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Bernadine Johnson v. Erik K. Shinseki*Fn1 Secretary

September 19, 2011


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Bernadine Johnson ("Johnson" or "plaintiff") brings this action against the Secretary of the Department of Veterans Affairs ("Secretary" or "Department") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5(f)(3), based on alleged sexual harassment by a fellow employee at the Department. Currently before the Court is the Secretary's motion for summary judgment. For the reasons discussed below, the motion will be denied.


Johnson began work at the Washington, D.C. Veterans Affairs Medical Center in the Mental Health Service, Substance Abuse Rehabilitation Program ("SARP"), in 1987 as a unit clerk and, in 1996 or 1997, became a resource manager at SARP. Pl.'s Dep. 6:20-21, 8:13- 10:12. As a resource manager, Johnson's duties included keeping the office supplies well stocked and interacting with patients, which involved tasks such as setting appointments and obtaining information related to visits. See Pl.'s Dep. 12:23-13:24, 16:4-16; Clarke-Stone Dep. 196:16-197:9. As required by the sexual harassment policy in place at the Department, Johnson was required to attend -- and did attend, by watching video tapes -- prevention of sexual harassment training every two years. See Pl.'s Resp. to Def.'s Statement of Mat. Facts ("Pl.'s Stmt.") at 17-21. At all times relevant to this action, Johnson's first-line supervisor Karen Clark-Stone was the program coordinator for SARP and her second-line supervisor Linda Jordan was the chief nurse at SARP. Pl.'s Stmt. at 2. As an employee within SARP, Johnson had regular contact with Isaiah Pearson, a SARP counselor and supervisor for other counselors. See Pearson Dep. 127:18-128:7. While Pearson did occasionally complain about Johnson's work and Johnson told her managers that Pearson was "bossy," it is undisputed that Pearson was not a supervisor in Johnson's chain of command. See Clark-Stone Dep. 102:14-16, 110:11-17 & 152:18-21; Pl.'s Stmt. at 3.

The exact nature of Johnson's relationship with Pearson is unclear, as several of Johnson's co-workers claim that they were part of a clique of friends that had a family-style relationship. See Givens Dep. at 201:20 ("We were a family"); McCray Dep. at 81:8-13 ("We was all like a family. We did everything, we talked about everything . . . . If one was in trouble, we all helped out."); Pearson Dep. at 148:16-22 ("The work culture was that we had a family, close relationship. We were very casual. We were about our business of doing the work we was getting paid to do, but during free time or time that we, you know, it was very casual, informal."). Johnson disputes this "family" description. See Pl.'s Dep. 80:13-14. Regardless of the exact nature of the relationship between Johnson, Pearson, and other co-workers, it is undisputed that the SARP "office culture" included banter, both of a sexual and non-sexual nature, see, e.g., McCray Dep. 226:17-19 ("There is always something said with SARP. Someone always said something sexual, I don't care what the matter was."), sexual jokes, see, e.g., McCray Dep. 92:17-93:3 ("[W]e would joke in that manner about how the [diabetes] medication, how it affect men [sexually]."), conversations about sexual relationships, see, e.g., Taylor Dep. at 92:10-18 (The group would make jokes like, "'Well, look at your butt. Look at your behind. I can ride that.'"), sexual gestures, see, e.g., Givens Dep. 121:16-122:2 (answering affirmatively that Johnson "would lift up her skirt kind of flirty or humorously"), and physical contact among group members, see, e.g., Taylor Dep. 93:17-21 (explaining that as part of the joking they would "grab each other, hug them, kiss them"). Johnson does not dispute this co-worker testimony, though she does argue that "there is no suggestion that [she] engaged in sex-based conduct that was unwelcome to others or that interfered in any way with any employee's employment." See Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 4. The SARP employees refrained from engaging in sexual banter if a supervisor was present. See McCray Dep. at 97:11-14 ("[I]f Ms. Clark-Stone would come in the room, they would say, 'phone off the hook,' and that's somebody who wasn't in our circle that we wouldn't talk around . . . . We wouldn't talk that way if they would come in."); Taylor Dep. 92:5-6 ("[We would] kind of curb the words that we are saying a little bit" in front of Clark-Stone.).

The timing of this office banter is not entirely clear, though Johnson claims with respect to Pearson that he has engaged in sexually-charged behavior since the 1990s, and that such behavior changed over time from verbal comments to physical harassment, with Pearson most recently harassing her by touching her inappropriately on July 18, 2005. Report of Investigation ("ROI") Tab B-1, Johnson Decl. ¶¶ 8, 26 (May 22, 2006) ("ROI Tab B-1"). Johnson claims that Pearson made inappropriate comments to her beginning in the 1990s, Pl.'s Dep. 108:19-2, but that "[she] thought [she] could handle the talking," so she did not tell her supervisors about it. See Pl.'s Dep 109:11. The Secretary claims that the first alleged physical contact between Johnson and Pearson could not have been any earlier than June 2005 and consisted of a slap on the behind. See Reply in Supp. of Def.'s Mot. for Summ. J. at 6. Johnson disagrees with this time estimate, instead placing the complained-of touching in or around January 2005, and claiming that she told her first line supervisor, Clark-Stone, about Pearson's conduct several times prior to August 2005. See ROI B-1 ¶ 8, 14; Pl.'s Decl. ¶ 3 ("When he first touched me in 2005 I reported him to my supervisor, Karen Clark-Stone. I believe I talked with Karen Clark-Stone in January/February 2005."). According to Johnson, Pearson's behavior became more aggressive in the 2000s, and became worse in early 2005, when John Uqdah -- her workplace friend and co-worker -- retired, as Pearson accused Johnson of having a sexual relationship with Uqdah, sexually propositioned her, and "tried to kiss her, grabbed and pinched her breast, and grabbed and spanked her buttocks." Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 1-2. Johnson also claims that Pearson came into her office uninvited, "walked around [Johnson's] desk, towered over [Johnson], [and] tried to kiss [Johnson], and then ridiculed her when [she] refused to participate." Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 2, n. 1 (citing Guinta Dep. 57:4-58:15). Moreover, following Uqdah's departure, Johnson claims that Pearson told her that with Uqdah's retirement, she would "have no one in the workforce to protect her," Pl.'s Stmt. at 10.

Clark-Stone denies that Johnson ever informed her of any sexual misconduct by Pearson, see Clark-Stone Dep. 152:2-9, although Johnson claims that she informed Clark-Stone a number of times about Pearson's misconduct in 2005. It is undisputed that Johnson did meet with her second-line supervisor, Linda Jordan, in July or August 2005 to complain of Pearson's alleged touching of her backside. See Jordan Dep. 27:1-3 ("It was summer, July, August."). At this meeting, Jordan claims that she immediately offered to "move [Johnson] off the unit," Jordan Dep. 29:1-4, but Johnson denies that any such offer was made, ROI Tab B-1 ¶ 4, and claims that -- despite repeated meetings with her supervisors concerning Pearson's behavior before August 2005 -- they "did nothing," Pl.'s Opp.'n to Def.'s Mot. for Summ. J. at 2.

Johnson visited the Department of Veterans Affairs Equal Employment Opportunity ("EEO") office on August 9 and 10, 2005 to formally pursue her complaints about Pearson's alleged misconduct. Pl.'s Opp.'n to Def.'s Mot. for Summ. J. at 2. During these meetings, Johnson reported to the EEO staff that Pearson made inappropriate sexual comments and had inappropriately "tapped her on the butt", which took place "months ago." See Def.'s Mot. for Summ. J. at 3; George Dep. 110:6-12, 155:3-6. On August 11, 2005, managers at the Department of Veterans Affairs met with Pearson and escorted him to the EEO office, where he was questioned and informed that these sexual harassment allegations were serious and that such behavior would be punished. See ROI Tab B-4 at 11. Pearson was placed on two days of paid administrative leave "[t]o ensure that no other incident occurred in the immediate aftermath of the allegation." ROI Tab B-5 ¶ 16; Pearson Dep. 210:7-11. The Department commenced a formal investigation into Johnson's allegations on or shortly after Johnson's meetings with the EEO office, Pl.'s Stmt. at 17, although this investigation "did not lead to a reprimand for Pearson." Def.'s Mot. for Summ. J. at 26. The Department also conducted additional sexual harassment training for Pearson, Johnson's supervisors, and Johnson's co-workers. Pl.'s Stmt. at 17 ("Plaintiff does not dispute Defendant's assertion that it provided sexual harassment training to its employees in the SARP unit after Plaintiff complained of Mr. Person's [sic] sexual harassment.").

Following her formal complaint to the EEO office, the Department also arranged for Johnson to be given paid administrative leave and, it contends, offered to give Johnson a new position in an area of the Department separated from Pearson. See Pl.'s Stmt. at 15-16. However, Johnson disputes whether any alternative positions were actually offered, claiming that such positions were merely "discussed." Id. at 16. Regardless, Johnson left her position in the Mental Health Service SARP after August 10, 2005 and did not return to work at the Department until 2008, when "[she] was released by her doctor to return to work at a location other than the Mental Health Service . . . on a part-time basis." Id. Johnson states that, in making the determination to come back to work at the Department, her doctor asked her how she felt, and she "told him [she] was fearful," that she "didn't know what reaction [she] was going to have," and that "if [she] ran into Mr. Pearson or if he ran into me, I didn't know, I didn't know what to expect, I didn't know." Pl.'s Dep 165:13-17. Johnson's doctor responded by mandating that Johnson could only return to work part-time and that "[s]he is not able to work at Mental Health at the VA in Washington, DC. She needs to work in a different area at the VA." Pl.'s Exh. 2.

On June 25, 2008, Johnson filed a complaint in this Court, alleging that Pearson "subjected Plaintiff to a course of sex-based misconduct that included sexual banter, solicitations for sexual activities, inquiries regarding Plaintiff's private sexual activities, physical contacts with private parts of Plaintiff's body, and . . . accusations that Plaintiff was having sex with a former co-worker." Compl. ¶ 7. Johnson claims that this misconduct created a hostile work environment that "constitutes unlawful sex discrimination and harassment within the meaning of Title VII." Id. ¶¶ 8, 13. On October 15, 2008, the Secretary filed a motion to dismiss or, in the alternative, for summary judgment, on the ground that Johnson failed to exhaust her administrative remedies before bringing her claim to this Court. The Court treated the motion as a motion for summary judgment and denied it. SeeJohnson v. Peake, 634 F. Supp. 2d 27, 33 (D.D.C. 2009).Now, post-discovery, the Secretary has filed a second motion for summary judgment, on the basis that because Pearson was Johnson's co-worker, the Department should not be held liable for any harassment by him because it "neither knew nor should have known of the alleged harassment" and because it "took prompt and appropriate corrective action." Def.'s Mot. for Summ. J. at 1.


Summary judgment is appropriate when the pleadings and the evidence 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 party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the Court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). As part of this deference to the non-movant, the Court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. In order to prevail, the non-movant's opposition must contain more than "unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial." Carter v. Greenspan, 304 F. Supp. 2d 13, 21 (D.D.C. 2004). By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "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). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.


As a preliminary matter, the Secretary contends that this Court should disregard Johnson's post-discovery declaration filed in conjunction with his opposition to the motion for summary judgment on the basis of the "sham-affidavit rule." Reply in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Reply") at 6-8. The Secretary claims that this declaration should not be part of the record because it contradicts Johnson's earlier testimony regarding the timing of her first alleged physical contact with Pearson and her first report to management of this alleged misconduct. Id. at 7. In addition, the Secretary argues that the co-worker liability standard -- rather than the supervisor liability standard -- should be applied to this case. The Court addresses these arguments in turn.

I. Johnson's Post-Discovery Declaration

As has been noted by the D.C. Circuit, "[v]irtually every circuit has adopted a form of the so-called 'sham-affidavit rule,' which precludes a party from creating an issue of material fact by contradicting prior sworn testimony unless the "shifting party can offer persuasive reasons for believing the supposed correction' is more accurate than the prior testimony. Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (quoting Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)). However, "[i]f the supplemental affidavit [or declaration] does not contradict but instead clarifies the prior sworn statement, then it is usually considered admissible." Galvin, 488 F.3d at 1030. Taking these two legal principles together, courts in this district have applied the sham-affidavit rule when "'the affidavit [or declaration] . . . clearly contradict[s] prior sworn testimony, rather than clarif[ies] confusing or ambiguous testimony, and the contradiction lacks credible explanation.'" St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 573 F. Supp. 2d 152, 160 (D.D.C. 2008) (quoting Hinch v. Lucy Webb Hayes Nat'l Training Sch., 814 A.2d 926, 930 (D.C. 2003)) (emphasis added); see also Barrett v. Chreky, 634 F. Supp. 2d 33, 37 (D.D.C. 2009) (finding no violation of the sham-affidavit rule because the plaintiff did not "directly contradict herself" in her supplemental affidavit).

Here, the Department contends that the Court should refuse to consider Johnson's supplemental declaration on the basis of the sham-affidavit rule because her post-discovery declaration states that Johnson first spoke with her supervisors in January or February of 2005, which purportedly contradicts her testimony from her 2006 declaration and 2010 deposition that her first report to management "occurred no earlier than June 2005." Def.'s Reply at 7. But a close reading of Johnson's earlier testimony and statements, including her 2006 declaration, 2010 deposition, and 2010 post-discovery declaration, fails to show that Johnson's declaration "clearly" contradicted her prior testimony. Indeed, far from definitively pointing to June 2005 as the timeframe for Johnson's first report of sexual harassment to her supervisors, Johnson's prior statements on the subject are ambiguous. The best that can be said for this testimony is that one could infer that Johnson may have first reported instances of sexual harassment in June or July 2005, but Johnson's previous testimony does not clearly commit to that timeframe.

For example, the Secretary points to Johnson's statement in her 2006 declaration that "on/about July 11, 2005, Mr. Pearson touched my buttocks" to argue that Johnson previously testified that the first touching incident, which prompted her first report to management, occurred on July 11, 2005. See Def.'s Reply at 7-8 (quoting ROI Tab B-1 ¶ 26). But the Secretary overstates the clarity of this testimony, as Johnson's 2006 declaration was a specific response to Question 26 of an investigatory questionnaire, asking:

Since the date of the incident (July 11, 2005), have any other sexual harassment incidents taken place? If yes, when and what took place, who did you report it to and what action, if any, was taken?

Pl. Exh. 24 ¶ 26. The question does not ask whether this was the first incident of touching or whether Johnson spoke to her supervisors about sexual harassment at any point before July 11, 2005, and hence Johnson did not definitively place the timeframe for her first report to management in the June or July 2005 -- rather than the January or February 2005 -- timeframe. The Secretary suggests that any reasonable person would have mentioned such prior incidents and reports in response to this and other questions in the questionnaire, see Def.'s Resp. to Pl.'s Surreply at 2-3, n. 1 ("By her lack of response, one could conclude from the 2006 Declaration that there were no other incidents of alleged physical contact . . ."), but this argument simply goes to the weight that should be given to the 2006 and 2010 declarations and does not make the post-discovery declaration a clearly contradictory "sham" that should be disregarded by the Court.

Similarly, the Secretary's claim that Johnson's 2010 deposition testimony unequivocally places the first touching incident and subsequent report to management in the June or July 2005 timeframe is overstated. Again, while Johnson's testimony may suggest a June or July meeting with supervisors regarding an alleged sexual harassment incident, it does not clearly commit to that period of time. Relevant excerpts from Johnson's deposition include the following:

Q: Now, when did this alleged harassment begin?

A: The things that he was saying started ...

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