Appeals from the Superior Court of the District of Columbia (CA-6338-01) (Hon. Zoe A. Bush, Trial Judge).
Before WASHINGTON, Chief Judge, FARRELL, Associate Judge, and TERRY, Senior Judge.*fn1
Barbara Griffin appeals from two orders of the trial court granting summary judgment in favor of Acacia Life Insurance Company, her former employer. On appeal she contends (1) that her claim of retaliation under the District of Columbia Human Rights Act is not barred by the doctrine of election of remedies, and (2) that the trial court erred in granting summary judgment to Acacia on her claim of negligent supervision. We affirm in part and remand in part.
Appellant, a longtime employee of Acacia, began working under the supervision of Arnold Rexroad, Manager of the Duplicating and Purchasing Department ("the Department"), sometime around March of 1995. On October 25, 1996, appellant informed Leon Stevens, an Acacia supervisor, that Mr. Rexroad had pulled down a co-worker's brassiere strap three weeks earlier. Mr. Stevens then met with Mr. Rexroad to discuss what appellant had told him. After that conversation with Mr. Stevens, Mr. Rexroad told appellant that her co-worker was lying. He also informed appellant that she was now going to be under the direct supervision of Mr. Stevens, and that she would have to move from her office into a cubicle.
Over the next few days, appellant had various meetings with Mr. Stevens, Mr. Rexroad, Acacia's Vice President Richard Fedalen, and Human Resources Specialist Patricia Franklin to discuss the changes that Mr. Rexroad had made in her working environment. At a meeting on October 29, 1996, appellant informed Mr. Fedalen and Ms. Franklin that she too had been the object of "inappropriate treatment" from Mr. Rexroad, and that the changes he had made in her work environment were made in retaliation for reporting him to Mr. Stevens.*fn3
Although appellant was eventually required to report to Mr. Stevens after the meetings in October, she did not have to move into a cubicle.*fn4
At some point in 1995, Acacia began planning both a reorganization of the Department and a move out of the District of Columbia.*fn5 Before reporting Mr. Rexroad's behavior to Mr. Stevens in October of 1996, appellant had been assured by Mr. Rexroad that she would still have a job after the move. However, because the Department was switching from typographical printing and hard storage of documents to an electronic publishing format, the nature of appellant's job was going to change. Appellant was initially willing to make the switch to a position in the new electronic publishing unit, but she later changed her mind.
On March 25, 1997, approximately five months after appellant had complained about Mr. Rexroad's behavior, Mr. Rexroad informed her that her job would be eliminated on August 1 because of the restructuring of the Department.*fn6 At that time, however, it appears that appellant was again given the opportunity to transfer to an electronic publishing position, but she did not accept it.*fn7 Acacia then gave the position to another employee, Edward Elko.*fn8
Appellant decided not to wait until her August 1 termination date. On May 5, 1997, she ceased working at Acacia.*fn9
1. Appellant's EEOC Claim
On May 12, 1997, appellant filed a charge against Acacia with the United States Equal Employment Opportunity Commission ("EEOC"), alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964.*fn10 On July 31, 1997, the EEOC dismissed that charge, concluding that it would "not be able to prove that [appellant was] discriminated against because of [her] sex (female) and in retaliation for protesting actions made unlawful by Title VII." It sent a right-to-sue letter to appellant which pointed out that she had been "made aware of [the pending] reorganization and potential job elimination, and [that she had been] offered an alternative position prior to [her] complaint to Respondent [Acacia]." Furthermore, according to the letter, "four other employees, three males and one female, lost their jobs as a result of the reorganization." The letter also stated that appellant's charge was "untimely" because she "could provide no specific incidents of sexual harassment that occurred after 1995."
2. Proceedings in the District Court
Almost four months later, on November 24, 1997, appellant filed a complaint against Acacia and Mr. Rexroad in the United States District Court for the District of Columbia. Her complaint, as later amended, contained five counts alleging: (1) sex discrimination, in violation of Title VII, (2) retaliation, in violation of Title VII, (3) sex discrimination, in violation of the District of Columbia Human Rights Act ("DCHRA"),*fn11 (4) retaliation, in violation of the DCHRA, and (5) negligent supervision of Mr. Rexroad.*fn12
The defendants filed a motion to dismiss the amended complaint, and on July 13, 1998, Judge Thomas F. Hogan of the United States District Court issued a Memorandum Opinion granting in part and denying in part the motion to dismiss.*fn13
The first argument presented by the defendants in their motion to dismiss was that appellant's Title VII sex discrimination claim against Acacia was not timely. Title VII states that a charge filed with the EEOC "shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5 (e)(1). Appellant filed her claim with the EEOC on May 12, 1997, and the defendants argued that appellant missed the 180-day deadline because the last alleged incident of discriminatory conduct occurred on October 23, 1996. Appellant asserted in response that she had not 180 but 300 days to file with the EEOC, relying on an exception in Title VII and on the worksharing agreement between the EEOC and the District of Columbia Office of Human Rights ("OHR").*fn14 Title VII does contain an exception to the 180-day filing period, which states that if the complainant has "initially instituted proceedings with a State or local agency . . . such charge shall be filed . . . within three hundred days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5 (e)(1). The District Court concluded that "[e]ven though plaintiff did not file a claim with the D.C. agency, claims were instituted with the state agency on her behalf, by virtue of the work-share agreement . . . ." The court went on to say, "When plaintiff filed her claim with the EEOC, it was automatically cross-claimed with the [OHR]; therefore, plaintiff instituted a claim with the state agency, and the 300-day filing period applies."*fn15 As a result, the District Court held that "[s]ince plaintiff filed her claim with the EEOC within 300 days of the alleged unlawful conduct, plaintiff's claims are timely under Title VII."
The defendants' next argument in their motion to dismiss was that the Title VII retaliation claim was time-barred.*fn16 The defendants asserted that the time for filing started to run on the date when the alleged retaliatory action began, which was October 28, 1996. Appellant countered by arguing that there was a continuing violation for approximately six months, and that the retaliatory action did not end until she was terminated. The District Court agreed with appellant, concluding that "plaintiff has alleged a continuing ...