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Daka, Inc. v. McCrae

December 24, 2003


Appeal from the Superior Court of the District of Columbia (CA-7505-97) (Hon. Susan R. Winfield, Trial Judge)

Before Steadman, Farrell, and Glickman, Associate Judges.

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

Argued October 21, 2003

Daka, Inc. (hereinafter Daka) appeals from a jury award to McCrae of $187,500 in compensatory damages, $4,812,500 in punitive damages, and $276,493.28 in attorneys' fees and costs, based upon findings that Daka had negligently supervised one of its managerial employees and had unlawfully retaliated against the plaintiff for his claims of sexual harassment by that employee. Although we find no basis on which to reverse the award of compensatory damages, we conclude that the award of punitive damages must be vacated in light of State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003), and the case remanded for determination of a proper award in light of that decision. *fn1


Daka is a corporation that provided catering and food services for Howard University. In 1996, Daka hired M cCrae as the Banquet Chef in the catering department at the University. His immediate supervisor was Cordell Thomas, a Daka manager and the catering director. In 1997, McCrae brought suit against Daka and Howard University alleging numerous causes of action, chief of which -- as relevant here -- were that the defendants (1) had created a sexually hostile work environment by permitting Thomas to subject McCrae "to pervasive conditions of sexual harassment"; (2) had negligently supervised Thomas in the performance of his managerial duties; and (3) had retaliated against McCrae, in violation of D.C. Code § 1-2525 (1981) (now D.C. Code § 2-1402.61 (2001)), first by effectively demoting him and then by firing him after he complained of sexual harassment by Thomas. The allegations against Howard University were eventually dismissed, and at the conclusion of McCrae's case at trial, the court dism issed the hostile work environment claim on statute of limitations grounds, concluding that McCrae had failed as a matter of law to prove a discriminatory act by Thomas within the year preceding the filing of the complaint, as required by D.C. Code § 1-2556. *fn2 Accordingly, the case was submitted to the jury on the claims only of common law negligent supervision and statutory retaliation.

Regarding those claims, McCrae presented evidence which, when viewed in the light most favorable to the judgment, permitted the jury to find the following facts. As Banquet Chef McCrae was an hourly employee regularly working 65-70 hours a week. *fn3 In that job, which required creativity in preparing meals, he supervised a staff of 20-30 employees. An array of witnesses, including McCrae, testified that Thomas would talk openly and repeatedly during work about his private sexual activities, hire male employees on the basis of their sexual attractiveness, and attempt to condition continued work by employees on their com pliance with his sexual demands.

Specifically, McCrae, Clara Legett (an employee supervised by McCrae), and Charles Randall (a general utility worker), testified that Thomas would boast loudly and graphically in the kitchen about his sexual exploits the night before. Randall also testified that Thomas had hired him by mistaking him for another applicant (Robert Floyd) whose looks Thomas admired physically, after which Thomas created a new position for Floyd and made sexual advances to him. According to Floyd, Thomas told him that if he came to work, looked good, and stayed close to Thomas, he would not have to do any work. Thomas's overtures to Floyd were so regular and notorious that fellow employees called Floyd "Cordell's girl." A witness for Daka, Kathy Washington, admitted that Thomas would hire men if he thought they were cute, and would give them fewer duties than other employees.

McCrae testified th at early in May 1996, Thomas asked him out for dinner and drinks, and that when he declined the offer Thomas began harassing him while claiming that Howard University management would protect him from any claims of sexual harassment. Thomas told McCrae that he was hired for the way he looked in pants, causing McCrae eventually to order chef's pants two sizes larger. On one occasion when Thomas saw McCrae yawning, he told him to "be careful where you open your mouth[, because y]ou might find something in it." Thomas would also approach McCrae from behind and massage his arms and shoulders until McCrae jerked away; McCrae asked Legett to change work stations with him so he could avoid this contact. At least once, Thomas rearranged things in the refrigerator and told McCrae to retrieve things from the bottom shelf, then moaned as McCrae bent down, saying "I would like to have some of that." Floyd testified to similar unwanted touching by Thomas.

At a mid-May catering function, McCrae complained to Thomas that one of the cooks was undependable. Thomas responded by smacking McCrae in the face and telling him that the cook was going to stay because he was Thomas's "baby." When the argument continued later that night, Thomas told M cCrae he was fired. The next day, McCrae told Victoria Cruickshank, who was Thomas's supervisor and a Daka General Manager, about the incident. She at first denied knowing Thomas had fired him and told McCrae to go back and talk to Thomas about it. After he did so and Thomas "rehired" him, McCrae again talked to Cruickshank, who now admitted awareness of what had happened. Legett testified that Cruickshank was present "several times" when Thomas would brag about his sexual exploits: Cruickshank, Roberta McLeod (a Howard University supervisory employee), and others "would sit in [Thomas's] office and . . . talk and laugh about Mr. Thomas's sexual activities . . . the night before." Legett also heard Thomas say that since Cruickshank and McLeod were his friends, they would not let anything happen to him. McLeod later stated, in front of Cruickshank, that she "wasn't stupid" and knew about the sexual harassment by Thomas, which had been going on for years.

McCrae further testified that in this same May 1996 period, he noticed that his work hours were dropping. Legett observed the decrease and heard McCrae complain about it. When McCrae protested to Thomas, he replied that there was nothing McCrae could do about it because he (Thomas) was management, and Cruickshank and McLeod would not let anything happen to him.

McCrae tried to meet with Cruickshank to complain of the harassment, but she would not set up a meeting. On August 15, 2000, he was called to a meeting with McLeod and Cruickshank for unrelated reasons; near the end of the meeting, he told both supervisors that Thomas had been sexually harassing him, which prompted McLeod to say -- as mentioned earlier -- that she knew it had been going on for years and was surprised that no one had complained earlier. Following this meeting, McCrae made his allegations of harassment in writing. Cruickshank and McLeod began investigating them, but, according to Charles Randall, they asked employees whether McCrae had been sexually harassing anyone, rather than Thomas. To McCrae's question "why [he] was being investigated instead of Mr. Thomas," Cruickshank replied that she "had the authority to investigate whomever she [chose]." McCrae testified that his hours were cut even more at the end of August, and co-workers Legett and Dorothy Cabell confirmed that he was receiving fewer work hours despite the availability of work.

On September 18, 2000, McCrae met with Kevin Lyden, a Daka vice-president, and told him of the "unwanted touching [by Thomas], the staring, the retaliation, the cuts in hours, [and] that no one was stopping it." Lyden answered partly that "this was a five million dollar account [with Howard University] and that he wasn't going to lose it." On September 20, Lyden met with four witnesses individually who variously described Thomas's actions, his preference for employees who were "cute," and his practice of conditioning work on sexual favors. Lyden also spoke to Thomas, who denied the allegations. Lyden then formally ended the investigation, writing that he was unable to substantiate "McCrae's and various other associate[d] claims of sexual harassment by . . . Thomas."

Also on September 20, McCrae asked Cruickshank to be transferred to the faculty dining room. On September 24, Thomas wrote to Cruickshank that he "felt compelled to relieve McCrae of his duties at least until the fall convocation, if not permanently." McCrae was transferred to the Bethune Annex of Howard University as a cafeteria line worker in the student cafeteria. The job entailed no responsibility or managerial functions, required no creativity, and, in addition to the loss of his job title, carried with it no opportunity for overtime work. On his first day in the cafeteria, McCrae's personal workstation was broken into at the direction of Thomas (who wanted to see if any "Daka items" were there), and papers of his were taken. When McCrae wrote Cruickshank asking to be returned to the catering department ("I needed to get back to where I am the catering chef, the banquet manager, something that holds a title whe[re] I can move on . . . quickly"), Cruickshank did not respond for a month and then denied the request, saying McCrae was doing a "great job" in the cafeteria.

Less than two weeks later, Cruickshank suspended McCrae after a dispute he had with his new supervisor, Arkel Roane, on November 18 over whether a car that had blocked a loading zone at Bethune Annex belonged to McCrae. In December, McCrae was formally terminated by Cruickshank and Lyden, ostensibly because of that "gross misconduct" which, according to the termination notice, had caused Howard University to bar McCrae from work in its food service facilities. Roane, on the other hand, testified that the events of November 18 had been only a "distraction" and a "little occurrence," which he did not believe sufficient to warrant termination.


We begin with Daka's challenges to the jury's findings of liability for negligent supervision and retaliation. Regarding the first, Daka argues mainly that McCrae did not offer proof that Daka had notice of Thomas's proclivity to harass employees sexually before McCrae "suffered harm as a result of that propensity" (Br. for App. at 19) -- in time, that is, for Daka to take supervisory m easures to prevent the harm. See Brown v. Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001) (quoting Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985)) (to establish negligent supervision, "it is incumbent upon a party to show that an employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee"). In a case such as this, where McCrae presented evidence that he was sexually harassed by Thomas continually over a several-month period, McCrae did not have to prove Daka's knowledge of Thomas's abusive habits before the acts directed to McCrae began in May 1996. There was, in our view, sufficient evidence for the jury to find that Daka had knowledge, actual or constructive, of Thomas's habits well before his actions tow ard McCrae ended in August. *fn4 Thomas's supervisor, Cruickshank, a Daka general manager, was present with McLeod of Howard University when Thomas repeatedly bragged of his private sexual exploits. More tellingly, multiple witnesses testified that Thomas boasted openly and notoriously of his preference for male employees who were cute, and to his habit of favoring those among them who "stayed close to him." Cruickshank could be inferred to have known what McLeod (her Howard University counterpart) knew, which was that Thomas's sexual harassment of employees was longstanding. And, as to McCrae, she could be inferred to have known that when Thomas fired him in May (then reinstated him), the action reflected pique at a complaint that one of his "bab[ies]," another cook, was being favored over those employees who resisted his advances. Altogether, the jury could reasonably find that when Thomas told others, including McCrae, that his ties with management -- specifically Cruickshank and McLeod -- would shield him from any claim of sexual harassment, he spoke accurately about Daka's knowledge of Thomas's ongoing abusive behavior. That same evidence permitted the conclusion that Daka, at the least, was negligent in not taking action to prevent the conduct.

We further reject Daka's argument that McCrae failed to prove legally sufficient evidence of retaliation. To prove this statutory violation, see D.C. Code § 2-1402.61 (2001), McCrae had to establish that "(1) [he] was engaged in a protected activity, or that [he] opposed practices made unlawful by the DCHRA [District of Columbia Human Rights Act]; (2) [Daka] took an adverse personnel action against [him]; and (3) a causal connection existed between the two." Howard Univ. v. Green, 652 A.2d 41, 45 (D.C. 1994). "[T]he onus is on the employee to clearly voice [his] opposition to receive the protections provided by the Act"; general complaints about "workplace favoritism" or other conduct not actionable under the DCHRA do not put the employer on the required notice. Id. at 48. We agree with Daka that McCrae did not voice a complaint or opposition satisfying this test until August 15, 2000, following his meeting with ...

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