                              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.


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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;


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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




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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.

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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


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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


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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


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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




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