The opinion of the court was delivered by: Signed by Royce C. Lamberth, Chief Judge,
Dr. LaVerna Simms, an African American woman, is suing her employer, the Center for Correctional Health and Policy Studies ("CCHPS"), under Title VII of the Civil Rights Act of 1964 for creating a hostile and severe work environment by allowing a non-CCHPS employee to sexually harass her. Following an internal investigation into Simms' allegations, the Office of the Special Inspector found probable cause for sexual harassment and recommended the termination of the non-employee who had allegedly caused the issues. CCHPS argues that the fact that Simms allowed more than five years to pass before filing her charge proves that her work environment wasn't hostile and severe for Title VII purposes. The case now comes before the Court on CCHPS's Motion for Summary Judgment. Having reviewed the motion, the opposition, the reply, and the applicable law at length, the Court denies the motion for the reasons that follow.
A court-ordered receiver was tasked to provide mental health services for the District of Columbia Department of Corrections ("DOC"). Def.'s Mot. Summ. J. 1, Mar. 3, 2011, ECF NO. 101 ("Def.'s Mot."). When the court-ordered receivership ended in 1999, two separate groups of employees began the process of bidding to win the contract to continue to provide such services at the DOC. Def.'s Reply Mem. Summ. J. 2, Apr. 19, 2011, ECF No. 108 ("Def.'s Reply"). The two groups eventually merged to improve their chances of winning. Def.'s Reply 3; Simms Dep. 23:9--29:2, Apr. 19, 2011, ECF No. 108-1. On July 29, 1999, three incorporators signed the Articles of Incorporation in the presence of a District of Columbia Notary Public, thus establishing CCHPS as a non-profit corporation. Simms Dep. 25:18--20. When CCHPS was established, members of the two merged groups were considered board members, incorporators, or alternatively, owner/operators of the organization. Id. at 23:9--29:2.
2. Simms' Employment History
In 1997, the DOC receiver hired Simms as an intake coordinator to provide medical services to DOC inmates. Def.'s Mot. 1. Throughout Simms' DOC employment, she worked on the third floor of the medical unit, conducting inmate evaluations either in her office or in the infirmary. Simms Dep. 80:1--20, 21:5--22:11. In 2001, the Health Administrator appointed her as acting Mental Health Director of CCHPS, a position she retained until she left CCHPS in 2006. Id. at 37:7--38:6. As Mental Health Director, Simms' duties included, among other things, directly supervising six employees and ensuring that the DOC's services were completed in a timely fashion. Id. at 37:7--38:6. In 2003, Simms became executive secretary of the CCHPS board, holding either that position or that of treasurer until 2006, when other board members asked her to resign. Id. at 30:1--19, 128:2--11. As treasurer, Simms recorded which individuals received raises and thus knew that others received raises or bonuses at the same time that her request for a raise was denied. Id. at 129:14--130:9.
Shortly after Simms started work at the DOC in 1997, a DOC correctional officer named Harcourt Masi-who didn't work on the third floor-went out of his way to introduce himself to her and ask her out on a date. Id. at 38:14--39:7. When Simms refused his offer, Masi lingered outside of her office door, stared at her while she worked, and commented on her appearance- telling her that she "looked good." Def.'s Mot. 2--3. CCHPS admits that Masi repeatedly asked Simms out on dates and commented about her body and "shape" on a daily basis from 1998 to April 2000. Def.'s Reply 2. Although Simms flatly refused Masi's requests, he persisted in asking her out, causing her to become quite short in her responses to him. Tr. of Simms Interview, Ex. B to Reply Opp'n Mot. re Mot Summ. J. 6:8--14, Apr. 19, 2011, ECF No. 108-2 ("Simms Interview").
In April 1999, Masi was reassigned to work in "the Bubble," a glass enclosure linking the elevator to the entrance and exit on the third floor. Tr. of Hunter Interview 4:41--5:3, Ex. 6 to Mem. Opp'n re 101 Mot. Summ. J., Apr. 5, 2011, ECF No. 105-6 ("Hunter Tr."); Lerner Letter, Ex. E to Reply Opp'n Mot. re Mot. Summ. J., Apr. 19, 2011, ECF No. 108-2 ("Lerner Letter"). As operator of the Bubble, Masi completely controlled who entered and exited the third floor and the housing units. Simms Dep. 121:10--15. Masi developed a routine for harassing the women on the third floor: he commented on their appearance, told them he "liked their style," and asked whether they worked out. Def.'s Mot. 2--3. Masi also specifically asked Simms to "open your lab coat, [to] let me see your body," whenever she tried to pass through the Bubble. Simms Tr. 44:8--15. When Simms refused to take Masi's bait and ignored him, he delayed her entrance to and exit from the third floor, while leaning back and staring at her until she acknowledged his presence. Tr. of Proceedings by Office of Employee Appeals 44:8--17, Ex. 1 to Mem. Opp'n re 101 Mot. Summ. J., Apr. 5, 2011, ECF No. 105-1 ("Simms Tr."). Coryne Farmer, a CCHPS employee, described Masi's behavior, painting a picture of a man who, for appearances' sake, adopted a nonchalant pose, "lean[ing] back in his chair with his hands folded behind his head . . . appear[ing] to look off into space," when in reality his attention centered on the female in front of him. Tr. of Farmer Interview 6:12--7:8, Ex. 7 Mem. Opp'n re 101 Mot. Summ. J., Apr. 5, 2011, ECF No. 105-7 ("Farmer Tr.").
CCHPS maintains that much of Masi's misconduct occurred at social events outside of the office. Def.'s Mot. 7--8. Simms, however, strenuously denies this and asserts that she generally only saw Masi at social events sponsored by CCHPS, such as going-away parties. Pl.'s Simms Opp'n Def.'s CCHPS Mot. Summ. J. 15, Apr. 5, 2011, ECF No. 105 ("Pl.'s Opp'n"); Simms Interview 8. At the 2002 Christmas party, for example, Masi stared at Simms while she worked at the ticket table even though she asked him to leave her alone. Simms Tr. 5--22. And while at work, Masi's behavior only escalated: he continually made inappropriate comments to Simms about her appearance, laughing off any warning that Simms would report his harassment. Simms Interview 8:29--37, 9:6--39.
Eventually, Masi's conduct turned physical. In December 2003, apparently frustrated that Simms had continually thwarted his attempts to get her attention, Masi confronted Simms in the narrow hallway. Id. at 12:19--27. As Simms walked toward the bathroom, Masi stood up from his chair and blocked her passageway, grabbed her arm, and according to Simms, "sexually fondled her".*fn1 Id.; Simms Tr. 117:7--11, 125:15--22. Shortly after this incident, Masi again accosted Simms in the hallway-this time telling her to "come here" as he pulled her towards him, invading her "personal space." Simms Tr. 123:20--124:9.
Simms states that she felt "emotionally drained" by Masi's conduct and feared going into the housing units because she relied on Masi for her safety. Simms Dep. 121:4--15. She explains that she felt "powerless," and victimized, and "stalked" by Masi. Simms Tr. 56:15--21; Simms Dep. 121:4--14. Dr. Andrew Gordon, Simms' family physician, listened to her complaints numerous times over the course of four years and prescribed medication to quell the anxiety that stemmed from her work environment. Id. at 124:16--126:17. Simms discussed her situation not only with Dr. Gordon, but also with her psychiatrist and peers. Id. at 122:2--126:18.
4. The Bessye Neal Litigation
Masi's harassment of Simms was not the first incident of inappropriate workplace conduct at the DOC. When Simms joined the DOC, she was unaware of the 1995 Bessye Neal litigation, in which a group of female DOC officers filed a class action suit against the DOC. Neal v. D.C. Dep't of Corrs., 1995 U.S. Dist. LEXIS 11515, at *2 (D.D.C. Aug. 9, 1995); Simms Dep. 42:9--16. The Bessye Neal jury found that the class members had unduly suffered from quid pro quo sexual harassment, a hostile work environment, and retaliation in the workplace. Neal, 1995 U.S. Dist. LEXIS 11515, at *2. As a result of this litigation, the plaintiffs were promoted and received backpay awards, and the court required the DOC to establish a formal structure for filing reports of sexual harassment at the jail. Id. at *86--88; Simms Dep. 55:13--21, 68:10--17.
In response to the Bessye Neal litigation, the DOC developed a fifteen-page Program Statement that detailed, among other things, a description of sexual harassment that applied to "employees, contract employees and volunteers under the direction or control of the DC DOC." Program Statement 140, Ex. C to Reply Opp'n Mot. re. Mot. Summ. J., Apr. 19, 2011, ECF No. 108-2 ("Program Statement"). The Bessye Neal Consent Decree also created the Office of the Special Inspector ("OSI"), tasked it with investigating harassment claims, and established a specific reporting and investigative structure for filing sexual harassment claims. Def.'s Mot. 2. In addition to creating the OSI, the Consent Decree designated a female employee as the "ombudsperson" to act as a liaison between female employees and the special inspector. See Neal, 1995 U.S. Dist. LEXIS 11515, at *59--65. The Consent Decree also mandated the distribution of fliers with contact information and descriptions of sexual harassment throughout the jail. Simms Dep. 81:14--19. Here, however, CCHPS admits that DOC failed to effectively implement Bessye Neal's training procedures, including the complaint procedure. CCHPS Reply Mem. Mot. Summ. J. 4, Apr. 19, 2011, ECF No. 108 ("Def.'s Reply Mot.").
5. CCHPS's Response to the Harassment
CCHPS, lacking its own sexual harassment policy, chose to follow DOC
sexual harassment reporting procedures. Def.'s Reply 2. Just as the
District of Columbia apparently failed to implement policies
consistent with Bessye Neal, CCHPS also never educated its employees
about a formal complaint procedure. Id. at 4. For example, fliers with
contact information and descriptions of sexual harassment never
appeared during the period relevant to this case. Simms Dep.
81:14--19. As a result of these failings, Simms only knew that CCHPS
employees were expected to direct complaints of sexual harassment to
the Health Administrator.*fn2 Sinclair Dep. 45:2--21, Apr. 5,
2011, ECF No. 105-5. Indeed, Simms learned of the Bessye Neal
litigation "well after" CCHPS received the DOC contract in 2000. Simms
Dep. 42:17--19. In addition, Simms was unaware of any formalized
sexual harassment reporting structure during her tenure as the
executive secretary or treasurer of the board. Id. at 68:19-- 69:16.
Simms, who had previously complained to a non-supervisory co-worker,
first told the Health Administrator, Estelle Hunter, about Masi's
conduct in 1999.*fn3 Def.'s Reply 3. Although Hunter
assured Simms that she would "take care of" Simms' issue with Masi,
Hunter's remonstration wasn't much help-Masi's behavior began anew
shortly after Simms turned to Hunter. Id. This is unsurprising: Hunter
admitted that most men had "joke[d]" about Simms because Simms was
"attractive," and she therefore refused to give much credence to
Simms' complaints. Hunter Tr. 7:7--13. Instead, Hunter made excuses
for Masi and insinuated that there was nothing she could do because
Masi was romantically involved with the DOC warden.*fn4
Simms Dep. 57:8--11. Unfortunately for Simms, Masi
continually dated women who held positions of power-including DOC
warden Patricia Britton and CCHPS office manager Sharon
Dorsey-throughout the period during which he harassed Simms. Id. at
56:5; Simms Interview 8:29--37. Simms turned again to Hunter at
CCHPS's 2002 Christmas party, complaining about Masi's behavior; once
again, however, Hunter's remonstration was entirely ineffective.
Def.'s Reply 4--5. Although Hunter assured Simms that she would not
experience "more problems" with Masi, Hunter had to speak to Masi on at least one other occasion
following the Christmas party because he would not stop harassing
Simms. Simms Dep. 64:14--21. In short, Hunter did not follow
CCHPS'scomplaint procedure, and the record is silent as to any formal
attempt to investigate Simms' allegations. Def.'s Reply 4.
Failing to receive an effective response from Hunter, Simms turned to another supervisor, Gwendolyn Sinclair, for aid. Simms Dep. 54:11--20. Teresa Nwankwo, a pharmacist at CCHPS, also complained to Sinclair about Masi's conduct, as operator of the Bubble. Sinclair Dep. 54:1-- 13. Sinclair spoke to Masi and told Hunter that she had done so. Id. Sinclair does not know whether Hunter pursued the matter further because Masi stopped harassing Nwanko immediately after Sinclair reprimanded him. Id. at 58:15--59:1. Although Sinclair's reprimand stopped Masi's harassment of Nwankwo, Masi's harassment of Simms continued unabated. Simms Dep. 54:18--21.
Eventually, Simms turned to deputy warden Dennis Harrison for help. Simms Interview 14. After the first arm-grab incident, Simms went to Harrison's office to file a formal complaint against Masi. Simms Dep. 66:1--9. Harrison, however, asked for time to speak with Masi before Simms filed a complaint. Id. at 65:1--14. But little appears to have been accomplished by this decision. Although Harrison spoke to Masi, Masi accosted Simms in the hallway again not long after the first incident. Id. at 66:17--19. Simms immediately complained to Harrison after the second physical incident with Masi, and Harrison reassured her via voicemail that he had taken ...