Rauh v. Coyne
| Decision Date | 02 October 1990 |
| Docket Number | Civ. A. No. 88-0833(HHG),89-1049(HHG). |
| Citation | 744 F. Supp. 1186 |
| Parties | Margaret W. RAUH, Plaintiff, v. Marshall B. COYNE, et al., Defendants. Renate BOTTALICO, et al., Plaintiffs, v. Marshall B. COYNE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
COPYRIGHT MATERIAL OMITTED
David H. Shapiro, Kator, Scott & Heller, Washington, D.C., for plaintiff Rauh.
Winn Newman, Lisa Newell, Eric Hard, and Eric Steele, Newman & Newell, Washington, D.C., for Bottalico plaintiffs.
Allen G. Siegel, Stephan J. Boardman, and Henry Morris, Jr., Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for Coyne defendants.
Daniel M. Clements, Israelson, Salsbury, Clements & Bekman, Baltimore, Md., Sp. Counsel for defendant Marshall Coyne.
Richard Huber, Washington, D.C., for defendant Wlodawsky.
The instant consolidated actions arise out of an alleged sexual assault on a former Madison Hotel employee, plaintiff Renate Bottalico, by defendant Wlodawsky, the hotel's director of operations, and the subsequent discharge of Bottalico's immediate supervisor, plaintiff Renee Immesghen, after she reported the incident to defendant Marshall Coyne, the owner of the Madison Hotel. Plaintiff Ingrid Davis alleges that she too, was sexually harassed by Wlodawsky and discharged after reporting the harassment to her supervisor. Presently before the Court are several motions to dismiss.
Defendants Marshall B. Coyne, Madison Management Corp., and Madison Hotel Inc. ("the Coyne defendants") have filed a motion for partial dismissal or, in the alternative, to strike plaintiff Bottalico's claim for reinstatement, backpay, and compensatory and punitive damages resulting from her termination. The motion raises a number of issues.
Count I of the Complaint alleges violations of the District of Columbia Human Rights Act of 1977, D.C.Code §§ 1-2501 et seq. Section 1-2556(a) of the Act permits aggrieved parties either to file an administrative complaint or to bring a civil action in court, but not both. Plaintiffs filed administrative claims before commencing the instant action, and the Coyne defendants assert that the complaint should therefore be dismissed. However, after the motion was filed, plaintiffs withdrew their administrative claims and amended their complaint to reflect that fact. The Human Rights Act provides that when a party has withdrawn the administrative complaint, "such person shall maintain all rights to bring suit as if no complaint had been filed." Section 1-2556(a).
Defendants also assert that plaintiffs failed to obtain a "right to sue" notice from the Equal Employment Opportunity Commission before bringing a civil suit. The EEOC issued the letters on May 22, 1989 after the motion in this Court was filed. Amended Complaint, Attachments B-D. Receipt of right-to-sue letters during the pendency of a Title VII action cures any defects caused by a failure to receive the notice earlier. Williams v. Washington Metropolitan Area Transit Authority, 721 F.2d 1412, 1418 n. 12 (D.C.Cir.1983).
Thus, the claimed failure to exhaust lacks merit on either basis.
Plaintiff Bottalico alleges that Wlodawsky sexually assaulted her on one occasion and made sexually harassing remarks to her on a number of others. Bottalico further asserts that when her supervisor reported the incidents to management, the supervisor was fired. According to the complaint, Wlodawsky created a hostile work environment, and the Coyne defendants, as Wlodawsky's supervisors, are liable for his actions.
The Coyne defendants argue that they neither knew, nor had reason to know, of Wlodawsky's acts, and that they therefore cannot be held liable for them. That argument, too, is flawed.
First. The allegations in the complaint, which must be taken as true for purposes of a motion to dismiss, provide ample basis for a finding that the Coyne defendants had reason to know of the harassment and that they were negligent in not discovering and preventing it. See Restatement (Second) of Agency § 219(2)(b), (d) (master liable for torts of servant if master negligent or reckless).
On January 31, 1988 — six months before the assault on Bottalico — Wlodawsky allegedly invited plaintiff Ingrid Davis, a catering secretary at the hotel, to a hotel room to "watch dirty movies and drink schnapps." Davis reported this to her supervisor, Julia Carroll, who, in turn, reported it to the hotel's security director. Wlodawsky also discussed the allegations with defendant Marshall Coyne. On February 11, 1988, Julia Carroll allegedly was fired in retaliation for reporting the incident. The complaint also alleges that Wlodawsky made inappropriate sexual remarks to a number of women hotel employees other than the plaintiffs.1 The number of incidents alleged suggests that an investigation might well have uncovered the problem.
According to plaintiff, the Coyne defendants made no substantial effort to investigate these allegations. There is no indication that other employees whom Wlodawsky supervised were contacted; no attempt was made to ascertain whether similar incidents had occurred with other women; and the Madison Hotel did not promulgate a written policy on sexual harassment until after the instant lawsuit was filed. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1985).
Second. The "reason to know" test, heavily relied on by the Coyne defendants, is not the exclusive basis upon which an employer may be held derivatively liable. Employers have been held liable on such a basis for hostile work environment harassment where the harassing employee had decision-making authority or authority to alter the plaintiff's employment status. See Huddleston v. Roger Dean Chevrolet, 845 F.2d 900, 904 (11th Cir.1988); Hunter v. Allis-Chalmers Corp. Engine Div., 797 F.2d 1417, 1423 (7th Cir.1986) (Posner, J.). Wlodawsky undoubtedly had both decision-making authority and the authority to alter the plaintiff's employment status.
Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988), and Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir.1989), upon which defendants rely, are not to the contrary. These decisions merely conclude that the "reason to know" standard constitutes one test for employer liability; they do not hold that it is the exclusive test. In Meritor Savings Bank v. Vinson, supra, 477 U.S. at 72, 106 S.Ct. at 2408, the Supreme Court instructed lower courts to "look to agency principles for guidance in this area." Agency law, of course, employs a number of tests for determining whether a company is liable for the acts of its supervisors. See generally Restatement (Second) of Agency §§ 219-237.
Third. The Restatement (Second) of Agency § 219(2)(d) provides for derivative liability where the tortfeasor was aided in accomplishing the tort by the agency relationship with the employer. See also, Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418 (10th Cir.1987). Plaintiff Renate Bottalico asserts that Wlodawsky was able to harass her only because he had a key allowing him to enter the locked PBX room where she worked. Access to the room was restricted, and Wlodawsky had the key because he was a supervisor. Thus, the harassment was, to some extent at least, aided by the agency relationship.
Count IV alleges tortious interference with employment rights. See Hopkins v. Price Waterhouse, 825 F.2d 458, 472 (D.C. Cir.1987), aff'd, ___ U.S. ___, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Defendant Coyne asserts that he should be dismissed from the claim, relying on Weaver v. Gross, 605 F.Supp. 210 (D.D.C.1985). Weaver, however, involved a claim for tortious interference with contract, a tort not alleged here. Thus, the case and its reasoning are inapposite.2
Defendants maintain next that plaintiff Bottalico has failed to state claim for constructive discharge. A claim for constructive discharge must allege facts indicating that the employer deliberately made working conditions intolerable and drove the employee to resign. Katradis v. Dav-El of Washington, D.C., 846 F.2d 1482, 1485 (D.C.Cir.1988).
Bottalico alleges Wlodawsky assaulted and verbally abused her on a number of occasions and that when she reported these incidents, her employer not only failed to investigate in good faith, but also embarked on a course of retaliation that included giving her disciplinary write-ups on a pretext and denying her compassionate leave in circumstances where it had been given to other employees. As indicated, a supervisor who had tried to bring her complaints to the hotel management's attention allegedly was fired in retaliation. These allegations provide ample basis for a reasonable juror to conclude that the Coyne defendants made working conditions intolerable, effectively driving plaintiff to resign.
The Coyne defendants next assert that the allegations underlying the intentional infliction of emotional distress claims of plaintiffs Renee Immesghen and Ingrid Davis are insufficient as a matter of law.3 Both Immesghen and Davis allege that the Coyne defendants fired them because they reported incidents of sexual harassment involving Wlodawsky. These allegations are not insufficient as a matter of law to make out a claim for intentional infliction of emotional distress.
None of the decisions cited by defendants involved the retaliatory termination of employees for properly reporting the wrongful and possibly criminal conduct of a supervisor. Defendants' assertion that they shielded plaintiffs from Wlodawsky — rather than retaliated against them — is both outside the pleadings and in dispute, and as such it is...
To continue reading
Request your trial
-
Robinson v. Jacksonville Shipyards, Inc.
...See Risinger, 883 F.2d at 481-83; Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir.1987); Paroline, 879 F.2d at 107; Rauh v. Coyne, 744 F.Supp. 1186, 1189 (D.D.C.1990) (investigation of complaints by other female employees may have uncovered problem in workplace prior to harassment of plaint......
-
United Paperworkers v. International Paper Co.
...cases. See, e.g., Amaro, 724 F.2d at 752 ("We find Kross to be based on a flawed premise, and we refuse to follow it"); Rauh v. Coyne, 744 F.Supp. 1186, 1192 (D.D.C.1990) ("Kross ... has been repeatedly and sharply criticized for its failure to distinguish between a denial of benefits and t......
-
E.E.O.C. v. Mitsubishi Motor Mfg. of America, Inc.
...occur frequently and continuously, are "indicative of a larger problem requiring a company wide response." Id. (citing Rauh v. Coyne, 744 F.Supp. 1186, 1189 (D.D.C.1990)). In Bundy v. Jackson, 641 F.2d 934 (D.C.Cir. 1981), the District of Columbia Circuit Court of Appeals found that when an......
-
Holmes v. Phi Service Co.
...right-to-sue letter after complaint was filed cures the failure to receive the notice before filing federal lawsuit); Rauh v. Coyne, 744 F.Supp. 1186, 1189 (D.D.C.1990) (same). Here, it is clear that the plaintiffs exhaustion of her administrative remedies after this action was filed has cu......
-
Defendant's Prior Acts
...an employer who discriminates against blacks in his employment decisions is also likely to discriminate against women.” Rauh v. Coyne , 744 F. Supp. 1186 (D.D.C. 1990). §4:270 Cases Involving Other Lawsuits or Charges of Discrimination §4:270.1 EvidenceAdmitted Eighth Circuit Plaintiff sued......