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Purcell v. Thomas

July 26, 2007

GEORGE PURCELL, ET AL., APPELLANTS,
v.
MARVA E. THOMAS, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA7906-00) (Hon. Mary A. Gooden Terrell, Trial Judge).

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

Argued September 6, 2006

Before REID and FISHER, Associate Judges, and SCHWELB, Senior Judge.

Appellants, George Purcell and Fedora, Inc., challenge the judgment of the trial court entered after a jury rendered a verdict in favor of appellee, Marva E. Thomas, on her sexual harassment hostile work environment claim under the District of Columbia Human Rights Act ("DCHRA"), and her intentional infliction of emotional distress claim. They primarily contend that (1) the trial court should have dismissed Ms. Thomas's DCHRA claim on statute of limitations grounds; (2) the trial court improperly instructed the jury on Ms. Thomas's claims and erred by denying their motions for judgment as a matter of law and for a new trial; and (3) Mr. Purcell "cannot be held individually liable under the provisions of the [DCHRA]." Discerning neither error nor abuse of discretion, we affirm the judgment of the trial court.

FACTUAL SUMMARY

On October 27, 2000, Ms. Thomas filed a complaint against Mr. Purcell and Fedora, Inc. under the District of Columbia Human Rights Act, D.C. Code § 2-1401, et seq. (2001). She alleged, in part, that "[Mr.] Purcell terminated [her] employment after she failed to yield to the unwelcome sexually harassing, verbal and physical advances that he repeatedly made toward her." She further complained that "[Mr.] Purcell's sexually discriminatory conduct created a hostile work environment extremely detrimental to [her] emotional and physical health, interfered with [her] work performance, and caused her acute emotional distress necessitating medical treatment and consequent medical expenses." She demanded damages and reasonable attorney's fees. The defendants filed a motion to quash service of process and to dismiss the complaint in February 2001, which motion the trial court denied. Later, they renewed the motion to dismiss for insufficiency of service of process, which the court also denied.

Pre-trial matters were discussed on May 28, 2003, and trial commenced on May 29, 2003. Ms. Thomas presented the following relevant evidence at trial.*fn1 She was trained in educational psychology, and had work experience in different parts of the country pertaining to neglected, abused and troubled children. She met Mr. Purcell in October 1996, and they discussed a proposal to create a residential/educational facility for troubled and educationally challenged students in the District, which would be modeled upon her past experiences. By late 1996 or early 1997, the Fedora Center was launched. Ms. Thomas and Mr. Purcell had "a verbal agreement" for a partnership, but by July 1997, Mr. Purcell informed Ms. Thomas that he had decided against an ownership interest for her, and she "became a salaried employee." Ms. Thomas was "disappointed" but because of her "sweat equity" in the project and her belief in the concept, she remained at Fedora.

According to Ms. Thomas, Mr. Purcell's inappropriate sexual comments began around early 1998. At first the comments were "very complimentary" ("You're so beautiful," "nice outfit or nice suit"). Then they became a little uncomfortable, with statements about his wife's "wonder bra," an inquiry as to whether Ms. Thomas wore one; his "miss[ing] the scent of a black woman" during lovemaking; the "size of [Ms. Thomas'] . . . a**"; and discussions with his son about how to wear a condom. On one occasion, Mr. Purcell "closed the door" to Ms. Thomas' office, "walk[ed] over toward [her] . . . unbuckled his belt . . . [and] pulled his pants out to show [her] how much weight he had lost on his stomach."

When Mr. Purcell made what Ms. Thomas thought were inappropriate comments, she would call people whom she trusted to "ask what does this mean." The comments "started really to affect [her]." She "started feeling degraded . . . helpless . . . [and] really kind of afraid to say anything."

In October 1998, Ms. Thomas' father, who lived in California, became critically ill and she traveled back and forth to California, in order to both be with her father, and to continue to work on matters pertaining to Fedora. Ms. Thomas received "very complimentary" words from Mr. Purcell, and Fedora gave her a bonus in early 1999. When Ms. Thomas thanked Mr. Purcell for the bonus, he said, "yeah, yeah, yeah, you said thank you but what's in it for me? What am I getting out of this?" He also stated that he was "not reaping any of the benefits"; that Ms. Thomas' boyfriend was "getting all goods or stuff," words of "that nature."

In February 1999, Mr. Purcell and Ms. Thomas went to a restaurant to discuss business. A "kind of busty" waitress served them. Mr. Purcell "started telling [Ms. Thomas] about his past experiences making love to women with large breasts and how it was distasteful to him." He said, "you flop them from here flop this way flop 'em that way . . . . That was enough for him. He didn't like women with large breasts." In March 1999, while Mr. Purcell and Ms. Thomas were discussing "the strategy of the program" at a restaurant, Mr. Purcell called her "a good cookie" and also asked whether he could go to her apartment, which was close to the restaurant. Ms. Thomas said, no. On another occasion in 1999, Mr. Purcell went to Ms. Thomas' office, and he asked her assistant to leave. When he saw some unopened Superior Court envelopes on her desk, he inquired why they were not opened. After Ms. Thomas responded, Mr. Purcell "took his arm and just knocked everything off [her] desk." Ms. Thomas "kneeled down and started crying and saying why are you doing this." Mr. Purcell "kneeled down to pick [her] up and held [her] and said I am sorry, I am so sorry." Ms. Thomas "pushed him away." Mr. Purcell again apologized and left after Ms. Thomas' administrative assistant returned. Ms. Thomas "felt destabilized, . . . felt emotionally just shattered."

In May 1999, Ms. Thomas received a call from Mr. Purcell while he was on Pennsylvania Avenue en route to Fedora's office. He stated, "you need to hurry up and get downstairs. I'll be there in five minutes. We've got a problem. Hurry up. Come downstairs." Ms. Thomas was "frantic," and ran downstairs. Mr. Purcell instructed her to get into his car. She got into his car; the motor was running. Mr. Purcell "shifted the gear from left to right to reverse and he said this is what I want to do to you [to Ms. Thomas]. When was the last time you had a good f**k anyway? And just started laughing, thought it was funny."

Fedora encountered a problem in August 1999, with respect to payment for certain services (known as "wrap around services") provided to children in its care. The Youth Services Administration ("YSA") requested "sign-in sheets" for each facility, reflecting the services rendered. YSA gave Fedora three days to hand in the sign-in sheets. On the morning of Ms. Thomas' meeting with the YSA contact, she and Mr. Purcell met to discuss the matter. She informed him that "there were some loopholes but . . . most [of the sheets] were signed." Ms. Thomas then met with the YSA contact and gave her the sign-in sheets, which turned out to be incomplete. As a result, Fedora's payment invoice was challenged. About a week later, while Ms. Thomas was on vacation with her elementary school son, Mr. Purcell requested a meeting with her at a coffee shop during which he expressed "outrage[] at the fact that [Ms. Thomas] allowed [the sign-in sheets] to be given without assuring that they were complete." He blamed her for "a lot of money that [Fedora] lost," became "agitated," and told her to go back to California. Mr. Purcell spoke in a "loud" voice; Ms. Thomas was "crying." About a week later, Mr. Purcell called Ms. Thomas and said: "I just wanted to let you know how much of an asset you have been to this company. How are you doing, Ms. Thomas?" Ms. Thomas was "confused" but "relieved" because Mr. Purcell "was no longer [the] beast" that he was "the day before." Ms. Thomas returned to work a week later.

Fedora faced the prospect of losing all of the children placed in its care in September 1999, due to Mr. Purcell's decision to employ a strategy of telling the agency to remove all of the children because Fedora had not been given a new purchase service agreement. About that time, Mr. Purcell's wife was facing surgery and he asked to meet with Ms. Thomas so that they could discuss strategy. They met at the Café Deluxe. Mr. Purcell said: "[M]y wife is going to undergo surgery this week. And I'm going to be out of commission for six weeks." He continued, I "need to have sex with somebody I can trust. I can trust you, Ms. Thomas." Ms. Thomas said, "no." As they were leaving the café, Mr. Purcell asked whether Ms. Thomas "was wearing underwear." When Ms. Thomas said, "excuse me," Mr. Purcell asserted, "I feel like doing something freaky." Mr. Purcell "walked away and called [Ms. Thomas] a f**k**g amateur." Ms. Thomas spoke with a friend after the incident, and began to look for other work. Ms. Thomas testified that she "was losing [her] confidence" and that she "felt degraded."

Ms. Thomas recounted an incident in 1999, "around the second week of October," after a meeting with businessmen had taken place. Ms. Thomas asked Mr. Purcell, "how do you think the meeting went," and Ms. Thomas observed that one of the men in the room "never looked at me[,] . . . never acknowledged that I was even in the room." Mr. Purcell responded, "that's because he thought you were my b***h, it's called respect." Ms. Thomas told Mr. Purcell: "I . . . ...


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