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JONES v. DISTRICT OF COLUMBIA

November 8, 2004.

ANGELA JONES, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.



The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge

MEMORANDUM OPINION

This matter came before the Court on the defendants' Motion [48] for Summary Judgment. Upon consideration of the defendants' motion, the opposition thereto, the reply, the applicable law, and the entire record herein, the Court GRANTED the defendants' Motion [48] for Summary Judgment in an Order issued September 30, 2004. The Court's reasoning is set forth below.

BACKGROUND

  This is an action brought by a corrections officer against the District of Columbia, and the District of Columbia Department of Corrections in particular, alleging gender-based discrimination in violation of Title VII of the 1964 Civil Rights Act, as amended. Motions for summary judgment require the Court to review the facts and evidence in the light most favorable to the non-moving party — here the plaintiff. Therefore, the following statement of facts is taken directly from the plaintiff's complaint, her opposition to the defendants' motion for summary judgment, and the plaintiff's statements of record filed with the Court. The plaintiff, Angela Jones, was hired as a corrections officer by the District of Columbia Department of Corrections in September 1997. Jones was aware that the D.C. Department of Corrections has a published sexual harassment policy. See Def.'s Mot. for Summ. J., Ex. L (District of Columbia Department of Corrections, Department Order, "Sexual Harassment of Employees"); Pl.'s Opp. at 18 (asserting plaintiff's awareness of this policy). After her initial training, which included sexual harassment training, Jones was placed at the D.C. Department of Corrections' Occoquan Facility in Lorton, Virginia, where she was initially assigned to work with Sergeant Daryl Ellison. It is unclear from the record whether Ellison was Jones' supervisor. Although Ellison claimed, at various times, to have the authority to assign overtime and write evaluations of Jones' job performance, and Jones believed these claims at the time they were made, Jones later learned that he did not have the authority to do either of these things. See Pl.'s Opp, Stmt of Material Facts, at 3 ¶ 10, 5 ¶ 20; Pl.'s Opp. Ex. A (Jones Dep.), at 50-51; Pl.'s Opp., Ex. B (Jones Decl.), at ¶ 3. In official terms, it appears that Ellison was not a supervisor at all but merely a more senior officer in the "zone" to which Jones was assigned. See Def.'s Mot. for Summ. J., Ex. H (Letter from Adrienne Poteat, D.C. Department of Corrections Deputy Director for Institutions, to Margaret Moore, Director, D.C. Department of Correction, June 22, 1998) ("[It] is my recommendation . . . that Sergeant Ellison receive training regarding interpersonal relationships and effective communication rather than supervisory training since he is not a supervisor.") (emphasis added).

  During the first two weeks of Jones' employment at Lorton, Ellison told Jones and one officer Cole "that if they wanted overtime, they needed to give him their telephone numbers." Pl.'s Opp. to Def.'s Mot. for Summ. J. at 5 ("Pl.'s Opp."). In addition, at times not specified, but presumably early in the period of Jones' employment at Lorton, Ellison commented on his "sexual prowess, stating `I am the man.'" Pl.'s Opp. at 5. "On two or three occasions, [Ellison] told [Jones] that he had dreams of having sex with her," and each time would "ask [Jones] whether she was trying to make his `dream come true.'" Id.

  At other unspecified times, Ellison "made statements to Ms. Jones' co-workers that he was attracted to her and would like to have sex with her;" Pl.'s Opp., Stmt. of Material Facts, at 3 ¶ 14; made "remarks of a sexual nature to [Jones]," commented on "the size of [Jones'] breasts and the size of her bra," and asked "what color were [Jones'] bra and underwear and what `print' there was on her underwear." Pl.'s Opp., Stmt. of Material Facts, at 5 ¶ 21. Additionally, Jones learned that, again at various unspecified times during Jones' employment at Lorton, Ellison had entered into a wager with other male corrections officers concerning which of them would "score with [Jones] first," Pl.'s Opp., Stmt. of Material Facts, at 3 ¶ 13, and that Ellison told several inmates that Jones was a homosexual "because she would not have sex with [Ellison]," id. at 5 ¶ 23. Ellison would "on occasion, rub his crotch when he was alone with Ms. Jones." Id. at 8 ¶ 34. When Jones rebuffed Ellison's advances, he threatened her with poor evaluations and disciplinary action. Id. at 5 ¶ 22 (referring to Pl.'s Opp., Ex. B (Jones Decl.), at ¶ 9).

  Approximately three months after Jones' began working at Lorton, in December 1997, Ellison unlocked the door to the facility's gym so that Jones could retrieve her umbrella. He followed her inside, closing and locking the door behind them and refusing to allow Jones to exit the gym for approximately five minutes. Pl.'s Opp., Stmt. of Material Fact, at 4 ¶¶ 15, 18. Ellison asked Jones to kiss him, explaining that he was attracted to her "and to the `red lipstick' she wore [and] that he thought she had `sexy lips' and was very `sexy[,]'" then he "grabbed her coat in a bear hug and physically began pulling Ms. Jones toward him" in an attempt to force Jones to kiss him. Pl.'s Opp., Stmt. of Material Facts, at 4 ¶¶ 15-16 (quoting Pl.'s Opp., Ex. A (Jones Dep. at 42-43)). Jones explained, "[w]e actually tussled. We tussled. And I asked him to get off me." Pl.'s Opp., Ex. A (Jones Dep.), at 43. Jones was detained in the gym until, upon hearing Jones' scream, one Corporal Grayton intervened and she was allowed to leave Def.'s Mot. for Summ. J., Ex. C (Pl.'s Answers to Interrogs.), at 6. The Court will refer to this occurrence as the "gym incident" for the remainder of this Opinion.

  In early January 1998, two weeks after the gym incident and after Jones had been reassigned to a location in which Ellison did not work, Ellison summoned Jones to the "ops office," claiming that he needed to speak with Jones about an "evaluation." Pl.'s Opp., Stmt. of Material Fact, at 4 ¶ 19; Def.'s Mot. for Summ. J., Ex. C (Pl.'s Answers to Interrogs.), at 6; Pl.'s Opp., Ex. A (Jones Dep.), at 50. When Jones arrived in the ops office, Ellison closed the door behind her and tried to kiss her. Id. at 5 ¶ 20. Ellison then explained, presumably after Jones rebuffed his advances, that there was no evaluation to discuss. Id. There was no physical contact on this occasion as there was in the gym incident. See Pl.'s Opp., Ex. A (Jones Dep.), at 51-52 ("Q: Now . . . during [the office] incident, did he again grab you? A: No. . . . . Q: [T]here was no physical contact? A: No."). The Court will refer to this occurrence as the "office incident" for the remainder of this Opinion.

  Another two weeks later, in mid-January 1998, Jones was in the mess hall when Ellison approached her, commenting, "I can tell you what size underwear you wear." Def.'s Mot. for Summ. J., Ex. C (Pl.'s Answers to Interrogs.), at 7. At that time, Ellison also told Jones "you have big breast [sic] and I dream of licking them," Def.'s Mot. for Summ. J., Ex. C (Pl.'s Answers to Interrogs.), at 7, and "brushed himself up behind Ms. Jones `with his whole body.'" Pl.'s Opp., Stmt. of Material Facts, at 6 ¶ 25 (quoting Pl.'s Opp., Ex. A (Jones Dep.), at 61). The Court will refer to this occurrence as the "mess hall incident" for the remainder of this Opinion.

  It is unclear precisely what actions Ms. Jones took between September 1997 and January 1998, the time period when these incidents were occurring. After the gym incident, Jones spoke to one Sergeant Armstrong about Ellison's behavior. See Pl.'s Opp., Ex. A (Jones Dep.), at 44-45. Armstrong "told [Jones] that he would talk to Ellison because Ellison knew that he was wrong and that he shouldn't have done that." Id. at 45. Again, it is unclear from the record whether Armstrong was a supervisor, or whether he had any supervisory authority over Ellison. The plaintiff seems to have thought that Armstrong was in a position to take some effective action, however, as she "believe[d] [Armstrong] was the senior sergeant at the time. . . ." Pl.'s Opp., Ex. A (Jones Dep.), at 59.

  After Jones rebuffed Ellison during the office incident, she "explained to him how he made me feel very uncomfortable and that he needed to cease his behavior, that I was married and I didn't want to get other people involved." Pl.'s Opp., Ex. A (Jones Dep.), at 51. Additionally Jones again reported the incident to Sergeant Armstrong. It does not appear from the record that Jones took any action at all after the mess hall incident or reported it to anyone. Jones stated that no further incidents of sexual harassment occurred after the mess hall incident. See Pl.'s Opp., Ex. A (Jones Dep.), at 58.

  Approximately two and a half months after the mess hall incident, on April 9, 1998, Jones lodged a sexual harassment complaint against Ellison with the Department of Corrections. That same day, the Department of Corrections issued cease and desist letters to both Jones and Ellison, which provided that "the complainant and the respondent [must] avoid unnecessary contact with each other while the allegations in question are being investigated." Def.'s Mot. for Summ. J., Exs. F, G (Mem. from Anita B. Michelow, Acting Warden of the Occoquan Facility, to Angela Jones, April 9, 1998; Mem. from Michelow to Darryl Ellison, April 9, 1998). The department conducted an internal investigation of Jones' allegations, concluding on May 28, 1998 that there was insufficient evidence to support a finding of probable cause that Ellison had sexually harassed Jones. See Def.'s Mot. for Summ. J., Ex. H (D.C. Dep't of Corrections Sexual Harassment Investigation Rep., "Summary"). The cease and desist letters were continued in effect and Ellison was directed to attend "supervisors training" as a result of the investigation. Id. ("Recommendation"). Jones had no further personal contact with Ellison after the cease and desist letters were distributed, and no further incidents of sexual harassment are alleged to have occurred after April 9, 1998. See Pl.'s Opp., Ex. C (EEOC "Charge of Discrimination") ("I have not been sexually harassed since [the Department of Corrections completed its internal investigation].").

  During the pendency of Jones' complaint, Jones' shift was changed several times, including one period of time when she was assigned to the night shift, which "imposed increased daycare burdens" on Jones. Pl.'s Opp., Ex. B (Jones Decl.), at ¶ 14. Jones petitioned for a return to the day shift, which request was granted in August 1998, but the Department continued to "change? [Jones'] duty locations and days off over the subsequent weeks." Id. On October 15, 1998, Jones was assigned to "tower duty," which is "a very undesirable position in the facility" because the tower is "drafty and unheated in the cold weather;" "not air conditioned and very uncomfortable during hot, humid days;" "infested with bugs;" and lacking in adequate "bathroom facilities." Id. at ¶¶ 15, 16. This duty eventually became permanent, and Jones was "barred from entry into the [Occuquan] institution." Id., ¶ 15. Jones perceived her assignment to the tower to be punishment, and she was advised by a co-workers that "placement in the Tower is a form of punishment so you must have pissed off someone. . . ." Def.'s Mot. for Summ. J., Ex. C (Pl.'s Answers to Interrogs.), at 7.

  On August 4, 1998, Jones filed a discrimination complaint with the federal Equal Employment Opportunity Commission ("EEOC"), alleging that she was sexually harassed by Ellison. Jones argued both that the three incidents discussed herein constituted sexual harassment and gender discrimination in violation of Title VII of the Civil Rights Act, and that Ellison had, by way of verbal abuse, retaliated against her after she filed her complaint. See Pl.'s Opp., Ex. C (EEOC "Charge of Discrimination," filed August 4, 1998); Pl.'s Opp., Ex. E (EEOC "Determination," issued Mar. 24, 2000) ("[W]itness testimony verifies that Charging Party was verbally harassed by the alleged bad actor after she filed the internal grievance. Witness testimony verifies that the shift supervisor referred to Charging Party as a `Red Bitch' and a `Damn Liar.'"). On March 24, 2000, the EEOC completed its investigation of Jones' claims and issued a declaration finding that "it is reasonable to conclude that Charging Party was sexually harassed and retaliated against for complaining in violation of Title VII of the Civil Rights Act of 1964, as amended." Pl.'s Opp., Ex. E (EEOC "Determination," issued Mar. 24, 2000). It was during the pendency of this EEOC complaint that Jones was moved to tower duty, which she perceived to be further retaliation.

  On September 6, 2000, Jones filed a complaint in this Court, which was amended on September 18, 2000. Named as defendants are the District of Columbia Department of Corrections, Sergeant Darryl Ellison, Captain William Brooks, Lieutenant Karen Gray, Lieutenant Betty Ames, District of Columbia Department of Corrections Warden Patricia Britton-Jackson, and District of Columbia Department of Corrections Director Odie Washington. Brooks, Gray, and Ames were named as defendants due to their participation in the internal grievance investigation into Jones' complaint, during which "they each had the authority to take prompt corrective action against Sgt [sic] Ellison or had the authority to tell someone who is in a position to take prompt corrective action against him but [they] failed to do so. . . ." Pl.'s Compl. at 5 ¶. All the non-institutional defendants were sued both in their official and individual capacity.

  The complaint alleges: (1) sexual harassment in violation of both Title VII's prohibition on gender discrimination and the similar prohibition in the District of Columbia Human Rights Act; (2) retaliatory action by the defendants upon learning of Jones' complaints, also in violation of Title VII; (3) negligent hiring and retention by the D.C. Department of Corrections in hiring and retaining Ellison; (4) creation of a hostile work environment and race discrimination in violation of the District of Columbia Human Rights Act; (5) common-law assault and false imprisonment against Ellison, and vicariously against the Department of Corrections, for the gym incident; and (6) intentional infliction of emotional distress. See Pl.'s Compl., ¶¶ 26-51 (Counts I-VI). For these alleged violations, Jones requested aggregate compensatory damages in the amount of $43,400,000 and aggregate punitive damages in the amount of $85,900,000.

  Three years later, on October 24, 2003, the defendants filed their motion for summary judgment. Jones filed her opposition to that motion on January 7, 2004, and the defendants replied on January 14, 2004. Upon consideration of the defendants' motion, the opposition, the reply, the applicable law, and the record in this case, the Court granted the defendants' motion for summary judgment, denied Jones' pending motion to amend her complaint yet again, and dismissed the case with prejudice in two Orders issued September 30, 2004.

  DISCUSSION

  A. Summary Judgment Standard

  Under Federal Rule of Civil Procedure 56, a court must grant summary judgment when the pleadings, affidavits, depositions, answers to interrogatories, and admissions of record demonstrate that there are no genuine issues 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, 247 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A disputed issue of material fact is genuine and therefore precludes summary judgment where the Court determines that a reasonable jury could conceivably find in favor of the non-moving party on that factual issue. Anderson, 477 U.S. at 248. However, even where a genuine issue exists as to some material fact, the movant is entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

  As a general rule, when adjudicating a motion for summary judgment, the Court must "assume the truth of all statements proffered by the party opposing summary judgment" and construe all evidence in favor of the non-moving party. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). See Anderson, 477 U.S. at 255; Carter v. Greenspan, 304 F. Supp. 2d 13, 21 (D.D.C. 2004). Indeed, 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., Inc., 530 U.S. 133, 150 (2000). See also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). However, "some statements are so conclusory as to come within an exception to" the general rule that the non-movant's statements must be fully credited when adjudicating a motion for summary judgment. Greene, 164 F.3d at 675 (citing as examples Delange v. Dutra Constr. Co., 153 F.3d 1055, 1058 (9th Cir. 1998); Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 233, 240 (5th Cir. 1998)). Thus "wholly conclusory statements for which no supporting evidence is offered" need not be taken as true for summary judgment purposes. Carter, 304 F. Supp. 2d at 21 (citing Greene, 164 F.3d at 674-75).

  In order to survive a motion for summary judgment, a plaintiff must at least present evidence upon which a reasonable jury could find that a prima facie case for liability has been established. See Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003) (affirming district court's grant of summary judgment for plaintiff's failure to sufficiently make out prima facie case for discrimination and retaliation); see also Carter, 304 F. Supp. 2d at 20 n. 5 (reiterating this standard in a Title VII sexual harassment case). The non-moving party must establish more than the "mere existence of a scintilla of evidence" in support of its claims. Anderson, 477 U.S. at 252. In order to prevail, the non-movant's opposition must contain more than "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." Carter, 304 F. Supp. 2d at 21. See FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50. In fact, summary judgment may issue where the movant points to a substantial lack of evidence in the non-movant's case; see Celotex, 477 U.S. at 322; or where the movant demonstrates that the non-movant has failed to proffer "evidence in which the jury could reasonably find for" the non-moving party. Anderson, 477 U.S. at 252.

  Courts evaluating motions for summary judgment in discrimination cases are advised to proceed with additional caution and to apply a heightened degree of scrutiny. See Waterhouse v. Dist. of Columbia, 124 F. Supp. 2d 1, 4 (D.D.C. 2000), aff'd, 298 F.3d 989 (D.C. Cir. 2002); Calhoun v. Johnson, 1998 WL 164780, at *3 (D.D.C. 1998), aff'd. 1999 WL 825425 (D.C. Cir. 1999). However, even under this heightened standard, a discrimination plaintiff "is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Waterhouse, 124 F. Supp. 2d at 4 (quoting Calhoun, 1998 WL 164870 at *3). Local Civil Rule 7(h) provides that oppositions to motions for summary judgment "shall be accompanied by a separate concise statement of genuine issues ...


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