King v. Dalton

• Decision Date: 28 July 1995
• Docket Number: Civ. A. No. 95-250-A.
• Citation: 895 F. Supp. 831
• Parties: Stephanie J. KING, Plaintiff, v. John H. DALTON, Secretary of the Navy, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

895 F. Supp. 831

Stephanie J. KING, Plaintiff, v. John H. DALTON, Secretary of the Navy, et al., Defendants.

Civ. A. No. 95-250-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 28, 1995.

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Paul J. Kennedy, Kip Schwartz, Susan B. Gerson, Graham & James, Washington, DC, for plaintiff.

Helen F. Fahey, United States Attorney, Jeri Kaylene Somers, Assistant United States Attorney, Meredith Manning, Special Assistant United States Attorney, Alexandria, VA, Kevin J. Keefe, Associate Counsel, Office of the General Counsel, Department of the Navy, Arlington, VA, for John H. Dalton, Sec. of the Navy.

Frank G. Aschmann, Aschmann and Aschmann, Alexandria, VA, for John C. Lovett.

MEMORANDUM OPINION

ELLIS, District Judge.

In this Title VII¹ sexual harassment suit brought against the Navy² and one of its employees, the question presented is whether, and under what circumstances, an employee of a government contractor is also deemed to be an employee of the government for Title VII purposes. The threshold, general question is whether an employee may have more than one employer under 42 U.S.C. § 2000e-16, the provision governing the federal government's Title VII liability. If so, then the specific question presented here is whether the facts at bar warrant a conclusion that both the Navy and the government contractor were plaintiff's employers for purposes of Title VII liability.

For the reasons that follow, the Court concludes first that an aggrieved employee, in appropriate circumstances, can have more than one employer under § 2000e-16. Next, the Court further concludes that those circumstances did not exist in the instant case.

I.³

Plaintiff Stephanie King was hired by Booz-Allen & Hamilton, Inc. ("Booz-Allen") in June 1990. At the time, Booz-Allen was performing under a contract with one of its large clients, the Department of the Navy's Space and Naval Warfare System Command ("SPAWAR"). Under one portion of the contract, Booz-Allen was to help coordinate the installation of satellite communication systems aboard U.S. Navy ships, submarines, and shore batteries. While the Navy contemplated that it would perform the actual installation of the equipment, it hired Booz-Allen to provide certain support services and to devise an implementation plan for the communication systems' installation. In August 1990, two months after her arrival, Booz-Allen assigned King to work on this portion of the SPAWAR contract ("the project"). Among others, her responsibilities included scheduling the communication systems' installation and preparing the project budget. Dan Coole, another Booz-Allen employee, was King's immediate supervisor and generally managed Booz-Allen's performance of the project.

Booz-Allen's performance of the SPAWAR contract necessarily involved close and frequent dealings between Navy and Booz-Allen personnel. In particular, Defendant John Lovett was the Navy employee in charge of planning and executing the project. It was his responsibility to insure that the communication systems were properly installed. In this capacity, he met several times a week with Booz-Allen personnel, including King, at Booz-Allen's offices to discuss the project and monitor its progress.

King worked exclusively on the SPAWAR project from August 1990 until June 1993. During this period, she contends, Lovett subjected her to repeated and unwelcome sexual advances. More specifically, she alleges that Lovett frequently made sexually explicit and demeaning remarks to her, touched her inappropriately or positioned himself in close proximity to her, commented on her physical appearance, and leered at her. In addition, he suggested that she accompany him on certain business trips, which, he indicated, were at least partly for pleasure. King reported Lovett's behavior to Booz-Allen and Navy management, both of which ultimately investigated her complaint. Following her complaint, Robert McGlothlin, the Navy's Director of SPAWAR, directed Lovett to write King a letter of apology and to attend sexual harassment prevention training. Despite these reprimands, Lovett's behavior continued. According to King, when she again made it clear that she was uncomfortable working directly with Lovett and would not tolerate his demeaning behavior, she was removed from the project and demoted to a less desirable and less responsible position. Dissatisfied, King then resigned from Booz-Allen.

On March 4, 1994, King filed suit against Booz-Allen for sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), and for intentional infliction of emotional distress under state common law. In her complaint, she alleged that Booz-Allen was her employer, that the company did not take adequate steps to remedy the situation with Lovett (whom she referred to as the "client"), and that it retaliated against her for her complaints of sexual harassment. Booz-Allen and King ultimately settled that dispute, the terms of which are neither publicly available nor material to the instant dispute.

Following her settlement with Booz-Allen, King brought this suit against the Secretary of the Navy, John Dalton, in his official capacity ("the Navy") and against Lovett in both his individual and official capacities. This complaint charges one count of Title VII sexual harassment against both defendants. In response, the Navy filed a motion to dismiss on the ground that the Navy was not King's employer during the period in question, and therefore is not a proper defendant under the relevant Title VII provisions.⁴ Similarly, Lovett moves to dismiss on the ground that he is not an employer and therefore not subject to suit under Title VII. King opposes the motions, claiming that Defendants possessed sufficient control over the means and manner of her work to render them "employers" for purposes of Title VII liability. Resolution of these opposing contentions constitutes the task at hand.

Because the parties have referred to matters outside the pleadings in connection with the motions to dismiss, including declarations and transcripts of deposition testimony,⁵ the motions will be treated as ones for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed. R.Civ.P. 12(b). See also Hagel v. United Land Co., 759 F.Supp. 1199, 1201 n. 7 (E.D.Va.1991); Hawkins v. Murray, 798 F.Supp. 330, 332 n. 3 (E.D.Va.1992).

II.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e, et seq.⁶ As originally enacted, however, Title VII did not extend to discrimination in the federal work-place. See § 2000e(b) (excluding federal government from definition of "employer"). To remedy this, Congress amended Title VII in 1972 by explicitly waiving the United States' sovereign immunity with respect to employment discrimination. Equal Employment Opportunity Act of 1972, § 11, 42 U.S.C. § 2000e-16. Yet, rather than simply adding the United States to the universe of possible "employers" that may be sued under § 2000e-2, Congress created a separate and distinct provision to govern federal workplace discrimination. § 2000e-16. Significantly, the Supreme Court has held that § 2000e-16 "provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. General Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976). Therefore, the Navy's liability, if any, must be found in accordance with the strictures of § 2000e-16.

Section 2000e-16, entitled "Employment by Federal Government," provides, in pertinent part:

All personnel actions affecting employees or applicants for employment ... in military departments ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.

§ 2000e-16(a). As the explicit terms of this provision make clear, a threshold requirement for imposing Title VII liability against the federal government is that the plaintiff be an "employee or applicant for employment" of the defendant federal agency, in this instance, the United States Navy.⁷

As King readily concedes, Booz-Allen was plainly her employer during the time of the alleged harassment. Booz-Allen interviewed King; hired her for an indefinite time period; assigned her to the SPAWAR project; supervised her work; gave her regular performance appraisals; provided her workplace, equipment and supplies; maintained sole authority for hiring, training, and firing her; paid her salary; withheld income taxes; paid her Social Security; and provided her with annual leave, raises, bonuses, and health insurance. In short, Booz-Allen's connection with King displays all the indicia of a traditional, common law employment relationship. Indeed, as noted, King has already brought suit against Booz-Allen based on the same underlying allegations of harassment.

Citing the previous litigation between King and Booz-Allen, the Navy urges as a preliminary matter that King is judicially estopped from claiming that the Navy was her employer. The doctrine of judicial estoppel precludes a party from "playing fast and loose" with the judicial system by taking inconsistent positions in successive judicial proceedings in accordance with that party's fluctuating self-interest. Guinness PLC v. Ward, 955 F.2d 875, 899 (4th Cir.1992). Thus, the Navy contends, King should be estopped from claiming that the Navy was her employer during her work on the SPAWAR contract, when she previously claimed in her suit against Booz-Allen that Booz-Allen was her employer during this same time period. But the Navy's judicial estoppel argument misses the mark, for it incorrectly assumes that King may have only one employer for Title VII purposes. King does not dispute that she was an employee of Booz-Allen during the...