Decision Date31 August 1995
Docket NumberNo. 92-CV-840,No. 92-CV-936,92-CV-840,92-CV-936
Citation665 A.2d 621
PartiesESTATE OF Mary F. UNDERWOOD, Appellant/Cross-Appellee, v. NATIONAL CREDIT UNION ADMINISTRATION, et al., Appellees/Cross-Appellants.
CourtD.C. Court of Appeals




Warren K. Kaplan, with whom Solaman G. Lippman and Richard H. Semsker were on the brief, Washington, DC, for appellant/cross-appellee.

F. Joseph Nealon, with whom Marianne P. Eby and Constantinos G. Panagopoulos were on the brief, Washington, DC, for appellee/cross-appellant National Credit Union Administration.

Joseph A. Artabane, with whom W. Neil Belden was on the brief, Washington, DC, for appellee/cross-appellant Charles West.

Woodley B. Osborne, Washington, DC, submitted a brief for amicus curiae, Metropolitan Washington Employment Lawyers Association.

Before FERREN, TERRY, and STEADMAN, Associate Judges.

Opinion for the court by Associate Judge FERREN.

Opinion concurring in part and dissenting in part by Associate Judge STEADMAN at p. 649.

FERREN, Associate Judge:

This case presents the following questions: (1) whether this court has jurisdiction over plaintiff's appeal of a judgment notwithstanding the verdict (j.n.o.v.) in an action for sexual harassment and for intentional infliction of emotional distress against a credit union, where the credit union, after judgment, was placed in the hands of a liquidating agent, the National Credit Union Administration (NCUA), and appellant did not, at that point, initiate a federal administrative remedy before pursuing this appeal; (2) if this court has jurisdiction, whether the trial court erred in granting the j.n.o.v. on the ground that the Worker's Compensation Act (WCA) provided the exclusive remedy for appellant's emotional distress claim against the credit union; (3) if the WCA was not the exclusive remedy, whether the evidence was sufficient to sustain appellant's emotional distress claims against the Credit Union and its board chairman; (4) if so, whether a new trial or other remedy is warranted on the issue of damages because the $425,000 verdict against the credit union is inconsistent with the jury's $10,000 verdict against the credit union's board chairman.

We conclude that we have jurisdiction; that the Workers' Compensation Act does not provide an exclusive remedy applicable here; that the evidence is sufficient to support appellant's emotional distress claim; and that the inconsistent verdicts — imposing a higher liability on the Credit Union than onthe only active tortfeasor, its board chairman — must be affirmed as to the board chairman and reinstated in full against the Credit Union (now NCUA) because the Credit Union waived its right to object to the verdict on grounds of inconsistency.

I. Statement of Facts

At trial, plaintiff-appellant's evidence told the following story. The Washington Post Employees Federal Credit Union hired appellant, Mary F. Underwood, as Operations Manager/Bookkeeper in 1980 and promoted her to Chief Accountant in 1985. During the spring of 1985, Charles West, who was then a Director of the Credit Union, developed a romantic interest in appellant and extended her several invitations to go out of town with him. Appellant rejected these invitations for about 14 months.

In June 1985, West persuaded appellant to apply for the position of President/Manager of the Credit Union, and appellant obtained this position with West's help in July 1985. In her new position, appellant was called upon to work closely with West, who had been appointed the Chairman of the Credit Union's Board of Directors in February 1986 and acted as a liaison between appellant and the Board.

In September 1986, West and appellant developed a sexual relationship which lasted until January 1987. After the February 1987 Board meeting, appellant, who was married, told West that she did not want to continue their sexual relationship. West, however, continued to extend invitations to appellant between March and September 1987. Appellant understood these invitations to be sexual in nature and rejected them. West became increasingly hostile and critical of appellant, subjecting her to numerous incidents of anger, yelling and humiliation, some of which occurred in the presence of the Board of Directors or the staff.1

In September 1987, following a Board meeting where appellant had been singled out for praise by an NCUA examiner, West invited appellant to accompany him on a trip to Florida and, following her refusal, threatened that (1) he was going to do his own evaluation of appellant regardless of the NCUA examiner's praise; (2) he had already lined up some replacements for appellant; (3) he had the Board behind him and would use his influence with the Board to have appellant fired; (4) he was willing to lie to the Board about appellant. Subsequently, on October 1, 1987, West called a special meeting of the Board for the purpose of evaluating appellant.

The Board was aware that appellant suffered from sarcoidosis — a progressive lung disease that results in a debilitating shortness of breath after minimal exertion — and that appellant was under continuing stress from West.2 Appellant's physical and emotional health continued to deteriorate during January and February of 1988, and appellant began feeling demoralized because her conflict with West had started affecting her staff's morale and productivity. West's continuing criticism made appellant's working conditions "impossible," and appellant, who had loved her job, began to dread going to work.

After returning from sick leave attributable to a lung infection, appellant learned that West was planning to exclude her from the March 3, 1988 Board meeting. Whenappellant decided to attend the meeting, West threw a box of papers at her feet and demanded that she take the material she had prepared for the meeting back to the Credit Union. He further humiliated her in front of the Board3 by screaming at her to stop distributing packets. Once again, despite appellant's appeals to several Board members, the Board took no action to remedy the situation.4

Appellant's physical and emotional conditioned worsened during March 1988. A lung infection returned, and she grew depressed and frightened. At the March 24, 1988 Board meeting, appellant asked the Board for a leave of absence for up to 90 days to give her an opportunity to evaluate her health and pull herself together. In her request for leave, appellant included a detailed plan for interim management of the Credit Union. After meeting to consider appellant's request, West and another Board member met with appellant and told her that she could not come back to work until the Board said so and that she was no longer the manager. Appellant asked for a written statement as to her status; the statement was not delivered that day as promised.5 On March 28, 1988, the Board voted to fire appellant and appellant was advised of this fact in a letter written on April 4, 1988, which she received on April 6, 1988.6 Appellant was devastated by this news. Two days later, appellant called Board member Poff, who, according to appellant's testimony, agreed that appellant's termination had been engineered and "was just the result of sexual harassment."

On October 20, 1988, appellant filed suit against the Credit Union and all its Board members, including West, seeking damages for (1) sexual harassment in violation of District of Columbia Human Rights Act, D.C. Code §§ 1-2501 to -2557 (1992 Repl.), and (2) intentional infliction of emotional distress, a common law tort. (Before trial, appellant dismissed the complaint against all Board members except West.)

At trial, appellant presented the testimony of Dr. Glenn Legler, a psychiatrist for twenty-two years, who opined that, as a result of her depression following her job termination, appellant became unable to cope with the demands of daily living and with the symptoms of sarcoidosis.7 Appellant herself testified that, after her firing, she had become totally depressed and that she scarcely had left her apartment for over a year. She also testified that she had become unable to care for herself and that her husband had to take over all the household chores.

Appellant's condition deteriorated to the point that, in August 1989, she was hospitalized for two weeks for acute depression. At the time of trial, appellant had been under psychiatric care for depression for four yearswith no significant improvement for the immediately preceding one and a half years.

On January 28, 1992, after a nine-day trial, the jury returned a verdict for appellant on her emotional distress claims, awarding her damages of $10,000 against West and $425,000 against the Credit Union. The jury, however, rejected appellant's sexual harassment claims against both parties.

West and the Credit Union each moved for a j.n.o.v.8 The trial court granted the Credit Union's motion on June 17, 1992, ruling that the Worker's Compensation Act, D.C. Code §§ 36-301 et seq. (1993 Repl.) (WCA), was appellant's exclusive remedy against the Credit Union, her employer, for the emotional distress claim. The court, however, allowed the $10,000 verdict against West to stand.

On July 1, 1992, acting under authority of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub.L. No. 101-73, 103 Stat. 183,9 NCUA placed the Credit Union in involuntary liquidation and appointed itself liquidating agent. See 12 U.S.C. § 1787(a)(1)(A). Two weeks later, on July 16, 1992, appellant Underwood appealed the trial court's order granting the j.n.o.v. Both the Credit Union...

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