Gary v. Long, 94-7012

Decision Date28 July 1995
Docket NumberNo. 94-7012,94-7012
Citation59 F.3d 1391,313 U.S. App. D.C. 403
Parties68 Fair Empl.Prac.Cas. (BNA) 581, 66 Empl. Prac. Dec. P 43,660, 313 U.S.App.D.C. 403, 64 USLW 2086 Coramae Ella GARY, Appellant, v. James Edward LONG, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (90cv03076).

Charles W. Scarborough, Washington, DC, argued the cause and filed the briefs, for appellant.

Woodley B. Osborne, Washington, DC, argued the cause and filed the brief, for appellee Long.

Gerard J. Stief, Associate Gen. Counsel, Washington Metropolitan Area Transit Authority ("WMATA"), with whom Robert L. Polk, Gen. Counsel, and Robert J. Kniaz, Deputy Gen. Counsel, WMATA, were on the brief, argued the cause, Washington, DC, for appellee WMATA.

Karen M. Moran, Washington, DC, U.S. Equal Employment Opportunity Com'n, argued the cause and filed the brief, for amicus curiae.

Before BUCKLEY, WILLIAMS, and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Coramae Ella Gary alleges that her employer, the Washington Metropolitan Area Transit Authority ("WMATA"), and one of its supervisory employees, James Edward Long, violated Title VII of the Civil Rights Act of 1964 and committed various common law torts by subjecting her to sexual harassment. The district court granted appellees' motions for summary judgment, dismissing the Title VII claims against WMATA and refusing to exercise jurisdiction over Gary's common law tort claims. A magistrate judge then dismissed Gary's Title VII claim against Long. We affirm the dismissal of the Title VII claims and remand the others.

I. BACKGROUND

In reviewing a district court's decision on a motion for summary judgment, we must consider the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Accordingly, the following account of Long's conduct is based on the allegations in Gary's complaint and deposition.

Coramae Gary began working at WMATA in May 1983 and was promoted to the position of stock clerk in 1987. Beginning in April 1988, Long, her second-level supervisor, began a pattern of sexual harassment. Long first attempted to entice Gary into having sexual relations with him through promises that he could make her job easier. After this carrot proved unsuccessful, Long tried using a stick. He repeatedly threatened Gary with adverse employment consequences, including termination of employment if she did not submit to his advances. Long made crude references to her body, regularly expressed his desire to have sex with her, threatened to "get" her for refusing to meet with him, and indicated that he would have her fired if she told anybody of his sexual advances. Gary unfailingly rejected Long's overtures and made him aware that they were unwelcome.

Long's harassment was not limited to verbal abuse. According to Gary, in May or June of 1989, under the pretext of conducting an inspection of a WMATA construction site, Long drove her to a secluded storage facility and, while driving, fondled her breasts and rubbed his hands between her legs. Upon their arrival at the storage facility, he raped her. Thereafter, Long threatened reprisals if Gary told anyone what had happened. Gary was subsequently in an automobile accident and did not return to work until January 1990, whereupon Long resumed his verbal harassment.

On February 14, 1990, Gary reported Long's sexual harassment to a WMATA counselor and later filed a formal grievance with WMATA. Three months later, Gary filed a charge of sexual harassment with the Equal Employment Opportunity Commission. After receiving a "right to sue" letter from the agency, Gary filed this action against Long and WMATA in the U.S. District Court for the District of Columbia. In her complaint, she alleged that Long and WMATA had discriminated against her in violation of Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e-2(a)(1) (1988), and that Long and WMATA had committed various common law torts, including battery, invasion of privacy, and intentional infliction of emotional distress. Gary's Title VII claim was premised on the "hostile environment" theory of sexual harassment: She alleged that Long's "actions ... created a sexually hostile atmosphere detrimental to [Gary's] emotional and physical health...." Complaint p 13. Gary also argues that her Title VII claim effectively asserts a claim of "quid pro quo " sexual harassment. Brief for Appellant at 20-23.

In response to Gary's allegations, WMATA stated that it had not received notice of the alleged sexual harassment until February 28, 1990. On its receipt, WMATA conducted an immediate, detailed investigation of the charges and concluded that there was no corroborating evidence to support them. WMATA also reassigned Gary to another facility where she could avoid further contact with Long.

WMATA noted that, at all relevant times, it had an "active and firm policy against sexual harassment." For example, it sponsored numerous seminars on sexual harassment, issued notices to all employees that such conduct would not be tolerated at any level, published a Civil Rights Policy Statement, prominently displayed the names, photographs, and telephone numbers of its Equal Employment Opportunity Counselors, and established, publicized, and enforced its discrimination complaint procedures. These procedures provided employees with the right to complain informally to EEO Counselors and formally to WMATA's Office of Civil Rights, the right to representation, and the right to an internal review of any unfavorable determinations.

On December 2, 1992, the district court dismissed Gary's Title VII claim against WMATA. In an unpublished opinion, the court held that

[a]n employer is not liable for the hostile environment created by a supervisor when the employer (1) has done nothing to indicate that it sanctions the type of conduct for which the offending supervisor is accused, (2) has a strong policy against sexual harassment and has made available to employees an avenue of complaint which steers clear of the offending supervisor, and (3) takes prompt remedial measures as soon as it is alerted of the situation.

Gary v. WMATA, Civ. A. No. 90-3076, 1992 WL 714990 (D.D.C. Dec. 2, 1992) ("Memorandum Opinion and Order"). Without explanation, the court also declined to exercise jurisdiction over Gary's common law tort claims.

By consent of the parties, the district court referred the Title VII claim against Long to a magistrate judge. The magistrate judge dismissed the claim, holding that individual supervisors cannot be held personally liable for monetary damages under Title VII. Gary appeals these decisions.

II. DISCUSSION
A. Gary's Title VII Claim Against WMATA

Title VII makes it unlawful for an employer

(1) ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex....

42 U.S.C. Sec. 2000e-2(a)(1) (1988). The Supreme Court has held that

this language is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.

Harris v. Forklift Sys., Inc., --- U.S. ----, ----, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (internal quotation marks omitted). Courts have found sexual harassment to be discriminatory in either of two circumstances: the grant or denial of an economic quid pro quo in exchange for sexual favors, see, e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 782-83 (1st Cir.1990); Highlander v. K.F.C. Nat'l Management Co., 805 F.2d 644, 648 (6th Cir.1986), or discrimination that has created a hostile or abusive work environment. See, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 575 (10th Cir.1990). In the latter context, the Supreme Court has noted that

[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.

Harris, --- U.S. at ----, 114 S.Ct. at 370 (internal citations and quotation marks omitted).

Because Title VII only prohibits an "employer" from discriminating on the basis of sex, the question arises as to when courts should impute to the employer the sexual harassment of one employee by another. The statute defines "employer" to include "any agent of" an employer. 42 U.S.C. Sec. 2000e(b) (1988). Although, in Meritor, the Supreme Court declined to issue a definitive rule on employer liability for sexual harassment of one employee by another, the Court did offer the following guidance:

Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency Secs. 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability.

Meritor, 477 U.S. at 72, 106 S.Ct. at 2408 (...

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