The opinion of the court was delivered by: Chief Judge Royce C. Lamberth
Upon consideration of defendants' Renewed Motion for Summary Judgment , plaintiff's Opposition , the applicable law and the record herein, for the reasons set forth below, the Renewed Motion for Summary Judgment will be GRANTED as to Count II of plaintiff's Amended Complaint , and DENIED as to Counts I and III.
This motion arrives before the Court after remand from the D.C. Circuit Court of Appeals. This Court previously dismissed all of plaintiff's claims, including those of Title VII sexual harassment and retaliation, in an Order Granting Defendants' Motion for Summary Judgment on September 30, 2004. The Court of Appeals affirmed the dismissal of the retaliation and other claims, but reversed the dismissal of the sexual harassment claim because this Court had relied on an affirmative defense not found in responsive pleadings. Jones v. D.C. Dep't of Corrs., 429 F.3d 276, 282 (D.C. Cir. 2005). The Appellate Court also reversed this Court's September 30, 2004 Order Denying Plaintiff's Motion to Amend/Correct 2 Complaint. Id.
In plaintiff's Amended Complaint, filed October 1, 2007, she alleges Title VII hostile work environment sexual harassment, Title VII retaliation, and, for the first time, the deprivation of her rights in violation of 42 U.S.C. § 1983. (Am. Compl. ¶ 60-70.) Defendants filed an Answer to Amended Complaint wherein they included the affirmative defense lacking in their previous responsive pleadings. (Am. Answer 8.) They then filed a Renewed Motion for Summary Judgment, urging this Court to again dismiss the sexual harassment claims because of the now properly pleaded affirmative defense, to dismiss the retaliation claims based on the law of the case doctrine, and to dismiss the § 1983 claims because of the absence of a genuine issue of material fact. (Def.'s Mot. for Summ. J. passim.)
Since the legal standard at summary judgment requires the Court to make all reasonable inferences in favor of the non-movant, we relay the facts of the case as presented by plaintiff. Plaintiff Angela Jones worked as a corrections officer for the District of Columbia Department of Corrections ("DCDC") at the Occoquan Facility in Lorton, VA, beginning in September 1997. Soon after plaintiff began to work there, defendant Sergeant Daryl Ellison, plaintiff's supervisor,*fn1 began to harass her in a number of ways. Plaintiff alleges, in addition to a slew of crude sexual remarks, three main incidents of sexual harassment that created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, and that violated her rights under color of state law, actionable under 42 U.S.C. § 1983.
The first incident occurred in December 1997, when defendant Ellison locked plaintiff in a gym with him and tried to kiss her, grabbing her and struggling with her until another employee intervened. (Pl.'s Opp'n 4.) The second incident occurred several weeks later, when Ellison called plaintiff to his office "for an evaluation" and again attempted to kiss her, though no physical contact occurred that time. (Opp'n 5.) The third occurred in the spring of 1998 in the cafeteria, when Ellison commented about plaintiff's breasts and panties and brushed up against her "with his whole body." (Opp'n 6.) Plaintiff reported each of these instances to her supervisors Sergeant Armstrong and/or Sergeant Gladden, who promised to take care of the problem. (Opp'n 7.)
In April 1998, a short time after the third incident, plaintiff filed a formal sexual harassment complaint with the DCDC. The DCDC immediately issued cease and desist orders to defendant Ellison and plaintiff, and the two had no further contact from that point on. She later filed a complaint with the Equal Opportunity Employment Commission, and then this Court. Plaintiff alleges that she was retaliated against for filing the complaints because shortly thereafter her shift began to change frequently and she eventually wound up on Tower duty, a very undesirable position in the prison. (Opp'n 9-11.)
Summary judgment is appropriate upon a showing 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 must point to an absence of material evidence in the record, and then the burden shifts to the non-movant to show the existence of a dispute for trial. Bias v. Advantage Intern, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990). In reviewing disputed facts, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party must, however, provide more than a "scintilla of evidence," and summary judgment is appropriate where the evidence could not persuade a reasonable jury to find for the non-movant. Id. at 252. Conclusory allegations by the non-movant are not enough to survive summary judgment. Exxon Corp. v. F.T.C., 663 F.2d 120, 127 (D.C. Cir. 1980).