Doe v. Daversa Partners ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VAUGHN FEIGHAN,
Plaintiff,
v. Civil Action No. 20-03759 (BAH)
RESOURCE SYSTEMS GROUP INC., Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
In this diversity action, plaintiff Vaughn Feighan asserts seven claims against his former
employer, defendant Resource Systems Group Inc. (“RSG”), commonly referred to as Daversa
Partners, which claims arise from the persistent sexual harassment to which plaintiff allegedly was
subjected by his former supervisor, defendant’s ex-partner Bruce Brown, including claimed
violations of the District of Columbia Human Rights Act (“DCHRA”), D.C. Code §2-1401.01 et
seq., the D.C. Wage Payment and Wage Collection Law (“DCWPCL”), D.C. Code 32-1301, et
seq., and common law tort claims alleging vicarious liability for Brown’s alleged batteries and
intentional infliction of emotional distress, and negligence for failure to supervise Brown, see
generally, Amended Complaint (“Am. Compl.”), ECF No. 26. Plaintiff seeks compensatory,
punitive, and exemplary damages, as well as injunctive relief under the DCHRA. Id. at 50.
After nearly a year of discovery, defendant has moved for summary judgment on all claims,
pursuant to Federal Rule of Civil Procedure Rule 56. Def.’s Mot. for Summ. J., at 1 (“Def.’s Mot”),
ECF No. 36. For the reasons set out below, defendant’s motion is granted in part and denied in
part. While plaintiff’s hostile work environment claim under the DCHRA, negligent supervision
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claims, DCWPCL claim, and IIED claims (Counts I, V, VI, VII, and VIII) survive summary
judgment, defendant’s motion is granted as to plaintiff’s battery and DCHRA retaliation claims
(Counts IV and IX). 1
I. BACKGROUND
The factual background and procedural history of this case is summarized below.
A. Factual Background
Defendant, founded by its Chief Executive Officer Paul Daversa in 1991, is a hiring and
recruitment firm with seven offices across the U.S., including an office in Washington, D.C. Def.’s
SMF ¶ 1, ECF No. 36-2. For over twenty years, from 1999 until his resignation in December 2020,
Bruce Brown was a partner at defendant, and during plaintiff’s employment there, was the
Managing Partner of the company’s D.C. office, with responsibility for the day-to-day operations
of that office and serving as one of the company’s “the highest-level managers.” Id. ¶¶ 3-4, 13.
Brown and Paul Daversa have been close friends for over twenty years, and Brown was one of the
company’s highest billing partners when he was with the firm. Pl.’s SMF ¶ 7, ECF No. 39-1.
From July 2019 to July 2020, Daversa had between 120 to 150 employees. See Def.’s SMF ¶ 2;
Pl.’s SMF ¶ 2.
1. Plaintiff’s Employment at Defendant
Many of the facts set out in the Amended Complaint regarding plaintiff’s employment at
defendant and his interactions with Brown are not disputed. In April 2019, plaintiff accepted an
offer of employment at defendant while still an undergraduate student, and began his employment
after completing his college degree, at a starting salary of $55,000 per year, which salary increased
1
The portion of the claim, in Count VII, asserting plaintiff’s entitlement to unpaid overtime wages, Am. Compl.
¶¶ 172-73, has been withdrawn, see Pl.’s Mem. In Opp. to Def.’s Mot. Summ. J. at 42 n.16 (“Pl.’s Opp’n”), ECF No.
39, and thus defendant’s motion for summary judgment as to that portion of the claim is denied as moot.
2
in 2020 to about $56,000. See Def’s SMF ¶¶ 14, 17-18; Am. Compl. ¶ 15. Plaintiff is bisexual,
and he believes that some of his coworkers knew he was bisexual, including Brown. See Def.’s
SMF ¶ 16; Pl.’s SMF ¶ 16. Plaintiff’s first supervisor was Reece Breault and, following a
restructuring, Brown became plaintiff’s direct and only supervisor. Def.’s SMF ¶ 18; Pl.’s SMF
¶ 18. 2 As a result of this restructuring, plaintiff reported to Brown and was subject to Brown’s
direction. Def.’s SMF ¶ 18; Pl.’s SMF ¶ 18.
Plaintiff was hired as a recruiter at defendant, and all parties agree he performed well in
that role. Defendant’s recruiters “handle all aspects of the search process for clients[,]” including
conferring with clients to evaluate the skills and qualifications for the positions sought, recruiting
and interviewing prospective candidates, deciding which candidates to refer to the client, and
“[h]andling all aspects of searches independently with little or no supervision.” Def.’s SMF ¶ 22;
Pl.’s SMF ¶ 22. Recruiters are also involved in business development, such as identifying and
pitching prospective clients using their reasoned judgment and skill. Def.’s SMF ¶ 23; Pl.’s SMF
¶ 23. During his relatively short tenure as defendant’s employee, plaintiff successfully closed nine
executive placements, including for Vice President of Business Development for Alation; a Chief
Operating Officer for Big Health; a Vice President for Marketing for BirdEye; a Chief Commercial
Officer for Constellation; a Vice President of Sales for PeerNova; a Vice President of Sales for
RedMarlin; a Director of Customer of Success for RedMarlin; a Vice President of Sales for Testim;
and a Chief Executive Officer for Zycada, Pl.’s Opp’n, Ex. 2, Pl.’s Opp’n, Obj. & Resp. Def.’s
First Set of Interrog. at 26–27, ECF No. 39-3; accord Def.’s SMF ¶¶ 25, 29; Pl.’s SMF ¶¶ 25, 29.
2
The parties dispute the reason for reassigning plaintiff’s supervision to Brown. Defendant’s position is that
the reassignment was due to plaintiff having friction with Breault, Def.’s SMF ¶ 18; Brown Dep. at 64:10–65:18,
while plaintiff posits that the reassignment occurred so Brown “could have direct, daily access to [plaintiff] to create
a hostile work environment for [him] based on sexual orientation[,]” citing examples Brown’s untoward, crude, and
harassing behavior towards plaintiff, Pl.’s SMF ¶ 18.
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Brown repeatedly praised plaintiff for successfully closing nine executive placements, and internal
billing records show that defendant received payment from each of these clients for each of these
placements. Pl.’s SMF ¶ 17.
2. Brown’s Sexual Harassment of Plaintiff
From the time he began interviewing for a position with defendant, plaintiff claims that
Brown acted inappropriately towards plaintiff. Am. Compl. ¶ 20. For example, during the final
interview, Brown made inappropriate comments, asking plaintiff if he was a “crier,” and stating
that “[the company] could not waste their time on people who cried or ‘could not take the culture.’”
Id. During the interview, Brown asked him whether he enjoyed consuming marijuana. Id. These
initial comments were merely a harbinger of Brown’s inappropriate and unprofessional demeanor
that continued throughout plaintiff’s employment with the company.
Brown indisputably and persistently made remarks to plaintiff, in the form of text messages
and verbal statements, and texted photographs to him, that were sexually-related or otherwise
inappropriate. For example, Brown shared explicit details about his life with plaintiff, including
fantasies of violent and anal sex, bragging to plaintiff about his sexual adventures, such as
“threesomes” with others, and called plaintiff various names with derogatory sexual innuendo and
commentary on his sexual orientation in front of coworkers, including “Queen,” “Drama Queen,”
Feminine Bitch,” and “Fruit Loops.” Pl.’s SMF ¶ 18; see also Def.’s SMF ¶ 35 (recounting that
Brown, inter alia, told plaintiff that plaintiff needed therapy for his “mommy issues” and “coming
out as gay and being gay;” brought up plaintiff’s sexuality to an entire table of coworkers at a
dinner on December 2, 2019; asked plaintiff intimate questions about his boyfriend, including
whether he was the “top” in the relationship or the “bottom,” referring to sexual positions;
commented on plaintiff’s shirtless pictures of himself on his social media account; and sent
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plaintiff unsolicited shirtless videos and pictures of himself). In one instance, Brown sent plaintiff
an image of Paul Daversa and Brown at a company event in Jackson Hole, Wyoming, which
plaintiff maintains shows Daversa with his head faced closely on the crotch of Brown with both
men fully clothed in ski gear. Pl.’s SMF ¶ 7 (“Brown-Daversa Photo”). Brown sent the photo
with the message “Exploration amongst friends; Screw Integrity!!!![,]” and went on to tell plaintiff,
“We are taking it to another level . . . after hanging with you last week in the bay nothing is off
limits with you!” Id. 3
Throughout plaintiff’s employment at RSG, Brown undisputedly texted plaintiff
inappropriate messages, telling him that he liked to “fuck” with him, calling him a “fucker” or a
“bitch,” and making other insulting comments or jokes towards plaintiff, some targeting plaintiff’s
sexual orientation. Pl.’s SMF ¶ 18. Examples include the following messages sent from Brown
to plaintiff:
• “I intentionally like to fuck with you!!!!” (November 22, 2019).
• “I fucking you!!!” (November 26, 2019).
• “Grow some balls and make the call . . . you work for me now Bitch!!” (December
19, 2019).
• “I’ll make a decision by 10 to fuck with you!!!” (January 8, 2020).
• “Don’t let Ryan slap you around Unless that’s [what] you’re into!!” (January 13, 2020)
• “Don’t let me beg fucker . . . I just want to hang with you!! (February 22, 2020).
• You little fucker . . . You should be paying me for the amazing experience I’m giving
you!!! You little Barry bitch!!! . . . (February 23, 2020).
• “Fuck you!!!! Only incentive for you is getting slapped!” (February 24, 2020).
• “You’re fucked up! Sick/twisted . . . but I love it[.]” (March 16, 2020).
• “Grow some balls and close him, if not you and Tom can hook up and start a business
together[.]” (March 19, 2020).
• “Fuck you!! If u were here I would punch you in the face!!! I’m going to break you
down[.]” (March 23, 2020).
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As to this photograph, defendant explains that Paul Daversa had “an awkward collision while skiing” where
his head landed in Brown’s lap, and, later that day, Paul Daversa and Brown merely “reenacted the manner in which
[ ] Daversa’s head landed in [ ] Brown’s lap” and were “not simulating a sex act.” Def.’s Suppl. SMF ¶ 79, ECF No.
44-1. As context, defendant further explains that this photograph was taken prior to “a strategic planning leadership
meeting” attended by “RSG’s partners,” with “two or three other partners” present when the reenactment occurred,
and all “laughed” at the reenactment, while “one of [the partners] took a photo of it.” Id.5
• “Trust me, the minute you fall from grace I’ll have your Chelsea boots ready to step on
your neck!!!” (March 23, 2020).
• “Fuck you, don’t expose me[.]” (April 6, 2020).
• “[Y]ou are one scary, selfish power hungry fucking BITCH.[]” (April 7, 2020).
• “Grab a pair of balls[.]” (June 2, 2020).
Id. (quotation marks and citations omitted). Brown, in deposition testimony, acknowledged that
his “style perhaps wasn’t the best” and “the way we communicated was very aggressive,” Pl.’s
Mot., Ex. 1, Sept. 7, 2021, Dep. Tr. of Bruce Brown at 112:5-11 (“Brown Dep.”), ECF No. 39-2,
and, by way of explanation for his conduct towards plaintiff, stated that: “We drove each other.
He never pushed back. And he gave me back what I gave him and vice versa. . . . [I]n our
relationship and our 12 months together[,] it was always very much a drive, push each other, push
each other’s buttons, use whatever terms necessary to get the job done.” Id. at 112:11-13, 113:16-
20.
Defendant highlights, and plaintiff does not dispute, that plaintiff also sent many
inappropriate messages to Brown. See Def.’s SMF ¶ 36 (“Plaintiff made many inappropriate
remarks to Brown as well. For example, Plaintiff called Brown a ‘bitch’ 32 times, and he also
called Brown: ‘You little fucker,’ ‘You sick fuck,’ ‘twisted MF’ and ‘Drama Queen.’ He also said
‘fuck’ many times, including: ‘Shut the fuck up’ and ‘FUCK YOU’ to Brown, and he once told
Brown that he was greedy and wanted to roll in ‘money like a dirty little pig’ and then said that
‘Piggy is getting excited.’”). Plaintiff has explained that, although Brown’s “inappropriate and
vulgar comments” made him “extremely uncomfortable,” he sent messages with similar content
to Brown “since this was [his] first job out of college, and Mr. Brown was [his] supervisor as well
as the longest standing Partner of Daversa, [so he] felt [he] had no choice other than comply, or
else risk angering Mr. Brown and jeopardizing [his] job.” Pl’s. SMF ¶ 36 (quotation marks
omitted); see also id. (observing that plaintiff testified that “Brown repeatedly threatened to
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destroy [his] career if [he] reported [Brown’s] conduct, remarking that [Brown] would leave [him]
‘on the side of the road and focus on someone else’”) (quotation marks omitted).
As plaintiff avers, and as defendant does not dispute, Brown’s conduct was not limited to
verbal statements and text messages but also included physical sexual advances. For example, in
November of 2019, Brown made a sexual advance asking plaintiff at a dinner if plaintiff “was
attracted to him or if [plaintiff] thought [he] could love him,” and “whether [plaintiff] wanted to
invite him back to [plaintiff’s] apartment after the dinner.” Def.’s SMF ¶ 35. Brown and plaintiff
also shared the same hotel room on at least two work-related trips, though they never slept in the
same bed on those trips. Id. ¶ 34. Plaintiff asserts that Brown insisted that he and plaintiff share
the same hotel room on these trips, and Brown reserved a king bed for the two to share during
these encounters. Pl.’s SMF ¶ 34. When plaintiff asked Brown why he could not have his own
room, Brown “responded the trip was reward enough and if [plaintiff] wanted his own room he
would have to pay for it himself.” Id. Plaintiff did not sleep on the same bed with Brown; on one
occasion, plaintiff slept on the floor and, on the other, he slept a cot on the other side of the room.
Id.Plaintiff alleges that Brown battered and sexually assaulted him on three occasions—
incidents that defendant does not dispute. The first incident occurred on November 14, 2019,
approximately five months into plaintiff’s employment with defendant, after Brown and plaintiff
had a business-related dinner at a restaurant in Washington, D.C. Def.’s SMF ¶ 35; Brown Dep.
at 87:13–87:22 (Brown describing the purpose of the meeting “to give [plaintiff] more feedback,
development”); id. at 88:19-89:7 (Brown testifying that “We talked about how well he was actually
doing in terms of the projects he was supporting me on” and what “he need[ed] to work on to really
stay ahead of his pack, in terms of his class. We talked about my experiences when I first started
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and the things I did to push myself to be better. So [I] gave him some war stories of my past.”).
Brown paid for the dinner as a business expense to the company. Id. at 90:20-91:5.
The parties do not dispute that, after the dinner meeting, as the two walked to Brown’s car,
Brown tickled plaintiff, grabbed his groin area outside his pants, and commented about the size of
plaintiff’s penis. Def’s SMF ¶ 33(a). After driving plaintiff home and parking in front of plaintiff’s
apartment building, the parties also do not dispute that Brown held plaintiff down and attempted
to reach his hand into plaintiff’s pants. Id. The next morning, Brown allegedly called plaintiff
and said, “I apologize. I crossed a line last night but if you want to be successful . . . capitalize on
our relationships and do whatever it takes. Let’s keep this our secret.” Pl.’s Opp’n, Ex. 34, Pl.’s
Objs. & Resps. to Def. Brown’s First Set of Interrog. at 32–33 (“Pl.’s Exhibit 34”), ECF No. 39-
27; accord Pl.’s Opp’n, Ex. 20, Aug. 18, 2021, Dep. Tr. of Vaughn Feighan at 182:12-22 (“Pl.’s
Dep.”), ECF No. 39-14.
Brown allegedly physically touched plaintiff a second time, on December 12, 2019, in
Fairfield, Connecticut, during a company trip to a hotel to celebrate the business success Brown’s
team had in 2019. Def.’s SMF ¶ 33(b). The parties do not dispute that while plaintiff was sitting
in a sauna by himself, Brown came in and sat next to him, and, after plaintiff moved away, Brown
moved closer and put his hand on plaintiff’s thigh and moved up his leg. Def.’s SMF ¶ 33(b); Pl.’s
Ex. 34 at 33–34. As plaintiff got up to leave, Brown yanked his towel down, exposing plaintiff’s
buttocks as he left the spa. Def.’s SMF ¶ 33(b); Pl.’s Ex. 34 at 33–34. When plaintiff began to
cry as he left the room, plaintiff alleges that Brown proceeded to laugh. Pl.’s Ex. 34 at 34.
Brown’s third incident of physically touching plaintiff allegedly occurred on February 7,
2020, during a company trip to Jamaica to reward Brown’s team for hitting the $10 million mark
in sales during the year. Def.’s SMF ¶ 33(c). The parties do not dispute that, while in the lobby
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of the lodging where the team stayed, Brown pressed up against plaintiff and grabbed plaintiff’s
buttocks with both hands. Def.’s SMF ¶ 33(c); Pl.’s Dep. at 272:3-20. Plaintiff told Brown never
to do that again and even threatened to inform Paul Daversa, but plaintiff says—and defendant
does not dispute—that Brown responded, “I’m the boss. You’re my bitch. I do what I want. . . .
Paul is my best friend[;] he’s not going to do anything.” Pl.’s Dep. at 272:6–273:8. 4
3. Defendant’s Relevant Policies and Handling of Reports About Brown’s
Misconduct Toward Plaintiff
At the time of plaintiff’s employment, defendant’s 26-page employee handbook outlined
company policies prohibiting and for remediating instances of harassment and discrimination in
two pages. Pl.’s Opp’n, Ex. 22 (“Handbook”) at 14–16, ECF No. 39-15. The Handbook states
that defendant “is committed to providing a work environment free of sexual or any form of
unlawful harassment or discrimination [,]” and that “[s]uch conduct by or towards any employee,
contract worker, . . . or anyone else who does business with the [c]ompany will not be tolerated[,]”
cautioning that “[a]ny employee or contract worker who violates this policy will be subject to
disciplinary action, up to and including termination of his or her employment or engagement.” Id.
at 14. “With respect to sexual harassment, [RSG] prohibits the following: “[u]nwelcome sexual
advances; requests for sexual favors; and all other verbal or physical conduct of a sexual or
otherwise offensive nature . . . .” Id. The Handbook lists as prohibited various types of conduct,
including touching, grabbing, groping, kissing, lewd, off-color, sexually or racially oriented
comments or jokes, foul or obscene language, suggestive or sexually explicit photographs or
4
Plaintiff contemporaneously discussed Brown’s harassment of him with his father, Robert Feighan. Def.’s
SMF ¶ 46. On December 3, 2019, plaintiff texted his father, regarding the harassment, that “I’m going to let it happen
until I have enough material,” to which his father replied, “I will help you.” Id. ¶ 47. Plaintiff replied, “And with
[Daversa], I am going to play this very smart so we have to always be aligned so nothing gets out of control. You are
the only one I am talking to about this.” Id. The two then discussed purchasing recording devices so that plaintiff
could record his interactions with Brown. Id.; see also ¶¶ 49-51 (discussing plaintiff’s efforts to procure recording
devices).
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cartoons, sexually oriented or explicit remarks, questions about one’s sex life or experiences, and
“[a]ny other related types of conduct or behavior deemed inappropriate by” defendant. Id. at 14–
15. Employees were instructed that they “have a duty to report any conduct which they believe
violates this policy[,]” and defendant “will conduct an investigation and, if improper conduct is
found, take appropriate corrective action.” Id. at 15. Defendant’s complaint procedure consisted
of a single sentence in the Handbook: “Employees . . . who feel that they have been harassed . . .
should immediately report such conduct to their supervisor, to the CEO or any other member of
management.” Id.Defendant had no human resources department or full-time human resources [“HR”]
professional, at least when plaintiff worked at the company, Pl.’s SMF ¶ 5, although some
employees worked on HR-related matters, Def.’s SMF ¶ 5. The parties agree that Maryanne
Martire, a company partner who had been with the company since 1996, oversaw HR matters, id.,but she had no specialized education, training, expertise or background in human resources or
handling sexual harassment cases, Pl.’s SMF ¶ 5. Martire was involved in resolving two instances
of sexual harassment and misconduct (neither involving plaintiff), Def.’s SMF ¶¶ 12-13, though
she admitted, in her deposition, that she investigated just one case of sexual harassment and
admitted to having no experience in investigating cases involving other forms of discrimination
including sexual orientation discrimination, Pl.’s SMF ¶ 5 (citing Pl.’s Opp’n, Ex. 23, Dep. Tr. of
Maryanne Martire at 81:13-82:3, ECF No. 39-17). Defendant says its partners Martire, Laura
Kinder, and Paul Daversa formed an internal “grievance committee,” which was charged with
investigating and responding to employee grievances, including complaints of discrimination and
harassment, Def.’s SMF ¶ 6 (citing Daversa Decl. ¶ 3), but plaintiff disputes the existence of this
committee during his employment, citing the fact that the Handbook does not mention any such
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“grievance committee,” nor has defendant produced any evidence that such a committee existed
or was made known to its employees during that period, see Pl.’s SMF ¶ 6.
On September 18, 2019, defendant held a training session on harassment for employees in
several offices, including the Washington, D.C. office, which training was created and presented
by the company’s outside counsel. Def.’s SMF ¶ 9. Plaintiff and Brown attended the training, at
which both had the opportunity to ask questions, id. ¶¶ 10-11, though Brown, by his own admission,
left the session early, Pl.’s SMF ¶ 9. The training made clear that “acting inappropriately” with an
employee in the workplace could constitute harassment. Id. ¶ 13. This training session lasted one
hour and was the only training that Brown could recall taking place during his previous twenty
years of employment at the company. Id. ¶ 9. The training did not provide instructions on how to
conduct a sexual harassment investigation or spot instances of harassment in the workplace. Id.
¶ 11. According to plaintiff, Brown’s reaction to the training was to joke about it. Id. (citing Pl.’s
Opp’n, Ex. 27, Decl. of Vaughn Feighan, May 2, 2022 (“Pl.’s Decl.”) ¶ 20 (“After Mr. Brown
underwent sexual harassment training in the fall of 2019, he joked about the class and implemented
the term ‘flag’ which he shouted preemptively whenever he was about to make an inappropriate
comment. After completing the training, Mr. Brown continued to make inappropriate and
harassing comments, but believed if he preceded his comment by announcing ‘flag’ that his
behavior was acceptable.”), ECF No. 39-21).
The parties dispute the extent to which defendant, as a company, was notified of Brown’s
inappropriate behavior towards plaintiff. Plaintiff repeatedly told Brown, who was managing
partner of defendant’s D.C. office, to stop his behavior, Pl.’s SMF ¶ 7 (citing, e.g., Pl.’s Dep. at
184:14-185:3 (plaintiff stating that he was “very clear” with Brown telling him “many, many times”
to stop the harassment); id. at 184:1-4 (plaintiff stating he told Brown “multiple times” to stop his
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conduct); id. at 257:3-6 (similar)), but neither plaintiff nor Brown ever notified Paul Daversa,
Martire, or anyone else on defendant’s management team about plaintiff’s complaints, see Def.’s
SMF ¶ 64. Paul Daversa acknowledged in his deposition, however, that plaintiff complied with
the terms of the company’s complaint procedure by notifying his supervisor—Brown himself.
Pl.’s SMF ¶ 7 (quoting Pl.’s Opp’n, Ex. 22, Sept. 14, 2021, Dep. Tr. of Paul Daversa at 118:1-5
(“Daversa Dep.”), ECF No. 39-16) (Question: “Is it your understanding of the policy that if Mr.
Feighan were to report sexual harassment to his supervisor, Mr. Brown, that he would be
complying with the terms of the policy?; Paul Daversa: Yes.”).
Even though, during his employment, plaintiff never reported Brown’s misconduct to other
members of management other than to complain directly to Brown, in May 2020, a departing
employee, Casey Marx, reported to Martire her observations of Brown’s treatment of plaintiff in
a seven-page, single-spaced email, stating, in part:
The way I’ve seen [Brown] treat [plaintiff] is not only unacceptable for a personal
relationship, but it is utterly inappropriate for a working relationship. The entire
leadership has commented how inappropriate it is. This makes everyone
uncomfortable when [Brown] does this. [Plaintiff] is only one example.
Pl.’s SMF ¶ 13; see also Def.’s SMF ¶ 44. Marx’s email provided other positive and negative
feedback regarding her employment with defendant, including regarding compensation, work
hours, leadership and Brown’s management of the office. Def.’s SMF ¶ 44. The specifics that
Marx offered about Brown’s behavior to plaintiff was limited to the following: “(i) Brown ‘call[ed]
out’ plaintiff during team sessions and ‘air[ed] out his grievances to the entire office;’ (ii) Brown
disclosed matters involving Ms. Marx’s personal life to [p]laintiff and was ‘prying’ for information
about Ms. Marx, and (iii) Brown once ‘screamed’ at [p]laintiff and Ms. Marx together during a
Zoom call and wrongly blamed them for ‘something that didn’t even happen.’” Id. (quoting Def.’
Mot., Ex. 28, Email from Casey Mark to Jonathan Krode, copying Maryanne Martire (May 19,
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2020) (“Marx Email”), ECF No. 36-31). Marx also mentioned that Brown acted “extremely
inappropriate[ly] and crosse[d] all professional boundaries” by “calling [employees]—
intoxicated—and spend[ing] 20/30 minutes ‘giving [them] feedback.’” Id. at 5. Marx’s email did
not expressly describe Brown’s interactions with plaintiff as sexual harassment.
Martire forwarded Marx’s email to Paul Daversa and Brown, who both acknowledged they
received it. Pl.’s SMF ¶ 13. Brown, after reviewing Marx’s email, stated that he took “full
responsibility” for his conduct and that he needed to do “[a] lot of work[.]” Id. (emphasis omitted).
In response to this report, Paul Daversa made no further inquiry of Brown, Marx, or any other
employees in the D.C. or other offices, nor did he direct Martire or anyone else to investigate the
report, or discipline Brown. Id.Plaintiff told two co-workers about Brown’s misconduct. Specifically, plaintiff told co-
workers Kimberly Tuttle and Marx about the first incident in which Brown assaulted him; both
Tuttle and Marx were then in their first year working at defendant and neither held management
positions at that time. Def.’s SMF ¶¶ 41-42. Tuttle did not tell anyone at the company about
plaintiff’s comments, id. ¶ 43, and Marx only reported Brown’s general harassment through her
email to Martire on her departure from the company. See Pl.’s SMF ¶¶ 43-44.
4. Defendant’s Bonus Policy and Brown’s Promises to Plaintiff
As relevant here, defendant’s Business Development Bonus Plan (“BD Bonus Plan”)
allows employees the opportunity to earn “business development bonuses” (“BD bonuses”),
amounting to 10 percent of the revenue generated from business developed within the terms of the
program. Def’s SMF ¶ 27 (citing Def.’s Mot, Ex. 11, Declaration of Paul Daversa ¶ 6 (“Daversa
Decl.”), ECF No. 36-14). Eligibility for a BD bonus requires an employee to “source” the client,
meaning to bring the business client to the company, as “indicated by whether the employee signed
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and sent the initial engagement letter to the client.” Id. (citing Daversa Decl. ¶ 6). “Once a client
is retained, the earning of a BD bonus is further conditioned on the successful placement of a
candidate with the client, payment in full by the client to RSG, and the expiration of any guarantee
period set forth in the client retention without the placed candidate having left the client’s employ
for a reason [that] would disqualify RSG from retaining the fee.” Id. ¶ 28 (citing Daversa Decl.
¶ 6). Defendant contends that these bonuses are paid annually, such that if a client pays for a
search in one calendar year, the employee entitled to the BD bonus is paid the following year and,
accordingly, must be employed at the time the bonus is paid in order to receive it. Id. (citing
Daversa Decl. ¶ 6). Defendant’s first-year recruiters normally do not earn BD bonuses because
the company recruits for high-ranking executive and board-level positions for technology
companies, and junior-level employees usually do not form those types of client relationships. Id.(citing Daversa Decl. ¶ 6).
Plaintiff disputes defendant’s characterization of the BD Bonus Plan. According to
plaintiff, in practice, Brown made all decisions regarding performance-based bonuses in the D.C.
office, and those bonuses were paid from the revenue generated from Brown’s profit and loss
accounts. Pl.’s SMF ¶ 17 (citing, e.g., Brown Dep. at 157:13–158:17; id. at 101:11-20 (Brown
confirming “I rewarded [plaintiff.]”); id. at 162:12-163:5 (Brown stating, “So based on the revenue
of [a] particular search, I would determine how much of the fee [bonus] would go to someone”);
id. at 163:6-12 (Brown stating, “I determined based on [plaintiff’s] work how much of that, given
he led the search, he would get like a spot bonus of that search”); id. at 168:19-169:3 (Brown
stating, “What I do recall is that I would find a way to pay him [plaintiff] [a bonus] now and half
at the end of the year . . .”); Pl.’s Opp’n, Ex. 13 (Sealed), Email from Bruce Brown to Plaintiff
(Apr. 17, 2020) (“You would lead and I will make sure u get $$$ that I would pay you directly
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from my p&l…”), ECF No. 40-9; Pl.’s Opp’n, Ex. 14, Emails Exchanged between Plaintiff and
Bruce Brown (May 18, 2020), ECF No. 39-9 ([Plaintiff]: “I saw Paul’s workplace post about
paying out BD. Like we discussed in SF, I know I am not eligible for the full amount . . . but will
I get the $3000 that we agreed upon during that time?”; [Brown]: “Yes . . . but will be splitting in
1/2 . . . 50% now and 50% later.”; [Plaintiff]: “Okay wonderful. I totally agree with that. Just let
me know when I should look for it.”); see also Pl.’s SMF ¶¶ 27-29. In short, plaintiff asserts that
performance-related bonuses were not confined to the stringent conditions outlined in the BD
Bonus Plan.
Based on promises made by Brown, plaintiff believes he is entitled to over $60,000 in
bonus payments in connection with the nine executive placements he secured for defendant. Pl.’s
SMF ¶ 17 (“Alation ($10,000) (‘This $10,000 bonus was promised to me’ by Mr. Brown); Big
Health ($2,000) (‘Bruce [Brown] once again promised the incentive of $2,000 for closing the
search’); BirdEye ($10,000) (‘I was promised [by Mr. Brown] that I would receive $10,000 upon
the search’s closure’); Constellation ($5,000); PeerNova ($7,500) (‘I was promised [by Mr. Brown]
the entire business development commission from this search’); RedMarlin ($5,000) (‘Bruce
[Brown] promised the $5,000 out of his P&L for the completion of this search’); RedMarlin
($7,500) (‘Bruce [Brown] confirm[ed] that I won this search in an email to the entire firm’); Testim
($7,500) (‘Bruce [Brown] promised a flat payment of $7,500 to me because he was so elated that
the search closed’); and Zycada ($12,500) (‘Bruce [Brown] . . . promised me 20% of the retainer
price given that it was only him and I working on the search and I was responsible for doing all
the work’)” (quoting Pl.’s Opp’n, Ex. 2, Pl.’s Objs. & Resps. to Def. Daversa Partners’ First Set
of Interrogs. at 26–27, ECF No. 39-3)); accord id. ¶ 27-31. In support, plaintiff also cites to a slew
of contemporaneous statements that Brown made, praising plaintiff for winning and closing those
15
placements. Id. ¶ 17 (collecting statements made by Brown praising plaintiff repeatedly for his
executive placements).
Plaintiff did not “source” any of the clients for which he helped secure executive
placements, Def.’s SMF ¶¶ 30, 32 and defendant’s finance department has no record of any request
for a bonus or other monetary award to plaintiff based on his work for Alation, BirdEye,
Constellation, PeerNova, Testim, and Zycada. Def.’s Suppl. SMF ¶ 81 (citing Def.’s Reply, Ex.
39, Supp. Aff. of Amy Dolan Salvatore (“Dolan Salvatore Supp. Aff.”) ¶ 2), ECF No. 44-7. For
example, those records, which defendant does not provide, purportedly reflect that Brown directed
that plaintiff be awarded “business development credit for one search for client Red Marlin,” but
“do not reflect any request for a bonus to Plaintiff for the initial Red Marlin search.” Id. ¶ 82.
5. Plaintiff Resigns and Reports Brown’s Harassment to Paul Daversa
Plaintiff resigned from defendant on June 30, 2020, by notifying Brown verbally by phone
he was resigning, and following up that verbal resignation by written email, stating that July 17,
2020, would be his last day. Def.’s SMF ¶ 54. On July 1, 2020, plaintiff sent a private email to
Brown about his resignation, citing the following reasons for his resignation: (1) plaintiff’s feeling
that junior managers needed further leadership develop, (2) the heavy workload, (3) lack of
consistency in instructions from junior managers, and (4) poor compensation. Id. ¶ 56. On July
2, 2020, plaintiff sent a departing email to his coworkers, citing, as the reasons for his resignation
that: (1) he felt he was undercompensated for the amount of work he performed, (2) the class-wide
bonuses, which he felt did not reward individual performance, and (3) the lack of upward mobility.
Id. ¶ 57. Plaintiff also documented near the time of his resignation that Brown’s refusal to pay the
bonuses promised to him led his resignation. See Pl.’s SMF ¶ 55 (plaintiff texted, near date of his
resignation, another individual that, “[Brown] got shitfaced and told me that I can’t get commission
16
until 2 years. He isn’t going to pay me for all the business I have brought in. I have to officially
leave now.”) (quotation marks omitted) (alteration and emphasis in original)); id. (plaintiff texted
another individual, on June 30, 2020, that “They didn’t pay me . . . They have withheld $65k worth
of commissions that I brought in. That was my tipping point.”) (quotation marks omitted)
(emphasis in original)). After resigning from defendant, plaintiff began working with his father, a
financial advisor with Ameriprise Financial. Def.’s SMF ¶ 62.
After submitting his resignation, plaintiff advised Marx, on July 5, 2020, that he planned
to reveal his allegations against Brown to Paul Daversa, texting her that, “Paul has NO IDEA.
What is coming. . . . ,” “Boom. I am going out with a bang,” “Paul HAS SO MUCH SHIT coming,”
and “this is going to be such a shot I almost feel bad.” Id. ¶ 61. After plaintiff had terminated his
employment with defendant, his counsel alerted Paul Daversa about Brown’s misconduct towards
him. Specifically, on August 25, 2020, plaintiff’s attorney sent a letter to Paul Daversa and
attached a draft complaint, in which plaintiff asserted harassment, tort, and wage claims against
defendant, the same claims that plaintiff raises in the Amended Complaint. Id. ¶ 63. This was the
first time that Paul Daversa says he learned of plaintiff’s claims of sexual harassment. Id. A month
later, in approximately late September 2020, Paul Daversa placed Brown on a leave of absence,
pending review and investigation with counsel of the allegations made by plaintiff. Id. ¶ 65. Then,
nearly four months later, on about December 11, 2020, Paul Daversa called Brown and asked him
to resign, effective immediately, due to plaintiff’s allegations, and Brown resigned from the
company the same day. Id. ¶ 66.
B. Procedural Background
On December 17, 2020, plaintiff initiated the instant lawsuit against defendant and Brown
in the Superior Court for the District of Columbia, Civil Division. Def.’s Notice of Removal ¶ 1
17
(“Notice”), ECF. No. 1. Before service on defendant and Brown was effected, defendant removed
the case to this Court on diversity jurisdiction grounds, Notice ¶ 1, prompting plaintiff to seek
remand on the ground that Brown was a citizen of Washington, D.C. and that plaintiff had yet to
serve defendant, so it was improper for the case to be removed to the District Court for the District
of Columbia. Pl.’s Mot. Remand at 1, 7, 22, ECF No. 5. This issue of “snap removal,” by
removing a case to district court before plaintiff has effected service on defendant, was determined
to be permissible, under 28 U.S.C. §1441(b)(2), because that statute did not prohibit removal
before defendant had been served with the complaint, even when one or more defendant is a
resident of the state in which the District Court sits. Memorandum Opinion and Order at 6, ECF
No. 9. As a result, plaintiff’s Motion to Remand was denied, and the case remained in this Court. 5
During discovery, plaintiff identified his father, Robert Feighan, in his interrogatory
answers, as having knowledge of: (i) Brown’s harassment of plaintiff through their conversations
as father and son and from viewing Brown’s text messages to plaintiff, (ii) the emotional, financial
and psychological harm plaintiff suffered, and (iii) the father’s conversation with Brown about
plaintiff’s job performance. Def.’s Reply, Corrected Ex. 24, Pl.’s Objs. & Resps. To Def. RSG’s
First Set of Interrogs. at 5, ECF No. 44-5. Defendant issued a subpoena to the father’s business,
Def.’s SMF ¶ 68; Pl.’s SMF ¶ 68, where plaintiff was employed, which subpoena plaintiff’s father
sought to quash in the U.S. District Court for the District of Connecticut, as overbroad, Def.’s SMF
¶ 70; Pl.’s SMF ¶ 70 (“Not in dispute.”). During ensuing discussions between counsel for
plaintiff’s father and for defendant, plaintiff says that defendant’s lawyer “made clear to Robert
Feighan’s attorney, . . . that [defendant] intended to use the discovery process in the instant case
5
Plaintiff subsequently settled his claims against Brown. Pl.’s Not., ECF No. 34; Minute Order (Feb. 8, 2022)
(dismissing “Bruce Brown from this matter, with prejudice”).
18
to develop and prove a case of ‘breach of fiduciary duty’ against [plaintiff’s father],” Pl.’s SMF
¶ 72, even though plaintiff’s father “had no relationship of any kind with [RSG], much less a
fiduciary one,’” and defendant’s lawyer responded, “‘[M]aybe we have the wrong brother,”
referring to plaintiff’s uncle, who had previously worked at defendant and now works with
plaintiff’s father. Id. 6 Ultimately, plaintiff’s father withdrew his motion to quash, appeared for a
deposition on November 9, 2021, and produced an agreed-upon set of records in advance of the
deposition. Def.’s SMF ¶¶ 73-74; Pl.’s SMF ¶¶ 73-74 (“Not in dispute.”).
On October 8, 2021, plaintiff sought leave to file the Amended Complaint to add a new
Count IX, a DCHRA retaliation claim, based on the allegation that the subpoena issued to
plaintiff’s father and defendant’s counsel’s suggestion that defendant would bring a breach of
fiduciary duty claim against Robert Feighan amounted to unlawful retaliation against plaintiff
under the DCHRA. Pl.’s Mot. to file Am. Compl., (“Pl.’s Mot.”) ECF No. 23 at 5-9 (Oct. 27,
2021). Over defendant’s opposition, plaintiff’s motion was granted. See Minute Order (Oct. 27,
2021).
Defendant’s motion for summary judgment, pursuant to Federal Rule of Civil Procedure
Rule 56, is now ripe for resolution.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment only
if there is no genuine issue of material fact and judgment in the movant’s favor is proper as a matter
of law.” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting Ctr. for Auto
6
Defendant’s 401(k) retirement plan was managed by plaintiff’s uncle and his father’s brother—Gregory
Feighan, who is a former employee of defendant. Def.’s SMF ¶ 75; Pl.’s SMF ¶ 75 (not disputing this fact). Paul
Daversa believed that Gregory and Robert Feighan presently worked together, Def.’s SMF ¶ 75, and in fact, Robert
and Gregory Feighan work as financial advisors for Ameriprise, and share the same business address in Valhalla, New
York, with Robert’s Ameriprise webpage listing Gregory as a member of Robert’s “team,” Def.’s SMF ¶ 77; Pl.’s
SMF ¶ 77.
19
Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006)); see also Fed.
R. Civ. P. 56(a). The moving party bears the burden of demonstrating the “absence of a genuine
issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the
nonmoving party must present specific facts supported by materials in the record that would be
admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015)
(noting that, on summary judgment, appropriate inquiry is “whether, on the evidence so viewed,
‘a reasonable jury could return a verdict for the nonmoving party’”) (quoting Liberty Lobby, 477
U.S. at 248).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.
Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 572 U.S. 650,
656 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor,” id. at 651 (quoting Liberty Lobby, 477 U.S. at 255(alteration in original)). Courts must avoid making “credibility determinations or weigh[ing] the
evidence,” since “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150–51 (2000) (quotation marks omitted); see also Burley
v. Nat’l Passenger Rail Corp., 801 F.3d 290, 295–96 (D.C. Cir. 2015). In addition, for a factual
dispute to be “genuine,” the nonmoving party must establish more than “[t]he mere existence of a
scintilla of evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely
on “mere allegations” or conclusory statements, see Equal Rights Ctr. v. Post Props., Inc., 633
20
F.3d 1136, 1141 n.3 (D.C. Cir. 2011). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50, (citations
omitted). Moreover, “a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett,
477 U.S. at 323. In that situation, “[t]he moving party is ‘entitled to a judgment as a matter of law’
because the nonmoving party has failed to make a sufficient showing on an essential element of
her case with respect to which she has the burden of proof.” Id. The Court is only required to
consider the materials explicitly cited by the parties, but may on its own accord consider “other
materials in the record.” Fed. R. Civ. P. 56(c)(3).
“As employers rarely maintain records directly evidencing discrimination, ‘an added
measure of ‘rigor,’ or ‘caution,’ is appropriate in applying this standard to motions for summary
judgment in employment discrimination cases.’” Woodruff v. Peters, 482 F.3d 521, 526-27 (D.C.
Cir. 2007) (quoting Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997), vacated on
other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc)). At the same time, courts need not
accept as true claims made by a non-movant that “rest[] entirely upon a conclusory representation,”
because “accepting such conclusory allegations as true . . . would defeat the central purpose of the
summary judgment device, which is to weed out those cases insufficiently meritorious to warrant
the expense of a jury trial.” Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
III. DISCUSSION
Defendant seeks summary judgment in the company’s favor on all seven claims against it
in the Amended Complaint, but is entitled to such judgment on two counts only. Specifically,
defendant is entitled to summary judgment on Count IV (battery claims) and Count IX (DCHRA
21
retaliation), but the remainder of defendant’s motion is denied for the reasons discussed in detail
below.
A. Counts IV and IX: Defendant Is Entitled to Summary Judgment on Plaintiff’s Battery
and DCHRA Retaliation Claims
As noted, defendant is entitled to summary judgment on Count IV (battery claims) and on
Count IX (DCHRA retaliation), for failing to show any genuine issue of material fact that would
permit a reasonable jury to find in plaintiff’s favor on either claim.
1. Count IV For Battery
In Count IV, plaintiff seeks to hold defendant vicariously liable for Brown’s three batteries
of plaintiff. Defendant argues that plaintiff’s claim for vicarious liability under the doctrine of
respondeat superior fails because Brown’s alleged batteries were not within the scope of his
employment. Def.’s Mot. at 28. Defendant is right.
“Respondeat superior is a doctrine of vicarious liability that imposes liability on employers
for tortious and negligent acts of their employees committed within the scope of their employment.”
Blair v. District of Columbia, 190 A.3d 212, 225 (D.C. 2018) (quotation marks omitted). Conduct
is within an individual’s scope of employment if, inter alia, “it is actuated, at least in part, by a
purpose to serve the master[.]” Schechter, 892 A.2d at 427–28 (D.C. 2006) (quoting Restatement
(2d) of Agency § 228). The seminal D.C. case on the scope of respondeat superior liability is
Boykin v. District of Columbia, 484 A.2d 560, 561 (D.C. 1984), where the D.C. Court of Appeals
held, as a matter of law, that an instructor’s sexual assault of a student at was not within the scope
of the instructor’s employment because the assault “not a direct outgrowth of [the instructor’s]
instructions or job assignment, nor was it an integral part of the school’s activities, interests or
objectives.” Additionally, the court held that the instructor’s “assault was in no degree committed
22
to serve the school’s interest, but . . . [was] done solely for the accomplishment of [his]
independent, malicious, mischievous and selfish purposes.” Id.Plaintiff’s case for respondeat superior liability against defendant for Brown’s batteries
fails for the same reasons set out in Boykin. Just as in Boykin, plaintiff has adduced no facts to
show Brown committed these torts in furtherance of the company’s interests; rather, all three of
Brown’s batteries appear to be for his own personal reasons. Plaintiff emphasizes that Brown’s
batteries occurred adjacent to work-related activities (after a work dinner and during two work
trips), see Pl.’s Opp’n at 33–35, but even the Boykin instructor committed his intentional tort on
school grounds, yet that fact was irrelevant to the court’s respondeat superior analysis. Since no
record evidence shows Brown committed these batteries to further defendant’s interests, they were
not within the scope of his employment, and defendant cannot be held vicariously liable for this
conduct by its former partner.
2. Count IX for Litigation-Related Retaliation under DCHRA
In Count IX of the Amended Complaint, plaintiff claims that defendant retaliated against
him, in violation of the DCHRA, when defense counsel allegedly commented to plaintiff’s father’s
counsel that defendant would pursue a “breach of fiduciary duty” claim against plaintiff’s father
for not reporting plaintiff’s allegations to Paul Daversa. See Am. Compl. ¶¶ 194-95, 197. 7 “Under
the DCHRA, it is an unlawful discriminatory practice to retaliate against any person on account of
having exercised any right granted or protected under the Act.” Rose v. United Gen. Contractors,
285 A.3d 186, 192 (D.C. 2022) (cleaned up) (quoting McFarland v. George Washington Univ.,
7
While denying that defense counsel made that comment, defendant explains that the theory for suing
plaintiff’s faither for breach of fiduciary duty is that Gregory Feighan worked for defendant, Paul Daversa believed
that Gregory Feighan and plaintiff’s father worked together, and plaintiff’s father “[might] have violated a duty to
[defendant] by conspiring with his son to build a case against the company, including by recording conversations,
rather than report the matter to [defendant’s] management.” Def.’s Mot. at 50.
23
935 A.2d 337, 355-56 (D.C. 2007)); see also D.C. Code § 2-1402.61(a). “To establish a prima
facie claim of discriminatory retaliation, a plaintiff must show that ‘(1) he was engaged in a
protected activity. . . , (2) the employer took an adverse personnel action against him, and (3) a
causal connection existed between the two.’” Id. (quoting McFarland, 935 A.2d at 356).
Plaintiff’s strained theory for DCHRA retaliation is that: (1) plaintiff filed this lawsuit
against defendant, which is protected activity, Gross v. Akin, Gump, Strauss, Hauer & Feld, LLP,
599 F. Supp. 2d 23, 33 (D.D.C. 2009); and (2) defendant retaliated against plaintiff for pursuing
protected activity by suggesting, through defense counsel, the possibility of filing a breach of
fiduciary duty claim against his father. Pl.’s Opp’n at 53. Defendant counters, inter alia, that a
counsel’s mere suggestion of a future claim, even if true, would not amount to an actionable
retaliatory action. Def.’s Mot. at 48–49. To be sure, threatening unfounded litigation against the
family member witness of a party in the midst of litigation discovery could be perceived as an
effort to intimidate the witness into silence and cross professional ethical lines, or worse. See D.C.
Rule of Professional Conduct 8.4(d) (“It is professional misconduct for a lawyer to . . . (e)ngage
in conduct that seriously interferes with the administration of justice[.]”). Yet, the record of what
allegedly occurred here falls short of supporting the asserted claim.
Assuming, arguendo, that defendant’s counsel suggested Paul Daversa intended to bring
legal action against plaintiff’s father, that comment would not dissuade a reasonable worker from
filing a lawsuit, given the context. Plaintiff was the party to name his father as a person having
knowledge relevant to the claims asserted and “fronting” his father as a witness, leading inevitably
to defendant quite properly seeking relevant testimony and documents from this witness, who
resisted such discovery in litigation to quash the defendant’s discovery subpoena, which litigation
was ultimately withdrawn. Plaintiff’s father ultimately produced discovery and was deposed, but
24
in the midst of this tangential litigation, defense counsel made what plaintiff concedes was a vague
purported threat of the possible claim against the father, though plaintiff also concedes that defense
counsel also acknowledged at some point that the basis for the possible claim may have been
erroneous. Pl.’s SMF ¶ 72 (alleging that defendant’s counsel remarked, “‘[M]aybe we have the
wrong brother,” referring to plaintiff’s uncle, who had previously worked at defendant and now
works with plaintiff’s father).
The D.C. Circuit has explained that when assessing retaliation claims, “the significance of
any given act of retaliation will often depend upon the particular circumstances[,]” Gaujacq v.
EDF, Inc., 601 F.3d 565, 578 (D.C. Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 69 (2006)), so “a statement that literally appears to be threatening is not necessarily
a materially adverse action[,]” id. at 578. Applying that principle to the facts, the Gaujacq Court
held that the alleged retaliatory statement levied against plaintiff, “[y]our career is dead . . . if you
file the claim,” was not “a materially adverse action” because “a reasonable worker in [the
plaintiff’s] position would not have taken [the] brief, fleeting, and unadorned verbal statement as
an act or threat of retaliation,” especially considering that the company attempted to accommodate
plaintiff’s employment wishes before and after the comment was made. Id.
Under Gaujacq, defense counsel’s comment, even if true, was merely a “brief, fleeting,
and unadorned verbal statement” that cannot support an actionable retaliation claim. See id. The
alleged statement—that defendant would use the discovery process in this case to build a case of
breach of fiduciary duty against plaintiff’s father—is a much flimsier comment than the one made
in Gaujacq, where the plaintiff was told his career would be “dead” if he filed a claim, because
counsel never explicitly stated defendant would file that lawsuit. Even plaintiff’s father
characterized this threat as “vague,” as plaintiff observed when he filed his motion for leave to file
25
an amended complaint. See Pl.’s Mot. at 4 (noting that plaintiff’s father called the threat of a
breach of fiduciary duty lawsuit “vague”). The purported threat was also just as fleeting as in
Gaujacq: plaintiff has not shown that defendant later again threatened legal action against his
father, or that it filed, or even planned to file, any legal or regulatory action against him. See Def.’s
Reply at 29. Given this context, plaintiff has not provided sufficient evidence to demonstrate that
defense counsel’s suggestion amounted to an overt threat. Plaintiff also concedes this point in his
opposition, see Pl.’s Opp’n at 53-55 (never arguing that defendant’s threat was concrete or real),
so Count IX cannot survive summary judgment.
B. Count I: Plaintiff’s DCHRA Discrimination Claim
Plaintiff claims, in Count I, that defendant is liable for a hostile work environment, Am.
Compl. ¶¶ 98, 101; see also Pl.’s Opp’n at 1 (characterizing his claim as solely one for “hostile
work environment”), and, though not contesting that plaintiff suffered from a hostile work
environment during his employment, defendant denies any legal accountability for this
circumstance, see generally Def.’s Mot. at 16–28. 8 Considering Brown’s undisputed interactions
with plaintiff, both verbally and physically inappropriate and abusive, a reasonable jury could
conclude this conduct adversely altered the conditions of plaintiff’s employment. Nonetheless,
defendant asserts that any effort to hold it vicariously liable for Brown’s conduct would be vitiated
8
The DCHRA prohibits employers from, inter alia, “discriminat[ing] against any individual, with respect to
his compensation, terms, conditions, or privileges of employment . . . in any way which would deprive or tend to
deprive any individual of employment opportunities, or otherwise adversely affect his or her status as an employee”
“wholly or partially for a discriminatory reason based upon the actual or perceived . . . sex . . . [or] sexual
orientation . . . of [that employee].” D.C. Code Ann. § 2-1402.11(a). A viable hostile environment claim may be
asserted under the DCHRA by demonstrating “(1) that [plaintiff] is a member of a protected class, (2) that she has
been subjected to unwelcome harassment, (3) that the harassment was based on membership in the protected class,
and (4) that the harassment is severe and pervasive enough to affect a term, condition[,] or privilege of employment.”
Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 888 (D.C. 2003) (cleaned up) (quoting Daka, Inc. v. Breiner, 711
A.2d 86, 92 (D.C. 1998)).
26
by the defendant’s affirmative defense, as articulated in Faragher v. Boca Raton, 524 U.S. 775(1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, (1998). Def.’s Mot. at 18–21.
When an employee seeks to hold his employer vicariously liable for his supervisor’s
harassment, an employer may assert an affirmative defense under the Faragher-Ellerth framework,
at least in Title VII cases, and this affirmative defense is assumed to be available here. 9 In
Faragher and Ellerth, the Supreme Court articulated two categories of harassment claims for
which employers may be held liable: “(1) harassment that ‘culminates in a tangible employment
action,’ for which employers are strictly liable, and (2) harassment that takes place in the absence
of a tangible employment action, to which employers may assert an affirmative defense.” Pa.
State Police v. Suders, 542 U.S. 129, 143 (2004) (quoting Ellerth, 524 U.S. at 765). If a plaintiff
can satisfy the first requirement, the employer is strictly liable, Jones, 429 F.3d at 278 (quoting
Ellerth, 524 U.S. at 761), but if he cannot, the employer may assert the Farragher-Ellerth
affirmative defense, which, if proven true, absolves the employer of vicarious liability for the
hostile work environment suffered by an employee due to the conduct of a supervisor. Ellerth,
524 U.S. at 765; see infra at Section III.B.2 (outlining requirements for the affirmative defense).
Here, the parties dispute whether plaintiff suffered a tangible adverse employment action
and, if not, whether defendant satisfies the requirements for a Faragher-Ellerth affirmative defense.
9
When interpreting the DCHRA, the D.C. Court of Appeals has held that cases construing Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, are persuasive, though not always dispositive. Rose, 285 A.3d at
192; see also Jones v. D.C. Dep’t of Corr., 429 F.3d 276, 278-79 (D.C. Cir. 2005) (analyzing DCHRA and Title VII
claims using the same standards). The Faragher-Ellerth framework has been applied to DCHRA hostile work
environment claims in other decisions reached in this Court but no binding precedent so requires. See, e.g., Craig v.
D.C., 74 F. Supp. 3d 349, 369 (D.D.C. 2014) (applying same legal standards to plaintiff’s Title VII and DCHRA
claims); Byrd v. D.C., 807 F. Supp. 2d 37, 57-58 (D.D.C. 2011) (“Because it is well-established that the DCHRA and
Title VII employment discrimination actions are evaluated under the same legal standard, the following analysis
applies to both claims where implicated.”). Here, the Faragher-Ellerth is assumed to be an available affirmative
defense to a DCHRA hostile work environment claim.
27
These disputes present sufficient genuine issues of material fact to defeat defendant’s motion for
summary judgment on plaintiff’s hostile work environment claim.
1. A Jury Could Reasonably Find that Plaintiff Suffered a “Tangible Employment
Action.”
To avoid the Faragher-Ellerth affirmative defense and hold defendant strictly liable for
Brown’s conduct, plaintiff must demonstrate he suffered a “tangible employment action,” which
has two components. First, plaintiff must show he suffered “significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Jones, 429 F.3d at 278
(quoting Ellerth, 524 U.S. at 761). Second, plaintiff must “establish[] the requisite link between a
supervisor’s injurious conduct in the workplace and the employing enterprise; it must be an action
done by the supervisor whose conduct has generated the employee’s claim.” Jones, 429 F.3d at
279 (emphasis in original); see also Suders at 131 (quoting Ellerth, 524 U.S. at 758) (“A tangible
employment action . . . is an ‘official act of the enterprise’ and ‘fall[s] within the special province
of the supervisor.’”) (alterations in original).
A jury could find plaintiff has satisfied both requirements to show he suffered a tangible
employment action. First, plaintiff suffered a “significant change in benefits,” Jones, 429 F.3d at
278, when he was denied bonuses that he alleges Brown promised him and he earned. See Douglas
v. Preston, 559 F.3d 549, 552 (D.C. Cir. 2009) (“[A] bonus is a tangible, quantifiable award, more
analogous to one’s salary or to a benefit of one’s employment than to a performance evaluation.
It has a more direct, measurable, and immediate effect, meaning the denial of even a purely
discretionary bonus can be actionable.”) (quotation marks omitted). Additionally, plaintiff
suffered a “significant change in employment status,” Jones, 429 F.3d at 278, when he says that
28
he was constructively discharged due to the nonpayment of those promised bonuses. 10 Second,
Plaintiff has satisfied the “requisite link” requirement because Brown’s bonus denials—which
plaintiff also says culminated in his constructive discharge, see Pl.’s Opp’n at 14–16; see also Pl.’s
SMF ¶ 55—if true, were undoubtedly actions taken by the harassing supervisor. See Jones, 429
F.3d at 279.
Defendant makes two counterarguments, both attacking plaintiff’s satisfaction of the
“requisite link” requirement, but neither are persuasive. First, defendant says that Brown’s denial
of bonuses were not “official act[s]” on behalf of defendant because those bonus payments would
have come from Brown’s own pay and not defendant’s pocket. Def.’s Mot. at 19 (citing Suders,
542 U.S. at 141). Put another way, defendant’s argument is that bonus payment promises about
which defendant was unaware cannot be attributed to defendant, and neither can the failure to pay
such bonuses. Yet, defendant cannot rely on such alleged willful blindness to Brown’s actions as
a defense to liability here because an “official act” is merely “the means by which the supervisor
brings the official power of the enterprise to bear on subordinates.” Suders, 542 U.S. at 141(quoting Ellerth, 524 U.S. at 760). Brown was the head of the D.C. Office and plaintiff’s direct
supervisor, see Vance v. Ball State Univ., 570 U.S. 421, 434 (2013) (“[T]he ability to supervise
includes the ability to take tangible employment actions[.]”), with the position and authority to
make bonus payment decisions. Further, plaintiff has proffered significant record evidence that
Brown oversaw plaintiff’s bonus-related decisions on behalf of defendant and made explicit
promises to plaintiff about payment of bonus compensation for securing executive placements,
10
Defendant argues that the denial of plaintiff’s bonuses were purely discretionary, so any denial of payment
(which also formed the basis for plaintiff’s constructive discharge) cannot amount to a significant change in benefits,
see Def.’s Reply at 2–3, but defendant is wrong for the same reasons that Brown’s alleged bonus-denials may be
“owed” and not “discretionary” under the DCHRA, see infra Section III.C.
29
notwithstanding the BD Bonus Plan’s requirements. See Pl.’s SMF ¶¶ 17, 27-31. A jury could
thus find that Brown’s denial of bonuses he allegedly promised to plaintiff, which plaintiff says,
in turn, precipitated plaintiff’s constructive discharge, amounted to “official act[s]” taken by
defendant. See Suders, 542 U.S. at 141.
Second, defendant argues that, even if plaintiff’s denied bonuses and constructive
discharge were tangible employment actions, “that is not enough to support a claim of harassment
in this case because there is no causal connection between the alleged harassment and the denied
moneys,” Def.’s Reply at 4–5, but defendant’s argument misses the mark. So long as plaintiff can
show that the harassing supervisor took an “official act” by “us[ing] his managerial or controlling
position to the employee’s disadvantage” when he exacted the tangible employment action,
defendant cannot resort to the Faragher-Ellerth defense. See Suders, 542 U.S. at 147–48; see also
Vance, 570 U.S. at 424 (“If the supervisor's harassment culminates in a tangible employment action,
the employer is strictly liable.”) (emphasis added). 11 As discussed above, a reasonable jury could
find that Brown engaged in an “official act” by denying him bonuses he promised, which also
resulted in plaintiff’s decision to leave the company, so defendant can still be held strictly liable
for Brown’s creation of a hostile work environment since it culminated in two tangible
employment actions.
Even if defendant were right that plaintiff must show a causal link between Brown’s
harassment and the tangible employment actions, plaintiff has satisfied that burden at this stage.
Plaintiff explained that he felt that he had to accept and even go along with Brown’s insistent
11
The cases that defendant relies upon for its causation argument, see Def.’s Reply at 4, are distinguishable
because the harassing supervisors in those cases were not involved in the plaintiff’s alleged tangible employment
actions. See Williams v. Verizon Wash., DC, Inc., 266 F. Supp. 2d 107, 118 (D.D.C. 2003) (explaining that plaintiff
showed no evidence that the harassing supervisor “‘participated’ in the decision to suspend her”); Helm v. Kansas,
656 F.3d 1277, 1287 (10th Cir. 2011) (“[Plaintiff] has offered no evidence that connects Judge Stewart’s harassment
to Chief Judge King’s termination decision.”) (emphasis in original).
30
inappropriate and harassing statements because speaking out would risk angering Brown and
jeopardizing his career. See Pl.’s SMF ¶ 36. Yet, when plaintiff told Brown to stop harassing him,
see Pl.’s SMF ¶ 7, and rejected Brown’s sexual advances, see Def.’s SMF ¶¶ 33-34; Pl.’s SMF
¶¶ 33-34, Brown eventually reneged on his promised bonuses to plaintiff, see Pl.’s SMF ¶ 55. A
jury could accordingly infer that Brown’s decision to renege on those bonuses was causally related
to plaintiff telling Brown to end his harassment and rejecting his sexual advances.
2. Defendant Is Not Entitled to Summary Judgment on its Faragher-Ellerth Defense.
If plaintiff were unable to show any tangible employment action, about which genuine
issues of material fact must be resolved by a trier of fact, defendant further claims the benefits of
the Faragher-Ellerth affirmative defense. The “defense comprises two necessary elements: (a)
that the employer exercised reasonable care to prevent and correct promptly any sexually harassing
behavior and (b) that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Faragher, 524 U.S. at 807 (emphasis added); see also Jones, 429 F.3d at 279 (“[T]he Faragher–
Ellerth defense is explicitly an ‘affirmative defense’ as to which the employer has the burden of
proof.”).
For the first element, defendant must show that it “took reasonable care both to prevent
and correct harassment.” Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir.
2001) (emphasis in original); see also Brokenborough v. District of Columbia, 236 F. Supp. 3d 41,
53 (D.D.C. Feb. 17, 2017) (“[T]he existence of an anti-harassment policy may not be, by itself,
sufficient.”). As to preventing harassment, the employer “must show that its sexual harassment
policy was effectively published, that [the policy] contained reasonable complaint procedures, and
that [the policy] contained no other fatal defect.” Frederick, 246 F.3d at 1314. For example, in
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Faragher, the employer could not raise the affirmative defense due to failure to disseminate an
anti-harassment policy to the relevant employees, monitor the conduct of the harassing supervisors,
or provide any assurances that harassing supervisors could not be bypassed in registering
complaints. 524 U.S. at 808. As to correcting harassment, defendant must demonstrate “that [it]
acted reasonably promptly on [plaintiff’s] complaint when it was given proper notice of [his]
allegations as required under its complaint procedures.” Frederick, 246 F.3d at 1314.
Contrary to defendant’s arguments, see Def.’s Mot. at 22–23, a reasonable jury could find
that defendant failed to take reasonable care to both prevent and correct harassment. To start,
defendant’s reporting policy—directing employees who feel they had been harassed to report the
conduct to the supervisor, CEO, or other unnamed and unspecified members of management—
suffered from a “fatal defect,” see Frederick, 246 F.3d at 1314, in that the policy was impractical
in situations when the harassing supervisor was Brown or the CEO, given their prominence within
defendant’s management hierarchy and their close personal friendship. Plaintiff faced the
conundrum that Brown—his direct supervisor and a twenty-year prized veteran within the
management of the company—was harassing him and was known to have a long-standing close
friendship with CEO Paul Daversa. Considering that Brown sent plaintiff an image that plaintiff
reasonably understood to depict Daversa simulating a sex act with Brown, and that Brown told
plaintiff that Daversa would do nothing if plaintiff complained to him because they were best
friends, see Pl.’s Dep. at 272:6–273:8, defendant’s reporting policy gave plaintiff limited recourse
to report Brown’s misconduct. 12 Just as in Faragher, defendant, too, failed to monitor the conduct
12
Defendant emphasizes that the policy instructed employees to reach out to “any other member of
management,” and plaintiff failed to do so. Def.’s Mot. at 22–23; Def.’s Reply at 18. This point may be as persuasive
to a jury as defendant urges, but, in context, is insufficient to be determinative as showing that the policy was
reasonable for at least four factual reasons based on record evidence. First, the “other member[s] of management” to
be contacted were unnamed and unspecified as having any particular authority, role, or expertise in properly handling
and resolving harassment complaints. Second, relatedly, Martire—the defendant partner apparently tasked with
investigating allegations of harassment, though not named as such in the formal policy—admittedly had no formal
32
of harassing supervisors or provide assurances that its complaint system would function effectively
for complaints against those in management. 13
Second, genuine issues of material fact have been presented on the issue of whether
defendant took sufficient steps to correct harassing behavior. Specifically, plaintiff has shown
evidence that, after learning from Marx about Brown’s inappropriate behavior with plaintiff,
defendant’s management—Paul Daversa, Martire, and Brown himself—failed to take any
remedial action, such as investigating Marx’s statements, asking plaintiff about Brown’s behavior,
or questioning Brown himself. See Pl.’s SMF ¶ 13. To be sure, Marx’s email did not specify that
Brown was sexually harassing plaintiff, as defendant points out, see Def.’s Mot. at 24–25, but
Marx’s email made clear that Brown was engaging in inappropriate behavior towards plaintiff,
and Martire conceded that acting inappropriately with other employees, even short of sexual
HR title, no relevant human resources background, and had only investigated one prior incident of sexual harassment
and no instances of sexual orientation harassment. Cf. Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287,
1303 (11th Cir. 2007) (holding that the defendant employer, as a matter of law, took reasonable steps to correct
harassment because the human resource officer “in charge of investigating” complaints of harassment “had personally
been involved in at least a half dozen investigations of sexual harassment complaints”). Third, “two or three” of
defendant’s other partners were present when the photograph of Paul Daversa simulating a sex act with Brown was
taken and even “laughed” at Brown and Paul Daversa as they engaged in inappropriate conduct on a business trip, see
Def.’s Suppl. SMF ¶ 79, suggesting that members of management might not have taken allegations of inappropriate
conduct or harassment against Brown seriously, even if plaintiff had raised his complaints with them. Fourth, despite
its size, defendant had no human resources department or full-time human resources professional to respond to
complaints of harassment. See Pl.’s SMF ¶ 5. A jury may view these aspects of defendant’s operation as intentional
design deficiencies reflecting a general laissez-faire attitude towards harassment, including sexual harassment, that
ultimately rendered defendant’s policy unreasonable.
13
Defendant seeks credit for its “grievance committee” charged with investigating claims of harassment in the
workplace and the single hour of sexual harassment training instituted in 2019, see Def.’s Mot. at 22–23, 35, but
genuine issues of material fact exist as to the existence of the former and the effectiveness of the latter. First, defendant
has put forth no contemporaneous evidence that the so-called grievance committee existed at the time of plaintiff’s
employment with defendant or that plaintiff and other employees were made aware of the committee’s existence, see
Pl.’s SMF ¶ 6, so defendant cannot be credited for that committee at the summary judgment stage. See Frederick, 246
F.3d at 1314 (denying summary judgment for defendant on Faragher-Ellerth because “there were material issues of
disputed fact regarding what Sprint's complaint procedures were during the relevant period”). Meanwhile, while the
sexual harassment training undoubtedly took place in 2019, a reasonable factfinder could determine that the training
was not a serious or effective one because Brown admitted that the training was the first such training he had seen in
his twenty-year tenure at the company, the session was merely an hour long, and Brown not only left the training early
but also joked about the training afterwards, with no apparent management correction or critique of that conduct as
irresponsible or otherwise unacceptable. See Pl.’s SMF ¶ 13.
33
harassment, violates the anti-harassment policy, see Pl.’s SMF ¶ 13. A reasonable jury could thus
find that defendant lacked the requisite policies to investigate allegations of sexual assault and
correct such inappropriate conduct given that defendant was told that Brown was engaging in
inappropriate conduct and took no steps to investigate those allegations beyond alerting Brown to
Marx’s email. 14
In summary, plaintiff’s DCHRA hostile work environment claim survives summary
judgment due to disputed issues of material fact.
C. Count VII: Plaintiff’s Claim for Unpaid Wages
Plaintiff claims, in Count VII, that he is entitled to over $60,000 in unpaid bonuses for nine
executive placements he secured during his employment with defendant. The DCWPCL
establishes requirements “regarding how and when employers must pay their employees’ wages”
and “a framework for recovery against an employer who violates its provisions.” Driscoll v.
George Washington Univ., 938 F. Supp. 2d 19, 22–23 (D.D.C. 2013); see also D.C. Code § 32-
1308. Section 32-1301(3) of the DCWPCL states that the term “wages” encompasses “all
monetary compensation after lawful deductions, owed by an employer, whether the amount owed
is determined on a time, task, piece, commission, or other basis of calculation,” id. § 32-1301(3)
(emphasis added), including “[b]onus[es]” and “[o]ther remuneration promised or owed . . .
[p]ursuant to a contract for employment, whether written or oral[,]” id. §§ 32-1301(3)(A), (E).
14
The three cases upon which defendant relies to show the reasonableness of its policies, see Def.’s Mot. at 22,
are plainly distinguishable. For instance, in Taylor v. Solis, unlike here, the plaintiff never challenged the adequacy
of the company’s complaint procedure. 571 F.3d 1313, 1316 (D.C. Cir. 2008). Likewise, in Turner v. Washington
Metro Transit Authority, unlike here, the plaintiff admitted that defendant had “a detailed policy against harassment
and detailed procedures for the reporting and handling of claims.” No. CV 09-812 (JEB), 2011 WL 13266591, at *5
(D.D.C. Nov. 21, 2011), aff’d, 534 F. App’x 2 (D.C. Cir. 2013). Finally, in EEOC v. Barton Protective Services, Inc.,
by contrast to defendant’s barebones policy and general reporting processes, the defendant’s harassment policy had a
formal complaint process, directing employees to file complaints with the “Branch Manager” if their complaint was
about their supervisor, the “Account Manager,” or file a complaint “directly to the Corporate Personnel Manager” if
they felt “dissatisfied with the Branch Manager’s action.” 47 F. Supp.2d 57, 58–61 (D.D.C. 1999).
34
Defendant asserts that Brown’s promised performance-related bonuses were not “owed” to
plaintiff within the meaning of Section 32-1301(3), and were, at most, discretionary, since plaintiff
could only receive bonuses under the Plan for “sourc[ing]” the underlying clients, which he
admittedly failed to do. Def.’s Mot. at 39–40.
“A ‘discretionary payment’ does not constitute a ‘wage’ under the DCWPCL because such
payments ‘are not owed, but are given only by leave of the employer.’” Ronaldson v. Nat’l Ass’n
of Home Builders, 502 F. Supp. 3d 290, 297 (D.D.C. 2020), amended on reconsideration, No. CV
19-1034 (CKK), 2021 WL 7210781 (D.D.C. June 3, 2021) (quoting Dorsey v. Jacobson Holman,
PLLC, 756 F. Supp. 2d 30, 36 (D.D.C. 2010), aff’d, 476 F. App’x 861 (D.C. Cir. 2012)). Whether
a payment is “discretionary” turns on “the conditions set for the award of such compensation” and
if “the former employee was actually entitled or owed the payment.” Rothberg v. Xerox Corp.,
Civ. No. 12-617 (BAH), 2016 WL 10953882, at *16 (D.D.C. Feb. 3, 2016), aff’d, 709 F. App’x 1(D.C. Cir. 2017); see also Molock v. Whole Foods Market, Inc., 297 F. Supp. 3d 114, 134 (D.D.C.
2018) (denying dismissal motion and finding plaintiffs stated a claim for lost “wages” under the
DCWPCL in suit for unpaid bonuses because they “sufficiently alleged that payment of a [ ] bonus
was not subject to any employer discretion, but rather automatic and mandatory upon satisfaction”
of certain conditions that plaintiffs alleged they satisfied).
Based on plaintiff’s proffered evidence, the performance-related bonuses he seeks were not
discretionary because Brown made explicit promises to plaintiff that he would be given bonuses
for completing executive placements. Given that Brown was plaintiff’s direct supervisor and
managing partner of defendant’s D.C. Office, a factfinder could reasonably construe Brown’s
promises as an oral agreement between plaintiff and defendant to pay plaintiff upon completion of
certain executive placements. Since plaintiff has demonstrated he completed those executive
35
placements, see Pl.’s SMF ¶¶ 17, 27-31, a jury could reasonably find that the bonuses that Brown
orally promised plaintiff were “owed” to him by defendant and not subject to its discretion, much
like the program in Molock.
D. Counts V and VI: Plaintiff’s Negligent Supervision Claims
Plaintiff claims, in Counts V and VI, that defendant negligently supervised and retained
Brown. 15 “In an action against an employer for negligent supervision, liability is ‘predicated upon
the employer’s direct negligence, rather than under a theory of vicarious liability based on the
employee’s negligence.’” Blair v. D.C., 190 A.3d 212, 229 (D.C. 2018) (quoting Phelan v. City
of Mount Rainier, 805 A.2d 930, 937 (D.C. 2002)). “To establish a cause of action for negligent
supervision, a plaintiff must show: that the employer knew or should have known its employee
behaved in a dangerous or otherwise incompetent manner, and that the employer . . . failed to
adequately supervise the employee.” Id. (quotation marks omitted). Defendant’s sole argument
is that no breach of the duty of reasonable care towards plaintiff could be leveled at defendant
because defendant did not know, nor should have known, of Brown’s conduct. Def.’s Reply at
24–25.
Defendant’s argument fails because a jury could reasonably find that defendant had either
actual or constructive knowledge of Brown’s sexual harassment of plaintiff. For one thing, the
sexual harassment policy explicitly told defendant’s employees that they could go to their
supervisor to complain about harassment, and plaintiff did just that. See Handbook at 15
(“Employees . . . who feel that they have been harassed . . . should immediately report such conduct
15
More precisely, Count V claims defendant’s negligent supervision and retention of Brown, and Count VI
claims defendant’s negligent or grossly negligent supervision and retention of Brown, predicated on a theory that
defendant failed to protect plaintiff from Brown’s harassment. Compare Am. Compl. ¶¶ 143-45, with id. ¶ 165. Both
claims arise under the same theory—that defendant breached its duty of reasonable care by failing to oversee and
supervise Brown—so both claims are considered together. See Islar v. Whole Foods Mkt. Grp., Inc., 217 F. Supp.3d
261, 265 n.1 (D.D.C. 2016) (observing that D.C. law does not distinguish between negligent supervision and retention
claims).
36
to their supervisor, to the CEO or any other member of management”) (emphasis added).
Defendant dismisses this argument as “preposterous,” Def.’s Reply at 15–16, but has only itself to
blame for the instructions set out in its own harassment policy. In this case, the harassing
supervisor, Brown, explicitly told plaintiff that the CEO of the company, Paul Daversa, would do
nothing if plaintiff were to report Brown’s harassment to him, Pl.’s Dep. at 272:6–273:8—a
message only confirmed by the photograph sent to plaintiff depicting Brown and Daversa
simulating a sex act, with Brown’s accompanying commentary stating, in part, “Screw Integrity!!!!”
and “nothing is off limits with you!”, Pl.’s SMF ¶ 7. Even with the catchall “any other member of
management,” the policy failed to address a situation in which either Brown or the CEO were
engaging in sexual harassment—especially when Brown threatened plaintiff’s career and engaged
in physical batteries, see Pl.’s SMF ¶¶ 18, 36; see also supra n.12—and members of management
might not have taken plaintiff’s claims seriously, given that that several of defendant’s other
partners were present and “laughed” at Brown and Paul Daversa as the two reenacted what
appeared to be a simulated sex act, while on a business trip, see Def.’s Suppl. SMF ¶ 79. A jury
could reasonably find that defendant bears responsibility for its policy failure, such that plaintiff’s
complaints to Brown impute actual knowledge to defendant as a company, given the apparent lack
of alternative mechanisms for effectively reporting misconduct. 16
16
Defendant relies on several cases, Def.’s Reply at 16–19, that are unpersuasive or inapposite because, unlike
the circumstances at issue here, the plaintiffs in those cases either (1) reasonably could have, but failed to, report the
alleged harassment to upper-level management; or (2) faced no credible threat of reprisal by reporting the harassment
to the designated individuals outlined in the employer’s policy. See Chapman v. Carmike Cinemas, 307 F. App’x 164,
173 (10th Cir. 2009) (“[T]he record indicates that the [harassing supervisor] was supervised by the complex general
manager, Mr. Curry, who was supervised by the city manager, Mr. Dunaway. Apparently [plaintiff] also did not
complain to either Mr. Curry or Mr. Dunaway, although there does not appear to be any reason why she could not
have done so.”); Stapp v. Curry Cnty. Bd. of Cnty. Commissioners, No. 15-CV-356 GBW/CG, 2016 WL 8839431, at
*7 (D.N.M. Mar. 29, 2016) (observing that plaintiff unreasonably failed to comply with the “anti-harassment policy”
because she did not, as the policy required, report the harassing conduct to the “Personnel Coordinator,” who she also
met with “multiple times during the course of her employment”), aff’d, 672 F. App’x 841 (10th Cir. 2016); Taylor,
571 F.3d at 1319 (rejecting plaintiff’s argument that plaintiff was reasonably deterred from reporting her harasser’s
conduct, based on his statement that “no one would believe her,” because the harasser “did not threaten [plaintiff] with
an adverse employment action and, indeed, he could not have done [so] because he was not her supervisor and did not
37
Moreover, the Marx Email could reasonably be read to give defendant constructive
knowledge of Brown’s harassment. Although Marx did not specify that Brown was sexually
harassing plaintiff, this lengthy email made clear that Brown was “acting inappropriate[ly]” with
plaintiff, and “the entire leadership had commented how inappropriate [the relationship] [was].”
Pl.’s SMF ¶ 13. Considering that Martire conceded that acting inappropriately could constitute
harassment in the workplace, and both Brown and Paul Daversa received the Marx email, with
Brown stating “I take full responsibility. A lot of work that needs to be done to on my part,” id.,
neither Paul Daversa nor Martire made further inquiry of plaintiff, Brown, or anyone else about
Marx’s reported harassment. Armed with these facts, a reasonable jury could impute constructive
notice on defendant for failing to investigate Brown upon learning that he engaged in conduct that,
if true, violates the company’s anti-harassment policy.
E. Count VIII: Plaintiff’s Claim for IIED
Finally, in Count VIII, plaintiff claims that defendant is liable for Brown’s intentional
infliction of emotional distress. To prevail on an IIED claim at summary judgment, plaintiff must
show that a reasonable jury could find for him on each of these elements: “‘(1) extreme and
outrageous conduct on the part of the defendant[], which (2) intentionally or recklessly (3) causes
the plaintiff severe emotional distress.’” Amobi v. D.C. Dep’t of Corr., 755 F.3d 980, 995 (D.C.
Cir. 2014) (quoting Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C. 2003)).
Plaintiff says that Brown’s hostile work environment amounted to extreme and outrageous
conduct, and that defendant is liable for Brown’s actions under respondeat superior. Pl.’s Opp’n
have the authority to evaluate her performance or to take any action against her”); Barrett v. Applied Radiant Energy
Corp., 240 F.3d 262, 265, 267–68 (4th Cir. 2001) (rejecting employee’s fear of retaliation and concern that report
would be futile due to friendship between harasser and company president because the policy specifically allowed
employees to “contact any [of the twelve] member[s] of the management team, male or female, with whom [they] feel
comfortable discussing the situation” and assured that “complaint[s] will be dealt with immediately and will be kept
as confidential as possible”).
38
at 51–53. Defendant disputes that Brown’s conduct amounted to “extreme or outrageous”
behavior since plaintiff “also engaged in the same verbal and text conduct and participated in
Brown’s alleged conduct,” and also contends that Brown’s misconduct was outside the scope of
his employment, obviating any legal responsibility of defendant under respondeat superior. Def.’s
Mot. at 38. Neither argument presented by defendant suffices to prevail on summary judgement.
As to whether Brown was acting within the scope of his employment, plaintiff presented
evidence—in the form of Brown’s testimony—that Brown engaged in outrageous conduct towards
plaintiff, like calling him a “fucker,” “bitch,” and other derogatory terms that targeted his sexual
orientation, and threatening physical violence against plaintiff, because he thought it would push
plaintiff and drive him to work harder for the company. See Pl.’s Opp’n at 52; see also Brown
Dep. at 108:9–113:20. Unlike plaintiff’s sexual assault and battery claims, where plaintiff adduced
no evidence to show Brown committed those torts to further any of defendant’s business interests,
a jury could reasonably understand Brown’s explanations for his conduct towards plaintiff as due
to his belief, at least in part, that repeatedly harassing plaintiff using derogatory language was
intended to “further[] [defendant’s] business” by incentivizing and prodding plaintiff. See Boykin,
484 A.2d at 564 (quotation marks omitted).
Notwithstanding plaintiff’s own unprofessional and inappropriate messages, he has
presented enough evidence to show Brown engaged in “extreme and outrageous” conduct. In the
context of plaintiff’s DCHRA claim, defendant does not contest that Brown created a hostile work
environment through his derogatory and sexually charged comments and behavior that targeted
plaintiff because of his sexual orientation. See supra at III.B; see also supra at I.A.2 (summarizing
Brown’s harassment). Given that creating a hostile work environment satisfies the “extreme or
outrageous” element for IIED under D.C. law, see Purcell v. Thomas, 928 A.2d 699, 711 (D.C.
39
2007) (quoting Howard Univ. v. Best, 484 A.2d 958, 986 (D.C. 1984)) (“Creation of a hostile work
environment by racial or sexual harassment may, upon sufficient evidence, constitute a prima facie
case of intentional infliction of emotional distress.”), plaintiff has minimally provided enough
evidence to survive summary judgment on that element. Defendant’s defense—that plaintiff also
engaged in inappropriate banter with Brown that led him to believe his conduct was appropriate—
is, at the very best, a question for the jury because a reasonable factfinder could accept plaintiff’s
proffered explanation for his behavior: that he sent inappropriate messages back to Brown “since
this was [his] first job out of college, and Mr. Brown was [his] supervisor as well as the longest
standing Partner of Daversa, [so he] felt [he] had no choice other than comply, or else risk angering
Mr. Brown and jeopardizing [his] job.” Pl.’s’ SMF ¶ 36 (quotation marks omitted); see also id.
¶ 18 (collecting Brown’s various statements towards plaintiff, some of which included threats of
physical violence). A reasonable jury could reasonably believe plaintiff’s testimony and believe
he had to parry back in kind with Brown to fit in, or otherwise risk damage to his career.
IV. CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment is GRANTED IN
PART and DENIED IN PART. Defendant is entitled to summary judgment on plaintiff’s claims,
in Counts IV and IX, for battery and retaliation under the DCHRA, respectively, while plaintiff’s
remaining claims against defendant in Counts I, V, VI, VII, and VIII survive defendant’s motion
for summary judgment. An order consistent with this opinion will be filed contemporaneously.
Date: March 30, 2023
__________________________
BERYL A. HOWELL
U.S. District Court Judge
40