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DICKERSON v. SECTEK
November 13, 2002
CLEO DICKERSON, ET AL., PLAINTIFFS,
SECTEK, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge.
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.
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
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
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.
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 ...