The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Upon consideration of defendants' Motion for Summary Judgment on all counts , plaintiff's Opposition , defendants' Reply , the applicable law and the record herein, for the reasons set forth below, the Motion for Summary Judgment will be denied as to Counts I and II and will be granted as to Counts V-VII and IX. Counts III, IV and VIII were voluntarily withdrawn and will be dismissed.
Plaintiff, Ronnie Barrett, is a former employee of the Andre Chreky Salon, who has alleged violations of the Fair Labor Standards Act of 1963 ("FLSA"), the D.C. Wage and Hour Act ("WHA"), the D.C. Wage Payment and Collection Act ("WPCA"), and the D.C. Human Rights Act ("DCHRA"), as well as common law actions for conversion, negligence, negligent supervision and breach of contract. Ms. Barrett voluntarily withdrew the claims for negligence and claims related to overtime payment. Ms. Barrett maintains allegations of sexual harassment and retaliation, as well as of wrongful termination, along with conversion and withholding of tips. Ms. Barrett filed suit in this Court on February 2, 2007. Discovery progressed in conjunction with the related case of Thong v. Chreky under Magistrate Judge Kay, and defendants moved for summary judgment on September 2, 2008.
When considering a motion for summary judgment, the court must take the facts in the light most favorable to the non-moving party, granting them "all justifiable inferences," and then determine if there remains a genuine issue of material fact upon which a jury could hold either way. Dingle v. District of Columbia, 571 F. Supp. 2d 87, 94 (D.D.C. 2008). In determining whether or not such an issue exists which could determine the outcome of the suit, the primary consideration is the substantive law on the claim. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
a. Sexual Harassment Claims (Counts I and II)
Ms. Barrett alleges a number of incidents of sexual harassment which, together, would amount to a hostile work environment. She alleges discrimination and retaliation under the DCHRA on the basis of these allegations. Ms. Barrett has agreed to limit her claim to economic and punitive damages, excluding emotional damages. (See Barrett Deposition at 76). Other than disputing the factual validity of the plaintiff's arguments (which is assumed for the purposes of summary judgment), the defendants have provided four main allegations against the claim: that the claims are time-barred for reasons related to the original D.C. Human Rights Office (DCHRO) claim and to a dispute over the use of the 'continuing violation' doctrine, that they are is no connection between the protected behavior and the retaliation alleged, and that Ms. Barrett is ineligible to receive damages for back pay because she was unlicensed for most of the time between her departure from the salon and this suit. All of these arguments fail.
First, the defendants dispute Ms. Barrett's use of the "continuing violation" doctrine as a means of getting around the DC Human Rights Act's one-year statute of limitations. The basic principle of this exemption is that a pattern of behavior which creates a "hostile work environment" is, by definition, a series of interconnected actions, and to refuse to allow suit or to limit suit because some of the actions took place outside the statutory period defeats the entire purpose of this type of sexual harassment claim. This theory allows plaintiffs to sue for the entirety of a series of actions so long as they are interconnected and at least one of them fell within the statutory period. Amtrak v. Morgan, 536 U.S. 101 (2002).*fn1
Defendants' arguments mischaracterize the law by focusing on the language of "discrete actions," which are not eligible for the "continuing violation" exemption to the statute of limitations. But as the Supreme Court's opinion in Morgan, the definitive case on these kinds of statutory provisions in workplace discrimination, makes clear, these types of sexual assaults which, along with constant sexual harassment, constituted a "hostile work environment" are not what the Court had in mind when it excluded "discrete actions." The Court wrote that "discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Id at 116. Other cases, in D.C. and otherwise, make clear that these kinds of events, hiring/firing or failure to promote or transfer, are the kinds of 'discrete acts' they had in mind, not specific punctuated events in a pattern of sexual harassment.
The continuing violation theory does depend on at least one alleged incident taking place during the statutory period, however, and defendants also dispute that the most recent alleged act really took place in the statutory period at all. While Ms. Barrett claims in her affidavit and her original DCHRO filing that the last date of discrimination occurred on November 15, 2005, her deposition testimony confused matters. When asked about times when Mr. Chreky "attempted to put his hand down [her] shirt," one of the ways she described the November 2005 incident, Ms. Barrett describes multiple incidents before the birth of her baby in 2004, including one in the summer of 2004 which is very similar to the 2005 incident. She does not describe any incident that occurred in the statutory period. The defendants argue that this is a contradiction of her affidavit and the Court should, under the 'sham affidavit' rule*fn2 , ignore documents claiming that the incident in question occurred within the statutory period. Ms. Barrett responds by pointing out that she at no time said that these were the only times Mr. Chreky behaved in this manner and that she had simply forgotten, in that moment, the most recent incident.
In 'sham affidavit' cases, however, the deposition testimony directly contradicted a single affidavit upon which an element was based. Here, however, the 'contradiction' is an inference drawn by the defendants which the plaintiff denies and rebuts with hern interpretation, namely that Ms. Barrett simply forgot about the final incident, in that moment in the deposition, but was not testifying that it did not happen. The defendants may scoff at the possibility that Ms. Barrett simply 'forgot' about this 'key' element, but at no point did she directly contradict herself. Defendants also fail to deal with the fact that multiple documents, including the original DCHRO filing, identify an incident on November 15 as being the most recent one but do not clearly indicate what took place that day. The fact that one description of an incident on November 15 might have been a mistake in dates does not mean that there was no incident on November 15, which would be necessary to completely toss-out that element and with it much of the harassment claim.
There is also a dispute over whether the date of that filing, November 8, 2006, is the beginning of the statutory period or whether the date on which the claim was docketed (December 19) is the more relevant date. While both Ms. Barrett and the defendants cite to Federal Express v. Holowecki, in which the Supreme Court ruled that the latter of two competing statutory dates applied, the case is of questionable relevance here. While Title VII cases are often incorporated into DCHRA precedent, Holowecki dealt with the Age Discrimination in Employment Act (ADEA). As the ...