United States District Court, District of Columbia
Lena T. KONAH, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
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Veronica G. Awkard, Forestville, MD, for Plaintiff.
Shermineh C. Jones, Office Of Attorney General, Washington, DC, for Defendants.
ROSEMARY M. COLLYER, District Judge.
Plaintiff Lena T. Konah, a United States citizen and native of Liberia, worked as a licensed practical nurse for Defendant Unity Health Care, Inc. She was assigned to the medical unit at the Central Detention Facility operated by Defendant District of Columbia. She complains that jail inmates made vulgar and lewd comments and gestures at the nurses constantly. Ms. Konah further complains that, on August 5, 2009, she was trapped behind bars with a group of sexually threatening inmates but Defendant Sergeant Robert Jefferson,
a correctional officer, would not open the gate to allow her to escape. Because of experiences in her home country, this event thoroughly traumatized Ms. Konah, and she has been unable to return to work at the jail.
Ms. Konah claims that Unity's acts and omissions constituted discrimination based on gender and national origin and that Unity constructively discharged her by terminating her in retaliation for her complaints about the August 5, 2009, incident. She also complains that the District of Columbia violated her rights under the Fourth and Fifth Amendments to the United States Constitution by " seizing" her and by denying her due process and equal protection. Further, Ms. Konah alleges that Sgt. Jefferson intentionally inflicted emotional distress on her and aided in the assault and battery that occurred when one of the inmates grabbed her on the buttocks. In response to Ms. Konah's Third Amended Complaint, Unity and Sgt. Jefferson have filed motions for summary judgment. The District of Columbia moves for judgment on the pleadings.
A. Unity Health Care and the D.C. Central Detention Facility
Ms. Konah worked for Unity as a Licensed Practical Nurse from November 2006 through September 2009. Unity is a non-profit health care provider that operates a network of clinics for medical and social services in the District. Her duty location for that entire time was the Central Detention Facility (CDF, also referred to as the D.C. Jail) in Southeast Washington, D.C. Under its contract with the District, Unity provides medical treatment to inmates at CDF, as well as at the Correctional Treatment Facility and halfway houses. Sealed Statement of Undisputed Material Facts Supp. Unity Mot. Summ. J. [Dkt. 67-5] (Unity SUF) ¶ 5.
Each of the " open population" housing units at CDF is monitored by a sergeant, who sits in a glass-walled control module called a " bubble" and who supervises floor officers and inmates. Id. ¶ 10. Inmates who qualify for open population are released from the cells but must remain in the cell block. From the bubble, the sergeant controls one gate (" bubble gate" ) that connects the cell block to a narrow hallway called the " sally port,"  and a front gate that connects the sally port to the main hallway of the jail. Id. ¶ 11; see also Def. Unity Health Care, Inc.'s Mot. Summ. J. (Unity MSJ), Ex. 22 [Dkt. 67-6], Supp. Decl. Vali Zabiheian (Zabiheian Supp. Decl.), Ex. A (Sally Port Photograph). The front gate from the main hallway is at one end of the sally port, and the bubble gate into the cell block is at the other end. Sally Port Photograph. Having a bubble gate and the front gate open at the same time is not permitted because inmates could run out into the hallway of the jail, which would be a security breach. Unity SUF ¶¶ 13, 51; see also Unity MSJ, Ex. 5 [Dkt. 67-6], Dep. of Robert Lee Jefferson, Jr. (Jefferson Dep.) at 94 (" [T]hat's a security matter, because if I have both of them [open], that means the inmate can run out into the hallway of the jail." ). Inmates are not supposed to be in the sally port without a correctional officer present. Unity SUF ¶ 49; Jefferson Dep. at 72, 76 (" They're not supposed to be in
there unsupervised, no. If there's inmates in the sally port, there should be an officer with them.... [W]e make [the inmates] get out the sally port." ).
One of Unity's duties is to administer medications to inmates, which nurses have typically done in the housing units. Unity SUF ¶¶ 7, 41. Correctional officers are required to accompany nurses at all times when they administer medication to inmates. Id. ¶¶ 7-9; Unity MSJ, Ex. 2 [Dkt. 67-6], Deposition of Lena Konah (Konah Dep.), at 95 (Q. " And are you supposed to be escorted by an officer? A. Yes." ). If an officer is not immediately available, a nurse can " just come back and wait for one." Konah Dep. at 100. Waiting for an officer was Ms. Konah's typical practice. Id.
Insulting interactions between inmates and nurses were not uncommon at CDF. Unity SUF ¶¶ 22-26. Sometime in April 2009, a nurse— not Ms. Konah— reported that an inmate had thrown urine and feces at her. Id. ¶ 33. On April 21, 2009, several nurses, including Ms. Konah, sent a letter to Unity complaining about security practices at the jail. Id. ¶ 34; Compl. ¶¶ 26, 31; see also Unity MSJ, Ex. 18 [Dkt. 67-6], Letter dated April 21, 2009 (4/21/09 Letter) at 1. The letter described several recent incidents involving feces and " unknown liquids" as well as the general difficulties of working around the inmates while distributing medication. Unity SUF ¶ 34; see also 4/21/09 Letter at 1. The letter asked Unity to change policies regarding medication administration so that officers would " bring the inmates to the bubble or to the sick call room" in lieu of the nurses " passing medication from cell to cell." 4/21/09 Letter at 1. The sick call rooms are located in the sally ports for nurses to use in dispensing medication. Unity SUF ¶ 41. The sick call rooms have Dutch doors that enable a nurse to remain inside the room with the bottom half of the door closed while administering medications through the open top half of the door. Id.; see also Sally Port Photograph. To access sick call rooms, nurses sign out keys and return them when they are done. Unity SUF ¶ 42. These procedures had been in place and available for some time. Unity MSJ, Ex. 9 [Dkt. 67-6], Decl. Bianca Thompson (Thompson Decl.) ¶¶ 8-11. Ms. Konah knew the procedures, as she signed out a key and used a sick call room in March 2009. Id. ¶ 11; see also Unity SUF ¶ 43.
The day after the nurses' complaint letter, Vali Zabiheian, Unity's Health Services Administrator and the senior management representative for Unity at the D.C. Jail, implemented a " sick call room policy." Unity SUF ¶ 35; see Unity MSJ, Ex. 20 [Dkt. 67-6], Decl. of Vali Zabiheian (Zabiheian Decl.) ¶¶ 1, 7-8 & Ex. A (4/22/09 Zabiheian Memo) at 1. The policy stated:
Effective May 1, medication administration and dispensing by the nursing and pharmacy staff will take place in the sick call rooms on the housing units. The medical staff will no longer walk on the housing units to administer medicine in open population.
4/22/09 Zabiheian Memo at 1. On April 30, 2009, during a training meeting, all nursing staff at the Jail, including Ms. Konah, were instructed to use the sick call rooms when dispensing medicine. Unity SUF ¶ 40. According to Unity business records, during a discussion of " Medication Dispensing in Units," all nurses were instructed
to " begin using the sick call rooms when meds are administered on the open population housing units. On the lock down units, meds will still be walked cell to cell with an officer present." Zabiheian Decl., Ex. B (Nursing Staff Meeting Record) at Bates UNITY136. Mr. Zabiheian's memo was posted at the Jail where Unity employees clock in, in the nursing station, and in the medication room; a copy was also sent to Warden Simon Wainwright. Zabiheian Decl. ¶ 8. The requirement that a corrections officer escort nurses at all times remained in place. Unity SUF ¶¶ 7, 9. Ms. Konah signed the attendance sheet for the April 30, 2009 training, and the meeting record reflects her attendance, Nursing Staff Meeting Record at Bates UNITY 132-33; she admits the signature is hers but does not remember any meeting on a new policy, see Konah Dep. at 54-59.
B. The August 5, 2009 Incident
Ms. Konah was assigned to dispense medication to inmates on August 5, 2009, in a CDF housing unit known as Southwest-1 or SW 1. Unity SUF ¶ 44. Sgt. Jefferson was on duty at the Southwest-1 bubble that day. On this occasion, Ms. Konah varied from her usual practice of waiting for an officer and entered the sally port unescorted. Konah Dep. at 100, 103. She began to dispense medications to inmates in the sally port, close to the front gate. Unity SUF ¶ ¶ 45-46. While she was there, the bubble gate opened and closed a few times, presumably to admit and discharge inmates obtaining medications. See Zabiheian Decl., Exs. D & E (SW1 Videos from Aug. 5, 2009). However, a group of inmates from the housing unit, dressed only in their undergarments, approached Ms. Konah in the sally port, making especially lewd and sexually threatening comments. She went to the bubble and asked Sgt. Jefferson to open the front gate to the corridor outside the unit so she could get away from the inmates, but he refused to respond or to open the gate, leaving her trapped in the sally port. As Ms. Konah returned to the front gate, the semi-clothed inmates surrounded her, calling her names and using sexually explicit language; one inmate grabbed her on the buttocks. Ms. Konah asked him something to the effect of " why did you touch me?" and screamed for help from Sgt. Jefferson. See Unity MSJ, Ex. 24 [Dkt. 67-6], DCDC-1 Report Completed by Lena Konah (Konah DCDC-1 Report); id., Ex. 25 [Dkt. 67-6], DCDC-1 Report Completed by Dr. Benedict Kargbo (Kargbo DCDC-1 Report). Dr. Benedict Kargbo, a treatment specialist at the Jail, entered the sally port from the housing unit, saw what was happening, and told the inmate to back away from Ms. Konah, which he did immediately. Unity SUF ¶ 52. Dr. Kargbo joined Ms. Konah's demands that the front gate be opened. Kargbo DCDC-1 Report at 1-2. Sgt. Jefferson eventually opened the front gate. With a corrections officer at the entrance, Ms. Konah and Dr. Kargbo left the sally port at the front gate and entered the main hallway of the Jail.
Ms. Konah was immediately taken to the infirmary. Unity SUF ¶ 56. She also met with Unity and CDF management, including the Warden. Id. ¶ 57. She declined to press criminal charges against the inmate, who had been placed on lockdown and charged with several Class II Serious Offenses. Id. ¶¶ 55, 57. Ms. Konah completed incident reports. At an unspecified date after August 5, 2009, she complained about sexual harassment to the Human Resources Office at Unity. She later told her supervisor she could not return to work at CDF, where there is a " plethora of sexual violence incidents towards females." Compl. ¶ 38.
C. Aftermath of August 5, 2009 Incident
In the meantime, Ms. Konah took a planned vacation and, on August 26, 2009, told Unity that she was too terrified of the Jail to return to work there. Unity SUF ¶¶ 62-63. She asked for a transfer to the chronic care unit of CDF to avoid the open-population cell blocks, but the " nurse manager" could not put her there and told her to " go back to [her] assigned area" or, if she did not want to do so, to " go home" because she " should not come back." Konah Dep. at 118. Unity agreed to look for a position outside of CDF. Unity SUF ¶ 66. In September 2009, Unity asked Ms. Konah to consider other open positions identified on Unity's Career Opportunity website, and she agreed. Id. ¶¶ 68-69. However, Ms. Konah was hospitalized in September or October 2009. She admits that Unity contacted her attorney about a job opening but says she could not respond because she was in the hospital. Konah Dep. at 142-44.
Unity learned that Ms. Konah was hospitalized on October 9, 2009.  It contacted Ms. Konah and asked her to complete a Family and Medical Leave Act (FMLA) Application for Leave and a Certification of Health Care Provider for Employee's Serious Health Condition. Unity SUF ¶ 74. See 29 U.S.C. § 2601 et seq. (FMLA), especially § 2613 (governing certification requirements). Unity provided these forms to Ms. Konah's caretaker at the hospital, directed to Ms. Konah, but Ms. Konah never returned either the FMLA Application or the Certification. Unity SUF ¶¶ 75-76; see also Unity MSJ, Exs. 36-38 [Dkt. 67-6], Correspondence Among Unity and Laurel Hospital Regarding FMLA Documents. Further, Unity notified Ms. Konah in November 2009 that it was holding a position for her at one of its community clinics, Hunt Place Health Center, for which she only had to complete an application on Unity's website. Unity
SUF ¶ 77; see also Unity MSJ, Ex. 39 [Dkt. 67-6], Correspondence Regarding Open Position, at Bates UNITY770 (including e-mail to Ms. Konah's counsel dated November 16, 2009, regarding open position at Hunt Place). Unity waited until the end of December 2009, but Ms. Konah never responded, and it filled the position with someone else. SUF ¶¶ 78, 80; see also Correspondence Regarding Open Position at Bates UNITY770 (explaining that Unity was " releasing the hold" as of December 23, 2009, because " over a month ha[d] passed with no application" from Ms. Konah).
Ms. Konah filed a complaint with the D.C. Office of Human Rights on December 3, 2009. See Unity MSJ, Ex. 42 [Dkt. 67-6], OCHR Complaint. On January 20, 2010, Unity again offered her a position at the Hunt Place Health Center, which she accepted. Unity SUF ¶¶ 81-82. On January 21, 2010, Unity sent Ms. Konah a letter asking her to complete the FMLA documents before her scheduled return to work on January 27, 2010. Unity MSJ, Ex. 38 [Dkt. 67-6], Jan. 21, 2010, Letter from S. Michele Ottley to Lena Konah (noting that Ms. Konah's absence had been " provisionally designated as Intermittent F[amily] M[edical] L[eave]" ). On January 27, 2010, Ms. Konah did not show up for work. Unity SUF ¶ 84. Unity informed her that it considered her failure to complete FMLA documents and failure to show up to work a voluntary resignation. Id. ¶ 85. Ms. Konah admits that Unity offered her a job at another Unity Healthcare facility and that she accepted the job in January 2010 but " there was some little discrepancy" she could not recall that prevented her from reporting for work. Konah Dep. at 144-45.
In her deposition, Ms. Konah answered many important questions, especially about events after August 5, 2009, with the statement that she could not recall or could not explain. Such a response is insufficient to create a legitimate dispute of material fact. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314 (D.C.Cir.1988) (" [A] motion for summary judgment adequately underpinned is not defeated simply by a bare opinion or an unaided claim that a factual controversy persists." ); Bonieskie v. Mukasey, 540 F.Supp.2d 190, 195 (D.D.C.2008) (" [C]onclusory allegations and unsubstantiated speculation do not create genuine issues of material fact," especially " the plaintiff's own self-serving, conclusory statements." (internal quotation marks and citations omitted)). The business records submitted by Unity stand unrebutted and are relied upon by the Court.
D. Procedural History
Ms. Konah filed a complaint in this Court on June 2, 2010, and the case was
assigned to the Honorable Ricardo M. Urbina. She filed an Amended Complaint on July 6, 2010, Dkt. 8, which Unity answered, Dkt. 10, and which Sgt. Jefferson and the District jointly moved to dismiss, Dkt. 11. Although the parties partially briefed the motion to dismiss, Ms. Konah moved to amend her complaint, and the Court granted that motion. See Mem. Order dated March 30, 2011 [Dkt. 24]. Ms. Konah then filed a Second Amended Complaint, Dkt. 25; Unity again answered, Dkt. 26, and Sgt. Jefferson and the District jointly moved to dismiss, Dkt. 27.
The Court granted in part and denied in part the motion to dismiss. See Konah v. District of Columbia, 815 F.Supp.2d 61 (D.D.C.2011). Concluding that Ms. Konah had not " put forth any facts that might allow the Court to conclude that the District was an employer under [D.C. Circuit precedent]," the Court dismissed her Title VII and D.C. Human Rights Act (DCHRA) claims against the District. Id. at 70-71 (citing, inter alia, Redd v. Summers, 232 F.3d 933 (D.C.Cir.2000)). It likewise dismissed the Title VII claim against Sgt. Jefferson in his individual capacity, id. at 71-72; the claim of discrimination based on national origin against Sgt. Jefferson, id. at 73; the Monell claim against the District based on an alleged pattern of sexual harassment arising from inadequate training of correctional officers, id. at 74-76; and the constructive discharge claim against Sgt. Jefferson, id. at 79-80. The Court denied the motion to dismiss with regard to the Fourth Amendment claim against Sgt. Jefferson, id. at 72; the claim of gender discrimination against Sgt. Jefferson, id. at 72-73; the due process claim against Sgt. Jefferson, id. at 73-74; the claim of assault and battery against Sgt. Jefferson, id. at 80; and the claim of intentional infliction of emotional distress against Sgt. Jefferson, id. at 80-81. The Court also declined to rule that Sgt. Jefferson was ...