United States District Court, D. Columbia
August 25, 2005.
ROSALIE L. TURNER, Plaintiff,
DISTRICT OF COLUMBIA, Defendant.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION TO
DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
The plaintiff, Rosalie Turner, is a doctor and former employee
of the Southeast Sexually Transmitted Disease Clinic ("S.E.
Clinic") at D.C. General Hospital. Defendant District of Columbia
provides services through the D.C. Department of Health and D.C.
General Hospital. The plaintiff sues the defendant under
42 U.S.C. § 1983, the Equal Pay Act, the Americans with Disabilities
Act, the Rehabilitation Act, and for intentional infliction of
emotional distress. The plaintiff alleges that she suffered
adverse employment actions and a hostile work environment as a
result of a custom or policy of the District of Columbia (the
"district") to discriminate against women during her three-decade
long career as a physician employed by the District of Columbia
Department of Health ("DOH"). Also, the plaintiff claims that she
was discriminated against because of her medical illnesses.
Furthermore, she claims that she was retaliated against for
filing a complaint with the District Office of Human Rights.
Finally, the plaintiff seeks damages for intentional infliction
of emotional distress under District of Columbia law. This matter comes before the court on the defendant's motion to dismiss or in
the alternative for summary judgment.
Because plaintiff's involuntary discharge, failure to inform of
salary enhancement, and pre-February 22, 2000 ADA and RA claims
are time-barred, because plaintiff fails to establish a prima
facie case of sex discrimination for understaffing, constructive
discharge, and forced job description re-writing, because
plaintiff fails to establish a prima facie case under the Equal
Pay Act, and because plaintiff fails to establish a prima facie
case of hostile work environment and intentional infliction of
emotional distress, defendant's motion for summary judgment, as
to those claims, is granted. Because a genuine issue of material
fact exists whether the S.E. Clinic supervisors denied plaintiff
use of sick days in retaliation for a complaint she filed,
defendant's motion for summary judgment as to that claim is
A. Factual Background
The plaintiff alleges as follows. The plaintiff, a physician,
was employed at the S.E. Clinic in the district from August, 1972
to September, 2004. Am. Compl. ¶ 18. The Clinic is operated by
the DOH. Id. ¶ 6. The plaintiff, originally hired as Chief
Medical Officer of the S.E. Clinic ("Clinic Chief") in 1972, was
promoted to Bureau Chief of STD Control for the district ("Bureau
Chief") in 1976. Id. ¶¶ 19-20. The plaintiff was the first
woman to hold the Bureau Chief position. Id. ¶ 21. Although the
Bureau Chief position had previously been a full-time position,
id. ¶ 22, the plaintiff was required by DOH officials to
perform the duties of both Bureau Chief and Clinic Chief, id. ¶
24. Despite numerous requests for administrative support and
additional personnel as the S.E. Clinic began to undergo a
staffing shortage, DOH officials "failed or refused to attend to such needs or to replace such
staff as positions became vacant." Id. ¶ 29. The plaintiff
states that the district had sufficient funds to hire the staff
members the plaintiff requested. Id. ¶ 30. The plaintiff
requested and received permission in October of 1977 to return
solely to the position of Clinic Chief, id. ¶ 33, an action she
claims she was forced to take as a result of the "intolerable
working conditions" of being required to perform the duties of
both positions simultaneously and understaffing at the S.E.
Clinic, id. ¶¶ 31, 35.
Similar conditions at the clinic, according to the plaintiff,
persisted and worsened. Id. ¶ 37. In 1989, several employees
left the S.E. Clinic, causing another staffing shortage. Id. ¶
38. Because the conditions worsened, the plaintiff was forced to
assume additional duties outside of her position, including
"duties normally performed by non-professional, supervisory, and
administrative staff, including but not limited to: (1)
performing time-keeping duties, and (2) ordering, checking and
maintaining medicine, general office supplies, and clerical and
medical equipment stock." Id. ¶ 39.
Additional preventative health technicians at the S.E. Clinic
departed in the early 1990s. Id. ¶¶ 42-43. The Northwest Clinic
("N.W. Clinic") was evicted or lost its lease, Opp'n Ex. A ¶ 3
(Turner Aff.), which resulted in the merging of the N.W. and S.E.
Clinics in 1995, Am. Compl. ¶ 44. As a result of this merger, six
N.W. Clinic employees five physicians, a nursing assistant, and
a preventative health technician, were transferred to the S.E.
Clinic. Id. ¶ 45. Within one month of this transfer, however,
all but two of those physicians had left the S.E. Clinic, id. ¶
49, due to the "extreme differences in working conditions"
between the two clinics, including a "greater patient-to-doctor
ratio on a daily basis, more extreme cases, and a marked surge in
cases of genital ulcer disease and syphilis among patients
attending the [S.E. Clinic]," id. ¶ 47. Additionally, although
nursing assistant Mrs. Britt had performed some of the duties at the N.W. Clinic that the plaintiff was performing at the S.E.
Clinic, such as ordering medicine and supplies, Britt was
directed not to perform such duties at the S.E. Clinic following
the merger. Id. ¶ 49.
The plaintiff alleges that the DOH failed to inform her of a
salary enhancement program until 1983, although she was eligible
for the program beginning in 1979. Id. ¶ 56. The results of
understaffing also prevented the plaintiff from participating in
a management enhancement training course. Id. ¶ 55. In March
1999, the plaintiff became "seriously ill" with hypertension and
diabetes, illnesses the plaintiff alleges are "directly
attributable to the long-standing and unreasonable physical
demands, stress, and duress of the working conditions[.]" Id. ¶
In May of 1999, the plaintiff informed the Administrator of
Preventative Health Services, Dr. Calderone, of her condition and
her need for "accommodation." Id. ¶ 65. Dr. Calderone directed
the acting Bureau Chief, Pete Moore, to "immediately find money"
to hire an additional physician for the S.E. Clinic, and promised
to hire a second physician in October. Id. ¶ 66. No additional
physicians were hired, however, and the plaintiff submitted a
request to "retreat" from her position as Clinic Chief to a less
demanding position the position of medical officer on August
23, 1999. Pl.'s Original Opp'n at 33;*fn1 Am. Compl. ¶
71.*fn2 DOH officials "agreed to accommodate plaintiff's
illness by permitting her to move into the existing medical
officer position," Am. Compl. ¶ 184, and the plaintiff's
resignation as Clinic Chief became effective on November 7, 1999.
Pl.'s Original Opp'n at 34. On October 4, 1999, Pete Moore called the plaintiff and
demanded that the "existing and long-standing" job description
for the position of medical officer be changed to add more
responsibilities and duties before the plaintiff would be allowed
to assume it and receive the same pay as her male predecessor,
Dr. Elliot. Id. ¶¶ 74, 77; Pl.'s Opp'n Ex. A ¶ 10. The medical
officer job description was rewritten using "broad language" in
order to force the plaintiff "to perform any and every duty in
the clinic at the whim of her supervisors[.]" Id.
In March 2000, Dr. Shukdeo Sankar, a male, was hired as the new
Clinic Chief. Am. Compl. ¶ 82. The plaintiff alleges that Dr.
Sankar has since received the additional staff and support that
the plaintiff repeatedly requested to no avail while Clinic
Chief. Id. ¶ 85. DOH officials have not required that Dr.
Sankar perform all of the duties in his job description as Clinic
Chief, as they required of the plaintiff. Id. ¶ 88. Rather, Dr.
Sankar has required the plaintiff to perform some duties included
in his job description, and not included in her job description
as a medical officer. Id. ¶ 90. The plaintiff also alleges that
Dr. Sankar has denied her the legitimate use of sick days, id.
¶ 192, and ridiculed her for taking some sick days, id., after
he learned she had filed a complaint with the D.C. Office of
Human Rights ("OHR"), see Pl.'s Opp'n, Ex. B.
The plaintiff alleges that these actions constitute a district
"policy or custom," set intentionally or as a result of
deliberate indifference of discriminatory treatment of women, and
discriminatory treatment against her because of her illnesses.
Am. Compl. ¶¶ 96-97.
B. Procedural History
The plaintiff filed her complaint on July 31, 2002. In June
2003, the court denied the defendant's motion to stay the
proceedings. Turner v. District of Columbia, 268 F. Supp. 2d 23
(D.D.C. 2003). The district filed a motion to dismiss, or in the
alternative, for summary judgment, on September 4, 2003, which the plaintiff filed an
opposition to on October 21, 2003. The defendant filed a reply
ten days later. In July, 2004, the court ordered the parties to
submit further briefing on why the plaintiff's claim against the
district under § 1983 should not be dismissed where that claim
failed to allege that "execution of . . . official policy or
custom is responsible for the deprivation of constitutional
rights." July 28, 2004 Order (citing Morgan v. District of
Columbia, 824 F.2d 1049, 1058 (D.C. Cir. 1987)). Following the
submission of further briefing by both parties, the court granted
the plaintiff leave to amend her complaint to correct her
allegations, and the plaintiff filed her amended complaint on
November 1, 2004. The defendant filed its motion to dismiss or in
the alternative for summary judgment currently before the court
on January 7, 2005. The court now turns to that motion.
A. Legal Standard for a Motion for Summary Judgment*fn3
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense
and, therefore, affect the outcome of the action. Celotex,
477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw
all justifiable inferences in the nonmoving party's favor and
accept the nonmoving party's evidence as true. Anderson,
477 U.S. at 255. A nonmoving party, however, must establish more than
"the mere existence of a scintilla of evidence" in support of its
position. Id. at 252. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] 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,
477 U.S. at 322. By pointing to the absence of evidence proffered by
the nonmoving party, a moving party may succeed on summary
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C. Cir. 1993). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its
favor. Greene, 164 F.3d at 675. If the evidence "is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (internal
citations omitted). Finally, the D.C. Circuit has directed that because it is
difficult for a plaintiff to establish proof of discrimination,
the court should view summary-judgment motions in such cases with
special caution. See Aka v. Washington Hosp. Ctr.,
116 F.3d 876, 879-80 (D.C. Cir. 1997), overturned on other grounds,
156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also Johnson v.
Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. Legal Standard for 42 U.S.C. § 1983 Claims
To determine municipal liability under 42 U.S.C. § 1983, the
district court must conduct a two-step inquiry. Baker v.
District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003).
First, the court determines whether the plaintiff establishes a
predicate constitutional violation. Id. If so, the court then
determines whether the complaint states a claim that a custom or
policy of the municipality caused the violation. Id.; Monell
v. Department of Social Services of N.Y., 436 U.S. 658, 694
(1978). The second prong requires a determination of whether "a
policy or custom of the District of Columbia caused the
constitutional violation alleged under the first prong." Baker,
326 F.3d at 1306; Monell, 436 U.S. at 694. As the court in
Baker stated, the plaintiff must
allege? an "affirmative link," such that a municipal
policy was the "moving force" behind the
constitutional violation. There are a number of ways
in which a "policy" can be set by a municipality to
cause it to be liable under § 1983: the explicit
setting of a policy by the government that violates
the Constitution; the action of a policy maker within
the government; the adoption through a knowing
failure to act by a policy maker of actions by his
subordinates that are so consistent that they have
become "custom"; or the failure of the government to
respond to a need (for example, training of
employees) in such a manner as to show "deliberate
indifference" to the risk that not addressing the
need will result in constitutional violations.
Baker, 236 F.3d at 1306-07 (internal citations omitted). C. Legal Standard for Discrimination under 42 U.S.C. § 1983
Generally, to prevail on a claim of sex discrimination under §
1983, a plaintiff must follow a three-part burden-shifting
analysis generally known as the McDonnell Douglas framework.
Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir.
1995) (holding that claims of sex discrimination brought under §
1983 and Title VII are subject to "[i]dentical methods of proof,"
including the McDonnell Douglas framework, and citing
McDonnell Douglas v. Green, 411 U.S. 792 (1973); See St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, n. 1 (1993). The
Supreme Court explained the framework as follows:
[f]irst, the plaintiff has the burden of proving by
the preponderance of the evidence a prima facie case
of discrimination. Second, if the plaintiff succeeds
in proving the prima facie case, the burden shifts to
the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection". . . . Third, should the defendant carry
this burden, the plaintiff must then have an
opportunity to prove by preponderance of the evidence
that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for
discrimination. . . . The ultimate burden of
persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff
remains at all times with the plaintiff.
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981) (internal citations omitted) (quoting McDonnell Douglas,
411 U.S. at 802).
To establish a prima facie case of discrimination, the
plaintiff must show that (1) she is a member of a protected
class; (2) she suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.
Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); Stella v.
Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002). "The burden of
establishing a prima facie case of disparate treatment is not
onerous." Burdine, 450 U.S. at 253. If the plaintiff
establishes a prima facie case, a presumption then arises that
the employer unlawfully discriminated against the employee. Id.
at 254. To rebut this presumption, the employer must articulate a
legitimate, non-discriminatory reason for its action. Id. The employer "need not persuade the court that it was actually
motivated by the proffered reasons." Id. Rather, "[t]he
defendant must clearly set forth, through the introduction of
admissible evidence, reasons for its actions which, if believed
by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action." St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
If the employer successfully presents a legitimate,
non-discriminatory reason for its actions, "the McDonnell
Douglas framework with its presumptions and burdens
disappears, and the sole remaining issue is discrimination vel
non." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)
(internal citations omitted). At this point, to survive summary
judgment, the plaintiff "must show that a reasonable jury could
conclude from all of the evidence that the adverse employment
decision was made for a discriminatory reason." Id. (citing
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998)
(en banc)). The court must consider whether the jury could infer
discrimination from (1) the plaintiff's prima facie case, (2) any
evidence the plaintiff presents to attack the employer's
proffered explanation, and (3) any further evidence of
discrimination that may be available to the plaintiff.
Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C.
Cir. 2002) (quoting Aka, 156 F.3d at 1289). The plaintiff need
not present evidence in each of these categories to avoid summary
judgment. Aka, 156 F.3d at 1289. Rather, the court must assess
the plaintiff's challenge to the employer's explanation in light
of the total circumstances of the case. Id. at 1291.
1. The Court Grants Defendant's Motion for Summary Judgement
The plaintiff makes five discrete claims: (1) involuntary
discharge, (2) failure to inform plaintiff of salary enhancement,
(3) persistent understaffing, (4) constructive discharge, and (5)
change in job description. It is unclear whether the plaintiff seeks relief for these five
claims as specific alleged adverse acts or includes them as a
part of a hostile work environment claim. The plaintiff's reply
seems to suggest the latter, see Pl.'s Reply at 11, but the
court will analyze her claims under both theories: first, whether
the plaintiff has a viable claim based on any of the discrete
adverse employment acts complained of, and second, whether she
has a viable hostile work environment claim.
a. The Plaintiff's Theory of Discrete Adverse Employment Acts
a. The Involuntary Discharge and Failure to Inform of Salary
Enhancement Claims are Time Barred
Where state law provides multiple statutes of limitations for
different kinds of personal injury actions, federal courts
adjudicating § 1983 claims borrow the general or residual statute
for personal injury actions. Owens v. U.U. Okure, 488 U.S. 235
249-50 (1989). There is a three-year residual statute of
limitations in the District for personal injury claims. D.C. Code
§ 12-301(8). In Nat'l R.R. Passenger Corp. v. Morgan, a Title
VII case, the Supreme Court held that discrete acts of
discrimination that are inside the limitations period cannot
"save" other discrete acts outside the limitations period from
being time-barred, even when they are closely related to one
another. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002) (rejecting the "continuing violation" doctrine as to
discrete acts, and stating that "[e]ach discriminatory act starts
a new clock for filing charges alleging that act"). The same
analysis should be applied to discrimination claims brought under
§ 1983. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385
393-95 (1982) (holding that the Title VII administrative charge
period is functionally equivalent to a statute of limitations);
Carpinteria Valley Farms, Ltd. v. County of Santa Barbara,
344 F.3d 822
, 829 (9th Cir. 2003) (applying Morgan to the
timeliness of discrete acts brought under § 1983); Sharpe v. Cureton,
319 F.3d 259, 267 (6th Cir. 2003) (finding "no principled basis upon
which to restrict Morgan to Title VII claims").
The plaintiff, after a vague and meandering discussion of the
Court's holding in Morgan, relies on two cases for the
proposition that "when a continuing violation can be shown, the
plaintiff is entitled to bring suit challenging all conduct that
was a part of that violation, even conduct that occurred outside
the limitations period." Pl.'s Opp'n at 16 (quoting Cromwell v.
Robinson, 23 F.3d 695, 703 (2d Cir. 1994), and relying on Hull
v. Cuyahoga Valley Board of Education, 926 F.2d 505, 511 (6th
Cir. 1991)). The plaintiff's reliance is misguided, for that
proposition was flatly rejected by the Supreme Court in Morgan
regarding discrete instances of discrimination. Morgan,
536 U.S. at 113 (reversing the circuit court's holding that "so long
as one act falls within the charge filing period, discriminatory
and retaliatory acts that are plausibly or sufficiently related
to that act may also be considered for the purposes of
liability") (citations omitted). The plaintiff correctly
recognizes that the reasoning illustrated in Cromwell is "much
like" the decision in Morgan "regarding a hostile workplace
claim," Pl.'s Opp'n at 16, but the plaintiff erroneously implies
that the same is true for discrete adverse employment actions. It
is not. It is not the case, as plaintiff argues, that any
plaintiff bringing a § 1983 claim who employs the words "pattern
or practice" in her complaint may avoid the statute of
limitations. "Pattern or practice" refers both to the use of
collateral evidence of systematic discrimination for an
individual claim, Williams v. Boorstin, 663 F.2d 109, 115 n. 38
(D.C. Cir. 1980), and an approach available in class action
lawsuits alleging discrimination against a class, Palmer v.
Shultz, 815 F.2d 84, 90 (D.C. Cir. 1987). While an individual
plaintiff may use evidence of time-barred acts "to establish
motive and to put his timely filed claims in context,"
Carpinteria, 334 F.3d at 800-801, such evidence "can only be
collateral to evidence of specific discrimination against the actual plaintiff," Williams, 663 F.2d at 115 n. 38. Thus, while
evidence of a pattern or practice is relevant to an individual's
claim for discrimination, an individual may not rely solely on a
"pattern or practice" theory to prove his claims. Murphy v.
PriceWaterhouseCoopers, LLP, 357 F. Supp. 2d 230, 246 (D.D.C.
2004). Accordingly, the reasoning in Morgan is applicable to
the plaintiff's individual claims.
The plaintiff filed her complaint on July 31, 2002, and
accordingly, any alleged discrete adverse employment actions that
occurred prior to July 31, 1999 are barred by D.C.'s statute of
limitations. The D.C. Circuit has described an adverse employment
action as "an action with materially adverse consequences
affecting the terms, conditions, or privileges of employment."
Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002).
Therefore, claims based on the plaintiff's "involuntary
discharge" from the position of Bureau Chief, am. compl. ¶ 35,
and the defendant's failure to inform the plaintiff of a salary
enhancement program, id. ¶ 56, are time-barred if brought under
a discrete acts theory of discrimination.
b. The Plaintiff Fails to Establish a Prima Facie Case for Her
Long-Standing Understaffing, Constructive Discharge, and Change in
Job Description Claims
As explained more fully below, three of the plaintiff's alleged
adverse employment actions are not time-barred: (1) long-standing
understaffing of the S.E. Clinic; (2) the plaintiff's
"constructive discharge" from the position of Clinic Chief,
forcing her to "retreat" to the position of Medical Officer; and
(3) the "forced" re-writing of the job description of Medical
Officer. Because the court determines that the first of these
fails to establish an inference of discrimination based on sex,
and that the last two do not amount to adverse employment
actions, the plaintiff fails to establish a prima facie case of
§ 1983 discrimination under a discrete acts theory. 1) Understaffing
The dominant and repeated claim in the plaintiff's amended
complaint is that "disparate and discriminatory treatment"
towards her was the direct cause of "persistent unresolved
under-staffing of the clinic," which allegedly continued up to
her "retreat" to the position of medical officer.*fn4 Am.
Compl. ¶ 71. Specifically, beginning in 1989, the plaintiff
complains of the same chronic understaffing and resulting
additional workloads throughout the remainder of her employment
at the STD Clinic. Id. ¶¶ 126, 140.
The plaintiff's allegations and submissions to this court do
not support a reasonable inference of discrimination based on
sex. An adverse employment action gives rise to an inference of
discrimination if the plaintiff shows that (1) she is a member of
a protected class; (2) she was similarly situated to an employee
who was not a member of the protected class; and (3) she and the
similarly situated employee were treated disparately. Holbrook
v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999). Although the plaintiff and Dr. Sankar
were "similarly situated," the major flaw in the plaintiff's
understaffing claim is her assumption that the understaffing
problems in the District are unique to her as Clinic Chief. In
most employment contexts, understaffing affects many more
employees than just supervisors. Lomboy v. Swedish Covenant
Hosp., 1996 WL 189301, at *4 (N.D. Ill. April 17, 1996) (stating
that "[e]ven assuming that it is true that the plaintiff was
overworked because of a staffing shortage . . . and that [her
department] was `grossly mismanaged,' these reasons do not show
that plaintiff was discriminated against because of her national
origin. In fact these work environment problems would affect
everyone, not just the plaintiff").
The plaintiff acknowledges the ubiquity of understaffing in
government offices in her letter to Richard A. Levinson,
Administrator of the PHSA, on June 15, 1992 regarding problems
and issues at the S.E. Clinic:
[t]he staff, which has witnessed its ranks shrink
while its responsibilities increase, is more and more
difficult to supervise. Their morale is low and there
is a perception on their part that they work harder
and are treated with less consideration than other
district government employees. This is an accurate
assessment. Those who were able to leave have left.
They left as a direct result of neglect on the part
of the administration. Others will leave, when
possible, for the same reason.
Def.'s Original Mot., Ex. A. As alleged by the plaintiff, staff
members of the S.E. Clinic, comprised of both men and women, were
neglected alike by the District as a result of inadequate
staffing. See Am. Compl. ¶¶ 45, 74.
Furthermore, the events surrounding the N.W. Clinic's merger
with the S.E. Clinic further undermine any reasonable inference
that understaffing was a result of discrimination towards the
plaintiff. The district's inability to retain these employees for
even a brief period of time due to disease trends and higher
patient numbers, by the plaintiff's admission suggests against an inference that the district refused to sufficiently
staff the S.E. Clinic in order to discriminate against the
plaintiff because of her gender.*fn5 Accordingly, the
plaintiff has failed to demonstrate disparate treatment based on
understaffing, and her understaffing claim, as a discrete adverse
employment action, is dismissed for failure to establish a prima
facie case of sex discrimination.
2) Constructive Discharge
An actionable constructive discharge claim requires a showing
that (1) intentional discrimination existed, (2) the employer
deliberately made working conditions intolerable, and (3)
aggravating factors justified the plaintiff's conclusion that she
had no option but to end her employment. Carter v. George
Washington Univ., 180 F. Supp. 2d 97, 110 (D.D.C. 2001) (citing
Clark v. Marsh, 665 F.2d 1168, 1173-74 (D.C. Cir. 1981)); See
Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C. Cir.
1997) (holding that a plaintiff alleging constructive discharge
must show that the "employer deliberately made working conditions
intolerable and drove the employee out" of the position). As the
Fourth Circuit has stated,
[e]very job has its frustrations, challenges and
disappointments; these inhere in the nature of work.
An employee is protected from a calculated effort to
pressure him into resignation through the imposition
of unreasonably harsh conditions, in excess of those
faced by his co-workers. He is not, however,
guaranteed a working environment free of stress. The
employment discrimination laws require as an absolute
precondition to suit that some adverse employment
action have occurred. They cannot be transformed into
a palliative for every workplace grievance, real or
imagined, by the simple expedient of quitting.
Bristow v, Daily Press, Inc., 770 F.2d 1251
, 1255 (4th Cir.
1985). The plaintiff has failed to allege or show facts that could
amount to a constructive discharge. The plaintiff alleges that
the intolerable working conditions, which were primarily a result
of the alleged intentional understaffing of the Clinic, were
present at all times during her three-decade-long tenure as an
employee of the Clinic. See, e.g., Am. Compl. ¶¶ 29-32, 34,
37-43, 46-48, 51-55, 57-62, 64, 67, 69-71, 85, 87. The plaintiff
does not allege any aggravating factor close in proximity to her
resignation and justifying her conclusion that she had no option
but to retreat to a lesser position, other than her own
development of illness. Id. ¶ 61. This factor alone, however,
cannot establish a constructive discharge. See, e.g., Spence v.
Maryland Casualty Co., 995 F.2d 1147
, 1156 (2d Cir. 1993)
(holding that "an employer is entitled to insist on as high a
standard of work performance as it deems appropriate, and the
fact that an employee develops stress-related ill health from the
demands of his voluntarily undertaken position or from criticisms
of his performance, and as a result determines that health
considerations mandate his resignation, does not normally amount
to a constructive discharge by the employer"); Murray-Dahnir v.
Loews Corp., 2001 WL 357074, *2 (S.D.N.Y. 2001) (holding that
"Plaintiff provides no allegations that Defendant changed or
increased Plaintiff's work load after finding out Plaintiff had a
medical condition putting his health in jeopardy. Therefore, it
cannot be inferred that Defendant intentionally placed Plaintiff
in a position which would jeopardize his health").
Furthermore, the plaintiff's own allegations point away from
her assertion that she was constructively discharged. After the
plaintiff informed Dr. Calderone of her illnesses, Dr. Calderone
directed the Bureau Chief to "immediately find money to hire at
least one additional physician for the [S.E. Clinic], and
promised to hire a second physician in October 1999." Am. Compl.
¶ 66. The plaintiff alleges that officials and policy makers of
the DOH "intentionally made promises to alleviate the
understaffing at the [S.E. Clinic]," and "failed to act on its promises or deliberately deluded (and lulled) plaintiff into
believing that the workplace understaffing would be addressed[.]"
Pl.'s Opp'n at 15. The court is unable to draw any reasonable
inference that the defendant made these promises in order to
force the plaintiff to quit her position as Clinic Chief; rather,
the opposite seems more likely that the promises of impending
improvements in staffing were made to keep the plaintiff in her
position as Clinic Chief.
Finally, the plaintiff's reliance on understaffing, even
assuming arguendo "intolerable work conditions" at least a
decade before her "retreat," fails to establish a constructive
discharge. To establish a constructive discharge, a plaintiff
must leave her employment within a "reasonable time" after
suffering an act of discrimination. Smith v. Bath Iron Works,
943 F.2d 164, 167 (1st Cir. 1991). A decade is certainly not a
"reasonable time" to leave a job which has become intolerable.
See, e.g., Landrau-Romero v. Banco Popular de Puerto Rico,
212 F.3d 607, 613 (1st Cir. 2000) (holding that a plaintiff who
resigned seven months after alleged discriminatory acts could not
claim constructive discharge). If workplace conditions had become
"intolerable" shortly before the plaintiff's resignation, they
became so because of the plaintiff's illnesses, and not because
of any further actions by the district. Accordingly, the
plaintiff has failed to demonstrate a constructive discharge, and
her constructive discharge claim, as a discrete adverse
employment action, is dismissed for failure to establish a prima
facie case of sex discrimination.
3) Change in Job Description of Medical Officer
The third alleged discrete adverse employment action occurring
after July 31, 1999 is the DOH officials' demand that the job
description of medical officer be rewritten to add duties before
the plaintiff could assume the position. Am. Compl. ¶¶ 89-90. A
male colleague of the plaintiff, Dr. Elliot, had previously held the position of
medical officer under the plaintiff's direction as Clinic Chief,
but had later left the S.E. Clinic, leaving the position vacant.
Id. ¶ 122. Dr. Elliot, employed under the "long-standing and
existing job description for medical officer," was not required
to perform such additional duties.*fn6 These additional
responsibilities were some of those the plaintiff had performed
as Clinic Chief, including a "myriad [of] clinical administrative
and supervisory functions[.]" Id. ¶ 90.
A change in the responsibilities and duties of one's job,
without other aggravating factors, does not constitute an adverse
employment action. See, e.g., Mungin, 116 F.3d at 1556-57
(stating that "[p]erhaps in recognition of the judicial
micromanagement of business practices that would result if we
ruled otherwise . . . changes in assignments or work-related
duties do not ordinarily constitute adverse employment decisions
if unaccompanied by a decrease in salary or work hour change");
Lester v. Natsios, 290 F. Supp. 2d 11, 29 (D.D.C. 2003)
(holding that "`increased workloads' and undesirable work
assignments . . . do not rise to the level of adverse employment
actions"); see also Crady v. Liberty Nat'l Bank & Trust Co.,
993 F.2d 132, 136 (7th Cir. 1993) (holding that such a change
"must be more disruptive than a mere inconvenience or an
alteration of job responsibilities"). Also, the plaintiff
acknowledges that she suffered no reduction in economic benefits
that had been afforded past medical officers as a result of this
change in job description. Am. Compl. ¶ 74.
Moreover, the change in job description was not forced on the
plaintiff as a condition of keeping her job; rather, the change
in job description occurred after the plaintiff's own decision to
leave her position as Clinic Chief to assume the position of
medical officer. The plaintiff acknowledges her awareness of the
changed job description prior to assuming the position. This prior awareness undermines her claims of an adverse employment
action. See Bryant v. Brownlee, 265 F. Supp. 2d 52, 62 (D.D.C.
2003) (holding that a change in work assignments for a plaintiff
who was "warned before she began working . . . that the work
would be `unchallenging and very narrowly focused" did not
constitute an adverse employment action).*fn7
Accordingly, the court concludes that the plaintiff has failed
to establish a prima facie case because her change in job
description is not an actionable adverse employment action, and
her claim of change in job description, as a discrete adverse
employment action, is dismissed.
2. The Plaintiff's Hostile Work Environment Claim
a. Legal Standard
Title VII prohibits an employer from discriminating against any
individual with respect to compensation, terms, conditions, or
privileges of employment because of race, color, religion, sex,
or national origin. Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993). Toward that end, an employer may not create or condone
a hostile or abusive work environment that is discriminatory. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
64 (1986). Such an environment exists "[w]hen the workplace is
permeated with `discriminatory intimidation, ridicule and
insult,' that is `sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment.'" Singletary v. District of Columbia,
351 F.3d 519, 526 (D.C. Cir 2003) (quoting Meritor, 477 U.S. at 65,
67). On the other hand, "[c]onduct 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." Harris,
510 U.S. at 21. Thus, to determine whether a hostile work
environment exists, the court looks to the totality of the
circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it
interferes with an employee's work performance. Id. at 23;
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). In
considering the totality of the circumstances, however, the court
is mindful that
[e]veryone can be characterized by sex, race,
ethnicity or (real or perceived) disability; and many
bosses are harsh, unjust and rude. It is therefore
important in hostile work environment cases to
exclude from consideration personnel decisions that
lack a linkage of correlation to the claimed ground
of discrimination. Otherwise, the federal courts will
become a court of personnel appeals.
Bryant, 265 F. Supp. 2d at 63 (D.D.C. 2003) (quoting Alfano v.
Costello, 294 F.3d 365
, 377 (2d Cir. 2002)).
b. The Plaintiff Fails to Establish a Hostile Work Environment
The plaintiff attempts to avoid the three-year limitation
barring some of her claims by arguing that they are properly
understood as evidence of a hostile work environment. Pl.'s Opp'n
at 11. As opposed to discrete acts of discrimination, a claim for
hostile work environment is timely as long as "any act that is
part of the hostile work environment" is complained of within the
limitations period. Morgan, 536 U.S. at 117-118 (noting that
the "unlawful employment practice" constituting a hostile work environment
"cannot be said to occur on any particular day. It occurs over a
series of days or perhaps years and, in direct contrast to
discrete acts, a single act of harassment may not be actionable
on its own"). The plaintiff argues that her forced resignation as
Clinic Chief was part of a hostile work environment she had been
enduring, and that her claim is therefore timely. Opp'n at 7.
The plaintiff seeks to incorporate more than three decades of
"intolerable working conditions" and scattered instances of
alleged adverse employment actions into a claim of a hostile work
environment. These conditions and incidents, however, do not
involve anything like the pervasive ridicule and insults that
constitute a hostile work environment. See Brody,
199 F.3d at 454 (holding that a hostile work environment is one that is "so
heavily polluted with discrimination as to destroy completely the
emotional and psychological stability of minority group workers")
(internal quotations omitted); see also Trujillo v. Health
Sciences Center, 157 F.3d 1211, 1214 (10th Cir. 1998) (granting
summary judgment against a plaintiff's hostile work environment
claim which did not allege the plaintiff was "subjected to
anything that was physically threatening or humiliating, nor was
he subjected to any offensive utterances," and whose "list of
grievances include[d] none of the racial comments or ridicule
that are hallmarks of hostile work environment claims"). While
the plaintiff repeatedly alleges "intolerable" work conditions,
the plaintiff has not alleged any pervasive harassing,
threatening, or insulting behavior in her work environment, and
while the nature of one's stress level and responsibilities may
be relevant to an action for a discrete act of discrimination,
stress by itself cannot establish a hostile work environment. As
the court in Trujillo commented:
[t]he hostile work environment that Plaintiff
portrays is simply a work environment that exhibits
the monitoring and job stress typical of life in the
real world. Normal job stress does not constitute a
hostile or abusive work environment. As the Seventh
Circuit explained, federal law "does not guarantee a utopian workplace, or even a pleasant one . . .
Personality conflicts between employees are not the
business of the Federal courts." We cannot villify
every supervisor that implements a policy with which
an employee disagrees or that monitors her employees'
Trujillo, 157 F.3d at 1214 (internal citations omitted).
The only arguable instances of ridicule that the plaintiff
complained of are that Dr. Sankar "objected to, and mocked me for
my use of available sick leave time[.]" Turner Aff., ¶ 14-15. On
one occasion, following the plaintiff's request to speak
privately with Dr. Sankar about a shortage of medical gloves, "he
loudly and rudely stated that anyone that has a problem with
seeing patients in the absence of proper gloves and culture media
should go to their office and read the newspaper, or whatever
they want to do." Id. ¶ 17. These additional allegations, while
perhaps offensive or unprofessional, do nothing to cure the
deficiency of the plaintiff's hostile work environment claim.
See Harris, 510 U.S. at 21 (noting that "merely offensive"
conduct does not create a hostile environment); cf. Freedman v.
MCI Telecomm. Corp., 255 F.3d 840, 849 (D.C. Cir. 2001) (stating
that "[a] mere `nasty' attitude exhibited by a supervisor is
insufficient to establish a hostile atmosphere, especially where,
as here, there is no evidence that the `nasty' attitude is
pervasive and constant").
There is also no evidence of a sexist motivation in either
event.*fn8 Indeed, one of the plaintiff's allegations is
that in 1995, a new nursing assistant, Mrs. Britt, was
transferred to the S.E. Clinic from the N.W. Clinic, but was not
directed by supervisors to perform duties at the S.E. Clinic she
had previously performed at the N.W. Clinic. Am. Compl. ¶ 49. For
example, the plaintiff alleges in her affidavit that on one
occasion Mrs. Britt refused to "read slides" the plaintiff had
prepared for a patient. Turner Aff. ¶ 16 (stating that "[a]s Mrs.
Britt refused to read the slide, she informed me that I would
have to read my own slide"). Dr. Sankar allegedly "supported" Mrs. Britt's refusal, and "threatened [the plaintiff]
with insubordination if [the plaintiff] did not read the slide."
Id. The plaintiff alleges that this direction was made "with
the intent to discriminate against Dr. Turner on the basis of her
gender." Am. Compl. ¶ 50. It is nonsensical to draw an inference
of gender discrimination, however, from an action allegedly
directing one female employee to perform certain tasks instead of
another female employee. See Harvath v. Thompson,
329 F. Supp. 2d 1, 5 (D.D.C. 2004) (stating that the burden of demonstrating
discrimination "is even tougher" where the plaintiff's gender is
the same as the alleged source of the discrimination). The
holding in Harvath rings particularly true where, as here, the
plaintiff's and co-worker are allegedly treated differently, yet
have the same gender.
Accordingly, the court grants the defendant's motion for
summary judgment as to the plaintiff's hostile work environment
D. Disability Discrimination
In addition to her allegations of sex discrimination, though
based on virtually identical events and factual allegations as
her § 1983 claims, the plaintiff also alleges she was
discriminated against because of her illnesses (hypertension and
diabetes), and brings claims under the Rehabilitation Act ("RA")
and the Americans with Disabilities Act ("ADA"). These
discriminatory events include her involuntary discharge, Am.
Compl. ¶ 181, and the defendant's failure to adequately staff the
Clinic prior to the plaintiff assuming the position of medical
officer, id. ¶¶ 187-89, 192, 200-01. In addition, the plaintiff
alleges she was retaliated against for "seeking accommodation of
her illness and redress of the violation of her constitutional
rights," id. ¶ 202, through the creation of a hostile work
environment by Dr. Sankar, id., and Dr. Sankar's denial of her
use of sick days, id. ¶ 192. For the reasons set forth below,
the court grants summary judgment as to all of these claims, with the
exception of the plaintiff's retaliation claim involving denial
of sick days.
a. Statute of Limitations
The Rehabilitation Act directs courts to apply the ADA's
standards to RA claims. 42 U.S.C. § 12117(b). The ADA
incorporates the statute of limitations provided for actions
brought under Title VII. 42 U.S.C. § 12117(a) (stating that the
ADA incorporates "the powers, remedies, and procedures set forth
in [Title VII]," including 42 U.S.C. § 2000e-5); Conner v.
Reckitt & Colman, 84 F.3d 1100, 1102 (8th Cir. 1996). Under
Title VII, a complainant who has previously instituted
proceedings with a state or local agency must file an
administrative complaint with the Equal Employment Opportunity
Commission ("EEOC") within 300 days of the alleged adverse
employment action. 42 U.S.C. § 2000e-5(e); Lorance v. AT&T
Technologies, 490 U.S. 900, 904 n. 2 (1989). The plaintiff filed
an administrative complaint with the OHR on August 19, 2000,
Def.'s Mot., Ex. B, which was cross-filed with the EEOC on
December 18, 2000, Def.'s Original Mot., Ex. B ¶ 4 (Stewart
Aff.). All discriminatory events that occurred before February
22, 2000 300 days before the date the charge was cross-filed
with the EEOC*fn9 are therefore barred as untimely.
Accordingly, the defendant's failure to adequately staff the
Clinic while the plaintiff served as Clinic Chief, id. ¶
187-89, and its rewriting of the job description of the position
of medical officer, id. ¶ 201, both allegedly in discrimination
of her illnesses, are time-barred. The plaintiff argues that the court should use equitable
estoppel to preclude the effect of the statute of limitations
because William Byrd, Program Chief of the Department of Human
Services Employee Consultation and Counseling Service, told her
"that she should rethink the decision to file a grievance because
filing the grievance could create a problem, and was not likely
to be well taken by the administration." Pl.'s Opp'n at 18. The
plaintiff does not allege, however, that this event had any
effect on when she filed her OHA complaint, and alleges no
misleading statements by Mr. Byrd or "active steps to prevent the
plaintiff from litigating in time." Currier v. Radio Free
Europe/Radio Liberty Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998).
Accordingly, the court will not apply equitable estoppel to save
the plaintiff's barred claims.
The only timely-filed claims under the ADA and RA are instances
of ridicule and disrespect of the plaintiff by Dr.
Sankar,*fn10 and his denial of leave to take sick days,
actions taken in retaliation for Dr. Turner's administrative
complaint to the OHR. Stewart Aff. ¶¶ 192, 205. The plaintiff
amended her complaint to include this retaliation claim on April
12, 2002. Id. ¶ 5; Pl.'s Opp'n, Ex. B. 1. Legal Standard for Retaliation
To establish a prima facie case of retaliation, a plaintiff
must show that (1) he engaged in a statutorily protected
activity, (2) the employer took an adverse personnel action, and
(3) there existed a causal connection between the two. Brown v.
Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). The plaintiff's
burden is not great: the plaintiff "merely needs to establish
facts adequate to permit an inference of retaliatory motive."
Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).
With regard to the first prong of the plaintiff's prima facie
case of retaliation, statutorily protected activities include the
filing of EEO complaints. Forkkio v. Powell, 306 F.3d 1127,
1131-32 (D.C. Cir. 2002). As for the second prong, "to establish
an adverse personnel action in the absence of diminution of pay
or benefits, plaintiff must show an action with materially
adverse consequences affecting the terms, conditions, or
privileges of employment." Stewart v. Evans, 275 F.3d 1126,
1134 (D.C. Cir. 2002) (quoting Brown, 199 F.3d at 457). Minor
changes in work-related duties or opportunities do not qualify as
actionable injuries unless accompanied by adverse changes in the
terms, conditions, or privileges of employment. Id. at 1135.
Likewise, "[m]ere inconveniences and alteration of job
responsibilities will not rise to the level of adverse action."
Id. (internal citations omitted).
Finally, under the third prong, the plaintiff may establish a
causal connection "by showing that the employer had knowledge of
the employee's protected activity, and that the adverse personnel
action took place shortly after that activity." Cones v.
Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (quoting Mitchell
v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985)). To qualify as a
causal connection, however, the temporal proximity between the
employer's knowledge of the protected activity and the adverse
personnel action must be "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(noting that a three or four-month period between an adverse
action and protected activity is insufficient to show a causal
connection, and that a 20-month period suggests "no causality at
all"). The plaintiff need not exhaust her administrative remedies
to file a claim of retaliation.*fn11 Baker v. Library of
Congress, 260 F. Supp. 2d 59, 66 n. 4 (D.D.C. 2003) (citing
Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1993); Brown v.
Hartshorne Public School District # 1, 864 F.2d 680, 682 (10th
Cir. 1988); and Hayes v. Shalala, 902 F. Supp. 259, 266 (D.D.C.
2. The Court Denies the Defendant's Motion for Summary Judgement
as to Plaintiff's Retaliation Claim
In her amended complaint to the OHR, the plaintiff alleges
that, on March 26, 2002, Dr. Sankar told the plaintiff that "he
had been called and questioned by someone at the Department of
Human Rights about the investigation" and accused the plaintiff
of "trying to take charge and run the clinic [.]" Opp'n Ex. B.
After this date, the plaintiff alleges that her "use of sick
leave [was] criticized as being excessive and consequently, [she
was] pressured to come to work when not feeling well, and coerced
to limit certain medical and dental appointments in order to
avoid the intimidation." Id. In some instances, Dr. Sankar
denied her use of sick days "for which she was qualified[.]" Am.
Compl. ¶ 192. These factual allegations raise a genuine issue of
material fact as to whether the plaintiff suffered an adverse
employment action in retaliation for filing an OHR complaint.
See Washington v. White, 231 F. Supp. 2d 71
, 81 (D.D.C. 2002)
(stating that "[a] leave restriction presumably limits the circumstances under
which an employee may take leave that has been earned, and might
be considered an adverse personnel action insofar as it restricts
plaintiff's ability to take leave to which he would otherwise be
entitled"). Accordingly, the court denies the defendant's motion
for summary judgment as to the plaintiff's retaliation claim.
E. The Court Grants the Defendant's Motion for Summary Judgment
as to Plaintiff's Equal Pay Act Claim
The Equal Pay Act prohibits employers from discriminating
between employees on the basis of sex by paying wages
to employees in such establishment at a rate less
than the rate at which he pays wages to employees of
the opposite sex in such establishment for equal work
on jobs the performance of which requires equal
skill, effort, and responsibility, and which are
performed under similar working conditions except
where such payment is made pursuant to (i) a
seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of
production; or (iv) a differential based on any other
factor than sex [.]
29 U.S.C. § 206(d)(1). To establish a violation of the Equal Pay
Act, a plaintiff must demonstrate that "the employer paid male
and female employees different wage rates for substantially equal
work." E.g., Broadus v. O.K. Industries, Inc., 226 F.3d 937
941 (8th Cir. 2000).
The plaintiff concedes that she and her predecessor, a male,
received the same salary.*fn12 Am. Compl. ¶ 76. The
plaintiff instead brings her claim under the Equal Pay Act on the
grounds that she performed more work for the same pay as her male
predecessor. The mere fact that both Dr. Elliot and the plaintiff
were employed under the job title "medical officer," and had
different duties while receiving equal pay, however, cannot
support a prima facie case under the Equal Pay Act. This is simply not a situation the Equal Pay Act was
designed to address. See Gunther v. County of Wash.,
623 F.2d 1303, 1311 (9th Cir. 1979) (holding that the Equal Pay Act
"applies only to situations where a plaintiff contends there has
been a denial of equal pay for equal work. It does not apply, for
instance, where the plaintiff is performing comparable (but not
substantially equal) work, or where a position held by the
plaintiff is unique"); Orahood v. Bd. of Trs. of the Univ. of
Ark., 645 F.2d 651, 654 n. 3 (8th Cir. 1981) (noting that
"[w]here the claim is one involving inadequate compensation, but
a comparison with equal work is not possible, Title VII may still
provide relief" where the Equal Pay Act cannot). Accordingly, the
court grants the defendant's motion for summary judgment as to
plaintiff's Equal Pay Act claim.
F. The Court Grants the Defendant's Motion for Summary Judgement
as to Plaintiff's Intentional Infliction of Emotional Distress
To establish a prima facie case of intentional infliction of
emotional distress, a plaintiff must show "(1) extreme and
outrageous conduct on the part of the defendants, which (2)
intentionally or recklessly (3) causes the plaintiff severe
emotional distress." Futrell v. Dept. of Labor Fed. Credit
Union, 816 A.2d 793, 808 (D.C. 2003) (quoting Paul v. Howard
Univ., 754 A.2d 297
, 307 (D.C. 2000)). In the employment
context, conduct must be "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency." Id.; Duncan v. Children Nat'l Med. Ctr.,
702 A.2d 207
, 211-12 (D.C. 1997) (noting that "generally,
employer-employee conflicts do not rise to the level of
For many of the same reasons discussed in support of granting
summary judgment as to the plaintiff's hostile work environment
claim, the plaintiff has failed to allege any set of facts from
which a reasonable trier of fact could find in her favor as to
her intentional infliction of emotional distress claim. The
scattered alleged instances of ridicule the plaintiff claims,
while perhaps offensive and unjust, do not rise to the level of
"extreme and outrageous" conduct. See, e.g., Cowley v. North Am. Telecomms. Assn., 691 A.2d 1169, 1172
(D.C. 1997) (holding that "[e]ssentially, [the plaintiff] alleges
only that he was subjected to contempt, scorn and other
indignities in the workplace by his supervisor and an unwarranted
evaluation and discharge. While offensive and unfair, such
conduct is not in itself of the type actionable on this tort
theory"). Accordingly, the court grants the defendant's motion
for summary judgment as to the plaintiff's intentional infliction
of emotional distress claim.
For the foregoing reasons, the court grants the defendant's
motion for summary judgment as to the plaintiff's § 1983, Equal
Pay Act, and Intentional Infliction of Emotional Distress claims,
and denies summary judgment as to the plaintiff's retaliation
claim. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued this 25th day of August,
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