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Tammy Bergbauer v. Ray Mabus

September 14, 2011


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge


Plaintiff Tammy Bergbauer brings this action against defendants Ray Mabus, Secretary of the Navy, in his official capacity ("Secretary") and Rear Admiral Charles H. Goddard ("Admiral Goddard") in his individual capacity. Ms. Bergbauer alleges that defendants sexually harassed her and created a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the D.C. Human Rights Act, D.C. Code § 2-1401.01, et seq. She also brings two common-law claims: a claim for intentional infliction of emotional distress against both defendants and a claim for battery against defendant Goddard. Before the Court are the Secretary's Motion [7] to Dismiss or, in the Alternative, for Summary Judgment and defendant Goddard's Motion [18] to Dismiss. Also before the Court are plaintiff's Motion [23] for Discovery Pursuant to Rule 56(f) and her Motion [34] to Amend the Complaint. Upon consideration of the motions, the oppositions, the replies, the entire record in this case, and the applicable law, the Court will grant in part and deny in part the Secretary's motion to dismiss and grant Admiral Goddard's motion to dismiss. The Court will also deny plaintiff's motion for discovery as moot and grant plaintiff's motion for leave to file an amended complaint.


Plaintiff Tammy Bergbauer was hired by the Navy in July 2007 as Assistant/Co-Director of Corporate Operations, TEAM SHIPS division, and was promoted to Director of Corporate Operations a few months later. Am. Compl. [34-1] ¶¶9, 10. Alan Weyman was her direct supervisor, id. ¶18, but she was also supervised by Rear Admiral Charles Goddard, defendant. Id. ¶11. Admiral Goddard had an executive assistant at the time named Cameron Towner. Id. ¶12.

Ms. Bergbauer claims that she witnessed a pattern of "erratic and abusive" behavior toward women in her department, at the hands of Admiral Goddard and Mr. Towner. Id. ¶14. Toward the end of 2007, Mr. Towner made several sexually explicit comments to Ms. Bergbauer. Id. ¶15. In January 2008, Mr. Towner allegedly made a romantic overture toward her, in the form of a suggestive note, id. ¶16, and periodically made "sexually explicit, unwelcome[,] and lewd comments" about Ms. Bergbauer's looks. Id. ¶17. In February 2008, Mr. Towner apparently confessed to Ms. Bergbauer his longstanding desire to spend some time with her alone in a private office. Id. ¶18. Ms. Bergbauer says that she confronted Mr. Towner about his unwelcome behavior on several occasions. Id. ¶19.

A second round of misconduct occurred on the weekend of February 8, 2008, when Navy personnel (including Ms. Bergbauer) were celebrating the christening of a cargo ship in San Diego. Id. ¶20. A group of Navy employees, including Admiral Goddard, invited Ms. Bergbauer to a bar or restaurant for some evening celebrations. Id. ¶21. At that establishment, plaintiff alleges, Admiral Goddard "repeatedly touched [her] in an inappropriate manner on her back." Id. ¶21. Once the group was seated for dinner, Admiral Goddard upped the ante by removing his shoe and accosting Ms. Bergbauer with his foot under the table. Id. ¶22. The discalced Admiral "used his socked foot to force his way between [Ms. Bergbauer's] legs," so embarrassing her that she excused herself from the table. Id. The misbehavior continued, however, later that evening, with Admiral Goddard groping plaintiff repeatedly. Id. ¶23. She tried to leave the restaurant, but Admiral Goddard and two other Navy employees followed her and prevented her from doing so. Id. Admiral Goddard grabbed hold of Ms. Bergbauer, "kissed [her] on the mouth[,] and forced his tongue into her mouth." Id. ¶24. She managed to break away from him and left the building. Id.

Ms. Bergbauer spoke about these acts to a "mentor and friend" named Sam Samimi, who passed the comments on to Ms. Bergbauer's immediate supervisor (Alan Weyman) around February 18, 2008.

Further misconduct at plaintiff's workplace occurred that spring. On April 22, 2008, Ms. Bergbauer reported to Mr. Weyman the details of an inappropriate comment, sexual in nature, that Cameron Towner had made to her that day. Id. ¶¶27, 28. Since Mr. Weyman, according to plaintiff, took no disciplinary action against Mr. Towner, she decided to report her sexual harassment claim to Admiral Goddard himself, who recommended that she go the Navy's Labor and Employee Relations Board. Id. ¶¶29, 30. Around this same time, Ms. Bergbauer "reported [Admiral Goddard's] outrageous behavior" at the restaurant in February 2008. Id. ¶31.

On July 1, 2008, Rear Admiral McManamon reassigned Ms. Bergbauer. Id. ¶32. Admiral McManamon instructed her to report to William Mark Deskins, while also-plaintiff alleges-threatening her at that time, warning her to "keep him happy after what she did" to Admiral Goddard and that failure to comply with this demand could affect her job performance rating. Id.

Another incident involving Admiral Goddard occurred two days later, on July 3, 2008. With Ms. Bergbauer not present, Admiral Goddard called a meeting with various co-workers of Ms. Bergbauer and other Navy employees and announced that he was being fired because plaintiff had "gone after him." Id. ¶33. At this meeting, Admiral Goddard revealed Ms. Bergbauer's identity to other Navy employees as the sexual harassment complainant, which "further served to embarrass and harass" Ms. Bergbauer. Id. ¶34. While Admiral Goddard was relieved of his post because of the incident, Ms. Bergbauer claims that his removal was excessively delayed, causing her further injury. Id. ¶33.

In the weeks that followed this July 2008 meeting, Ms. Bergbauer claims that her work environment became increasingly hostile. Id. ¶35. Her new supervisor (William Deskins) allegedly excluded her from "critical e-mail conversations and other communications," failed to tell her about new duties he had created, forced her to complete "redundant assignments," and tried to paint her as an incompetent employee. Id. Mr. Deskins also purposefully cancelled her travel arrangements at the last minute "to disrupt [her] work schedule and isolate [her] from her co-workers." Id. 36. At a staff meeting, Mr. Deskins also apparently compared Ms. Bergbauer to a piece of coarse-grit sandpaper. Id. Ms. Bergbauer also alleged that her pay was reduced when Mr. Deskins, as reprisal, created an "unwarranted letter of reprimand" that went in her official file and gave plaintiff a poor performance review. Id. ¶37. Because of these, and other, acts, Ms. Bergbauer claims that she has suffered severe emotional distress, as well as "migraines, insomnia, nightmares, and post[-]traumatic stress disorder." Id. ¶38.

Ms. Bergbauer first contacted her agency's EEO office on July 11, 2008, seeking informal counseling. She filed a formal complaint of discrimination with the EEOC around September 15, 2008, and the EEOC gave her a right to sue letter the next day. Id. ¶44. On June 3, 2009, she filed suit in the U.S. District Court for the District of Columbia, before the Honorable Henry H. Kennedy, Jr. Ms. Bergbauer brought six counts, including two Title VII claims, two D.C. Human Rights Act claims, a claim for battery, and a claim for intentional infliction of emotional distress. The Secretary of the Navy filed a Motion [7] to Dismiss or, in the Alternative, for Summary Judgment in August 2009. Admiral Goddard separately filed his own Motion [18] to Dismiss in October 2009. With these, and other, motions pending and ripe for decision, the case was reassigned to this Court in May 2011.


A.Rule 12(b) Dismissal

The Secretary and Admiral Goddard move for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Rule 12(b)(1) provides that a complaint may be dismissed for lack of subject matter jurisdiction. A court must accept the non-movant's factual allegations as true when reviewing a motion to dismiss under Rule 12(b)(1). Jerome Stevens Pharm. Inc. v. FDA, 402 F.3d 1249, 1253--54 (D.C. Cir. 2005). A court may consider material beyond the allegations in the plaintiff's complaint when determining whether it has subject matter ...

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