Stewart v. Thomas

• Decision Date: 06 May 1982
• Docket Number: Civ. A. No. 81-1643.
• Citation: 538 F. Supp. 891
• Parties: Patsy J. STEWART, Plaintiff, v. Chairperson Clarence THOMAS, Equal Employment Opportunity Commission, and Earl J. Harper, Defendants.
• Court: U.S. District Court — District of Columbia

538 F. Supp. 891

Patsy J. STEWART, Plaintiff, v. Chairperson Clarence THOMAS,^* Equal Employment Opportunity Commission and Earl J. Harper, Defendants.

Civ. A. No. 81-1643.

United States District Court, District of Columbia.

May 6, 1982.

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Susan C. Silber, Gagliardo & Silber, Washington, D. C., for plaintiff.

Rebecca L. Ross, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Before the Court is the motion to dismiss of defendant Earl J. Harper. In this action against Harper in his individual capacity and Clarence Thomas in his capacity as chairperson of the Equal Employment Opportunity Commission (EEOC), plaintiff alleges that she was subjected to verbal and physical sexual harassment and sex discrimination while she was employed as a legal clerk in the litigation department of the EEOC. Plaintiff charges the Commission with sex discrimination in violation of § 717 of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16(a). Plaintiff's claims against defendant Harper are founded, according to the complaint, on the common law theories of assault, battery, "outrage", and intentional infliction of emotional distress.

Plaintiff asserts that from March, 1979 to May, 1980 defendant Harper made periodic sexual advances to her at work and that his unwelcomed conduct included touching her in a sexual manner, caressing her body, attempting to kiss her and verbally pressuring her for sexual relations. She claims that the defendant intentionally created an extremely stressful work situation for her and that her refusal to comply with his demands caused him to place her on leave without pay status, assign her unnecessary work assignments, charge her with leave she had never taken, and inaccurately and unfavorably evaluate her work performance.

Defendant Harper moves to dismiss the action against him in his individual and official capacities on the grounds that 1) no tort of outrage exists in the District of Columbia, 2) plaintiff has failed to state a cause of action for intentional infliction of emotional distress, 3) the exclusive remedies for plaintiff's complaints lie under Title VII, and 4) the plaintiff's claims are barred by the statute of limitations. Plaintiff contests each of these proposed grounds for dismissal.¹

1. Plaintiff's Claim of Outrage

The fact that the District of Columbia has never recognized a tort labelled "outrage" does not mean that there is no such tort, but in the instant case this cause of action is asserted alongside a separate claim for intentional infliction of emotional distress. Neither the Restatement Second of Torts nor any of the cases to which either party refers distinguishes between these torts. The court agrees with the defendant's position that "outrage" is but another name for intentional infliction of emotional distress. The plaintiff's claim of outrage shall be stricken as redundant, pursuant to Fed.R.Civ.P. 12(f).

2. Plaintiff's Claim for Intentional Infliction of Emotional Distress

The defendant contends that the plaintiff has failed to state a cause of action for intentional infliction of emotional distress, see Reply to Plaintiff's Opposition to Defendant Harper's Motion to Dismiss at 9, and submits that the acts allegedly committed by him do not rise to the level of outrageousness needed to establish a claim for the tort.

The seminal case in this jurisdiction states that

One who, without just cause or excuse, and beyond all the bounds of decency, purposely causes a disturbance of another's mental and emotional tranquility of so acute a nature that harmful physical consequences might be not unlikely to result, is subject to liability in damages for such mental and emotional disturbance even though no demonstrable physical consequences actually ensue.

Clark v. Associated Retail Credit Men of Washington, D. C., 105 F.2d 62, 65 (D.C.Cir. 1939).

This liability "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities;" it is imposed only when the conduct goes "beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized community." Waldon v. Covington, 415 A.2d 1070, 1076 (D.C.App.1980); see also Rogers v. Loews L'Enfant Plaza Hotel, 526 F.Supp. 523, 530 (D.D.C.1981). This Court applied the test above to a recent case in which an employee alleged that she had been subjected to insulting and demeaning remarks, abusive language and sexually-motivated advances from her direct supervisor over a period of two months. The Court found that the plaintiff had "clearly alleged conditions and circumstances which are beyond mere insults, indignities and petty oppressions and which, if proved, could be construed as outrageous." Rogers v. Loews L'Enfant Plaza Hotel, 526 F.Supp. 523, 531 (D.D.C.1981). The plaintiff in this case alleges sexual harassment at least as blatant and offensive as that endured by the plaintiff in Rogers. It is clear that the facts she alleges present a prima facie case of intentional infliction of emotional distress.

3. Availability of Tort Remedies

In support of his motion for dismissal of the actions against him, the defendant further argues that Title VII provides the exclusive remedy for all of plaintiff's claims arising from this set of alleged facts and that the only proper defendant is the EEOC. He bases his argument on the holding of Brown v. General Services Administration, et al., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) as augmented by the recent decision of Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981).

In defendant's view, since Brown v. General Services Administration stands for the principle that Title VII provides the exclusive remedy for employment discrimination, and since the court in Bundy v. Jackson held that employment discrimination prohibited by Title VII embraces sexual harassment, the exclusive remedy for all acts of sexual harassment on the job must be within Title VII, even though the acts might be cognizable as common-law torts had they occurred elsewhere.

Brown involved a plaintiff who sued the General Services Administration seeking relief for employment discrimination under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e et seq., 2000e-5, and under the Civil Rights Act of 1866 as amended, 42 U.S.C. § 1981. The Court held that the plaintiff was barred from relief under § 1981 for employment discrimination also cognizable under Title VII, basing its holding on the principle that "a precisely drawn, detailed statute pre-empts more general remedies." Brown at 834, 96 S.Ct. at 1968. That the Court placed great weight on the general/specific relationship between Title VII and § 1981 is evident from its discussion. The Court compared Brown to an earlier case involving the cancellation of state prisoners' good-time credits in which, "although acknowledging that the civil rights statute 42 U.S.C. § 1983 was ... literally applicable, the court held that challenges to the fact or duration of imprisonment appropriately lie only under habeas corpus, the `more specific act' ..." Brown at 834, 96 S.Ct. at 1968, quoting Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). The Court also pointed to cases under the Federal Tort Claims Act and Federal Employees' Compensation Act in which it had "consistently held that a narrowly tailored employee compensation scheme pre-empts the more general tort recovery statutes." Brown, supra 425 U.S. at 834-5, 96 S.Ct. at 1968-69. As recently as last year, the Court of Appeals for this Circuit pointed to Brown as authority for the principle that "specific statutory provisions control over general provisions," Lawrence v. Staats, 640 F.2d 427, 432 (D.C.Cir.1981), petition for rehearing denied, 665 F.2d 1256 (D.C.Cir. 1981), and indeed, it was that principle which "led unerringly to the conclusion" in Brown. Brown 425 U.S. at 835, 96 S.Ct. at 1969.

The Brown court also rested its decision on its belief that the structure of the 1972 amendment which extended the protection of the 1964 Civil Rights Act to federal employees confirms that Congress intended it to be pre-emptive. According to the Court, "the balance, completeness, and structural integrity" of the amendment and the "careful blend of administrative and judicial enforcement powers" were designed to prevent litigants from circumventing Title VII's rigorous administrative exhaustion requirements and time limitations "by the simple expedient of putting a different label on the pleadings." Brown at 832-3, 96 S.Ct. at 1967-68, Preiser 411 U.S. at 489, 93 S.Ct. at 1836.

While we recognize the rationale behind Brown, the conclusion of that case is inapplicable to the facts of this one. Plaintiff Stewart bases her claims against the EEOC and Harper on two distinct and independent rights: her right to be free from discriminatory treatment at her jobsite and her right to be free from bodily or emotional injury caused by another person. This situation is controlled neither by Brown nor by the subsequent cases raised by the defendant which limit the remedies available to a plaintiff to redress violations of overlapping if not identical substantive rights. See Berio v. EEOC, 446 F.Supp. 171 (D.D. C.,1978), (plaintiff proceeding under Title VII barred from relief under § 1981 and Due Process clause of Fifth Amendment), Carter v. Marshall, 457 F.Supp. 38 (D.D.C. 1978), (constitutional claims under the First and Fifth Amendments based on discrimination and reprisal pre-empted by Title VII claims), and Neely v. Blumenthal, 458 F.Supp. 945 (D.D.C.1978) (damages claim under First Amendment barred because Title VII's remedial measures promised to be effective in redressing violations of plaintiff's right to expression). Unlike the litigants above, plaintiff Stewart does...