JOYCE HENS GREEN, District Judge.
Plaintiff, Norma Rogers, alleges in her complaint that while employed by the defendant Loews L'Enfant Plaza Hotel (Hotel) she was subjected to physical and emotional harassment by her superiors. Claiming that defendants' conduct has deprived her of rights guaranteed under the Constitution and federal, local and common law, she seeks monetary, declaratory and injunctive relief. Motions to dismiss are presently before the court. A recitation of the allegations is germane to the rulings on those motions.
In September, 1979, plaintiff was hired by the defendant Hotel as Assistant Manager of the Greenhouse Restaurant. Defendant James Deavers, Manager of that restaurant, was plaintiff's immediate supervisor with whom she was required to work closely in order to assure the smooth operation of the restaurant. Plaintiff alleges that after being employed a few weeks, Deavers began to make sexually oriented advances toward her, verbally and in writing, which extended over a period of two months. The defendant would write her notes and letters, pressing them into her hand when she was busy attending to her duties in the restaurant, or placing them inside menus that plaintiff distributed to patrons of the restaurant, or even slipping them into plaintiff's purse without her knowledge.
Plaintiff further claims that defendant would also telephone her at home or while she was on duty at the restaurant, which conversations included sarcastic, leering comments about her personal and sexual life. Plaintiff was frightened and embarrassed by this defendant's actions and uncertain as to how she could protect herself. She contends that she continually rejected his suggestions and rebuffed his advances by telling defendant that she was not interested in him personally, and that his suggestions and advances were distressful and unwanted.
Plaintiff avers that for a short time after the telephone incident between herself and Ms. Deavers, the advances ceased, but soon they resumed again. This time in addition to leaving more notes, Deavers would pull at plaintiff's hair, touch her and try to convince her to spend a night or take a trip with him. The complaint states that he offered her gifts and favors and at times used abusive crude language, stating that he found her attractive and would never leave her alone.
The explicit sexual advances ceased at the end of November, but then the employment atmosphere and working conditions at the Greenhouse became difficult and very uncomfortable according to plaintiff. Defendant Deavers would sometimes exclude her from meetings of the Greenhouse staff; he suggested to the staff that plaintiff was unhappy with her job and might not stay; he used abusive language, belittling plaintiff in the presence of the staff; he refused to cooperate with her or share necessary information on occasion. Plaintiff claims he generally made it difficult for her to perform her job.
Plaintiff attempted to arrange a meeting with defendant Randy Gantenbein, the Hotel's Food and Beverage Manager, who had authority to resolve staff problems in the Greenhouse, in order to discuss defendant Deavers' conduct. She asserts Gantenbein avoided her and for three weeks declined to meet her. Near the end of this period, Deavers advised Rogers that defendant Gantenbein intended to discharge both Deavers and Rogers. After pursuing the matter, plaintiff was able to meet with Gantenbein in January, 1980, but only after the Hotel Manager suggested he do so. At that time, plaintiff states she explained the atmosphere and working conditions in the restaurant beginning with defendant Deavers' past sexual advances. Defendant Gantenbein denied he had any intention of discharging plaintiff as Deavers had warned, but acknowledged that he had known, prior to their meeting, about Ms. Deavers' telephone call to plaintiff in mid-October.
Plaintiff's allegations continue that by the end of February, 1980, defendant Deavers notified her that he would do everything in his power to have her fired. Plaintiff contacted her attorney and requested Gantenbein to meet with him, which Gantenbein refused to do. The next day Gantenbein asked plaintiff to take an evening position with the Hotel, noting that it was obvious that things would not work out between plaintiff and defendant Deavers. She refused, again requesting that the Hotel management or its attorney promptly meet with her attorney, but the request was denied.
Plaintiff and her counsel eventually met with Hotel management on March 14, 1980. By a letter dated March 17, attorneys for the Hotel advised plaintiff that they had "admonished and reprimanded" Deavers. Hotel management, however, saw no reason to separate the two employees, and insisted that plaintiff report back to work with defendant Deavers. They advised Rogers that the company would "monitor" the relationship through weekly meetings. Plaintiff rejected this solution.
As an alternative, the Hotel offered to separate the two by transferring plaintiff to a higher paying position as night Room
Essentially then, the complaint before the Court alleges that defendant Deavers with knowledge of defendant Gantenbein and other supervisory employees at the Hotel willfully and with premeditation forced himself on plaintiff and attempted to force her either to submit to his importunings or lose her employment. She asserts that she has been severely damaged both mentally and physically by the conduct described above in violation of rights guaranteed her by 42 U.S.C. §§ 1981 and 1983 and by the District of Columbia Human Rights Act, D.C.Code Ann. § 1-2501 et seq. (formerly § 6-2201 et seq.). Plaintiff further claims that defendants engaged in tortious conduct, specifically 1) invasion of plaintiff's right to privacy at her home, in her place of employment, and in her personal life; 2) infliction of extreme emotional distress; 3) assault and battery. The corporate defendants, it is charged, failed to exercise proper supervision and control over their employees, thereby causing plaintiff injury and making defendants jointly and severally liable to plaintiff.
Defendants have presented motions to dismiss pursuant to the Federal Rules of Civil Procedure 12(b)(6), 12(b)(1), and for partial summary judgment pursuant to Rule 56, as well as a motion to strike or dismiss. Each motion will be considered separately.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants have moved to dismiss on the following grounds: (a) the complaint fails to state a claim upon which relief can be granted under Section 2000e-2(a) of Title 42 of the United States Code and Section 1-2512(1) (formerly § 6-2221(a)(1)) of the District of Columbia Human Rights Act; and (b) the complaint fails to state a claim upon which relief can be granted under District of Columbia common-law principles of tort.
"For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. And, the complaint is to be liberally construed in favor of plaintiff."
(a) The Title VII and D.C. Human Rights Act Claims
Plaintiff filed a complaint with EEOC in March, 1980. In July, 1980, her charge was dismissed because the Hotel had made a written settlement offer which EEOC concluded afforded full relief for the harm alleged. The Notice of Right to Sue which then issued, however, was withdrawn by EEOC in August, 1980, due to "administrative error." It was not until June, 1981, that a second Notice of Right to Sue was issued. This time plaintiff's charge was dismissed by EEOC on the basis that examination of the evidence indicated that there was no reasonable cause to believe that the sex discrimination allegation was true. However, the plaintiff then received a Notice of Reconsideration in August, 1981, which stated that the Letter of Determination, as well as the Notice of Right to Sue had been revoked and that further review of the charge would follow. The matter appears to be pending still.
Since plaintiff has not received a Notice of Right to Sue from EEOC and chooses not
(b) Common-law Tort Claims
Right to Privacy: "To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff `to be let alone.'"
Plaintiff has alleged in this case that defendant Deavers called her at home, as well as at work when he was off duty, and that he made leering comments about plaintiff's personal and sexual life to her. Complaint ¶¶ 16 & 19. While not alleging that defendant Deavers publicized specific information about her, she does contend he used abusive language and belittled her in the presence of staff. Id. ¶ 20. However, "[u]nlike other types of invasion of privacy, intrusion does not involve as one of its essential elements the publication of the information obtained," but it does involve the "obtaining of the information by improperly intrusive means."
Cases involving persistent and unwanted telephone calls, as alleged here, where invasion of privacy has been found, have generally concerned calls by debt collectors.
A defendant can be liable for battery if the requirements of (a) are met and
To constitute the tort of assault, the apprehension must be one which would normally be aroused in the mind of a reasonable person and apparent ability and opportunity to carry out the threat immediately must be present. The mental injury which results could include, for example, fright or humiliation.
"To be held liable for assault, the defendant must have intended to interfere with the plaintiff's personal integrity..."
To constitute the tort of battery, a defendant can be found liable for any physical contact with the plaintiff which is offensive or insulting, as well as physically harmful. Of primary importance in such a cause of action is the absence of consent to the contact on the part of the plaintiff, rather than the hostile intent of the defendant, although intent is required. The intent, however, is only the intent "to bring about such a contact."
Here, clearly, an absence of consent has been asserted, since plaintiff specifically told Deavers that his advances were unwanted. Plaintiff also recites a touching, which included pulling her hair, and that Deavers intended to bring about this conduct. Complaint ¶¶ 17, 19 & 30. These allegations are sufficient to survive the motion to dismiss as to the battery claim.
Infliction of Emotional Distress: Plaintiff's third and final tort claim, infliction of emotional distress, can result from either intentional or negligent conduct. Negligent infliction of emotional distress, recognized in the District of Columbia,
Clark v. Associated Retail Credit Men, 105 F.2d 62 (D.C.Cir.1939), the "landmark case in this jurisdiction"
For a prima facie case to be made out, the tortfeasor's conduct must be "wanton, outrageous in the extreme, or especially calculated to cause serious mental distress." Shewmaker v. Minchew, 504 F.Supp. at 163.
Severe emotional distress must have occurred and the conduct must have been intentional.
The court in Doyle v. Continental Air Lines, No. 75 C 2407 (N.D.Ill. Oct. 29, 1979), a sexual harassment case brought under Title VII and various common law claims, including infliction of emotional distress, discussed the tort in the context of an advertising campaign the plaintiff airline attendants felt had sexual overtones which encouraged sexual harassment on the job, as well as in their personal lives. Plaintiffs were frequently exposed to comments which, it was asserted, the advertising campaign and slogan, "We move our tail for you" had prompted. Defendants' motion for summary judgment was granted with the holding that the insulting demeaning and harassing remarks provoked by Continental's advertising campaign were insufficient to establish that defendant's conduct was extreme and outrageous. In that case, however, only insulting demeaning and harassing remarks were alleged, whereas in this case, Rogers claims she has been subjected not only to that type of remark, but also to abusive language and physical advances from her direct supervisor which have resulted in harmful emotional, as well as physical, consequences.
In a case somewhat similar to the instant one, but not concerning sexual harassment
The plaintiff further states that she suffered infliction of emotional distress as a result of intentional conduct by the defendants. Complaint ¶¶ 41 & 30. Her assertion of fright and embarrassment resulting from defendant Deavers' actions are added to her notification to Deavers that his suggestions and advances were distressful and unwanted; yet, she says he persisted even when it appeared the Hotel management knew of the problem. Id. ¶¶ 17, 19, 23 & 24. He excluded her from meetings of the staff, suggested that she was unhappy with her job and might not stay, used abusive language and belittled her in the presence of the staff, and did not share necessary information with her. Id. ¶ 20. Further, Deavers advised her he would do everything in his power to have her fired from her position. Id. ¶ 25. Alleging not only difficulty in discussing her problems with Hotel management, but also in arranging meetings between the two parties and their attorneys, Id. ¶ 32, and in attempting to resolve the problem over a period of months, plaintiff contends that at no time did the employer offer to remove defendant Deavers from his position as manager of the Greenhouse. Id. ¶ 35. This conduct, she claims, precipitated the filing of her complaint with EEOC and necessitated her refusal to return to working conditions she found unacceptable at the Greenhouse.
In her complaint, the plaintiff has clearly alleged conditions and circumstances which are beyond mere insults, indignities and petty oppressions and which, if proved, could be construed as outrageous. Emotional distress and physical harm could reasonably result from the conduct of Deavers, as stated, as well as from the conduct of the Hotel management in response to plaintiff's plight. A cause of action for intentional infliction of emotional distress does, therefore, lie.
Pursuant to the Fed.R.Civ.P. 12(b)(1), defendants have moved to dismiss on the following grounds: (a) this Court lacks subject-matter jurisdiction since there is no case and controversy in view of the corrective action taken in this matter; and (b) this Court lacks diversity jurisdiction under section 1332(a)(1) since the amount in controversy does not exceed ten thousand dollars.
(a) Case and Controversy: Defendants argue that their corrective action in this matter has rendered moot the existence of any case or controversy under Title VII and the D. C. Human Rights Act. There being no Title VII cause of action instituted here and the D. C. Human Rights Act claim to be dismissed without prejudice, the motion to dismiss on this ground will be denied.
(b) Diversity Jurisdiction: The defendants do not claim lack of diversity, but rather that the amount in controversy cannot meet the statutory minimum of ten thousand dollars.
The issue of jurisdiction must be carefully scrutinized, even if not raised by defendants.
On the face of the pleadings it cannot be said with a legal certainty that the plaintiff cannot recover more than ten thousand dollars, if not the $500,000 she demands. Both compensatory and punitive damages are to be considered in determining the amount in controversy for jurisdictional purposes,
Defendants argue that in another case in this jurisdiction, the Court was unable to find that the plaintiff's claim could support more than the requisite jurisdictional amount and so remanded the case to Superior Court.
Summary judgment, Fed.R.Civ.P. 56, is a device for "promptly disposing of actions in which there is no genuine issue as to any material fact."
(a) Claims under 42 U.S.C. §§ 1981 & 1983 and the Thirteenth Amendment
The plaintiff has stated in her Memorandum in Opposition to Defendants' Motion to Dismiss that she will not pursue her claim under 42 U.S.C. § 1983, agreeing that her rights were not assailed under color of state, local or other law. Memorandum at 8. Summary judgment will, therefore, be granted as to this issue.
As to the claim under 42 U.S.C. § 1981 and its source, the Thirteenth Amendment, plaintiff never asserts that she was discriminated against on the basis of race, but on the basis of sex alone. She argues, however, that 42 U.S.C. § 1981 should apply to sex as well as race. The overwhelming authority is that both 42 U.S.C. § 1981 and the Thirteenth Amendment relate solely to discrimination based on race and color.
(b) Corporate Defendants' Claim
Dismissal is required for those defendants, Loews Corporation, Loews Theatres, Inc., Loews Hotel, Inc. and Marcus Loews Booking Agency which, it is claimed, do not have control of the day-to-day operations of Loews Washington Hotel Corporation and its employees. In his affidavit, Harrison Hartman, Jr., the Vice President and Managing Director of Loews Washington Hotel Corporation states:
Several exhibits are presented in plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss which, she suggests, indicate that there is some control of the day-to-day operations of the hotel by the other corporations. Memorandum at 16. Plaintiff then states, however, that if there is no control over the management of the employees, plaintiff is willing to have those defendants dismissed. Id.
From the submissions before the Court, it is evident that Loews Corporation, Loews Theatres, Inc., Loews Hotels, Inc. and Marcus Loews Booking Agency do not control the management of the employees at the hotel in question and, therefore, defendants' motion to dismiss as to those four defendants shall be granted. Loews Washington Hotel Corporation, trading as Loews L'Enfant Plaza, will remain the sole corporate defendant, while Deavers and Gantenbein remain as the individual defendants.
The defendants have moved to strike or dismiss plaintiff's request for general
In the District of Columbia, punitive damages, which are awarded to punish and deter outrageous conduct,
Defendants have submitted a Supplemental Statement consisting of a Notice of Right to Sue which was issued to Norma Rogers by the Equal Employment Opportunity Commission on June 24, 1981. Plaintiff has moved to strike this Supplemental Statement and in support thereof has submitted a copy of a Notice of Reconsideration issued by the Equal Employment Opportunity Commission on August 25, 1981. This Notice indicates that the Commission has reconsidered its June 24, 1981, Letter of Determination terminating plaintiff's charge, as well as the Notice of Right to Sue, and has revoked both of them. Since the Court has before it the Notice of Reconsideration in addition to the withdrawn Notice of Right to Sue, there is no need to strike the Defendant's Supplemental Statement. Both documents are now part of the
It is, therefore, by the Court, this 13th day of November, 1981,
ORDERED that defendants' motion to dismiss is granted as to the claim under the District of Columbia Human Rights Act, and that claim is dismissed without prejudice, and it is
FURTHER ORDERED, that defendants' motion to dismiss is denied as to all tort claims, and it is
FURTHER ORDERED, that defendants' motions to dismiss are denied as to the claims of lack of a case or controversy and lack of diversity jurisdiction, and it is
FURTHER ORDERED, that defendants' motion for partial summary judgment is granted as to the claims under 42 U.S.C. §§ 1981 and 1983 and the Thirteenth Amendment, and it is
FURTHER ORDERED, that defendants' motion for partial summary judgment is granted as to the dismissal of Loews Corporation, Loews Theatres, Inc., Loews Hotels, Inc. and Marcus Loews Booking Agency as corporate defendants, and it is
FURTHER ORDERED, that defendants' motion to dismiss is denied as to the requests for general and punitive damages, as well as the request for a jury trial, and it is
FURTHER ORDERED, that plaintiff's motion to strike Defendants' Supplemental Statement is denied, and it is
FURTHER ORDERED, that defendants' answer to plaintiff's complaint be filed within twenty days of this order; a status conference is scheduled for December 8, 1981 at 9:45 a. m.
An appropriate Judgment accompanies this Memorandum Opinion.