Curry v. District of Columbia

• Decision Date: 09 November 1999
• Docket Number: No. 98-7121,98-7121
• Citation: 195 F.3d 654
• Parties: (D.C. Cir. 1999) Cynthia D. Curry, Appellee v. District of Columbia, Appellant FOR THE DISTRICT OF COLUMBIA CIRCUIT
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 654

195 F.3d 654 (D.C. Cir. 1999)

Cynthia D. Curry, Appellee v. District of Columbia, Appellant

No. 98-7121

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 1999

Decided November 9, 1999

Appeal from the United States District Courtfor the District of Columbia(No. 97cv01088) [Copyrighted Material Omitted] Donna M. Murasky, Assistant Corporation Counsel, argued the cause for the appellant. Jo Anne Robinson, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on brief.

Elizabeth Margaret Boyle argued the cause for the appellee. Ted Justice Williams was on brief.

Before: Wald, Henderson and Randolph, Circuit Judges.

Opinion for the court filed Per Curiam.

Circuit Judge Henderson filed a separate opinion.

Circuit Judge Wald filed a separate opinion.

Circuit Judge Randolph filed a separate opinion.

Per Curiam:

In accordance with the accompanying separate opinions, the district court's order denying the motion for judgment as a matter of law is affirmed in part and reversed in part and the district court's judgment on the verdict for plaintiff is affirmed.

Karen LeCraft Henderson, Circuit Judge:

Cynthia D. Curry brought suit against her employer, appellant District of Columbia (District), claiming sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. The source of the alleged sexual harassment was a co-worker in the District's Metropolitan Police Department (MPD). Following trial in the district court, a jury awarded Curry $100,000 in damages. The District filed a motion for judgment as a matter of law or, in the alternative, for a new trial or remittitur. Upon the district court's denial of its motion, Curry v. District of Columbia, 9 F. Supp. 2d 1 (D.D.C. 1998), the District appealed. On appeal, the District challenges both the jury's finding of liability and the award of damages. As explained below we affirm the district court's denial of post-trial relief in part and reverse in part. In addition, I would remand for further proceedings as to damages.

I.

Curry joined the MPD as a uniformed officer in October 1986. Six years later, she was transferred to the Domestic Security Section of the MPD's Intelligence Unit where she met Detective Condwell Freeman. Curry and Freeman soon began an intimate relationship which lasted about six months and then "just ended" in April 1993. Joint Appendix (JA) 111.

In July 1993 Curry was again transferred to a different unit and did not return to the Intelligence Unit until the following May. Upon Curry's return, Freeman began a daily routine of telling her sexual jokes and suggesting, while grabbing his crotch, that she allow him to "slip her the lizard."¹ JA 112-13. This conduct continued from mid-May 1994 until August 12, 1994, when Curry stopped speaking to Freeman.

In early September 1994 Curry told Sergeant Jacob Major, who was her (and Freeman's) direct supervisor, that Freeman had been sexually harassing her. Her report followed a three-week period for which Major, who was on vacation during that period, had appointed Freeman acting sergeant in charge of the Unit. Upon his return, Major admonished Curry for submitting an untimely report. Curry explained that she had completed the work but waited for Major's return before re-submitting the report because she wanted to avoid Freeman.² Major then referred Curry to the MPD Labor Relations, EEO Office. Adhering to the MPD's formal complaint procedure, Major initially denied Curry's request that he speak with Freeman about the problem. Subsequently, however, Major asked Freeman about the allegations, which Freeman denied, and advised Freeman that sexual harassment would not be tolerated. Major also alerted Lieutenant Cheryl Peacock, the MPD's EEO Officer, to Curry's complaint. Although Curry did not contact the EEO Office until September 30, Peacock began to investigate the matter immediately. The investigation lasted over four months and included interviews of Freeman and other co-workers.

On September 30, 1994 Curry filed a complaint with the MPD's EEO Office. Earlier that day, Freeman, while speaking loudly to a third party in earshot of Curry, had stated repeatedly that he would sue anyone who made unsubstantiated allegations against him. Curry at that time told Peacock about Freeman's "lizard" remarks, including that they had ceased. She also reported the incident involving the redrafted reports when Freeman was acting sergeant and Freeman's remarks she had overheard that morning. Curry reported no other form of harassment. Shortly thereafter, she requested and received a transfer to the Analytical Section of the Intelligence Unit, which was on the same floor as the Domestic Security Section but in a different wing of the building.JA 497. Roughly ten months later, during August 1995, the MPD undertook a wholesale reorganization of its offices which put Curry's and Freeman's offices in closer proximity.

On January 23, 1995³ the EEO Office issued a report on its investigation of Curry's charges. The report found probable cause to believe Freeman had verbally harassed Curry, that is, probable cause "to sustain the allegations that sexual harassment has occurred."⁴ JA 776. Peacock, the investigating officer who authored the report, testified that "the workplace ... was filled with sexual jokes, sexual language." JA 306. Captain Alan Dreher, the head of the Intelligence Unit, learned of the report and personally admonished Freeman that sexual harassment would not be tolerated and, if it was going on, it was to stop. The EEO Office advised Curry by letter that she could file a complaint with the District's Department of Human Rights and Minority Business Development (DHR).⁵ The EEO Office's finding notwithstanding, the MPD's collective bargaining agreement and D.C. Code 1-617.1(b-1)(1) (1992)⁶ prohibited the MPD from taking disciplinary action against an officer more than forty-five days after the MPD became aware of the officer's improper conduct. Peacock's investigation took more than forty-five days to complete and the District took no formal disciplinary action against Freeman. In June 1996 Curry transferred to the Court Intelligence Unit.

Although she made no mention of it until November 1995, Curry also claimed Freeman regularly glared at her in a harassing manner from the time his verbal harassment ceased in August 1994 until her June 1996 transfer out of the Unit. She testified that Freeman "would look at [her] in a way that made [her] most uncomfortable, as if he was undressing [her]." JA 235. Although Curry never invoked the MPD's formal complaint procedure with regard to Freeman's glaring, she did report it to supervisory personnel. She first complained on November 7, 1995, during a telephone conversation initiated by Lieutenant Emmogean Simpson-Jones of the MPD's Labor Relations, EEO Office, who asked her how things were going. Although the record is unclear, apparently sometime between November 7 and December 14, 1995 Curry also requested that the MPD transfer Freeman. On December 14, 1995 the EEO Office issued a memorandum in which the MPD's EEO Director Brenda Wilmore noted that Curry complained she was "experiencing a 'hostile environment,' because [Freeman] constantly 'glare[d]' at [her]" and that there was "no verbal communication" between the two.JA 760. The memorandum concluded that "agency constraints" left the EEO Office unable to act on her request to transfer Freeman.⁷ The Director did offer to help Curry transfer if she so desired. At that time Lieutenant Alton Bigelow, another EEO officer, advised Freeman of Curry's report about his glaring and "warned him against acts of intimidation." JA 764. Bigelow asked Freeman to agree to a transfer, a request Freeman declined.⁸

II.

This court reviews de novo the trial court's denial of a motion for judgment as a matter of law or, in the alternative, for a new trial. Swanks v. Washington Metro. Area Transit Auth., 179 F.3d 929, 933 (D.C. Cir. 1999). The jury verdict stands "unless the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that reasonable men and women could not disagree on the verdict." Smith v. Washington Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir. 1998) (internal quotation marks omitted). Nevertheless, evidence supporting the verdict must be "more than merely colorable; it must be significantly probative." Id. (internal quotation marks omitted).

A.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1).A claim of sexual harassment is cognizable under this provision if the alleged harassment alters, either expressly or constructively, the terms or conditions of an individual's employment. See, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67-68 (1986). Courts describe an explicit alteration as "quid pro quo" harassment and a constructive alteration as "hostile work environment" harassment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998). To be actionable, however, the latter must be severe or pervasive. Id.; Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1002-03 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

An employer's liability for a hostile work environment sexual harassment claim differs depending on who does the harassing. The harasser can be a supervisor or someone else whose position in the workplace affords authority over the target of the harassment such that the harasser is aided by the "agency relation" in harassing the other employee. Ellerth, 118 S. Ct. at 2269; see Mikels...