Petitions for Review of a Decision of the District of Columbia Commission on Human Rights.
Before Farrell and Reid, Associate Judges, and Steadman, Senior Judge.*fn1
The opinion of the court was delivered by: Farrell, Associate Judge
The Psychiatric Institute of Washington and National Medical Enterprises (collectively, PIW) seek review of a final decision and order of the District of Columbia Commission on Human Rights awarding Ric Birch over $900,000 in compensatory damages, plus attorneys' fees and costs. PIW contends that the Commission improperly considered evidence of retaliation in awarding Birch damages for his sexual harassment-hostile work environment claim, and that the damage award was unreasonable and not warranted by the facts. Birch cross-appeals contending that the Commission should not have reduced the hearing examiner's larger recommended compensatory damage award. For the reasons that follow, we affirm.
On September 27, 1993, Birch, a homosexual man formerly employed by PIW, filed a complaint under the District of Columbia Human Rights Act*fn2 with the predecessor to the current Office of Human Rights alleging discrimination by PIW on the basis of gender and sexual orientation. The claim stemmed from the conduct of a supervisory PIW employee, Brenda Harris. The Office investigated Birch's claims and issued a Letter of Determination stating that Birch had presented sufficient evidence to establish probable cause for a finding of sexual harassment-hostile work environment, but not a finding of sexual orientation discrimination.
After the Human Rights Commission assigned the case to a hearing examiner, PIW stipulated to liability and agreed to adjudicate the issue of damages only. Specifically, PIW and Birch agreed that:
1. Complainant's Supervisor[,] Brenda Harris, made comments of a sexual nature and engaged in behavior of a sexual nature towards Plaintiff in the manner identified in his deposition testimony.
2. Ms. Harris' comments and behavior, taken in total, are sufficient to constitute sexual harassment, and Respondents are liable for the comments and behavior of Ms. Harris.
On the issue of damages, the hearing examiner issued a proposed decision and order finding that Birch had incurred and still suffered from a major depressive disorder as a result of the admitted sexual harassment, and recommended an award of $1,134,426.53 in compensatory damages, plus attorneys' fees and costs.
A Commission panel issued a Final Order and Decision on July 1, 2003, incorporating the stipulation that PIW had unlawfully discriminated against Birch by creating a hostile work environment through sexual harassment. The Commission further agreed with the finding of a major depressive disorder stemming from the sexual harassment, but reduced the proposed damages award for that permanent mental condition from $900,000 to $700,000. It also reduced the damages for embarrassment and humiliation caused by sexual harassment from $150,000 to $50,000, but increased the embarrassment and humiliation damages for adverse treatment Birch had received after complaining of the sexual harassment from $50,000 to $150,000.
After the evidentiary hearing, and in partial keeping with the parties' stipulation, the Commission adopted the following relevant findings by the examiner regarding the sexual harassment. PIW had hired Birch as a clinical coordinator in 1986. Following promotions, he was working as an intake therapist in the fall of 1991 when he met Brenda Harris, who was his new second-line supervisor and a department head. Although she knew he was gay, Harris continually made sexual advances toward Birch. She typically would approach him at the end of his shift (the night shift), sit on his desk in a manner that made her short skirt rise, and call him "honey" and stroke his hair. Occasionally Harris sat so close to Birch that their knees would bump, and Birch would try to move away because he felt uncomfortable. During these encounters and also during staff meetings, Harris frequently stared at Birch's crotch. She also called him on the telephone two to three times a week during his work shift. In the calls she would discuss her personal and sexual affairs, referring to sexual content and innuendo and hinting that she was naked, wet, or masturbating. At least ...