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May 11, 1995


The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on Defendant Washington Metropolitan Area Transit Authority's ("WMATA") motion for summary judgment. Plaintiff Coramae Ella Gary has brought suit under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, alleging that WMATA retaliated against and constructively discharged Plaintiff because of her complaints of sexual discrimination and harassment.

 Defendant asserts a variety of grounds upon which summary judgment should be granted in Defendant's favor. First, Defendant contends that this Court lacks the subject matter jurisdiction to entertain this Title VII suit because Plaintiff's Title VII claims are subject to compulsory and binding arbitration. Second, Defendant argues that WMATA is not liable for the actions of its supervisors under agency law principles. Defendant also asserts the procedural argument that Plaintiff failed to file timely EEOC charges and the substantive argument that Plaintiff has failed to create triable issues of material fact with respect to either her retaliation or constructive discharge claim.


 Plaintiff was hired by WMATA in 1983 as a custodian in WMATA's Department of Rail Service. In May of 1987, she became a stock clerk at WMATA's Brentwood facility. Her immediate supervisor at Brentwood was Mr. Charles Brown. Mr. Edward Long was Mr. Brown's supervisor and Plaintiff's second-level supervisor.

 In this action, Plaintiff alleges that WMATA retaliated against her because she took the following actions: 1) filed a written complaint with WMATA on February 28, 1990 against Mr. Long, alleging sexual harassment; 2) filed an EEOC charge on May 16, 1990, alleging sexual harassment; and 3) filed an action in District Court in December 1990 against WMATA and Long relating to the sexual harassment. *fn1"

 While at the Bladensburg facility for the first time, Plaintiff alleges that her supervisor Ms. Tompkins, who Defendant concedes was aware of her sexual harassment charges, watched her more closely than other employees and that employees avoided her.

 At the Montgomery Division facility, Plaintiff alleges that a meeting was called by two supervisors, William Woodard and Anthony Johnson, during which Mr. Woodard told employees that Plaintiff had previously filed sexual harassment charges against Long and that Plaintiff was a troublemaker. Employees were warned to stay away from her.

 Plaintiff alleges that due to the stress from work she was forced to take a week of sick leave in July of 1990. Upon her return, her supervisor Anthony Johnson reprimanded Plaintiff for excessive sick leave absences. Moreover, Plaintiff alleges that Supervisor Woodard told her that he did not want her working at WMATA because of the sexual harassment charges that she had filed and that he would find a way to get rid of her.

 Upon her transfer to the Southeast facility, Plaintiff alleges that several supervisors retaliated against her. Supervisor Brown told her that he had heard about the sexual harassment charges and that he did not want her working at Southeast. Supervisor Michael Johnson and Supervisor Gerald Hobbs each stated that he was going to find a way to get rid of her because of the charges.

 Over Labor Day weekend in 1991, Plaintiff agreed to work overtime shifts at the Metro Supply Facility. When Plaintiff arrived, Mr. Long, her alleged harasser, was present and Plaintiff was sent home. According to Plaintiff, Supervisor Jorgensen told Plaintiff that he never wanted Plaintiff working at his facility regardless of whether Long was present. Plaintiff filed a grievance over this incident and she received 54 hours of overtime pay in settlement.

 Plaintiff did not work from September 12 through September 19, 1991. According to Plaintiff, she was suffering from acute stress disorder related to the hostile environment at work.

 Upon her final rotation to Bladensburg, Plaintiff's first paycheck was sent to her prior work location. Plaintiff was permitted to pick up her paycheck at the old location during work hours. Plaintiff further alleges that Supervisor Tompkins said that she did not want Plaintiff working at the facility because of the sexual harassment charges and that Tompkins watched Plaintiff more closely than other employees.

 Plaintiff also alleges that an incident surrounding her ability to take time off for her daughter's high school graduation was in retaliation for her sexual harassment charges. Plaintiff alleges that she had previously obtained permission from Supervisor Tompkins to be absent without pay on June 5, 1992 and that Tompkins then revoked this permission. Plaintiff requested the leave from the next two supervisors in the chain of command, Kenneth Crane and Michael Kurtz. Mr. Kurtz told Plaintiff that he would "look into the matter." Plaintiff assumed that she would be denied the day off. According to Plaintiff, she became very upset and WMATA's Medical Office authorized Plaintiff to take sick leave for the rest of the week. Plaintiff attended the graduation.

 On June 9, 1992, Plaintiff returned to work for two hours. After that day, she did not return to work due to stress and severe depression which plaintiff attributes to the retaliation at work. On January 28, 1993, Plaintiff resigned.


 The Supreme Court set forth the governing standards for issuance of summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In Celotex, the Supreme Court recognized the vital need for summary judgment motions to the fair and efficient functioning of the justice system:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed. Rule Civ. Proc. 1. . . .
Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

 Id. at 327. (citation omitted)

 The plaintiff, as the non-moving party, is "required to provide evidence that would permit a reasonable jury to find" in her favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (per curiam) (citing Celotex, supra). The moving party is entitled to summary judgment where "the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex at 323. Any factual assertions contained in affidavits and other evidence in support of the moving party's motion for summary judgment shall be accepted as true unless the facts are controverted by the non-moving party through affidavits or other documentary evidence. See Local Rule 108(h).

 In resolving the summary judgment motion, all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505. The inferences, however, must be reasonable, and the non-moving party can only defeat a motion for summary judgment by responding with some factual showing to create a genuine issue of material fact. Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993).



 The threshold question is whether this Court has subject matter jurisdiction over Plaintiff's Title VII statutory claims. Defendant claims that Plaintiff was bound to arbitrate her employment discrimination claims pursuant to Section 66(c) of the WMATA Compact.

 The Compact was entered into by the District of Columbia, Virginia and Maryland in order to establish WMATA, the government entity responsible for operation of the subway system that serves the District of Columbia Metropolitan area. This Compact was consented to by Congress and is codified in the D.C. Code, § 1-2431.

 Section 66(c) of the Compact provides for final and binding arbitration before a board of three arbitrators in cases of labor disputes between WMATA and its employees:

In case of any labor dispute involving the Authority [WMATA] and such employees where collective bargaining does not result in agreement, the Authority shall submit such dispute to arbitration by a board composed of three persons, one appointed by the Authority, one appointed by the labor organization representing the employees, and a third member to be agreed upon by the labor organization and the Authority. . . . The term "labor dispute" shall be broadly construed and shall include any controversy concerning wages, salaries, hours, working conditions, or benefits including health and welfare, sick leave, insurance or pension or retirement provisions but not limited thereto, and including any controversy concerning any differences or questions that may arise between the parties including but not limited to the making or maintaining of collective bargaining agreements, the terms to be included in such agreements, and the interpretation or application of such collective bargaining agreements and any grievance that may arise and questions concerning representation.

 Defendant contends that this section of the Compact requires Plaintiff to submit to binding arbitration her Title VII claims of retaliation and constructive discharge because these claims are ...

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