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Fred A. Smith Management Co. v. Cerpe

October 9, 2008


Appeals from the Superior Court of the District of Columbia (CAB-2337-03) (Hon. Patricia A. Broderick, Trial Judge).

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

Argued September 4, 2008

Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and FARRELL, Associate Judge, Retired.

Alexandra Cerpe, formerly a resident property manager with Fred A. Smith Management Company (the Company), sued Christopher Wallis for sexual harassment/hostile work environment and the Company, Wallis, Martin J. Mesmer, and Julie Cremin for retaliatory discharge, both counts alleging violation of the District of Columbia Human Rights Act (DCHRA or the Act), D.C. Code § 2-1401.01 et seq. (2001). Cerpe sued as well for related common law torts including negligent hiring, training, and supervision. A jury returned verdicts against all of the defendants for retaliation, against Wallis for sexual harassment, and against the Company for negligent hiring, training and supervision; it rejected Cerpe's common law claim of intentional infliction of emotional distress.*fn1 It awarded compensatory and punitive damages, and the trial judge later granted - but only partly - Cerpe's request for attorney's fees under the DCHRA. On appeal, the defendants challenge liability on all of the counts, as well as the award of punitive damages. Cerpe cross-appeals challenging the trial judge's reduction of the fee award requested.

We find no basis for disturbing the jury's verdict on the claims of sexual harassment and retaliation, and for its award of punitive damages, but we reverse the verdict for negligent hiring, training and supervision in light of Griffin v. Acacia Life Ins. Co., 925 A.2d 564 (D.C. 2007), decided after trial of this case. And we vacate and remand for further consideration the reduced award of attorney's fees.


The Company manages real property in the Washington Metropolitan area. At the time of the events at issue, defendant Mesmer was its president, defendant Wallis a vice-president and part owner, and defendant Cremin the executive vice-president and chief financial officer.

Evidence credited by the jury fairly allowed it to find that Wallis had begun importuning Cerpe sexually some six months after she was made resident manager at Wisconsin House, a property managed by the Company. Wallis was not then employed by the Company (he had worked for it previously), but less than a year later he was rehired and made Cerpe's immediate supervisor. According to Cerpe's testimony, Wallis continued making sexual advances, telling her, for example, that she "shouldn't be bashful about anything because we are adults." He would sit in her office for hours at a time, stare at her, make sexually suggestive comments by asking about her personal life and revealing personal facts about his own, and comment about her looks and dress, saying things such as, "The way you look in that suit excites me - I'm going to have fantasies about you all day now." We set forth additional related evidence in discussing the punitive damage award, infra.

Cerpe complained of the sexual harassment to Mesmer in a phone call on May 3, 2002. (She testified that she had made repeated complaints to Mesmer before about Wallis, but had been told she had no choice but to work with him.) Although Mesmer admitted in reply that it was a "serious matter," on May 8 he instead gave Cerpe a letter of reprimand about her performance, instructing her that "any concerns you have pertaining to your duties or the building are to be brought to [Wallis's] attention," and that her claims of sexual harassment could be just a "misunderstanding." Cerpe described the pattern of sexual advances to Cremin, who had been tasked to look into the complaint, but who - the jury evidently found - conducted a perfunctory investigation, talking only sporadically with Wallis about the matter and neither recording nor taking more than cursory notes of these conversations. As we discuss further below in regard to punitive damages, the investigation turned instead to Cerpe's own performance, and on May 29, 2002, she was given a letter discharging her for cause based on supposed derelictions which the jury evidently found pretextual on the defendants' part.


After the presentation of evidence, the defendants moved for a directed verdict on all remaining counts, see Super. Ct. Civ. R. 50 (a),*fn2 and when the judge reserved ruling on the motion, see id. R. 50 (b), they renewed it in writing after the jury had returned its verdicts. Cerpe's argument that the defendants may not now challenge the sufficiency of the evidence because they did not formally file a Rule 50 (b) motion post-verdict has no merit: their renewed motion for directed verdict was in substance exactly that. See, e.g., Marcel Hair Goods Corp. v. National Sav. & Trust Co., 410 A.2d 1, 5 (D.C. 1979) ("To hold a party accountable for failing to interject a rule 50 (b) motion when the trial court conducts a post-verdict hearing on a reserved rule 50 (a) motion would be irrational.").*fn3

Nevertheless, the defendants' challenge to the sufficiency of the evidence on the counts of sexual harassment/hostile work environment and retaliation must be rejected. "Only when there is no evidentiary foundation on which a reasonable trier of fact could base a reliable verdict is a directed verdict proper." Jackson v. Condor Mgmt. Group, Inc., 587 A.2d 222, 224 (D.C. 1991). Viewing the evidence in the light most favorable to Cerpe, see id., we find ample evidence in the record supporting the jury's twin determinations that Wallis sexually harassed Cerpe and that the Company, as well as its officers - Mesmer, Wallis and Cremin - retaliated against her for complaining of the harassment.

Only one of the defendants' specific arguments requires brief discussion. They argue that any hostile work environment Wallis created did not cause Cerpe psychological injury, pointing to her own treating physician's testimony that other stressors in her life, such as an acrimonious relationship with a boyfriend, chiefly explained her depression or emotional distress at the relevant time. The defendants contend, citing language from Howard Univ. v. Best, 484 A.2d 958 (D.C. 1984), and Purcell v. Thomas, 928 A.2d 699 (D.C. 2007), that a plaintiff suing for relief from a hostile work environment under the Act must prove psychological injury in order to survive a motion for judgment as a matter of law. Whatever support Best lent to that argument, however, has been eroded by intervening Supreme Court precedent construing Title VII of the Civil Rights Act of 1964,*fn4 from which this court draws guidance in interpreting the DCHRA. See, e.g., Lively v. Flexible Packaging Ass'n, 830 A.2d 874, 887 (D.C. 2003) (en banc). Instead, as we stated most recently in Nicola v. Washington Times Corp., 947 A.2d 1164 (D.C. 2008), a plaintiff prevails on a hostile work environment claim by establishing:

(1) that he is a member of a protected class, (2) that he has been subject to unwelcome harassment, (3) that the harassment was based on membership in a protected class, and (4) that the harassment is severe and pervasive ...

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