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DICKERSON v. SECTEK

November 13, 2002

CLEO DICKERSON, ET AL., PLAINTIFFS,
V.
SECTEK, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge.

    MEMORANDUM OPINION

Plaintiffs TaWanda Waters, Cleo Dickerson, and Angela Reed claim that their employer, SecTek, Inc. ("SecTek"), and their former supervisor, Thomas Smith, engaged in disparate treatment discrimination based on sex, hostile work environment harassment, and retaliation in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401 et seq. Defendants have moved for summary judgment on all three counts. As to disparate treatment, defendants argue (1) that plaintiffs have failed to demonstrate adverse employment action; (2) that plaintiffs cannot demonstrate that they were treated differently than similarly situated male employees; and (3) that plaintiffs cannot establish that defendant's nondiscriminatory reasons for their employment actions were a pretext for discrimination. As to retaliation, defendants assert (1) that any adverse personnel action was taken before plaintiffs had engaged in statutorily protected activity; and (2) that plaintiffs suffered no adverse employment action as a result of the alleged retaliatory harassment. Finally, as to hostile environment, defendants assert (1) that the conduct about which plaintiffs complain falls short of the kind of severe or pervasive conduct actionable under the DCHRA; and (2) plaintiffs have no evidence demonstrating that the alleged harassment was based on their sex.

For the reasons given below, the Court will grant defendant's motion for summary judgment as to the disparate treatment and retaliation claims, but not as to the hostile work environment claim.

BACKGROUND

Defendant SecTek is a private security company that contracts with government and commercial clients to provide security services. In July 2000, SecTek received a contract to provide security services to the National Imagery and Mapping Agency ("NIMA"), a federal agency involved in intelligence gathering and processing. The contract requires SecTek to provide complete security coverage to all posts at the NIMA site at all times. Work under the contract began on September 1, 2000.

Plaintiffs Waters, Dickerson, and Reed had worked as security guards at the NIMA site under the incumbent security contractor. The SecTek contract contained a "right-of-first-refusal" clause requiring that SecTek offer positions to incumbent employees. On that basis, SecTek hired Waters, Dickerson, and Reed to do the same jobs at NIMA that they had done for the previous contractor. Waters was therefore employed as Captain of the guard-force, while Dickerson and Reed served as Waters' lieutenants. (Def.'s Statement of Material Facts [Defs.' Stat.] ¶ 5.) Defendant Smith, who was not an incumbent employee, was hired to serve as the Program Manager, and as such, he was the overall manager of the NIMA location and SecTek's primary on-site interface with NIMA. (Id.). In that capacity, he supervised the three plaintiffs. (Id. at ¶ 10.) Waters, as Captain, ranked immediately below Smith in the chain of command and was the direct supervisor of Dickerson and Reed. (Id. at ¶¶ 10-11.) All four of these individuals were designated in the contract as "key personnel, " which meant that their appointments had to be approved by NIMA and that they had special responsibilities to ensure that the terms of the contract were met. (Id. ¶ 6; Def's Ex. 7 (Dickerson Dep.) at 33-34.) In addition, Waters, Dickerson, and Reed served as shift supervisors: Waters was in charge of the day shift, Dickerson ran the night shift, and Reed supervised the swing shift. (Id. at ¶ 7.)

SecTek placed all of its new employees on a 90-day introductory probationary period. (Id. at ¶ 9.) The company subsequently extended this period for another 45 days for Waters, Dickerson, and Reed; the parties dispute whether it imposed a similar extension with respect to all employees or whether the extension applied only to plaintiffs. (Compare id. with Pls.' Statement of Material Facts ["Pls.' Stat."] ¶ 84.) During the first months of the NIMA contract, SecTek experienced staffing shortages, which required each of the plaintiffs to put in considerable overtime. (Id. at ¶¶ 13-16.) During this time, Bruce Moore, SecTek's Vice President of Operations, reported to the company's president, Edward Rhodes, that there were problems with the management team of Smith, Waters, and Dickerson. Moore believed that the team was "dysfunctional" and was not doing its job properly. (Id. at ¶ 20.) At times in late 2000 and early 2001, Moore actually considered taking formal action against Waters and Dickerson. He drafted letters to NIMA, recommending their termination based on several acts of alleged malfeasance. (Defs.' Ex. 16; Pls. Ex. 22.) These letters, however, were never sent. (Pls.' Stat. ¶¶ 90-91; Defs.' Mot. at 9.)

Conflict was also brewing from within the team. Specifically, Smith found fault with the performance of Waters and Dickerson. He believed that Waters was not completing her job assignments well and that she was undermining his authority by discussing operational information directly with NIMA. He believed Dickerson to be insufficiently diligent and not a proactive supervisor. (Defs.' Mot. for Summ. J. [Mot.] at 7; Defs.' Ex 10 at 52-53, 233-34.) At the same time, plaintiffs — in particular Reed — complained about Smith's hostile attitude toward them and his use of inappropriate language (Pls.' Stat. ¶¶ 27, 33 (plaintiffs allege that Smith frequently used the word "bitch" and referred to them as "chicks").)

On December 20, 2000, Smith removed some of Waters' scheduling and supervisory authority, and reassigned her from the day shift to the rover post, the post that Smith had been covering. This reassignment lasted for approximately two weeks; during that time, another SecTek employee took charge of the day shift. Waters' pay and benefits were not affected by this temporary change, and she did not lose her title of "captain." After two weeks, Waters was returned to her normal supervisory responsibilities on the day shift. (Pls.' Stat. ¶¶ 55-58; Defs.' Mot. at 9-10.)

In late January 2001, Smith suspended Waters and Dickerson pending further investigation of their performance. (Defs.' Stat. ¶ 21.) After an investigation conducted by Cynthia Cherry, SecTek's Director of Human Resources, the company determined that the reasons given by Smith were insufficient to justify the suspensions. Accordingly, SecTek rescinded the suspensions and reinstated plaintiffs. (Id. at ¶ 22.) Dickerson returned to work on February 6, 2001; Waters on February 9. Eventually both received back pay at their previous salary for the time that they missed on account of the suspensions. (Id. at ¶¶ 23-24; Defs' Ex. 18 (Blood Aff.) Attach. A & B.) When Waters and Dickerson were reinstated, however, they were reinstated as duty officers, as opposed to supervisors, and were paid accordingly. (Defs.' Ex. 9 (Cherry Dep.) 193.)

By letter dated February 14, Rhodes reported to NIMA the results of the investigations, noting that while the suspensions were not deemed justified, he continued to have concerns about Dickerson and Waters' performance. (Defs Stat. ¶ 25.) Soon thereafter, Rhodes decided to remove Waters and Dickerson, as well as Smith, from their respective supervisory positions. (Id. at ¶ 26.) Though Rhodes has averred that he informed NIMA of this decision at a February 15 meeting with the agency, defendants dispute this contention. (Pls.' Response to Defs.' Stat. ¶ 27.) Waters and Dickerson were both demoted to non-supervisory positions and remained on the NIMA site. Smith was reassigned to SecTek headquarters. (Defs.' Stat. ¶¶ 27-28.) On February 16, 2001, plaintiffs' counsel advised Cherry by letter that plaintiffs believed that they were being subjected to gender discrimination by Smith and were contemplating legal action. (Id. at ¶ 29.) On April 12, Dickerson was returned to her previous position of Lieutenant. Likewise, on July 9, Waters was returned to the position of Captain on the recommendation of the new Project Manager, James Poppino. (Defs.' Mot. 12.)

On March 23, 2001, plaintiff filed suit against SecTek and Smith in the Superior Court for the District of Columbia. Defendants successfully removed the case to this Court on the basis of diversity of citizenship. In their amended federal complaint, plaintiffs assert three claims under the DCHRA. Count I alleges that defendants discriminated against plaintiffs on the basis of gender. (First Am. Compl. ¶ 29.) Count II alleges that defendants created a hostile work environment. (First Am. Compl. ¶ 32.) Count III alleges that defendants engaged in illegal retaliation against plaintiffs by demoting Waters and Dickerson in response to their internal complaints of discrimination and by harassing all three plaintiffs about their ongoing discrimination litigation. (First Am. Compl. ¶¶ 35-36.) Defendants have now moved for summary judgment on all three counts.

LEGAL ANALYSIS

I. Standard of Review

Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine, and should preclude summary judgment, if a reasonable jury could return a verdict in favor of the non-moving party. Id. In contrast, a moving party is entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir 1989). However, the nonmoving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. Therefore, the court "must assume the truth of all statements proffered by the party Opposing summary judgment" — except for wholly conclusory statements for which no supporting evidence is offered. Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999).

II. Count I: Disparate Treatment Discrimination

A. Legal Standard. The Prima Facie Case and Burden Shifting

The legal standard for discrimination under the DCHRA is substantively the same as under Title VII. See Knight v. Georgetown Univ., 725 A.2d 472, 478 n. 5 (D.C. 1999) (noting that the same body of law is used to construe both provisions); Daka v. Breiner, 711 A.2d 86, 94 (D.C. 1998) (noting that the D.C. Court of Appeals "in deciding issues arising under the DCHRA, consistently relies upon decisions of the federal courts in Title VII cases as particularly persuasive authority"). Thus, as under Title VII, in order to state a prima facie case of gender discrimination under the DCHRA, plaintiff must establish: (1) that she is a member of a protected class; (2) that she suffered an adverse employment action; and (3) that the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). To prevail, therefore, the plaintiff must demonstrate that her employer took some adverse action because of her membership in the statutorily protected group. See Forkkio v. Powell, 306 F.3d 1127, 2002 WL 31322757, at *3 (D.C. Cir. Oct. 18, 2002).

Actions short of an outright firing can be adverse, but not all personnel decisions with negative consequences for the employee necessarily satisfy the second part of the prima facie case. To count, the action must have had "materially adverse consequences affecting the terms, conditions, or privileges of employment or her future employment opportunities." Brody, 199 F.3d at 457. This means that actions imposing purely subjective harms, such as dissatisfaction or humiliation, are not adverse. See Forkkio, 2002 WL 31322757, at *3; see also Brody, 199 F.3d at 457 ("Mere idiosyncrasies of personal preference are not sufficient to create an injury."); Childers v. Slater, 44 F. Supp.2d 8, 19 (D.D.C. 1999) ("[C]onduct that sporadically wounds or offends but does not hinder an employee's performance does not rise to the level of adverse action."), modified on reconsideration, 197 F.R.D. 185 (D.D.C. 2000); Jones v. Billington, 12 F. Supp.2d 1, 13 (D.D.C. 1997) ("[N]ot everything that makes an employee unhappy is an actionable adverse action.") (citation and quotation marks omitted).

Instead, there must be some objective harm: "a tangible change in the duties or working conditions constituting a material employment disadvantage." Walker v. WMATA, 102 F. Supp.2d 24, 29 (D.D.C. 2000) (citation and quotation marks omitted); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."). Paradigmatically, this means discharge, but actions such as demotion, undesirable reassignment, or ...


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