Lively v. Flexible Packaging Ass'n, 97-CV-128.

• Citation: 830 A.2d 874
• Decision Date: 21 August 2003
• Docket Number: No. 97-CV-128.,97-CV-128.
• Parties: Gaye LIVELY, Appellant, v. FLEXIBLE PACKAGING ASSOCIATION, et al., Appellees.
• Court: Court of Appeals of Columbia District

830 A.2d 874

Gaye LIVELY, Appellant, v. FLEXIBLE PACKAGING ASSOCIATION, et al., Appellees.

No. 97-CV-128.

District of Columbia Court of Appeals.

Reargued En Banc October 30, 2001.

Decided August 21, 2003.

Lawrence E. Eiser, with whom Thomas L. McCally, was on the brief, for appellant.

Alfred Belcuore for appellees.

Stephen Z. Chertkof, Lois G. Williams, Avis Buchanan, Susan Huhta, Carl Messineo, and Linda M. Correia, filed an amicus curiae brief for the Washington Lawyers' Committee for Civil Rights and Urban Affairs, the Partnership for Civil Justice, Inc., and the Metropolitan Washington Employment Lawyers' Association.

Before WAGNER, Chief Judge, TERRY,¹ STEADMAN, SCHWELB, FARRELL,¹ RUIZ, REID, GLICKMAN, and WASHINGTON, Associate Judges, and BELSON, Senior Judge.

REID, Associate Judge:

On June 11, 2001, this court issued an order vacating the panel decision in Lively v. Flexible Packaging Ass'n, et al., 765 A.2d 954 (D.C.2001), an employment discrimination case in which the majority affirmed a trial court judgment overturning a jury verdict in favor of appellant Gaye Lively, and against appellees Flexible Packaging Association ("FPA") and Mr. Glen Braswell ("Mr. Braswell"),² on her claims of a sexually hostile work environment, unequal pay, retaliation for an assertion of her rights under the District of Columbia Human Rights Act ("DCHRA"), and intentional infliction of emotional distress. See Lively v. Flexible Packaging Ass'n, et al., 773 A.2d 1033 (D.C.2001)

.³ After the en banc oral argument on October 30, 2001, we held the case in abeyance pending the Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). After Morgan was decided, we asked the parties to file supplemental briefs discussing its impact on Ms. Lively's case.

We hold that Ms. Lively filed her hostile work environment claim in a timely manner and that a reasonable person, viewing the evidence in the light most favorable to her, could reach a verdict in her favor. Therefore, as to that claim, we reverse the trial court's grant of judgment notwithstanding the verdict in favor of appellees, and remand that claim to the trial court with instructions to (1) reinstate the jury's liability verdict and the compensatory damages award attached to that claim, and (2) consider the reasonableness of the punitive damages award in a manner consistent with this opinion. We also adopt, for cases filed under the DCHRA, the Supreme Court's hostile work environment analysis governing federal civil rights claims as it is set forth in Morgan, supra, and reaffirm the legal principles relating to a hostile work environment claim that we articulated in Daka, Inc. v. Breiner, 711 A.2d 86 (D.C.1998).⁴

FACTUAL SUMMARY

The record before us shows that Ms. Lively began her employment at FPA in 1980, while Richard Lillquist was President of the association.⁵ She was hired initially as a secretary, was promoted in 1981 to Assistant to the President, and received promotions in 1982 and 1983, respectively as Meetings Manager, and Director of Administration and Meetings. All of her performance ratings were "positive" and "above average"; and resulted in pay increases. There were no problems with the work environment. In fact, Sheron Edward Weary, who testified for Ms. Lively and who was employed at FPA from 1981 to 1992, described the environment under Mr. Lillquist as "[a] normal business-type of atmosphere."

Mr. Lillquist left FPA in 1985, and on March 1, 1986, FPA selected Glen Braswell as President. Beginning in or around 1986/1987, Mr. Braswell, and Richard Thornburg, who was hired by Mr. Braswell in 1987 as Director of Government Relations, began to make comments about females within the hearing of FPA's female employees. Mr. Weary indicated that these comments did not occur "routinely or every day," but "periodically during the time that [he] was there." According to Ms. Lively's testimony at trial, however, after the arrival of Mr. Thornburg, he and Mr. Braswell referred to women as "bimbos," "hookers and prostitutes and old maids and dykes and girls... [o]n a daily basis."⁶ They also focused on women's breasts and buttocks, referring to them as "boobs" and "asses."

In or around 1987, Mr. Braswell and Mr. Thornburg were involved in certain incidents concerning female employees at FPA. Around January 1987, Marjina Kaplan was hired as a consultant at FPA, and became Director of Marketing and Communications in August 1987. Sometime in the fall of 1987, Mr. Braswell called Ms. Kaplan and asked her to arrange for a male stripper for Ms. Lively's birthday. He instructed Ms. Kaplan to "use [her] own personal credit card to pay for [the stripper]" and informed her "that FPA would reimburse [her] ...." On her birthday, Mr. Braswell called Ms. Lively into his office, told her to sit in his overstuffed reading chair; the male stripper moved to the front of the chair and "disrobed down to nothing but a G-string...." Ms. Lively became "really red in the face." She "was pinned into the chair" with the stripper "straddl[ing it]." Mr. Braswell "took pictures of the male stripper" and "laughed."⁷ Some of the women who had gathered in the doorway "just turned and walked away ...." Mr. Weary described "feeling ... nervous" about the incident because women were present. He noted that Ms. Lively "initially ... [was] good humored about the [stripper]," as were others, but that when he observed her "a couple of times, ... she looked kind of stricken ..., like she was cornered and wasn't sure what was going on ...."⁸

Another incident took place in mid-December 1987 while Mr. Braswell, Mr. Thornburg, Ms. Lively, Ms. Kaplan and two other FPA employees, Lisa Greig and Cindy Daneker Gray, were in Houston, Texas on FPA business. The incident was memorialized by Ms. Kaplan in a file memorandum, dated December 29, 1987. Ms. Kaplan was seated next to Mr. Thornburg in "a limousine [that] had been hired to transport [FPA] staff [and their host, Jeff Siebenaller] to various points around Houston." While Ms. Lively was stepping into the limousine, Mr. Thornburg "pulled her into the car, urging her to sit on his lap because, he said, he wanted to `look down [Ms. Lively's] cleavage."' During the same trip, when Ms. Kaplan suggested that she did not want to go to a disco after dinner, and would rather return to the hotel, Mr. Thornburg told her: "If you value your career, you'll go along [to the disco]." Mr. Siebenaller told the women who were on the Houston trip that "he found [Mr. Thornburg's remarks to be] unprofessional and objectionable." He indicated that he planned to call Mr. Braswell within a few days "to express his negative reaction to [Mr. Thornburg's] language."⁹

Ms. Lively received complaints from Ms. Greig and Ms. Gray in October 1987, in her capacity as Director of Administration and Meetings. She communicated the complaints to Mr. Braswell who instructed her to relay them to Mr. Thornburg. Mr. Thornburg initially denied the accuracy of the complaints, but then told Ms. Lively: "I will not do it again." On December 18, 1987, following the Houston trip, Ms. Kaplan also conveyed Ms. Greig's and Ms. Gray's complaints to Mr. Braswell. She alerted him to Mr. Siebenaller's plan to call him about Mr. Thornburg's behavior. Mr. Braswell became angry, and according to Ms. Kaplan, "things began to change after that."

Prior to reporting the complaints to him, Ms. Kaplan had received favorable oral comments from Mr. Braswell in 1987 about her work performance. Mr. Braswell provided written evaluations of Ms. Lively in June and again in December 1987. He wrote in June 1987: "I view your performance during the last 12 months as cooperative, productive and totally dedicated to the performance of your duties." The evaluation for December 1987 reflects Mr. Braswell's assessment of Ms. Lively's "overall writing, speaking, and listening abilities" as "developed."

Other than the use of offensive language about women, the record evidences no remarkable incidents involving Ms. Lively and other FPA female employees, and Mr. Braswell and Mr. Thornburg in 1988, although the impact of the 1987 complaints by Ms. Kaplan and Ms. Lively materialized around December 1988, at the time yearly performance ratings were due.¹⁰ For the year 1988, Mr. Braswell generally described Ms. Kaplan's communication skills as "below standard" or "unacceptable." Her overall performance rating was "below standard." He rated eight tasks performed by her in four different areas of communications. One task was rated as "effective," two as "below standard," and five as "unacceptable." Yet, as in 1987, in the "skills evaluation" section of the rating form, he rated her communications skills ("overall writing, speaking, listening abilities") as "well developed." On the "overall evaluation" section of the 1988 rating form, Mr. Braswell marked the box "below standard." In the "additional comments" section of the overall evaluation section, Mr. Braswell wrote that Ms. Kaplan "has been a source of staff disruption and discontent on several occasions both within and without her department, i.e., (1) Reported to President [of FPA] allegations of sexual harassment of members of her department and others by another FPA staff member. Subsequent investigation found charge to be unfounded ...."¹¹

Ms. Kaplan wrote a letter of complaint to the FPA Board, rebutting her negative performance evaluation. Similar to his evaluation of Ms. Kaplan, Mr. Braswell criticized Ms. Lively's writing, speaking, and listening communication skills in 1988, characterizing them with the words: "needs development."

By 1989, the FPA Board had become aware of the accusations against Mr. Braswell. On January 9, 1989, the Compensation and Personnel Committee met with Mr. Braswell. The Committee Chairman, David E. McFarlane, read his written statement to Mr. Braswell, which included the...