United States District Court, D. Columbia
November 9, 2005.
ANDREW H. FOWLER, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
The opinion of the court was delivered by: RICHARD LEON, District Judge
Andrew Fowler, the plaintiff, initiated this proceeding against
Learie Phillip, Principal of Roosevelt Senior High School, and
the District of Columbia, through Arlene Ackerman in her official
capacity as Superintendent of the District of Columbia Public
Schools*fn1 ("DCPS") (collectively "defendants"). Plaintiff
alleges violations of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the
District of Columbia Human Rights Act, D.C. Code § 2-1401 et
seq. ("DCHRA"). The matter comes before the Court on the
parties' "cross motions"*fn2 for summary judgment. Upon due
consideration of the parties' submissions, the relevant law, and
the entire record herein, the Court GRANTS defendants' motion, DENIES plaintiff's motion, and
dismisses the action in its entirety.
The relevant facts and circumstances surrounding this case are
well documented.*fn3 To summarize, Andrew Fowler ("Fowler")
began teaching at Theodore Roosevelt Senior High School
("Roosevelt High") in 1982. Amended Complaint ("Am. Compl.") ¶ 7.
Approximately thirteen years later, in September 1995, defendant
Learie Phillip ("Phillip") became principal of Roosevelt High.
Id. ¶ 9. Shortly after assuming the post as principal, Phillip
issued a written reprimand to Fowler. Defs.' Mot. For Summ. Judg.
(filed on 11/7/02), Exh. 3 at 1.*fn4 The reprimand charged
Fowler with "unprofessional conduct" for alleged "sexual
innuendos" that Fowler made to a female student in his classroom
on September 14, 1995. Id.
Fowler responded to the reprimand with a six page written
memorandum to Phillip. Id., Ex. 4 (Memorandum from Fowler to
Phillip). While the memorandum primarily explains and defends
Fowler's own conduct vis a vis the female student, in the last
paragraph Fowler accuses Phillip of sexually harassing a female faculty member
during a faculty meeting.*fn5 Id., Ex. 4 at 6. Fowler
copied several other school and administration officials on this
letter, including the former superintendent of schools and chief
of labor relations. Id.
In June 1996, several months after the official reprimand and
Fowler's response, Fowler's teaching position was among those
positions terminated pursuant to a DCPS system-wide
reduction-in-force ("RIF").*fn6 Am. Compl. ¶ 13; Pl.'s Mot.
For Summ. Judg., Exh. 3 (Letter from the Director of the DCPS
Office of Fiscal and Personnel Service to Fowler notifying him of
the RIF). In March 1997, Fowler filed a charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC" or
"Commission"), in which he argued that he was terminated in
retaliation for opposing Phillip's sexual harassment of a female
faculty member in the response to the official reprimand. Pls.'s
Statement of Material Facts To Which There is No Genuine Dispute
("SMF") ¶ 10.*fn7 According to Fowler, Phillip "began a practice of sexually
harassing female faculty members" almost "immediately" after
starting as principal of Roosevelt High. Am. Compl. ¶ 9. Fowler
further contended that Phillip "embarked on a campaign of
retaliation" once Fowler began opposing Phillip's sexual
harassment of others. Id. ¶ 11. Although this retaliation
culminated in his termination, Fowler also alleged that it
included "poor performance evaluations" and "denial of his
applications to coach interscholastic sports." Id. ¶ 12.
On February 11, 1999, the EEOC issued a Determination, finding
that Fowler was in fact terminated in violation of Title VII.
Pl.'s Mot. For Summ. Judg., Ex. 1 at 2. Notwithstanding the
EEOC's determination, the Commission was unable to "conciliate"
the case and Fowler received a Right to Sue letter from the
Department of Justice.*fn8 Id., Ex. 2 (Right to Sue
Letter). This action followed.
I. Standard of Review
Summary judgment is appropriate when the pleadings and the
record demonstrate that "there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(C). The moving
party bears the initial burden of demonstrating the absence of a
genuine dispute of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). In this case, where cross motions for
summary judgment are at issue, the Court draws all reasonable
inferences regarding the assertions made in a light favorable to
the non-moving party. Flynn v. Dick Corp., 2005 WL 1904018, *2
(July 29, 2005 D.D.C.). The Court will "grant summary judgment
only if one of the moving parties is entitled to judgment as a
matter of law upon material facts that are not genuinely
disputed." Consumer Fed'n of Am. v. U.S. Dep't of Agric., 2005
WL 1773851, *2 (July 28, 2005 D.D.C.).
II. Fowler has Failed to Demonstrate a Prima Facie Case of
Fowler contends that he was terminated from teaching at
Roosevelt High in violation of Title VII and the DCHRA. Am.
Compl. ¶¶ 14-29. More precisely, he argues that defendants
retaliated against him for opposing Phillip's sexual harassment
of a female faculty member. Pl.'s Mot. For Summ. Judg. at 2.
Courts look to Title VII jurisprudence when analyzing
employment discrimination claims under the DCHRA. E.g., Goos v.
Nat'l Ass'n of Realtors, 715 F. Supp. 2, 3 (D.D.C. 1989). To
establish a prima facie case for retaliation under Title VII, the
plaintiff must demonstrate: "1) that [he] engaged in a
statutorily protected activity; 2) that the employer took an
adverse personnel action; and 3) that a causal connection existed
between the two." McKenna v. Weinberger, 79 F.2d 783, 790 (D.C.
Cir. 1984). The plaintiff bears the initial burden of proving each element of the prima facie case. See
McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) (concluding
that the complainant carries the burden of demonstrating a prima
facie case of racial discrimination).
The central issue before the Court is whether Fowler has
demonstrated that he engaged in "statutorily protected activity"
under the first prong of the prima facie case of retaliation.
Fowler argues that his response to the official reprimand is a
"protected activity" under § 704(a) of Title VII because the
response contains a paragraph in which he protests Phillip's
alleged sexual harassment of a female faculty member. Pl.'s Mot.
For Summ. Judg. at 9. The Court disagrees.
Section 704(a), the "opposition clause," makes it unlawful for
an employer to discriminate against an employee for opposing "any
practice made an unlawful employment practice" under Title
VII.*fn9 42 U.S.C. § 2000e-3(a). Our Circuit Court requires
employees seeking the protection of this clause to "demonstrate a
good faith, reasonable belief that the challenged practice
violates Title VII." George v. Levitt, 407 F.3d 405, 417 (D.C.
Cir. 2005) (emphasis added); Parker v. Baltimore and Ohio R.R.
Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981) (holding that an
employee may state a claim under § 704(a) even if the employer's
conduct ultimately proves to be lawful, so long as the employee's
opposition is based on a good faith belief that Title VII has
been violated). For the following reasons, Fowler has not done so
here. First, under the facts of this case, Fowler could not have
reasonably believed that Phillip's conduct constitutes "sexual
harassment" under Title VII. Not all sexual advances are
actionable under Title VII. The Code of Federal Regulations
("Code") defines those unsolicited sexual advances that
constitute "sexual harassment." In this regard, the Code states:
Unwelcomed sexual advances, requests for sexual
favors, and other verbal or physical conduct of a
sexual nature constitute sexual harassment when (1)
submission to such conduct is made either explicitly
or implicitly a term or condition of an individual's
employment, (2) submission to or rejection of such
conduct by an individual is used as the basis for
employment decisions affecting such individual, or
(3) such conduct has the purpose or effect of
unreasonably interfering with an individual's work
performance or creating an intimidating, hostile, or
offensive working environment.
29 C.F.R. § 1604.11(a) (emphasis added).
The Supreme Court has held that sexual harassment in the
workplace only violates Title VII "if it is so severe or
pervasive as to alter the conditions of [the victim's] employment
and create an abusive working environment." Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 270 (2001) (emphasis added)
(alterations in original) (internal quotations omitted). Thus, to
be actionable, the sexual harassment must create an abusive work
environment. See id. In determining whether harassment rises to
this level, courts consider 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."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Applying these principle's to the instant case, it is apparent
that Phillip's conduct, if true, is not sufficiently "severe" or
"pervasive" to unreasonably interfere with either the alleged
victim's or plaintiff's work performance. Fowler alleges that
Phillip "announced" during a faculty meeting that he was "turned
on by the dress that a teacher was wearing" and then "squeezed
the teacher's thigh." Defs.' Mot. For Summ. Judg., Exh. 4 at 6.
While a single, unsolicited physical advance or comment may be
inappropriate, such conduct does not automatically amount to a
Title VII violation. E.g., Tatum v. Hyatt Corp.,
918 F. Supp. 5, 6-7 (D.D.C. 1994) (holding no hostile work environment where
plaintiff's co-worker wrapped his arms around plaintiff's neck
and body, rubbed against plaintiff as if to simulate sexual
intercourse, made comments about her physical attractiveness, and
placed a piece of ice in her skirt pocket); see also Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998) (noting
that Title VII is not a "general civility code for the
workplace"). Indeed, courts generally require more than one
incident of inappropriate conduct to create an abusive work
environment. E.g., King v. Hillen, 21 F.3d 1572, 1581 (Fed.
Cir. 1994) ("[I]n the usual case an isolated offensive incident
does not create an abusive or intimidating environment."). Thus,
the Court concludes that Fowler could not have reasonably
concluded that Phillip's alleged behavior constitutes sexual
harassment under Title VII, given the nature of Fowler's
allegation and the attendant circumstances.
Second, even if Fowler did in fact harbor a reasonable belief
that Title VII was violated, the record does not establish that
Fowler protested Phillip's perceived misconduct in "good faith." To the contrary, Fowler challenged Phillip's
behavior only after being reprimanded for misconduct of his own.
Defs.' Mot. For Summ. Judg., Exh. 4. Moreover, there is nothing
in the record to indicate that Fowler was experiencing outrage on
behalf of the female faculty member who was the recipient of Mr.
Phillip's allegedly harassing conduct. Congress did not enact the
opposition clause for employees to use as retaliation against
their employer when accused of misconduct. See Monteiro v. Poole
Silver Co., 615 F.2d 4, 8 (1st Cir. 1980) (noting that the
opposition clause was not intended to be a "smoke screen" to
challenge an employer's legitimate criticisms).*fn10 Indeed,
the "good faith" requirement itself is meant to protect employers
from such a misapplication of the opposition clause by immunizing
employers from such "malicious accusations and frivolous claims."
Parker, 652 F.2d at 1020. Thus, based on the record, the Court
concludes Fowler did not protest Phillip's alleged misconduct in
good faith. Accordingly, for this reason, and those previously
stated, Fowler has failed to prove a prima facie case of
For the foregoing reasons, the Court GRANTS defendants' motion
for summary judgment and DENIES plaintiff's motion for summary
judgment. An appropriate order will issue simultaneously
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