United States District Court for the District of Columbia
July 9, 2004.
BARBARA E. CROMER-KENDALL, Plaintiff,
DISTRICT OF COLUMBIA, Defendant.
The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
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. ¶
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.
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, or
reasonable persons might differ as to its significance. . . ."
Id. (citations omitted). Furthermore, when reviewing the
evidence, "all inferences must be drawn in favor of the nonmoving
party[.]" Coward v. ADT Security Systems, Inc., 194 F.3d 155, 158
(D.C. Cir. 1999); Aka v. Washington Hosp. Center, 156 F.3d 1284,
1295 (D.C. Cir. 1998).
B. The Plaintiff's Title VII Claim
"[S]ex discrimination consisting of same-sex sexual harassment
is actionable under Title VII. . . ." See Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75, 82 (1998). The
Oncale Court emphasized that claims of same-sex harassment
remain subject to the identical requirements as claims of
opposite-sex harassment; namely, a plaintiff making either type
of sexual harassment claim "must always prove that the conduct at
issue . . . actually constituted `discrimina[tion] . . . because
of . . . sex.'" Id. at 81. Thus, to establish [her] claim of
"same-sex harassment, [the] court first must determine whether
the harasser's conduct constitutes sex discrimination." See
Jones v. Potter, 301 F. Supp.2d 1, 7 (D.D.C. 2004) (citing La
Day v. Catalyst Technology, Inc., 302 F.3d 474, 478 (5th Cir.
2002)). "If this determination is answered in the affirmative,
the court must decide whether the challenged conduct meets the
applicable standards for either a quid pro quo or hostile
environment claim." Id.*fn4
1. "Same Sex" Discrimination
"There are three ways to prove that same-sex sexual behavior
rises to the level of illegal harassment." Id. (citing Davis v.
Coastal Int'l Security, Inc., 275 F.3d 1119, 1123 (D.C. Cir. 2002)). "The first method requires a showing `that the sexual
behavior is motivated by actual homosexual desire.'" Id. "The
second method of demonstrating same-sex harassment requires a
showing `that the harassment is framed in such sex-specific and
derogatory terms . . . as to make it clear that the harasser is
motivated by general hostility' towards members of the same
gender in the workplace." Id. (citing Oncale, 523 U.S. at 80).
"Third, the plaintiff may demonstrate `that there is direct
comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace.'" Id. (quoting
Oncale 523 U.S. at 80-81). "Whatever evidentiary route the
plaintiff chooses to follow, he or she must always prove that the
conduct at issue was not merely tinged with offensive sexual
connotations, but actually constituted `discrimination . . .
because of . . . sex.'" Oncale, 523 U.S. at 81.
Here, the plaintiff relies on the first method to prove her
case that Sgt. Calhoun's behavior was motivated by actual
homosexual desire. "[T]here are two types of evidence that are
likely to be especially `credible' proof that the harasser may be
a homosexual." La Day, 302 F.3d at 480. "The first is evidence
suggesting that the harasser intended to have some kind of sexual
contact with the plaintiff rather than merely to humiliate [her]
for reasons unrelated to sexual interest." Id. "The second is
proof that the alleged harasser made same-sex sexual advances to others, especially to other employees." Id.
The record contains abundant evidence of sexual advances by
Sgt. Calhoun both to the plaintiff, and allegations that Sgt.
Calhoun harassed other female employees.*fn5 For example,
the plaintiff asserts that Sgt. Calhoun "approached plaintiff,
who was alone in her kitchen, and removed her lower garments. She
then bent over and exposed her naked genitalia to [the]
[p]laintiff and asked whether she found her attractive." Compl. ¶
11. Additionally, the plaintiff claims that Sgt. Calhoun
physically leaned on her and told the plaintiff that she wanted
her and then asked the plaintiff if she thought (Sgt. Calhoun)
had a "pretty ass." Plaintiff's Statement of Material Facts
Regarding Genuine Issues in Dispute ("Pl.'s Stmt.") at 2.
Furthermore, Sgt. Calhoun allegedly told the plaintiff that she
should leave her boyfriend and not return to her husband because
"all men had `dirty penises.'" Compl. ¶ 14. On another occasion,
Sgt. Calhoun purportedly gave the plaintiff a tour of her
bedrooms and informed the plaintiff that she had an open
invitation to stay in Sgt. Calhoun's bedroom. Pl.'s Stmt. at 5.
The plaintiff also contends that Sgt. Calhoun placed her hand on
the plaintiff's breast, caressed it and slowly brought her
righthand fingers to the tip of plaintiff's nipple and asked the plaintiff
to "think about it." Id. at 4.
These allegations are sufficient to prove that Sgt. Calhoun's
actions toward the plaintiff were motivated by actual homosexual
desire. Potter, 301 F. Supp.2d at 7. "Although none of these
incidents necessarily proves that [Sgt. Calhoun] is gay, the
connotations of sexual interest in [the plaintiff] certainly
suggest that [Sgt. Calhoun] might be sexually oriented toward
members of the same sex . . . [and in turn] leaves ample room for
the inference that [Sgt. Calhoun] harassed [the plaintiff]
because [she] is a [woman]." Shepherd v. Slater Steels Corp.,
168 F.3d 998, 1010 (7th Cir. 1999) (citations omitted). This Court
therefore concludes that a reasonable juror could conclude that
Sgt. Calhoun harassed the plaintiff because she is a woman.
2. Hostile Environment Sexual Harassment
"Once sex discrimination has been proven sufficiently to
survive summary judgment . . . there is no distinction between
same-sex and opposite-sex harassment with respect to the next
stage of the inquiry: determining whether the discriminatory
action was serious enough to constitute quid pro quo or
hostile environment harassment." Potter, 301 F. Supp.2d at 9.
Here, the plaintiff has presented no evidence of quid pro
quo sexual harassment, but rather specifically alleges that
Sgt. Calhoun created a hostile work environment resulting from
her sexual harassment of the plaintiff. Compl. ¶ 1.
To establish a prima facie case of the existence of a
hostile work environment based on sexual harassment, the
plaintiff must state facts sufficient to prove each of the
following elements: (1) she was subjected to harassment because
of her sex; (2) she found the harassment subjectively unwelcome;
(3) the harassment was sufficiently severe or pervasive to create
an abusive, hostile working environment; and (4) she has some
basis for imputing liability for the harassment to the employer.
Sullivan-Obst v. Powell, 300 F. Supp.2d 85, 97 (D.D.C. 2004).
"`Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment an environment
that a reasonable person would find hostile or abusive is
beyond Title VII's purview.'" Oncale, 523 U.S. at 81 (quoting
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)) (citing
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
"`In order to be actionable under [Title VII], a sexually
objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so.'" Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263,
269 (5th Cir. 1998) (quoting Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998)). "`Whether an environment meets this
standard depends on `all the circumstances,' including the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance.'" Id. (quoting Faragher, 524 U.S. at 787.) As
contrasting examples of what does and does not constitute sexual
harassment, the Supreme Court noted that while a "football
player's working environment [would not be considered] severely
or pervasively abusive . . . for example, if the coach smacks him
on the buttocks as he heads onto the field . . . the same
behavior would reasonably be experienced as abusive by the
coach's secretary (male or female) back at the office." Oncale,
523 U.S. at 82.
The defendant posits that the plaintiff's sexual harassment
claims must be dismissed because she cannot demonstrate that the
alleged harassing behavior was sufficiently "severe or pervasive"
to be actionable under Title VII. Defendant's Memorandum of
Points and Authorities in Support of Defendant District of
Columbia's Motion for Summary Judgment. ("Def.'s Mem.") at 4. As
an initial matter, the defendant seeks to discredit the incident
that allegedly occurred in plaintiff's home by stating that
"[t]here is no allegation that the `fish fry' occurred during
business hours and/or that anything that occurred at the `fish fry' had any relation to the District's business."*fn6
Id. Moreover, the defendant claims, that the "[p]laintiff's
second allegations do not rise to the level of severe or
pervasive conduct." Id. The plaintiff, on the other hand,
argues that "severity is established by Sgt. Calhoun's behavior
at the `fish fry' and the several instances when she engaged in
the nonconsentual [sic], physical touching of plaintiff, the
worst instance of which being the time when she caressed
[p]laintiff's breast while the [p]laintiff was in her office."
Plaintiff's Opposition to Defendant's Motion for Summary Judgment
("Pl.'s Opp.") at 10. Moreover, the plaintiff contends that Sgt.
Calhoun's frequent unwelcome comments about her "pretty ass,"
"men's dirty penises," and remarks about the plaintiff's husband
and her boyfriend adequately demonstrate the pervasiveness of the
harassment to which the plaintiff was subjected. Id. at 10-11.
This Court concludes, based upon the above facts, that a
reasonable jury could conclude that Sgt. Calhoun's actions toward
the plaintiff were severe and pervasive enough to create an
objectively hostile or abusive work environment. Although the
incident that occurred at the plaintiff's home, as the defendant
points out, did not take place at the workplace, Def.'s Mem. at
5, Sgt. Calhoun's actions at the plaintiff's home as well as in the workplace contributed to a hostile or abusive work
environment. In Parrish v. Sollecito, 249 F. Supp.2d 342, 350
(S.D.N.Y. 2003) the Court stated
The proper focus of sexual harassment jurisprudence
is not on any particular point in time or coordinate
location that rigidly affixes the employment
relationship, but on the manifest conduct associated
with it, on whether the employer has created a
hostile or abusive `work environment,' or a
`workplace' where sexual offenses occur and are
sufficiently severe or pervasive to alter the
victim's terms and conditions of employment wherever
the employment relationship reasonably carries.
Moreover, "[a] supervisor's unwanted sexual abuse that takes
place outside the confines of the physical plant . . . should
amount to a virtual extension of the working environment." Id.
at 351. "[O]ften such outside misbehavior rebounds and transposes
its consequences inside the actual workplace itself." Id. at
352. Accordingly, the reach of the employment `environment'
should be viewed holistically. "Only harassing conduct that is
`severe or pervasive' can produce a `constructive alteratio[n] in
the terms or conditions of employment.'" Ellerth 24 U.S. at
752; Oncale, 523 U.S. at 752 (Title VII "forbids only behavior
so objectively offensive as to alter the `conditions' of the
victim's employment"); Faragher, 524 U.S. at 787-788
("Workplace conduct is not measured in isolation; instead,
`whether an environment is sufficiently hostile or abusive' must
be judged `by looking at all the circumstances,' including . . .
whether it unreasonably interferes with an employee's work performance.").
"The objective severity of harassment should be judged from the
perspective of a reasonable person in the plaintiff's position,
considering `all the circumstances.'" Oncale, 523 U.S. at 81.
The severity of Sgt. Calhoun's actions are clearly demonstrated
by her behavior at the plaintiff's home when she pulled out her
service revolver and ordered two of the plaintiff's adolescent
guests to leave and subsequently disrobed in front of the
plaintiff and her guests. Additionally, the severity of Sgt.
Calhoun's actions are demonstrated by Sgt. Calhoun having
squeezed or hugged the plaintiff while she was in Sgt. Calhoun's
office and ultimately Sgt. Calhoun caressing one of the
plaintiff's breast. On the occasion when Sgt. Calhoun touched the
plaintiff's breast, she told the plaintiff that she loved her and
when the plaintiff stood up to leave Sgt. Calhoun's office, Sgt.
Calhoun pulled the plaintiff's shoulder toward her, placed her
hand firmly on the plaintiff's right breast while fondling and
caressing the plaintiff's breast and telling the plaintiff to
"think about it." Pl.'s Stmt. at 4. Similarly, the pervasiveness
of Sgt. Calhoun's actions are demonstrated by Sgt. Calhoun's
unrelenting persistence in seeking the plaintiff out and staying
abreast of her whereabouts.*fn7 For example, Sgt. Calhoun ordered the plaintiff to come to her office after
roll-call on several occasions. Compl. ¶ 21; Pl.'s Stmt. at 3-4.
At these meetings in her office, Sgt. Calhoun would ask the
plaintiff if she found her attractive and communicated to the
plaintiff that she loved her. Id. at 4. Additionally, 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. Id. On at least
three occasions Sgt. Calhoun directed the plaintiff to join her
at a local restaurant for food and drinks. Id. On another
occasion the plaintiff joined Sgt. Calhoun at her home to observe
improvements Sgt. Calhoun had made at her home. Id. During that
visit Sgt. Calhoun gave the plaintiff a tour of her bedroom and
invited the plaintiff to stay in her bedroom whenever she liked.
Id. The plaintiff complains that during these encounters, she
was extremely anxious and frightened. Id. The plaintiff states
that she complied with Sgt. Calhoun's orders because she feared
Sgt. Calhoun and felt she had to follow her supervisor's orders. Id. at 6. Moreover, Sgt. Calhoun's comments about her "pretty
ass," men's "dirty penises," and critical remarks about the
plaintiff's husband and her boyfriend, Pl.'s Opp. at 10, all
contributed to the pervasiveness of Sgt. Calhoun's behavior.
"In order to be actionable under [Title VII], a sexually
objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so." Butler v. Ysleta Indep. Sch Dist., 161 F.3d 263, 269
(5th Cir. 1998) (quoting Faragher, 524 U.S. at 787). Here, a
jury could conclude that Sgt. Calhoun's conduct created an
objectively hostile environment and that the plaintiff
subjectively perceived [her] working conditions as abusive. See
Bailey v. Runyon, 167 F.3d 466, 467, 469 (8th Cir. 1999)
(evidence indicating that employee was subjected to persistent
requests for a sexual relationship, was grabbed in the crotch,
and subjected to several requests to have oral sex performed on
him, supported jury's finding of same sex sexual harassment);
see also Lucero-Nelson v. Washington Metro. Area Transit
Auth., 1 F. Supp.2d 1, 3, 6 (D.D.C. 1998) (female supervisor's
questioning of female plaintiff about her sexual habits,
experiences and preference in sexual partners, coupled with
supervisor asking co-workers to admire plaintiff's legs and
discussing the plaintiff's looks in front of others, was
sufficient to support a hostile work environment claim). Viewing the facts in the light most favorable to the
plaintiff, as the Court must do at this juncture, the Court
concludes that the plaintiff has alleged a viable hostile work
environment claim as a matter of law. Id. at 6. Therefore, the
defendant's motion for summary judgment as to the plaintiff's
Title VII claim is denied because she has established that the
sexual harassment she was subjected to created a hostile work
To establish a prima facie claim of retaliation the
"plaintiff must establish that she engaged in activity protected
by Title VII, that the employer took an adverse employment action
against her, and that the adverse action was causally related to
the exercise of her rights." Cones v. Shalala, 199 F.3d 512,
521 (D.C. Cir. 2000) (citing Paquin v. Federal Nat'l Mortgage
Ass'n, 119 F.3d 23, 31 (D.C. Cir. 1997)). Adverse actions are
defined by the District of Columbia Circuit as "tangible
employment action[s] [that] constitute 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." Brown v.
Brody, 199 F.3d 446, 456-57 (D.C. Cir. 1999) (citations
omitted). A critical element in establishing a prima facie
case of retaliation is a showing by the plaintiff that she
suffered an adverse personnel action.
[A]n employee suffers an adverse employment action if
[s]he experiences materially adverse consequences
affecting the terms, conditions, or privileges of
employment or future employment opportunities such
that a reasonable trier of fact could find
objectively tangible harm.
Fokio v. Powell, 306 F.3d 1127
, 1131 (D.C. Cir. 2002) (citing
Brown, 199 F.3d at 457). As such, a common element required for
retaliation claims against federal employers is some form of
legally cognizable adverse action by the employer. Id.
In support of her claim of retaliation, the plaintiff asserts
that: (1) Sgt. Calhoun pursued a disciplinary action seeking a
"written reprimand" against her for reporting or opposing Sgt.
Calhoun's same-sex sexual harassment of the plaintiff; (2) the
EEO office did not provide the plaintiff with her rightful
employment benefit of receiving a properly conducted
investigation into her allegations as provided for by the MPD
General Orders;(3) she suffered severe distress upon learning
that Sgt. Calhoun was violating the EEO office's directive to
stay away from the plaintiff once the plaintiff had been
transferred to a different Sector of the Sixth District; (4) the
failure of the plaintiff's supervisors following her transfer to
undertake any preventive or corrective actions when she reported
Sgt. Calhoun's violations of an explicit "stay-away" order; and
(5) the EEO office's failure to support plaintiff in her effort to transfer to a different patrol district. Pl.'s Opp. at 14-15.
The plaintiff claims that "each of the[se] allege[d] acts of
retaliation . . . ha[d] a materially adverse affect [sic] on the
terms, conditions or privileges of her employment." Id. at 15.
The plaintiff further contends that the acts of retaliation were
"so severe or pervasive as to destroy completely her emotional
and psychological stability." Id. On the other hand, the
defendant argues that the "[p]laintiff has not established that
she suffered any adverse action with respect to her employment,
as it relates to her retaliation claims." Def.'s Mem. at 11. The
Court agrees with the defendant.
While the record conclusively establishes that the plaintiff
engaged in statutorily protected activity, Baker v. Potter,
294 F. Supp.2d 33, 41 (D.D.C. 2003) (the "[p]laintiff certainly
engaged in statutorily protected activity when she filed her EEO
complaints . . ."), the plaintiff has failed to establish that
she was subjected to any adverse employment action. Generally,
employment decisions do not "rise to the level of an actionable
adverse action . . . [under Title VII] unless there is a
`tangible change in duties or working conditions constituting a
material employment disadvantage.'" Walker v. WMATA,
102 F. Supp.2d 24, 29 (D.D.C. 2000) (citation omitted). Changes in work
assignments or work-related duties do not ordinarily constitute
adverse employment decisions if unaccompanied by a decrease in salary or a change in work hours. Brown v. Brody,
199 F.3d at 452. Rather, a plaintiff must adduce evidence of a
"significant change in employment status" to establish a
prima facie case of retaliation. Walker, 102 F. Supp.2d at
29. (quoting Ellerth, 524 U.S. at 761). Here, the actions taken
by the defendant with respect to the plaintiff actually
illustrate the defendant's attempt to improve the plaintiff's
work environment, as opposed to adversely affecting it.
First, the record conclusively establishes that when the
plaintiff reported her complaints regarding Sgt. Calhoun, the
defendant promptly addressed the situation by transferring her to
a location away from Sgt. Calhoun. Complaint ¶ 28. Second, with
respect to the written remand against the plaintiff, by
plaintiff's own admission, the recommendation for a reprimand was
"disapproved" by Commander Rodney Monroe. Pl.'s Stmt. at 8.
See, e.g. Hunter v. Ark, 3 F. Supp.2d 9, 20 (D.D.C. 1998)
(scolding employee and filing disciplinary write-up against
employee had no demonstrably adverse employment consequence)
(citing Milburn v. West, 854 F. Supp. 1, 14 (D.D.C. 1994),
aff'd sub nom., Walker v. West, 1995 WL 117983 (D.C. Cir.
1995)). Thus, the incident did not result in disciplinary action
being taken or the imposition of any other demonstrably adverse
employment action. With respect to Sgt. Calhoun's violations of
the "stay away" order and the defendant's inaction with respect
to enforcing the order, the plaintiff's allegations that Sgt.
Calhoun walked toward her desk at her newly assigned Sector, and
looked at her with a "menacing glare," Pl.'s Stmt. at 9, does not
amount to an adverse employment action. Moreover, after Sgt.
Hepburn observed Sgt. Calhoun in the office, he immediately
approached the plaintiff to determine what Sgt. Calhoun was doing
in the office. Id. Sgt. Hepburn knew that Sgt. Calhoun should
not have been in the office and assured the plaintiff that it
would not happen again. Id.
On this record, the Court concludes that the plaintiff has
failed to adduce evidence of a "significant change in [her]
employment status" sufficient to establish a prima facie
case of retaliation. Walker, 102 F. Supp.2d at 29.
C. Defendant's Liability for Sgt. Calhoun's Actions
"An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over
the employee." Faragher, 524 U.S. at 777. However, "[w]hen no
tangible employment action is taken [against the employee], a
defending employer may raise an affirmative defense to liability
or damages, subject to proof by a preponderance of the evidence."
Id. at 777-78 (citing Federal Rule of Civil Procedure 8(c)).
"The defense comprises two necessary elements: (a) that the
employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer
or to avoid harm otherwise." Id. at 778. "While proof that an
employer had promulgated an antiharassment policy with complaint
procedure is not necessary in every instance as a matter of law,
the need for a stated policy suitable to the employment
circumstances may appropriately be addressed in any case when
litigating the first element of the defense." Id. On the other
hand, "proof that an employee failed to fulfill the corresponding
obligation of reasonable care to avoid harm is not limited to
showing an unreasonable failure to use any complaint procedure
provided by the employer, a demonstration of such failure will
normally suffice to satisfy the employer's burden under the
second element of the defense." Id. The affirmative defense is
not available "when the supervisor's harassment culminates in a
tangible employment action, such as discharge, demotion, or
undesirable reassignment. Id.
The defendant posits that it is entitled to prevail on "the
affirmative defense because the plaintiff has not alleged or
argued that she reported the conduct to someone exercising
control over personnel decisions." Defendant District of
Columbia's Reply to Plaintiff's Opposition to its Motion for
Summary Judgment ("Def.'s Reply") at 8. The defendant further argues that the "[p]laintiff has not alleged nor argued that the
conduct was either open and obvious or that the employer knew or
should have know[n] of the alleged conduct to someone exercising
control over personnel decisions." Id. On the other hand, the
plaintiff challenges the availability of the affirmative defense
arguing that "[a]lthough [the] defendant [did] have an EEO policy
in effect for its employees, at the time of [the] plaintiff's
harassment[,] [the] [d]efendant's enactment of its policy was
deeply flawed such that it did not provide the relief it
purported to offer." Id. at 12. The plaintiff further claims
that she "alerted Sgt. Thomas, Inspector Musgrove, and Sgt.
Randolph of the harassment of which she was a victim." Id. The
plaintiff states that in response to her complaints, she was told
by the above named individuals to seek assistance at the internal
EEO office, however, they did nothing to investigate the
plaintiff's complaints and did not contact the internal EEO
office themselves. Id. The plaintiff further explains that once
she reported her problems to the EEO office, that office failed
to timely complete its investigation and lost the draft report of
the investigative findings and conclusion. Id. at 13.
Consequently, the plaintiff posits that she "was essentially
ignored and did not receive the relief she requested." Id.
Therefore, the plaintiff contends that she "did try to use the
corrective measures [the] MPD claimed were available to its employees and, at the same time, [the] MPD failed to undertake
reasonable measures to prevent or correct the harassment of [the]
Here, the Court has already determined that no tangible
employment action was taken with respect to the plaintiff. See
discussion infra Part II(B). Therefore, the defendant is
entitled to raise the affirmative defense. Faragher, 524 U.S.
at 777. The plaintiff concedes that "the [d]efendant does have an
EEO policy in effect for its employees, [but states that] at the
time of [the p]laintiff's harassment [the] [d]efendant's
enactment of its policy was deeply flawed such that it did not
provide the relief it purported to offer." Pl.'s Opp. at
On the other hand, the defendant cannot show "that [the
plaintiff] unreasonably failed to take advantage of any
preventive or corrective opportunities provided or to avoid harm
otherwise." Faragher, 524 U.S. at 778. As the evidence
demonstrates, the plaintiff "alerted Sgt. Thomas, Inspector Musgrove, and Sgt. Randolph of the harassment of which she was a
victim." Pl.'s Opp. at 12. Although the plaintiff was advised by
each to seek the assistance of the internal EEO office, they did
nothing to investigate the plaintiff's claim or to contact the
internal EEO office themselves. Id. As noted above, on or about
July 2, 1998, the plaintiff initially informed Sgt. Thomas of
Sgt. Calhoun's conduct that took place at her home. Compl. ¶ 20.
Sgt. Thomas "shook his head in disbelief and said he would take
care of things." Id. Although Sgt. Thomas was not the
plaintiff's direct supervisor at the time of this incident, he
had in the past given the plaintiff duty assignments when he
handled her shift's roll-call. Pl.'s Stmt. at 3. Additionally, on
July 7, 1998, after the incident where Sgt. Calhoun allegedly
caressed the plaintiff's breast, the plaintiff also reported this
incident to Sgt. Thomas, Compl. ¶¶ 21-22, and she directly asked
Sgt. Thomas what he was going to do about Sgt. Calhoun Id. ¶
22. During this conversation, Sgt. Thomas purportedly burst into
laughter and agreed to intercede. Id. The plaintiff also
reported Sgt. Calhoun's behavior to Deputy Chief Musgrove who
told her to go immediately to the internal EEO office of the
MPD.*fn9 Id. at 23; Pl.'s Stmt. at 4. The plaintiff was
under Deputy Chief Musgrove's command for a time while she worked
in the Sixth District. Id. The plaintiff admits that she did not
immediately follow Deputy Chief Musgrove's advice because she was
concerned that Sgt. Calhoun would be disciplined if she went to
the EEO office.*fn10 Id. Based on these facts, this Court
concludes that the defendant is not entitled to summary judgment
due to the affirmative defense because the defendant has failed
to show, by a preponderance of the evidence, that "the plaintiff
employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer or to avoid
harm otherwise." Faragher, 524 U.S. at 778.
For the foregoing reasons, the Court concludes that the
plaintiff has established that she was subjected to a hostile
work environment resulting from sexual harassment that was
created by the actions of Sgt. Calhoun and therefore denies the
defendant's motion for summary judgment with respect to that
claim. The District of Columbia is also not entitled to summary
judgment on the plaintiff's vicarious liability theory based on
its assertion of the affirmative defense recognized by the
Supreme Court in Faragher, 524 U.S. at 777-78. Finally, the
Court further concludes that the plaintiff has failed to establish that she was the victim of retaliation and therefore
grants the defendant's motion for summary judgment with respect
to that claim.
SO ORDERED on this 9th day of July, 2004.*fn11