The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
On October 22, 2010, at the close of all evidence in the above captioned trial, Plaintiff orally moved for judgment on Defendant's Faragher-Ellerth defense to Plaintiff's Title VII hostile work environment sexual harassment claim. Plaintiff argued that Defendant's FaragherEllerth defense must fail, or, in the alternative that the jury decide whether Plaintiff sustained an adverse or significant tangible employment action ("tangible employment action"). If the jury found that a tangible employment action occurred, Defendant would be subject to strict liability on Plaintiff's hostile work environment claim and the jury would not consider the elements of Defendant's Faragher-Ellerth defense. Defendant objected to the motion. The Court treated Plaintiff's motion as a Federal Rules of Civil Procedure ("Rule") 50 motion for judgment as a matter of law. The Court DENIED Plaintiff's motion in open court on October 22, 2010 (see Minute Or. Oct. 22, 2010) and submits this memorandum opinion in support of its oral ruling.
A. Motion for Judgment as a Matter of Law
A court may grant judgment as a matter of law against a party on any claim, defense, or issue if, after the close of all the evidence, the court determines that there is no legally sufficient basis for a reasonable jury to find for a party. Fed. R. Civ. P. 50; see also Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994). In making such a determination, the "court may not assess the credibility of witnesses or weigh the evidence." Hayman v. Nat'l Acad. of Sciences, 23 F.3d 535, 537 (D.C. Cir. 1994).
B. Faragher-Ellerth Defense
In a Title VII hostile work environment claim, a defendant employer may avoid vicarious liability for a supervisor's actions by proving that 1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise [a/k/a the Faragher-Ellerth defense]. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Industries v. Ellerth, 524 U.S. 742, 762-63 (1998).
C. Tangible Employment Action and Strict Liability However, when a supervisor's harassment culminates in a tangible employment action, the employer will be subject to strict liability and shall not be shielded by an affirmative defense. See Lutkewitte v. Gonzales, 436 F.3d 248, 250-51 (D.C. Cir. 2006) (internal citations omitted).
A tangible employment action "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, 524 U.S. at 760-62; see also Roebuck v. Washington, 408 F.3d 790, 793 (D.C. Cir. 2005) (noting that tangible employment actions must have a "significant effect" on plaintiff's employment status, work, or benefits).
A. Motion for Judgment on Defendant's Faragher-Ellerth Defense Plaintiff moved for judgment on Defendant's Faragher-Ellerth defense. Viewing the evidence in a light most favorable to Plaintiff, and drawing every reasonable inference therefrom, Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C. Cir. 1983), cert. denied, 464 U.S. 994 (1983), the Court denied the motion because there was a legally sufficient basis for the jury to consider Defendant's Faragher-Ellerth defense. Defendant District of Columbia presented evidence at trial regarding the sexual harassment policies and procedures in place at the time of the alleged harassment, and the steps Plaintiff took, or did not take, to report the sexual harassment in accordance with the policies and procedures. This evidence addressed the two-prong Faragher-Ellerth defense, see Faragher, 524 U.S. at 807, and provided a legally sufficient basis for a jury finding that Defendant succeeded in proving their affirmative defense by a preponderance of the evidence. As such, the Court did not deny the jury an opportunity, as the finders of fact, to weigh the evidence and make a determination on the Faragher-Ellerth defense.
B. Plaintiff's Request for Additional Jury Instructions The Court
denied Plaintiff's request for additional jury instructions and a
question on whether tangible employment actions occurred.*fn1
While viewing the evidence presented at trial in a light most
favorable to Plaintiff, the Court held that no reasonable jury could
make such a finding. Plaintiff argued that tangible employment actions
occurred on two occasions. First, Lt. Johnson, a supervisor who
allegedly sexually harassed Plaintiff, denied Plaintiff the
opportunity to work an overtime shift so that she could earn
additional money for the Christmas holiday of 2000.*fn2
In October 2000, Plaintiff approached Lieutenant Johnson and
requested additional overtime shifts for the Christmas holidays.
Lieutenant Johnson was one of three supervisors who could approve
requests for overtime work. Plaintiff testified that Lieutenant
Johnson made a crude sexual advance and requested a sexual encounter
with Plaintiff in exchange for the opportunity to work an overtime
shift.*fn3 Plaintiff refused Lieutenant Johnson's
advances and did not receive overtime approval from Lieutenant Johnson
on the requested shift. According to exhibits presented by Plaintiff,
she worked at least thirty overtime shifts in the fall of 2000,
between September 24, 2000 and December 28, 2000. (Pl.'s Ex. 19) No
evidence was presented regarding whether Plaintiff did or did not
continue to work overtime shifts in 2001.
Plaintiff argued that a second tangible employment action occurred when Plaintiff received a letter on the District's final decision regarding a proposal to remove her from her position as a corrections officer. (Pl.'s Trial Ex. 9 at 1) The letter, dated March 4, 2004, stated:
This is a notice of final decision regarding the proposal to remove you from your position of Correction Officer with the D.C. Department of Corrections. ... [Y]ou will be terminated ... on March 12, 2004. This is a straight forward, policy driven decision based solely on the fact that you are physically unable to perform the essential functions of your official position due to an on the job injury ... . (Id. at 1) Plaintiff testified that she suffered an emotional collapse on or around July 18, 2001, caused by the sexual harassment perpetrated by Lt. Johnson. Plaintiff testified at trial that she believed she had a choice between being terminated by the District of Columbia or applying for disability retirement. Plaintiff chose to apply for disability retirement. She was accepted for disability retirement on March 25, 2004 (Pl.'s Trial Ex. 10 at 1) at which time, despite being informed by the March 4, 2004 letter that she would be terminated on March 12, 2004, she had not been terminated (Id. ("According to information received from your agency, you have not been separated from government service.")). As a requirement for receiving disability retirement, the United States Office of ...