Gaye Lively v. Flexible Packaging Association (order)
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 97-CV-128 G AYE L IVELY, A PPELLANT, v. F LEXIBLE P ACKAGING A SSOCIATION, et al., A PPELLEES. Appeal from the Superior Court of the District of C olumbia (CA-13834-93) (Hon. Geoffrey M. Alprin, Trial Judge) (Reargued En Banc October 30, 2001 Decided August 21, 2003) Lawrence E. Eisner, with whom Thoma s L. McC ally, was on the brief, fo r appellant. Alfred Belcuore for appellees. Stephen Z. Chertkof, Lois G. W illiams, Avis Buchanan, Susan H uhta, Carl Messineo, and Linda M. Correia , filed an amicus curiae brief for the Washington Lawyers Committee for Civil Righ ts and Urb an Affairs, th e Partnership for Civil Justice, Inc., and the Metropolitan Washington Employment Lawyers Association. Before W AGNER, Chief Judge, T ERRY,* S TEADMAN, S CHWELB, F ARRELL,* R UIZ, R EID, G LICKMAN, and W ASHINGTON, Associate Judges, and B ELSON, Senior Judge. R EID, Associate Judge: On June 11, 2001, this court issued an order vacating the panel decision in Lively v. Fle xible Pack aging As s n, et al., 765 A.2d 954 (D.C. 2001), an employment discrimina tion case in which the majority affirmed a trial court judgment overturning a jury verdict in favor of appellant G aye Live ly, and aga inst appellees Flexible Packaging Association ( FPA ) and Mr. G len Braswell ( M r. Braswell ), 1 on her claims of * Judges Terry and Farrell heard the argument on tape. 1 Mr. Braswell died while this appeal was under consideration. 2 a sexually ho stile work e nvironm ent, unequal pay, retaliation for an assertion of her rights under the District of Columbia Human Rights Act ( DCHRA ), and intentional infliction of emotional distress. See Lively v. Flexible Packaging Ass n, et al., 773 A.2d 1033 (D.C. 2001). 2 After the en banc oral argument on October 30, 2001, we held the case in abeyance pending the Supreme Court s decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). After Morgan was decided, we asked the p arties to file supplemental briefs discussing its impact on Ms. Lively s case. We hold that Ms. Lively filed her hostile work environment claim in a timely manner and that a reason able person, viewing the evidence in the light m ost favorab le to her, cou ld reach a verdic t in her fa vor. Therefore , as to that claim, we reverse the trial court s grant of judgment notwithstan ding the ve rdict in favor of appellees, and remand that claim to the trial court with instructions to (1) reinstate the jury s liability verdict and the c ompensatory damages award attached to that claim, and (2) consider the reasonableness of the punitive damages award in a mann er consisten t with this op inion. We also adopt, for cases filed under the DCHRA, the Supreme Court s hostile work environment analysis governing federal civil rights claim s as it is set forth in Morgan, supra, and reaffirm the legal principles relating to a hostile w ork enviro nment c laim that we articulated in Daka, Inc. v. Breiner, 711 A.2d 86 (D.C . 1998). 3 2 3 An amended order was issued on June 22, 2001. We did not include Ms. Lively s unequal pay claim in our order regarding rehearing en banc, but did include her retaliation and intentional infliction of emotional distress claims. Because we conclude that we improvidently granted rehearing en banc as to those two claims, we vacate that portion of our order, and reinstate the opinions of the division conce rning th e retaliatio n and in tentiona l infliction of em otional d istress cla ims. 3 FACTUAL SUMMARY The record before us shows that Ms. Lively began her employment at FPA in 1980, while Richard Lillquist was President of the association.4 She was hired initially as a secretary, was promo ted in 1981 to Assistant to the Preside nt, and receiv ed prom otions in 1982 and 1983, respectively as Meetings Manager, and Director of Administration and Meetings. All of her performance ratings were positive and above average ; and resulted in pay increases. There were no problems with the work environment. In fact, Sheron Edward Weary , who testified for Ms. L ively and w ho was e mploye d at FPA from 19 81 to 1992, described the environment under Mr. Lillquist as [a] normal business-type of atmosphere. Mr. Lillquist left FPA in 1985, and on March 1, 1986, FPA selected Glen Braswe ll as President. B eginning in or around 1986 /1987, Mr. Braswell, and Richard Thornburg, who was hired by Mr. Braswell in 1987 as Director of Government Relations, began to make comm ents about females w ithin the hearing of FPA s female emp loyees. Mr. W eary indicated that these comments did not occur routinely or every day, but periodically during the time that [he] was there . According to M s. Lively s testimony at trial, howe ver, after the arrival of Mr. Thornburg, he an d Mr. B raswe ll referred to wom en as b imbo s, 4 Prior to joining FPA, M s. Lively ha d been em ployed by the FBI fro m 1964 to 1969, in a job related to the training of agents to read fingerprint documents; the International Union of Operating Engineers as a secretary from 1969 to 1971; the Airline Pilots Association from 1971 to 1974, as a secretary; and the American Can Company, from 1974 to 1980, first as a secret ary and then as office m anage r. 4 hookers and prostitutes and old maids and dykes and girls . . . [o]n a daily basis. 5 They also foc used o n wom en s bre asts and buttock s, referrin g to them as boo bs and asses. In or around 1987, Mr. Braswe ll and Mr. T hornburg were inv olved in ce rtain incidents concerning female employees at FPA. Around January 1987, Marjina Kaplan was hired as a consultant at FPA, and became Director of Marketing and Co mmunications in August 1987. Sometim e in the fall of 1 987, M r. Braswe ll called Ms . Kaplan a nd asked her to arrange for a male stripper for Ms. Lively s birthday. He instructed Ms. Kaplan to use [her] own personal credit card to pay for [the stripper] an d informe d her that F PA w ould reimburse [her] . . . . On her b irthday, M r. Braswe ll called Ms . Lively into h is office, told her to sit in his overstuffe d reading c hair; the ma le stripper m oved to the front of the ch air and disrobed down to nothing but a G-string. . . . Ms. Lively became really red in the face. She w as pinned into the cha ir with the stripper straddl[ing it]. Mr. Braswell took pictures of the m ale stripp er and laugh ed. 6 Some of the women who had gathered in the doorway just turn ed and walke d awa y . . . . M r. Wea ry desc ribed f eeling . . . nervous about the inciden t because w omen w ere presen t. He noted that Ms. L ively initially . . . [was] good hum ored about the [stripper], as w ere others, but that when he observed her a couple of time s, . . . she loo ked kin d of stric ken . . . , like she was cornered an d wasn t sure what w as goin g on . . . . 7 5 Ms. Marjina Kaplan, another female F PA emp loyee, heard the words bimbos, broads, boobs pretty often[;] daily, probably. 6 Mr. Braswell asked [Ms. Lively] not to show [the pictures of the stripper] to anyone because he would be fired if [members of the association found out that they existed]. 7 Ms. Lively ackn owledged that ea rlier in 1987, she and other employees had hired a dancer who was dressed like a genie in sheer material with satin un derneath for Mr. (continued...) 5 Another incident took place in mid-Dec ember 1987 while Mr. Brasw ell, Mr. Thornburg, Ms. Lively, Ms. Kaplan and two other FPA employees, Lisa Greig and Cindy Daneker Gray, were in Houston, Texas on FPA business. The incident was memorialized by Ms. K aplan in a file m emor andum , dated December 29, 1987. Ms. Kaplan was seated next to Mr. Thornburg in a limousine [that] had been hired to transport [FPA] staff [and their host, Jeff Siebenaller] to various points around Houston. While Ms. Lively was stepping into the limousine, Mr. Tho rnburg p ulled her into the car, urgin g her to sit on his lap because, h e said, he w anted to look down [Ms. Lively s] cleavage. During the same trip, when Ms. Kaplan su ggested that she did not want to go to a disco after dinner, and would rather return to the hotel, Mr. Th ornburg told her: If you va lue your ca reer, you ll go along [to the disco]. Mr. Siebenaller told the women who were on the Houston trip that he found [Mr. Thornburg s remarks to be] unprofessional and objectionable. He indicated that he planne d to call M r. Braswe ll within a few day s to expres s his negativ e reaction to [Mr. T hornb urg s] la nguag e. 8 7 (...continued) Braswell s birthday. The dancer sang Happy Birthday to Mr. Braswell, but did not undress. Mr. Weary described the dan cer as a be lly dancer who w as provoc ative and th at, in contrast, the stripper was much more on the crude side and he went a lot further than [Mr. Weary] had taste for. 8 Ms. Kaplan s December 29, 1987 memorandum mentioned complaints made by Ms. Greig and M s. Gray about c omm ents an d action s by M r. Thorn burg. H e once summoned Ms. Greig to his office in Septem ber 1987 by say ing, get your buns in h ere. Earlier, he remarked that he enjoyed following [Ms. Greig] down the hallway so he could watch her walk. Although she was engaged at the time, in mid-October 1987, Mr. Thornburg spent time flirting with Ms. Gray. In November 1987, Mr. Thornburg told [Ms. Gray] he thought she was a hunk of a woman and that he hoped her boyfriend knew how lucky he was to be getting such a hunk of a woman. Ms. Lively s trial testimony also mentioned these re mark s. 6 Ms. Lively received complaints from Ms. Greig and M s. Gray in October 1987, in her capacity as Director of Adm inistration and Meeting s. She com munica ted the com plaints to Mr. Braswe ll who instru cted her to re lay them to Mr. Thorn burg. M r. Thornbu rg initially denied the accuracy of the complaints, but then told M s. Lively: I w ill not do it again. On December 18, 1987, following the Houston trip, Ms. Kaplan also conveyed Ms. Greig s and Ms. Gray s co mplaints to Mr. Bra swell. She alerted him to Mr. Sieb enaller s plan to call him about Mr. T hornb urg s b ehavio r. Mr. Bra swell beca me ang ry, and acc ording to Ms. Kaplan, things began to change after that. Prior to reporting the complaints to him, Ms. Kaplan had received favorable oral comm ents from Mr. Braswell in 1987 about her wo rk perfo rman ce. Mr. Braswell provided written evaluations of Ms. Lively in June and again in December 1987. He wrote in June 1987: I view your performance during the last 12 months as cooperative, productive and totally dedicated to the performance of your duties. The evaluation for December 1987 reflects Mr. Braswe ll s assessment of Ms. Lively s overall writing, speaking, and listening abilities as developed. Other than the use of o ffensive langua ge abo ut wom en, the record evidences no remarkable incidents involving M s. Lively and other FP A female em ployees, and M r. Braswe ll and Mr. Thornburg in 1988, although the impact of the 1987 complaints by Ms. Kaplan and Ms. Lively materialized around December 1988, at the time yearly performance ratings were due.9 For the year 1988, Mr. Braswell generally described Ms. Kaplan s 9 Two fe males w ere hired in 1 988, Cou rtney Log sdon in M arch, and M elanie Gn ess in December 1988. Ms. Lo gsdon left F PA after a pproxim ately five years, an d Ms. G ness in (continued...) 7 comm unication skills as below standard or unacceptable. Her overall performance rating was below standard. He rated eight tasks performed by her in four different areas of communications. One task was rated as effective, two as below standard, and five as unac ceptab le. Yet, as in 1987, in the skills evaluation section of the rating form, he rated her commu nications skills ( overall writing, speakin g, listening ab ilities ) as we ll develo ped. On the overall evaluation section of the 1988 r ating form , Mr. Bras well marked the box b elow stan dard. In the additiona l comm ents section of the overa ll evaluation section, M r. Braswe ll wrote that Ms. Kaplan has been a source of staff disruption and discon tent on s everal o ccasion s both w ithin and withou t her dep artmen t, i.e., (1) Reported to President [of FPA] allegations of sexual harassment of members of her department and others by another FPA staff member. Subsequent investigation found charge to be un found ed . . . . 10 Ms. Kaplan wrote a letter of complaint to the FPA Board, rebutting her negative performance evaluation. Similar to his evaluation of Ms. Kaplan, Mr. Braswell criticized Ms. Lively s writing, speaking, and listening communication skills in 1988, characterizing them with the words: needs development. 9 (...continued) March 1990. Both described negative comments that Mr. Braswell made about women (calling them bimbos, and using preggers for pregnant women), but neither woman testified a s to the y ear in w hich the comm ents w ere ma de. 10 Ms. Kaplan resigned in December 1988. Her June 15, 1994, affidavit contains the following statement: In his evaluation of me, [Mr. Braswell] wrote blatant falsehoods which had no basis in f act and , were, in truth, a continuatio n of his cam paign to m ake it impossib le for me to continue in my employment at FPA. He successfully forced me out of my position in December 1988. 8 By 1989, the FPA Board had become aware of the accusa tions agains t Mr. Bras well. On Januar y 9, 198 9, the Compens ation and P ersonnel C omm ittee met w ith Mr. Bra swell. The Comm ittee Chairm an, David E. McF arlane, read h is written statem ent to Mr. B raswell, which included the following: Needless to say, or perhaps it does require saying, too much of our time has been spent agonizing over events and situations you have created. To name just two that have affected me - the whores and hookers comm ent to staff prior to the last annual meeting put a damper on that meeting for me and the staff. The telephone calls from [Ms. Kaplan] and others just prior to Christmas concerning her resignation and other internal affairs ha[ve] caused me considerable worry during a season that is supposed to be festive. Mr. McFa rlane adde d a specific c omm ent relating to M r. Braswe ll s handling o f compla ints by female employees: Another point I want to speak of is a personal perception. You are a chauvinist. You appear to have a tendency to demean women and their abilities, at the same time advancing and promoting the career of [Mr.] Thornburg. While I do not want to debate the sexual overtones (ha rassment?) attributed to [M r. Thornburg], I feel the charges were true and your handling of the situation with a trial is a ludicrous management style. While you are a lawyer, you should not have trials to discuss a staff problem with yourself as the jury and judge. As the judge and boss you can ruin the care er of an unfrie ndly w itness. I certainly would disclaim h arassment if my job were on the line. Ms. Gness described the atmosphere at FPA which confirmed the presence of a demeaning attitude toward w omen, in which w omen s abilities were questioned : Women were referred to as bimbos. It was so rt of entities without any real substance, airheads. And, in her June 9 15, 1994 affid avit, Ms. Ka plan declared that [Mr.] Braswell ma[d]e inappropriate and demeaning comments about and to women employees on a regular basis. She indicated that [h]e also gave [her] vague and confusing tasks which he never in tended for [ her] to comp lete and for the p urpose of criticiz ing [he r] whe n they w ere not d one. Following his January 9, 1989, meeting with the Compensation and Personnel Committee of the FPA Bo ard, an angry Mr. Braswell instructed FPA employees not to make any complaints directly to the Board without first bringing them to him, and accused Ms. Lively not only of reporting him to the FPA Board, but also of being a liar. Ms. L ively engaged an attorney who sent a letter on February 21, 198 9 to Malcolm McArthu r, FPA s legal counsel, w ith a copy to the chairman of FPA s Board, Andrew Levy.11 Later, a meeting took place between FPA s counsel, Ms. Lively and her counsel, and two other FPA employees. Also, in early 1989, the FPA Board sent Mr. Braswell to the Farr Institute for mana geme nt and c omm unicatio ns trainin g. Ms. Lively recalled no inappropriate, offensive statement made directly to her by Mr. Braswe ll in 1989. N or did she remember Mr. Thornburg mak[ing] any inappropriate, discrimina tory, harassing or abusive comments directly to [her] in 1989. Both men, however, were m aking offen sive com ments of a sexual natu re in the office for the year[] 1989. . . . Moreover, while Ms. Lively s 1989 performance evaluation had negative aspects, 11 The letter referenced Ms. Kaplan s resignation and performance evaluation (including the reference to alleged sexual harassment complaints ), Mr. Braswell s accusation that employees who called FP A Board m embers we re liars, criticized Mr. Braswell s management of FPA s staff, and mentioned some major problems going on at [FPA] which . . . caused the staff to seek counsel. 10 especially in the overall writing, speaking and listening abilities category, it was not as negativ e as M r. Brasw ell s 198 8 evalu ation of her. Ms. Gness, who had been hired in 1988 by FPA , remem bered that p regnant fem ale employees at FPA we re called preggers, and women were referred to as bimbos. She also recalled an incident wh en she traveled with M r. Braswell and M r. Thornburg to an annual meetin g of state legislato rs. While they were in a bar at the end of the day, both men were flirting with the waitress whose name was Bambi, and began to joke and laugh about a lingerie show that was scheduled to comme nce within one hou r. Ms. Gn ess felt uncom fortable and left. During 1990, the FPA Board, which had continued to monitor the administration of the organization, received a complaint from Ms. Gness after she was given a negative performance evaluation by Mr. Braswell in 1990. Mr. Braswell criticized her writing ability, even th ough he r work w as freque ntly recogn ized in [FP A s] mo nthly news letters, and she had been a newspaper reporter prior to commencing w ork at FPA. Ms. Gness resigned from FPA in March or April 1990 . Similar to Ms. Gn ess evaluation, Mr. Braswell also criticized Ms. Lively s writing skills in 1990.12 On August 8, 1990, the President of FPA, then John R. Woolford, Jr., sent a letter to Mr. Bra swell, stating in part: Let me go rig ht to the poin t. There is a perception that Gaye Lively is being painted unfairly into a corner and some senior m embe rs of the a ssociatio n are un happy about it . . . . 12 Ms. Gn ess testified that when she was in the office and off travel for FPA, she interacted on a daily basis with Ms. Lively and did not see any problems with Ms. Lively s writing, or her oral communication skills. 11 The second perception is that you are overly quick to defend [Mr. T hornb urg]. In his deposition and trial testimony, Michael McNamara, an FPA Board member, and Chairman of the Board in 1992, acknowledged that back in 1990[,] [Mr. Woolford] had put specific restrictions on Mr. Bra swell in his treatment of [Ms.]Lively, and had indicated that Mr. Braswell was not to be critical of her. During M r. Braswell s trial testimony, he was asked: As a result of Mr. Woolford s concerns as Chairman of the Board of FPA, he placed a specific restriction on you not to discipline or criticize Ms. Lively; correct? Mr. Bra swell responded: That is co rrect. Mo reover, in August 1990, Mr. McNamara and another Board membe r, Jerry W est, met w ith Mr. Bra swell to discuss the situation with M s. Lively, and Mr. Braswell s management style. Personnel issues also were discussed with Mr. Braswell in Fall 1990, when Mr. Braswell apologized and thanked [M r.] Woolford and [Mr.] West for their assistance and said This w ill not happen again. In Janu ary 1991, M r. Woolford wrote a memorandum to the FPA files docum enting his co nversation s with M r. Braswe ll and his management style. He ended the memo by writing: There have bee n no re-oc currences of personn el issues in the fourth quarter of 1990. I am not naive enough to feel the one session with Farr Ass ociates cha nged [M r. Braswe ll s] basic management style. How ever, I do fee l he is trying to be a better manager and he is aware of the problem he will have if he runs wild again. Ms. Lively did not encounter any direct discriminatory, harassing or abusive comm ents or conduct from either Mr. Braswell or Mr. Thornburg in 1991. She sustained a 12 hip injury at work in November 1991 when she bumped into the corner of a de sk while renova tion wo rk was underw ay, but c ontinu ed to w ork at F PA. In 1992, around March, Mr. McNamara became Chairman of the Board. In addition, around May o r June 199 2, Mr. W est, in his capacity as Chairman of the Personnel Com mittee, r emov ed the re striction o n Mr. B raswe ll s criticism of Ms . Lively . Comm ents with sexu al overtone s were m ade by M r. Thornbu rg and M r. Braswe ll in 1992, shortly before and after the restriction on Mr. Braswell was lifted. In February 1992, while Ms. Lively w as bent down a t [a] file cabinet, Mr. Thornbu rg said: Lively, every time I see you, you re on your knees. When Ms. Lively responded: No, I m not. And what do you mean by that comment, Mr. Thornburg answered: That s not the talk going on in th e barbe rshop. 13 Another incident too k place w ithin a mo nth or two after the restriction on Mr. Braswe ll was re move d. At a July 1992 meeting of FPA sta ff directors, w hich M r. Braswe ll attended, Mr. Thornburg made the comment that to get state legislators into [an] FPA [trade show] booth, they wou ld just put [a female FPA emplo yee,] Tamm y [Poston] in a short skirt and put her out in the aisle, and that w ould bring state legislators in to the booth so FPA could 13 During her trial testimony, Ms. Logsdon recounted a similar incident in 1992 involving Tiffany Stalboerger, FPA s receptionist. Ms. Stalboerger was doing some work filing or something, general work on her knees in the w orkroom. M r. Thornburg said something to the effect of, oh, you re on your knees again. When Ms. Stalboerger made a comment back to him, he retorted: That s not what the boys in the barbershop say. Ms. Logsdon specifically recalled the incident because she knew that [Mr. Thornburg] had said [v irtually the same thing] w ith som eone e lse befo re, . . . [but she] ha dn t heard it d irectly said before that. The women regarded comments about being on their knees as accusations of oral sexual behav ior. 13 talk to them. In Octob er 1992, during a m eeting in Florida of twenty FPA m ale staff members, Mr. Braswell arrived late and sat opposite Ms. Lively. He asked Jim O Leary, who was seated at the head of the table, and who was the chairman of a committee that worked with Ms. Lively, [W]ere you in [M s. Lively s] room last night conducting mem bership business? Ms. Lively became upset because she understood M r. Braswell s question to be, [W]as [Mr.] O Leary in [her] room having sex? Also, on December 11, 1992, Ms. Lively was in the copying room when Mr. Braswell entered while a female FPA employee, Katherine Hyde, w as discardin g books. W hen M s. Hyde asked M r. Braswe ll to help her retrieve the[] books, he d eclared: Don t you know I ve had a hernia operation and I can t h elp you retrieve these b ooks? You re the du mbes t girl I ve e ver see n. 14 Mr. Braswell placed two letters written in October 1992 by persons outside of the FPA staff into Ms. Lively s personnel file, as examples of her alleged deficient communication skills. One of the letters came from Robert O. Kentworthy, at Mr. Braswe ll s request that he red uce to writing his oral comp laint . . . . The other letter, from Len Levy, asked for a clarification of remarks made by Mr. Braswell at a Membership Committee meeting. In a December 11, 1992 letter to Ms. Lively, read to her in Mr. Braswell s office in the presen ce of FPA s legal coun sel, Mr. Bra swell and Mr. M cNam ara wrote, in part: Managem ent s perception of your deficiency in communications skills has been validated b y the receip t, during 1992, of written complaints from m embers r egarding y our perform ance in this area. I specifically refer to the Bob Kentworthy/Tom Bryce communiques regarding unprofessional communique follow ups 14 Mr. Bra swell actua lly stated: You re the dum best white girl I ve ever s een. (em phasis supplied). During a pretrial discussion of this comment, the word white was excluded to avoid a n infere nce tha t the case also inv olved r ace. 14 in mem bership development activities, and the Len Levy letter regarding the minutes of the Mem bership C omm ittee. This is in addition to several oral comments received about your communications deficiencies, including comments from our Chairman, Mike McNamara, regarding the mis-communications during certain spouses planning meetings. The letter noted tha t Ms. Live ly s perform ance revie ws since 1 988 hav e specifically designated [Ms. L ively s] comm unicatio ns skills a s an are a that ne eds dev elopm ent. 15 After conclud[ing] that [Ms. Lively s] current skills do not meet the minimum levels required for Director level performance and position at FPA, . . .[ ] the letter stated: 15 In June 19 91, FPA hired Jane D andelski a s a staff technician for the M embersh ip Department and the Finance a nd Adm inistration Department. Sh e became M s. Lively s administrative assistant. In 1992, shortly before [M s. Lively] left for her formal medical leave, Mr. Braswell asked Ms. Dandelski to proof read correspondence sent out by Ms. Lively. Ms. Da ndelski fou nd [n]um erous typo s. She com plained tha t Ms. Live ly would giv[e] [her] one d irection one day and then chang[e] her mind the next day or maybe 2 weeks down the line. Jennifer Lee Scott, who held a college degree in elementary education and history, and was hired in Ju ly 1991 to work for Mr. Thornb urg and two oth er FPA staff members, testified that at FP A staff m eetings, when a question was asked of Ms. Lively, [s]he would stop and would not know what to say and would stum ble over an answ er. In responding to a question about M s. Lively s ab ility to adequa tely and accurately comm unicate information, M s. Scott asserted: In general, reading letters and things that were composed by her that went out of the office, to me they were full of grammatical and spelling errors. Marjorie Valin, who was hired by FPA in February 1992, and who was Director of Public R elations and M arketing for F PA at the tim e of Ms. L ively s trial, thought [Ms. Lively s] oral abilities [were] fine. Although sh e believed Ms. L ively s written abilities could use some improvement, she responded, Oh, no to the question: Were her written communications so bad, so wrong, so beyond the pale that in your mind, it would require psychiatric testing to see what improvements could be made? Several former FPA employees, including Ms. Kap lan, Ms. Logsdon, and Ms. Gness gave testimony indicatin g that the y saw no defi ciencie s in M s. Lively s com muni cations skills. Other than those em anating from Mr. Bra swell, M r. McN amara co uld identify o nly three complaints concerning Ms. Lively s communications skills during her 12-year tenu re with FPA, one of w hich cam e from his wife who complained that Ms. Lively would not get back to her about things that women could do at the Annual Meeting. Ms. Lively pointed out that during h er 16 years of work p rior to her FPA employ ment, none o f her sup ervisors had ev er criticiz ed her c omm unicatio ns skills. 15 We have m ade arrang ements, at F PA exp ense, for yo u to be tested and diagnosed by the Kings bury Ce nter in Washington, D.C. These tests would determine your communications skills competence level versus your level of performance at FPA and recommend to you and the FPA such courses of action necess ary to bring your level of performance to the level expected at FPA. We also propose that any subsequent training required would be at FPA expense. The letter informed Ms. Lively that she would be placed on probation for six months, beginning after the completion of a battery of diagnostics tests at the Kingsbury Center, no later than January 15, 1993. 16 The letter warned that the diagnostic[] evaluations and further management review could result in Ms. Lively s reassign[ment] to a lower level of responsibility within the FPA , commen surate with [her] skills, both communications and otherwise, with an appropriate reduction in salary, reduced in increments over a period of time to lesse n its economic effect. Ms. Lively testified that the December 11, 1992 letter totally devastated [her] ; that she had w orked ve ry, very hard at [FPA] and [] loved it. She interpreted the letter as saying, [I]f I do not go to the Kingsbury Center, I will be 16 Although the Kingsbury Center services adults, it is known mainly as a place specializing in the learning disabilities of children. Descriptive literature contains the following explanation of the Kingsbury C enter: The Kingsbury Center is the oldest educational institution in the Washington area to address the special needs of young children, adolescents, and adults who experience learning difficulties. An independent, non-profit organization founded in 1938 by Marion Kingsbury to help children with learning disabilities achieve the ir potential, the Center provides services to hundreds of individuals each year. In addition, the Center operates The Kingsbury Day School, now in its ninth year, which is attended b y nearly fifty elementary school-age students. Dr. Cheryl Smith, a clinical psychologist at the Kingsbury Center, testified that 90-95% of the Center s patients were children. She asserted that a learning disability does involve brain dysfunction . . . . [I]t is some sort of a brain dysfunction. 16 termin ated, and indicated that it was totally unexpected. Her husband, Colbert Lively, described his wife s rea ction to the December 11, 1992 letter, particularly the section indicating that she was required to go to the King sbury Sch ool for diag nostic testing: She was just destroyed. She . . . [was] crying . . . . [S]he did not want to talk to anybody. She . . . was totally stressed out . . . . She took the blinds down. She did not want to see anybody . . . . Ms. Lively sought psychiatric help in an effort to cope with her devastation after she received the De cemb er 11 lett er, and a fter her te rmina tion. She described h er reaction to these events: I felt that I had lost everything, except my family, because FPA was my life. I had been there for 13 years when they fired me, and I was just tota lly devastated . I couldn t ea t. I couldn t sleep. I felt paranoid. I closed the blinds. I didn t want my neighbors to see me for I was so af raid that they w ould think that I did have a comm unicatio n prob lem. So, the only people that I surrounded myself with for about three or four months was immediate family, and I never want to experience that kind of feeling again. I was totally depressed. I don t ever want to go through that again. Following Dece mber 11, 1992, Ms. Lively worked from home due to recuperation from her November 1992 hip surgery, resu lting from h er Nove mber 19 91 hip injury . While she was recu perating an d workin g from h ome, M r. Braswe ll sent her a letter dated January 19, 1993, postponing the beginning date of her probationary period and training until after her return to FPA, but emphasizing the necessity of diag nostic testing b y a professio nal. 17 17 Responding to Ms. Lively s Januar y 13, 1 993 letter, in which she asked to go to the Anne Arundel Community College instead of the Kingsbury C enter, Mr. Bra swell wro te, in part, on June 19, 1993: It may be possible that if diagnostic testing from other sources (continued...) 17 In February 1993, FPA s insurance carrier terminated the workers compensation benefits the association h ad been m aking volu ntarily to Ms. Lively; the asserted reason was a belief that she had a pre-existing injury. The District of Columbia Department of Employment Services ordered th at Ms. Lively be pa id tempo rary total disab ility benefits retro active to Nove mber 2, 1992 . Later, on June 1 1, 1993, F PA sen t Ms. Live ly a letter indica ting that if she did not return to work by July 15, 1993, she w ould be fired. Ms. Live ly was scheduled for more surgery on July 8, 1993. Despite her request, made through her attorney, for additional time to recover from the su rgery, and to work from her home, Ms. Lively was terminated from her position at FPA on July 15, 1993, without receiving the normal severance package for FPA employees. 18 She was replace d by Mr. West who worked part-time for over one year from his hom e in No rth Car olina un til the po sition w as filled b y a perm anent e mplo yee. 17 (...continued) indicates that the courses available at An ne Arun del Com munity College are appropriate solutions, the FPA would accept that training, recognizing the geogra phical con venience to you. The diagnostic testing is the key to defining the proper solution and I am not comfortable (absent third party professional determination) that simply enrolling in community college classes addresses our specific needs. Therefore, the FPA still feels that the first step in addressing this matter is the diagnostic testing offered by the Kingsbury Center As I mention ed to you in our Dec ember 1 1th meeting, if there are oth er sources a vailable for d iagnostic testing that you prefer, FPA would be happy to consider them as long as they are as professionally co mpetent as the K ingsbury Center. 18 Ms. Lively s full salary was paid through April 30, 1993, after which she received long term d isability p ayme nts. 18 Ms. Lively filed suit against FPA and Mr. Braswell on December 8, 1993.19 At the close of a June 1996 trial, the jury initially returned answers to six main questions: (1) Do you find that the d efendant o r defendan ts discriminated against plaintiff in the course of her employment by the maintenance of a hostile work environment? [Jury: yes] If your answer is yes to Question No. 1, what amount do you feel would fairly com pensate plaintiff for her damages on this claim? [Jury:] $156,600 (2) Do you find that defendant or defe ndants discriminated against plaintiff in the course of her employment by providing unequal pay based on gender? [Jury: yes] If your answ er is yes to Question No. 2, what amount do you feel would fairly compensate plaintiff for her damages on this claim? [Jury:] $155,135 (3) Do you find that the d efendant o r defendan ts discriminated against plaintiff by unlawfully retaliating against her for asserting h er rights und er the D.C . Huma n Rights Act? [Jury: yes] If your answer is yes to Question No. 3, what amount do you feel would fairly compensate plaintiff for her damages on this claim? [Jury:] $91,823 (4) Do you find that an act or acts of the defendant or defendan ts intentionally inflicted emotional distress upon the plaintiff? [Jury: yes] If your answer is yes to Question No. 4, what amount do you feel would fairly compensate plaintiff for her damages on this claim? [Jury:] $54,600 19 Ms. Lively s complaint contained the following counts: (1) d iscrimination in the course of employ ment on the basis of se x; (2) discrim ination in the termination of employment on the basis of sex ; (3) discrimin ation in the termination of employment on the basis of physical handicap; (4) intentional infliction of emotional distress; (5) unlawful retaliation; and (6) wrongful termination of employment. Her demand for relief included compensatory and punitive damages. 19 (5) Do you find that an act or acts of defen dant Bras well were malicious or in willful, wanton or reckless disregard of plaintiff s rights? [Jury: yes] (6) Do you find that an act or ac ts of defend ant Flexible Packaging Association were malicious or in willful, wanton or reckless disregard of plaintiff s rights? [Jury: yes] Later, after hearing testimony from Mr. Braswell and an accountant for FPA concerning the net worth of each, the jury responded to two questions regarding punitive damages: (1) What amount of punitive damages do you a ward in favor of Gaye Lively against Glen Braswell? [Jury:] $77,500 (2) What am ount of punitive dam ages do you aw ard in favor of Gaye Lively against the Flexible Packaging Association? [Jury:] $458,158 Following the jury verdicts, FPA an d Mr. Braswell filed a motion for judgment as a matter of law o r, in the alternative, a new trial. Ms. Lively opposed the motion, and on December 24, 1996, the trial court granted the motion. With respect to Ms. Lively s unequal pay claim, the trial court found that Ms. Lively failed to establish[] that [FPA] pa[id] men and women unequally for equal w ork on job s the perform ance of w hich require s equal skill, effort, and responsibility, and which are performed under similar working conditions. 20 As for Ms. Live ly s hostile work environment claim, the trial court concluded that: [S]ince the incidents comprising the ho stile work environm ent claim occurred m ore than a year prior to the filing of the law suit, that claim is time-barred and should not have been submitted to the jury. The court further declared: 20 See Howard Univ. v. Best, 484 A.2d 958, 984 (D.C. 1984). This claim is not before the en banc c ourt. 20 The court concludes that more than the December 11 incident is needed to allow plain tiff to reach ba ck to incidents described in the testimo ny that occ urred in 19 87 and 1 992 in order to preclude application of the limitation p eriod. W hile insensitive and in poor taste, defendant Braswell s comment to another person, which plaintiff happened to overhear, is not necessarily an example of sexual harassm ent. See Galloway v. General Motors S ervice Pa rts Operations, 78 F.3d 1 164 (7th Cir. 1996). It does not in and of itself necessarily carry a connotation of sexual discrimination. Having thrown out the hostile work environment claim, the trial c ourt determ ined that: The kind of em ployme nt-related co mplaints re maining in [Ms. L ively s] claim cannot be considered atrocious and utterly intolerable in a civilized comm unity, 21 and consequently, the intentional infliction of emotional distress claim cannot stand. Sim ilarly, the court asserted that Ms. L ively s retaliation claim should not have b een submitted to the jury because no reason able juror co uld have concluded that [Ms. Lively] had established by a preponderance of the evidence that her termination in July 1993, was based on a reason that was a pretext. Regarding the jury s award of punitive damages, the trial court stated: [H]aving determin ed that no c ompen satory dam ages are leg itimately available to [Ms. Lively], it follows that punitive damages are similarly unavailable. Finally, the court summ arized its disposition of FPA s and Mr. Braswell s alternative motion for a new trial, taking into c onsideration the possibility that this court might disagree with its statute of limitations ruling relating Ms. Lively s hostile work environment claim: [T]he court concludes that [FPA s and Mr. Braswell s] alternative motion for a new trial should be granted in regard to 21 Elliott v. Healthcare Corp., 629 A.2d 6, 9 (D .C. 1993). 21 the unequal pay and retaliation claims. The court further concludes that, if its resolution of the limitations issu e is incorrect, there is sufficient evidence to sustain the ho stile work environment and infliction of emotional distress claims. If those two claim s stood alon e, the alternative new trial m otion wo uld be denied. However, because the issue of punitive damages was submitted to the jury as it related to all of [Ms. Lively s] claims, and the jury s pu nitive dam ages aw ard did no t differentiate among the various claims, the c ourt has de termined that, in the event its entry of judgm ent in favor o f [FPA a nd Mr. B raswell] is not sustained, the alternative motion for a new trial should be granted in its entirety, that is, with respect to all claims that were previously submitted to the jury. Ms. Lively filed a timely app eal of the co urt s judgm ent. Mr. B raswell and FPA d id not file a cross-app eal. ANAL YSIS Ms. Lively contends that the trial court erred in holding, after the jury s verdict, that her hostile work environment claim, filed under the District of Columbia Human Rights Act ( DCHR A ), was time-barred by the statute of limitations. She maintains that the one-year statute of limitations under the DCHRA did not begin to run until July 15, 1993, the date of her termination from FPA; and that even as suming that the trial cou rt was corre ct in concluding that the period of li mitations began to run as of December 11, 1992, it was incorrect in determining that none of the defendants actions on or after that date satisfied the hostile w ork env ironm ent requ iremen ts. FPA and M r. Braswell agree w ith the trial court s analysis, and emphasize that Ms. Lively was on notice of her claim prior to December 8, 1992, and therefore is ineligible for 22 the continuing violation exception . They ar gue that du ring the one -year period prior to her December 8, 1993 lawsuit, or what they call the fresh period, she must show a pertinent violation wh ich is of the sam e nature as th e violations in the period p rior to December 8, 1992, or the stale period. That is, the new violation must have a sexual comp onent consiste nt with her theo ry of a sexual ly hostile work enviro nmen t. We begin with our standard s of review for a judgm ent notwith standing the verdict, and for the grant of a motion for a new trial. As we said in Aurora Assocs., Inc. v. Bykofsky, 750 A.2d 12 42 (D.C. 2000 ): A judgment notwith standing the verdict of the jury is appropriate only where no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party. Durphy v. Kaiser Health Plan, 698 A.2d 459, 465 (D.C. 1997) (quoting Lyons v. Barrazo tto, 667 A.2d 314, 320 (D.C. 1995) (quoting Oxendine v. Merr ell Dow Pharm ., Inc., 506 A.2d 1100, 1103 (D.C. 1986))) (citing District of Columbia v. Cooper, 445 A.2d 652, 655 (D.C. 1982) (en banc) (other citation omitted)). Moreov er, [w]hen the case turns on disputed factual issues and c redibility determinations, the case is for the jury to decide. Id. (citing Lyons, supra, 667 A.2d at 320 (other citations omitted)). If reasonable persons might differ, the issue should be submitted to the jury. Id. (quoting Lyons, supra, 667 A.2d at 320 (citation omitted)). Furthermore, [i]n reviewing a motion for judgment as a matter of law after a jury verdict, this court applies the same standard as the trial court. Id. (citing Oxendine, supra, 506 A.2d at 1103). [W]e review the denial of . . . a motion [for judgment after trial] deferentially. United Mine Workers of America, Int l Union v. Moore, 717 A.2d 332, 337 (D.C. 1998) (quoting Daka v. Breiner, 711 A.2d 86, 96 (D.C. 1998) (other citation o mitted)). Id. at 1246. [T]he trial court has broad latitude in passing upon a motion for a new trial, and we review the disposition of such a motion only for abuse of discretion. United Mine 23 Workers, supra, 717 A.2d at 337 (quoting Gebremdhin v. Avis Rent-A-Car Sys., Inc., 689 A.2d 1202, 1204 (D .C. 1997)). H oweve r, [t]o grant a m otion for a n ew trial, the trial court must find that the verdict is against the weight of the evidence, or that there would be a miscarriage of justice if the verdict is allowed to stand. Id. The H ostile Wo rk Enviro nmen t Claim We turn now to th e law gov erning a ho stile work e nvironm ent claim, as set forth in cases in this jurisdiction and in the Supreme Court s decision in Morgan, supra. We have recogniz ed that the DC HRA is a reme dial civil rights statu te that mus t be genero usly constru ed. Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 731 (D.C. 2000) (citing Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 889 (D.C. 1998); Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 398 (D.C. 1991)). The generous construction principle is consistent with the legislature s approach to the DCHRA. In amending the DCHRA in 1997, the legislature emphasized its broad scope and the fact that its cov erage is wider than T itle VII: The District s hum an rights law has long been praised for its broad sco pe. The la w bans discrim ination in em ployme nt, housing, public acco mmo dations, and education . It protects people from discrimination based on characteristics covered in federal civil rights law - - race, color, sex, religion, age, national origin, and disability - - as well as other characteristics not covered under federal law, such as sexual orientation, marital status, and family responsibilities. C OUNCIL OF THE D ISTRICT OF C OLUMBIA , C OMMITTEE ON G OVERNMENT O PERATIONS, C OMMITTEE R EPORT ON B ILL 12-34 , The H uman Rights Ame ndme nt Act o f 1997 , May 29, 24 1997 ( Council Report ), at 2. We ha ve said also that the generous co nstruction standard applies to the interpretation of the limitations period in the D CHRA . In Simpson, supra, we stated: [W]here two constructions as to the limitations p eriod are possible, the courts prefer the one which gives the longer period in which to p rosecute th e action. Safeco Ins. Co. of Am. v. Honey well, 639 P.2d 9 96, 100 1 (Alas ka 198 1). If there is any reasonab le doubt in a statute of limitations problem, the [c]ourt will resolve the q uestion in favor of the complaint standing and against the challenge. Saunders v. Holloway Const. Co., Inc., 724 F. Supp. 64 0, 642 (W.D . Ark. 1989). Id., 597 A .2d at 40 1. Furthermore, we have often looked to case s construing Title VII to a id us in construing the [DCHRA]. Daka, Inc., supra, 711 A.2d at 92 n.14 (quoting Atlantic Richfield, Co. v. District of Colum bia Com m n on H uman R ights, 515 A.2d 1095, 1103 n .6 (D.C. 1986) (citatio ns omitted)). In that regard, our historic approach to ho stile work environment cases in this ju risdiction is consistent with Morgan s hostile work environment analysis under Title VII. This co urt first broached the possibility of a hostile work environment claim under the DCHRA, D.C. Code § 1-2501 et seq. (1999), recodified at D.C. Code § 2-1401.01 et seq. (2001), 22 in Best, supra. There we articulated the elements of a 22 D.C. Co de § 2-14 01.01 sets fo rth the local leg islature s intent: It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Colum bia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital (continued...) 25 prima facie case of sexual harassm ent. Best, supra, 484 A.2d at 981. Years later, we concluded that the elements set forth in Best were applicable to a hostile work environment discrimina tion case: [T]he same test sh ould apply, mutatis m utandis, in any DCHRA case in which a plaintiff alleges u nlawful d iscrimination that takes the form of a hostile or abusive w orking en vironme nt. In other words, applying the Best standa rd mo re gene rically, a plaintiff . . . has a viable hostile environment claim if [s]he can demonstrate (1) that [she] is a member of a protected class, (2) that [she] has been subjected to unwelcome harassment, (3) that the harassment was based on mem bership in the protected class, and (4) that the harassme nt is severe an d pervasiv e enough to affect a term , condition o r privilege of e mploym ent. Daka, Inc., supra, 711 A.2d at 92 (citing Best, supra, 484 A.2d at 978). We further discussed in Daka , Inc. the type of proof required to establish a hostile work environment claim: 22 (...continued) status, personal appearance, sexual orientation, familial status, family responsibilities , matriculatio n, political affiliation, disability, source of income, and place of residence or business. In addition, D .C. Code § 2-1401 .11 (a)(1) pro vides in per tinent part: (a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the . . . sex . . . of any individual: (1) By an employer. To fail or refuse to hire, or to discharge, any individua l; or otherwise to discriminate against any individual, with respect to his com pensat ion, terms, conditions, or privileges of employment; or to limit, segregate, or classify his [or her] employees 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 emplo yee. 26 More than a few isolated incidents must have occurred, and genuinely trivial occurren ces will not e stablish a prim a facie case. [Best, supra, 484 A.2d] at 980 (citation s and footn ote omitted). Howe ver, no sp ecific num ber of incid ents, and no specific level of egregiousness need be proved. Id. [at 980-81]. This means that in determ ining whether the DCHRA has been violated, the trier of fact sh ould co nsider . . . the amount and nature of the cond uct, the plaintiff s r esponse to such con duct, and the relationship between the harassing party and the plaintiff. Id. at 981. Id. at 93. W e also incorporated in our analysis of a hostile wo rk environ ment claim aspects of two S uprem e Cou rt decisio ns, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) and Meritor Savings Bank v. Vinson, 477 U.S. 57 (198 6): Harris and Meritor hold that a plaintiff in a Title VII action need not prove a tangible psy chologica l injury in ord er to prove the existence of a hostile wo rk enviro nmen t. Harris, 510 U.S. at 21 (citing Meritor, 477 U.S . at 64). The ra tionale for this holding is that . . . abusive work environments, even those that do not seriously affect an employee s emotional well-being, can and often will detract from employees job performance, discourage employees from remaining on the job, or keep them from advancin g in their careers. Harris, 510 U.S. at 22. Thus a plaintiff has an actionable hostile wo rk environ ment claim under Title VII w hen the w orkplace is p ermeated with discriminatory intimidation , ridicule, and in sult . . . that is sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive working environm ent . . . . Id. at 21 (quoting Meritor, 477 U.S. at 65, 67). Under this standard, a plaintiff must demonstrate both an objectively hostile o r abusiv e enviro nmen t, i.e., one that a reasonab le person would find hostile or abusive, and a subjective perception by the plaintiff that the e nvironm ent is abusive. But the plaintiff need not prove, in addition, that he or she suffered an actual psychological injury. Daka, Inc., supra, 711 A.2d at 93 (footn ote omitted); see King v. Kidd, 640 A.2d 656, 669 (1993). Our historic approach to hostile work environment claims clearly relied upon 27 principles extracted from Supreme Court cases. We see nothing in Morgan, supra, or the DCHRA, that compels us to depart from such reliance. Consequently we now summarize Morgan s approach to hostile work en vironme nt claims, an d adopt tha t approach in this jurisdiction. Morgan, supra, distinguished a discrete act of discrimination from a hostile work environment claim: A discrete retaliatory or discriminatory act[, such as a termination, failure to promo te, denial of tran sfer, or refusal to hire ] occur red on the d ay that it happened. Id., 536 U.S. at 110 (empha sis in original). Each discrete discriminatory act starts a new clo ck for filing ch arges alleging that a ct. Id. at 122. M oreover, d iscrete discriminatory acts are not actionable if time barred, even when they are related to ac ts alleged in timely filed charges. Id. In contrast to a discrete discriminatory act, the ve ry nature [of a hostile w ork enviro nment c laim] invo lves repeate d conduct. Id. at 123. More over, The unlawful employment practice . . . cannot be said to occur on any pa rticular d ay. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. See Harris, [supra], 510 U.S. [at] 17 [] ( As we pointed out in Meritor, [supra], 477 U.S. [at] 67 [], mere utterance of an . . . epithet which engenders offensive feelings in an employee, . . . does not sufficiently affect the con ditions of em ployme nt to implica te Title VII ). Such claims are based on the cumulative effect of individual acts. . . . [T]he phrase terms, conditions or privileges of employm ent [of 42 U.S.C. § 2 000e-2 (a)(1)] evinces a congressional intent to strike at the entire spectrum of disparate treatment o f men an d wom en in em ployme nt, which includes requiring p eople to w ork in a disc riminatorily h ostile or abusive environment. . . . Thus, when th e workp lace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive 28 working enviro nmen t, Title V II is viola ted. Harris, 510 U .S., at 21 (internal citations omitted). Id. at 123-24 (other citations om itted). Morgan highlights the fundamental difference between a discrete discriminatory act and a hostile wo rk environ ment claim by emphasizing both the cumulative effect of incid ents comprising that claim, and its unitary nature - - that is, it is one unlawful employment practice. Our case law also recognizes the uniqueness of a hostile work environment claim. Such a claim focuses on the entire mosaic, see Carter-Obayuwana v. How ard U niv., 764 A.2d 779, 794 (D.C. 2001) (quoting Tyree v. Evans, 728 A.2d 101, 106 (D.C. 1999)). The entire mosaic concept is consistent with Morgan s emphasis on all the circumstances, including the freque ncy of the d iscriminato ry condu ct, its severity, w hether it is phy sically threatening or humiliating, or a mere offensive utterance; and whether it interferes with an employee s work performance, Morgan, supra, 536 U.S. at 124 (citation and internal quotatio n mar ks om itted). Thus, in adopting Morgan s essential holding regarding a hostile work environment claim, we do not forge a radical departure from our historic approach to a hostile work environment claim. Rather, adoption of Morgan is consistent with the generous construction principle, extended to limitations analysis, as well as our practice of looking to feder al Title V II cases in interp reting th e DC HRA . We now adopt the Supreme Court s analysis in Morgan and hold th at, because [a] hostile work environment claim is com prised of a se ries of separa te acts that colle ctively constitute one unlawful employment practice, Morgan, supra, 536 U.S. at 117 (citation 29 omitted), the trier of fact m ust focus on all the circu mstan ces, including the frequency of the discrimina tory cond uct, its severity, w hether it is phy sically threatening or humiliating, or a mere offensive u tterance; and whethe r it interferes with an employe e s work perform ance. Id. at 116 (intern al citations and quotation m arks om itted). Furtherm ore, if an act contributing to the [hostile work environment] claim occurs within the filing period, the entire time period of the hostile env ironment ma y be considered b y the court for the purposes of determining liability. Id. at 117. It does not matter, for purposes of the [DCHR A], that some of the component acts of the hostile work environment fall outside the statutory time period. Id. Even if there are significant gaps in the occurrence of acts constituting the hostile work environment claim, the filing of that claim still may be tim ely because this type of unlawful employment practice . . . cannot be said to occur on any particular day. It occurs over a series of days or perhaps years. Id. at 115. We also reaffirm the basic principles governing a hostile work place claim set forth in this co urt s decision in Daka, supra, and other cases.23 Having adopted Morgan s approach to hostile work environment claims, we turn to the statute of limitations issue. The DCHRA contains a private right of action provision which cu rrently specifie s in pertinent p art: Any person claim ing to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court 23 Morgan, supra, had not been decided when the trial court granted appellees motion for judgment as a matter of law following the jury verdict. Therefore, in relying on Galloway v. Genera l Motors S erv. Parts, 78 F.3d 1164 (7th Cir. 1996) , in reaching its conclusion to reverse the jury verdict as to Ms. Lively s hostile work environment claim, the trial court could not have kn own that the Sup reme Cou rt would reject the hostile wo rk environment test set forth in Galloway. See Morgan, supra, 536 U .S. at 124 n.11. 30 of competent jurisdiction for damages and such other remedies as may be appropriate, unless such person has filed a complaint [with the District of Columbia Office of Human Rights]. . . . No person who m aintains, in a court of competent jurisdiction, any action based upon an act which would be an unlawful discriminatory practice . . . may file the same compla int with the Office. A private c ause of actio n pursuan t to [the DCHRA] shall be filed in a court of competent jurisdiction within one year of the unlawful discriminatory act, or the discov ery ther eof . . . . D.C. Code § 2-14 03.16 (a) (2001). 24 When Ms. Live ly filed her complaint in 199 3, however, § 2-1403.16 (a) did not contain the one-year statute of limitations.25 Even though th e one-yea r statute of lim itations period was not e nacted by statute until 1997, our case law specified prior to that time that a private right of action must be brought within one year, in accordance with the limitation period found in D.C. Code § 1-2544 (1993 ). See Davis v. Potomac Elec. Power Co., 449 A.2d 278, 282 (D.C. 1982). In 1993, § 1-2544 (a)26 provided that: Any complaint under this chapter shall be filed with the Office [of Human Rights] within 1 year of the occurrence of the unlawful discrim inatory practice, or the discovery thereof . . . . Thus, under Davis, supra, Ms. Lively was required to file her complaint within 1 year of the occurrence of the unlawful discriminatory practice, or discovery thereof. See also Brown v. Capitol Hill Club, 425 A.2d 1309, 1311 (D.C. 1981) ( The [DCHRA] provides specific timetables . . . for filing a claim of discrimin ation: within one year of the alleged unlaw ful discriminatory practice or its disc overy . . . a comp lainant, 24 Previously codified as D .C. Code § 1-25 56 (a) (1981). 25 The limitation period provision was added to § 2-1403.16 (a) in 1997, by D.C. Law 1239, Oc tober 2 3, 1997 , § 2(e). See Coun cil Rep ort, at 1. 26 Recodified at D.C . Code § 2-140 3.04 (a) (2001). 31 seeking damages or other appropriate relief, may file a complaint with [the Office of Human Rights], . . . or in any court of com petent jurisdiction. . . . ) The words or its discovery are significant. As we interpre t these words, we are guided by what we said in Simpson, supra: If there is any reasonable doubt in a statute of limitations problem, the court will resolve the question in favor of the complaint standing and against the challenge. Id. at 401 ( citations and inte rnal qu otations omitte d). In general, the discovery rule was d esigned to e xtend the tim e during w hich a plain tiff may brin g a suit, and not to contract it. As this court explained in Bussineau v. President and Dirs. of Georgetown College, 518 A.2d 423, 430 (D.C. 1986), the discovery rule is designed to prevent the accrual of a cause of action before an individual can reasonably be expected to discover that [s]he has a basis for legal redress. Accord, East v. Gr aphic Arts Indus. Trust, 718 A.2d 153, 157 (D.C. 199 8); P.H. Sheey Co. v. Eastern Importing & Mfg Co., 44 App. D.C. 107, 109 (1915 ). Consistent with the design of the discovery rule, and with Simpson, supra, we interpret the word s or its discov ery within the context of the unique h ostile work environment claim. A hostile wo rk environment claim is comprised of a series of separate acts that collec tively constitute one unlawful employment practice, Morgan, supra, 536 U.S. at 124 (citation and internal quo tations marks omitted). Such a claim must be filed within one year of the occurrence of this unlawful employment practice. All of the component acts comprising the hostile work environment claim need not have taken place within the one -year p eriod, id., but at least one act contributing to the claim must occur within that period in order for the filing to be timely. Part of the uniqueness o f a hostile work 32 environment claim is that this type of unlawful employment practice cannot be said to occur on any particular day. It occurs over a series of days or perhaps years , Morgan, supra, 536 A.2d at 115. Thus, even if there are significant gaps in the occurrence of the acts constituting the unitary hostile work environment claim, the filing of that claim still may be timely.27 This is so becau se a hostile w ork enviro nment c laim conc erns a single unlawful practice which is treated as an indivisible whole for purposes of the limitations period, even if an initial portion of that claim accrued outside the limitations period.28 27 The Supreme Court in Morgan, supra, provided a n illustration of tim ely filed claims: (1) Acts on d ays 1-400 create a hostile work environment. The employee files the charge on day 401: Can the employee recover for that part of the hostile work environment that occurred in the first 100 day s? (2) Acts contribute to a hostile environment on days 1-100 and on day 401, but there are no acts between days 101-400. Can the act occurring on day 401 pull the other acts in for the purposes of liability? In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one unlawful employment practice and it does not matter whether nothing occurred w ithin the intervening 301 day s so long as each act is part of the whole. Nor, if sufficient activity occ urred by d ay 100 to m ake out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 4 01 all inciden ts are still part of the same claim. On the other hand, if an act on day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee can not recover for the previous acts, at least not by reference to the day 40 1 act. Id. 28 Because the incidents con stituting a hostile work environment are part of one unlawful employment practice, the emp loyer ma y be liable fo r all acts that are p art of this single claim. Id. at 118. Regarding damages that may be recoverable, the Supreme Court stated: Our conclusion with respe ct to the incidents that may be considered for the purposes of liability is reinforced by the fact (continued...) 33 We conclude that Ms. Lively s hostile work environment claim was timely filed, and that an act contributing to that claim fell within the requisite one-year period of limitation. In reaching this conclusion, we have reviewed the evidence presented to the jury in the light most favorable to Ms. Lively.29 Aurora Assocs., Inc. v. Bykofsky, 750 A.2d 1242, 1246 (D.C. 2000). Ms. Lively filed her com plaint, which included a h ostile work environment claim, on Decem ber 8, 1993 . She had to show a series of separate acts that collectively constituted one unlawful employment practice, and that an act contributing to the [hostile work environm ent] claim occurr[ed] within the filing period, Morgan, supra, 536 U.S. at 117, that is, between December 8, 1992 and December 8, 1993. If she meets these requirements, it does not matter if an initial portion of the conduct took place outside the limitations period. Here, as alleged by Ms. Lively and established at trial, FPA s and Mr. Braswell s unlawful employment practice of maintaining a hostile work environment consisted of using 28 (...continued) that the statute in no way bars a plaintiff from recovering damages for that portion of the hostile env ironmen t that falls outside the period for filing a timely charge. Morga n correctly notes that the timeliness requirement does not dictate the amount of recoverab le damag es. It is but one in a series of provisions requiring that the parties take action within specified time periods, . . . none of which function as specific limitations on damages. Id. at 118-19. 29 Unless the evidence regarding the commencement of the running of the statute of limitations is so clear that the court can rule on the issue as a m atter of law, the jury should decide the issue on appropriate instructions. 34 offensive, insulting and demeaning language about women; engaging in actions with sexual overtones that humiliated women; and not only criticizing the communications skills of Ms. Lively and other female e mployees w hen they com plained about M r. Braswell s and M r. Thornburg s sexually based language and actions, but also taking steps inimical to Ms. Lively s FPA emplo ymen t status. The evidence presented to the jury on behalf of Ms. Lively showed that in 1987, two incidents with sexual overtones took place at FPA; one occurring around January 1987, involved a male stripper who disrobed provocatively before Ms. Live ly on her b irthday w hile Mr. Braswell took pictures and laughed. The second concerned a limousine scene months later, in mid-December 1987, during which Mr. Thornburg pulled Ms. Lively into the car and tried to get her to sit on his lap because he wanted to look down h er cleavage. Other incidents also occurr ed. Mr. B raswell and M r. Thornbu rg repeated ly referred to w omen in 1987 as bimbos, hookers, prostitutes, old maids, dykes, and girls, and used the words boobs and asses in describing female body parts. However, Mr. Braswell gave Ms. Lively a positive performance evaluation, including an assessment of her communication skills as developed. In addition, Mr. Thornburg promised around October 1987 that, I will not do it again, when Ms. Lively co nfronted h im with th e comp laints from M s. Greig and Ms. G ray about his behav ior.30 30 By themselves, some o f these incide nts may h ave co nstituted a few isolated inciden ts, Daka, Inc., supra, 711 A.2d at 93, and thus were insufficient in and of themselves to make out a claim for a ho stile wo rk envi ronm ent. See Woodland v. Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir. 2002) (hostile work environment claim dismissed because sporadic racially-motivated misconduct by [plaintiff s] co-workers was neither severe nor pervasive enough to create a ho stile work environment and because the employer responded to those incidents of co-worker ha rassment that were brought to managem ent s attention ); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) ( Incidents that are few (continued...) 35 In 1988, M r. Braswe ll and Mr. Thornburg continued to use offensive language about women, but no overt actions of a sexual nature were reported by female FPA employees. Howeve r, Mr. Bra swell began to criticize the communications skills of Ms. Kaplan and Ms. Lively. In the same performance evaluation document in wh ich he rated Ms. K aplan s communications skills as below standard or unacceptable, he labeled Ms. Kaplan as a source of staff disruption and discontent . . . [because she] [r]eported to [the] President [of FPA] allegations of sexual harassment of members of her department and others by another staff member, which he personally investigated and determined to be unfounded. And, although he had described Ms. Lively s com munication skills as dev eloped in 1987, M r. Brasw ell conc luded th at they need[e d] deve lopm ent in 1 988. When the year 1989 began, the FPA Board intervened. Mr. Braswell was called before the Compensation and Personnel Committee of the FPA Board on January 9, 1989, and confronted by his actions and those of M r. Thornburg relating to female FPA employees, including their use of offensive language and Mr. Braswell s disparaging comments about 30 (...continued) in numbe r and that oc cur over a short period of time m ay fail to dem onstrate a ho stile work environm ent. ); see also Burnett v. Tyco Corp., 203 F.3d 980, 98 1 (6th Cir. 2000) (plaintiff s hostile work environm ent claim did not survive a summa ry judgme nt motion despite three inciden ts that occurre d during o ne year: m ale personnel manager of plaintiff s employer placed a pack of cigarettes containing a lighter inside [her] tank top and brassiere strap ; personnel manager offered plaintiff a cough drop and said: Since you have lost your cherry, here s one to replace the one you lost ; personnel manager said to plaintiff as she walked by: D ick the malls, dick the m alls, I almost got aroused. ). Furthermore, use of offensive language, by itself, may also be insufficient to establish a hostile w ork env ironm ent. See Burn ett, supra, 203 F.3d at 983 (citing Black v. Zaring Homes, Inc., 104 F .3d 822 (6th Ci r. 1997 ), cert. denied, 522 U.S. 865 (1997)) (where the court said that calling a woman a broad ; accusing her of being at a biker bar and dancing on the tables; referring to a preference for sticky buns in the morning; and use of Titsvil le, over a fou r-month period, amounted to merely offensive language, which was insuffic ient to su pport a jury ve rdict in a hostile w ork env ironm ent claim ). 36 the competence of women. Significantly, the Chairman of the Personnel and Compensation Committee, Mr. M cFarlane, re ad a statem ent to Mr. Braswell which included the following: You appear to have a tendency to demean women and their abilities, at the same time advancing and promoting the career of [Mr.]Thornburg. After the FP A Bo ard inter vened , a chan ge in M r. Braswell s attitude toward Ms. Lively occurred in January 1989. He reacted angrily to his meeting with the Board, called Ms. Lively a liar and accused her of taking her complaints directly to the FPA Board, rather than to h im in th e first insta nce. Ms. Lively engaged an attorney in February, and a letter was sent to FPA s legal counsel and the chairman of the Board. FPA s counsel met with Ms. Lively, her counsel and two FPA em ployees. And, in early 1989, the Board sent Mr. Braswell to the Farr Institute for management and communications training. The Board continued to monitor Mr. Braswell from 1990 until around May or June 1992. Ms. Gn ess, who h ad walke d out of a b ar, leaving M r. Braswe ll and Mr. Thornb urg there, when they began flirting with a w aitress and to joke about a lingerie show scheduled to start later, and who heard FPA pregnan t wome n called pr eggers an d other fem ale employees bimbos, complained to the FPA Board in 1990 about Mr. Braswell s negative performance evaluation of her, includ ing his criticism of her writin g skills. Mr. Braswe ll also criticized Ms. L ively s com munica tions skills in 19 90, and the FPA B oard again confronted Mr. Bra swell about his treatment of her. Mr. Woolford, the FPA Board chairman at that time, placed restrictions on Mr. Braswell, ordering him not to discipline or criticize Ms. Lively. Significantly, during the FP A Board s m onitoring and restriction of M r. 37 Braswe ll in 1989, 1990, and 1991, neither he nor Mr. T hornburg made a ny direct, inappr opriate, d iscrimin atory, h arassing or abus ive com ments directly to Ms . Lively . The atmos phere a t FPA began to chan ge in 19 92. In February 1992, Mr. Thornb urg made a comm ent about a lways see ing Ms. L ively on her knees and the talk at the barbershop about her being in this position.31 After Mr. West removed the restriction in May or June 1992, that had been placed on Mr. Braswell by Mr. Woolford, other incidents occurred, including: (1) the July 1992 comment by Mr. Thornburg, in Mr. Braswell s presence, that an FPA female employee should put on a short skirt and stand in the aisle of a trade show event so that state legislators could be lured to FPA s exhibit booth; (2) an October 1992 inquiry by Mr. Braswell of a male seated at the head of a conference table at an out-of state staff meeting, as to whether he had been in [Ms. Lively s] room [the previous] night conducting mem bership business ; and (3) the December 11, 1992, comment by Mr. Braswell that a female FPA employer was the dumbest girl I ve ever seen. On December 11, 1992, after he had pla ced two O ctober 199 2 letters from others in her person nel file as exam ples of h er allege dly def icient co mm unicatio ns skills, M r. Braswell called M s. Lively into a mee ting with him , in the presen ce of FPA s legal coun sel. At that meeting, he read to Ms. Lively a letter which not only criticized her communications skills, but also instructed her to report to the Kingsbury Center, which specialized in learning disabilities or brain dysfunctions of children. There she was to submit to a battery of diagnostic tests whic h could res ult in her rea ssign[me nt] to a lower level of responsibility 31 A similar com ment was m ade about anothe r female FPA employee by Mr. Thornburg. Female emplo yees interpre ted the rem ark as an ind ication that the wom en were o n their knees for the purpose of oral sex. 38 within the FP A . . ., with an ap propriate red uction in salary . . . . The letter also informed Ms. Lively that she would be plac ed on p robatio n for six mont hs. Later, Mr. Bras well indicated that the start of M s. Lively s pr obationary period and her training would be postponed until she returned after her recuperation from her Fall 1992, hip surgery, but his January 19, 1993, letter re-emphasized the necessity of diagnostic testing by a professional since diagnostic testing is the key to defining the proper solution . . . . M s. Lively had been working for FPA from her home, after her November 1992 surgery, and continued to do so until March 1993. She was scheduled for more surge ry on July 8, 1993, F PA and M r. Braswe ll sent her a letter warning that if she did not return to work at the FPA office by July 15, 1993 , she wou ld be fired. Through her attorney, she ask[ed] for additional time, but [n]o additional time was granted. M s. Lively testified that she ha d to be in the office by July 15th. In response to her attorney s question at trial as to whether Mr. Braswell or anyone at FPA ever allow[ed] [her] to continue to do the job from home as [she] had [been doing], Ms. Lively responded: No, I was not provided that. I had to be in the office because that s what this letter of June 11 says, I have to be in the office to do the job. She explained that she could have done the job from home because 90 percent of my recruitment and retentio n [of m embe rs] was done b y teleph one, an d that s w hat I wa s doing at hom e. Nevertheless, she was terminated and replaced by Mr. West who then worked part-time for FPA for ove r a year f rom h is hom e in No rth Car olina. In light of the evidence presented at trial, and the reasonable inferences to be drawn therefrom, reasonable jurors could c onclude that M s. Lively had proved a hostile work environment claim consisting of a series of related acts, on e or more of which [fell] within the limitations period, Doe, supra, 624 A.2d at 444-45 n.5. That pattern of behavior 39 involved not only derogatory and offensive words used by Mr. Braswe ll and Mr. Thorn burg to describe FPA female employees and other women, but also their offensive treatment of FPA women, coupled with Mr. Braswell s tendency to deme an wom en by criticizin g their communication skills when they complained about the harassing, hostile, and humiliating work environm ent. 32 Reason able jurors could regard thes e comm ents and incidents as part of one unlawful employment practice, even though there were gaps in the occurrence of the acts con stituting th e hostile work enviro nmen t claim, Morgan, supra, 536 at 118. Therefore, we vacate the trial court s judgment as to Ms. Lively s hostile work environment claim and remand with instructions to reinstate the jury liability verdict and the comp ensato ry dam age aw ard for th at claim . Punitive Damages The remaining question is how shall the punitive damages issue be resolved. Since the jury verdicts concerning three of Ms. Lively s four causes of action were not sustained on appeal, punitive damages related solely to the remaining claim should be considered for excessiveness (if the parties do not settle the matter ). For that reason, we remand to the trial court with instructions to consider the reasonableness of punitive damages on the remaining claim against both defendants and to remit the excess portion.33 If Ms. Lively, at her option, 32 The perc eption that w omen e mploye d by FPA have defic ient skills was summarized by Ms. Gness: Women were referred to as bimbos. It was sort of entities without any real substance, airhead s. In addition, Mr. McFarlane s 1989 statement to Mr. Braswell asserted, in part: You appear to h ave a tend ency to de mean w omen a nd their abilities, a t the same time ad vancin g and p romo ting the c areer of [Mr.] T hornb urg. 33 We note that it appears that the jury awarded punitive damages against FPA on a dollar for dollar basis relative to the total awarded in compensatory damages for all four claims. (continued...) 40 declines to accept pu nitive dam ages as rem itted, then she s hall be granted a new trial so lely on the issue of punitive damages related to her hostile work environment claim. Accordingly, for the foregoing reasons, we reverse the judg ment of th e trial court, with respect to the hostile work environment claim and remand the case to the trial court for action consistent with this opinion.34 So ordered. 33 (...continued) In determining the amount to be remitted, this dollar for dollar congruity provides an appropriate consideration, along with the other factors related to an assessment of reasonableness of a pun itive dam ages aw ard. See e.g. State Farm Mut. Auto Ins. v. Camp bell, 123 S. Ct. 1513, 152 0 (2003). 34 Mr. Bra swell and FPA make two additional arguments relating to evidence introduced at trial. They challenge the trial court s decision p ermitt[ing] D r. Bernice S andler to testify as an expert in the field of sexual harassm ent. They also question the trial court s admission of evidence about inc idents involv ing other w omen. As M s. Lively po ints out, appellees did not note an appeal regarding these issues, and they are not properly before us. See Edwards v. Woods, 385 A.2d 780, 783 (D.C . 1978). At any rate, decisions regarding the admission, relevancy and materiality of evidence rest within the sound discretion of the trial court. See Mayberry v. Dukes, 742 A.2d 44 8, 452 (D .C. 1999); Freeman v. United States, 689 A .2d 575 , 580 (D .C. 199 7). 41 42 43
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