King v. Kidd

KING, Before FERREN and Associate GALLAGHER, Judges, Judge. and Senior FERREN, Judge: Associate presents question This case whether reasonably jury could find that actions government agency supervisors, Robert two Lambert, Raymond King and amounted to conduct,” justifying outrageous “extreme and liability for intentional infliction of emotional agency employee, on an Patricia distress Kidd, sexually who was harassed another Carter, employee, working while Melvin King’s supervi- under Lambert’s Kidd and Kidd Plaintiff-appellee sion. sued defendant- Lambert, appellants King as and as well employee Carter and the District of Colum- claim) bia, (statutory for sexual harassment and for intentional infliction of emotional dis- (tort claim) arising out of em- tress ployment with the District of Columbia De- (DAS).1 partment of Administrative Services After the trial directed a verdict court favor of and the District on the Lambert claim, jury sexual harassment found Carter liable under both the sexual harassment and claims, appel- the emotional distress found King lants Lambert and liable under claim, emotional distress favor found of the District on the emotional distress complaint damages Rights Appellee’s original al- based on of the 1964 for relief Act, Tide VII Civil defendants, (1988), giving leged government employees § a sex 42 U.S.C. 2000e her law, damages acting un- "state” had violated discrimination cause of action under color of rights equal protection Additionally, § trial court directed her clause der under appellants entitling the District and the United States Constitution a verdict favor of (1988). they damages appellee's § The Lambert and on claim that under 42 U.S.C. negligently supervise Superior appellee to train and Car- in effect allowed had failed to Court proper state amend claim ter. claim, Concerning Background and found in on A. favor jury Co-Defendant Carter sexual harassment claim. The awarded $258,000 compensatory damages, Kidd working began In June Patricia jointly severally, against King Lam- space spe- management for DAS as a DS-7 addition, Carter. bert co-defendant approximately cialist. Kidd testified punitive damages in awarded Kidd . work, begun four weeks after Melvin $30,000 Carter, $10,000 against sum of Carter, supervisor, began immediate $2,000 King, against against Lambert. making to her. sexual comments He told her only appeal are verdicts on those asking questions that a lot of men were about King and tort claim of Lambert inten- her, “pick,” have her and that she could infliction of tional emotional distress.2 was “interested” well. She rebuffed to Shortly explained him. Carter thereafter (1) Appellants argue Superior that: the way “fucked the Kidd how women their to subject jurisdic- Court did not have matter top, problem that he had no with it.” There- tion over Kidd’s emotional distress tort claim after, telling began Carter Kidd that he “had preempted by such an action is because clout,” people throughout a knew lot he Comprehensive Merit Personnel Act government, the District and he could make (CMPA); (2) law, as a matter the actions things “easy” began demanding for her. He Lambert, King respectively, and did not for him her she run errands and told outrageous” constitute “extreme and conduct employees how he female controlled other necessary to hold them liable intentional through began calling He her office sex. (3) distress; infliction of King emotional and at her home and once asked when she would vicariously and Lambert were held liable for make love to him. When she informed him actions, contrary law, to Carter’s under the boyfriend, a she had a he said “it didn’t mean turn, respondeat superior.3 doctrine of In motherfucking thing” and that he “wanted” appellants Kidd contends that are barred her. (1) raising: jurisdictional argument, Around December Carter showed appellants to because failed raise it in the demonstrating Kidd documents that she was (2) court; sufficiency trial of the evidence that, probationary a employee. He told her argument, appellants because failed to raise status, probationary because of her she could in a it motion for verdict at directed the close no be fired at his recommendation and that (3) evidence; all respondeat and question anything. one would Kidd also tes- superior argument, appellants because “con- creating tified that Carter had been difficul- jury to all Although sented instructions.” we “friction,” by causing ties for her at work all appellants’ arguments, reach three of we deny- forbidding computer, a and her to use only agree with one: the evidence was insuf- ing help. her In access to clerical December ficient as a appellant matter of law hold telephoned Carter Kidd at her work Lambert liable for intentional infliction of nearby desk and ordered her come to a emotional distress. affirm in We all other hung up, hotel. he When she called back respects. probationary and her reminded her of status. hotel, they She went to the and had sex. I. Statement of Facts employment improved situation a following pursuing considered the evidence while but then resumed her. Carter him, joint began trial of appellants, King at Robert When she rebuffed he mistreat- Raymond Lambert, ing again. attempted apply and and their her she co-defen- When dant, office, position Melvin Carter. for a in another Carter came appeal. promote retroactively posi- separate Carter filed a The trial court lumbia to Kidd $97,839 appellee attorney's also awarded and, fees tion she would held but for the actions have orders, $3,848.15 separate $563.79 recognized by appellants’ the defendants. As expenses. in costs and however, argument, counsel at oral such a claim itself, brought by the District must be which brief, appellants challenged In their also appeal. party not a to this directing trial court’s the District of order Co- it, get reprisals retaliatory to her and told her that she would not that she feared or if again “trapped.” but that had sex him she actions and that felt she with she get promotion. a would When she refused Immediately grievance filed after Kidd loud, away he angry became took King, permanently away took with Carter assistant, computer her clerical and told put her clerical assistant and that clerical stay away people to from her. supervisory assistant control over Kidd. in. Furthermore, computer he Kidd off took complied February Kidd manage program developed she request and had Carter’s renewed sex property, District’s real excluded her from again. According Carter to Kidd’s testimo- meetings, stopped giving program ny, her, forcibly rup- Carter also sodomized let work. He also refused to her serve turing causing her anal tissues and women’s committee for which she had been thereafter, Shortly arranged fear AIDS. Kidd all in a nominated. related get promotion for her to to a DS-9-11-12 supplementary grievance. DS-9, position, starting as a her she told promotion if get every year could “act- Appellants B. Involvement of right.” ed King and Lambert 21, 1988, July Kidd testified Carter’s continual On a letter of received in dysfunctional harassment her response King rejecting grievance rendered from her life; her home she became hostile or distant entirety. King in its that letter related to felt of Carter, her children and humiliated and out had met with that Carter tried to that control. Kidd said she believed Carter problems, resolve office and that Kidd had a effectively in power her negative had absolute over attitude and wasn’t team member. probationary year her if and that she resist- The letter has stated: “Mr. Carter demon- him, sacrificing ed be would her whole that a fair strated to me he is and honest very dependable career. person who is reliable and exceptional cooperation and shows an and incident, February After Kidd refused spirit.” teamwork again. point, to sex At have with Carter that griev- Kidd next submitted a handwritten however, and Carter became “out of control” Lambert, appellant ance to of Director DAS. not “obsessed with sex.” Because she would Although seeing Lambert did not recall ever wishes, go along kept Kidd’s with his Carter grievance, Kidd testified that she submit- that to work from her so she was forced Brown, correspon- Sylvia ted it to Lambert’s it, accomplish prohibited in” to “sneak and secretary, dence and that the document bore working computer analyst her on signature grievance of Ms. Brown. This 1988, May 18, program. her de- On Carter complained oppressive treatment with ref- refused; sex Kidd Carter then manded but to harassment. accused erence sexual She office, verbally to his ad- summoned Kidd King failing protect against reprisals to her, gave repri- a letter of monished and her investigate allegations equitably, and response, personnel she called the mand. granting to Carter and not to an audience office, complaint a letter of and submitted her, argued displaying and bias. She grievance.” then filed an “informal When protecting King was concerned about Car- respond satisfactorily, failed Carter hers, integrity, ter’s character and not but May grievance Kidd filed a formal give obligation not his and he had met King. supervisor, appellant with Carter’s full, grievance impartial, prompt con- griev- nor the Neither informal formal that she “would sideration. also stated misconduct, explicitly ance mentioned sexual remaining position providing in the consider complained although grievance formal writing your I receive word in that I receive “stress, and mistreat- months of harassment along equitable treatment with other male “supervisors should ment” stated I employees. That not be harassed.” constrict, be allowed to use their title employees’ When Kidd returned from two week sick harness abuse subordinate leave, rights- rights.” filing grievance Lam- Kidd also advised after human bert, she discovered that Carter had ar- trict of Columbia Comprehen- Government ranged (CMPA) for her to immediately be transferred Merit preempts sive Personnel Act appellee’s §§ a different tort division DAS under claim. See D.C.Code 1- (CMPA supervision Subehapter 615.1 to -615.5 Linton Cheers. “Per- Kidd testified - Evaluation”) §§ acquiesced that she formance 1-617.1 to the transfer because (CMPA Subchapter 617.3 Ac- she felt she had “Adverse Sep- no other choice. On tions”) (1992 Repl.). They 1, 1988, accordingly con- tember Kidd filed with the Office of tend that sole (OHR) Kidd’s recourse —for the emo- Rights Human a sexual harassment component tional distress tort litiga- of her which, time, for the explicitly first tion, statutory contrast sexual charged that Carter had coerced have component harassment an administra- sex with him. —was remedy tive under the CMPA. Kidd coun- point September At some or October of on, ters that a claim based or intertwined 1988, King summoned Kidd meeting. to a with, allegations sexual harassment is not Kidd, According had learned of her CMPA; therefore, covered under the CMPA complaint against OHR Carter and told her preempt does not her tort claim. Kidd also that Carter wanted sign her to a statement appellants’ jurisdictional contends that argu- voluntary. her transfer said properly ment is not before this court be- help this would Carter with the OHR com- appellants cause failed to raise init the trial plaint. Kidd refused. court. testimony was corroborated Lin- Principles Subject A. Cheers, ton supervisor. her new Cheers tes- Matter Jurisdiction tified that Kidd’s supposed transfer was to be analyzing parties’ argu Before “reassignment,” gives which an ments, we first principles review a few basic full grade credit for time in pro- towards a regarding subject jurisdiction. matter motion, “detail,” in contrast with a which is a Superior general juris Court is “a court of temporary give transfer that does not credit power adjudicate diction with the any to civil grade. time in Cheers said that he had action at in equity involving law or local law.” meetings attended two with and Carter Jackson, (D.C. 990, Andrade v. 401 A.2d 992 they in which reassign- refused to effect the 1979). legislature Unless the has divested Although King ment. meetings, called the Superior jurisdiction the Court of partic of a he allowed Carter to run According them. to subject through ular matter enactment of Cheers, during meetings these Carter made legislation, general jurisdiction the court has clear that “angry he was and and bitter” (1989) § under D.C.Code 11-921 over com he anything refused to do for Kidd because mon law claims for relief. In a somewhat complaint. of her OHR Kidd was subse- different context this court has said: quently assigned to another “detail.” Sever- “[Wjhere [a] claim has a rational nexus to a later, Kidd, al according months to subject responsibility matter within the of a promotion denied Kidd her because of her Court, Superior division of the that division status, which, added, “detail” had been may rely upon general powers its in accept her choice. ing jurisdiction over the claim.” v. Farmer Subject Farmer, 1365, 1369(D.C.1987); II. Matter Jurisdiction 526 A.2d see Noble, (D.C.1987). Preemption 190,

and Poe v. 525 A.2d 195 Appellants, relying on District Colum Superior accepts Whether the Court of (D.C.) Thompson, 621, bia v. 593 A.2d 625-27 jurisdiction primarily a over claim is II), (Thompson aff'g part vacating and matter, par threshold determined when the (D.C.1990) part I), 570 A.2d 277 (Thompson pleadings pre-trial ties file their motions. — denied, U.S. -, 380, 116 cert. 112 S.Ct. procedure, pleading Under our rules of civil (1991), argue L.Ed.2d 331 Superior that the which sets forth a claim for relief must con subject jurisdic Court did not have matter plain tain “a short and statement of the tion over Kidd’s claim for intentional grounds upon jurisdiction inflic which the Court’s 8(a)(1). turn, tion of emotional depends.” Super.Ct.Civ.R. distress because the Dis- In 662 (D.C.1992) C.J., 741, (Rogers, n. opposing party may the of A.2d 748 3

the raise defense subject jurisdiction plead- concurring) (citing Clay Inqui In re An lack of matter (dis motion, 12(b)(1), (Schwelb, J., ing although concurring) id. the ry); or at R. id. at 751 same). rule, Superior complaint cussing the Court must dismiss traditional Under the any point apparent if it it parties at becomes of ‘“neither silence nor consent the ” McGee, jurisdiction, R. subject id. at jurisdiction.’ McCray lacks matter can confer v. 12(h)(8). alleged (D.C.1986) appellee 1128, In this (quoting case 504 1131 A.2d 1425 11-921, jurisdiction § Jardin, under D.C.Code Corp. A.2d 279 F Street v. 53 nothing (D.C.1947)).5 there is in the record to indicate Furthermore, as this court objected appellants to that assertion. long ago, duty is our to notice a lack “[i]t said jurisdiction though parties may of even The District of Columbia adheres Yeager v. desire a decision on merits.” party’s acquies that a to traditional rule (D.C. Columbia, 33 District A.2d 630 of subject trial of cence court’s exercise 1943).6 (or jurisdiction matter of a waiver defense Superior If we were conclude that jurisdiction), subject indi of lack of matter jurisdiction to did not have hear Court cated the failure raise defense case, juris- this court would be without during trial, then preclude or does not before appeal. diction on Council School party raising appeal.4 issue See of Officers (D.C.1989). Faison, Vaughn, 553 1228 Clay A.2d n. 2 v. A.2d v. 583 1390 event, Farmer, 3; only (D.C.1990); In such choice would be 526 A.2d at 1368 n. an our Allegations Inquiry In re An into Miscon trial “remand case court Against judgment Juveniles Detained at and duct to vacate its as void instructions Inst., Dep’t Committed at Cedar Knoll dismiss the want Resources, (D.C. 1087, 1100 Human A.2d jurisdiction.” Id. 1981) (Ferren, J., dissenting) (noting that Preemption B. CMP A majority subject properly matter addressed Appellee’s Tort Claim jurisdiction argument appellant even “Subject argument jurisdiction though appellant matter concerns failed raise Plummer, court); authority adjudicate type court’s trial see also re 5A 4. The traditional rule is stated in Wright Procedure jurisdiction jurisdiction procedural ted). historical plicitly (1982). thus (Footnotes and Restatement ed to competency may applied time.... be If ... not versy, [A] the determination of the merits of the contro- true or otherwise.... in, and whether the defect is called to the One Court's attention time beyond expressing presented by question only require regardless authority adopt & limitations unless jurisdiction However, Arthur § shifts in the relative will, objections [even] rules of the future will be reformulat- and internal be raised before trial and (Second) 1393, such of that this failure can be cured. This but scope finality, R. has subject for the first time of what be made is one of policy at Restatement the within which a objections must, any by Miller, rule, is not suggested 766-73 to territorial of this Restatement.” suggestion interested matter Judgments quotation "[i]t approaching refuse stage because "the Federal apparent, (1990): may the case jurisdiction that, importance of subject on of proceed jurisdiction." party well be does not marks omit- § challenge to Practice appeal- the Charles 11 cmt. procedure the Court that now question light may merits, matter at parties may that any Id. ex- be A. is d 5. This rule 6. judgment precludes Arrington veals that the term bia must may court. irrelevant Nonetheless, the rendered Counsel, any to collateral attacks ately argument by failing Although § diction in 2 288, our own rule appears appellants Counsel appeals. Appellee (D.C.1991); question subject event, be 290 three or follow, Thompson, Because raised failed to raise the also strategically v. United See id. (D.C.1978). judgment to our subsequent litigation,” as the cases cited above make exceptions, also matter under of the court’s represented the reason is Adair United even for the first time on appellants' applies § that argues the Restatement analysis. States, we ^[11] cmt. “subsequent litigation” refers jurisdiction the traditional rule that intentionally in in a the v. subject waived raise agree other that in criminal cases. See parties 585 A.2d the District of Colum- why contested d, counsel, Corporation subject "[wjhen argument matter appellants suits, § with Kidd that any States, issue defense at ^[12] cmts. a-f. In presents the context from failed to raise jurisdictional 1342, not to matter Corporation a court has jurisdiction action, in the 391 below litigating deliber- 1344 appeal. direct clear, juris- trial. A.2d rule, trial we the re- n. it

663 controversy by promotion grade next level or to presented the case under con A.H., for; Appeal sideration.” give computer 590 A.2d test she her the asked (D.C.1991). specific jurisdictional 128 employees; he her the other isolated from Subchap- issue this ease is whether CMPA requested statements her doctor Superior preempt ters 15 and 17 Court sub hours; as to her limited he wrote memo- ject jurisdiction matter over Kidd’s common leave; randa on her excessive and he as- Thompson law emotional claim. In distress it, resulting saulted lied about her and noted, reviewing II purpose we alter and job loss. CMPA, text of that Council of the II, (quoting Thompson A.2d at 625 593 District of Columbia intended the Act to 290). I, Thompson at After 570 A.2d outlin every virtually per ] conceivable “addressf ing discussing Subchapters and 15 and District, among employ sonnel issue its 625-27, see we concluded ees, id. at reviewing and their unions —with role Thompson’s resort, preempted CMPA tort claim for for the supple courts as a last not a mentary role for as an intentional of emotional the courts alternative infliction distress be added). (emphasis forum.” 634 by 593 A.2d at supervisor cause the above actions that, though We therefore concluded even personnel constituted evaluation decisions Subchapters 17 of 15 and the Act do not fitting disciplinary squarely and actions with exclusivity provision,7 include an “the Council purpose in the text and the CMPA’s ad provide employ intended CMPA to District grievance proce ministrative review and ees with their exclusive remedies for claims contrast, Thomp dures. See id. at 635.8 arising employer out of conduct in handling battery son’s claim for and was assault personnel employee ratings, grievances, and Subchapters covered CMPA and adverse actions.” Id. at 635. preempted by and therefore was not the Act. See id. at 624 n. hold, however,

We did not preempts general CMPA claims in tort or all case, In this Kidd’s claim for inten claims of infliction intentional of emotional emotional tional infliction of was distress Rather, particular. distress in the CMPA to, on, premised fundamentally related implicitly preempts only a common law action allegations (supported evidence ad if the wrongful claims treatment trial) duced at harassment sexual and re injury cognizable “personnel as a issue” Appellants acknowledge taliation. “performance under the ratings,” Act’s “ad (including claims of sex discrimination sexual actions,” verse employee “grievances” harassment) “person are not addressable as provisions. Id.; §§ see D.C.Code 1-615.1 Subchapters nel issues” under CMPA -617.3; §§ to -615.5 and 1-617.1 to New cf. however, They argue, tort Columbia, man v. District 518 A.2d against King really claim Lambert (D.C.1986) (intentional 705-06 infliction of complaint nothing more about the than grounded alleged emotional distress claim on August of 1988 and classification her transfer discrimination on based sexual orientation respond the Lambert to failure of and not preempted by exclusivity provision of properly Appellants’ grievances. to her disability compensation CMPA subchapter). characterization Kidd’s claims trivializes of example, For employee-plaintiff the (which testimony at trial the be Thompson sued intentional infliction of lieved, punitive its of as indicated award following emotional on distress based the damages against three all individual defen supervisor: acts of her dants) ignores link the ac and the between appellants. tions of Carter and Carter’s ac supervisor] approved [her her leave pro quid quo sexual harass changed then tions constituted her status to absence with- leave; grievable out ment and under the refused consider her for were not 1-624.16(c) addition, Compare Thompson’s § (exclusivity that tort D.C.Code In we held provision Subchapter scope “Disability fell for CMPA claim of defamation also within the of II, Compensation”). Thompson the 593 A.2d at 635. CMPA. 664 allegations against King persuasive appel- 17 is that Kidd’s 15 and evidence

CMPA.9 directly fundamentally com- linked to her Lambert were related lee’s tort claim— discriminatory plaints cognizable about Carter’s behav- claim—is not sexual harassment testified, example, For at ior. trial “per- “personnel issue” under the Act’s evidence, produced supporting other actions,” ratings,” formance “adverse responding colluded with Carter “grievances” provisions. See (which grievance against included Carter §§ 1- §§ 1-615.1 to -615.5 and D.C.Code allegations posi- that Carter had abused his Kidd’s 617.1 to -617.3. claim intentional authority of of human tion violation Kidd’s of had an inher- infliction emotional distress rights), King participated and that in retal- claim, harassment ent “nexus” to her sexual iating against Kidd—after she had filed subject responsibility of “a matter within the formal sexual harassment with the Court,” Superior of and it a division the Rights by changing of Kidd’s Office Human — proper “rely upon for the therefore court job “reassignment” to a “detail.” jurisdiction general accepting powers its Farmer, the 526 A.2d at 1369. over claim.” fact, appellants’ argument the preempted tort is no CMPA Kidd’s claim “[Pjublic employees do not lose their saying they not way more than another of do rights injuries law the[ir] common sue for believe sexual harassment retaliation injuries nor [when] foundation of Kidd’s emotional distress claim. ... neither those their That, however, argument is an about the consequences trigger” provi exclusive evidence, sufficiency Newman, see Part at of the 518 A.2d sions CMPA. infra III., subject jurisdiction. matter about there is evidence that the 705. Because no Council of the District of Columbia intended reviewing purposes After and text of Superior preexist of its to divest the Court II, CMPA, at Thompson see 593 A.2d jurisdiction hear ing intentional infliction 625-27, find no basis to conclude that we arising out of of emotional distress claims system preempts CMPA’s remedial Kidd’s workplace allegations government sexual tort claim of intentional infliction emotion- retaliation,10 subsequent we harassment and harass- al distress based acts of sexual jurisdiction Superior hold Court subsequent note ment and retaliation. We claim to hear both Kidd’s sexual harassment Reg- District Columbia Personnel “pendent” and her interrelated or tort ulation on “Adverse Actions Grievances” and^ Capitol Hosp. Hill v. claim.11 District Cf. expressly employee grievance excludes from Planning State Health & Dev. Columbia procedures allegation of dis- “[a]n unlawful (D.C.1991) (court Agency, 600 A.2d 799 crimination, any or other matter within the subject jurisdiction if case is one has matter jurisdiction Human D.C. Office of entertain); sovereign empowered has it to Rights.” Regulations D.C. Personnel Ap Employees’ Comp. District Columbia (1987). 1632.1(o), D.C.Reg. § (D.C. Henry, Bd. v. 516 A.2d peals Although jurisdictional appellants issue 1986) subject (Superior Court lacked matter law claim and raise concerns common jurisdiction appeal from decision of to hear not her Title sex discrimination related VII “contrary claim, Secretary of result Labor because we think the exclusion of sexual impermissibly defy intent Subchapters of Con- harassment claims from CMPA would says nothing employees complaining holding about of discrimina 10. Our in this case 9. District remedy require- exhaustion of administrative pursuant proce their tion must file claims Rights under the Human Act. ments statutory dures established under a different scheme, Rights the District of Columbia Human Although entirely congruent, is it useful (1992 Act, Rep. §§ & D.C.Code 1-2501 to -2557 analogize appellee's law claim accom- common Supp.). Colum 1993 See Williams v. District of "pen- panying claim her sex discrimination bia, 140, (D.C.1983). what 467 142 That is A.2d dent,” might to a state law claim that be similar this case when she filed her formal Kidd did in pendent “derive[d] to a federal claim if from complaint with Office of sex discrimination operative fact." United Mine common nucleus 1, 715, 725, September Gibbs, Rights on Human v. 383 86 S.Ct. Workers U.S. 1130, (1966). 1138, 16 L.Ed.2d 218

665 gress”). Accordingly, Honor, appel- sorry we now turn to I ques am Your I have one argument. lants’ substantive tion about the intentional infliction of emo

tional distress. v. [Howard Under Univ. Best, (1984) 958, says, 484 A.2d 985 ... it ] Sufficiency III. of the Evidence determine!,] “It is for the trial court to Appellants argue that, law, as a matter of instance!,] the first whether the defen the evidence failed to show that either of may reasonably regard dant’s conduct be them acted in a manner that was “extreme outrageous ed as so extreme and as to outrageous” enough expose them to permit recovery.” ... It seems to me the liability for intentional infliction of emotional finding— Court would have to make a They they distress. also contend that were point interrupted, saying: At that the court improperly vicariously held liable for Car- by submitting I think the Court this to the theory ter’s conduct respondeat under a ruled, jury you has but if would like me to superior. responds appellants Kidd rule, say plain- I If would as follows: arguments appeal waived these because story believed, tiffs is to be and I think appellants preserve faded to them a mo- finding Court must make that based on tion for directed verdict at the of all close plaintiffs story, whether it was contra- Below, evidence. in Part A. we address not, clearly outrageous dicted or it argument, Kidd’s threshold waiver Part B. enough you will find that the Court is we appellants’ regarding address contention sending punitives jury also as to Mr. liability, vicarious and in Part C. we address Carter. sufficiency of the evidence issue. later, A few moments defense counsel asked for clarification: Appellants’ Alleged A. Failure to [Counsel]: Has the Court determined that Move for Directed Verdict King conduct of Mr. Lambert and Mr. Appellants judgment moved for a not sufficiently outrageous as to become a withstanding (j.n.o.v.), the verdict contend question jury? for the ing, among things, other that “defendants No, no, dealing [Court]: but we are not, Lambert and did as a matter of respondeat superior. law, intentionally inflict emotional distress Whatever the merits of the trial court’s upon plaintiff.” opposed the mo III.B., ruling, see Part we conclude that infra tion, arguing, among things, appel other defense counsel in effect made a motion for precluded lants were moving for a directed verdict on the intentional infliction j.n.o.v. they because had not moved for a of emotional respect distress claim with directed verdict at the close of all evidence as both and Lambert. Defense counsel required 50(b). Super.Ct.Civ.R. under See Best, cited Howard Univ. v. 484 A.2d Best, Howard Univ. v. 547 A.2d 147 (D.C.1984) (Best I), which holds that the (Best (D.C.1988) II); District Columbia v. judge trial should decide first whether the (D.C.1959). Hickey, 150 A.2d In its plaintiff prima has made out a ease facie denying motion, appellants’ order the trial sending jury. before the case to the See also agreed court preclusion argu with Kidd’s Covington, v. 415 A.2d Waldon ment a footnote but nonetheless reached (D.C.1980)(before sending jury, ease to court the merits of the motion. plaintiffs must first determine whether evi- Our transcript minimally review of the reveals that dence is sufficient to meet ele- appellants precise did not make a motion for ments of intentional infliction of emotional tort); directed verdict at the close of the evidence. distress (Second) Restatement Nonetheless, (1965) (same). appellants’ § we think counsel ad- Torts 46 cmt. h I The Best equately preserved evidentiary opinion goes the issue of on to declare that case “[t]he sufficiency appeal. During the court’s should if be submitted to the reasonable counsel, colloquy just people with before court and on could differ whether the conduct is instructions, jury counsel outrageous” require finalized the de- [one extreme of the fense counsel making prima stated: ments for out a facie case]. 666 employees implication

484 the tortious acts of one of its A.2d at 985. obvious for (Kidd). See, (Carter) that, e.g., persons only if could con- reasonable another Sichel, conduct not 8 clude that the defendant’s was Robertson v. 127 U.S. S.Ct. (1888) outrageous,” (government super- the trial court “extreme 3 L.Ed. 203 a in must direct the fa- visory vicariously verdict defendant’s cannot be held subordinates; plaintiff vor. for of must liable acts supervisor personally negligent in prove II In Best we stated: “The failure to move I, duties); discharge Best his or own of precludes party from for directed verdict a Jackson, 987; Eskridge A.2d v. 401 484 at questioning appeal sufficiency on the the of (D.C.1979); Page A.2d 989 W. (internal quota- Keeton A.2d at evidence.” 547 omitted). observed, how- et and Keeton on the Law of al., Prosser tion marks We also (5th 1984); §§ 69-70 ed. rule, ever, purpose Torts Standard that there is a behind that 50(b). Jury as ized Civil Instructions for the Dis Super.Ct.Civ.R. embodied within (rev. 1981) No. 6-1 ed. Primarily, “preserve^] sufficiency it of of the trict Columbia (“Vicarious Liability Basis”); Hunter v. allowing question the evidence as a of law” — cf. Countryside Handicapped, Ass’n court, considering subsequent the trial a for (N.D.Ill.1989) Inc., F.Supp. j.n.o.v., for not motion review “its decision (where plaintiff Title claim asserted VII as engag[e] [to] to direct a verdict rather than assault, battery, as tort claims of well in a reexamination of the facts found distress, infliction intentional of emotional II, jury.” Best 547 A.2d at against employer court dismissed tort claims case, present think that defense counsel’s we plaintiff show because failed to tortfeasor’s questions I and court citation Best of em- acts were committed furtherance preservation timely purpose fulfilled the ployment). moving “In motion directed verdict. verdict, precision a directed is not technical However, reading jury our of the instruc- (internal required.” quotation marks Id. tions, form, present- verdict and the evidence omitted). Therefore, appel- we conclude compels at trial us to conclude that the ed not precluded raising

lants are their appel- jury in fact considered each individual sufficiency arguments ap- the evidence liability allegedly lant’s direct for his own peal. tortious acts. Respondeat Superior B. first The trial court instructed the Theory Liability jury on elements of intentional infliction emotional distress “across the board jury Appellants contend (Carter, King, the four Lam all defendants” theory vicariously under found them liable District). bert, instructing and the After respondeat superior, which law could jury on the elements of the sexual harass only apply employer to the District as the VII, claim under Title the trial court ment (Carter) to appellants the tortfeasor and not King could be held on the stated that liable It is supervisory employees.12 not clear only proved Title VII claim if Kidd had transcript from the whether the trial court superi- “respondeat element” of “additional the tort claim intended send or,” meaning “that Mr. or should knew against King and Lambert on both direct question of the harassment have known (respondeat liability liability su vicarious prompt failed to take action.” however, remedial perior) appear, It theories. does Despite the trial court’s misuse of the term point that at one the court said Kidd “respondeat superior,” its statement prima against King and out a facie case made liability King knew or standard of good respon- “under old-fashioned Lambert —“that known of the harassment agree appellants— should have superior.” We deat prompt failed question and to take remedial during argument— oral and Kidd conceded applying only action” —indicates the court was employer, of law that as matter Columbia, liability direct District of could be held liable standard of attributable to raise im- defenses. The District did munity attempt any

667 inactions, King’s object given, own actions or not a stan- to the instructions as nor did Furthermore, liability. dard of vicarious the they any acceptable Fur- offer alternative. respondeat superior charge court read no thermore, jury appellants the verdict form instructing jury after the on the elements of jurors agreed request to did not the to indi- Kidd’s intentional infliction of emotional dis- theory they particular cate a under which later, against King. only tress claim It was appellant held each individual liable. “[A] instructions, finishing after its Title VII request special defendant who fails to ver- general the court read a instruction on re- dict form in a civil case will be barred spondeat superior: appeal complaining jury may that the employer responsible

An is for the acts theory] have relied on [an erroneous when employee or omissions of an which were there support was sufficient evidence to an- employee committed while fur- the was theory properly jury.” other the Ni before thering employer’s the business. I use the (D.C. 603, Cappadona, metz v. 596 A.2d 608 “furthering employer’s term the business.” 1991). Finally, our review of the evidence at This term does not employ- mean that the presented trial demonstrates that Kidd evi responsible merely er is because ... the advancing theory liability dence of direct hours, during working accident occurred or for both and Lambert. merely because the accident ... occurred circumstances, all of the Given above we employer’s premises on the or while the that, despite conclude some confusion be- employer using employer’s equip- was tween trial counsel and the trial court over ment. Rather it employee means the must respondeat superior,13 the doctrine of serving furthering be or a business inter- jury clearly was instructed to consider evi- employer. question est of the is appellants’ liability. dence of direct re-We whether at the time of the ject appellants’ jury contention that any incident had business-connected rea- theory found them liable under a mistaken son for the conduct at issue. respondeat superior. In this case it is admitted that the em- ployee engaged upon the business of Outrageous C. “Extreme and Conduct” employer at the time of the incident. employer responsible Therefore the is In reviewing the trial court’s deci any or employee, acts omissions of the sion to submit Kidd’s intentional infliction of although employer is entitled to the jury, emotional distress claim to the we must any benefit of defense which is available to light view the evidence most favorable employee. Kidd, giving every her “the benefit of rational critiquing Group inference therefrom.” Sere v. specifics Without Inc., instruction, 33, (D.C.), Hospitalization, correctly we find it 443 A.2d 38 stated denied, only ie., “employer,” cert. the District of U.S. 103 S.Ct. (1982). Columbia, vicariously could be held L.Ed.2d 176 To succeed on her liable for claim, employees’ Although its acts. appellants the court did Kidd had to show that en (1) clarify gaged for the “employer” outrageous who the “extreme and con was, out, (2) points appellants as Kidd “intentionally recklessly” did not duct” which or may explained part by 13. This confusion be 127 U.S. at 8 S.Ct. at 1290. As the Restate- Jackson, misleading (1958) clarifies, Eskridge Agency § statement v. ment (Second) generally recognized, vicariously which reads: "It principal only is howev- “master” or liable er, respondeat superior that the doctrine of [or her] has "for the torts of his servants committed application public acting scope employment,” no as between a officer and while in the of their subordinates, added), 219(1) (emphasis § his unless the officer directs or id. at and is not 989; acting countenances the tortious act.” 401 A.2d at [or her] liable "for the torts of his servants Columbia, scope employment, accord Jackson v. District 412 A.2d outside the of their unless” (D.C.1980). course, super- 957 n. 21 Of if a the master "intended the or conse- conduct visory "public quences,” "negligent officer” “directs or countenances the master was or reck- subordinate, less,” the tortious act" of a then that offi- the servant’s conduct "violated a non-dele- direct, vicarious, master,” subject gable duty cer is rather than of the or acted the servant liability (assuming apparent authority princi- for his or her own actions no under on behalf of the Sichel, 219(2) privilege immunily). added). pal, (emphasis § or See Robertson v. id. at 668

(3) (1977), caused Kidd emotional distress.” 565 P.2d 1176 “severe Wash.2d I, Sere, I, (quoting 484 at approval Best A.2d 985 443 in Best A.2d cited with 484 at 37); Furthermore, (Second) A.2d at see Restatement 986. the and “extreme outra- of Appellants argue § 46. that “as a geous may of conduct arise character the Torts law, King’s matter of and conduct Lambert’s knowledge from the that the other is actor’s by [not] could be found the to constitute peculiarly distress, susceptible to emotional ‘outrageous’ the ‘extreme’ or conduct re physical of or condi- reason some mental quired party liable make for intentional peculiarity.” (Second) tion or Restatement Thus, ap infliction of emotional distress.” § cmt. f. 46 of Torts pellants only challenge sufficiency the of the indicates, As the Restatement going to of evidence the first element the outrageous depends and what is extreme tort, conduct,” outrageous “extreme and and large prevailing the measure on norms of challenge respect do the evidence with society: the second and third elements.14 “[I]f rea Generally, case the is one which the people sonable could differ on whether the average recitation of the facts to an mem- outrageous,” and [was] conduct extreme the community the his properly [or court ber of would arouse trial submitted the issue to I, actor, jury. 484 A.2d at resentment the and lead her] Best 985. exclaim, “Outrageous!” him [or her] components primary There are two clearly liability The does not extend to outrageous of “extreme and conduct” we insults, threats, indignities, annoy- mere (1) applicable contemporary must consider: ances, petty oppressions, or other triviali- community standards of offensiveness and rough edges society The our ties. of are (2) decency, specific context in which down, good filing still in need of a deal of place, determining the conduct took for “[i]n plaintiffs in the meantime must neces- outrageous, is or it whether conduct extreme sarily required expected be to be hard- setting, should not in a be considered sterile rough ened to a certain amount lan- surroundings detached from the in which it guage, and to occasional acts that are defi- Jones, occurred.” Harris v. Md. 281 nitely unkind. inconsiderate and (1977), approval 380 A.2d 615 cited with I, in Best 484 A.2d at 985. The “context” § 46 cmt. d. (Second) Restatement Torts issue, activity consists of the nature of the at The tort of intentional infliction of emotional relationship parties, between tort, evolutionary is distress therefore an particular in which the conduct environment “petty op- because what was considered place. took pression,” merely or “trivial” “inconsiderate years may fifty ago and unkind” be “extreme court, in determining whether outrageous” today’s conduct under social outrageous, the conduct is should first con (or vice-versa). principles standards and activity. “The sider the nature ex general, “[i]t is for the trier of fact to deter- outrageous treme and character of the con mine, taking changing into account social may duct arise from an abuse the actor of plaintiffs susceptibility, conditions and own other, position, or a relation with which particular whether the conduct was sufficient apparent gives [or him or authori her] actual Contreras, outrage.” to constitute extreme other, ty power or his [or over affect at 565 P.2d (Second) her] interests.” Restatement carefully Beginning § decision in 46 cmt. e. Courts scruti first ToRts jurisdiction recognized the tort of inten- a defendant’s conduct “where the defen nize distress, in a our peculiar position dant is to harass the tional infliction emotional plaintiff, applied balancing in deter- and cause emotional distress.” courts have test Harris, authorities); (citing mining alleged at conduct violates 380 A.2d whether Corp., prevailing sufficiently and is see v. Crown Zellerbach social norms Contreras Sere, 37; "possible at see the existence of the dant's conduct." 443 A.2d Wal It infer don, second element of tort—intent or reckless- 415 A.2d at 1077. very outrageousness of a defen- ness—from the outrageous advantage outrageous to ensure that to what also be conduct in a “[t]he would society preventing great- such harm seems tort of intentional infliction of common law advantage leaving ill-disposed er than the emotional distress. In Meritor Bank v. Sav. Vinson, 57, 66, 106 2399, 2405, persons happiness free to seek their in in- 477 S.Ct. U.S. (1986), flicting unanimously it.” Clark v. Associated Retail Credit 91 L.Ed.2d 49 the Court Men, 62, 183, 186, App.D.C. plaintiff may 105 F.2d 65 a held “that a establish violation Waldon, (1939); by proving accord 415 A.2d at 1078. In of Title VII that discrimination Clark, plaintiffs the trial court had dismissed based on sex has created a hostile or abusive complaint alleging so, doing that the defendant had In work environment.” the Court attempted by acknowledged to collect a him debt from that writing threatening several letters and en- “Sexual harassment which creates a hos- gaging in a calculated course of conduct to tile or offensive environment for members advantage plaintiffs poor take of In health. every arbitrary of one sex is bit the barrier ruling plaintiff that properly had stated a equality workplace to sexual at the claim for intentional infliction of mental dis- equality. racial harassment is to racial tress, the Appeals United States Court of Surely, requirement a that a man or wom- the District of Columbia Circuit based its gauntlet an run a of sexual in return abuse reasoning part on the un- awareness that privilege being for the of to allowed work “[tjhere growing der the law tenden- [was] living demeaning and make a can be as cy to check offensive collection methods.” 70 disconcerting and as the harshest of racial App.D.C. at 105 F.2d at 67. epithets.” Zellerbach, In Contreras v. Crown the trial (quoting Id. at 106 S.Ct. at 2405 Henson court plaintiffs had dismissed the claim for (11th Dundee, Cir.1982)). v. 682 F.2d alleged relief which Crown Zellerbach’s em- The Court added the caveat that sexual “[f]or ployees agents subjected plaintiff, and had harassment to be actionable Title [under Mexican-American, “to continuous humilia- VII], sufficiently perva- it must be severe or tion and embarrassment reason of racial sive to alter the conditions of the victim’s jokes, and, slurs and plain- comments” after employment working and create an abusive wrongful discharge, wrongfully tiffs had ac- (internal quotation environment.” Id. marks him stealing property, thereby cused of pre- omitted). years and brackets Two before venting seeking him from holding em- Vinson, recognized this court that a hostile ployment. 565 P.2d at In reversing produced by work environment sexual judgment dismissal, Washington provide harassment can a factual basis for Supreme rejected Court the defendant’s con- the kind of intentional tort action at issue plaintiff, tention that the because was a said that here. We “women suffer sexual truckdriver, should “have become accus- workplace, harassment in the on out- based language.” tomed to such abusive The court stereotypes moded sexual and male domina- stated: employees,” tion of subordinate female immigrants As we as a nation of become “[c]reation we concluded that of a hostile more aware of pride the need for in our work environment racial or sexual harass- backgrounds, diverse epithets racial which evidence, may, upon ment sufficient consti- part usage may were once of common prima tute a facie case of intentional inflic- upon now be looked insulting as “mere I, tion emotional distress.” Best 484 A.2d language.” Changing sensitivity society at 986. acceptability alters the of former terms. case, allege present In the Kidd did not Id. at 1177. appellants engaged type in the Similarly, years case, ago, gross quid pro quo proved six in a Title VII harassment she Rather, Supreme Court of the United States Carter had committed her. recognized change alleged attempted prove ap- the law sex dis- changing pellants griev- crimination and social standards knew —on the basis of ances, proper workplace. including eventually conduct in the the OHR com- discerning plaint complaining Court’s observations are useful she was Carter’s —that intimidation; Although might show the evidence Lambert sexual discrimination appellants, supervi- duty, type neglect as neglected she turned to Carter’s it is a sors, behavior; put stop to his and that “employer-employee con- attributable they deliberately flicts,” I, were to her indifferent Best 484 A.2d at thus as a assistance, thereby pleas frustrating of law was not “so extreme and outra- matter attempts grieve purportedly to them recovery,” as geous permit at 985. id. Furthermore, with neutral administrators. alleged

respect appellant King, also Appellant King actively in a that he had worked with Carter assessing court’s the trial decision grievance she biased manner to resolve the King’s question liability submit the that, King, and Kidd had addressed to after of emotional to intentional infliction distress complaint filed a sexual harassment with jury, the this court must consider the evi- OHR, King in a participated had with Carter King’s both dence conduct before to protect scheme Carter and to retaliate com- after Kidd filed her sexual harassment by impermissibly changing her Kidd September plaint with OHR on 1988. “reassignment” to a status “detail.” evidence, plaintiffs At the close of the trial reviewing trial court the decision appellants’ court ruled on motion for directed jury, to submit Kidd’s tort claim to the we on the Title claim: verdict VII question: following thus must answer the a if complaint, have and even we [We] given appellants’ the context and nature of harassment, just forget the harass- sexual conduct —as shown the evidence at trial— magnitude complaint ment that the considering light conduct in of con- that although plaintiff presented, and it was not norms, temporary social was the evidence as say I would to that it sexual clear have was prove appellants’ matter of to a law sufficient nature, I to if say have that would outrageous”? conduct was “extreme and [King] really supervisor, concerned were a Lambert, respect appellant to we an- With plaintiffs complaints could read the [he] “no”; King, respect appellant to swer with having Carter] as an undertone [about “yes.” we answer issues, certainly exploring, worth sexual testimony plaintiffs I believe that Appellant 1. Lambert that she available to discuss it. was was following The heard the evi [King] never talked to her. even What concerning dence Lambert’s conduct: after go alleged instead back to did was grievance against rejected perpetrator perpe- and ... let [Carter] Carter, way respond any to Lambert failed respond [plaintiff] [Carter trator that grievance (complaining to Kidd’s handwritten guilty, basically then took not] [ ] was harassment biased about Carter’s and the perpetrator’s position.... way King griev had handled Kidd’s informal ance) H.B., discussed in Part delivered to his office and received As above intra-agency grievance proce- use secretary;15 depart he did not could not his attend a training detecting on sexual to deal with her sexual harassment ment session dures Regulations workplace; See Personnel harassment in the as director claim. D.C. 1632.1(o), D.C.Reg. spe- § department sponsor any not train at More he did cifically, of the District’s Per- ing Coggins other Mirtis seminars on sexual harassment Office, responsibility for matters required by regulations; those sonnel than OHR question, time in copy relating sexual to DAS at the and he received a Kidd’s OHR containing a grievance after to re sexual harassment he failed testified “[sjhould grievance. be remanded spond to handwritten Even harassment claims “in- employee,” who should be viewing light in the most favor back evidence Kidd, procedures follow.” foregoing of the correct we conclude that the formed able employee explained an prima not facie case of also acts do establish She “file complaint should of emotional distress. sexual harassment intentional infliction grievance. Lambert he never saw the testified agencyf, responding first with the EEO counselor in the him as result of that, days respond.” who] has grievance After [her] informal office harassment employee go “can outside to the Office of going go [she] with a formal Rights.” Human grievance supervisor to his for relief.” At pursu- trial Kidd stated her reasons for According Regulations to D.C. Personnel ing only intra-agency grievance route at 1639.1, § employee present an “entitled immediately filing first instead of a sexual grievance procedure under the formal complaint: harassment “I didn’t awant con- following when the criteria have been met: got frontation. If I could have this settled (a) employee has not received a deci- informally, I would have. I tried.” On grievance proce- sion under the informal cross-examination, she added a reference to specified in dure within the time explanation: her fears of Carter to “I’m 1638.4; § or the has been de- saying man threatened me. He told me sought nied the relief under the informal where his clout was.” grievance procedure provided 1634.1(a) Regulations § District Personnel 1638.5; § agencies grievance directs to “[a]dminister a (b) employee griev- files the formal system in regula- accordance with [the other (10) days expira- ance within ten after chapter.” D.C.Reg. in] tions 34 at 1880. receipt tion of the time for decision or Lambert previous testified that the director sought, notification of denial of the relief grievance of DAS had procedures established appropriate.” as that Regu- “referred to” the D.C. Personnel (or response respond) Carter’s fañure to sat- produced lations. No apparently one these (a). requirement complied isfied Kidd with unpublished internal DAS directives in court. (b) requirement by filing griev- her formal however, part, For the most descrip- Kidd’s King May ance with on tion of in spring her actions the and summer complaint King, Kidd addressed her to procedures of 1988 accords with the set out supervisor, compliance in Carter’s Regulations §§ D.C. Personnel 1638 and 1639.5, § requires which that a “formal 1639, D.C.Reg. at regula- 1882-83. These grievance deciding shall be referred to a provide tions the judging King’s context for official, higher who shall be at a administra- actions toward Kidd. level, possible, tive if than the official who April On Kidd wrote Carter a grievance pro- denied the under informal the complaining harassment,” memo of “office “deciding cedure.” Section 1631.1 defines following up previous conversations. Accord- by official” as “[a]n officialwho is authorized ing 1638.2, to Regulations § D.C. Personnel personnel authority the to make the final employee an begin grievance pro- should agency grievance.” decision on the formal complaint, cess with an informal “either oral- D.C.Reg. at 1876. ly writing.” or in requires Section 1638.1 that it “contain explana- grievance King, a full and detañed Kidd’s written to which remedy tion of the dissatisfaction part and the of the evidence at trial introduced 1638.3, sought.” § griev- through testimony, allega- Under the informal Kidd’s included normaUy by ance “should be decided tions of threats and and the mistreatment authority grant “supervisors lowest level official with to assertion that should not be al- sought.” case, constrict, the relief In Kidd’s that offi- lowed to use their title to harness 1638.4, According rights § cial was Carter. Car- and abuse subordinates’ twenty days rights.” specifically, ter had to render a decision on human More Kidd also grievance. grievance King the informal That date would in the stated filed with 12, 1988, May placed have been but Carter did not the letter of direction Carter had respond. personnel Instead he wrote Kidd a letter of her file and un- was “unwarranted ie., (or direction, true,” reprimand repeatedly “adverse ac- had “belit- Carter tion”), her, May employees 18 after she walked out of his that he had told other tle[d]” her, stay away office and let door In Kidd’s had slam. re- Carter reprimand, buttal to Carter’s she “told him threatened to transfer her because of her right ... of his or her complaints of and unfair treat- shall be advised harassment Finally, Ap expressed feelings Employee appeal ment. Office of added). stated helplessness King’s and sickness and that she final peals_” (Emphasis retaliatory reprisals however, Kidd, or actions by “fear[ed] response ended advis- against” her.16 ing you right her “that have to submit grievance to the Director the De- According Regulations formal Personnel D.C. Services_” partment Administrative 1639.10, deciding §§ 1639.7 and official added). Possibly (Emphasis DAS had insti- writing sixty within must issue decision grievance procedure under three-step tuted a action, however, any days. King Before took by unpublished directives Lam- issued to her Kidd filed an amendment formal may predecessor. Alternatively, King bert’s alleging grievance that Carter taken re- him have characterized taliatory filing actions informal, despite designation. her own allowing her grievance, including not to con- theory fact But this is weakened latter previously assigned projects. tinue her work that, King sixty-day missed although Kidd testified that rebuffed “about five attempts” up deciding grievances meeting or six set before deadline for formal 13,1988, responded days, wildly he on June a list three he would have overshot “in questions complaints. he answered order twenty-day [to] needed limit for informal hearing case, fair decision.” King’s suggests render a In either statement part “deciding testified that had drafted of that Carter that he did not consider himself a letter, giving King questions “things about official” the definition contained under specifics.” answer without couldn’t § did not he was 1631.1 because he believe King signed The letter contained the follow- agency ... to make the final “authorized receipt of ing “Upon statement: this infor- grievance” only decision formal on the — mation, hearing provide I will a and conduct Lambert was. my replied you with decision.” Kidd to the response, receiving King’s After Kidd went King questions on June but never con- on sick at the recommendation of leave hearing participated a in which Kidd ducted During period, hand wrote doctor. that she grievance response he to her before issued a Lambert, on grievance to filed her formal 21, sixty-three July days original after the July complained In it Kidd both 1988. filing. way King about about Carter’s acts and King’s his letter said that decision was sixty- grievance. had handled her Under the upon [sic ] “based uncoorborated documents day grievances, rule formal Lambert by [Kidd] submitted and conversations with 27,1988, September respond to Kidd. until conclusion, King In Mr. Carter.” summa- answer, no filed an When she received she “Mr. has demonstrated to me rized: Carter Employee Appeals; appeal with Office person he is a fair honest who is that trial. pending it at the time of was still very dependable reliable and shows an exceptional cooperation spirit. teamwork of the If this had been extent agree I don’t You offer no with evidence acts, agree King’s we would with evidence of reprisal take or you that Mr. will Carter portion dealing I appellant Best that you. strongly I retaliatory against action is con “employer-employee with conflicts” you suggest a [sic] make concertive I, trolling. A.2d at 986-87. In Best we your ... effort to resolve differences with law held as a matter of that evidence denied three Mr. Carter.” The letter also all employee’s professional an interference with requested. At of relief Kidd had forms responsibilities contrast with evidence —in trial, prepared admitted that Carter pattern insuffi a of sexual harassment —was response of this to Kidd. some prove outrageous con cient extreme Looking Id. at the record duct. at 985-87.

According Regulations to D.C. Personnel first, note, case, there is 1639.9, in this requested for- we § “[i]f [in relief give ..., undisputed did not evidence grievance] mal is denied grievance copy had sent Carter. Kidd also of the she attached hearing grievance belongings missing. day That Linton Kidd a fair on the she filed were him; Cheers, grievance by Property he decided her look- Man- Chief of the Personal ing only presentations DAS, at her written approached while Kidd agement Division of discussing person in that, the case with Carter— she was on and informed her while allowing prepare part and then Carter to leave, arranged for her he and Carter had King’s response denying grievance. Kidd’s situation, transfer to his division. Given Indeed, King reneged promise on a he had acquiesced Septem- in Kidd the transfer. On given writing saying to Kidd that he would 1, 1988, shortly leaving ber after Carter’s hearing replied writing hold a if Kidd appeal formal office—and while the of her (which did). King’s questions she Nonethe- grievance pending Em- at the Office of less, King’s we cannot conclude that actions ployee Appeals filed her sex discrimi- —Kidd finally responding grievance to Kidd’s complaint first nation with OHR. For the outrageous amounted to extreme and con- time, expressly alleged Carter had com- King’s point duct. conduct to that was of a acts mitted numerous of sexual harassment.17 type “employer-employee attributable to con- requested Kidd’s transfer When Cheers not, law, [which] flicts do as a matter or rise paperwork early August and initiated the conduct.” Id. at outrageous level specified “reassignment,” which required budgetary have shift of one would concerning King’s But the evidence position from Carter’s office to Cheers’s but actions does not end here. There is addition track, preserved would have Kidd’s career al evidence sufficient for the to find that eligibility maintaining promotion. appellant King actively participated in Car however, mid-September, after Kidd had retaliatory during ter’s actions complaint, filed her sexual harassment period King’s response final after copy of a memo from a Cheers received grievance against lodged Carter officer, “[pjursuant to a tele- financial written him. Once Kidd filed a sex discrimination phone King,” with Robert indi- conversation 1, 1988, September with OHR on cating that Kidd had instead been “detailed” expressly alleging Carter’s sexual harass period to his office for a not to exceed 120 ment, King jury soon learned of it. The days. temporary, in ef- This “detail” status reasonably complaint put could infer that this eligibility pro- for fect withdrew Kidd’s a light history grievance a new on the of Kidd’s memo, motion. The financial officer’s howev- against King that Carter had reviewed —and er, “identify a also directed Carter’s office to King should have realized this. More permanent position number” to shift to over, jury there is evidence from which the reassignment “to effect the of Cheers’s office that, reasonably despite could find this new preserve thus her career Ms. Kidd” and light Carter, grievance against on Kidd’s track. King steps help took active to Carter defeat complaint. phase the OHR It is this second Kidd, change in According to after this her King’s provides of conduct critical office,” King to his paperwork, [her] “called justifying liability. mass of evidence Such [her] where told that Mr. Carter want- “[h]e conduct, retaliatory like sexual harassment stating get [her] him to a statement from ed I, itself, as we held Best in is “so extreme voluntary, ... was that Car- [her] detail id. at outrageous permit recovery,” and as to help answering in” said it would him ter “employer- and is not attributable to complaint against him. sexual harassment conflicts,” id. at 986. employee examine We refused, King meeting of When she called a King’s phase conduct in in some this second Cheers, Carter, By supervisor. and Cheers’s detail. had come to believe that Carter then Cheers reassignment.” going “wasn’t to effect the to from her When Kidd returned work sick meeting At held “in an effort to resolve August in leave she found herself issue,” “his explicitly Carter attributed locked out of her office discovered that many process paperwork as computer, printer, personal reluctance to jury’s complaint, brought attention. ultimately a fact that was 17. OHR dismissed the requested light very of King, [Cheers] had to a harassment suit the evidence that seri- Carter, allegations against or claim that Kidd ous nonetheless Ms. had levied him.” trying help overt to pretty Cheers testified that “Mr. committed acts Carter Carter defeat had Kidd’s OHR whether it meeting,” much took over the while merit or not. “just quiet” “was rather allowed Mr. to meeting.” According Carter run the to Granting every Kidd ration- “the benefit Cheers, cooperate Carter indicated he would evidence, al from as we inference” the above reassignment if get

with Cheers would must, Sere, 443 A.2d at we conclude that memo, supervisor sign his a addressed to reasonably King partic- a find that could King, recounting the circumstances Kidd’s ipated Carter in a course of conduct Although complied transfer. Cheers designed filing Kidd a to retaliate for request sign this asked Kidd complaint. specifi- sexual harassment More well, document as he testified that “the reas- cally, King approached asked signment happen anyway.” didn’t sign ab- a statement that would effect any play solve foul in Kidd’s Carter following April The while Kidd was refused, King When Kidd assisted transfer. King, on another back she detail under wrote blocking “reassignment” Carter in Kidd’s through supervisor him her immediate division, resulting in Cheers’s Kidd’s transfer asking for promotion. responded a He three detail, designation a temporary as without eligible months later that she not was right promotion. negative conse- promotion she because “was detailed” at her quence for Kidd—as enforced request. memo, —was King’s own In an answer to promotion until denied requesting Kidd denied a detail and “told months after she would have been otherwise taking him ... that his reasons for out [her] eligible. permanent position] [her were violation regulations.” of the King’s or Whether not conduct fact Title sexual met the VII definition of evidence, reviewing we above must harassment, answer, question need we King’s examine actions as a whole and in prove that his evidence was sufficient ignore context and cannot the connections treatment of Kidd and collusion with Carter between conduct his and his awareness supervisory of his constituted serious abuse allegations against Kidd’s We Carter. take authority advantage of vul that took approach because a series actions position a woman who nerable “may compound outrageousness of inci- repeatedly complained about the acts which, might individually, dents taken not be King’s con supervisor. her immediate male sufficiently liability extreme warrant thereby to the “intimidat duct contributed Boyle infliction of v. emotional distress.” hostile, ing, working or offensive environ Wenk, 592, 1053, 378 392 1056 Mass. N.E.2d endure,18 ment” to had a Kidd was forced (1979) cases), approved (citing cited with in op impact employment detrimental on her I, saying Best 484 A.2d at 985. are not We Contreras, portunities, 565 at see P.2d jury impute King knowledge to the could full pervasive or to “sufficiently and was severe Carter, allegations all let against of Kidd’s employment alter conditions of [Kidd’s] the knowledge alone as to whether Carter inwas environment,” working and create an abusive however, culpable. saying, fact We are Vinson, 2405 477 U.S. at 106 S.Ct. at jury properly the could take account of (internal omit quotation marks and brackets King’s arguably handling unfair of Kidd’s ted) VII). (establishing standard under Title her; original grievance, against implying bias (and jury King’s society’s increasing sensitivity to the then Our could factor aware- judiciary’s increasing acknowledgment filed of ness Kidd had sexual of) OHR; and, subtle against not so forms harassment Carter with the subtle harassment, pervasive equation govern- in both finally, jury into the sexual could add Commission, (1992). Equal § Employment Opportunity 1604.11 C.F.R. Sex, Guidelines Discrimination Because of on distress, by jury. as found private workplaces, ment and has elevated of emotional conclude, however, constituting harassment and acts both sexual the evidence We against complain about retaliation those who against appellant Lambert was insufficient and seek redress for sexual harassment thus that the trial court erred submit- outrageous “petty oppression” to and intoler against Lam- ting jury to the tort claim (Second) able conduct. on Restatement the trial court shall dismiss bert —which d; I, § 46 cmt. see Best 484 A.2d at Torts judgment below remand. We affirm 986; Contreras, jury 565 P.2d at 1177.19 The respects. other all reasonably appellant King, could find that retaliating against Kidd on Carter’s behalf Postscript when Kidd turned to OHR to enforce her dissent, important light of the it is rights, embarked on a course of conduct —in keep point opinion: of this in mind the central Carter, cooperation alleged Kidd’s sexu jury reasonably could find on this record a al harasser —that District of frustrated the (1) appellant King, immediate Carter’s public policy goal detecting, Columbia’s allega- supervisor, became aware of Kidd’s combatting, eliminating sex discrimina- Carter, against tions of sexual harassment (1992 See, § e.g., tion. D.C.Code 1-2501 (2) King colluded with Car- but nonetheless (District Repl.) Rights Human Columbia filing against Kidd for ter to retaliate Council”). Act, “Intent of complaint against Carter and to cover OHR “[ajctions I, In Best we stated that which reasons, up actions. For these Carter’s public may policy violate constitute outra- against King intentionally inflicting case geous conduct sufficient to state a cause of properly distress on Kidd was sub- emotional action for infliction of emotional distress.” i.e., enough jury; there was mitted Applying 484 A.2d at 986. the same balanc- evidentiary to meet the threshold evidence ing previous in- test we have used in cases required present jury question: whether volving intentional infliction emotional dis- people could “reasonable differ whether claims, advantage tress affirm that “[t]he we [King’s] or outra- [was] conduct extreme society preventing” harms caused I, geous.” Best 484 A.2d at supervisory King’s clearly conduct such as “greater advantage leaving ill- than the analysis, dealing Rather than with this disposed persons happiness free to seek their argument essentially makes an dissent Clark, inflicting App.D.C. it.” at Thus, rejecting complaint. 105 F.2d at 65.20 look in the the dissent fails to at evidence Kidd, light plaintiff,

Accordingly, most favorable we hold that the evidence accordingly ignores this court’s standard appellant as a matter of law and Sere, prove was sufficient to infliction of review. 443 A.2d at 38. The intentional See compulsory distinguishes Sexual women for undesired harassment threatens women in working jobs. getting, enjoy- detriment as their It hinders women in sexual attention their job. they compelled comply ing, keeping intrinsically people, are It is not whether employment it to resist. The discrim- non-work-related because it is sexual. When or are able impact upon only employment in retaliation for re- has an fundamental ination consists advances, upon imposition of workplace atmosphere, but also in the decisions and fusal of itself, places employ- which sexual is in the sexual condition harassment discrimination having position explicitly prohibits of to choose ment. Title VII sex dis- woman in "terms, conditions, tolerating complying privi- with sexual crimination in between or suffering leges employment.” many of circum- the one hand and em- demands on stances, requirements deny ployment deprivation to on the other. sexual are used “privileges” employment. women access to of A. Sexual Catharine MacKinnon, Harassment (1979) (footnotes, brackets In situations in which sexual threats and coer- Working Women omitted). shape job quotation cion a woman’s definition and work- and some internal marks environment, ing job-related or cases in which (harm Waldon, acquies- Compare 415 A.2d at 1078 pressures are used to coerce sexual involvement, chairperson's resulting university acts in cence or sexual harassment is a terminating professor's employment minimal work. It can be a “term” "condition” of chilling liability employment persistent compared effect would im- prerequisite and a faculty decisionmaking process). quality practice, pose sexual harassment on of it. As prejudiced King If he was duct.21 believed jury rejected view of the evi- the dissent’s dence, joinder against him with right to do. of the claim as it had the Carter, have against he could the claim complaint majority that the The dissent’s under Su- separate for a trial moved against the evidence improperly dwells on 20(b) (“The may ... or- per.Ct.Civ.R. Court that evidence is is incorrect because Carter preju- prevent ... ... separate trials der against King as a collu- integral to the case dice.”). so, nor does he claim He did not do Although King may not have known der. evidence appeal could he—that on fact, Carter, in engaged in whether —nor claim is irrelevant to Kidd’s against Carter alleged, there is evidence harassment Kidd King.22 against showing he was of the seriousness that aware nonetheless, as allegations and that he of the of a viola- ascribes “overtones The dissent trying supervisor, in assisted Carter disposition in our process due of law” tion of up the against Kidd and to cover retaliate any at 680. If due King’s appeal. Post complaint had merit situation whether Kidd’s occurred, King’s in it was process violation reasonably jury could find or not. Once the pro- grievance, a treatment of Kidd’s internal against King that knew of Kidd’s claims Car- as “an that the dissent characterizes cess ter, reasonably jury also could find then the administratively way explore intelligent responsibility as Carter’s King had a at 688. complaints.” of her Post the merits facilitate the resolution of supervisor in ignores the record viewed That statement impartially responsibili- complaint —a exam- light to Kidd. For most favorable merely away from ty King not walked which in in a letter ple, Kidd submitted evidence rejected by trying help affirmatively but processing King promised that which complaint regard off the without Carter fend hearing if grievance, he would hold a initial Accordingly, given the evi- to its merits. information in re- provided additional jury presented to the about Kidd’s dence King questions he sent her. sponse to the Carter, jury reasonably against claims part this let- drafted testified that Carter King’s alleged ignorance of find that could request complied with the ter. Kidd When and inexcusable for the situation was hollow however, information, King re- for additional help King’s efforts to supervisor, and that hearing. The neged promise to hold a on his defeat Kidd’s OHR Carter King responded to outrageous shows that con- evidence amounted to extreme harass- descrip- in the court a sexual objects opinion’s overlooks that trial to this 21. The dissent King, against charge for some relationship” ment was levelled revolting sexual tion of "the reason, guilly though was course found not he According imposed to the dis- on Kidd. Carter suggesting jury,” any sent, sexual harassment engaging Carter were "[w]hen Kidd and relat- claim was somehow in a footnote that this acts, knowledge King of it because these had no period psychiatric treatment ed to a short only know Kidd is he not did not the indication leaving process of in the Kidd underwent but, appears, probably it was not so far as government. employment with the federal former governmental agen- employed even then in the III.B., explained in Part 680. As we Post at however, testified, cy.” Post at 680. Kidd however, against claim the sexual harassment referring is to which the dissent the incident liability requiring theory King on a was based King February while testified occurred King "knew or jury to determine whether February agency began that he work at the harassment about Carter's should have known” importantly point even more 1988. But prompt remedial "and failed to take of Kidd King know the details of even if did not remains: explain why such does not action." The dissent Kidd, presented interactions with Carter’s preclude against a motion would a claim occurred, trial, they joint at the time generally Although separate courts for a trial. it find that took could nonetheless duplicating of the same mat- avoid trials seek to help upon Carter retaliate himself ters, grant separate decision to a trial court’s happened- up “hear and cover whatever —a 20(b) except not disturbed under Rule trials evil, intentionally approach that no see no evil” A. abuse of discretion. See a clear Charles supervisor King’s responsibility as a violated Wright al., Practice and Procedure et Federal alleged was not of the sort be sure conduct event, (1986). any sever whether a § In tolerated. not, granted or Kidd was been ance would have juiy of the hear evidence entitled to have the King possible by was against Carter arguing reference to kind of harassment In our 22. up. intentionally covering severance, charged majority "the the dissent contends Kidd, colluding in against Car- by reviewing Carter grievance documents with Kidd’s covering up his retaliatory actions and by conducting ter’s Kidd while conver- submitted considered wrongs. specifically, More King thereby ignored Carter. sations with Kidd, to the evidence dealing light un- most favorable process implications of the due harass- filed her sexual a after Kidd evenly parties dispute to a he had events with the following actions fairly. King complaint shows the ment responsibility formal to resolve Carter, (Kidd) knowledge by King support complainant refused to meet with the allegations of harassment sexual meeting person against whom of Kidd’s while with the (Carter), against lodged Carter: complaint had been help prepare a King authorized the latter to telephone conversation with 1. After a grievance. denial of the changed Kidd’s King, financial officer a “reassignment” permanent from the King’s proce- transfer The concludes that dissent Cheers, supervisor, to requested by her new reviewing grievance dures for Kidd’s formal for reasonable, potential with no a “detail” temporary to “a and not a mali- amounted cious, promotion. thing Post at for an executive to do.” contrast, jury’s emphasize In 683. we answer, help 2. In order to Carter supervi- King’s duty on as a reasonable focus defend, harassment com- Kidd’s sexual thus equally parties with all to a sor to deal office to tell plaint, King called Kidd into his resolving. responsible for dispute he was Kidd to make a that Carter wanted however, dissent, King for show- excuses vol- temporary that her detail was statement King ing partiality because toward Carter agreement only to a untary (contrary to her King Kidd. knew Carter better than knew permanent reassignment). [Kidd’s] The dissent states: “While com- by meetings At attended Carter Carter, plaint partially against Mr. supervisor, King fa- and Cheers’s Cheers King [King] was an assistant of Mr. whom that, before Carter cilitated Carter’s demand confidence_” 683. The then had Post at temporary detail be allow Kidd’s would King’s procedures dissent’s assessment reassignment— permanent reconverted to a reasonably completely approach reverses the potential pro- providing, again, once jury: emphasis a accepted an produce a state- motion —Kidd would have supervisor’s duty suspend judgment while against help Carter defend ment that would greatest investigating complaint a with the complaint. Kidd’s sexual harassment impartiality possible under circum- request King summary of the evi- refused stances. The dissent’s on a promotion she was still concerning King’s of Kidd’s for a because dence treatment untruthfully, King, said was grievance completely ignores also the fact “detail” which voluntary. King reneged promise on his to Kidd to hearing responded a once she to his hold King’s support for Carter This evidence of questions. additional complaint was King Kidd’s basic once knew for a that, was sufficient September sexual harassment We have stressed before and out- 1, 1988, King responsible for “extreme King’s just de- find actions of the sort I, conduct, A.2d at scribed, rageous” Best perhaps justifying an inference while Kidd, responsible protecting em- supervisor against as a matter of law did a of bias This evi- Carter’s control. jury question ployees under present not of extreme jury to infer that point- allow a outrageous But have also dence would conduct. we that, with Carter withdraw Kidd filed her sexual colluded ed out once status, in assignment order permanent date and harassment on that against help Carter defend alleged pressure her soon thereafter learned harass- complaint. Just as sexual griev- her OHR was at the heart of Kidd’s harassment cannot be considered Carter, workplace jury reasonably could ment against ance typical “employer- merely instance of supervi- as an King’s actions as Carter’s find that conflicts,” Kidd; the actions of id. at merely negligent toward sor were assisting in retaliation rather, supervisor they participation reflected active that, complains beginning September in an who of sexual harass- could infer part ment cannot be deemed an inherent position used the number as a Carter employment situation Kidd, either.23 bargaining refusing autho- tool with to provided rize its transfer to Cheers until she during “argue The dissent claims we that a help a him Carter with statement that would leave, time Ms. Kidd was on there was a complaint. Signifi- defend her OHR arrangement by clandestine Ms. Kidd’s su- cantly, appeal, King purposes of this as- periors to to divi- transfer her a different ways in sisted Carter with this scheme added). (emphasis at sion.” Post On explain. we contrary, recognize August we that in accepted reassignment 1988 Kidd a that he a Cheers also testified received Cheers, supervised by division Linton Chief copy supervisor, to his of a memo addressed Property Management of the Personal Divi- Gordon, conveying Bruce the information conclude, however, sion of We do that DAS. temporarily had detailed in- been jury reasonably the evidence would allow a to permanently reassigned. This stead of that, infer after Kidd filed her sexual harass- financial officer who memo indicated that the complaint against ment Carter with on OHR change “[pjursuant to a wrote it made the 1, 1988, September with colluded Car- telephone King.” conversation with Robert change permanent reassign- ter to Kidd’s further did not know Cheers testified he detail, temporary ment with to a Cheers changed reassignment who to a detail. right promotion, without until she assisted “who, in normal When asked course defending against in Carter her own com- authority” things, have the to make would plaint. change, replied such a Cheers with a list that spoke Cheers testified that when King, included both Gordon and as well as reassignment July Carter about Kidd’s in testimony, supple- himself. Cheers’s Carter only not Cheers indicated that he need- copy mented of the memo from the working ed to have Kidd herself for him but officer, in financial which was introduced evi- required “position also transfer of Kidd’s dence, jury allowed the to find that number,” i.e., an authorization for an addi- arranged permanent reassignment for Kidd’s employee in tional Cheers’s division. Other- temporary to be converted into a detail after wise, formally posi- Cheers would not have a began away original Carter back his pay tion available for which he could Kidd. agreement with Cheers. understanding With the that Carter The dissent also states that Cheers testi- agreed arrangement, to this Cheers sent “during Ms. in fied that all the time Kidd was through reassign- paperwork for Kidd’s position had a number his division he never After Kidd filed her ment. OHR give back to Mr. Carter.” Post at 687. 1, 1988, however, September according agree explains why Kidd’s We that this fact Cheers, expressed Carter his reluctance to reassign- to a detail could be reconverted number, position transfer a reluctance longer willing to ment once Carter was no effectively changed plan for Kidd’s position lose a in his office. Cheers testified permanent reassignment merely into a tem- original arrangement with that under his porary detail Cheers’s division. From Carter, July “as soon as made evidence, therefore, jury could reason- position had a become va- [Cheers] number ably July infer that in before Kidd filed position would transfer [Cheers] cant complaint, willing her OHR Carter had been number back to” division. The Carter’s position Space to lose Utilization office, agreement between Carter Cheers get Division in order to Kidd out of his hinged willingness give up on Carter’s but that after Kidd had filed her OHR com- position receiving before one plaint, willingness give up posi- number Carter’s return, presumably get Kidd out of his changed. specifically, More tion II, 624-25, repeatedly majority Thompson at I —because in 593 A.2d 23. The dissent calls the I, Thompson failing Thompson especial- I con this court vacated Part IV. of task to deal id., taining ly We the discussion on which the dissent re the discussion at 570 A.2d at 290. relying have to do instead on Best lies. declined so—

679 of a hostile “[c]reation held that away a We have Kidd on quickly. With office more sexual harass- by racial or work environment however, to deal detail, longer no had Carter evidence, consti- may, upon sufficient ment basis, successfully daily and he with her on a inflic- case of intentional prima facie tute her to his office when prevented her return I, A.2d Best distress.” tion of emotional jury could ended. The detail with Cheers this is such a jury found that at 986. only the evidence that Carter infer from evi- contains “sufficient The record case. transfer of began the immediate to demand jury’s verdict. support dence” to filed after Kidd position number from Cheers September part, and complaint with OHR on in part, reversed in Affirmed in exe- King assisted Carter and that remanded. cuting'this plan. GALLAGHER, dissenting: Judge, Senior if argues that even Finally, the dissent appli- severely stretches This decision delayed 11 was promotion to Grade inflic- “intentional existing law on cation of eligible to re- legally she was “months after beyond our distress” well tion of emotional it,” matter of delay cannot as a such a ceive It jurisdiction. controlling opinions in this infliction of emo- intentional law constitute implica- disturbing and economic has social argument This distress. Post at 687. tional are, workplace there where tions for the point the evidence an essential about misses are, and the usually personnel frictions there jury’s testified underlying the verdict. Kidd are of employees involved supervisors and requesting a process of began that she that, for I think gender. would opposite 1989, after 11 in March promotion to Grade reasons, of the extension this serious these detail, back office on a new she left Cheers’s consider- en bane existing law would merit division, supervisor, a new King’s under effect, far-reaching it would have ation as later, April A month Wills. Jeanette this case reality. reason matter of One as a King through her a memo to Kidd directed it case is that something a landmark promotion. him supervisor, asking for the guide for inten-. factual a different establishes for King respond that did Kidd testified distress, as we emotional infliction of tional request: then denied her three months and on. see later shall that I was detailed “He told me that because I.1 promotion. He stated eligible I for a wasn’t Kidd my request to be detailed.” that it was opinion in this analysis, the final “[ajfter about three further testified on in the law proposition, stands for case supervisor,” Jeanette [her] more tries distress, infliction of emotional intentional Wills, promoted Grade she (a) sever- employee files complaining if a delay of Kidd’s 1989. The December con- officials grievances to various written al the harm she aspect was one promotion frictions, and office cerning supervisors, delay had an even broader But the suffered. much later and then period of months over a the means also impact. It was evidence to a complaints of her changes the substance intentionally furthered Car- which Re- Human the Office of charge before against Kidd sexually of retaliation ter’s scheme ha- supervisor had sources complaint with (b) harassment filing her, a sexual this new after rassed Thus, Kidd newly find that could received agency was filed a OHR. before delayed promotion; sought, was long more than a assignment, suffered which had 120-day reassignment distress re- to a emotional changed was also severe from a there (c) grade King’s detail, collusion received she later sulting from the same cause: detail, 120-day but, help Car- due pressuring raise Carter eligibility beyond her months com- some OHR occurred against Kidd’s own defend ter judgment support a it, this will plaint. being tort. on this jurisdictional issue do not discuss 1. I of the law the extension concerned about more acts, executives, no participating agency engaging in these one of the were action, is he knowledge of it because the indication this administrative for the tort of but, only far as it not did not know Kidd so intentional infliction of emotional distress.2 tort, nature, appears, probably he was not even then em- by necessarily This its has the ployed governmental agency. in It the element of maliciousness. injustice judges in strikes me as an for the seriously stretching process In the of the in- majority employ this the nevertheless dimension, on this tort to a new the law King in flammatory against evidence majority judges also seem to tell us appeal. employee grievance when an sends a written But, majority, says the “that evidence supervisor supervisor, complain- her integral against King as a collu- to the case ing supervisor about frictions with her added.) so, (Emphasis If it not der.” does employee, process another there are “due if speak against King for the it well case if implications” the executive then discussed requires that sort of unfortunate inflammato- (the supervisor) with his assistant the ry bootstrapping. made, charges complaining the prepare specific ques- him (a) asked written us, however, majority the tells complainant, tions for the submission to to Kidd’s claim lurid evidence was relevant questions answers to were re- when these and, against King if he was “believed ceived, which, in in sent her a memorandum joinder prejudiced by the of this claim effect, rejected grievance, giving his he against against him with the claim Carter he reasons, giving “hearing.” trial,” but without her a separate but could have moved for a “hearing” procedure, says However, majority This absence of a so. over- did not do majority, process implica- raises “due looks that the trial court a sexual harass- This, itself, may tions.” send some trem- charge against King, for ment was levelled through government private reason, in- ors though was of course found some dustry. guilty any sexual harassment not n jury.4 Consequently, such a motion would penetrating majority opinion on Before therefore, is, good There no reason lie. against of the case it essentials weaves reputation of this appeal on this to harm the appellant King, say I I feel should disgusting de- government official with these interest of fundamental fairness that the reci- sexual relation- tails of the lurid Kidd-Carter inflammatory tation of of the lurid details nothing ship, of he knew and had which and Ms. sexual relations between Carter sys- utterly responsibility no for under our know, Kidd is most unfortunate. As we Car- tem. (b) (a) party appeal, ter is not a to this against the ma- judgment Ms. Kidd has secured a The essential difference between impor- jority opinion and the dissent in this him in the trial court for sexual harassment. tant, appeal making” To decision is that the But this is a different matter. “new-law appellant King appeal majority passes simply in this the dissent off as an employ against revolting “argument jury” opinion, while care- those details of the sexual relation- ship (“rupturing “causing fully avoiding anal tissues” a substantive discussion of AIDS”)3 tort of intentional her to fear between Carter and law on this serious inflic- legal of emotional distress. The discus- Kidd has overtones of a violation of due tion King. they ignore the tests process of law as to These are events sions do undertake plaintiffs seeking to knowledge placed by utter- this court on he had no and had which of emotional dis- ly responsibility. prove Kidd and Carter intentional infliction no When just quarter examination that of about a 4.Kidd testified on direct 2. The returned verdict against jointly agency million employed the defendants dollars at this before she became severally. Psychiatric had checked herself into the Institute and was treated for two weeks and then received relate this 3. Ms. Kidd testified that she did not out-patient two weeks of treatment. more injury during painful several visits to her doctor support testimony and so she did not medical records. Instead, the fol- harassment shows employment sexual tress in the arena. Carter, support of lowing actions majority on the evo- substitutes discussion knowledge allegations of sexu- lutionary patterns “contemporary commu- with Carter,” include: decency” al harassment nity of offensiveness and standards VII, Title sprinkled with the nomenclature of telephone conversation 1. After facing up of our the realities and avoids changed Kidd’s King, a financial officer Thompson in District v. decision Columbia “reassign- permanent from the transfer (D.C.1990), I, 289-91 vacated 570 A.2d supervisor, requested by her new ment” II), grounds, (Thompson part in on other Cheers, with no temporary to a “detail” denied, (D.C.), - U.S. 593 A.2d cert. promotion. potential for (1991).5 -, 112 S.Ct. 116 L.Ed.2d 331 answer, help In to 2. order Carter fairly case cannot be decided without This defend, harassment thus Kidd’s sexual There, Thomp- meeting Thompson head-on. into his office complaint, called Kidd emo- claim of intentional infliction of son’s wanted to to tell her Carter following ac- tional distress on the rest[ed] temporary that her de- make a statement Maury supervisor] criticized her [her tions: (contrary agree- voluntary to tail was memorandum; ap- after he in memorandum permanent reassignment). only to a ment changed her sta- proved her leave then meetings by At Carter and 3. attended leave; refused to tus to absence without supervisor, King by Cheers and Cheers’s grade promotion the next consider her that, facilitated Carter’s demand before give computer test she level or the temporary would allow Kidd’s de- Carter for; he from the other asked isolated her permanent tail to be to a reas- reconverted requested employees; he statements signment providing, again, po- once the — hours; to her he wrote her doctor as limited promotion have would tential —Kidd leave; on her and he memoranda excessive help Car- produce a statement that would it, resulting in assaulted her and lied about against sexual harass- ter defend Kidd’s job loss. complaint. ment added). (Emphasis 290. Id. at request 4. refused Kidd’s Against backdrop, this factual this court on promotion she was still a for a because al- exception “[w]ith stated that the of the untruthfully, said King, “detail” which assault, supervisor is leged by this conduct a voluntary.[6] in type employment of a inherent situa- the evident, not at 677. As will become Ante and, record, unusually tion on this was not signifi- King’s fall only appellant do actions alleged Nor as- egregious_ was the Thompson by I to cantly short of those found pushing against Thompson the wall sault — unusually as a matter of egregious” “not be pointing finger, threaten- coupled of with I, law, the Thompson unlike where ac- but ing sufficiently egregious under the words— direct, hands-on tions involved those of omitted). (citations standard.” applicable Id. considerably supervisor, appellant King was and, Here, contrast, administratively prior to these by majority us tells removed the as no with Kidd far grievances, of filed her contact “the evidence events after Kidd opinion, majority vitality on merits 23 of of court’s discussion In footnote their ques- Thompson Thompson judges apparently convey Nothing wish II remains. in issue dissent) (which longer I is referred in the no tioned it. rehearing order to as it was vacated on exists I, So, by dissent Thompson as is utilized employment jurisdictional consider a issue. The reason, course, not, binding for a matter by Thompson I to the dis- dissent relates reason, standpoint the merits From the effect. by and resolution court on the merits cussion Also, as a even mat- discussion there does exist. charge of infliction of emotion- of the intentional economy judicial would be unfortunate it ter Rehearing granted Thompson was al distress. merits waste that learned discussion jurisdictional Rehear- to decide the issue raised. Thompson i.e., I. issue granted grounds, ing was therefore on other grounds relating merits of the on indicated, grade Ms. received charge, As Kidd later and the latter issue intentional infliction rehearing. Logically, promotion. was not discussed Moreover, appears. characterizing as it grievance relating Her to this harassment delay largely is here directed promotion having toward Mr. Parks “broader (not i.e., party proceeding) to this and her impact,” “evidence of the means relationship administrative with him. She King intentionally which furthered Carter’s complains in grievance that she does not filing scheme of retaliation Kidd for supposed supervised know who she is to be OHR,” sexual harassment with Carter, Chief, by, Space whether it is Mr. that, reality avoids the fundamental under Utilization, Parks, Space Specialist. or Mr. I, Thompson not, appellant King’s actions do “kept She asserts is not im- abreast of law, as a matter of rise to the level of “ex- portant details work or events of interest.” outrageous treme and It behavior.” is un- complains relationship She of her official majority prefers derstandable that the not to Ms. Darcel Henderson. She states she has attempt square opinion Thompson its secretary” been “cursed and called /, opposite where it reached the result on complains “PRISSY MISS MISSY.” She here, egregious facts more than but it is generally profan- about the rudeness and the necessary majority opinion to do so if this ity goes among which on the staff in the to survive. Because the facts here do not charges “telephone office. She that callers test, legal majority meet the resorts to abused, unprofessionally are handled and conspiratorial “colluding,” words like and messages by secretary.” are not left She “retaliation,” as a substitute. stated this has been discussed Mr. Car- meeting” reprimand- ter and “he called a and II. ed the whole staff and stated he did not want party complaints” to hear “third “if and a It unduly would this labor dissent to out- rudely caller feels he is treated refer them to voluminous, line the various written com- personally” yet me problems per- and “the plaints lodged up through of Ms. Kidd sist.” Accordingly, append only echelons. I her grievance appellant King, to which deserves goes along Ms. Kidd on the same lines in complaints to be read. Her all followed lengthy page complaint her six and then theme, being largely

much the same (a) com- by requesting Supervi- concludes her plaints against stranger proceeding sor, Carter, a to this Mr. rescind his of miscon- letter (Mr. Parks, (b) acting supervisor, her, an relating given whom she duct to and she be “an disliked) and performance administrative criticisms of her excellent evaluation” Carter, supervisor, against year govern- Mr. first whom she service to the District by stating ment. concluded to Mr. judgment obtained a in the trial in She court this (appellant) regretted griev- that she that her case for sexual harassment. concerning personnel ances the office “have will, however, I complaint outline the she you spent past be aired but I have King, remaining made to Mr. as he is the attempting few months to resolve them with- appellant necessary here.7 This is for an in (Appendix.) the division to no avail.” understanding majority dissenting of our significant It that in this same “Formal opinions. specific “request Grievance” she made the lodged Ms. Kidd a “Formal Grievance” reassigned immediately posi- that I be to a 19, 1988, May appellant King, dated who non-competitive promotional oppor- tion with Director, Property was Associate Real Ad- tunity my present position....” in like Id. ministration, Department of Administrative added). (emphasis request She bottoms this Services of the District of Columbia Govern- mainly for a transfer on Mr. Carter’s memo such, Appendix.] ment. (a As he was in her), May cautionary \See memo Carter, supervision over Mr. who was Ms. longer which caused her no to have “confi- Supervisor. grievances Her informal capable dence that Mr. Carter can or is fair, about being the “harassment” were translated into forceful and resourceful resolv- grievance. ing problems equitable a formal office [sic] reversed, judgment against appellant big certainly 7. The Lambert is be- and I most concur in this. government ad- judicial hearing. This was a stated she feared non-bias manner.” She by retaliatory against grievance or an em- reprisals exploring “for actions ministrator (b) (a) stagnated trapped “I feel not supervisor me” and ployee being freedom able network have was her office who another to. departmental/govemmen- with other supervisor. interact acting While the sometimes sharing, purpose employees Carter, tal for the Mr. partially against was pur- soliciting resources or for recreational King in whom he an of Mr. he was assistant poses.” Id. particu- and he had then had confidence questions. knowledge which to frame lar (June 1988), she two weeks later About malicious, reasonable, and not It was appel- filed “Amendment to Grievance” to an To one’s thing for an do. have executive amendment, com- King. lant In this she prepare a memorandum staff assistant among not plained, things, that she was other signature really not an questions Mayor’s Supervisor included collusion, majority ar- Presentation; act in a overt Space Plan in a staff not conclude Mayor’s gues. A would meeting that the reasonable was announced it this, Kidd, Space presented to the Ms. was evidence Presentation will be all adduced Staff, King intentionally I in- Friday appellant Senior and “this is the first to show As complained have also distress her. will heard this.” She flicted emotional we see, law, Mr. has “been denied the our case this does soon under opportunity repre- to serve as one RPA’s approach tests we have laid down for Advisory for the sentatives DAS’ Womens tort. stated, Committee,” “I an which she consider request granting for a Instead of her I event of interest which feel will be unsatisfactory of the office transfer because allowing opportunity in- benefit in me an to described, aggravat- she personnel situation other DAS. throughout terface with women rudeness, by personality Mr. ed clashes given my supervisor.” by No She reason 13, King sent a memorandum dated June supervisor speak her continued that “did not 1988, responding griev- Kidd to Ms. regarding assign- make me or contact against Supervisor Assisted ances Carter. any approached him until I ments kind Carter, specifics by King requested Mr. Mr. regarding reports 2 88.” June Id. twenty-three she incidents on each some griev- She concluded her amended formal grievance. complained inof her formal had King by stating, “I these ance to Mr. believe He later stated: reprisals/retaliations8 to be incidents memo responded Ms. in a dated my grievance wish to include them” to amend King, the 1988 to Mr. Associate June meeting or “respectfully requests she giving a much Director of her Division your my grievance.” immediate attention description of numerous fric- detailed added.) (Emphasis personality clashes within her tions and that, majority receipt complains upon The supervisory problems office—her with grievance against Car- her written Messrs. by Parks, reprimands authority of Mr. Parks, appellant King in his ter and called interruptions Supervisor Carter and the explore underling supervisor grievance experienced in relation to work she had him, seemingly with a reasonable administra- assignments given to the office she pro- tive to take. step Mr. decided secretary, Henderson. Darcel pound questions of Ms. Kidd in order responded to Director later The Associate underlying charges. specifics obtain the grievance by memoran- this, Ms. Kidd’s formal accomplish requested order stated he had July dated 1988. He dum signature prepare that for his Mr. Carter had provid- Kidd, all the information questions reviewed appropriate of Ms. and this with her the situation way to ed and had discussed intelligent This an was done. Carter). stated, (Mr. He essen- Supervisor explore administratively the of her merits only she is the was, all, quasi- tially, appeared This not a it complaints. after opinion. Interestingly, majority judges their also use term "retaliation” difficulty who “has upon with Mr. “right Car- advised that she had a to submit ter’s decision to have Mr. Parks monitor grievance a formal to the Director of Admin- projects; certain that Mr. Carter has in- (10) istrative Services within ten calendar formed him that ‘he has had conversations days receipt from the date of the of this you together with and Mr. regarding Parks memorandum.” your requested you difficulties and get Ms. Kidd then filed a similar together try your to resolve differ- July dated about administrative ences;”’ “[wjhile and that Mr. Parks was matters and much the same frictions office agreeable you refused.” He then observed (an Captain appellant), Lambert Di- negative she had a attitude and was not a Department rector of the of Administrative player;” “team difficulty her other generally Services. complained She about the clerical assistant should be considered supervision office, of her especially in resolved since the latter is longer no em- relation to the role of the same Mr. Parks in ployed by department. supervision the office and Mr. Carter. Mr. (appellant) also stated that charged, among She things, other that Mr. Mr. Carter ago informed me some time King should have listened to her side of the that it is you his intention to involve more grievance and instead favored Mr. Carter’s responsibilities the overall Space of the concerning grievance. version Utilization your Division po- as outlined sition description, thereby relieving you of grievance The detailed concluded re- the full-time responsibility for monitoring questing: Integrated Automated System Master (a) Rescinding of Mr. Carters “Letter of (AIMSP). Program I concur with his de- Direction,” cision. (b) “Worthy text.) Rating,” Performance (Emphasis in (c) Associate Director then went on to An “Award/Reeognition accomplish- state that he would not direct Mr. Carter to building ment friendly a user automated rescind her; his “letter of DIRECTION” to space program,” and that grant request he would not her to (d) “Reassignment/I would consider re direct Mr. perfor- Carter how to her rate maining position in this providing I re mance in upcoming rating. Turning to your ceive writing word in that I receive specific request her (reassign- a transfer equitable treatment with other male em ment), Mr. stated it policy was not his harassed, ployees, that I not be and I reassign to an employ- because the proper obtain promotion consideration for disagrees particular ee style with of the to the immediately upon eligibili GS-11 supervisor; given that “certain formats are ty/meeting my the same standards supervisor] by to superiors; [a his that if Mr. counterparts,"[10] male prefers Carter assignments that certain are (e) “That Messrs. Carter and Parks re- manner, particular formatted as subor- counseling/training ceive in what consti- expected dinate she is to adhere to his in- harassment, tutes sexual rights women’s creating structions without difficulties.” and how not to create dissension within a by He stating request concluded her workplace,” reassignment was denied.9 He observed that (f) That Mr. disciplinary Carter receive Mr. Carter has demonstrated to him that “he action, is a fair person and honest very who is dependable,” reliable and (g) and that he did Reimbursement of all sick and annual agree “that Mr. reprisal Carter will take or leave to her in ongoing relation to her retaliatory against you.” action grievances, He there- on, however, got 9. Later she interesting her wish and was It is rather that this statement reassigned promoted. and made sometime later was several months after the "sexual harass- complaint ment" she later on described in a to (OHR). the Office of Human Resources (h) knowledge presented by feels Ms. Kidd who counseling Such as her doctor grievances, necessary in this about Mr. relation of how her transfer came was leave, charged Cheers, to supervisor. testimony to be administrative new her witness, Cheers, (i) of her own authoritative Mr. to by of a method which “Identification majority argument by the my agency. refutes the made restore character within” the judges on the matter of the transfer. added.) (Emphasis developed complaint by It Ms. Mr. testified that Cheers by Captain Kidd was not seen Lambert. July of as I [o]n one occasion in business, regular course com- such Carter, me talked Mr. he informed plaints Equal Employ- were handled having difficulty working that he was some Opportunity Agency. ment Officer Kidd, relating to his Ms. who was with and 1, 1988, however, Kidd September On Ms. employee. He told me that wasn’t she complaint agency, then filed a with another out, working they getting weren’t OHR, which, all written after those along. time, complaints long period over a she I, prepared I knew that Kidd had So Ms. Carter, charged for the time that first Mr. processing so as program.... a data And Supervisor, had coerced her have sex having Mr. Carter talked to me about his Thus, many previously. with him months her, point problem at that I knew [sic] giant leap now and went took help processing I man- needed data me describing per- from one office frictions and age personnel property depart- for the by charges sonality accompanied clashes District, suggested I ment so and mismanagement charge office to a of coerced Mr. Carter that transfer Ms. Kidd sex and sexual abuse twice Mr. Carter position property number from real long ago. thereupon time Mr. Parks was my division within the administration object dropped complaints as an of her management. procurement and, as I part proceeding; became no this earlier, Carter, against Mr. related whom Now, Q. you spoke after Mr. Carter made, charge party sexual was is not a you any respect did take action with Instead, appeal. charge is that here transferring Ms. Kidd? King, Supervisor Mr. who was Mr. Carter’s per- talking A Yes. After to Mr. Carter Director, Property and the Associate Real twice, haps Ms. I then went to Administration, Lambert, Captain who proposing let her what I was know was, earlier, as I stated Director of the De- proposing I come to what was partment of for the Administrative Services personnel management for me as a work Government, District Columbia intention- specialist. ... ally upon inflicted emotional distress her. Now, Q. you approached when was it that words, other this appeal involves officials you? coming to work for Ms. Kidd about who, higher government the echelons of discloses, far as record did know the not even my A with Mr. Car- After conversation the her Ms. Kidd at time of lurid sexual perhaps having her come to work ter about relationship with are Carter. But both me, anything I I did before official charged here with intentional infliction of wanted to chat with her. emotional distress on her. area, approach We the crucial factual- now majority I I

ly, majority I went to her and told her opinion. the The my organization to cre- judges argue during a Ms. Kidd needed someone time computer we leave, program ar- a a ate our was on there was clandestine manage property the rangement by superiors Ms. to trans- had that would job good the had done a To examine since she fer her to different division. thought majority, space management I this must turn contention the we help me. And I asked testimony by which would be able to the adduced Ms. Kidd willing from if be to transfer only witness her she would to her transfer. relates time, property my During period real administration to divi- MMA should identify sion. permanent position number to reassignment of Kidd. Once Q. effect the Ms. you? And what did she tell accomplished, prepare this is MMA should that, yes, A. She told me she would like SF-52, appropriate indicating the “reas- to do that. A(.) signment” Ac- under Block “Kind of added.) (Emphasis Requested”. tion see, testimony As we of Ms. Kidd’s process required personnel We need to (Mr. Cheers) crucial witness her transfer possible. action as soon as explodes argument being by made majority judges conspiratorial about the ar- (Emphasis supplied.) rangement leading up to it. Her witness document, Kidd, by This introduced Ms. only Cheers who was her witness who knew arrangement establishes that the “detail” (and of how it came about im- he was not ap- came about after a conversation between peached) simple established the truth that pellant King personnel and the chief two the transfer was his idea and she was weeks after Ms. Kidd filed her unsuccessful particular of it. favor So much for that complaint sexual harassment with OHR. (“locked etc.). office,” “collusion” out of her stipulates The memorandum that her new point, according We are now at the critical identify posi- permanent division should “a majority, posi- where Ms. Kidd’s new reassignment tion number to Ms. effect 120-day tion with Mr. Cheers became a de- that, done, Kidd” and once this is her new tail. This occurred after she had filed the prepare appropriate division should form complaint against sexual harassment at OHR indicating “reassignment.” (Emphasis Carter; and, argues majority, Mr. this is added.) Then the is terminat- memorandum important where the most “collusion” and by urgency ed an indication of to effect the place, being “retaliation” took these ascribed “detail”) “reassignment” (terminating appellant King. Let’s examine the facts stating, process required “We need to relating to this. personnel possible.” action as soon as Ms. Kidd had filed her “retaliatory.” This does not seem A rea- September support OHR on 1988.11 In conclude, sonable could not so unless position in appellant the trial court that meaning. words have lost their others, King, e.g., Captain Lambert and Carter, Mr. had retaliated witness, supervisor, Ms. Kidd’s her former bringing change position about a in her from Cheers, concerning signifi- Mr. testified detail, reassignment 120-day to a Ms. Kidd “position explained cance of numbers.” He (Exhibit 20). placed in evidence a document complication “position numbers” as September It was a memorandum dated they reassignments. relate to He said that (Mr. boss) 1988 to Mr. Gordon Cheers’ personnel regulations in in- under order to Britton, Ms. Associate Director for Finance necessary posi- crease staff it is to have the subject and Administration on the “Detail well, positions tion number as and that Patricia A. Kidd.” It stated: position budget plans for numbers affect year. telephone given arrange-

Pursuant to a conversation with said that his Cheers King, copy Robert attached is a of the ment soon as he SF- with Carter was as MMA, position 52 to detail Ms. Kidd from RPA to a number that became vacant he period days. position for a not-to-exceed 120 would transfer that number back to Having 11. It is of incidental interest to note that the Human Resources. been unsuccessful in statutorily provided process, Office of Human Resources of the District Gov- ernment, administrative charge to which she had made her of Ms. Kidd next turned to the courts. She filed a Carter, and, jury by complaint proceeding sexual harassment Mr. ruled that she in this after a trial, supplied probable support judgment had not cause to her was entered in her favor there, stated, (who, charge. Having ap- party lost Ms. Kidd then Mr. Carter as is not a on this judgments against ap- pealed appeal) the decision of the Office of Human Re- were entered King charge City City pellants sources to the Administrator. The Ad- and Lambert on a of inten- upheld ministrator the decision of the Office of tional infliction of emotional distress on her. of a matter (Carter). as majority is unreasonable Property Administration Real law. accepted Ms. that when he stated Cheers not number he did position Kidd and her Af- all, majority. says the is not But this to Car- give back position number

have a Real to the transferred back she was ter (Real Division); and, further- Property ter Division, subsequent to a confer- Property in his more, during time Ms. Kidd was all the boss), (Cheers’s she with Mr. Gordon ence position a number he never had division December, until grade raise not receive a did This, said, had give back to Mr. Carter. legally she was months after This was go- Carter was practical effect that Mr. it, majori- complains the eligible to receive therefore, and, ing position a number to lose ty.13 body a his section. appel- this, say, they establishes All intentionally emotional lant inflicted complications the two between This raised Kidd, such as she suffered on Ms. distress understanding was original as divisions But this conclusion a result. distress as being implemented. not contrary law on intentional clearly scenes majority relates emotional The as established distress infliction of emotional these during meetings to unravel Carter decisions, explained. now be as will our and sets problems on Ms. Kidd’s transfer majority in this ease that the mystery It is a by Mr. Carter of ill-will forth manifestations analytical discussion an carefully avoids Kidd, filed the sexual Ms. who had toward charge in order to dem- on this our decisions him.12 To complaint against harassment opinion here accords their onstrate that the “collusion” between demonstrate must There has created. the law this court by Carter and the “retaliation” and Carter I, See, Thompson e.g., a reason. be Kidd, majority relates King against starters. meeting Carter wanted Cheers that at stating- circumstances obtain memo III. transfer, course, at

her transfer. This a matter get to the as In order to Cheers, as he had testified. request of present must charge, plaintiff on this law meeting, said there was At a later Cheers outrageous is so extreme conduct that saying sign Kidd to a memo request for Ms. beyond possible bounds “goes all that it transferred to “agreed to or wanted be atrocious and regarded as decency [is] fact, division,” being the actual [Cheers’] society.” in a civilized utterly intolerable Yet, majority had so testified. Cheers 1070, 1076 Covington, 415 A.2d v. Waldon es- strenuously that these incidents argues (D.C.1980), quoting Restatement (Second) conspiracy theory. tablish its (1946).14 d § 47 comment TORTS Cheers, witness, who was all this Ms. majority judges contend that beginning to testify witness able among superiors, one establishes “collusion” circumstances regarding the King, and end supervisor, appellant including her again to back and later to his section she had transfer against her because a “retaliation” any division, testify to occur- King’s did against Mr. Carter filed a conduct outrageous amounting to rences harassment. When charging sexual OHR as in- reasonably construed be could in the which facts established unassailable these Ms. harm on tending to inflict emotional legally way we are in the trial are reviewed Covington, supra, See, e.g., v. Waldon them, of Kidd. the conclusion required to examine inspiring and majority with an favors us charges returned 14.The majority Ms. Kidd 12. The sex- relating VII and scholarly exposition to Title out of her to find herself "locked from leave however, sentence, Yet, legal it be- issues there are no In the next office.” ual harassment. her transfer appeal. that while on leave evident comes in this harassment Title VII or sexual effected. had become emotional infliction of charge intentional is distress. employees government nec- is doubtful It they point are essarily grade at the receive raises legally eligible for it. 688 Thompson

and District v. infliction distress for Columbia tentional of emotional I), (Thompson supra. proce- prior disciplinary dismissal without dures, confidentiality, breach of “an unbro- grievances Her initial written amounted to string attempts ken of humiliations and complaints of office friction with the secre- resign simply ... do not to[] (a Parks), tary, acting supervisor Mr. and force Plaintiff satisfy liability”) (emphasis the standard for essence, supervisor, her In Mr. Carter. added); Minchew, v. 504 Shewmaker grievances appellants these and (D.D.C.1980) 156, 159, (supervi- F.Supp. 163 complaints poor Lambert amounted to ad- alleged wrongful reassignment of em- sor’s supervisor, personality ministration her ployee employee’s acting supervi- which amounted to termi- conflicts with her sometime sor, grudge against secretary position, supervisor’s and a the office nation his re- from back-talking complaints for her. Office such peated attacks on his character to other expe- those she made not media, are unknown to agencies super- as well as to the news rienced executives. hearing visor’s efforts to block a after his profes- termination because “harassment in a accept majority’s Even if one were to context, including sional exclusion busi- theory concerning delay beyond the date of meetings spreading and of unfavora- ness it, legal eligibility reaching her her rumors, type of conduct that ble 11, ap- the evidence still does not Grade action”), gives aff'd, law, rise to such a cause of proach, as a matter an intentional (D.C.Cir. U.S.App.D.C. 215 666 F.2d 616 infliction of emotional harm on Ms. Kidd most, 1981); Co., Country appellant King. promotion Hogan Forsyth At the v. Club delayed. 483, 493-94, to Grade 11 was N.C.App. 79 340 S.E.2d (1986) (cited I) Thompson (super 122-23 I, Thompson supra, In 570 A.2d at we employee’s supervi visor’s interference with defendant-supervisor’s said that a conduct of subordinates, screaming shouting sion of and criticizing plaintiff-employee twenty in over her, names, calling throwing at menus at memoranda, approving employee’s leave and firing and her was not extreme and changing then status absence without conduct). outrageous generally Bradley See leave, refusing employee pro- consider N.Y., 657 v. Consolidated Edison Co. grade allowing motion to next level or not (S.D.N.Y.1987) (continual nega- F.Supp. 197 computer to take a test that em- evaluations, harassment, ployee requested, isolating employee disparaging tive employees, employee’s outrageous from other ultimate statements was not extreme and discharge, pushing employee against conduct); Express Corp., v. Price Federal finger, coupled (D.Colo.1987) pointing wall and (allegations F.Supp. 660 1388 threatening “sufficiently egre- words was not employer subjected employee to harass- gious applicable under in- standard” for ment, . accept coerced him to a lateral trans- tentional infliction of emotional distress. fer, constructively discharged him in re- participating employ- taliation for in another Covington, supra, v. 415 A.2d Waldon suit, ee’s race discrimination failed to state a 1077-78, supervisor at we held that a who distress); claim for infliction of emotional give professor refused to who em- Co., Byrnes Exterminating v. 562 Orkin university ployed keys at the to a labora- (E.D.La.1983) (five F.Supp. 892 incidents of tory, give adequate failed to him notice of cursing employee, taking at over his sales departmental meetings, threatened to initi- embarrassing presentations, and otherwise competency ate action to determine his “with ” sufficiently presence him in of others not eye terminating employment an his prolonged continuous or to constitute outra- assigned professor out- to teach classes conduct); Thomas, geous v. 569 Wells specialty knowing side of his it would cause (E.D.Pa.1983) F.Supp. (demoting em- difficulty, him did not embarrassment and away ployee taking private office and liability. (Empha- constitute intentional tort added.) ratings, secretary, giving poor performance also v. sis See Schoen Consumers Inc., F.Supp. failing give salary annual increase do Group, United (D.D.C.1986) conduct); (plaintiff-employee’s outrageous claim of in- not constitute Jackson

689 her to (Ala. followed a co-worker Co., employees, that 1310 Baking 507 So.2d v. Colonial restroom, and asked 1987) banged on the door employee (reducing schedule of work doing, president disability he re and respiratory because she was with what her, home to clean exhaust called her at employer to climb a ladder and stared at fused outrageous to constitute and berated report fans to work was insufficient demand conduct); Corp., 400 Mass. Foley v. Polaroid insufficient production, were for low work (no (1987) con 82, outrageous claim); N.E.2d 72 Lewis v. 508 infliction support intentional where, acquitted of employee was Co., after duct 733 302 Or. Beauty Supply Oregon employee, charges by another sexual assault (1987) employer (allegation that P.2d 430 employee’s desk into employer moved the com- harassment respond to sex failed to work, meaningful and hallway, gave him no to state emotional insufficient plaints was him). supervisors not talk would Scarfone, 468 claim); Ponton v. distress denied, (Fla.Dist.Ct.App.), rev. 1009 So.2d the courts have found where Situations (Fla.1985) attempts (employer’s 478 54 in- So.2d employer, harassment an that sexual did employee to have sex advances, to convince female inferior sexual cluding unwelcome conduct). outrageous investigate not constitute assignments, and failure to work outrageous conduct complaints, constitutes attributing all majority opinion, after comparison the actions in are instructive “collusion,” and “retaliation” manner King. Pratt v. appellant See ascribed to finally tells agency, in the higher officials (6th Co., 855 F.2d 1225 Cir. Brown Machine of the case it the heart us what it considers 1988) in required employee dire (employer King. They conclude: against weaves pray church and and financial need to attend Thus, that Kidd suf- jury could find company spite in of fact apologize to official delayed promotion; more than a fered subjected employee’s wife to that official distress emotional was also severe there phone threatening and obscene 18 months of King’s col- same cause: resulting from the calls); Kaferly, Ill.App.3d 204 Pavilon v. pressuring Kidd lusion with Carter (em (1990) 549, 561 N.E.2d 1245 149 Ill.Dec. against Kidd’s own defend help Carter favors, ployer’s requests for dates and sexual complaint. OHR rape plaintiff, kill alleged threats to at 679. Ante parents and plaintiffs unsolicited letters in- sufficient basis for psychotherapist were There, the statement it. This is we have claim); v. Philadel- infliction Field tentional all this case is majority judges on what Co., A.2d Pa.Super. 565 phia Elec. 388 (1) beyond her delayed Kidd Ms. was about. (1989) (where “it Court stated 1184 promotion receiving her eligibility date outrageous more could visualize no conduct (2) dis- severe emotional was also there highly radioactive steam ... than to vent King’s cause: resulting from the same tress another”); Engrum v. Boise Southern upon pressuring Carter collusion with Cir.1988) Co., (La.App. 362 3d 527 So.2d own OHR help defend Carter alleged that claim he (plaintiff stated where Fundamentally, this is where complaint. him, repeatedly publicly threatened employer on the the dissent differ majority opinion and investiga- adequate fired without he was law. tion, to him in paycheck was issued and that majority not deal with does Strikingly, the arrest); Kaminski led to his manner which I, for Thompson because opinions this court’s Service, 409, 501 120 A.D.2d Parcel v. United recon- opinion cannot be example, and (an (1986) who N.Y.S.2d ciled. kept in a prosecution threatened ascribing majority is there Secondly, the con- signed he three hours until room for because part “collusion” successfully resignation papers fession help “to Car- Edd engaged “pressuring” infliction a claim intentional stated com- own OHR against Edd’s defend ter distress); Aquino but v. Som emotional see get an effort There was Inc., plaint.” Creamery, F.Supp. mer Maid Carter, circum- writing, to aid (E.D.Pa.1987) put in allegations that (employee’s Yet all transfer. relating to her stances than other scrutinized closer her work was jury. own evidence established the transfer was to the But I think it also erred as to her; agreeable appellant King.15 and in fact she had re- (in peatedly requested writing her several disturbing I believe this decision creates grievances) reassigned. that she be precedent workplace, new for the and that it will have wide reverberations. that, decisions, It is evident under our viewing light the evidence most favor- law, ATTACHMENT plaintiff,

able as a matter of decisions, established our this case should APPENDIX TO DISSENT: jury, not have been submitted to the and the doing agree Reproduction barely legible trial court erred in so. I trial court ex- majority Grievance”, clearly May that the trial court erred hibit entitled “Formal dated submitting appellant the case on Lambert Appendix comprised appellant King opinion. of Ms. Kidd’s is attached to this

696 L.R., Respondent, In re a Member of the

Bar of the District Columbia Appeals. Court of

No. 92-BG-1034. Appeals.

District of Columbia Court

Argued March April

Decided

Case Details

Case Name: King v. Kidd

Court Name: District of Columbia Court of Appeals

Date Published: Aug 26, 1993

Citation: 640 A.2d 656

Docket Number: 90-CV-1621, 91-CV-283

Court Abbreviation: D.C.