                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


 YVONNE BROWN,

                 Plaintiff,
      v.                                                      Civil Action No. 09-1121 (AK)
 DISTRICT OF COLUMBIA,

                 Defendants.




                                   MEMORANDUM OPINION

       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 [51] (“Def.’s Mem.”),

Plaintiff’s Trial Memorandum Regarding Equitable Damages [52] (“Pl.’s Mem.”), District’s

Response to Plaintiff’s Trial Memorandum Regarding Equitable Damages [54] (“Def.’s Resp.”),

and Plaintiff’s Sur-Reply to Defendant’s Response to Plaintiff’s Trial Memorandum Regarding

Equitable Damages [56] (“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.

I.     BACKGROUND
        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. [29]) Specifically, Plaintiff alleges one claim of hostile work

environment sexual harassment.1 (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. [1]; Am. Compl. [29]) 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 [29]) 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)

1
 Plaintiff’s original and amended complaint included a second claim for quid pro quo sexual harassment. (See
Compl. 4 [1]; Am. Compl. 4 [29]) However, the Court granted Defendant’s Partial Motion to Dismiss this count
(Def.’s Mot. to Dismiss [32]) with no opposition from Plaintiff. Plaintiff failed to exhaust her administrative
remedies by not raising the quid pro quo claim before the EEOC (see Minute Entry, Oct. 15, 2010; Minute Order,
Oct. 19, 2010).

                                                       -2-
       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.




                                                 -3-
(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, 2001,2 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 complaint3 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,



       2
           There is conflicting testimony at trial regarding when Plaintiff notified Lieutenant King.
       3
           No claim of retaliation was filed in the above captioned case. (See generally Am. Compl. [29])

                                                         -4-
Plaintiff suffered an emotional collapse and sought mental health treatment. Subsequently, she

was diagnosed with post-traumatic stress disorder. (See Am. Compl. ¶ 14 [29])

        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 [1]) After the close of discovery in July, 2010, and before trial,


                                                   -5-
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 [21]) 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 [27])

        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


                                                  -6-
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 [19]; Def.’s Proposed Verdict Form

[22]; Pl.’s Proposed Jury Instructions [24]; Pl.’s Proposed Verdict Form [25]) 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 [24]; Pl.’s Proposed Verdict Form [25]) 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.4 (Final Jury Instructions [45]) In her

closing argument, Plaintiff did not argue to the jury that Plaintiff had been constructively or

wrongfully discharged.

        The jury returned their verdict in favor of Plaintiff on her claim of hostile work

environment sexual harassment.5 (Jury Verdict Form [47]) The jury further found that the

Defendant did not succeed in proving both elements of its affirmative defense by a

preponderance of the evidence.6 (Id. at ¶ 4) While the jury found that Defendant did not
        4
           On October 22, 2010, at the close of evidence, Plaintiff moved for judgment on Defendant’s Faragher-
Ellerth defense and requested a jury instruction on whether a tangible employment action occurred. The Court
denied Plaintiff’s motion and request. At that time, Plaintiff did not submit an explicit argument that she was
constructively discharged, nor that any alleged constructive discharge amounted to a tangible employment action.
(See generally Memorandum Opinion on Plaintiff’s Motion for Judgment on Defendant’s Faragher-Ellerth Defense,
March 2, 2011 [58])

        5
           “Do you find by a preponderance of the evidence: “1. That Plaintiff Yvonne Brown was subjected to a
sexually hostile work environment? YES. [...] 2. That such hostile work environment was created or permitted by a
supervisor with immediate or successively higher authority over Plaintiff? YES. [...] 3. That Plaintiff Yvonne Brown
suffered damages as a proximate result of such hostile work environment? YES.” (Jury Verdict Form 1-2 [47])
        6
           “Do you find by a preponderance of the evidence: 4.(A) That the Defendant District of Columbia
exercised reasonable care to prevent and correct promptly any sexually harassing behavior in the workplace? NO. -
AND- (B) That the Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities

                                                        -7-
exercise reasonable care to promptly correct any sexually harassing behavior in the workplace,

the jury also found Plaintiff unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the Defendant to avoid or correct the harm. (Id. at ¶ 4(B))

The jury awarded Plaintiff $235,000.00 as compensatory damages for emotional pain and mental

anguish. (Id. at ¶ 5)

         After the jury verdict and before the equitable phase of the trial was set to begin, the

parties filed memoranda and presented oral argument to the Court on the request for back pay

and front pay. Counsel wished to avoid the time and expense of calling each party’s economic

damage expert before the Court had ruled on the scope of Plaintiff’s entitlement to back pay and

front pay. The parties indicated that no further non-expert witnesses would be testifying. In

their trial memoranda, Plaintiff requested back pay and front pay, and Defendant objected to the

request because Plaintiff did not plead or present to the jury a claim of constructive discharge.7

(Def.’s Mem. 4-5) The Court deferred the expert testimony pending its determination vel non of

Plaintiff’s entitlement to equitable relief. (Minute Order, Dec. 1, 2010 )




II.      LEGAL STANDARD




provided by the Defendant to avoid or correct the harm? YES.” (Jury Verdict Form 2 [47])

         7
           Defendant and Plaintiff raised additional arguments regarding Plaintiff’s request for a lifetime award of
front pay and whether Plaintiff sufficiently mitigated her damages. (See Def.’s Mem. 5-11; Pl.’s Mem. 4-8; Def.’s
Response 8-15; Pl.’s Sur-Reply 4-8) The Court having determined that equitable relief is denied as a matter of law,
does not reach the merits of these arguments.

                                                         -8-
       The Court has a statutory duty to determine awards of equitable relief in Title VII claims.

See 42 U.S.C. § 2000e-5(g)(1) (“If the court finds that the respondent has intentionally engaged

in ... an unlawful employment practice charged in the complaint, the court may ... order ...

reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as

the court deems appropriate.”). The trial court has “wide discretion to award equitable relief.”

Peyton v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002) (quoting Barbour v. Merrill, 48 F.3d

1270, 1278 (D.C. Cir. 1995)). The court should “fashion this relief so as to provide a victim of

employment discrimination the most complete make-whole relief possible.” Id.

       The equitable relief of back pay is not an automatic remedy for successful Title VII

plaintiffs. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975). Although the United

States Supreme Court noted that, “given a finding of unlawful discrimination, backpay should be

denied only for reasons which, if applied generally, would not frustrate the central statutory

purposes of eradicating discrimination throughout the economy and making persons whole for

injuries suffered through past discrimination.” Id. at 421. Front-pay is similarly to be awarded

to make the plaintiff whole. Barbour, 48 F.3d at 1279.

       Under the law 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). Constructive discharge is

determined by an objective standard: “[d]id working conditions become so intolerable that a

reasonable person in the employee’s position would have felt compelled to resign?” Id.; Mentzer

v. Lanier, 677 F. Supp. 2d 242, 253 (D.D.C. 2010). In the D.C. Circuit, “[a]n actionable

constructive discharge claim requires a showing that (1) intentional discrimination existed, (2)


                                                -9-
the employer deliberately made working conditions intolerable, and (3) aggravating factors

justified the plaintiff’s conclusion that she had no option but to end her employment.” Carter v.

George Wash. Univ., 180 F. Supp. 2d 97, 110 (D.D.C. 2001) (citing Clark v. Marsh, 665 F.2d

1168, 1173-74 (D.C. Cir. 1981)).

       A successful hostile work environment claim does not substitute for an unproven claim

for constructive discharge. Cf. Hopkins v. Price Waterhouse, 825 F.2d 458, 473 (D.C. Cir.

1987), rev’d on other grounds, 490 U.S. 228 (1989) (“[T]he mere fact of discrimination, without

more, is insufficient to make out a claim of constructive discharge.”). To prove a hostile work

environment claim, plaintiffs must “show that they were subjected to ‘intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the conditions of ... employment and create

an abusive working environment.” Mentzer, 677 F. Supp. 2d at 253 (quoting Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993)). To prove constructive discharge, the plaintiff must

“demonstrate a greater severity or pervasiveness of harassment than the minimum required to

prove a hostile working environment.” Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir.

1992), aff’d on other grounds, 511 U.S. 244.

       The majority of federal circuits have held that, absent actual termination or other

discriminatory discharge, proof of constructive discharge is required in order to award a

successful Title VII plaintiff with equitable relief in the form of front pay or back pay. See, e.g.,

Hertzberg v. SRAM Corp., 261 F.3d 651, 659 (7th Cir. 2001) (“A victim of discrimination that

leaves his or her employment as a result of the discrimination must show either an actual or

constructive discharge in order to receive the equitable remedy of reinstatement, or back and

front pay in lieu of reinstatement.”). See also Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311,


                                                -10-
317 (3rd Cir. 2006); Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir. 2000);

Boehms v. Crowell, 139 F.3d 452, 461 (5th Cir. 1998); Caviness v. Nucor-Yamato Steel Co., 105

F.3d 1216, 1219 (8th Cir. 1997). The oft-stated policy behind these rulings is that, absent

constructive discharge, “discrimination is still best attacked within the context of existing

employment relations.” Hopkins v. Price Waterhouse, 825 F.2d 458, 473 (D.C. Cir. 1987), rev’d

on other grounds, 490 U.S. 228 (1989).

        For example, in Hertzberg v. SRAM Corp., the seventh circuit reversed a trial court’s

award of front pay and back pay where the plaintiff did not plead constructive discharge and the

jury ruled against the plaintiff on their claim for retaliatory discharge. 261 F.3d 651, 659-61 (7th

Cir. 2001). The Court held that absent a successful discriminatory discharge claim, there was no

basis for the trial court to award front pay and back pay after the date of plaintiff’s resignation.

Id.

       In Spencer v. Wal-Mart Stores, Inc., the third circuit affirmed the trial court’s denial of

back pay because the plaintiff failed to request back pay and also waived their claim of

constructive discharge at trial. 469 F.3d 311, 317 (3rd Cir. 2006). The court held that “a

successful hostile work environment claim alone, without a successful constructive discharge

claim, is insufficient to support a back pay award.” Id. The eighth circuit also reversed an

award of back pay to a plaintiff who successfully claimed hostile work environment sexual

harassment but failed to prove constructive discharge at trial. Caviness v. Nucor-Yamato Steel

Co., 105 F.3d 1216, 1219 (8th Cir. 1997) (noting that “in the absence of constructive discharge, a

plaintiff subjected to sexual harassment, no matter how egregious, is not ‘made whole’ by the

equitable remedy of backpay”).


                                                 -11-
        In the D.C. Circuit, a plaintiff who is not terminated by her employer must prove that she

was constructively discharged in order to support an award of post-resignation front pay or back

pay. See, e.g., Clark v. Marsh, 665 F.2d 1168, 1175-76 (D.C. Cir. 1981) (affirming the district

court’s award of relief, including back pay, as proper because the record and the trial court’s

detailed and explicit factual findings support a conclusion that the plaintiff was constructively

discharged). For example, in Donnell v. England, a Title VII plaintiff, who established gender

discrimination and retaliation through the jury’s verdict but did not plead or prove constructive

discharge, was not awarded back pay after her date of resignation nor was she awarded any front

pay. 2005 WL 641749, at *2 (D.D.C. 2005). As the trial court explained:

        With due regard to Title VII’s emphasis on “make whole” relief, however, an appropriate
        form of equitable relief in this case is to award plaintiff back pay [up until the date of her
        resignation]… . Plaintiff does not claim constructive termination, nor would the record
        support such a finding. Her resignation was voluntary, and accordingly no instatement or
        front pay will be awarded.

Id. at *2.

        Unlike the majority of courts of appeal, the fourth circuit follows a minority “mitigation

rule.” When reviewing awards for back pay, instead of determining whether constructive or

discriminatory discharge has been proven, the fourth circuit “appl[ies] the general statutory duty

located at 42 U.S.C. § 2000e-5(g) to mitigate employer damages.” Dennis v. Columbia Colleton

Med. Ctr., Inc., 290 F.3d 639, 651 (4th Cir. 2002) (awarding back pay to a Plaintiff who

voluntarily left her employment after gender-based discrimination because she mitigated her

damages by seeking comparable alternative employment).



III.    DISCUSSION


                                                 -12-
       This Court has been asked to determine whether Plaintiff, who succeeded on her hostile

work environment claim at trial and was awarded $235,000.00 in compensatory damages by the

jury, is entitled to equitable relief in the form of back pay or front pay where Plaintiff failed to

plead or present to the jury a claim of constructive discharge during the liability phase of trial,

resulting in no jury finding of constructive discharge. This Court addresses these issues and also

reviews the evidence at trial to determine whether the record supports a finding of constructive

discharge.

A.     Argument Presented by Defendant

       Defendant urges this Court to apply the constructive discharge rule as articulated by other

circuits, which requires a finding of constructive discharge by the finder of fact at trial in order to

award equitable relief. (See Def.’s Mem. 4-5, citing, see e.g., Hertzberg v. SRAM Corp., 261

F.3d 651, 660-61 (7th Cir. 2001)) Defendant argues that Plaintiff’s failure to plead or claim

constructive discharge, or present such a claim to the jury, “forecloses Plaintiff’s request for

front pay and back pay.” (See Def.’s Mem. 4, citing, e.g., Mallison-Montague v. Pocrnick, 224

F.3d 1224, 1236 (10th Cir. 2000) (concluding that the 1991 Civil Rights Act did not expand the

types of relief available under Title VII to include the equitable relief of back pay and front pay

to a plaintiff that failed to show constructive discharge)).

       Defendant further argues that Plaintiff’s testimony at trial regarding her mental state and

her departure from the Department of Corrections is an insufficient basis for this Court to award

front back and pay back. (See Def.’s Mem. 5) Plaintiff never argued that a hostile work

environment in March 2004 compelled her to seek disability retirement. When her retirement

was approved, she was required to sever her employment with the Department of Corrections.


                                                 -13-
Additionally, the jury did not evaluate the evidence Plaintiff presented at trial under the legal

standard for constructive discharge. (Id.) Thus, “[a]bsent a viable claim for constructive

discharge, plaintiff is entitled to no equitable relief in the form of back pay and front pay.” (Id.

at 5)

B.      Argument Presented by Plaintiff

        Plaintiff argues first that a finding of constructive discharge is not required by this circuit

to award front pay or back pay, or in the alternative, if the Court does require such a finding, the

Court may make such a finding based on evidence presented at trial. Plaintiff concedes that at

no time following her departure from the Lorton Facility did she submit a claim for wrongful

termination or constructive discharge at the EEOC administrative level, by complaint, or by

argument at the jury trial. As a result, a finding of constructive discharge was never made. (Id.

at 5 (“Indeed, in this case there was neither such a claim [of constructive discharge] nor

finding.”))

        First, Plaintiff argues that such a finding is not required, since “in this [C]ircuit a plaintiff

need not show that she was either discharged or constructively discharged in order to recover

back or front pay.” (Pl.’s Mem. 5) Plaintiff relies upon this Circuit’s case in Fogg v. Gonzales

for the proposition that “where a defendant’s violation of Title VII proximately caused

psychological injuries to a plaintiff to such an extent plaintiff is unable to work, the plaintiff is

entitled to an award of front pay damages.” (Pl.’s Sur-Reply 5, citing Fogg v. Gonzalez, 492

F.3d 447, 456 (D.C. Cir. 2007)) Plaintiff notes that Fogg v. Gonzales makes no mention of a

requirement for a constructive discharge pleading. (Pl.’s Sur-Reply 5) Plaintiff urges the Court

to follow the fourth circuit’s approach: not to apply the “constructive discharge rule” but instead



                                                  -14-
to evaluate whether the plaintiff mitigated her damages as required by statute. (Pl.’s Mem. 5,

citing Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 651 (4th Cir. 2002))

       In the alternative, if the Court holds that a finding of constructive discharge is required in

order to award front and back pay, Plaintiff argues that she has presented sufficient evidence at

trial to meet the elements of constructive discharge. Plaintiff argues this Court has the authority

to make factual findings, such as constructive discharge, in the equitable phase of trial as long as

those findings are consistent with the jury’s verdict. (See Pl.’s Sur-Reply 3, citing Porter v.

Natsios, 414 F.3d 13, 20-21 (D.C. Cir. 2005) (“During the remedial stage of the proceedings, the

district court may make factual findings to determine appropriate ‘make whole’ relief ... as long

as the findings are consistent with the jury verdict.”)) Plaintiff relies on a second circuit case,

Fitzgerald v. Henderson, to persuade the court that even absent a claim of “constructive

discharge” in the complaint, the court may still find that Plaintiff succeeded in proving

constructive discharge at trial. 251 F.3d 345, 367 (2nd Cir. 2001) (“Although the specific phrase

‘constructive discharge’ was not used in the amended complaint, the pleading asserted that [the

employee] continually harassed [plaintiff]..., causing her to become unable to work at all. Such

allegations are ample to encompass a theory of constructive discharge.”).

       Accordingly, Plaintiff suggests the Court could make a finding of discharge or

constructive discharge in at least two ways. First, that Plaintiff was “forced to retire” from the

Department of Corrections after she received the March 4, 2004 letter stating that she would be

terminated for failure to complete her duties as a corrections officer (Pl.’s Mem. 6) and that

Plaintiff’s application for disability was a “forced retirement” that constitutes either discharge or

constructive discharge (Pl.’s Sur-Reply 7). Plaintiff states: “As the jury determined and as



                                                 -15-
supported by ample evidence, Plaintiff was ill and incapable of working, and thereafter fired (or

intended to be fired) by the D.C. government.” (Pl.’s Sur-Reply 7) The Court does not agree

with Plaintiff’s statement about what the jury determined in their verdict form. (See infra p. 19)

Second, Plaintiff asks the Court to make a finding of constructive discharge based upon

Plaintiff’s testimony at trial of the aggressive sexual harassment of Lieutenant Johnson. (Pl.’s

Sur-Reply 7) Plaintiff argues that Plaintiff proved at trial that “she left [work] as a result of

Defendant’s consistent, aggressive and violent sexual aggression.” (Id.)

C.     Analysis

       Initially, this Court rejects Plaintiff’s argument that this Circuit does not require a

successful claim or finding of constructive discharge in order to award equitable relief to a Title

VII plaintiff who is not terminated from her employment with the defendant. Proof of

constructive discharge is indeed required under these circumstances to support an award of front

pay or back pay. See, e.g., Clark v. Marsh, 665 F.2d 1168, 1175-76 (D.C. Cir. 1981); Donnell v.

England, 2005 WL 641749, at *2 (D.D.C. 2005). The majority of other circuits have held the

same. See, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 755 (3rd Cir. 1997) (“Courts of appeals

‘have been nearly unanimous in their application of the constructive discharge rule, whereby

victorious Title VII plaintiffs who have left their employment with the defendant but who were

not constructively discharged by the defendant are only entitled to a remedy covering the period

during which the discrimination occurred up to the date of resignation.”). These rulings are not

obviated by Fogg v. Gonzales, where the jury found that racial discrimination motivated the

defendant to terminate the plaintiff, which supported the trial court’s award of equitable relief.

See Fogg, 492 F.3d at 452. Constructive discharge was not at issue in Fogg. See generally id.



                                                 -16-
Thus, there is no need to apply the fourth circuit’s mitigation rule in Dennis v. Columbia

Colleton Med. Ctr., Inc., 290 F.3d 639, 651 (4th Cir. 2002), as the Plaintiff so urges the Court.

        However, this Court finds that Defendant’s proposed legal standard – that absent a

pleading or jury finding of constructive discharge in the liability phase of plaintiff’s trial Plaintiff

is foreclosed from receiving front pay or back pay as a matter of law – is too narrowly

constructed. Other circuits have narrowed the requirements of the constructive discharge rule in

accordance with Defendant’s standard. See, e.g., Caviness v. Nucor-Yamato Steel Co., 105 F.3d

1216, 1219 (8th Cir. 1997). But this Circuit has recognized that evidence presented at trial may

suffice to support a finding of constructive discharge made by the Court at the equitable relief

phase of trial, even absent a jury finding on this issue. See Clark v. Marsh, 665 F.2d 1168, 1176

(D.C. Cir. 1981). Cf. Porter v. Natsios, 414 F.3d 13, 20-21 (D.C. Cir. 2005) (“During the

remedial stage of the proceedings, the district court may make factual findings to determine

appropriate ‘make whole’ relief ... as long as the findings are consistent with the jury verdict.”);

Harris v. Wackenhut Servs., 590 F. Supp. 2d 54, 57 n.1 (D.D.C. 2008) (“Although the plaintiff

does not clearly indicate in his complaint that he is asserting a constructive discharge claim as a

cause of action by explicitly placing the claim under the heading ‘Causes of Action,’ it

nonetheless appears that the plaintiff is asserting a constructive discharge claim in connection

with his race discrimination claim.”).

        In Clark v. Marsh, the D.C. Circuit rejected an argument similar to the one advanced by

Defendant. 665 F.2d 1168 (D.C. Cir. 1981). In that case, the defendant claimed that plaintiff’s

failure to allege constructive discharge in her complaint or administrative charge should

foreclose an award of front pay or back pay. Id. at 1172 n.4. The D.C. Circuit held that “[t]he



                                                 -17-
trial court has the authority to award appropriate relief dictated by the evidence, even though it

may not have been sought in the pleadings.” Id. (quoting Fitzgerald v. Sirloin Stockade, Inc.,

624 F.2d 945, 957 (10th Cir. 1980)). The D.C. Circuit then affirmed a portion of the district

court’s award of equitable relief because the record and trial court’s detailed factual findings

support a finding of constructive discharge to support an award of back pay, although the trial

court made no such explicit finding. Id. at 1176.

         It is undisputed that at the EEOC level8, or in her complaint and amended complaint,

Plaintiff did not claim constructive discharge. (See generally Compl. 4 [1]; Am. Compl. 4 [29])

Nor did she allege facts about her departure from the District of Columbia. (See generally Am.

Compl.) At trial, Plaintiff did not request jury instructions or a jury verdict on whether Plaintiff

was constructively discharged. (See generally Pl.’s Proposed Jury Instructions [24]; Pl.’s

Proposed Verdict Form [25]) Plaintiff concedes that she did not argue constructive discharge

before the jury nor was there a finding of constructive discharge at the trial. (Pl.’s Mem. 5)

Plaintiff had numerous opportunities over the course of litigation to amend her complaint to

include a claim for constructive discharge or to address the circumstances of Plaintiff’s departure

from the Department of Corrections. Defendant’s Motion in Limine from July 30, 2010 further

put Plaintiff on notice that the complaint did not include sufficient basis for equitable relief. (See

generally Def.’s Mot. In Limine, Jul. 30, 2010 [21]) The Court cannot ignore Plaintiff’s failure

to plead claims and facts related to any claim of discriminatory discharge or constructive

discharge from the time she left the employ of the District of Columbia until the jury trial in

October of 2010. Regardless, as the jury was not asked to, and therefor did not, make any


         8
          Based upon the representation of Plaintiff’s counsel, Plaintiff did not claim constructive discharge or
wrongful termination at the EEOC administrative level.

                                                        -18-
finding of constructive discharge, this Court assessed the evidence presented at trial, including

credibility of the witnesses, to determine whether a constructive discharge occurred. This Court

holds that Plaintiff was not terminated or constructively discharged from her employment with

the Department of Corrections.

       Both of Plaintiff’s arguments that she was constructively discharged fail. First, Plaintiff

argues that she was “forced to retire” from the Department of Corrections after the received the

March 4, 2004 letter stating that she would be terminated for failure to complete her duties as a

corrections officer (Pl.’s Mem. at 6) and that Plaintiff’s application for disability retirement was

a “forced retirement” that constitutes either discharge or constructive discharge. In her Sur-

Reply, Plaintiff asserts incorrectly that the jury made findings regarding Plaintiff’s illness,

capacity for working, and the circumstances surrounding her departure from the District of

Columbia Department of Corrections. (Pl.’s Sur-Reply at 7 (“As the jury determined and as

supported by ample evidence, Plaintiff was ill and incapable of working, and thereafter fired (or

intended to be fired) by the D.C. government.”)) The jury made no such finding. The jury

verdict form did not include – nor was there any request by counsel to include – special verdict

questions about Plaintiff’s illness, ability to work, or whether Plaintiff was fired by the

defendant. (See generally Jury Verdict Form [47])

       This Court finds that Plaintiff was not terminated by the District of Columbia. She

received a letter in March of 2004 stating that the defendant made a decision to terminate her,

but that termination never went into effect. (See Pl.’s Trial Ex. No. 9) Instead, in March of

2004, Plaintiff testified that she applied for, and was awarded, disability retirement. (See Pl.’s




                                                 -19-
Trial Ex. No. 10) Her employment with the District ended solely as a requirement for her to

receive disability retirement. (See Pl.’s Trial Ex. No. 10)

       Similarly, the Court finds that Plaintiff was not constructively discharged because she

never resigned from her job. Constructive discharge allows an employee who has resigned in

the face of unendurable working conditions to be treated as if she was fired for remedial

purposes. See Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). However, Plaintiff never

resigned. She left the Transportation Unit on July 18, 2001 and never returned, but she did not

quit. Plaintiff was an employee for more than two and a half years. The District of Columbia

informed Plaintiff that she would be terminated in the future due to her failure to complete her

duties as a corrections officer. (See Pl.’s Trial Ex. No. 9) Then, Plaintiff successfully applied

for disability retirement at which time she was severed from her position as an employee in order

to accept retirement payments. (See Pl.’s Trial Ex. 10 at 1) This Court does not construe this

severance as a constructive discharge. Plaintiff’s decision to apply for disability retirement two

and a half years after her last day of work at the Transportation Unit was based on her inability

to complete her work as a corrections officer and not intolerable working conditions.

       The record does not reflect that during the two and a half years Plaintiff remained on

worker’s compensation she notified the District of Columbia Department of Corrections

regarding whether she was interested in returning to her position. Lt. Johnson, the person who

sexually harassed her, retired in 2003. When Plaintiff was notified by letter on March 4, 2004,

that she would be terminated for failure to perform her duties, she did not request any alternate

position with the Department of Corrections.




                                                -20-
       Plaintiff also urges the Court to make a finding of constructive discharge based upon

plaintiff’s testimony at trial of the aggressive sexual harassment by Lieutenant Johnson between

April 2000 and June 2001. (Pl.’s Sur-Reply at 7) While the harassment as Plaintiff testified to is

clearly unacceptable in any workplace – thus supporting the jury’s verdict in favor of plaintiff on

her hostile work environment claim and awarding her $235,000 compensatory damages – this

successful claim does not automatically give rise to a finding of constructive discharge absent

her resignation. See Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992), aff’d on

other grounds, 511 U.S. 244.

       An additional factor considered by the Court is Plaintiff’s failure to report the sexual

harassment in a timely or effective manner in accordance with the defendant’s sexual harassment

policy. Cf. Hopkins v. Price Waterhouse, 825 F.2d 458, 473 (D.C. Cir. 1987), rev’d on other

grounds, 490 U.S. 228 (1989) (noting that “discrimination is still best attacked within the

context of existing employment relations”). The Jury also found that plaintiff failed to take

reasonable advantage of Defendant’s sexual harassment policy. (Verdict Form ¶ 4(B)) Plaintiff

waited more than fifteen months after the first incident of harassment before sufficiently

notifying the District of Columbia that Lieutenant Johnson was sexually harassing her. That the

Defendant responded within one day to plaintiff’s complaint of the sexual harassment with a

cease and desist order to separate plaintiff and the alleged harasser speaks to the alternatives

plaintiff had at her disposal when she left work and never returned to the Transportation Unit.

Cf. Landgraf, 968 F.2d at 430 (finding that working conditions did not rise to the level of a

constructive discharge because the defendant-employer was taking “taking action reasonably

calculated to alleviate the harassment” prior to plaintiff’s resignation).



                                                 -21-
       Thus, this Court cannot find that she had no choice but to resign. See Carter v. George

Wash. Univ., 180 F. Supp. 2d 97, 110 (D.D.C. 2001) (holding that the third element of

constructive discharge is that plaintiff have no option but to end her employment). That she

chose to remain a D.C. government employee for more than two and a half years after her

departure, while receiving workers’ compensation, only to apply for disability retirement in

2004, is further evidence that she was not coerced into an involuntary resignation.

       In conclusion, this Court’s denial of front pay or back pay does not frustrate the central

statutory purposes of Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421-22

(1975) (holding that “given a finding of unlawful discrimination, backpay should be denied only

for reasons which, if applied generally, would not frustrate the central statutory purposes of

eradicating discrimination throughout the economy and making persons whole for injuries

suffered through past discrimination”). This Court’s ruling that Plaintiff did not succeed in

proving that she was constructively discharged comports with D.C. Circuit case law that such a

finding is required in order to award front pay or back pay and that the proof of a hostile work

environment does not automatically assume proof of constructive discharge.

IV.    CONCLUSION

       For the foregoing reasons, 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. An appropriate order will accompany this opinion.



                                                      ______________/s/____________________
DATED: March 3, 2011                                  ALAN KAY
                                                      UNITED STATES MAGISTRATE JUDGE



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