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Lively v. Flexible Packaging Association

August 21, 2003


Appeal from the Superior Court of the District of Columbia (CA-13834-93) (Hon. Geoffrey M. Alprin, Trial Judge) (Reargued En Banc October 30, 2001

Before Wagner, Chief Judge, Terry, *fn1 Steadman, Schwelb, Farrell, *fn2 Ruiz, Reid, Glickman, and Washington, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Reid, Associate Judge

On June 11, 2001, this court issued an order vacating the panel decision in Lively v. Flexible Packaging Ass'n, et al., 765 A.2d 954 (D.C. 2001), an employment discrimination case in which the majority affirmed a trial court judgment overturning a jury verdict in favor of appellant Gaye Lively, and against appellees Flexible Packaging Association ("FPA") and Mr. Glen Braswell ("Mr. Braswell"), *fn3 on her claims of a sexually hostile work environment, unequal pay, retaliation for an assertion of her rights under the District of Columbia Human Rights Act ("DCHRA"), and intentional infliction of emotional distress. See Lively v. Flexible Packaging Ass'n, et al., 773 A.2d 1033 (D.C. 2001). *fn4 After the en banc oral argument on October 30, 2001, we held the case in abeyance pending the Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). After Morgan was decided, we asked the parties to file supplemental briefs discussing its impact on Ms. Lively's case.

We hold that Ms. Lively filed her hostile work environment claim in a timely manner and that a reasonable person, viewing the evidence in the light most favorable to her, could reach a verdict in her favor. Therefore, as to that claim, we reverse the trial court's grant of judgment notwithstanding the verdict in favor of appellees, and remand that claim to the trial court with instructions to (1) reinstate the jury's liability verdict and the compensatory damages award attached to that claim, and (2) consider the reasonableness of the punitive damages award in a manner consistent with this opinion. We also adopt, for cases filed under the DCHRA, the Supreme Court's hostile work environment analysis governing federal civil rights claim s as it is set forth in Morgan, supra, and reaffirm the legal principles relating to a hostile work environment claim that we articulated in Daka, Inc. v. Breiner, 711 A.2d 86 (D.C. 1998). *fn5


The record before us shows that Ms. Lively began her employment at FPA in 1980, while Richard Lillquist was President of the association. *fn6 She was hired initially as a secretary, was promoted in 1981 to Assistant to the President, and received promotions in 1982 and 1983, respectively as Meetings Manager, and Director of Administration and Meetings. All of her performance ratings were "positive" and "above average"; and resulted in pay increases. There were no problems with the work environment. In fact, Sheron Edward Weary, who testified for Ms. Lively and who was employed at FPA from 1981 to 1992, described the environment under Mr. Lillquist as "[a] normal business-type of atmosphere."

Mr. Lillquist left FPA in 1985, and on March 1, 1986, FPA selected Glen Braswell as President. Beginning in or around 1986/1987, Mr. Braswell, and Richard Thornburg, who was hired by Mr. Braswell in 1987 as Director of Government Relations, began to make comments about females within the hearing of FPA's female employees. Mr. Weary indicated that these comments did not occur "routinely or every day," but "periodically during the time that [he] was there." According to Ms. Lively's testimony at trial, however, after the arrival of Mr. Thornburg, he and Mr. Braswell referred to women as "bimbos," "hookers and prostitutes and old maids and dykes and girls . . . [o]n a daily basis." *fn7 They also focused on women's breasts and buttocks, referring to them as "boobs" and "asses."

In or around 1987, Mr. Braswell and Mr. Thornburg were involved in certain incidents concerning female employees at FPA. Around January 1987, Marjina Kaplan was hired as a consultant at FPA, and became Director of Marketing and Communications in August 1987. Sometime in the fall of 1987, Mr. Braswell called Ms. Kaplan and asked her to arrange for a male stripper for Ms. Lively's birthday. He instructed Ms. Kaplan to "use [her] own personal credit card to pay for [the stripper]" and informed her "that FPA would reimburse [her] . . . ." On her birthday, Mr. Braswell called Ms. Lively into his office, told her to sit in his overstuffed reading chair; the male stripper moved to the front of the chair and "disrobed down to nothing but a G-string. . . ." Ms. Lively became "really red in the face." She "was pinned into the chair" with the stripper "straddl[ing it]." Mr. Braswell "took pictures of the m ale stripper" and "laughed." *fn8 Some of the women who had gathered in the doorway "just turned and walked away . . . ." Mr. Weary described "feeling . . . nervous" about the incident because women were present. He noted that Ms. Lively "initially . . . [was] good humored about the [stripper],"as were others, but that when he observed her "a couple of times, . . . she looked kind of stricken . . . , like she was cornered and wasn't sure what was going on . . . ."*fn9

Another incident took place in mid-December 1987 while Mr. Braswell, Mr. Thornburg, Ms. Lively, Ms. Kaplan and two other FPA employees, Lisa Greig and Cindy Daneker Gray, were in Houston, Texas on FPA business. The incident was memorialized by Ms. Kaplan in a file memorandum, dated December 29, 1987. Ms. Kaplan was seated next to Mr. Thornburg in "a limousine [that] had been hired to transport [FPA] staff [and their host, Jeff Siebenaller] to various points around Houston." While Ms. Lively was stepping into the limousine, Mr. Thornburg "pulled her into the car, urging her to sit on his lap because, he said, he wanted to 'look down [Ms. Lively's] cleavage.'" During the same trip, when Ms. Kaplan suggested that she did not want to go to a disco after dinner, and would rather return to the hotel, Mr. Thornburg told her: "If you value your career, you'll go along [to the disco]." Mr. Siebenaller told the women who were on the Houston trip that "he found [Mr. Thornburg's remarks to be] unprofessional and objectionable." He indicated that he planned to call Mr. Braswell within a few days "to express his negative reaction to [Mr. Thornburg's] language." *fn10

Ms. Lively received complaints from Ms. Greig and Ms. Gray in October 1987, in her capacity as Director of Administration and Meetings. She communicated the complaints to Mr. Braswell who instructed her to relay them to Mr. Thornburg. Mr. Thornburg initially denied the accuracy of the complaints, but then told M s. Lively: "I w ill not do it again." On December 18, 1987, following the Houston trip, Ms. Kaplan also conveyed Ms. Greig's and Ms. Gray's complaints to Mr. Braswell. She alerted him to Mr. Siebenaller's plan to call him about Mr. Thornburg's behavior. Mr. Braswell became angry, and according to Ms. Kaplan, "things began to change after that."

Prior to reporting the complaints to him, Ms. Kaplan had received favorable oral comments from Mr. Braswell in 1987 about her work performance. Mr. Braswell provided written evaluations of Ms. Lively in June and again in December 1987. He wrote in June 1987: "I view your performance during the last 12 months as cooperative, productive and totally dedicated to the performance of your duties." The evaluation for December 1987 reflects Mr. Braswell's assessment of Ms. Lively's "overall writing, speaking, and listening abilities" as "developed."

Other than the use of offensive language about women, the record evidences no remarkable incidents involving Ms. Lively and other FPA female employees, and Mr. Braswell and Mr. Thornburg in 1988, although the impact of the 1987 complaints by Ms. Kaplan and Ms. Lively materialized around December 1988, at the time yearly performance ratings were due. *fn11 For the year 1988, Mr. Braswell generally described Ms. Kaplan's communication skills as "below standard" or "unacceptable." Her overall performance rating was "below standard." He rated eight tasks performed by her in four different areas of communications. One task was rated as "effective," two as "below standard," and five as "unacceptable." Yet, as in 1987, in the "skills evaluation" section of the rating form, he rated her communications skills ("overall writing, speaking, listening abilities") as "well developed." On the "overall evaluation" section of the 1988 rating form, Mr. Braswell marked the box "below standard." In the "additional comments" section of the overall evaluation section, Mr. Braswell wrote that Ms. Kaplan "has been a source of staff disruption and discontent on several occasions both within and without her department, i.e., (1) Reported to President [of FPA] allegations of sexual harassment of members of her department and others by another FPA staff member. Subsequent investigation found charge to be unfounded . . . ." *fn12

Ms. Kaplan wrote a letter of complaint to the FPA Board, rebutting her negative performance evaluation. Similar to his evaluation of Ms. Kaplan, Mr. Braswell criticized Ms. Lively's writing, speaking, and listening communication skills in 1988, characterizing them with the words: "needs development."

By 1989, the FPA Board had become aware of the accusations against Mr. Braswell. On January 9, 1989, the Compensation and Personnel Committee met with Mr. Braswell. The Committee Chairman, David E. McFarlane, read his written statement to Mr. Braswell, which included the following:

Needless to say, or perhaps it does require saying, too much of our time has been spent agonizing over events and situations you have created. To name just two that have affected me - the "whores and hookers" comment to staff prior to the last annual meeting put a damper on that meeting for me and the staff. The telephone calls from [Ms. Kaplan] and others just prior to Christmas concerning her resignation and other internal affairs ha[ve] caused me considerable worry during a season that is supposed to be festive.

Mr. McFarlane added a specific comment relating to M r. Braswell's handling of complaints by female employees:

Another point I want to speak of is a personal perception. You are a chauvinist. You appear to have a tendency to demean women and their abilities, at the same time advancing and promoting the career of [Mr.] Thornburg. While I do not want to debate the sexual overtones (harassment?) attributed to [Mr. Thornburg], I feel the charges were true and your handling of the situation with a "trial" is a ludicrous management style. While you are a lawyer, you should not have trials to discuss a staff problem with yourself as the jury and judge. As the judge and boss you can ruin the career of an "unfriendly" witness. I certainly would disclaim harassment if my job were on the line.

Ms. Gness described the atmosphere at FPA which confirmed the presence of a demeaning attitude toward women, in which women's abilities were questioned: "Women were referred to as bimbos. It was sort of entities without any real substance, airheads." And, in her June 15, 1994 affidavit, Ms. Kaplan declared that "[Mr.] Braswell ma[d]e inappropriate and demeaning comments about and to women employees on a regular basis." She indicated that "[h]e also gave [her] vague and confusing tasks which he never intended for [her] to complete and for the purpose of criticizing [her] when they w ere not done."

Following his January 9, 1989, meeting with the Compensation and Personnel Committee of the FPA Board, an angry Mr. Braswell instructed FPA employees not to make any complaints directly to the Board without first bringing them to him, and accused Ms. Lively not only of reporting him to the FPA Board, but also of being a "liar." Ms. Lively engaged an attorney who sent a letter on February 21, 1989 to Malcolm McArthur, FPA's legal counsel, with a copy to the chairman of FPA's Board, Andrew Levy. *fn13 Later, a meeting took place between FPA's counsel, Ms. Lively and her counsel, and two other FPA employees. Also, in early 1989, the FPA Board sent Mr. Braswell to the Farr Institute for management and communications training.

Ms. Lively recalled no "inappropriate, offensive statement" made directly to her by Mr. Braswell in 1989. Nor did she remember Mr. Thornburg "mak[ing] any inappropriate, discriminatory, harassing or abusive comments directly to [her]" in 1989. Both men, however, were "making offensive comments of a sexual nature in the office for the year[] 1989. . . ." Moreover, while Ms. Lively's 1989 performance evaluation had negative aspects, especially in the "overall writing, speaking and listening abilities" category, it was not as negative as Mr. Braswell's 1988 evaluation of her.

Ms. Gness, who had been hired in 1988 by FPA, remembered that pregnant female employees at FPA were called "preggers," and women were referred to as "bimbos." She also recalled an incident when she traveled with Mr. Braswell and Mr. Thornburg to an annual meeting of state legislators. While they were in a bar at the end of the day, both men "were flirting with the waitress" whose name was Bambi, and began to joke and laugh about a lingerie show that was scheduled to commence within one hour. Ms. Gness felt uncomfortable and left. During 1990, the FPA Board, which had continued to monitor the administration of the organization, received a complaint from Ms. Gness after she was given a negative performance evaluation by Mr. Braswell in 1990. Mr. Braswell criticized her writing ability, even though her work was "frequently recognized in [FPA's] monthly newsletters," and she had been a newspaper reporter prior to commencing work at FPA. Ms. Gness resigned from FPA in March or April 1990. Similar to Ms. Gness' evaluation, Mr. Braswell also criticized Ms. Lively's writing skills in 1990. *fn14

On August 8, 1990, the President of FPA, then John R. Woolford, Jr., sent a letter to Mr. Braswell, stating in part:

Let me go right to the point. There is a perception that Gaye Lively is being painted unfairly into a corner and some senior m embers of the association are unhappy about it . . . .

The second perception is that you are overly quick to defend [Mr. Thornburg].

In his deposition and trial testimony, Michael McNamara, an FPA Board member, and Chairman of the Board in 1992, acknowledged that "back in 1990[,] [Mr. Woolford] had put specific restrictions on Mr. Braswell in his treatment of [Ms.]Lively," and had indicated that Mr. Braswell "was not to be critical of her." During Mr. Braswell's trial testimony, he was asked: "As a result of Mr. Woolford's concerns as Chairman of the Board of FPA, he placed a specific restriction on you not to discipline or criticize Ms. Lively; correct?" Mr. Braswell responded: "That is correct." Moreover, in August 1990, Mr. McNamara and another Board member, Jerry West, met with Mr. Braswell to discuss the situation with Ms. Lively, and Mr. Braswell's management style. Personnel issues also were discussed with Mr. Braswell in Fall 1990, when Mr. Braswell "apologized" and "thanked [Mr.] Woolford and [Mr.] West for their assistance and said 'This will not happen again.'" In January 1991, Mr. Woolford wrote a memorandum to the FPA files documenting his conversations with Mr. Braswell and his "management style." He ended the memo by writing:

There have been no re-occurrences of personnel issues in the fourth quarter of 1990. I am not naive enough to feel the one session with Farr Associates changed [Mr. Braswell's] basic management style. However, I do feel he is trying to be a better manager and he is aware of the problem he will have if he runs 'wild' again.

Ms. Lively did not encounter any direct discriminatory, harassing or abusive comments or conduct from either Mr. Braswell or Mr. Thornburg in 1991. She sustained a hip injury at work in November 1991 when she bumped into the corner of a desk while renovation work was underway, but continued to work at FPA.

In 1992, around March, Mr. McNamara became Chairman of the Board. In addition, around May or June 1992, Mr. West, in his capacity as Chairman of the Personnel Committee, removed the restriction on Mr. Braswell's criticism of Ms. Lively.

Comments with sexual overtones were made by Mr. Thornburg and Mr. Braswell in 1992, shortly before and after the restriction on Mr. Braswell was lifted. In February 1992, while Ms. Lively "was bent down at [a] file cabinet," Mr. Thornburg said: "Lively, every time I see you, you're on your knees." When Ms. Lively responded: "No, I'm not. And what do you mean by that comment," Mr. Thornburg answered: "That's not the talk going on in the barbershop."*fn15

Another incident took place within a month or two after the restriction on Mr. Braswell was removed. At a July 1992 meeting of FPA staff directors, which Mr. Braswell attended, Mr. Thornburg "made the comment that to get state legislators into [an] FPA [trade show] booth, they would just put [a female FPA employee,] Tammy [Poston] in a short skirt and put her out in the aisle, and that would bring state legislators into the booth so FPA could talk to them." In October 1992, during a meeting in Florida of twenty FPA male staff members, Mr. Braswell arrived late and sat opposite Ms. Lively. He asked Jim O'Leary, who was seated at the head of the table, and who was the chairman of a committee that worked with Ms. Lively, "[W]ere you in [Ms. Lively's] room last night conducting membership business?" Ms. Lively became "upset" because she understood M r. Braswell's question to be, "[W]as [Mr.] O'Leary in [her] room having sex?" Also, on December 11, 1992, Ms. Lively was in the copying room when Mr. Braswell entered while a female FPA employee, Katherine Hyde, was discarding books. W hen Ms. Hyde "asked Mr. Braswell to help her retrieve the[] books," he declared: "Don't you know I've had a hernia operation and I can't help you retrieve these books? You're the dumbest girl I've ever seen." *fn16

Mr. Braswell placed two letters written in October 1992 by persons outside of the FPA staff into Ms. Lively's personnel file, as examples of her alleged deficient communication skills. One of the letters came from Robert O. Kentworthy, at Mr. Braswell's request that he "reduce to writing his oral complaint . . . ." The other letter, from Len Levy, asked for a clarification of remarks made by Mr. Braswell at a Membership Committee meeting. In a December 11, 1992 letter to Ms. Lively, ...

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