Kennedy v. Berkel & Company Contractors, Inc. ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KIMBERLY KENNEDY,
Plaintiff,
v.
No. 17-cv-1248 (DLF)
BERKEL & COMPANY
CONTRACTORS, et al.,
Defendants.
MEMORANDUM OPINION
Kimberly Kennedy claims that her former boss, Dwayne Bruce, harassed, sexually assaulted,
and raped her while she worked at Berkel & Company Contractors (Berkel). Before the Court is the
defendants’ Motion for Partial Summary Judgment on fourteen of Kennedy’s eighteen remaining
claims. Mot. for Partial Summ. J., Dkt. 48. For the reasons that follow, the Court will grant the
motion as to four claims: negligence; negligent infliction of emotional distress; negligent
supervision, retention, and training; and intrusion upon seclusion. The Court will deny the
motion as to the remaining ten claims.
I. BACKGROUND
Kimberly Kennedy moved to Washington, D.C. in 2015 to find construction work. See
Def.’s Statement of Material Facts, Dkt. 48-1, ¶ 1.1 As part of her job search, Kennedy visited a
1 Unless otherwise noted, the facts in this opinion are drawn from the uncontested facts in the
defendants’ Statement of Material Facts, Dkt. 48-1. See Hawkins v. District of Columbia, No.
17-cv-1982, 2020 WL 601886, at *4 (D.D.C. Feb. 7, 2020) (“[I]n ruling on a motion for
summary judgment, the Court may assume that facts identified by the moving party in its
statement of material facts are admitted, unless such a fact is controverted . . . in [the non-
moving party’s] opposition to the motion.” (internal quotation omitted)). Otherwise, the opinion
Berkel construction site and left her resume with Dwayne Bruce. Id. ¶¶ 2–4. Bruce initially
turned Kennedy away. See Kennedy Dep. 31:15–32:14; Bruce Dep. 33:4–12. Later that day,
though, Bruce called Kennedy to inform her that Berkel would hire her as a flagger and laborer.
See Kennedy Dep. 32:7–12; Def.’s Stmt. of Material Facts ¶ 7. Kennedy worked for Berkel for a
total of six weeks. See Def.’s Response to Interrogatory 12, Dkt. 48-4 at 12. Throughout that
period, Bruce served as Kennedy’s direct supervisor and superintendent of the site. See Kennedy
Dep. 65:10–16; Def.’s Stmt. of Material Facts ¶ 3 (describing Bruce as “acting superintendent”).
At the time, Kennedy was the only woman on the site. See Kennedy Dep. at 251:4–6;
Bruce Dep. at 51:3–5. She asked Bruce whether she could work “in the hole” (a construction
term for an excavated foundation) along with all the other male employees. Kennedy Aff. ¶¶
18–19, Dkt. 52-3. Bruce denied her request, despite the fact that Kennedy had worked in the
hole in previous jobs. See id.; Kennedy Dep. at 34:13–17. Instead, Kennedy’s duties at Berkel
included flagging traffic, filling potholes, and cleaning Bruce’s trailer. See Def.’s Statement of
Material Facts ¶ 8.
The parties dispute much of what happened next. Compare Def.’s Stmt. of Material
Facts, with Pl.’s Statement of Material Facts, Dkt. 52-1.
Kennedy recalls how Bruce propositioned her inappropriately. He first asked for hugs
and asked her to be his girlfriend. See Kennedy Dep. at 62:13–14; 69:1–2. Kennedy informed
Bruce that she was not interested in a relationship with him. Id. at 63:9–11. She told him that
her religious beliefs dictated that she not date or have any sexual contact outside of marriage. Id.recounts the facts as established in “depositions, answers to interrogatories, and admissions on
file, together with the affidavits” to determine whether there is any “genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (citing Fed. R. Civ. P. 56). The opinion notes
where the facts are disputed.
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But Bruce ignored her. Id. He hugged her without her consent. See id. at 62:13–22. Kennedy
told Bruce that the hug made her feel guilty, since it violated her religious beliefs. Id.Nevertheless, he continued to forcibly hug Kennedy and rub his erect penis against her body.
See id.; id. at 108:16–18.
Things escalated from there. One day in his trailer on the site, Bruce exposed himself to
Kennedy. See id. at 59:1–8. Distressed, she left work. Id. Bruce later called Kennedy (she gave
him her phone number for work-related contact) and asked if she left because “it was rusty.” Id.;
Kennedy Aff. ¶ 34. On Kennedy’s birthday, Bruce made an obscene gesture with his tongue
which Kennedy interpreted as a sign that he wished to perform oral sex on her. Id. ¶ 35.
Another time in the trailer, Bruce exposed himself, pushed Kennedy down into a chair, and
slapped her repeatedly in the face with his penis. See Kennedy Dep. at 87:14–21. He then
forced himself into her mouth and made her perform oral sex on him. Id. at 70. This happened
multiple times. See Bruce Dep. at 42:14–17. At one point, Bruce told Kennedy while she was
performing oral sex on him that she could not answer the phone because she was busy “doing her
job.” See Kennedy Dep. at 73:4–12.
Kennedy believed Bruce purposely kept her isolated from others. See id. at 79:11–22.
When Kennedy spoke to other men on the worksite, Bruce got angry. Id. One day, Bruce
became angry with her when she made small talk with a group of male superintendents. Id.
Immediately after that, Bruce told Kennedy he was not going to send her to the next worksite and
gave her a final, handwritten paycheck. Id. at 80. Bruce told her she was being let go because
another superintendent felt she was “too soft.” Id. When Kennedy started crying, Bruce said
this was the reason he did not like to hire women. Id. at 80:6–8. Kennedy came back to the
trailer later to plead for her job. Id. at 80:22. Bruce asked if Kennedy wanted him to “put the
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trailer on lockdown”—a code he used for sex. Id. at 81:2–3. He then forced Kennedy to
perform oral sex and raped her. Id. at 81. After he was done, he responded to Kennedy’s plea
for her job with “I’ll call you.” Id. at 81:12–13.
When Kennedy was later hired by another construction company, one of the workers
there was a former Berkel employee who was friendly with Bruce. See id. at 123–27. Soon after
Kennedy arrived, a group of male employees started taunting her. See id. They leered at her,
grabbed their crotches, and sang the song “Superfreak” by Rick James. See id. Kennedy
believes that they did so because Bruce told the former Berkel employee that she and Bruce had
had a consensual sexual relationship. See id.
Ultimately, Kennedy suffered severe mental health consequences from the trauma she
experienced. See id. at 123:2–8. She suffered from depression and suicidal thoughts. See id. at
83:13–16. And she was diagnosed with PTSD and eventually hospitalized. See Kennedy Aff. ¶
¶ 43–44. These conditions left Kennedy unable to work. Id.
As for Bruce’s side of the story, he does not deny that the sexual acts Kennedy describes
occurred. See Bruce Dep. at 12:19–21. Rather, he claims that the interactions were all
consensual. Id. at 28:18–19, 31:1–5. He also claims he did not tell anyone at Berkel about his
sexual relationship with Kennedy until after the police became involved in the investigation (and
after employees had already taunted Kennedy at her new job). Id. at 52:10–19, 104.
In June of 2017, Kennedy brought suit against Bruce and Berkel, alleging twenty-four
statutory and common law tort claims. See Compl., Dkt. 1. Kennedy’s statutory claims were
based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the District of
Columbia Human Rights Act, D.C. Code § 2-1401.01 et seq. Kennedy sued both Berkel and
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Bruce under the D.C. Human Rights Act but only Berkel under Title VII. In addition, Kennedy
brought negligence claims against Berkel and several intentional tort claims against Bruce.
In August of 2017, the defendants filed a motion to dismiss, Dkt. 13. The Court
ultimately dismissed six of Kennedy’s twenty-four claims. See Mem. Op. on MTD, Dkt. 21.
Now, at the summary judgment stage, eighteen of Kennedy’s claims remain. The defendants
move for summary judgment on fourteen of those eighteen claims: Kennedy’s eight statutory
claims, Kennedy’s three negligence claims against Berkel, and Kennedy’s three privacy tort
claims against Bruce.
II. LEGAL STANDARD
Under Rule 56, summary judgment is appropriate if the moving party “shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247–48
(1986). A “material” fact is one that could affect the outcome of the lawsuit. See id. at 248;
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if a reasonable
jury could determine that the evidence warrants a verdict for the nonmoving party. See
Anderson, 477 U.S. at 248; Holcomb, 433 F.3d at 895. In reviewing the record, the court “must
draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
150 (2000).
It is well established, however, that “a plaintiff opposing summary judgment” must
“substantiate [her allegations] with evidence” that “a reasonable jury could credit in support of
each essential element of her claims.” Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C.
Cir. 2015). The moving party is entitled to summary judgment if the nonmoving party “fails to
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make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
III. ANALYSIS
Kennedy maintains eighteen claims against Bruce and Berkel, including statutory and
common law tort claims. The defendants move for summary judgment on fourteen of Kennedy’s
eighteen claims.
A. Title VII
Kennedy brings four claims against Berkel under Title VII: retaliation (count I); hostile
work environment based on sexual harassment (count III); hostile work environment based on
religious discrimination (count IV); and discriminatory termination based on sex (count V). All
survive summary judgment.
Title VII of the Civil Rights Act of 1964 forbids employers from discriminating on the
basis of an employee’s race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e–2(a).
For a Title VII hostile work environment claim, an employee must point to conduct so “severe or
pervasive” as to create an “objectively hostile or abusive work environment.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993). Title VII also forbids employers from retaliating against an
employee because she “has opposed a practice that Title VII forbids or has made a charge,
testified, assisted, or participated in a Title VII investigation, proceeding, or hearing.” Gaujacq
v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010) (internal quotation marks omitted).
As an initial matter, Berkel is vicariously liable for Bruce’s actions as Kennedy’s
supervisor. When an employee is “harassed by [a] supervisor,” “supervisors are treated as the
employer’s proxy.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per
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curiam). Accordingly, save for any affirmative defense, the employer is “vicariously liable for a
supervisor’s actions.” Id.Berkel seeks to avoid the presumption of vicarious liability by citing the affirmative
defense established in Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998). The defense
insulates an employer from the presumption of vicarious liability when the employer shows “(i)
that it exercised reasonable care to prevent and promptly correct the hostile behavior, and (ii)
that the employee unreasonably failed to take advantage of the employer’s preventive or
corrective opportunities.” Ayissi-Etoh, 712 F.3d at 577–78. However, the Faragher defense
cannot preclude liability here. “No affirmative defense is available [] when the supervisor’s
harassment culminates in a tangible employment action, such as discharge, demotion, or
undesirable reassignment.” Faragher, 524 U.S. at 808. Here, as discussed infra, Kennedy has
raised a genuine dispute of fact as to whether she suffered a tangible employment action when
she was asked to leave the Berkel worksite, not called back, and given a final, hand-written
paycheck. See Kennedy Dep. at 80:1–5; 103:11. Thus, the Faragher defense does not apply,
and Berkel is presumed vicariously liable for Bruce’s actions at this stage. 524 U.S. at 808.
Title VII claims “trigger the familiar burden-shifting framework of McDonnell Douglas.”
Gaujacq, 601 F.3d at 577 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
(internal citation omitted)). In applying this framework, “the District Court need only resolve
one central question when considering a motion for summary judgment: Has the employee
produced sufficient evidence for a reasonable jury to find that the employer’s asserted
nondiscriminatory reason [for an adverse employment action] was not the actual reason and that
the employer intentionally discriminated against the employee on the basis of race, color,
religion, sex, or national origin?” Id. at 576 (internal quotation marks omitted).
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With respect to her Title VII claims, Kennedy has produced such evidence. As to hostile
work environment based on sex, Kennedy testified that Bruce repeatedly harassed, sexually
assaulted, and raped her in the workplace. See, e.g., Kennedy Dep. at 58, 70, 81. As to hostile
work environment based on religion, Kennedy claims that Bruce harassed her about her religious
beliefs by accusing her of trying to be a “minister.” See Kennedy Aff. at ¶ 26. Further, Bruce
ignored Kennedy’s multiple protestations that he was violating her religious beliefs and making
her feel guilty with his advances. Id. at 25; Kennedy Dep. at 62:13–22. Bruce knew Kennedy’s
religion forbade any sexual contact outside of marriage, yet he repeatedly hugged Kennedy
without her consent, rubbed his erect penis against her buttocks, and forced her to perform oral
sex. See id. at 62:13–22, 70. A reasonable jury could find that these acts taken together were
“severe or pervasive” enough to create a hostile work environment. Forklift Sys., 510 U.S. at 21.
As to retaliation and discriminatory termination, a material factual dispute remains as to
whether Berkel terminated Kennedy. Compare Bruce Dep. at 59:8–14, with Kennedy Dep. at
103:11. Berkel and Bruce claim that Kennedy was merely “laid off” temporarily. Bruce Dep. at
59:8–14. On the other hand, Kennedy claims she was terminated, and points to the fact that she
received a final, hand-written paycheck as proof. See Kennedy Dep. at 80, 103:11. The parties
also dispute the reason Kennedy was asked to leave the worksite. Berkel and Bruce claim that
she was laid off pursuant to a nondiscriminatory policy to lay off all flaggers. See Bruce Dep. at
49:10–18. But Kennedy points to enough evidence “for a reasonable jury to find that the
employer’s asserted nondiscriminatory reason was not the actual reason” she was asked to leave.
Gaujacq, 601 F.3d at 576 (internal quotation marks omitted). Namely, she testified that Bruce
told her she was not being sent to another worksite because a superintendent felt she was “too
soft.” Kennedy Dep. at 80:1–5. Bruce also stated that he did not like to hire women. Id. at
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80:6–8. Further, a reasonable jury could conclude from the totality of Bruce’s actions and
comments that he was motivated in part by Kennedy’s opposition to his ongoing sexual
harassment and abuse.
Berkel contends that Bruce had no authority to hire or fire employees. See Def.’s
Statement of Material Facts ¶ 3. But a reasonable jury could infer from the evidence that Bruce,
as the acting superintendent on the site and Kennedy’s direct supervisor for the entirety of her
employment, exercised discretion over whether to dismiss Kennedy. See Vance v. Ball State
Univ., 570 U.S. 421, 431 (2013) (holding that an employer is vicariously liable for a supervisor’s
harassment “when the employer has empowered that employee to take tangible employment
actions against the victim, i.e., to effect a 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.” (internal quotation marks omitted)). Kennedy
has pointed to evidence in the record from which a reasonable jury could infer that Bruce
possessed such authority. For example, Bruce was the one who told Kennedy she was dismissed
immediately after he saw her talking to other male workers. See Kennedy Dep. at 79–80. He
also handed her the final, hand-written paycheck. Id. Indeed, Bruce himself implies that he had
significant leeway to decide whom to hire and fire at Berkel. See Bruce Dep. at 10:15–17
(“Well, not like I could just do what I wanted to do. I had to get permission to hire and fire.”) In
sum, Kennedy’s Title VII claims rest in large part on questions of credibility and the weight of
the evidence. Such questions preclude summary judgment. See Anderson, 477 U.S. at 249.
B. D.C. Human Rights Act
Kennedy brings four claims under the DCHRA against both Berkel and Bruce:
retaliation (count VII); hostile work environment based on sexual harassment (count IX); hostile
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work environment based on religious discrimination (count X); and discriminatory termination
based on sex (count XI). All survive summary judgment.
The D.C. Court of Appeals generally interprets the D.C. Human Rights Act as operating
in parallel to Title VII. See, e.g., Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 886
(D.C. 2008) (observing that the D.C. Court of Appeals “follow[s] cases construing Title VII in
interpreting and applying the provisions of the [D.C. Human Rights Act] . . . to the extent that
the acts use similar words and reflect a similar purpose”). And both “Title VII and DCHRA
discrimination claims are assessed pursuant to the three-step framework set forth in McDonnell
Douglas Corp. v. Green.” Gaujacq, 601 F.3d at 576 (citing 411 U.S. 792 (1973)). Thus, the
Title VII analysis above applies to the DCHRA claims as well.
Much like the Title VII claims, several genuine disputes of material fact make summary
judgment improper on Kennedy’s DCHRA claims. First, whether Bruce repeatedly harassed,
sexually assaulted, and raped Kennedy in the workplace. See, e.g., Kennedy Dep. at 58, 70, 81.
Second, whether Bruce harassed Kennedy about her professed religious beliefs. See Kennedy
Aff. at ¶ 26. Third, whether Kennedy was fired from Berkel or merely “laid off.” Compare
Bruce Dep. at 59:8–14, with Kennedy Dep. at 103:11. Fourth, whether Kennedy was asked to
leave the worksite because of a general policy to lay off all flaggers, or because a superintendent
felt she was “too soft.” Compare Bruce Dep. at 49:10–18, with Kennedy Dep. at 80:1–5.
Weighing the competing evidence on each side of these disputes will be the province of the jury.
See Anderson, 477 U.S. at 249.
C. Negligence
Kennedy brings three negligence claims against Berkel: negligent supervision, retention,
and training (count XIV); negligence (count XV); and negligent infliction of emotional distress
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(count XXIII). None survive summary judgment. For each of these claims, Kennedy fails to
raise a genuine dispute of material fact as to whether Berkel had actual or constructive notice of
Bruce’s actions toward Kennedy. Put differently, Kennedy has not pointed to sufficient evidence
in the record for a reasonable jury to conclude that Bruce’s actions were foreseeable. For this
reason, Berkel is entitled to judgment as a matter of law on Kennedy’s negligence claims.
In contrast to the statutory claims discussed above, these negligence claims depend not on
Berkel’s vicarious liability through Bruce but Berkel’s direct liability because of its own actions
and omissions. “There are circumstances under which an employer can be held liable for
intentional acts committed by an employee who causes harm, although acting outside the scope
of his or her employment. That liability is predicated upon the employer’s direct negligence,
rather than under a theory of vicarious liability based on the employee’s negligence.” Phelan v.
City of Mount Rainier, 805 A.2d 930, 937 (D.C. 2002).
The elements for Kennedy’s negligence claims are as follows. For a negligent
supervision, training, and retention claim, 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, armed with that actual or constructive knowledge, failed to adequately
supervise the employee.” Godfrey v. Iverson, 559 F.3d 569, 571 (D.C. Cir. 2009) (quoting
Brown v. Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001)). “Furthermore, a plaintiff must
show that the employer’s negligence was a substantial factor in causing the plaintiff’s injury.”
Dormu v. District of Columbia, 795 F. Supp. 2d 7, 31 (D.D.C. 2011) (citing Tarpeh-Doe v.
United States, 28 F.3d 120, 124 (D.C. Cir. 1994)).
For a negligence claim, a plaintiff “has the burden of establishing the applicable standard
of care, a deviation from that standard by the defendant, and a causal relationship between the
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deviation and the plaintiff’s injury.” Young v. District of Columbia, 752 A.2d 138, 145 (D.C.
2000) (internal quotation marks omitted). “It is axiomatic that under a negligence regime, one
has a duty to guard against only foreseeable risks.” Novak v. Capital Mgmt. & Dev. Corp., 452
F.3d 902, 911–12 (D.C. Cir. 2006) (internal quotation marks omitted, emphasis added). “The
foreseeability required when the harm is caused by the criminal act of a third party, however, is
more exacting. Because of the extraordinary nature of criminal conduct, liability depends on a
heightened showing of foreseeability in the context of an intervening criminal act.” Id. at 912(internal quotation marks omitted).
For a negligent infliction of emotional distress claim, a plaintiff has two options. She can
show that: “(1) the plaintiff was in a zone of physical danger, which was (2) created by the
defendant’s negligence, (3) the plaintiff feared for her own safety, and (4) the emotional distress
so caused was serious and verifiable.” See Cornish v. District of Columbia, 67 F. Supp. 3d 345,
363 (D.D.C. 2014). Or, a plaintiff can proceed under the “special relationship” test established
in Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 810–11 (D.C. 2011) (en banc). Under
that theory, a plaintiff must show that “(1) the defendant has a relationship with the plaintiff, or
has undertaken an obligation to the plaintiff, of a nature that necessarily implicates the plaintiff’s
emotional well-being, (2) there is an especially likely risk that the defendant’s negligence would
cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the
defendant in breach of that obligation have, in fact, caused serious emotional distress to the
plaintiff.” Id.Overall, Kennedy has failed to raise a genuine dispute of fact as to whether Bruce’s
actions were foreseeable by Berkel. This requires summary judgment on each of the three
negligence claims. See Novak, 452 F.3d at 911–12 (“It is axiomatic that under a negligence
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regime, one has a duty to guard against only foreseeable risks.” (internal quotation marks
omitted)).
The parties do not meaningfully dispute that Berkel had no “actual . . . knowledge” that
Bruce “behaved in a dangerous . . . manner.” Godfrey, 559 F.3d at 571. Indeed, Kennedy admits
that she did not inform anyone at Berkel about Bruce’s actions at any point during her
employment or afterwards. See Kennedy Dep. at 65:8–16. Bruce also testified that he told no
one in the relevant time period. See Bruce Dep. at 51:17–20. And Kennedy points to no other
means by which Berkel might have acquired actual knowledge.
As to constructive knowledge, Kennedy concedes that Berkel had no evidence “which
would show that [Bruce] had any history of or proclivity for sexual harassment or sexual
violence.” See Pl.’s Opp’n at 5–6, Dkt., 52. Rather, she says that “Berkel . . . should have
known[] that they had improperly trained and supervised Mr. Bruce.” Id. at 9–10. She focuses
on Berkel’s employee onboarding procedures, which she argues were so “inadequate” “that it
was reasonable to foresee that . . . Mr. Bruce [would] sexually harass, sexually assault, rape, and
discriminate against the Plaintiff.” Id. at 10. She notes, for example, that Berkel provided
orientation training on several topics but did not provide separate training on sexual harassment
during employee orientation. Id. at 9. She also notes that Berkel instructed employees to report
sexual harassment issues to the company’s AA/EEO officer, who was located in another state.
Id.
Taken together, these facts do not create a genuine dispute as to whether Berkel knew or
should have known that Bruce behaved in a dangerous manner. True, Bruce now claims that he
did not realize at the time that his interactions with Kennedy were wrong (despite receiving and
reviewing the sexual harassment policy). See Bruce Dep., 13:2–12, 14:10–15. But his
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subjective recollection, even if credited by a jury, does not go to what Berkel would have or
should have known at the time. On that front, Kennedy has not pointed to evidence in the record
showing that Berkel knew or had any reason to know that Bruce was sexually abusing her. To
the contrary, Berkel would have expected to be informed of any ongoing sexual harassment
issues in the workplace, pursuant to the sexual harassment policy provided to all employees. See
Berkel Employment Manual at 11, Dkt. 48-6. Berkel provided employees with its sexual
harassment policy as a matter of course. See Interrogatories at 10 (Response to Interrogatory
10), Dkt. 48-4. Employees were required to read the policy and sign a form acknowledging that
they had done so. Id. That policy encouraged employees to report all sexual harassment
promptly, to a supervisor or to a designated employee specifically charged with handling
workplace harassment issues. See Berkel Employment Manual at 11. And Bruce admitted that
he received and reviewed that policy. See Bruce Dep., 13:2–12.
Kennedy provides one further, alternative argument on causation for her negligent
infliction of emotional distress claim. She argues that Berkel owed her a “special relationship.”
See Hedgepeth, 22 A.3d at 799–800, 810–11. To succeed on this theory, Kennedy would have to
show that Berkel “assumed a duty to avoid inflicting emotional distress” because “the underlying
relationship or undertaking” between them was “such that it [wa]s not only foreseeable, but
especially likely, that the defendant’s negligence [would] cause serious emotional distress to the
plaintiff.” Id. at 799–800 (emphasis added). She would also have to show that the relationship
was one that by its nature “implicated [her] emotional well-being.” Id. at 812. Examples of such
relationships include “psychiatrist/therapist and patient,” id. at 813, a funeral home’s handling of
a corpse, id., and “persons who are appointed to act as guardians and counsel for those who are
especially vulnerable: children, the elderly, and the disabled.” Id. at 814.
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Putting aside whether Kennedy improperly raised this argument for the first time in her
opposition to summary judgment, see Bruce Reply at 11, Dkt. 54, the argument fails as a matter
of law. As discussed above, Kennedy has not met the usual standard of foreseeability, let alone
the “especially likely” heightened showing. Hedgepeth, 22 A.3d at 799–80. In the end,
Kennedy’s relationship with Berkel was one of an employee and an employer. And “[m]erely
alleging an employer-employee relationship foreclose[es] any special relationship liability.”
Robinson v. Howard Univ., Inc., 335 F. Supp. 3d 13, 31 (D.D.C. 2018) (internal quotation marks
omitted).
In sum, summary judgment is proper as to Kennedy’s three negligence claims against
Berkel.
D. Privacy Torts
Kennedy brings three privacy tort claims against Bruce: intrusion upon seclusion (count
XX); defamation (count XXIV); and public disclosure of private facts (count XXI).
1. Intrusion upon seclusion
“The tort of intrusion upon seclusion has three elements: (1) an invasion or interference
by physical intrusion, by use of a defendant’s sense of sight or hearing, or by use of some other
form of investigation or examination, . . . (2) into a place where the plaintiff has secluded
himself, or into his private or secret concerns, . . . (3) that would be highly offensive to an
ordinary, reasonable person.” Wolf v. Regardie, 553 A.2d 1213, 1217 (D.C. 1989) (internal
citations omitted).
“The types of invasion intrinsic in the tort of intrusion upon seclusion are . . . harassment,
. . . peeping through windows or into other locations in which a plaintiff has chosen to seclude
himself, . . . opening personal mail, . . . eavesdropping on private conversations, . . . entering a
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plaintiff’s home without permission or searching his or her belongings, . . . examining a
plaintiff’s private bank account, . . . or other invasions of that nature.” Id. at 1217–18 (internal
citations omitted).
In this case, Kennedy bases her intrusion upon seclusion claim on a phone call she
received from Bruce after work hours. She left work because Bruce had exposed himself to her
in the trailer. See Kennedy Dep. At 59:1–8. Bruce later called Kennedy and asked if she ran
because “it was rusty.” Id. Kennedy had given Bruce her phone number for work-related
contact. See Kennedy Aff. ¶ 34.
Kennedy’s claim cannot succeed as a matter of law, even if the jury credits her account,
because she cannot satisfy the first element of the test: “an invasion or interference by physical
intrusion, by use of a defendant’s sense of sight or hearing, or by use of some other form of
investigation or examination.” Wolf, 553 A.2d at 1217. Because she has not pointed to “an
invasion or interference by physical intrusion,” id., the facts would have to support a showing of
“some other form of investigation or examination.” Id. Kennedy has presented no case law
indicating that a single phone call can constitute the type of “investigation or examination”
covered by this tort. See Kennedy Op. at 12–13. Further, she has pointed to no evidence that
Bruce conducted an “investigation or examination” to retrieve her phone number. Wolf, 553
A.2d at 1217. Kennedy gave Bruce her phone number for work-related calls. See Kennedy Aff.
¶ 34; Pl.’s Opp’n at 12. Thus, Bruce did not conduct an “investigation or examination” that
invaded Kennedy’s privacy in order to retrieve Kennedy’s phone number. Nor is the single
phone call itself, though highly inappropriate, an “investigation or examination.” Wolf, 553 A.2d
at 1217. Cf. Alexander v. F.B.I., 971 F. Supp. 603, 610 (D.D.C. 1997) (finding the “collection
and examination of FBI files” to be an examination for purposes of intrusion upon seclusion).
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Because Kennedy has raised no genuine dispute of material fact on this essential element of an
intrusion upon seclusion claim, summary judgment is proper.
2. Defamation
To succeed on a claim of defamation, a plaintiff must show: (1) that she was the subject
of a false and defamatory statement; (2) that the statement was published to a third party; (3) that
publishing the statement was at least negligent; and (4) that the plaintiff suffered either actual or
legal harm. See Farah v. Esquire Mag., 736 F.3d 528, 533–34 (D.C. Cir. 2013).
Kennedy has raised genuine disputes of material fact as to each element. Kennedy
believes that Bruce shared the false and defamatory statement that they had a consensual sexual
relationship with at least one other Berkel employee. See Kennedy Dep. at 123–27. She
believes this because once she arrived at her new job, male employees taunted her with sexual
innuendo, implying that she was a “super freak.” See id.Although Kennedy has not shown with certainty that Bruce published the false and
defamatory information, see Bruce Reply at 5, certainty is not required at the summary judgment
stage. Rather, “at the summary judgment stage the judge’s function is not [] to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249.
Kennedy has pointed to enough circumstantial evidence that a reasonable jury could infer
that Bruce was the source of the information. For example, she noted that she had never
experienced similar taunts in her entire career in construction. See Kennedy Dep. at 123–27.
And she only experienced them for the first time, just after she left Berkel. Id. Further, one of
the employees at the new site was a former Berkel employee and was friendly with Bruce. Id.And Kennedy said that she never talked with anyone else at Berkel about what went on between
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Bruce and her, so Bruce was the only logical source of the information. See id. at 65:6–16.
Kennedy has also raised a genuine dispute as to whether the statement was false, since she
testified in great detail about how the sexual acts were not consensual. See, e.g., id. at 62, 70,
72–73, 108. Finally, Kennedy has raised a genuine dispute as to whether she suffered actual
harm from Bruce’s disclosure, given her extensive psychological suffering after the taunting.
See id. at 83:13–16. Thus, her defamation claim survives.
3. Public disclosure of private facts
To prevail on a claim of public disclosure of private facts, a plaintiff must prove “(1)
publicity, (2) absent any waiver or privilege, (3) given to private facts (4) in which the public has
no legitimate concern and (5) which would be highly offensive to a reasonable person of
ordinary sensibilities.” Kumar v. George Washington Univ., 174 F. Supp. 3d 172, 190 (D.D.C.
2016) (quoting Wolf, 553 A.2d at 1220).
Kennedy’s public disclosure of private facts claim rises and falls on the same factual
dispute as the defamation claim. That is, whether Bruce published that he and Kennedy engaged
in sexual acts. Here too, Kennedy provides sufficient circumstantial evidence for a jury to infer
that Bruce told the Berkel employee who later worked at a different site with Kennedy that he
and Kennedy had had sex. See supra III.D.2.
Of note, the public disclosure of private facts claim differs from the defamation claim in
that it does not require a showing that the published statement was false. Compare Kumar, 174
F. Supp. at 190, with Farah, 736 F.3d at 533–34. Thus, a jury need only find that Bruce
published the true fact of their sexual intercourse—not the allegedly false statement that the
interactions were consensual—for Kennedy to prevail on this claim. Given the genuine dispute
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of material fact as to whether Bruce communicated that fact to others, Kennedy’s public
disclosure of private facts claim survives summary judgment.
CONCLUSION
For the foregoing reasons, the defendants’ Motion for Partial Summary Judgment is
granted in part and denied in part. A separate order consistent with this decision accompanies
this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
August 20, 2020
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