United States District Court, D. Columbia.
LESLIE M. CORNISH, Plaintiff,
DISTRICT OF COLUMBIA, Defendant
[Copyrighted Material Omitted]
For LESLIE M. CORNISH, Plaintiff: James Joseph Pizzirusso, LEAD ATTORNEY, Nathaniel C. Giddings, HAUSFELD, LLP, Washington, DC; Stephen B. Pershing, Washington, DC.
For DISTRICT OF COLUMBIA, Defendant: Patricia B. Donkor, LEAD ATTORNEY, WASHINGTON METROPOLITAN AREA TRANSIT, Washington, DC; Shana Lyn Frost, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.
Re Document No.: 11
RUDOLPH CONTRERAS, United States District Judge.
Granting in Part and Denying in Part Defendant's Motion to Dismiss and for Summary Judgment
Plaintiff Leslie M. Cornish (" Cornish" ), an employee at the Superior Court of the District of Columbia (the " Superior Court" ), brought this action against the District of Columbia (the " District" ) alleging violations of numerous statutes, including Title I of the Americans with Disabilities Act of 1990 (" ADA" ), Section 504 of the Rehabilitation Act of 1973 (" Rehabilitation Act" ), Title VII of the Civil Rights Act of 1964 (" Title VII" ), the Equal Pay Act of 1963 (" Equal Pay Act" ), and the D.C. Human Rights Act (" DCHRA" ). In addition, Cornish asserts common law claims for breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision. The District has moved to dismiss many, but not all, of Cornish's causes of action under Rule 12(b)(6) for failure to state a claim, as well as for summary judgment on the Title VII claims based on failure to exhaust administrative remedies and on various other claims for unliquidated damages based on failure to comply with D.C. Code § 12-309. Upon consideration of the District's motion, and the memoranda in support thereof and opposition thereto, the Court will grant in part and deny in part the motion.
A. Factual Allegations
Cornish is an African-American woman employed at the Superior Court since August 2008. See 2d Amend. Compl., ECF No. 8, at ¶ ¶ 4, 6. She began working as a program specialist in the Superior Court's Paternity and Child Support Branch (" P& S Branch" ) at a pay grade of JS-11, and in April 2011 she was reassigned to the Superior Court's Budget and Finance Division, which is the position she currently holds. See id. ¶ 6. Sherry Coppet (" Coppet" ) and Delores Henderson (" Henderson" ), both of whom are African-American, were employees in the P& S Branch during Cornish's tenure with the department. See id. ¶ 7. Coppet was the P& S Branch chief during the relevant period, and from August 2008 to March 2011 she served as Cornish's immediate supervisor. See id. ¶ ¶ 7-8. During that same period, Henderson served as an Intake/Calendar Section supervisor, a position subordinate in rank to that of Cornish. See id. ¶ 8. In March 2011, Henderson was promoted to P& S Branch supervisor, making her Cornish's immediate supervisor. See id. ¶ 9.
1. Allegations of Harassment and Discrimination in the P& S Branch
Cornish alleges that she suffered " innumerable acts of often shocking hostility
and degrading treatment" while working in the P& S Branch. See id. ¶ 10. In particular, Cornish alleges that the hostility began during her initial interview for a position in the P& S Branch, when a clerk at the front desk told her that she " wasn't going to make it" in the department because she was " too pretty" and dressed too nicely for Coppet's liking. Id. ¶ 11. The clerk's forewarning soon bore itself out through repeated " derogatory comments" from Coppet and Henderson about Cornish's " conventionally feminine appearance and carefully coordinated apparel," which Cornish alleges were made because the women " resented her deviation from what they considered conforming dress and personal appearance for an African American woman." Id. ¶ 12. For example, a co-worker once overheard Henderson compliment Cornish on her appearance and then comment behind Cornish's back, " Oh, she thinks she's so cute." Id. ¶ 13. And sometimes when other people complimented Cornish, Coppet and Henderson would go into what one co-worker called " hater mode," which was when they ordered co-workers not to give Cornish any compliments. See id.
Coppet and Henderson disparaged Cornish for being from Baltimore, Maryland, by playing on the alleged stereotype held by African-American women from Washington, D.C. about African-American women from Baltimore being prone to crude and violent behavior. See id. ¶ 14. For instance, one time after Cornish wished Coppet a " good morning," Coppet reacted by " feign[ing] a dramatic, apprehensive reaction," and saying that she thought Cornish was " going to hit me or something." Id. On another occasion, Henderson remarked, " We almost forced out the Baltimore in her," after a meeting in which Henderson and Coppet had " harassed and bullied" Cornish into becoming " flustered and agitated." Id.
The behavior of Coppet and Henderson allegedly became increasingly more hostile over time, and they frequently insulted, humiliated, and intimidated Cornish in front of co-workers. See id. ¶ ¶ 15-16. For instance, Henderson called Cornish by her first name rather than using " Mr." or " Ms." like she did for other co-workers. See id. ¶ 18. In addition, Henderson, allegedly with Coppet's encouragement, would question or countermand the directions Cornish gave to other employees, and Henderson would order Cornish to complete certain assignments even though her position and pay grade were below Cornish's. See id. ¶ 20. Together, Henderson and Coppet also regularly forced Cornish to perform tasks below her pay grade, such as administrative and clerical duties, while they " giggl[ed]" and " snicker[ed]" when Cornish was instructed on these tasks by lower-ranked employees. See id. ¶ 21. On other occasions, the two women forced Cornish to stay beyond the time she was supposed to leave by giving assignments with arbitrary deadlines, often for that same night or the next morning. See id. ¶ 22.
The events around Thanksgiving 2010 provide an example of what Cornish allegedly endured at work. On Wednesday, November 24, 2010, the day before Thanksgiving and hours after Cornish's co-workers had left under a grant of early dismissal, Cornish was forced to continue working to finish a project Coppet had assigned to her late that afternoon. See id. ¶ 24. While Cornish worked, Coppet walked by and said " good night" before turning off the office lights. See id. Later that night, a co-worker found Cornish sitting at her darkened workstation " extremely shaken and in severe distress." Id. In the early hours of the next morning, Cornish awoke at home to discover that she had suffered a stroke while sleeping.
See id. ¶ 25. The stroke left Cornish partially paralyzed, able to take steps only to the left, and with limited speech abilities. See id. Cornish alleges that " the extreme stress and constant psychic shocks and insults of her mistreatment at work directly or indirectly precipitated her stroke." Id. In the months after the stroke, Cornish walked with a limp that sometimes required her to use a cane, had difficulty walking up and down stairs, had limpness in her hands, had slurred speech, and suffered bouts of dizziness and fatigue. See id. ¶ 27.
Cornish returned following the stroke in January 2011 as a part-time employee in the P& S Branch, and then as a full-time employee in February 2011. See id. ¶ 26. On her first day back, Cornish found her workstation and desk piled high with so much uncompleted work that she could barely sit. See id. ¶ 29. A Superior Court employee eventually had to ask co-workers to remove some of the piles from Cornish's desk because she could not physically manage the heavy lifting required to clear the workspace. See id. ¶ 30. On her second day of work, Henderson remarked to co-workers within earshot of Cornish, " Look at the way she's limping," and Henderson later asked Cornish, " Why [do] you walk like that?" Id. ¶ 31. Co-workers also observed Coppet and Henderson laughing at Cornish and mimicking how she struggled to walk after the stroke. See id. At other times, Coppet ordered Cornish to perform routine errands on foot despite her physical disabilities. See id. ¶ 33. Cornish alleges that in addition to demeaning her, these errands were imposed to prevent her from leaving work for medical appointments, and on some days Cornish's co-workers carried her personal belongings to meet her elsewhere in the courthouse so as to spare her the struggle of walking back to the office before leaving. Id. ¶ 34.
In early 2011, a supervisory position in the P& S Branch became open, but Cornish was passed over in favor of Henderson, despite Cornish being more senior in rank and scoring higher on the required diagnostic tests. See id. ¶ 35. Coppet was on the three-person selection panel for this position, and she gave Cornish a " much lower overall score" than did the other two panel members, though Cornish still emerged with the highest total score. See id. ¶ 36. When challenged about her biased opinion of Cornish during panel deliberations, Coppet allegedly said that " the consensus score is whatever I say it is because the person is working for me," and " I don't care what y'all say." Id. ¶ 37. Toni Gore, another member of the selection panel, reported Coppet's attitude toward Cornish to Dianne King, who was Coppet's supervisor, but no remedial action was taken. See id. ¶ 38. In the end, Coppet recommended Henderson for the position without notifying Gore or providing her an opportunity to comment. See id.
In the meantime, Coppet and Henderson continued to harass Cornish by, for example, calling a meeting late in the day on April 12, 2011, so Cornish had to miss a physical therapy appointment, despite her prior requests for permission to leave on time that day. See id. ¶ 39. A couple days later, Cornish allegedly became so ill because of further harassment from Coppet and Henderson that she visited the Superior Court's health unit, where she reported symptoms of weakness, dizziness, and uncontrollable shaking similar to what she suffered the morning after the stroke. See id. ¶ 41. The nurse on duty advised Cornish that each time co-workers made her feel this way, she should return to the health unit to document the mistreatment and its effect on her well-being. See id. The next day, Cornish's treating physician recommended through a written
prescription that she transfer to a different workplace environment, have her workload reduced, or otherwise have her workplace stress relieved or mitigated given the ongoing symptoms. See id. ¶ 42. Upon returning to work on April 19, 2011, Cornish showed the prescription to Coppet, who responded by " berat[ing]" Cornish and claiming that the prescription was " unintelligible." See id. ¶ 43. At a meeting later that day with Coppet and Henderson, Cornish was informed that a transfer and workload reduction " would not happen," and instead, Cornish was ordered to register for the Superior Court's " emotional intelligence" course. Id.
On April 20, 2011, Cornish met with the Superior Court's ADA officer, H. Clifton Grandy. See id. ¶ 44. As she explained her experiences to Grandy, Cornish began shaking and crying, and Grandy asked if she needed medical attention. See id. ¶ 45. Cornish explained that these were the stress-related symptoms regularly caused by her workplace conditions. See id. After the meeting, Grandy called Herbert L. Jackson, the Superior Court's Equal Employment Opportunity (" EEO" ) officer, and urged him to meet with Cornish. See id. Cornish and Jackson soon met, and Cornish filed a D.C. Courts EEO complaint alleging that Coppet and Henderson had " harassed, intimidated, bullied, emotionally abused, and discriminated against her based on disability and personal appearance, throughout her tenure at the P& S Branch." See id. ¶ 46. Cornish then was placed on one week's paid administrative leave. See id. ¶ 47.
2. Temporary Transfer to the Budget and Finance Division
On April 27, 2011, Cornish described her workplace harassment in a meeting with Duane Delaney, the Clerk of the Superior Court. See id. ¶ 48. Delaney decided to place Cornish on " a special temporary work assignment" in the Budget and Finance Division under Section 360 of the District of Columbia Courts' Comprehensive Personnel Policies (" D.C. Courts' personnel policy" ). See id. Delaney informed Cornish that the assignment would last for three months so as to coincide with the expected duration of the investigation into Coppet and Henderson. See id. ¶ 57. In her position at the Budget and Finance Division, Cornish performed the duties of a " reconciliation specialist," which is the person responsible for analyzing Superior Court financial records and reconciling them with the U.S. Treasury Department's general ledger and with records of the U.S. General Services Administration. See id. ¶ 49.
Cornish's salary remained at the JS-11 pay grade following her assignment to the Budget and Finance Division. See id. ¶ 51. She alleges, however, that male employees in the division who perform equal or less complex duties have been compensated at " one or two higher pay grades." See id. ¶ 49. Specifically, Cornish alleges that she performs many of the same duties as two male employees, both of whom are accounting officers at the JS-13 pay grade, as well as some of the same duties as another male reconciliation specialist who is a JS-12 employee. See id. ¶ 50. Further, Cornish works in the Reporting and Controls Branch of the Budget and Finance Division, where she is a " full participant in the working unit and is subject to the same performance assessments as every other worker there, including annual and semi-annual performance evaluations" in which she has consistently received high ratings despite being afforded less training opportunities than co-workers. See id. ¶ 52.
At the end of her first three months in the division, Cornish approached Dana Friend, head of the Budget and Finance
Division and the Superior Court's chief financial officer, about ending the temporary assignment and the possibility of a permanent transfer to the Budget and Finance Division. See id. ¶ 58. But Friend informed Cornish that Delaney had decided to continue the detail for three more months. See id. Around April 24, 2012, Cornish contacted Hamer Legette, the deputy chief of the Budget and Finance Division and deputy chief financial officer of the Superior Court, about formally converting to permanent status, obtaining training and advancement opportunities, and receiving a salary increase. See id. ¶ 53. Legette said he was unaware that Cornish's pay grade was JS-11 because she performed JS-13-level tasks, and he assured her that he would " take care of" the salary issue. See id. ¶ 54. The next morning, Cornish informed Friend about her conversation with Legette. See id. ¶ 55. Later that day, Friend and Valerie Young, Cornish's immediate supervisor in the division, met with Cornish about her salary inquiries. See id. At the meeting, Friend reported that Delaney would not end Cornish's Budget and Finance Division assignment and would not offer a pay increase. See id. Delaney did, however, authorize Cornish to attend the training sessions offered to co-workers. See id. ¶ 56. At the time of filing suit, which was more than two years after the assignment began, Cornish still remained in the Budget and Finance Division, and she had not received a pay grade adjustment. See id. ¶ 59.
Finally, Cornish alleges that she continues to suffer " permanent psychic and emotional scars" from the harassment Coppet and Henderson inflicted on her. See id. ¶ 61. For instance, prior to the alleged abuse, Cornish did not suffer severe headaches and did not have trouble sleeping, yet now she has frequent migraines, chronic insomnia, and recurring nightmares about her experience in the P& S Branch, as well as " bouts of shaking and shivering, weakness in her arms, hands, legs and feet, and other symptoms of post-traumatic stress." See id. Further, Cornish allegedly " remains frightened and intimidated at the prospect of crossing paths with" Coppet and Henderson inside the Superior Court. See id. ¶ 62.
3. December 2009 Superior Court Internal Investigation
In December 2009, Dianne King, director of the Superior Court's Family Court Division, undertook an investigation into allegations of misconduct by Coppet and Henderson. See id. ¶ 64. Cornish alleges that the goal of this investigation was to inform Delaney about the basis of various complaints concerning Coppet and Henderson, as well as to determine whether Coppet was fit for a promotion to the P& S Branch chief position. See id.
Although King and Coppet had a " close personal relationship," see id. ¶ 65, the investigation uncovered, among other things, that " [o]verall, the deputy clerks in the branch allege that Ms. Henderson and Ms. Coppet exhibit disrespectful, loud, harsh and unprofessional communication towards the staff. Further, they exert intimidating, degrading, hostile, humiliating and aggressive behavior when interacting with staff." Id. ¶ 66. The investigation also found that Coppet and Henderson " exhibit workplace bullying in the forms of verbal abuse, unfair treatment, public humiliation and criticism, to name a few." Id. As a
result, the report concluded that Coppet and Henderson should " receive training in interpersonal skills, emotional intelligence, human resources, supervisory practices, and personnel policies" -- but no training or disciplinary action ever was taken. See id. ¶ 67. In fact, Coppet was promoted despite the findings of the investigation. See id.
4. EEO Office Investigations
Separately, the Superior Court's EEO Office ordered two external investigations into the allegations in the administrative complaint Cornish filed with Jackson, the Superior Court's EEO officer. See id. ¶ 68. The first investigation was conducted by DSZ & Associates and lasted from June 16 to July 10, 2011. See id. ¶ 69. DSZ was charged with looking into
[w]hether the Aggrieved [Cornish] is being subjected to disparate treatment and [was] subsequently [ i.e., after the stroke in November 2010] subjected to discrimination based on her disability at the hands of Sherry Coppet and Delores Henderson, both of whom allegedly subjected the Aggrieved to hostile, demeaning, rude, disrespectful, and intimidating behavior commencing in 2008, and continuing to present.
Id. ¶ 69. On August 5, 2011, the EEO Office issued the first Report of Investigation (" ROI" ) summarizing the investigation's findings. See id. ¶ 70. The ROI contained several sworn statements by P& S Branch employees, as well as factual findings that supported Cornish's allegations of harassment. See id.
Cornish explains, however, that the EEO Office " apparently found the first EEO investigation lacking or insufficient" because some of Coppet's and Henderson's " subordinates had not been candid as witnesses while those two women were their superiors." Id. ¶ 71. As a result, in October 2011 the EEO Office issued a Notice of Acceptance for a second investigation to address the following questions:
Issue 1: Whether Complainant is being subjected to disparate treatment and subsequently (to November 2010) subjected to discrimination based on her disability at the hands of Sherry Coppet and Delores Henderson, both of whom allegedly subjected Complainant to hostile, demeaning, rude, disrespectful, intimidating, and bullying behavior commencing in 2008, and continuing to present.
Issue 2: Whether Complainant was subjected to discrimination based on personal appearance and disability or subjected to disparate treatment, when during the interview process for the position of Support Branch Supervisor, she was treated unfairly and, subsequently, not promoted to that supervisory position.
Id. ¶ 71. On April 26, 2012, the EEO Office issued a second ROI. Like the first report, the second ROI contained detailed accounts of how Coppet and Henderson " harassed, intimidated, bullied and abused" Cornish, and " discriminated against [Cornish] and subjected her to a hostile work environment, first because of her personal appearance, in particular the professionally poised, decorous, well-groomed and traditionally feminine way she presented herself, and later because of the physical disabilities" following the stroke. Id. ¶ ¶ 72-73.
The two ROIs also contained evidence that Coppet had arbitrarily assigned Cornish tasks which required her to walk long distances even though she struggled to walk after the stroke, as well as evidence that Coppet and Henderson repeatedly " humiliated" and " berated" Cornish at work, both before and after the stroke. See id. ¶ ¶ 74-75. Finally, the reports included statements showing that Superior
Court management had " failed to take corrective action" when alerted multiple times over a period of years about the hostile work environment Coppet and Henderson had created within the P& S Branch. See id. ¶ 77.
On August 10, 2012, Cornish received an " EEO Formal Investigation Complaint Finding and Determination" letter written by Jackson. See id. ¶ 78. The letter found that " [c]onsidering the entire evidence record and the witness testimony ... Ms. Coppet and Ms. Henderson did use their position and actual (or apparent) authority to habitually harass, intimidate, and bully [Cornish]." Id. ¶ 79. In regard to other Superior Court supervisors, the EEO letter found " significant evidence that the division officials knew or should have known of this behavior for quite a while and provided no significant remedy." Id. ¶ 80. Finally, the EEO letter urged the D.C. Courts to " take seriously complaints about supervisors' (and higher level officials') unprofessional behavior in [managing] subordinate staff," endorsed " appropriate disciplinary action against" Coppet's and Henderson's " unwarranted behaviors," and recommended that the Superior Court " provide the appropriate remedy" to Cornish. Id. ¶ 81. Cornish alleges, however, that the Superior Court has failed to provide her with any remedy despite ...