidence for a jury to find that
Mr. Van Scoyoc did not accept her resignation in December, and
that she was then terminated at the January meeting. Termination
is unquestionably an adverse employment action. Further, the
adverse action happened as soon as Mr. Van Scoyoc learned that
Ms. Russ had brought counsel with her to the meeting. See
Plaintiff's Opposition Ex. 5 Convisser Deposition at 27-28, Ex. 3
Russ Deposition at 151-52. The motion for summary judgment on
this count is denied.
V. Count V — Retaliation under the DCHRA
The defendants argue that several of Ms. Russ's retaliation
claims under the DCHRA are time-barred by the DCHRA's one year
statute of limitations. See Defendants' Memorandum at 37. Since
this suit was filed on December 28, 1998, only the meeting on
January 6, 1998 was within the statute of limitations.
The plaintiff argues that the other events are timely filed
under the continuing violation doctrine. See Plaintiff's
Opposition at 36-37. The D.C. Circuit has held that "to establish
a continuing violation, a plaintiff must show `a series of
related acts, one or more of which falls within the limitations
period,' or the maintenance of a discriminatory system both
before and during the [statutory] period." Anderson v. Zubieta,
180 F.3d 329, 336 (D.C.Cir. 1999) (quoting McKenzie v. Sawyer,
684 F.2d 62, 72 (D.C.Cir. 1982)). In this case, plaintiff is
alleging that there were two distinct retaliations, one in
December when Ms. Russ was retaliated against for reporting Mr.
Grimm's conduct, and the other when she was retaliated against
for bringing her attorney with her to the January meeting. These
are not "a series of related acts" nor do they stem from "the
maintenance of a discriminatory system." They are merely two
similar events, one of which happened before the statute of
limitations period, the other happened within that period.
Since the legal standard under the DCHRA is the same as the
standard under Title VII, see Howard University v. Green,
652 A.2d 41, 45 (D.C. 1994), the defendants' motion for summary
judgment on the retaliation claim under the DCHRA is denied for
the reasons set forth above. See supra Part IV.
The events in December 1997 are insufficiently related to the
events in January 1998 to qualify as a continuing violation.
Summary judgment on all claims under the DCHRA which happened
before December 28, 1997 is granted, and summary judgment on the
retaliation claim arising under the DCHRA for the January 6, 1998
meeting is denied.
VI Count IV Constructive Discharge
Count IV of the complaint alleges that Ms. Russ was
constructively discharged by Van Scoyoc Associates. The defendant
alleges that constructive discharge is not an independent cause
of action in the District of Columbia. See Defendant's
Memorandum at 35-36. The Court agrees.
In the context of employment discrimination cases, a plaintiff
makes what courts have called a "constructive discharge claim"
when she alleges that she was discriminated against and she was
forced to quit as a result of the discrimination and aggravating
circumstances. However, this is a part of the plaintiff's
discrimination case, and not an independent theory, of liability.
Establishing that the employee was constructively discharged is
one way of establishing an element of a discrimination claim,
that the plaintiff suffered an adverse employment action.
Terminologically, courts may adopt the phrase "constructive
discharge claim" to refer to a subset of employment
discrimination claims where the adverse employment action was a
constructive discharge, but this does not establish that there is
a cause of action for constructive discharge independent of an
employment discrimination action. For an example of this kind of
use of the term see Bishopp v. District of Columbia,
788 F.2d 781, 782 (D.C.Cir. 1986), "We reverse the district court's
judgment on the promotion claim, vacate the judgment as to the
retaliation and constructive discharge claims, and remand all the
claims for further consideration." Further, this statement of the
law comports with the practice in this Circuit. See e.g., Mungin
v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C.Cir. 1997)
(plaintiff could not maintain that he was constructively
discharged absent a showing of discrimination in violation of
Title VII); Dashnaw v. Pena, 12 F.3d 1112, 1115 (D.C.Cir. 1994)
(plaintiff can recover on a constructive discharge claim,
"despite the fact that she failed to allege the claim in either
her administrative notice or complaint") citing Clark v. Marsh,
665 F.2d 1168, 1172 n. 4 (D.C.Cir. 1981). The Court finds it
particularly compelling that although constructive discharge
charges have been made in employment discrimination actions,
contract actions, and cases dealing with labor disputes, the
Court was unable to locate a single case where the D.C. Circuit
considered an independent constructive discharge cause of action.
See id. (constructive discharge was a component of an
action); Beebe v. Washington Metropolitan Area Transit
Authority, 129 F.3d 1283, 1290 (D.C.Cir. 1997) (constructive
discharge was a component of a contract action); W.C. McQuaide,
Inc. v. NLRB, 133 F.3d 47, 51 (D.C.Cir. 1998) (constructive
discharge was a component of a labor dispute); Majewski v. B'Nai
B'Rith International, 721 F.2d 823, 823 (D.C.Cir. 1983) (same).
This statement of the law is also consistent with other federal
courts considering the issue. See, e.g., EEOC v. R.J. Gallagher
Co., 959 F. Supp. 405, 408 (S.D.Texas 1997) ("A claim of
constructive discharge is not an independent claim for recovery;
it is a counter-defense to the employer's defense that the worker
quit.") reversed on other grounds EEOC v. R.J. Gallagher Co.
181 F.3d 645 (5th Cir. 1999); Vitug v. Multistate Tax
Commission, 88 F.3d 506, 517 (7th Cir. 1996) (where a plaintiff
cannot demonstrate discrimination, "his constructive discharge
claim is doomed to failure"); Knabe v. Boury Corp.,
114 F.3d 407, 407 n. 1 (3rd Cir. 1997) (a "constructive discharge claim .
. . is not a separate ground for relief, but rather would factor
into the damages").
The Court holds that there is no independent cause of action
for constructive discharge. However, constructive discharge can
still be a part of plaintiff's retaliation claim as an adverse
Therefore, since there is no independent cause of action for
constructive discharge, Ms. Russ's constructive discharge claim
is proper only as a component of her Title VII claims. Since
Count IV is asserts an independent cause of action for
constructive termination, summary judgment on Count IV is
VII Punitive Damages
The defendants have argued that Ms. Russ's demand for punitive
damages should be struck. See Defendants' Memorandum at 41-42.
Punitive damages in Title VII cases are governed by
42 U.S.C. § 1981a, which holds that a plaintiff can recover punitive damages
only if she can demonstrate that the defendant "engaged in a
discriminatory practice . . . with malice or with reckless
indifference to the federally protected rights of an aggrieved
individual." The Supreme Court has explained that this section of
§ 1981 a requires that the employer know that it is acting with
malice or reckless indifference to the federally protected rights
themselves, not just to the fact that it is engaging in
discrimination or other bad conduct. See Kolstad v. American
Dental Assn., 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494
The only remaining claims in this action deal with retaliation
against Ms. Russ for engaging in protected activity. Since there
has been no evidence presented that Mr. Van Scoyoc or any other
person at Van Scoyoc Associates acted with malice or reckless
indifference to Ms. Russ's federally protected rights, the
plaintiff's demand for punitive damages is struck.
For the forgoing reasons, summary judgment is GRANTED to
defendants with respect to Counts I, II, IV, and all parts of
Count V based on events before December 28, 1997, and those
counts and parts are hereby DISMISSED. Summary judgment is DENIED
on Count III, and all parts of Count V based on events that
happened after December 28, 1997. The Court also GRANTS
defendants' motion to strike plaintiff's demand for punitive