United States District Court, District of Columbia
February 24, 2003
JOAN F. HIGBEE, PLAINTIFF,
JAMES H. BILLINGTON, DEFENDANT.
The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
This case was referred to me by Judge Sullivan for all purposes
including trial pursuant to LCvR 73.1(a). I herein resolve Defendant's
Motion for Summary Judgment. For the reasons set forth below,
defendant's motion for summary judgment will be denied.
There is no genuine issue as to the following facts:
1. Plaintiff, who began working at the Library of
Congress in 1976, was detailed twice to the Library
of Congress' ("the Library") Rare Book and Special
Collections Division ("the Division") in March and
2. Plaintiff was permanently reassigned to the
Division as a GS-12 Reference Librarian in
3. She and two other men, Clark Evans and Robert
Shields, encumbered the position of Reference
Librarian/Specialist, GS-12. All three had the
same position description.
4. On January 14, 1993, plaintiff filed a Complaint of
Discrimination indicating that the alleged bases of
discrimination were gender and sexual harassment.
When asked the date on which the alleged
discrimination took place, she answered August 11,
1992, and a "previous and continuing pattern."
Defendant's Motion for Summary Judgment ("Def.'s
Mot."), Exhibit 6. In the section where she was
asked to explain how she was discriminated
against, she wrote:
As a woman I have been harassed through silent
treatment, intimidating and accusatory memoranda,
trumped up charges, denial of meaningful recognition
for professional accomplishments and responsibilities
and withholding of work assignments designated by my
position description. I have been subjected to a
hostel [sic] work environment. Harassment continues.
5. On May 30, 1995, Dr. Larry Sullivan, Chief of the
Division, provided the three Reference Specialists
— plaintiff, Evans, and Shields — with
performance appraisals. He rated Evans as
"outstanding," resulting in a quality step increase
worth $1,445 per annum. Plaintiff's Opposition to
Defendant's Motion for Summary Judgment ("P.'s
Opp."), Exhibit 16.
Dr. Sullivan rated plaintiff
two steps lower, as "satisfactory," and she
received no quality step increase. P.'s Opp.,
6. Dr. Sullivan left the Library in 1995.
7. On November 24, 1995, T. Dean Flowers, EEO Officer
at the Equal Employment Opportunity Complaints
Office, concluded that plaintiff suffered disparate
treatment and was also subjected to a hostile work
environment because of her gender. P.'s Opp.,
Exhibit 32, at 1, 7. That decision was
subsequently reversed by the Director of Dispute
Resolution and Equal Employment Opportunity. P.'s
Opp., at 9 & n. 4.
8. In 1998, the Library reorganized the Division and
in a reduction in force, plaintiff and Shields were
reassigned to other divisions within the Library.
In the first count of the complaint, plaintiff charges disparate
treatment based on sex. According to her, Dr. Sullivan engaged in what
she calls a campaign of mistreatment. Complaint, ¶ 18. It took many
forms such as (1) refusing to assign her work commensurate with her
position description while permitting the two men, Evans and Shields, to
perform such work; (2) shunning her professionally and personally; (3)
never giving her fair credit for her accomplishments in her performance
appraisals; (4) circulating intimidating and false accusatory memoranda
about her; and (5) demeaning her personally and professionally and
encouraging her fellow employees at the Library to do likewise. Id.
According to plaintiff, Sullivan's actions killed her career. She claims
she was never provided the opportunity for advancement that the other men
In the second count, plaintiff alleges that the very same acts created
a hostile work environment premised on sexual harassment.
Defendant's Motion to Dismiss
Defendant first seeks dismissal on the grounds that "each of
Plaintiff's allegations, even if true, does not constitute an adverse
employment action. Accordingly, Plaintiff's sex discrimination claims
must be dismissed for failure to state a claim." Def.'s Mot., at 6.
The government's assertion is in one sense startling. It, after all,
is arguing that a woman who claims she was victimized by sexual
discrimination over a substantial period of time in nearly every aspect
of her employment, leading to the destruction of her career, has failed
to state a claim under the civil rights laws. That is, at first glance,
a difficult argument to square with the statutory command that "[a]ll
personnel actions affecting employees . . . in the Library of Congress
shall be made free from any discrimination based on . . . sex."
42 U.S.C.A. § 2000e-16(a) (1994).*fn1
It is certainly true that, lest they micromanage businesses and federal
agencies and be overwhelmed by every trivial complaint, the courts have
insisted that the personnel action complained of in a Title VII action be
substantial. In this Circuit, that means that plaintiff must allege that
she endured "objectively tangible harm." Brown v. Brody, 199 F.3d 446,
457 (D.C. Cir. 1999). There must be some showing of "materially adverse
consequences affecting the terms, conditions or privileges of her
employment or her future
employment opportunities such that a reasonable
trier of fact could conclude that the plaintiff has suffered objectively
tangible harm." Id.
Surely, this plaintiff's complaints that Dr. Sullivan did not permit
her to fulfill the basic responsibilities of her position description,
denigrated her achievements at every opportunity, circulated intimidating
and false accusatory memoranda about her, and never gave her performance
evaluations commensurate with the actual performance of her duties, so
that she never properly advanced in her career, assert "materially
adverse consequences affecting the terms, conditions, or privileges of
her employment." Id. She goes further, of course, and asserts that her
failure to perform the duties of her position left her more vulnerable to
the reduction in force than her male counterparts, so that she was forced
out of the Division, dissipating the expertise she had gained in her
job, and is now in a position where her advancement beyond the GS-12
position in the Hispanic Division is unlikely. That consequence, if
true, certainly bears on the future employment opportunities identified
in Brown as a potential source of "objectively tangible harm." Id.
When the government moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6),
it must appear beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Harris v. Ladner, 127 F.3d 1121,1123
(D.C. Cir. 1997). It is hardly impossible for a reasonable trier of
fact, having heard all of plaintiff's allegations concerning her
treatment, to conclude that she had suffered objectively tangible harm,
as Brown requires.
In this context, an important distinction must be kept in mind. It may
well be true that a court concludes that a specific employment action,
such as an unfavorable performance evaluation or a lateral transfer,
without any other consequences, cannot serve as a predicate for relief
under Title VII. It hardly follows that when a woman complains she was
singled out for persistent unfavorable treatment over a period of time
because of her sex, that that complaint fails to state a claim for relief
merely because she points to an unfavorable performance evaluation or a
lateral transfer as instances of that discrimination. To so conclude
would be to deny relief to a plaintiff who complains of that course of
conduct merely because she points to instances of discriminatory behavior
that, in themselves, would not permit her relief. A series of
indignities can accumulate over time creating a radical transformation of
one's entire work experience. If the courts are to remain faithful to
the purposes of Title VII and its history, they surely cannot insist that
each discriminatory act complained of must, in itself, meet some standard
of substantiality before the accumulation of them is actionable. Cf.
Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 844 (D.C. Cir.
2001) (reviewing whether acts complained of "taken alone or collectively
fail to rise to the level of an adverse employment action").
Defendant's Motion for Summary Judgment
The government also seeks summary judgement, but that motion invokes
the entirely different standard that requires the government to establish
that on the basis of the "pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits,"*fn2
no reasonable finder of fact could render a
verdict in the plaintiff's
favor. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). Since this a
Title VII case, the familiar burden shifting introduced in
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1978), is applicable.
Plaintiff must establish that she was a member of a protected group and
that she was treated differently from men in the terms, conditions, and
privileges of her employment. Id. at 802 & n. 13. As I have just
stated, she points to specific employment actions in which she was
treated differently and identifies the men who were treated more
favorably. She easily meets her burden, which is light,*fn3 and thereby
shifts to the defendant the burden of showing legitimate business reasons
for the actions claimed to be discriminatory. Id. at 802. Once the
defendant brings forth those reasons, plaintiff must show that the
proffered reasons are a mere pretext for discrimination.*fn4 Id. If the
jury believes they are pretextual, it may then infer that the real reason
was the discrimination which the defendant denies. Reeves v. Sanderson
Plumbing, 530 U.S. 133, 147 (2000). See also Aka v. Washington Hospital
Center, 156 F.3d 1284, 1292 (1998).
Defendant certainly marches forth with the evidence it will produce to
establish the reasons for the differing treatment, such as her not
performing all the duties in her position description, her "satisfactory"
performance evaluations, and her ultimately being subjected to the
reduction in force. Plaintiff, in turn, tenders the potential testimony
of one of the men with whom she works and of a woman who supervised her
for a while of her. Both of these witnesses will testify as to her
underutilization and her demeaning treatment at Sullivan's hands.
Plaintiff also tenders the testimony of other people who insist that they
either suffered or witnessed sexually discriminatory conduct at
Sullivan's hands as well as evidence supporting her claim that her
performance evaluations understated her achievments. The clash between
the evidence supporting the government's reasons and the evidence
plaintiff will produce to challenge their legitimacy surely creates a
genuine issue of fact. Indeed, the evidence pertaining to Sullivan's
treatment of other women is that rare thing: direct evidence of a
discriminatory animus. While it is not necessary to reach the issue in
this case, given the other evidence, it may well be that the evidence of
Sullivan's treatment of other women justifies in itself the denial of the
government's motion because it raises a genuine issue of the motive or
intent with which he acted.*fn5 In any event, when a case turns on the
motive or intent with which a person acted, summary judgment is
inappropriate. Weidel v. Ashcroft, 2002 U.S. Dist. Lexis 24501, at *7
& n. 4 (D.D.C. Dec. 24, 2002).
The Sexual Harassment Claim
Paragraphs 18 and 21 of the complaint are identical, meaning that
plaintiff relies upon the same evidence to establish that she was
subjected to disparate treatment (Count 1) and to a hostile
environment (Count 2). However, the standard to assess the presence of
the latter is different. To establish a hostile working environment, the
court must consider all the circumstances, including (1) the frequency of
the conduct, (2) the severity of the conduct, (3) whether the conduct is
phyically threatening or humilitating, or a mere offensive utterance, and
(4) whether the conduct unreasonably interferes with an employee's work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
The federal courts have held that whether the facts establish a hostile
environment is ordinarily a jury question, unless, of course, no
reasonable person could find that a hostile environment existed. Connor
v. Schrader-Bridgeport Int'l Inc., 227 F.3d 179, 199-200 (4th Cir.
2000); O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1102
(10th Cir. 1999). Cf. Barbour v. Browner, 181 F.3d 1342, 1348 (D.C.
Cir. 1999) (whether, on appellate review, sufficient evidence of hostile
environment was presented to warrant submission of the case to the jury
is a mixed question of law and fact).
Having reviewed the evidence plaintiff tenders in support of the
frequency and pervasiveness of the conduct, how it interfered with the
performance of her duties, and how it affected her psychologically, I
cannot say that no reasonable person would find that she was subjected to
a hostile environment.*fn6 I, therefore, will deny the defendant's
motion for summary judgment.
Failure to Exhaust Administrative Remedies
As I noted above, plaintiff filed her administrative complaint on
January 14, 1993, and the EEO office issued its initial decision, finding
her complaint valid, at least in part, on November 23, 1995. We also
know that on June 14, 1995, Larry Sullivan proposed a reduction in force
in the Division Reading Room. P.'s Opp., Exhibit 22. Sullivan then left
the Library and on June 17, 1998, the Reduction in Force took place and
plaintiff left the Division to become a reference librarian in the
Hispanic Division. P.'s Opp., Exhibit 35. Plaintiff never filed an
administrative grievance after the Reduction in Force and defendant
correctly argues that the Reduction in Force may not serve, in itself, as
a basis for relief. Plaintiff seeks to rescue herself by saying the
reduction in force was "a factor contributing to the hostile work
environment to which the Library subjected [her]." P.'s Opp., at 36
& n. 15. But, a complaint filed in 1993 cannot possibly exhaust an
administrative remedy as to an event that did not occur until 1995.
Plaintiff's reliance*fn7 on National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002) is misplaced. Morgan speaks to whether a
complaint of a hostile working environment filed in 1995 could be
predicated on events that occured more than 300 days before the complaint
was filed. There is nothing in Morgan that could possibly support the
assertion that a plaintiff could predicate an action for hostile working
environment on events that occurred after he filed his EEO complaint even
though he cannot claim that he ever made those events the subject of an
administrative complaint before he filed his lawsuit in federal court.
Morgan deals with the timeliness of the administrative complaints that
were made and not with whether the
failure to file any administrative complaint should be excused.
I note that this does not mean that the Reduction in Force in 1998 does
not bear upon the damages she claims to have suffered because of what
Sullivan did in the period about which she did complain when she filed
her administrative complaint. I mean to say that the Reduction in Force
in 1998 may not serve in any way as an independent predicate for relief.
Finally, while the parties have oddly ignored the issue, I believe that
I must reach the same conclusion as to the 1995 performance evaluations
that resulted in plaintiff's being found to be "satisfactory" while Evans
was rated higher and received a pay award. These events may not serve as
an independent predicate for relief, but may serve as a basis for damages
if plaintiff presents sufficient evidence that what happened in 1995 was
caused by what occurred in the period covered by her administrative
An Order accompanies this Memorandum Opinion.
Upon consideration of defendant's motion, plaintiff's opposition
thereto, and defendant's reply thereto, and in accordance with the
accompanying Memorandum Opinion, it is, hereby, ORDERED that Defendant's
Motion For Summary Judgment [#23] is DENIED.