The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
Following a jury verdict for Plaintiff on her hostile work environment sexual harassment claim, the Plaintiff requested equitable relief in the form of back pay or front pay even though Plaintiff failed to plead or present to the jury a claim of constructive discharge during the liability phase of her jury trial, resulting in the absence of a finding of constructive discharge. The parties have submitted the following memoranda on this issue: Defendant District of Columbia's Memorandum of Law Regarding Back Pay and Front Pay  ("Def.'s Mem."), Plaintiff's Trial Memorandum Regarding Equitable Damages  ("Pl.'s Mem."), District's Response to Plaintiff's Trial Memorandum Regarding Equitable Damages  ("Def.'s Resp."), and Plaintiff's Sur-Reply to Defendant's Response to Plaintiff's Trial Memorandum Regarding Equitable Damages  ("Pl.'s Sur-Reply"). The Court heard oral argument on this issue on November 17, 2010. Upon consideration of the record, oral argument, applicable case law, and memoranda submitted by the parties, and for the reasons set forth below, the Court rules that Plaintiff's request for equitable relief, in the form of back pay and front pay, is denied as a matter of law and the Court enters judgment for Defendant on the equitable relief phase of trial.
Plaintiff Yvonne Brown, a former employee of the District's Department of Corrections, brings this action against the District of Columbia as respondeat superior for sexual discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (See generally Am. Compl. ) Specifically, Plaintiff alleges one claim of hostile work environment sexual harassment.*fn1 (Id. at ¶¶ 17 - 20) Plaintiff did not claim constructive discharge or any other discriminatory discharge, nor did Plaintiff allege any facts about her departure from the Department of Corrections in her complaint or amended complaint. (See generally Compl. ; Am. Compl. ) Plaintiff concedes that she did not argue constructive discharge before the jury at trial and thus a finding of constructive discharge was never made. (Pl.'s Mem. 5 ("Indeed, in this case there was neither such a claim [of constructive discharge] nor finding."))
According to the pleadings and evidence presented at the jury trial, the facts of the case are as follows. Plaintiff worked in the Transportation Unit of Lorton Correctional Facility in Lorton, Virginia from 1989 to July 2001. (Am. Compl. ¶ 6 ) According to Plaintiff, Lieutenant William Johnson, one of three shift supervisors of the Transportation Unit, subjected her to verbal and physical sexual harassment between April 2000 and July 2001. (Id. at ¶ 10) From April 2000 to June 2001, Lieutenant Johnson supervised a different shift than the one Plaintiff was assigned to. (Id. at ¶ 9) Beginning in June 2001, Lieutenant Johnson changed shifts and became Plaintiff's direct supervisor. (Id.) Plaintiff's emotional state "deteriorated significantly" during her time working with Lieutenant Johnson. (Id. at ¶ 14)
At trial, Plaintiff testified to nine incidents of sexual harassment by Lieutenant Johnson at Lorton Correctional Facility from April 2000 to July 2001. Plaintiff testified that Lieutenant Johnson would restrain her by grabbing her hair or her neck and then proceed to rub her breasts. Plaintiff testified to two crude remarks Lieutenant Johnson made to Plaintiff when she approached him for approval to work an overtime shift: once asking her for a "lip-lock" and once asking to "get up in" her. Plaintiff refused Lieutenant Johnson's sexual advances. Plaintiff further testified that on one occasion, several colleagues pushed her into Lieutenant Johnson's lap and the Lieutenant forcefully grabbed her between her legs. In an incident in June or July of 2001, Plaintiff testified that during a physical altercation with Lieutenant Johnson, Plaintiff fell onto the floor when her chair broke and Lieutenant Johnson attempted to climb on top of her, at which time Plaintiff struck him in the groin.
Lieutenant Johnson denied Plaintiff's testimony regarding these incidents. He conceded that he once placed his hand on Plaintiff's shoulder and that on one occasion, several employees had pushed Plaintiff toward the Lieutenant in a joking manner when he was seated in a chair at his desk. During that incident, he admitted to putting his hands on Plaintiff in order to prevent her from falling into his lap, but he denied touching her in any sexually inappropriate area. He vigorously denied all other allegations of physical and verbal sexual harassment.
During all relevant times to the lawsuit, the D.C. Department of Corrections operated under a 1994 sexual harassment policy that stated:
Each person who alleges he/she has been a victim of sexual harassment may file a complaint with either his/her immediate supervisor, the agency EEO Officer or EEO Counselor, Office Chief, Warden, Deputy Director, or the Executive Deputy Direction. This complaint may be submitted orally or in writing.
(Pl.'s Trial Ex. 1 at 4, D.C. Department of Corrections, Order 3310.4C, Sexual Harassment of Employees § VIII(E)(1) (December 14, 1994))
Plaintiff claims that she orally notified Sergeant Kenneth Graham, her immediate supervisor, in April of 2000 of the harassment, though she did not testify as to what she told him. Plaintiff testified that she orally notified Lieutenant Gregory King three times of her difficulties with Lieutenant Johnson. On two occasions, she complained about his supervision of her work, claiming that he was "harassing" her. On the third occasion, she spoke to Lieutenant King, on either July 17 or 18, 2001,*fn2 and told Lieutenant King of an incident of physical and sexual harassment that had taken place approximately three weeks earlier. Lieutenant King issued a cease and desist order to Lieutenant Johnson on July 18, 2001. (See Def.'s Ex. 2 ("Pursuant to notification that the above reference[d] employee has filed a retaliation complaint*fn3 against you, you are hereby ordered to cease and desist any and all contact with subject employee. An investigation committee has been established and this order will remain in effect pending conclusion of their investigation."))
On July 18, 2001, Plaintiff left work and never returned to the Transportation Unit. On July 20, 2001, Plaintiff submitted a written report to Lieutenant King describing an incident of sexual harassment that occurred approximately three weeks earlier in addition to two work-related complaints. (See Pl.'s Ex. 18) Prior to speaking with Lieutenant King on July 17 or 18, 2001, Plaintiff did not speak to or file a written complaint with the EEO officer or any other officer or director as outlined in the sexual harassment policy. Within days of her departure,
Plaintiff suffered an emotional collapse and sought mental health treatment. Subsequently, she was diagnosed with post-traumatic stress disorder. (See Am. Compl. ¶ 14 )
Plaintiff applied for and received disability workers' compensation and remained an employee of the District of Columbia until March of 2004. (See Pl.'s Trial Ex. 10) In a letter dated March 4, 2004, two and a half years after her departure from the Transportation Unit, the District notified Plaintiff of their decision to terminate her for failure to perform her duties as a corrections officer. (See Pl.'s Trial Ex. No. 9 ("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 ... .")) Shortly thereafter, Plaintiff applied for total disability retirement, which was approved on March 25, 2004. (See Pl.'s Trial Ex. 10 at 1)
In order to receive retirement benefits, Plaintiff was severed from her employment with the Department of Corrections following her approval for disability retirement. (See id. at 1 ("According to information received from your agency, you have not been separated from government service. Therefore, we are notifying your agency of your [disability retirement] approval and asking them to separate you. ... Payment of annuity cannot start until after your last day of pay.")) As of the date of the trial, Plaintiff remains unemployed on disability retirement. At trial, via de bene esse deposition transcript, Plaintiff's treating psychiatrist, who began treating the plaintiff on July 19, 2001, testified that Plaintiff is unable to work and her condition of post traumatic stress disorder is permanent.
Plaintiff's original complaint prayed for relief in the form of compensatory damages, costs and attorneys' fees, and "[s]uch other and further relief that this Court deems just and proper." (Compl. ¶¶ a - c ) After the close of discovery in July, 2010, and before trial,Defendant filed a Motion In Limine to prevent Plaintiff from raising any mention of or request for reinstatement, front pay or back pay at "any stage of the trial" because Plaintiff had not made a demand for this relief in her complaint. (Def.'s Mot. In Limine 3, Jul. 30, 2010 ) In August, 2010, Plaintiff filed a motion for leave to amend the complaint to include an additional prayer for relief for economic damages. (Pl.'s Mot. for Leave to File Am. Compl., Aug. 30, 2010 )
Before the Court ruled on either motion, the parties requested that the trial date be continued and the case referred to mediation. Defendant withdrew its Motion In Limine and did not object to Plaintiff's Motion for Leave to Amend the Complaint. (Minute Order, Sep. 2, 2010) The Court granted Plaintiff's motion to amend her complaint to include an additional prayer for relief for economic damages "to include back wages, compensation for forced retirement damages and appropriate offsets for wages, retirement, and other benefits, plus interest." (Am. Compl. ¶ b) Plaintiff did not move to amend her complaint to include a claim for constructive discharge, or any other discriminatory discharge, or to include any facts relating to her departure from the Department of Corrections. (See generally id.)
After failing to successfully resolve the case through mediation, the Court proceeded with the pretrial conference on October 12, 2010. The parties jointly requested that the Court bifurcate the trial into two phases: first, a jury trial regarding Plaintiff's claim of hostile work environment and request for compensatory damages. Second, if Plaintiff prevailed on her hostile work environment claim, the Court would then determine whether Plaintiff was entitled to an award of back pay and front pay. If the Court determined that she was entitled to such an award, the Court would then receive expert testimony on the amount of those awards. The Court granted this request. The jury trial began October 15, 2010 and concluded on October 25, 2011.
Before trial, counsel provided the Court with proposed jury instructions and proposed jury verdict forms. (See Def.'s Proposed Jury Instructions ; Def.'s Proposed Verdict Form
; Pl.'s Proposed Jury Instructions ; Pl.'s Proposed Verdict
Form ) Plaintiff's proposed jury instructions and proposed verdict
form did not include any mention of constructive discharge or
discriminatory discharge. (See generally Pl.'s Proposed Jury
Instructions ; Pl.'s Proposed Verdict Form ) Before closing
arguments, the Court provided counsel with draft jury instructions and
a draft verdict form. The Court's final instructions and verdict form
did not include instructions on constructive discharge or
discriminatory discharge without objection by either party.*fn4