On June 28, 2012, the DC Court of Appeals affirmed a jury verdict for nominal damages for employment law based claims under Title VII of the Civil Rights Act, the District of Columbia Human Rights Act (“DCHR”), and the Americans with Disabilities Act. Ivey v. District of Columbia, 09-CV-1511 (D.C. June 28, 2012).
In June 1998, Shirly Ivey (“Ivey”), a District of Columbia employee, started to complain about the way her supervisor, Lennox Douglas (“Douglas”), treated her. Between 1995 and 2000, Ivey had gained weight and from 1997 to 1998, Douglas, made disparaging comments about her weight and appearance. In June of 1998, Ivey approached her superiors to complain of Douglas’ inappropriate comments. No action was taken and Douglas continued his harassment. On July 22, in what appeared to be a retaliatory action, Douglass suspended Ivey from work. Months later, after returning to work, Ivey found her workspace had been moved to an area she described as a storage room. Later, on September 15, Ivey requested a meeting with Douglass and an Equal Employment Opportunity counselor, which was never held. Instead, on September 22, Ivey learned that she was being fired for negligent performance of her work responsibilities and being absent without leave. Ivey appealed to a Disinterested Designee. On October 19, Ivey won an appeal of her termination, and she returned to work on April 29, 1999, after several months of medical leave. After Ivey was informed that her grievances could not be resolved by the Equal Employment Opportunity office, she decided to file suit against the District of Columbia (“District”) in Superior Court for discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), the DCHR, and the Americans with Disabilities Act.
The Trial Court granted the District’s motion for summary judgment and on appeal the District of Columbia Court of Appeals reversed and remanded both the Title VII and DCHR claims.
On remand, the Trial Court decided Ivey’s Title VII and DCHR claims, in which the court gave the jury potentially conflicting instructions. The Trial Court instructed the jury that “[t]he plaintiff must prove her damages with reasonable certainty” and “[t]he plaintiff does not have to prove her exact damages.” The jury expressed confusion regarding this seemingly contradictory set of instructions. The jury sent a note to the Court which read, “[i]f we were to have to address the damages questions, we would appreciate some additional guidance. The Court’s instructions tell us that we are not to speculate as to damages. We are of the opinion that the plaintiff’s evidence does not provide us with any evidence that would allow us to make a determination on damages that would not be speculative. What would you advise?” In response the ury’s inquiry about damages, the trial judge simply instructed them to reread their jury instructions. The jury then awarded Ivey $1 in nominal damages. In response to the trial courts jury instructions, Ivey appealed to the District of Columbia Court of Appeals.
On appeal, the Court of Appeals briefly described the law behind a potentially erroneous jury instruction, going so far as to say that the jury in this case may very well have been confused and not understood the instruction. However, the Court of Appeals reasoned that there is no reason to discuss the instruction because Ivey failed to produce (perhaps an oversight) any evidence in the trial record which demonstrates that she had presented the jury with evidence of the damages she suffered. Accordingly, the Court of Appeals held that “any error in the trial court’s failure to reinstruct the jury was harmless.”
 “An employee of the District of Columbia, upon receiving a notice of termination, may have the proposed termination reviewed by a ‘Disinterested Designee,’ a third party who, among other qualifications, is not ‘in the supervisory chain of command between the proposing official and the deciding official, nor subordinate to the proposing official,’ and has ‘no direct and personal knowledge (other than hearsay that does not affect impartiality) of the matters contained in the proposed removal action.’” Ivey v. District of Columbia, at Fn 1 (citing D.C. Personnel Regs. § 1612.2).