Greene v. Dalton, No. 97-5333

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: GINSBURG
• Citation: 334 U.S.App.D.C. 92,164 F.3d 671
• Docket Number: No. 97-5333
• Decision Date: 19 January 1999
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 375, 75 Empl. Prac. Dec. P 45,745, 334 U.S.App.D.C. 92 Luria N. GREENE, Appellant, v. John H. DALTON, Secretary, Department of the Navy and Donald W. Clause, Appellees.

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164 F.3d 671 79 Fair Empl.Prac.Cas. (BNA) 375,
75 Empl. Prac. Dec. P 45,745, 334 U.S.App.D.C. 92 Luria N. GREENE, Appellant,
v.
John H. DALTON, Secretary, Department of the Navy and Donald
W. Clause, Appellees. No. 97-5333. United States Court of Appeals,
District of Columbia Circuit. Argued Nov. 13, 1998.
Decided Jan. 19, 1999.

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Appeal from the United States District Court for the District of Columbia (No. 96cv02161).

Kurt J. Hamrock argued the cause as amicus curiae on behalf of appellant. With him on the briefs was Daniel G. Jarcho, appointed by the court.

Luria N. Greene, appearing pro se, was on the briefs for appellant.

Brian J. Sonfield, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: SILBERMAN, GINSBURG, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Luria N. Greene sued the Navy under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and her former supervisor under the common law, claiming that (1) her supervisor had sexually harassed her while she was employed by the Navy as a summer intern and (2) in retaliation for her complaining about the harassment the Navy refused to rehire her the following summer. The district court, concluding that Greene had failed to present sufficient evidence to support a jury verdict against the Navy, granted the Government's motion for summary judgment and dismissed the claim against the supervisor for lack of subject matter jurisdiction. Upon Greene's appeal, we hold that a reasonable jury could find that Greene was sexually harassed by her Navy supervisor, but not that the Navy retaliated against her because of her complaints about him. Accordingly, the judgment of the district court is reversed in part and affirmed in part.

I. Background

Greene started work for the Navy as a temporary engineering technician on June 19, 1995; she was a 22-year-old graduate student at the time. According to her affidavit, which we credit in view of the procedural posture of the case, that same day "and virtually every day thereafter," her immediate supervisor, Lieutenant Commander Donald Clause, subjected her to "unwelcome discussions concerning sexual matters" and to amorous advances. Clause's campaign of harassment, she says, culminated on June 29 in his raping her. On August 2, when Clause allegedly propositioned her again, she reported the rape to a Navy EEO counselor.

In October, 1995 Greene filed a formal sexual harassment complaint with the Navy's Equal Employment Office. As a result of her allegations the Navy initiated a court martial proceeding against Clause, charging him with rape, sexual harassment, adultery, and conduct unbecoming an officer. Clause admitted having sex with Greene but claimed that it was consensual. In support of this defense he introduced evidence suggesting that Greene had in the past filed a number of frivolous sexual harassment complaints. He also introduced a diary, purportedly written by Greene, that confirmed his account of the June 29 incident. The military court found Clause guilty of adultery and conduct unbecoming an officer, but not guilty of rape or sexual harassment.

In 1996 Greene again applied for a summer position with the Navy. Another, allegedly less qualified, candidate was hired for the position. Greene asserts that the Navy refused to hire her because of the charges she had made against Clause.

Greene filed this suit in September, 1996. Her complaint includes claims against the Navy for sexual harassment and retaliation and against Clause for intentional infliction of emotional distress, as well as a demand for a jury trial. Instead of answering the complaint, both defendants moved to dismiss, or, in the alternative, for summary judgment.

The district court granted the Navy's motion for summary judgment and dismissed

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the case against Clause. First, in view of Greene's history of questionable complaints and the exculpatory contents of her supposed diary, the court reasoned that her allegations of sexual harassment "may have been fabricated for purposes of personal advantage or revenge"; although Greene had submitted an affidavit to the court in which she denied writing the diary, the court faulted her for not making a "definitive repudiation" of its authenticity. Turning next to Greene's claim of retaliation, which it mistakenly understood to rest solely upon the Navy's decision not to hire her for a permanent position, the court observed that she had failed to present evidence that she had ever applied for such a position, wherefore no reasonable jury could find that the Navy had wrongfully denied it to her. Finally, the court dismissed for lack of subject matter jurisdiction Greene's claim against Clause for intentional infliction of emotional distress. Greene contends that the court...