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CROMER-KENDALL v. DISTRICT OF COLUMBIA

July 9, 2004.

BARBARA E. CROMER-KENDALL, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

This is an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The plaintiff is seeking redress for alleged "same sex" discrimination, sexual harassment, the creation of a sexually hostile work environment, retaliation, and severe emotional distress.*fn1 This matter is currently before the Court on the defendant's Motion for Summary Judgment ("Def.'s Mot."), the plaintiff's opposition to the motion ("Pl.'s Opp."), and the defendant's reply. For the reasons set forth below, the defendant's motion for summary judgment will be granted in part and denied in part.*fn2 I. Factual Background

According to the plaintiff, the following are the events that resulted in the filing of this lawsuit. The plaintiff became a police officer with the District of Columbia's Metropolitan Police Department ("MPD") on or about December 6, 1985. Second Amended Complaint (hereinafter "Compl.") ¶ 6. In July of 1989, the plaintiff was assigned to the Sixth District of the MPD where she remained until May of 2000. Id. Sgt. Denise Calhoun ("Sgt. Calhoun") also worked at the Sixth District while the plaintiff worked there and was one of the plaintiff's superiors. Id. ¶ 7. Sgt. Calhoun began inviting the plaintiff to join her for drinks after work and the plaintiff agreed to do so occasionally. Id. During the summer of 1995 Sgt. Calhoun called the plaintiff at her home and asked the plaintiff to join her at a beach house when the plaintiff would not be on duty. Id. ¶ 8. Because Sgt. Calhoun would not allow the plaintiff to bring her daughter to the beach house she declined the offer. Id. Shortly after the plaintiff's refusal to join Sgt. Calhoun at the beach house, Sgt. Calhoun saw the plaintiff's mother on the street and expressed to her that she was angry with the plaintiff. Id. ¶ 8. Thereafter, when the plaintiff refused invitations from Sgt. Calhoun to join her for drinks, Sgt. Calhoun began inviting herself to visit with the plaintiff at her home. Id. ¶ 9. Although the plaintiff rejected the invitations, she allowed Sgt. Calhoun to enter her home whenever she appeared because the plaintiff feared that Sgt. Calhoun would retaliate against her if she rejected Sgt. Calhoun's visits, having heard that Sgt. Calhoun had a violent temper. Id.

  Between June 9 and June 13, 1998, Sgt. Calhoun ordered the plaintiff to meet with her privately in her office after roll-call. Id. ¶ 13. Because the plaintiff understood these directives as orders from a superior officer she went directly to Sgt. Calhoun's office after roll-call. Id. ¶ 14. However, during these office visits, Sgt. Calhoun adored herself in a mirror and questioned the plaintiff about her (Sgt. Calhoun's) appearance, i.e., whether she was pretty or had a nice body figure. Id. When the plaintiff did not reply, Sgt. Calhoun insisted that she was pretty and had a "nice ass" and also encouraged the plaintiff to leave her boyfriend and not return to her husband because "all men had dirty penises." Id. On several occasions, not only did Sgt. Calhoun question the plaintiff about her appearance, but "also touched [the p]laintiff in a manner that . . . [was] unsettling, non-consensual and offensive" to the plaintiff. Id. ¶ 16.

  Apparently, the plaintiff had a back condition and her work schedule fluctuated. Id. She was eventually placed on limited duty because of concerns about her back condition. Id. ¶ 17. Consequently, she was assigned to work at a Sixth District substation. Id. Sgt. Calhoun purportedly hung around the substation for much of the day chatting with the plaintiff. Id. ¶ 18. She complained that the plaintiff was not returning her phone calls and questioned the plaintiff about her boyfriend answering the phone when she called. Id.

  On June 26, 1998, the plaintiff was cooking dinner at her home for her sister when Sgt. Calhoun called the plaintiff and informed her that she would be visiting the plaintiff to celebrate her birthday, and also to enjoy the plaintiff's cooking. Id. ¶ 10. When Sgt. Calhoun arrived at the plaintiff's home, she allegedly encountered the plaintiff in her kitchen, removed her lower garments and exposed her genitalia to the plaintiff while asking if she found her (Sgt. Calhoun) attractive. Id. ¶ 11. Thereafter, Sgt. Calhoun drew her police-issued weapon and pointed it at two adolescent boys that were visiting at the plaintiff's home and instructed them to leave. Id. Sgt. Calhoun then approached the plaintiff again and hugged the plaintiff in the presence of others who were in the house while announcing that she "wanted" the plaintiff. Id.; Plaintiff's Statement of Material Facts Regarding Genuine Issues in Dispute ("Pl's Stmt.") at 2. The plaintiff ultimately asked Sgt. Calhoun to leave her home and enlisted the assistance of others to accompany Sgt. Calhoun out of her house. Id.

  On July 2, 1998, the plaintiff informed Sgt. Thomas*fn3 about the incident that took place at her home on June 26, 1998. Id. ¶ 20. Sgt. Thomas advised the plaintiff that he would take care of the matter. Id. Later, on July 7, 1998, Sgt. Calhoun again instructed the plaintiff to come to her office after roll-call. Id. ¶ 21. On that occasion, Sgt. Calhoun told the plaintiff that she loved her and when the plaintiff stood up to leave, Sgt. Calhoun pulled the plaintiff's shoulder toward her, "placed her hand firmly on [the p]laintiff's right breast and fondled and caressed it." Id. Sgt. Calhoun then instructed the plaintiff to "think about it." Id.; Pl.'s Stmt. at 4. The plaintiff also reported this incident to Sgt. Thomas. Id. ¶ 22 When told about the second incident Sgt. Thomas allegedly laughed and agreed to intercede while advising the plaintiff to calm down. Id. The plaintiff also reported that she had been sexually harassed by Sgt. Calhoun to Deputy Chief Musgrove. Id. ¶ 23. Musgrove instructed the plaintiff to immediately report her complaints to the MPD's Equal Employment Opportunity ("EEO") office. Id.

  The plaintiff also contends that when she was on foot patrol, Sgt. Calhoun would regularly seek her out and ask if she could join her. Id. ¶ 24. Regardless of which patrol the plaintiff was assigned, she would get numerous radio calls from Sgt. Calhoun. Pl.'s Stmt. at 5. On two occasions, Sgt. Calhoun picked up the plaintiff from foot patrol and took her to her home claiming that she wanted to show the plaintiff improvements she had made to her home. Id ¶ 25. She then showed plaintiff the hot tub and bedroom and invited plaintiff to come over and stay at any time. Id.; Pl.'s Stmt. at 5. On several occasions, Sgt. Calhoun would locate the plaintiff when she was patrolling alone and would take the opportunity to use her squad car to take the plaintiff for rides outside of her sector, or attempt to discuss the same topics raised when the plaintiff went to her office after roll-call. Pl.'s Stmt. at 5. On at least three occasions Sgt. Calhoun directed the plaintiff to join her at a local restaurant for food and drinks. Id.

  On April 10, 1999, the plaintiff was told by Sgt. Calhoun to guard a gunshot wound victim's car that was parked in a MPD substation parking lot. Compl. ¶ 26. The officer responsible for investigating the shooting then told the plaintiff that she could terminate her watch of the car. Id. The plaintiff then called her partner and asked to be picked up at the lot. Id. When Sgt. Calhoun returned to the substation parking lot she "loudly and angrily chastised [the p]laintiff" for not remaining with the vehicle as instructed. Id. Later, "Sgt. Calhoun threatened to charge [the p]laintiff with insubordination" and told the plaintiff, in the presence of Sgt. Thomas, that she would be relieved of "her badge and gun if [she] was ever insubordinate again." Id. The encounter reduced the plaintiff to tears. Id.

  The plaintiff, fearful of the consequences of advancing her complaint to a higher level in the police department, reported to her union steward that she was being harassed by Sgt. Calhoun. Id. ¶ 27. The plaintiff was instructed to "report her complaint [to] the internal EEO office of the police department." Id. The plaintiff filed a complaint with the EEO office on April 12, 1999. Id. ¶ 28. Consequently, the plaintiff was transferred to a different "Sector" of the Sixth District in an effort to shield her from further contact with Sgt. Calhoun. Id. Later, in August of 1999, the plaintiff also filed a claim with the District of Columbia Office of Human Rights and Local Business Development Id. ¶ 29. Despite working in the new Sector, the plaintiff began encountering Sgt. Calhoun again frequently because they were working during the same hours. Id. In December of 1999, the plaintiff returned to the EEO office and requested another transfer. Id. ¶ 30. The plaintiff was advised that the EEO office could no longer assist her because she had filed a complaint with the District of Columbia Department of Human Rights. Id. In December of 1999, the plaintiff sought additional help at the Police and Fire Clinic. Id. ¶ 31. The plaintiff was then placed on sick leave by a psychiatrist until May of 2000. Id. When she attempted to return to work, she learned that she would have to work again "in the vicinity of Sgt. Calhoun" and therefore, on her own initiative, opted to remain on sick leave without pay. Id. After an additional two months, the plaintiff returned to work upon being transferred to another police department district. Id.

  II. Analysis

  A. Standard of Review for Summary Judgment

  The defendant has moved for summary judgment. Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255. Summary judgment is mandated after there has been "adequate time for discovery . . . 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment, nonetheless, is a "drastic remedy, [and therefore] courts should grant it with caution so that no person will be deprived of his or her day in court to prove a disputed material factual issue." Greenberg v. Food & Drug Admin., 803 F.2d 1213, 1216 (D.C. Cir. 1986). Summary judgment is accordingly not appropriate, for example, where "the evidence presented on a dispositive issue is subject to conflicting interpretations, ...


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