UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
YVONNE BROWN,
Plaintiff,
v. Civil Action No. 09-1121 (AK) DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
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 Faragher-
Ellerth 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.
-1- I. LEGAL STANDARD
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;
-2- 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).
II. ANALYSIS
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 verdict form
-3- question on whether tangible employment actions occurred.1 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 2000.2 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.3 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
1 Prior to October 22, 2010, the day Plaintiff made her request for a tangible employment action jury instruction, Plaintiff had multiple opportunities to submit proposed non-standard jury instructions to the Court. Not only did Plaintiff not submit a non-standard instruction on the tangible employment action issue prior to October 22, 2010, but Plaintiff submitted instructions on Defendant’s Faragher-Ellerth defense on three occasions, including the week before trial. (Pl.’s Proposed Jury Instructions 2-3, Jul. 30, 2010 [24]; Pl.’s Pretrial Statement, Ex. A, Oct. 5, 2010 [34]; Pl.’s Am. Pretrial Statement, Ex. A, Oct. 11, 2010 [40]).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
YVONNE BROWN,
Plaintiff,
v. Civil Action No. 09-1121 (AK) DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
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 Faragher-
Ellerth 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.
-1- I. LEGAL STANDARD
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;
-2- 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).
II. ANALYSIS
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 verdict form
-3- question on whether tangible employment actions occurred.1 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 2000.2 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.3 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
1 Prior to October 22, 2010, the day Plaintiff made her request for a tangible employment action jury instruction, Plaintiff had multiple opportunities to submit proposed non-standard jury instructions to the Court. Not only did Plaintiff not submit a non-standard instruction on the tangible employment action issue prior to October 22, 2010, but Plaintiff submitted instructions on Defendant’s Faragher-Ellerth defense on three occasions, including the week before trial. (Pl.’s Proposed Jury Instructions 2-3, Jul. 30, 2010 [24]; Pl.’s Pretrial Statement, Ex. A, Oct. 5, 2010 [34]; Pl.’s Am. Pretrial Statement, Ex. A, Oct. 11, 2010 [40]). 2 Defendant objected on the basis that Plaintiff’s prior claim for quid pro quo sexual harassment was dismissed with consent of Plaintiff. (See Minute Or. Oct., 15, 2010)
3 Plaintiff and Lt. Johnson offered conflicting testimony regarding why Plaintiff was denied overtime. However, for this Rule 50 motion, the Court views the evidence in the light most favorable to Plaintiff.
-4- 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 Personnel Management asked the Department of
Corrections to separate Plaintiff in order for her to begin receiving retirement benefits. (Id.)
Plaintiff argued that she was terminated, or proposed for termination, because of her emotional
injuries and that this constitutes a tangible employment action.
This Court held that no reasonable jury could find that either event constituted a tangible
employment action. Regarding the denial of overtime pay, Plaintiff did not submit to Lt.
Johnson’s advances and there is no evidence to suggest that Plaintiff’s approval for other
overtime shift work was contingent upon her submission to Lt. Johnson’s sexual advances. Cf.
Lutkewitte v. Gonzales, 436 F.3d 248, 252-54 (D.C. Cir. 2006) (holding that the trial court did
-5- not err by declining to give the issue of whether Plaintiff’s accusations rose to the level of a
tangible employment action to the jury because “no reasonable jury could find that appellant’s
receipt of job benefits was the result of her sexual submission”). Additionally, other supervisors
continued to approve her requests for overtime work during the same time period. Exhibits
presented at trial demonstrate that Plaintiff regularly worked overtime shifts, as often as three or
four times per week, during the months after Lt. Johnson denied Plaintiff’s request for overtime
in October 2000. Under these facts, the denial of overtime work during the few days of the
Christmas holiday does not constitute a “significant change in benefits.” See Faragher, 524 U.S.
at 760-62. Thus, there is no legally sufficient basis for a reasonable jury to conclude that
Plaintiff suffered a tangible employment action due to Lt. Johnson’s one-time denial of overtime
pay.
Second, regarding Plaintiff’s claim that a tangible employment action occurred when she
received the March 4, 2004 proposed termination letter from Department of Corrections, this
Court holds that no reasonable jury could find that a tangible employment action occurred based
on these facts. According to her own testimony, Plaintiff was not terminated by the Department
of Corrections. Plaintiff left work on July 18, 2001 and retained her status as an employee of the
District of Columbia for more than two and a half years. On or around March 4, 2004, upon
receipt of a letter notifying Plaintiff that the District sought to terminate her due to her inability
to complete her duties as a corrections officer, Plaintiff applied for and accepted disability
retirement. A condition of accepting disability retirement was separation from her status as an
employee with the Department of Corrections. While viewing the evidence in favor of Plaintiff,
a reasonable jury could not find that Plaintiff was terminated, resulting in a tangible employment
-6- action.
On October 22, 2010, the Court was not presented with facts to support her argument that
Plaintiff was constructively discharged. However, even if the Court had been presented with
facts supporting her argument that she was constructively discharged and the discharge
constituted a tangible employment action, the Court still would have denied Plaintiff’s motion.
Under the doctrine of constructive discharge, an employee may resign because of unendurable
working conditions and the resignation “is assimilated to a formal discharge for remedial
purposes.” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004) (internal citations omitted). A
constructive discharge may give rise to a tangible employment action only if the constructive
discharge is the result of official company acts, and not co-workers’ conduct or unofficial
supervisory conduct. See id. at 148.
As described above, Plaintiff did not resign from the Department of Corrections because
of unendurable working conditions. Viewing the evidence in the light most favorable to
Plaintiff, she testified that she suffered an emotional collapse on or before July 18, 2001 and
successfully applied for worker’s compensation. She did not return to her workplace but
remained an employee of the District of Columbia until 2004 when she successfully applied for
disability retirement. Without a termination or resignation, Plaintiff’s claim may not be
considered under the doctrine of constructive discharge. See id. at 141. Additionally, even if
Plaintiff had resigned in March 2004 due to Lt. Johnson’s harassment, her ‘constructive
discharge’ resignation would not have resulted from an official company act, a prerequisite for a
constructive discharge to give rise to a tangible employment action. See id. at 148. Plaintiff
testified that Lt. Johnson engaged in physical assaultive sexual harassment, including grabbing
-7- her hair and rubbing her breasts, which, if true, would have constituted unofficial supervisory
conduct. The sexual harassment occurred between April 2000 and June 2001, three years before
she successfully obtained her disability retirement.
III. CONCLUSION
For the foregoing reasons, the Plaintiff’s motion for judgment on Defendant’s Faragher-
Ellerth defense was denied in open court on October 22, 2010. An appropriate order will
accompany this opinion.
DATED: March 2, 2011 _____________/s/____________________ ALAN KAY UNITED STATES MAGISTRATE JUDGE
-8-