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Whorton v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

February 21, 2013

Brenda WHORTON, Plaintiff,

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Jennifer O. Schiffer, Pels Anderson, LLC, Bethesda, MD, Robert B. Nealon, Nealon & Associates, P.C., Alexandria, VA, for Plaintiff.

Gerard Joseph Stief, WMATA, Michelle Lo, U.S. Attorney's Office, Washington, DC, for Defendants.



Re Document No.: 17



Plaintiff, Brenda Whorton, a former employee of the Washington Metropolitan Area Transit Authority (" WMATA" ), claims that she was denied training, promotion/selection, and other opportunities, and was subjected to sexual harassment and a hostile work environment, based on her race (white), gender (female), and in retaliation for complaining about her discriminatory treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (" Title VII" ).[1] WMATA has filed a motion for summary judgment largely arguing that plaintiff's Title VII claims are untimely because she failed to file a " charge" with the Equal Employment Opportunity Commission (" EEOC" ) within 180 days of the alleged discriminatory acts; and, she has not raised claims rising to the level of a hostile work environment. [Docket No. 17]. For the reasons set forth below, because most of plaintiff's claims are timely and she has adequately asserted claims of hostile work environment based on gender and retaliation, the defendant's motion for summary judgment is GRANTED IN PART, and DENIED IN PART.


Plaintiff has raised a number of claims concerning alleged discrimination. The

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timing of such claims, whether they can be considered discrete acts of discrimination or part of a hostile work environment, and whether such claims were raised with the EEOC, are critical to assessing defendant's dispositive motion. As such, the Court endeavors to lay out the claims as precisely as the existing record allows and place them in the proper context.

Plaintiff claims that she was denied MAXIMO training. Plaintiff raised this issue in the EEOC Questionnaire she submitted in June of 2007 [2] as well as in the EEOC Charge dated February 2008. Def's Exh. B & Pltf's Exh. 3. Plaintiff has testified that her request for such training occurred in late 2005 or early 2006. Whorton Depo. at 44. And because the individuals that allegedly received the training were women, this claim appears to apply only to a race claim. See, e.g., Pltf's Exh. D (Ms. Pate received formal MAXIMO training); Plaintiff's Statement of Material Facts (" Pltf's SMF" ) at ¶¶ 15-16 (co-workers Pate and Reynolds, both black females, received MAXIMO training).

Plaintiff also raises a claim that, while working on some equipment, she received a shock that was purposely planned bye her co-workers as part of a " prank." This event is alleged to have occurred in March 2006. See Pltf's Exh. J, Interrogatory Responses at p. 13. Plaintiff's EEOC Questionnaire does not refer to this incident but her EEOC Charge may vaguely refer to it. Def's Exh. 3 (" including being placed in dangerous situations by co-workers" ). The record does not reflect why plaintiff believes this incident was related to her race or gender.[3]

Plaintiff further claims that in November 2006 she was denied rail car training and the opportunity to work on the rehabilitation wiring of a train. Pltf's Interrog. Response at 9. She was allegedly told that this was because of her gender. Id. This claim does not appear to have been included in either the EEOC Questionnaire or EEOC Charge.

Plaintiff also alleges that, on December 7, 2006, sexually offensive material was placed under her toolbox. Pltf's Interrog. Responses at 10. This claim was not included in the EEOC Questionnaire or the EEOC Charge.

On or about December 17, 2006, plaintiff filed an internal complaint with WMATA's Office of Civil Rights. See WMATA MSJ at 14. The record does not reflect what claims were included. There is no documentation in the record concerning her internal complaints. However, because WMATA concedes that this internal complaint was filed on this date, the Court will regard it as the first instance in which plaintiff engaged in activities protected by Title VII. Thus, the alleged actions set forth above could not have been motivated by retaliation.

Between October 2006 and May 2007, plaintiff alleges that she applied for approximately five clerical positions. EEOC Questionnaire; Whorton Depo. at 85. These non-selections were specifically

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mentioned in plaintiff's EEOC Questionnaire and vaguely mentioned in the EEOC Charge (" I have been denied promotion/selection ... and other opportunities." ). But the record does not reflect specific dates for these alleged discrete non-selections, the specific positions applied for, nor does it reflect the race or gender of the individuals who received the positions. Without this information, it is impossible for the Court to determine whether these non-selections were challenged in a timely fashion, whether plaintiff has alleged a prima facie case of discrimination or retaliation, who the deciding selection officials were, or whether there is any evidence of discrimination or retaliation for these claims.

Around this same period, plaintiff also alleges that she was not allowed to work in administrative positions while her co-workers were placed in such positions non-competitively.[4] The plaintiff mentioned this specifically in her EEOC Questionnaire and, as set forth above with respect to the clerical positions, vaguely in her EEOC charge. The record does not reflect when these non-competitive selections were made. Thus, the Court cannot determine whether these claims are timely. Moreover, because the non-competitive administrative duties were given to three women ( see EEOC Questionnaire referring to three black females: Park, Reynolds, Bryant), this claim would only involve race claims.

Plaintiff further alleges that, around 2007 or 2008, Art Canales left her a nasty note complaining that she should not leave anything on his workbench. Whorton Depo. at 98-101. This claim was not included in the EEOC Questionnaire or the EEOC Charge, but was included in plaintiff's counsel's letter to the EEOC in response to WMATA's denials of discriminatory behavior. Pltf's Exh. D at 3 (" Ms. Whorton has also received offensive and disrespectful notes from co-workers with messages such as ‘ NEVER, EVER TOUCH MY DESK AGAIN!’ " ). Plaintiff felt that this note was related to her gender because he would not have left such a note for a man. Whorton Depo. at 99. But this was an isolated incident involving Mr. Canales; he and plaintiff worked different shifts and, thus, did not otherwise interact in the same work environment. Id. at 100-101.

Additionally, plaintiff claims that a supervisor put her psychiatric information in a file. The date of this alleged act is unclear but may be January 2007.[5] This incident may be vaguely referred to in plaintiff's EEOC Questionnaire (" I been violated by document" ) and does not appear in the EEOC Charge. Moreover, this alleged act does not appear to be related to plaintiff's gender or race, but could plausibly be part of a retaliation claim.

On June 14, 2007, plaintiff filed a second internal complaint with WMATA's Office of Civil Rights. See WMATA MSJ at 14. Again, the record does not reflect its contents.

A few days later, on or about June 24, 2007, plaintiff submitted her Intake Questionnaire to the EEOC. Pltf's Exh. B; Whorton Depo. at 114-115. In the Questionnaire, plaintiff asserted that discrimination

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/retaliation had occurred between January 2006 and June 2007. Id. It specifically included allegations concerning: clerical duties; MAXIMO training; administrative duties non-competitively assigned; being moved from Brentwood to Greenbelt; violation by a document; and, an inappropriate letter sent by her supervisor, Thompson, to the absenteeism department. Id. The format and wording of this document (" Organization against which charge is being filed; " " Other employer/organization— you want to include in the filing of this charge." ), indicates that the individual submitting it to the EEOC intends to file a charge. But, even if this document is treated as the appropriate EEOC " charge," because it was submitted on or about June 24, 2007, any discrete acts of discrimination occurring before, on or about, December 24, 2006, would be untimely. Thus, as set forth below, to the extent they are considered discrete acts, the claims involving the MAXIMO training denial, the electrical shock " prank," the denial of railcar training, etc., would be untimely.

On or about June 19, 2007, plaintiff asserts that her treating psychiatrist, Altaf Merchant, M.D., recommended that plaintiff be transferred to another department because her work environment exacerbates her depression and anxiety. Pltf's Exh. L. From June 2007 to December 2008, plaintiff alleges that she was given schematics that were not in compliance with engineering code. Pltf's Interrog. Responses at 11. This allegation does not appear in the EEOC Questionnaire, probably because the acts allegedly took place after it was submitted to the EEOC. But it does not appear in the EEOC Charge either.

On December 12, 2007 and at other points while plaintiff was assigned to WMATA's Greenbelt facility, plaintiff alleges that her male co-workers displayed sexually explicit materials on their workbenches in plaintiff's line of sight. Pltf's Interrog. Responses at 10-11. The sexually explicit materials included: Warren Thomas displaying a black and white nude photo of a woman, and other co-workers displaying pictures of wives and girlfriends in seductive poses. Id. Plaintiff further alleges that, when she asked for these materials to be removed, she was retaliated against: her work bench was disturbed, her tool box was damaged, tools went missing, and rumors circulated that she was a " trouble maker." Id. Although plaintiff's EEOC charge refers generally to a continuous pattern of harassment and specifically to sexual harassment based on her gender, it does not describe the above-referenced incidents. Def's Exh. 3.

On or about February 20, 2008, plaintiff submitted to the EEOC the Charge of Discrimination form. Id. In it, plaintiff specifically alleges discrimination from December 7, 2006 [6] to October 1, 2007, but also describes it as a " continuing action." Id. In the EEOC Charge, plaintiff claims that she has " been subject to a continuous pattern of discrimination, harassment and retaliation." Id. Furthermore, she specifically alleges sexual harassment based on her gender. Id. Moreover, she alleges that she has been retaliated against with regard to assignments, terms/conditions, and harassment, based on filing an internal complaint of discrimination. Id. (emphasis added). The charge describes in specific terms very few of the events described above. But it does refer generally to: being placed in dangerous situations

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by co-workers and management (a likely reference to the shock " prank" ); denial of promotion/selection, transfers and other opportunities (a likely reference to the denial of clerical positions and assignment of administrative duties); denial of training (a likely reference to the denial of MAXIMO training). Plaintiff's various documents, e.g., EEOC Charge, Counsel's Response Letter, Counsel's Amendment Letter, and Amended Charge, do not explicitly make any allegations of discriminatory/retaliatory acts having occurred in 2008.[7]

On February 26, 2008, plaintiff's treating psychiatrist, Altaf Merchant, M.D., again recommended that plaintiff be transferred to another department because her work environment exacerbates her depression and anxiety. Pltf's Exh. L. He also stated that his previous recommendation had been ignored. Id.

Sometime in 2009, plaintiff claims that her supervisor, who apparently was looking for her while she was on vacation, telephoned her ex-husband who was still listed as her emergency contact and told him that plaintiff was absent without leave. Whorton Depo. at 55-56. This claim appears only possibly indirectly in her Counsel's Response Letter in February 2009 (" It is unlikely that a concerned supervisor would attempt to contact an employee to confirm that they are not AWOL, as Ms. Whorton was on ...

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