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Lively v. Flexible Packaging Association

January 11, 2001


Before Reid and Washington, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Senior Judge Belson.

Appeal from the Superior Court of the District of Columbia (Hon. Geoffrey M. Alprin, Trial Judge)

Argued September 21, 1999

Opinion concurring in part and dissenting in part by Associate Judge Reid at p. 34.

Belson, Senior Judge: At trial, a jury found appellees Flexible Packaging Association (FPA) and its president, Glenn Braswell, liable to appellant Gaye Lively for intentional infliction of emotional distress and, under the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 1-2501 et seq., for: (1) discrimination due to a hostile work environment; (2) discrimination due to unequal pay; and (3) unlawful retaliation. The jury awarded specific amounts of compensatory damages for each of the four counts, and a single lump sum of punitive damages for all four counts. Following the verdict, appellees filed a motion seeking judgment as a matter of law or, in the alternative, a new trial. The trial court granted judgment as a matter of law on all four counts, and also conditionally granted the alternative relief of a new trial on all counts. Appellant claims error in the overturning of the verdicts. For the reasons that follow, we affirm the grant of judgment as a matter of law on all of appellant's claims.


FPA is a trade association of companies that manufacture flexible packaging materials. The headquarters in Washington, D.C., with a staff of twenty, lobbies Congress on behalf of its membership. Gaye Lively began working at FPA in 1980 as a secretary. From 1980 to 1986, Mrs. Lively consistently received positive evaluations and corresponding promotions. In 1986, when Mrs. Lively was Director of Administration and Meetings, Glenn Braswell was hired as FPA's president and Mrs. Lively's ultimate supervisor. In 1990, Mrs. Lively became the Director of Membership, a position she held until her termination in 1993. In that role she had responsibility for recruiting new members and retaining current members for the association.

At trial, the jury heard evidence regarding Mrs. Lively's claim that she was sexually harassed on numerous occasions between 1987 and 1992 by Mr. Braswell and Rick Thornburg, FPA's Director of Government Relations. According to Mrs. Lively's testimony, while on a company trip in December 1987, in front of Mr. Braswell and a board member, Mr. Thornburg pulled her down on his lap in a limousine and said that he wanted to look down her cleavage. Also in 1987, Mr. Braswell had Marjina Kaplan, FPA's Director of Marketing and Communications, hire a male stripper for Mrs. Lively's birthday, an event that Mrs. Lively testified was humiliating to her. Mrs. Lively acknowledged that she and others had previously hired a female dancer to dance with bare midriff at a party for Mr. Braswell. At a management meeting in July 1992, Mr. Thornburg suggested that a female staff member wear a miniskirt to a government conference to attract state legislators to FPA's booth. Also in 1992, Mr. Thornburg made an offensive comment about Mrs. Lively always being on her knees. At a meeting in October 1992, with nineteen or twenty FPA members present, Mr. Braswell jokingly suggested that Mrs. Lively was having sexual relations with a board member. Mrs. Lively testified that Mr. Braswell and Mr. Thornburg frequently referred to women as bimbos, hookers, old maids, and dykes, and made derogatory references to women's bodies. *fn1 In addition, three other female employees testified that they were subjected to sexually offensive comments on a regular basis by Mr. Braswell and Mr. Thornburg.

Mrs. Lively testified that on several occasions she complained to Mr. Braswell about the above-described incidents. She also testified that two other female employees complained to her regarding comments made about their bodies by Mr. Thornburg, and that she conveyed these complaints to Mr. Braswell. She testified that another female employee complained to her about comments made to her by Mr. Braswell, but said that she did not report that comment to anybody because "what was the sense of reporting it to anybody? Nothing was being done." Mrs. Lively's expert witness, Dr. Sandler, opined that FPA's sexual harassment policy failed to provide specific procedures for handling complaints and did not provide any route for corrective action except through Mr. Braswell.

There was also evidence of Mr. Braswell's retaliatory conduct toward those who complained of his sexually harassing behavior. In particular, Marjina Kaplan testified that she was the target of Mr. Braswell's retaliation in 1988. Ms. Kaplan testified that after she informed Mr. Braswell of complaints made by female employees of sexual harassment by Mr. Thornburg, Mr. Braswell responded with a series of abusive and hostile acts against her that culminated in an unfounded "below standard" performance evaluation that led her to resign. At the time of her resignation, she wrote a memorandum to each member of FPA's Board of Directors ("Board"), describing Mr. Braswell's ongoing harassment.

As a result of Ms. Kaplan's memorandum, the Board's Compensation and Personnel Committee entered into the minutes of its special meeting of January 1989 a warning to Mr. Braswell about his management style. The Committee chairman's contemporaneous statement to Mr. Braswell went so far as to call him a "chauvinist," having "a tendency to demean women and their abilities." It also upbraided him for using the terms "whores" and "hookers" at a staff meeting. Though the Committee issued the warning, it took no other corrective action. According to Mrs. Lively, following Mr. Braswell's chastising by the Committee, he called a meeting of the staff directors. At this meeting, he accused Mrs. Lively of reporting his conduct to the Board, said that if she did she was a liar, and instructed the directors that they were not to complain to the Board.

In 1988, Mrs. Lively had received from Mr. Braswell her first unfavorable personnel evaluation, criticizing her written and oral communications. This was the third annual evaluation of her that he had performed.

Following this series of events, Mrs. Lively retained an attorney who wrote a letter to the Board in February 1989 complaining about Mr. Braswell's handling of the matter. Mrs. Lively testified that Mr. Braswell's negative attitude toward her became worse once he learned of the letter. The Board issued a letter to Mr. Braswell in August 1990, indicating that some senior members of the association were "unhappy" about what they considered unfair treatment of Mrs. Lively. The Board also sanctioned Mr. Braswell with an unusual restriction, preventing him from criticizing or disciplining Mrs. Lively. However, the Board, under a different chairman, lifted this restriction in 1992. In the meantime, Mrs. Lively was promoted to director of membership in late 1990.

In an incident unrelated to the alleged sexual harassment, Mrs. Lively injured her hip at work on November 18, 1991. She continued to work full-time until she underwent surgery a year later, in November 1992. After this surgery Mrs. Lively recuperated at home and then she worked in the office part-time in December.

On December 11, 1992, the last day that Mrs. Lively worked at the office, Mr. Braswell conducted a personnel evaluation of her. In the evaluation, Mr. Braswell advised Mrs. Lively that her communication skills were inadequate for her position as Director of Membership. As a result, Mrs. Lively was placed on probation for six months, and was required to undergo testing at a center which primarily served learning disabled children. The testing at the center was made a condition of her continued employment. In addition, Mr. Braswell indicated that if Mrs. Lively's problems with communication skills did not improve after she went to the center it was likely that she would be demoted. The letter was signed by Mr. Braswell and Michael McNamara, then Chairman of FPA's Board.

Mrs. Lively refused to undergo the testing, but offered two alternative testing solutions. Mr. Braswell responded in writing that he had checked out both alternatives before choosing the center he had specified, that one was unsuitable because it was designed to serve non- high school graduates up to the ninth grade level, and that the other, the Anne Arundel Community College, had informed him that it lacked diagnostic services. He added, however, that he would be interested in pursuing the community college if in fact it could offer such testing. He stated that FPA still regarded diagnostic testing at his suggested center as the appropriate first step, but indicated a willingness to accept another equally competent diagnostic center.

Mrs. Lively worked part-time from her home from December 1992 through March 1993. She was paid her full salary by FPA until May 1993, when she was placed on temporary total disability. It was during this period that FPA found it necessary to hire Jerry West, a former chairman of the Board, to perform Mrs. Lively's duties on a temporary basis from his home in North Carolina. *fn2 Mrs. Lively's position was eventually filled by a person who worked full-time in the office.

On June 11, 1993, Mr. Braswell informed Mrs. Lively that she must return to work with a full medical clearance on July 15, 1993, or be fired. Because Mrs. Lively was scheduled for surgery on July 8, 1993, she could not return to work and was terminated on July 15, 1993, seven months after her last appearance in the office. FPA explained that Mrs. Lively was terminated because of her inability to return to work in the office. [Tr. 6/17/96 p.22]

Mrs. Lively filed suit against Mr. Braswell and FPA on December 8, 1993, five months after her termination. At the conclusion of the trial, the jury returned a verdict in favor of Mrs. Lively on all four counts, awarding: (1) $156,600 for discrimination due to a hostile work environment; (2) $155,135 for discrimination due to unequal pay; (3) $91,823 for unlawful retaliation; and (4) $54,600 for intentional infliction of emotional distress (IIED). The jury also awarded Mrs. Lively the lump sum of $535,658 in punitive damages for all four counts.


Following the verdict, appellees filed a motion seeking judgment as a matter of law or, in the alternative, a new trial. The trial judge granted judgment as a matter of law on the unequal pay and retaliation claims, concluding that those jury verdicts were based on insufficient evidence. In the alternative, the trial judge ordered a new trial as to those counts based on his view that the verdicts were clearly against the weight of the evidence. The court also granted judgment as a matter of law as to the hostile work environment and emotional distress claims, concluding that, although the evidence was sufficient to sustain the jury verdict, these claims were time-barred. In the alternative, the court granted a new trial on those counts, not because the verdicts were contrary to the weight of the evidence, but because the jury's punitive damages award was unitary, i.e., a single lump sum based on all four counts, rather than apportioned among the various counts of the complaint.


"In determining whether or not the trial judge properly granted judgment for the defendant notwithstanding the verdict, the record must be viewed in the light most favorable to the plaintiff." Homan v. Goyal, 711 A.2d 812, 817 (1998) (citing Etheredge v. District of Columbia, 635 A.2d 908, 915 (D.C. 1993)). "The plaintiff is entitled to the benefit of every reasonable inference from the evidence." Id. (citations omitted). "Moreover, it is the responsibility of the jury (and not the judge) to weigh the evidence and to pass upon the credibility of the witnesses." Id. at 817-18 (citation omitted). "If impartial triers of fact could reasonably find the plaintiff's evidence sufficient, the case may not be taken from the jury." Id. (citing Finkelstein v. District of Columbia, 593 A.2d 591, 594 (D.C. 1991) (en banc)).

A. Unequal Pay

In order to succeed on an unequal pay claim, the plaintiff must establish that the employer paid men and women unequally "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Howard Univ. v. Best, 484 A.2d 958, 984 (D.C. 1984) (emphasis added). Mrs. Lively attempted to prove her claim by showing a disparity in pay between her position and those directorships held by men. The trial judge found, however, that Mrs. Lively's evidence was insufficient to enable a reasonable jury to find that these other director positions involved work equivalent to Mrs. Lively's director position. Specifically, the judge concluded that a comparison of the job descriptions of these various directorships revealed important differences in duties and required experience.

We agree that Mrs. Lively's evidence was insufficient to support a finding that she was performing substantially the same work as the other directors. Comparing the job description of Mrs. Lively's membership directorship with those of the other five directorships (Business and Economic Research, Finance and Administration, Government Relations, Operations and Technology, and Public Relations and Marketing) reveals important differences in experience and duties. Mrs. Lively's directorship (1) supervised the fewest persons; (2) did not require a bachelor's degree; (3) had minimal responsibility outside the organization; (4) had the lowest skill requirements; and (5) required the least experience.

Mrs. Lively contends that the jury's verdict should stand because it reflects a determination that, although she was not entitled to pay equal to that of the other directors, she was still underpaid relative to her worth. Before trial, Mrs. Lively framed her pay claim broadly enough to support such a verdict: "[s]exually discriminatory administration of salary and other benefits of employment." At trial, however, she limited her claim to one for "unequal pay," both in her requested jury instructions and on the verdict form. As her claim went to the jury, therefore, it was one for equal pay, which could succeed only upon proof that she performed substantially the same work. See, e.g., Gunther v. County of Washington, 623 F.2d 1303, 1321 (9th Cir.) ("Where a Title VII plaintiff, claiming wage discrimination, attempts to establish a prima facie case based solely on a comparison of the work she performs, she will have to show that her job requirements are substantially equal, not comparable, to [those] of a ...

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