Psychiatric Institute v. Human Rights, No. 03-AA-804, 03-AA-825.

• Decision Date: 31 March 2005
• Docket Number: No. 03-AA-804, 03-AA-825.
• Citation: 871 A.2d 1146
• Parties: PSYCHIATRIC INSTITUTE OF WASHINGTON, Petitioner, v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent. Ric BIRCH, Intervenor/Cross-Petitioner.
• Court: D.C. Court of Appeals

871 A.2d 1146

PSYCHIATRIC INSTITUTE OF WASHINGTON, Petitioner, v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent.

Ric BIRCH, Intervenor/Cross-Petitioner.

No. 03-AA-804, 03-AA-825.

District of Columbia Court of Appeals.

Argued October 5, 2004.

Decided March 31, 2005.

R. Mark Dare, with whom Bridnetta D. Edwards was on the brief, Washington, for petitioner.

Patricia A. Smith, with whom Dale Edwin Sanders was on the brief, for intervenor/cross-petitioner.

Robert J. Spagnoletti, Attorney General for the District of Columbia, Edward E. Schwab, Deputy Attorney General, and Mary T. Connelly, Assistant Attorney General, filed a statement in lieu of brief for respondent.

Before FARRELL and REID, Associate Judges, and STEADMAN, Senior Judge.¹

FARRELL, Associate Judge:

The Psychiatric Institute of Washington and National Medical Enterprises (collectively, PIW) seek review of a final decision and order of the District of Columbia Commission on Human Rights awarding Ric Birch over $900,000 in compensatory damages, plus attorneys' fees and costs. PIW contends that the Commission improperly considered evidence of retaliation in awarding Birch damages for his sexual harassment-hostile work environment claim, and that the damage award was unreasonable and not warranted by the facts. Birch cross-appeals contending that the Commission should not have reduced the hearing examiner's larger recommended compensatory damage award. For the reasons that follow, we affirm.

I. Background

On September 27, 1993, Birch, a homosexual man formerly employed by PIW, filed a complaint under the District of Columbia Human Rights Act² with the predecessor to the current Office of Human Rights alleging discrimination by PIW on the basis of gender and sexual orientation. The claim stemmed from the conduct of a supervisory PIW employee, Brenda Harris. The Office investigated Birch's claims and issued a Letter of Determination stating that Birch had presented sufficient evidence to establish probable cause for a finding of sexual harassment-hostile work environment, but not a finding of sexual orientation discrimination.

After the Human Rights Commission assigned the case to a hearing examiner, PIW stipulated to liability and agreed to adjudicate the issue of damages only. Specifically, PIW and Birch agreed that:

1. Complainant's Supervisor[,] Brenda Harris, made comments of a sexual nature and engaged in behavior of a sexual nature towards Plaintiff in the manner identified in his deposition testimony.

2. Ms. Harris' comments and behavior, taken in total, are sufficient to constitute sexual harassment, and Respondents are liable for the comments and behavior of Ms. Harris.

On the issue of damages, the hearing examiner issued a proposed decision and order finding that Birch had incurred and still suffered from a major depressive disorder as a result of the admitted sexual harassment, and recommended an award of $1,134,426.53 in compensatory damages, plus attorneys' fees and costs.

A Commission panel issued a Final Order and Decision on July 1, 2003, incorporating the stipulation that PIW had unlawfully discriminated against Birch by creating a hostile work environment through sexual harassment. The Commission further agreed with the finding of a major depressive disorder stemming from the sexual harassment, but reduced the proposed damages award for that permanent mental condition from $900,000 to $700,000. It also reduced the damages for embarrassment and humiliation caused by sexual harassment from $150,000 to $50,000, but increased the embarrassment and humiliation damages for adverse treatment Birch had received after complaining of the sexual harassment from $50,000 to $150,000.

II. The Evidence

A. Liability

After the evidentiary hearing, and in partial keeping with the parties' stipulation, the Commission adopted the following relevant findings by the examiner regarding the sexual harassment. PIW had hired Birch as a clinical coordinator in 1986. Following promotions, he was working as an intake therapist in the fall of 1991 when he met Brenda Harris, who was his new second-line supervisor and a department head. Although she knew he was gay, Harris continually made sexual advances toward Birch. She typically would approach him at the end of his shift (the night shift), sit on his desk in a manner that made her short skirt rise, and call him "honey" and stroke his hair. Occasionally Harris sat so close to Birch that their knees would bump, and Birch would try to move away because he felt uncomfortable. During these encounters and also during staff meetings, Harris frequently stared at Birch's crotch. She also called him on the telephone two to three times a week during his work shift. In the calls she would discuss her personal and sexual affairs, referring to sexual content and innuendo and hinting that she was naked, wet, or masturbating. At least one of these telephone conversations was witnessed — at Birch's end and to his embarrassment — by one of his co-workers. Harris told another co-worker that she thought Birch simply needed the "right woman" to realize he was straight. She said that Birch appeared sick, implying that he had AIDS.

Both the morning meetings and the late-night conversations continued until Harris left her job with PIW in October 1992. They were accompanied by other acts of harassment. One day Harris walked into Birch's office waiving a document she said was PIW's new sexual harassment policy. She grabbed his buttocks, groped him, giggled, and said "I guess I'm not supposed to do that." She told Birch that homosexuals should be hospitalized "because of what she saw as their inherent problem[s]" and said "you look like you're strong and high functioning, but if you scratch the surface you're very fragile." Harris told Birch that "family members and friends of gays should be allowed access to patient treatment because of the loss that they suffer when someone comes out to them and it's devastating to their lives."

Birch felt embarrassed and ashamed during the encounters with Harris, and by the spring of 1992 he found the situation was causing him loss of sleep, anxiety, and feelings of depression. In March, he decided to tell Debbie Draper, Harris's supervisor, about her behavior toward him. Draper referred him to Marie O'Donnell, the Director of Human Resources. Birch met with O'Donnell, told her what Harris was doing, and asked for her help. O'Donnell replied that she would fix the situation but warned Birch that if he filed a formal complaint, the hospital would vigorously defend Harris. Birch met with O'Donnell again in April and said that Harris's behavior had not improved. O'Donnell, citing a need for confidentiality, would not say if she had spoken with Harris. In August 1992, Birch saw O'Donnell again and told her that the situation had become worse and that it seemed that nothing had been done. O'Donnell offered no further assurances or assistance, and never conducted an investigation of Birch's allegations.

Sometime after complaining to Draper and O'Donnell, Birch and his coworkers noticed a change in Harris's attitude towards Birch. She was more hostile and more critical of his work, although she continued with improper sexual behavior, especially the sexually suggestive meetings and telephone calls. Harris's changed attitude — which Birch believed and the Board concluded was traceable to Birch's speaking with O'Donnell (and O'Donnell's presumed speaking with Harris) — resulted in heightened criticism of his performance at work. Harris tried to make him attend afternoon staff meetings and work on a rotating shift, requiring him to work some days and some nights during the work week, which disrupted his sleep pattern. She made a number of protocol changes applicable to Birch but no other employee, and frequently asked him basic, demeaning questions as well as criticizing him in front of colleagues. Harris tried to transfer Birch to a different unit in the hospital and asserted that he should not have been hired by PIW. When Harris left PIW in October 1992, Birch began to feel comfortable again at the hospital. He was laid off the next month, however, with three other employees from his unit.

B. Damages

Besides documenting the sexual harassment, the Commission made findings with respect to the damages Birch had suffered. During the period in which he worked with Harris, Birch felt a loss of energy and appetite and had problems sleeping. He had nightmares in which he would kill Harris, and during his waking hours he thought about running her over with his car. In June 1992, Birch began talking with a psychotherapist and seeing a physician who prescribed a series of anti-depressants. Birch's current physician, Dr. Storer, whom he began seeing in 1994, diagnosed him as having a "major depressive disorder, severe, recurrent" and permanent in nature, that was precipitated by Harris's conduct and would require him to take anti-depressants for the rest of his life. PIW's expert, Dr. Simon, admitted that Birch had five of the nine DSM IV diagnostic criteria indicating a major depressive disorder and that major depression is a common result of sexual harassment. He agreed with Dr. Storer that sexual harassment was the "triggering" cause of Birch's symptoms. The Commission found also, based on the medical testimony, that Birch's symptoms were not due to any other stressors such as being gay or "coming out" to his family. At the time of the hearing, Birch was still taking anti-depressants to combat his symptoms, with moderate success. The Commission concluded that, while Birch's mental state and quality of life were now better than they had been during the period of harassment, he remained less stable and happy than he was before meeting Brenda Harris.

III. Discussion

A. Statute of Limitations

We briefly address, and reject, PIW's argument made for the first time on review that...