The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
IN THE OFFICIAL REPORTERS
Plaintiff Rebecca Tressler ("Tressler") is a railroad engineer employed by the National Railroad Passenger Corporation, more commonly known as Amtrak ("Amtrak"). She brings this lawsuit against Amtrak, asserting a number of employment-based claims. Specifically, Tressler pursues the following remaining claims against Amtrak: (1) Hostile Work Environment in Violation of Title VII and the D.C. Human Rights Act ("DCHRA") (Counts I and II); (2) Retaliation in Violation of Title VII and the DCHRA (Counts III and IV); (3) Hostile Work Environment/Constructive Demotion in Violation of Title VII and the DCHRA (Counts V and VI); and (4) Violation of the Federal Employers' Liability Act ("FELA") (Count VII).*fn2 This matter is before the Court on Amtrak's Motion for Summary Judgment (Dkt. No. 52). For the reasons set forth below, the Court concludes that Amtrak's Motion must be GRANTED.
The overall facts surrounding Tressler's claims are largely undisputed. Amtrak operates a nationwide rail network system serving over 500 destinations in 46 states and three Canadian provinces. (Dkt. No. 52 ("Def.'s Mem.") at 1-2). From 1992-2010, Amtrak also operated trains owned by the Virginia Railway Express ("VRE"). (Id. at 2). Tressler began her employment with Amtrak in 1987 as a Passenger Locomotive Engineer ("Engineer"). (Dkt. No. 52-3 ("Tressler Dep.") at 97). In 2004, Tressler bid on and was awarded an Engineer position on a VRE route between Fredericksburg, Virginia and Washington, D.C. (Id. at 101; Dkt. No. 52-4 ("Scala Dep.") at 17). In so doing, Tressler displaced a more junior Engineer, but this was a common practice for Amtrak employees. (Tressler Dep. at 77-79, 193-94). At the time, Tressler was the first and only female Engineer with a regularly scheduled assignment on the Fredericksburg line. (Dkt. No. 53-6 ("Tressler Decl.") at ¶ 4).
From January 13, 2006 to June 22, 2006, Tressler alleges that a male passenger, Mr. Draper, "stalked" her on the VRE during his morning commute to work. (Tressler Dep. at 120). Tressler believes Mr. Draper touched her on her back, blocked her path to the operating cab door with his bags, occasionally opened the operating cab door, stared at her through the window, and took pictures of her. (Id. at 121-23). Tressler reported Mr. Draper's behavior to an Amtrak conductor in mid-February 2006 and to her immediate supervisor in March 2006. (Id. at 125).
She also filed a police report around that time. (Dkt. No. 52-6 ("5/25/06 Email")). During the police investigation, Amtrak removed Tressler from the VRE and placed her on special duty so she would not have to interact with Mr. Draper. (Tressler Dep. at 134-36). After conducting their investigation, the police could not substantiate Tressler's accusations. (Dkt. No. 52-5 ("Bodtmann Dep.") at 62). However, a police investigator recommended that Tressler be able to cover the cab door window to minimize distractions. (Dkt. No. 52-7 ("6/9/06 Union Letter")). Because VRE, not Amtrak, owned the train Tressler operated, Amtrak sent VRE a letter asking that Tressler be permitted to cover the window. (Tressler Dep. at 131; Dkt. No. 52-8 ("6/19/06 Amtrak Letter")). VRE denied that request by letter dated June 22, 2006, citing security reasons. (Dkt. No. 52-9 ("6/22/06 VRE Letter")). However, Mr. Draper stopped riding Tressler's train at the same time, and Tressler confirmed that June 22, 2006 was the last time she saw Mr. Draper on her train. (Dkt. No. 52-10 ("12/19/06 EEOC Charge") at ¶¶ 19, 23).
Since Tressler was not permitted to cover the cab window, she alleges that she had to sit in an uncomfortable position in the cab to avoid Mr. Draper's view. (Id. at ¶ 7; Dkt. No. 52-11 ("5/3/07 EEOC Charge") at ¶ 16). As a result, Tressler alleges she suffered back pain, headaches, and numbness in her hands. (5/3/07 EEOC Charge at ¶ 16). She began seeing a chiropractor for these symptoms on April 24, 2006, who identified her symptoms as stress-related and indicated the position in her chair exacerbated the condition. (Id.). By October 10, 2006, Tressler stopped seeing her chiropractor because the pain was mostly gone. (Id.).
On September 14, 2006, Tressler injured her ankle when she slipped exiting a train by the engine ladder. (Tressler Dep. at 274; Dkt. No. 52-12 ("Disability Claim"). On December 5, 2006, Tressler signed a Disability Claim Form stating that she hurt her ankle and that she stopped working on October 25, 2006 because of the injury. (Id.).
On December 19, 2006, Tressler filed an administrative charge with the Equal Employment Opportunity Commission (EEOC) against Amtrak and VRE asserting that she had been subjected to a hostile work environment and retaliation since January 2006. (12/19/06 EEOC Charge). Her supporting declaration focused almost exclusively on her interactions with Mr. Draper. (Id.) She later amended her original Charge on May 3, 2007, to include allegations dating back to August 2004 and additional assertions that occurred since filing her original charge. (5/3/07 EEOC Charge). After May 2007, Tressler did not file any other charges with the EEOC, nor did she otherwise seek to amend her prior charges.
In January 2007, Tressler bid on and was awarded an Engineer position in the Washington, D.C. yard. (Tressler Dep. at 105). Although this position paid the same hourly rate as her prior position on the VRE, Tressler asserts that the job offered fewer hours per week, which, in turn, had the effect of cutting her pay in half. (See id. at 305, 309). Tressler also contends that the schedule for her new position was less desirable because it required her to work nights and weekends. (5/3/07 EEOC Charge at ¶ 2). During this time, Tressler knew she could bid on any open position, displace another Engineer, or bid on the extra list. (Tressler Dep. at 106-07, 261-62, 306-07). She also could have waited to bid on another position because newly open positions were advertised on a weekly basis. (Id. at 119). Ultimately, Tressler stayed in the Washington, D.C. yard for approximately ten months, until October 2007, when she bid on and was awarded a position in the Northeast Corridor. (Id. at 308-10).
Following her transfer, Tressler was not paid beginning sometime in October 2007 through February 2008. (Dkt. No. 20 ("Am. Compl.") at ¶ 29). Apparently, Tressler had failed to submit her timecards during much of this period, which Amtrak requires before it can issue a paycheck. (Tressler Dep. at 228). As of January 30, 2008, Tressler still had not provided any time records for her work. (Dkt. No. 52-17 ("Mazeika Dep.") at 28; Dkt. No. 52-14 ("1/3/08 Email")). Ultimately, after she did so in February 2008, Amtrak provided Tressler with a check for all of the time she worked from October 2007 through February 2008. (Tressler Dep. at 230).
Upon moving to the Northeast Corridor, Tressler was required to learn the new route and "qualify," by riding trains with fellow Engineers. (Dkt. No. 54 ("Pl.'s Opp'n") at 19). In the course of "qualifying," Tressler rode with several different Engineers, including co-worker Michael Flora, with whom she had previously ridden. (Dkt. No. 52-2 ("Marcelle Decl.") at Ex. B). On March 19, 2008, Tressler reported to Amtrak that Mr. Flora had sexually assaulted her while riding together on the train on March 14, 2008. (Id.; Tressler Dep. at 218-20). The same day it received Tressler's report, Amtrak's Dispute Resolution Office began investigating the incident. (Marcelle Decl. at ¶ 10). Amtrak also notified Amtrak Police, which proceeded to conduct its own investigation. (Id.). Amtrak completed its investigation in less than one week, suspended Mr. Flora, issued charges against Mr. Flora, and scheduled a disciplinary hearing to take place. (Id. at ¶ 10-11). Following those disciplinary proceedings, Amtrak terminated Mr. Flora's employment effective May 16, 2008. (Dkt. No. 52-16 ("Flora Discipline") at 13-18).
After reporting the assault, Tressler was excused from work from March 19 through 27, 2008. (Tressler Dep. at 336). Once she returned, on April 2, 2008, Tressler reported that she saw sexually explicit graffiti in the Engineer compartment of her train. (Marcelle Decl. at ¶¶ 12-13). Amtrak immediately removed the graffiti, and the DRO investigated the graffiti and reported it to Amtrak Police. (Tressler Dep. at 250; Marcelle Decl. at ¶ 13). On April 14, 2008, Tressler then reported additional sexually-based graffiti on April 14, 2008, which Amtrak again removed while the DRO and Amtrak Police continued their investigation. (Marcelle Decl. at ¶ 14). Tressler believes that some of the graffiti was directed at her, because she saw references to her first name, "Becky," and her initials, "RAT." (Tressler Dep. at 240). However, not all of the graffiti was sexually-based or sexually inappropriate. Tressler also saw graffiti of a non-sexual nature, including graffiti consisting of "Turkle is number one," "I love Tom Mazeika," "stuff about the Poconos," and pictures of fish. (Id. at 243-45).
On April 17, 2008, Amtrak issued notices to employees in the Northeast Corridor stating it had received reports of sexually-graphic and inappropriate graffiti on train equipment and devices, and that the incidents were being investigated by Amtrak Police. (Marcelle Decl. at ¶ 15; Dkt. 52-18 ("Graffiti Notices")). Amtrak's notices expressly stated that such behavior would not be tolerated and directed employees to report graffiti immediately to their supervisor who would contact Amtrak Police. (Id.). According to Tressler, however, graffiti continues to appear, as recently as October 2011. (Pl.'s Opp'n at 10). Finally, Tressler asserts that her manager, Mr. Mazeika, improperly suspended her pay for a second time in May 2008, on the grounds that Tressler was taking too long to "qualify" for her route. (Pl.'s Opp'n at 15).
Tressler ultimately received her "right-to-sue" notice from the EEOC on July 30, 2009, (Compl. at ¶ 24), and she filed her Complaint initiating this action on October 28, 2009.
Summary judgment is appropriate when the moving party demonstrates 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(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). A genuine issue of material fact exists if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson, 477 U.S. at 248). While the Court views all facts in the light most favorable to the nonmoving party in reaching that determination, Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004), the nonmoving party must nevertheless provide more than "a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252. To establish a genuine issue of material fact, the ...