King v. Kidd

• Decision Date: 26 August 1993
• Docket Number: No. 90-CV-1621,91-CV-283.,90-CV-1621
• Parties: Robert KING and Raymond Lambert, Appellants, v. Patricia KIDD, Appellee.
• Court: D.C. Court of Appeals

640 A.2d 656

Robert KING and Raymond Lambert, Appellants, v. Patricia KIDD, Appellee.

Nos. 90-CV-1621, 91-CV-283.

District of Columbia Court of Appeals.

Argued June 12, 1992.

Decided August 26, 1993.

Rehearing en banc Denied April 27, 1994.

Susan S. McDonald, Asst. Corp. Counsel at the time the brief was filed, with whom John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, for appellants.

Christopher W. Hornig, with whom Vicki G. Golden and Eric Steele, were on the brief, for appellee.

Before FERREN and KING, Associate Judges, and GALLAGHER, Senior Judge.

FERREN, Associate Judge:

This case presents the question whether a jury reasonably could find that actions by two government agency supervisors, Robert King and Raymond Lambert, amounted to "extreme and outrageous conduct," justifying liability for intentional infliction of emotional distress on an agency employee, Patricia Kidd, who was sexually harassed by another employee, Melvin Carter, while working with Kidd under King's and Lambert's supervision. Plaintiff-appellee Kidd sued defendant-appellants King and Lambert, as well as employee Carter and the District of Columbia, for sexual harassment (statutory claim) and for intentional infliction of emotional distress (tort claim) arising out of Kidd's employment with the District of Columbia Department of Administrative Services (DAS).¹ After the trial court directed a verdict in favor of Lambert and the District on the sexual harassment claim, a jury found Carter liable under both the sexual harassment and the emotional distress claims, found appellants Lambert and King liable under the emotional distress claim, and found in favor of the District on the emotional distress claim, and found in favor of King on the sexual harassment claim. The jury awarded Kidd $258,000 in compensatory damages, jointly and severally, against King and Lambert and co-defendant Carter. In addition, the jury awarded Kidd punitive damages in the sum of $30,000 against Carter, $10,000 against King, and $2,000 against Lambert. The only verdicts on appeal are those against King and Lambert on the tort claim of intentional infliction of emotional distress.²

Appellants argue that: (1) the Superior Court did not have subject matter jurisdiction over Kidd's emotional distress tort claim because such an action is preempted by the Comprehensive Merit Personnel Act (CMPA); (2) as a matter of law, the actions of King and Lambert, respectively, did not constitute "extreme and outrageous" conduct necessary to hold them liable for intentional infliction of emotional distress; and (3) King and Lambert were held vicariously liable for Carter's actions, contrary to law, under the doctrine of respondeat superior.³ In turn, Kidd contends that appellants are barred from raising: (1) the jurisdictional argument, because appellants failed to raise it in the trial court; (2) the sufficiency of the evidence argument, because appellants failed to raise it in a motion for directed verdict at the close of all the evidence; and (3) the respondeat superior argument, because appellants "consented to all jury instructions." Although we reach all three of appellants' arguments, we only agree with one: the evidence was insufficient as a matter of law to hold appellant Lambert liable for intentional infliction of emotional distress. We affirm in all other respects.

I. Statement of Facts

The jury considered the following evidence at the joint trial of appellants, Robert King and Raymond Lambert, and their co-defendant, Melvin Carter.

A. Background Concerning Co-Defendant Carter

In June 1987, Patricia Kidd began working for DAS as a DS-7 space management specialist. Kidd testified that approximately four weeks after she had begun work, Melvin Carter, her immediate supervisor, began making sexual comments to her. He told her that a lot of men were asking questions about her, that she could have her "pick," and that he was "interested" as well. She rebuffed him. Shortly thereafter Carter explained to Kidd how women "fucked their way to the top, that he had no problem with it." Thereafter, Carter began telling Kidd that he "had a lot of clout," he knew people throughout the District government, and he could make things "easy" for her. He began demanding that she run errands for him and told her how he controlled other female employees in the office through sex. He began calling her at home and once asked her when she would make love to him. When she informed him she had a boyfriend, he said "it didn't mean a motherfucking thing" and that he "wanted" her.

Around December 1987, Carter showed Kidd documents demonstrating that she was a probationary employee. He told her that, because of her probationary status, she could be fired at his recommendation and that no one would question anything. Kidd also testified that Carter had been creating difficulties for her at work by causing "friction," forbidding her to use a computer, and denying her access to clerical help. In December 1987, Carter telephoned Kidd at her work desk and ordered her to come to a nearby hotel. When she hung up, he called back and reminded her of her probationary status. She went to the hotel, and they had sex. Kidd's employment situation improved for a while but then Carter resumed pursuing her. When she rebuffed him, he began mistreating her again. When she attempted to apply for a position in another office, Carter came to her and told her that she would not get it, but that if she had sex with him again she would get a promotion. When she refused he became angry and loud, took away her computer and her clerical assistant, and told people to stay away from her.

In February 1988, Kidd complied with Carter's renewed request and had sex with Carter again. According to Kidd's testimony, Carter also forcibly sodomized her, rupturing her anal tissues and causing her to fear AIDS. Shortly thereafter, he arranged for her to get a promotion to a DS-9-11-12 position, starting as a DS-9, and told her she could get a promotion every year if she "acted right."

Kidd testified that Carter's continual harassment rendered her dysfunctional in her home life; she became hostile or distant to her children and felt humiliated and out of control. Kidd said that she believed Carter effectively had absolute power over her in her probationary year and that if she resisted him, she would be sacrificing her whole career.

After the February incident, Kidd refused to have sex with Carter again. At that point, however, Carter became "out of control" and "obsessed with sex." Because she would not go along with his wishes, Carter kept Kidd's work from her so that she was forced to "sneak in" to accomplish it, and he prohibited a computer analyst from working with her on her program. On May 18, 1988, Carter demanded sex but Kidd refused. Carter then summoned Kidd to his office, verbally admonished her, and gave her a letter of reprimand. In response, she called the personnel office, submitted a letter of complaint and then filed an "informal grievance." When Carter failed to respond satisfactorily, on May 19, 1988, Kidd filed a formal grievance with Carter's supervisor, appellant King. Neither the informal nor the formal grievance explicitly mentioned sexual misconduct, although the formal grievance complained of months of "stress, harassment and mistreatment" and stated that "supervisors should not be allowed to use their title to constrict, harness and abuse subordinate employees' rights and human rights." Kidd also advised King that she feared reprisals or retaliatory actions and that she felt "trapped."

Immediately after Kidd filed the grievance with King, Carter permanently took away her clerical assistant and put that clerical assistant in supervisory control over Kidd. Furthermore, he took Kidd off a computer program she had developed to manage the District's real property, excluded her from program meetings, and stopped giving her work. He also refused to let her serve on a women's committee for which she had been nominated. Kidd related all this to King in a supplementary grievance.

B. Involvement of Appellants King and Lambert

On July 21, 1988, Kidd received a letter of response from King rejecting her grievance in its entirety. The letter related that King had met with Carter, that Carter had tried to resolve office problems, and that Kidd had a negative attitude and wasn't a team member. The letter stated: "Mr. Carter has demonstrated to me that he is a fair and honest person who is very reliable and dependable and shows an exceptional cooperation and teamwork spirit."

Kidd next submitted a handwritten grievance to appellant Lambert, Director of DAS. Although Lambert did not recall ever seeing the grievance, Kidd testified that she submitted it to Sylvia Brown, Lambert's correspondence secretary, and that the document bore the signature of Ms. Brown. This grievance complained of oppressive treatment with reference to sexual harassment. She accused King of failing to protect against reprisals and to investigate allegations equitably, of granting an audience to Carter and not to her, and of displaying bias. She argued that King was concerned about protecting Carter's character and integrity, but not hers, and that he had not met his obligation to give her grievance full, impartial, and prompt consideration. Kidd also stated that she "would consider remaining in the position providing I receive your word in writing that I receive equitable treatment along with other male employees. That I not be harassed."

When Kidd returned from a two week sick leave, after filing her grievance with Lambert, she discovered that Carter had arranged for her to be transferred immediately to a different division in DAS under the supervision of Linton Cheers. Kidd testified that she acquiesced in the transfer because she felt she had no other choice. On September 1, 1988, Kidd...