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Ricci v. Kerry

United States District Court, District Circuit

September 23, 2013

NICOLE M. RICCI, Plaintiff,
JOHN F. KERRY, Secretary, U.S. Department of State, Defendant.


ROBERT L. WILKINS, District Judge.

Plaintiff Nicole Ricci ("Ricci") is currently employed by the U.S. Department of State as a Foreign Affairs Specialist in the Office of Marine Conservation. She brings this action against John F. Kerry in his official capacity as Secretary of State, asserting claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. [2] Ricci claims that she was the victim of sex-based harassment, and she further claims that after she complained about this alleged harassment, her supervisors at the State Department began subjecting her to a retaliatory hostile work environment. The case is presently before the Court on the State Department's Motion for Summary Judgment (Dkt. No. 23) and Ricci's Motion for Preliminary Injunction (Dkt. No. 26). Upon consideration of the parties' briefing, the entire record in this action, and the arguments of counsel during the hearing, the Court concludes, for the reasons that follow, that the State Department's Motion will be GRANTED and that Ricci's Motion will be DENIED. For purposes of this ruling, the Court will assume the reader is familiar with the factual assertions and arguments advanced by the parties and will not recite those again here.


A. The State Department's Motion for Summary Judgment

1. Standard of Review

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). To establish a genuine issue of material fact, the nonmoving party must demonstrate-through affidavits or other competent evidence, FED. R. CIV. P. 56(c)(1)-that the quantum of 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. District 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.

2. The Scope of Ricci's Claims

At the outset, the Court notes that the precise nature of Ricci's claims has been a subject of some confusion. Through her Complaint, Ricci pled two counts: "Count I" is captioned "Denial of Career Ladder Promotion, Sexual Harassment, and Continuing Hostile Work Environment, " ( see Dkt. No. 1 ("Compl.") at ¶¶ 4-19), and "Count II" is entitled "Retaliation and Continuing Hostile Work Environment, " ( see id. ¶¶ 20-25). In substance, however, it originally seemed these two counts were comprised of several discrete claims under Title VII. Indeed, in seeking summary judgment, the State Department treated Ricci's claims as four separate causes of action-(1) denial of career ladder promotion based on gender; (2) hostile work environment sexual harassment; (3) hostile work environment based on gender and retaliation; and (4) retaliation. In her opposition, Ricci did not really contest State's characterization of her claims, but essentially just responded to most of its arguments in turn.

During oral argument, however, Ricci's counsel clarified that Ricci pursues two-and only two-claims in this case: (1) a claim of hostile work environment based on her gender, and (2) a claim of retaliatory hostile work environment. In other words, Ricci does not contend that any single incident gives rise to an independent discrimination or retaliation claim, but that the State Department's pattern of conduct created gender-based and retaliatory hostile work environments. With this understanding in mind, the Court moves to the merits of Ricci's two claims.

3. Ricci's Gender-Based Hostile Work Environment Claim

The allegations that Ricci marshals in support of her sex-based hostile work environment claim are these: following two instances of inappropriate behavior by her second-line supervisor, William Gibbons-Fly-one that took place while on work travel in Bellevue, Washington in August 2009, and the second during a business trip to New York City in November 2009-the State Department discriminatorily denied Ricci a career-ladder promotion to the GS-13 level. ( See Dkt. No. 30-24 ("Pl.'s MSJ Opp'n") at 13) ("Ms. Ricci has set forth a prima facie case of sexual harassment and hostile work environment for denial of promotion. After the hugging incident in Bellevue and assault in New York, Ms. Ricci's promotion was denied.").[3] These incidents represent the sum total of the acts Ricci claims created a hostile work environment based on her sex. ( See id. at 12-15).

The State Department seeks summary judgment on this claim on several grounds. First, State argues that Ricci's claim is barred on statute of limitations grounds because she failed to timely exhaust her administrative remedies. Second, State insists that, even if timely, Ricci's claim fails on the merits because her allegations do not rise to the level of severity or pervasiveness necessary to sustain an actionable hostile work environment claim, and because Ricci cannot establish that the underlying acts were motivated by her gender in any event. Finally, State invokes a Faragher / Ellerth defense, rejoining that Ricci cannot pursue this claim because she failed to take advantage of the State Department's procedures to prevent and correct harassment. Agreeing with State's first argument, the Court does not reach the other two.

It is well settled that Title VII plaintiffs must timely exhaust their administrative remedies prior to bringing suit. See Steele, 535 F.3d at 693; Harris v. Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007). For federal employees, "[f]ederal regulations bar discrimination claims that an employee does not first bring to the attention of an agency's EEO counselor within forty-five days of the alleged conduct." Vickers v. Powell, 493 F.3d 186, 198 (D.C. Cir. 2007) (citing 29 C.F.R. §§ 1614.105(a), 1614.107); see also Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). "Dismissal is required when a plaintiff fails to exhaust [her] administrative remedies with respect to particular claims." Ndondji v. InterPark, Inc., 768 F.Supp.2d 264, 276-77 (D.D.C. 2011) (citing Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003)). Here, State argues that Ricci failed to timely exhaust her administrative remedies because all of the alleged conduct giving rise to her sex-based hostile work environment claim occurred more than 45 days before Ricci first contacted an EEO counselor on April 21, 2010. The Court agrees.

To begin with, Ricci does not dispute that her contact with an EEO counselor on April 21, 2010, constitutes the operative contact for exhaustion purposes. ( See Pl.'s MSJ Opp'n at 9) ("On April 21, 2010, Ms. Ricci included all of [her] complaints in her contact with an EEO counselor").[4] Instead, Ricci responds, without any meaningful analysis, that hostile work environment claims "are not judged under the filing standard for single incident claims." ( Id. at 12). This, of course, is true. Under the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, so long as one act contributing to a hostile work environment "occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Morgan, 536 U.S. 101, 117 (2002) (distinguishing statute of limitations analysis as between hostile work environment claims and discrimination claims premised on discrete incidents); see also Steele, 535 F.3d at 691, 694 (applying Morgan to the 45-day exhaustion window covering federal employees). But contrary to Ricci's position, Morgan 's "continuing violation" framework finds no application here because all of the acts comprising Ricci's gender-based hostile work environment claim occurred well outside the 45-day window preceding her EEO contact. The Washington and New York incidents took place in August and November 2009, respectively-both several months before Ricci contacted an EEO counselor in April 2010. ( See Compiled Facts at ¶¶ ...

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