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Tridico v. District of Columbia

United States District Court, D. Columbia.

September 1, 2015

PHILIP J. TRIDICO, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant

Page 18

          For PHILIP J. TRIDICO, Officer, Plaintiff: Brian J. Markovitz, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, MD.

         For DISTRICT OF COLUMBIA, Defendant: Martha J. Mullen, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.

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         MEMORANDUM OPINION

         ELLEN SEGAL HUVELLE, United States District Judge.

         Plaintiff Officer Philip J. Tridico brings this action against the District of Columbia alleging that he has been, and continues to be, subjected to discrimination, retaliation, and a hostile work environment based on his religion and past military service. ( See Compl., June 21, 2013 [ECF No. 1].) Defendant now moves for summary judgment. (Def.'s Mot. for S. J. and to Dismiss, May 18, 2015 [ECF No. 26] (" Mot." ).) For the following reasons, the motion is granted in part and denied in part.

         BACKGROUND

         Plaintiff, a Roman Catholic, served in the United States Marine Corps and the

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Marine Corps Reserves as a Corporal from 1992 until 1999, when he was honorably discharged. ( See Pl.'s St. of Mat. Facts in Dispute, June 22, 2014 [ECF No. 29] at 1.) He has been employed by the Metropolitan Police Department (" MPD" ) in the District of Columbia since 2006. ( See Pl.'s St. of Mat. Facts in Dispute, Ex. 2, June 22, 2014 [ECF No. 29-2] (" Pl. Dep. Tr." ) at 23.) Plaintiff was assigned to the Crime Patrol Unit until 2008, when he was transferred to the Auto Theft Unit. ( See id. at 24.) In January 2009, plaintiff was assigned to the Sixth District Narcotics Unit (" Narcotics" ) where he was supervised by Sergeant Matthew Nickerson and Sergeant Ernest Grant, under Lieutenant Gary Fitzgerald's and Captain Keith Deville's chain of command. ( See Compl. ¶ ¶ 19-20; Pl. Dep. Tr. at 30.)

         Soon after plaintiff arrived in Narcotics in early 2009, he approached Lieutenant Fitzgerald about his concern with other officers, including Officer Samoli Fuller, calling plaintiff a " White Boy," the frequent use of the " N-word" by officers, and the display of pornography in the workplace. ( See Pl. Dep. Tr. at 31-33.) Three or four days later, plaintiff heard from another officer that Officer Fuller was under investigation for the behavior that plaintiff had reported. ( See id. at 32.) Officer Fuller was either terminated or resigned shortly thereafter. ( See id. at 35-36.) Following these events, Sergeant Nickerson began to call plaintiff " moral" and " sensitive." Plaintiff alleges that he was labeled moral because of his objection to pornography, which he believes Sergeant Nickerson attributed to plaintiff's religion. ( See id. at 33.)

         In the summer of 2009, plaintiff crossed himself before eating his lunch. ( See id. at 37.) Witnessing plaintiff's gesture, Sergeant Nickerson pointed at plaintiff and declared, " [T]hat is why he is so weird, he believes in that weirdo Jesus shit." ( See id. ) Following this interaction, Sergeant Nickerson repeatedly referred to plaintiff as " weirdo," so often that plaintiff does not recall Sergeant Nickerson using his name at any point thereafter. ( See id. ) On another occasion, plaintiff came to the office wearing a sweater after appearing in court and attending church. Upon seeing plaintiff and learning that plaintiff had attended church, Sergeant Nickerson remarked, " Church! That is a waste of time." ( Id. at 55.) Plaintiff notes that these comments were about his " morals, [his] values, [his] upbringing, [his] religion." ( Id. at 57.)

         Plaintiff alleges that the " daily harassment and discrimination" he endured also related to his prior military service. (Pl.'s Opp. to Mot., June 22, 2015 [ECF No. 30] (" Opp." ) at 4.) Sergeant Nickerson repeatedly told other officers in Narcotics that plaintiff was " crazy," suffered from post-traumatic stress disorder (" PTSD" ), was a " PTSD motherfucker," heard " voices in his head," and could " go off at any time." (Pl. Dep. Tr. at 37-38.) Sergeant Nickerson frequently referred to plaintiff as a " retard," " psycho," and " killer." ( Id. at 37-38, 54.) In July 2010, when plaintiff asked Sergeant Nickerson to pass him a knife, Sergeant Nickerson responded, " I'll pass you the knife, you kill yourself . . . [Y]ou are not good for anything anyway." ( Id. at 62.) On another occasion, plaintiff asked Sergeant Nickerson for information regarding confiscated property, and Sergeant Nickerson responded, " What's the voices in your head say you PTSD motherfucker." ( Id. at 58.)

         Plaintiff acknowledged that Sergeant Nickerson was " the only one that gave [him] those comments" and " when [Sergeant Nickerson] wasn't there, he wasn't at work, [plaintiff] had peace because nobody else would say it." ( Id. at 64.) However, Officer Victoria Gibson, an officer

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with whom plaintiff previously had a romantic relationship, also engaged in harassing behavior. ( See id. at 45.) In early 2010, Officer Gibson printed pictures and posted them above the community desk where plaintiff regularly worked. ( See id. at 47.) One of the pictures depicted Pope John Paul II with the word " weirdo" handwritten on it. ( See id. ) Alongside the picture of the Pope, Officer Gibson had also posted a picture of a United States marine holding a rifle with the word " killer" handwritten on the photo. ( See id. ) The pictures, posted near a communal printer, were highly visible to plaintiff and his coworkers. ( See id. ) Lieutenant Fitzgerald was nearby when several officers were laughing at the pictures, and he " kind of chuckled and walked away." ( Id. at 80.) The offensive photographs remained posted on the community desk for several months and were only removed to prepare for an office inspection by the Internal Affairs Division. ( See id. at 79.)

         At one point, plaintiff asked Sergeant Nickerson to refrain from calling him names. ( See Pl. Dep. Tr. at 56-57.) Sergeant Nickerson responded that he was a sergeant and plaintiff could not talk to him that way. He also told plaintiff that " you know I'm just going to fuck with you." ( Id. at 57.) Plaintiff spoke with Sergeant Grant between May 2010 and August 2010 about Sergeant Nickerson's comments. ( See id. at 64.) Sergeant Grant advised plaintiff that he was " just internalizing it, just let it go." ( Id. at 65.) Plaintiff alleges that he was not able to let it go, and the harassment affected his employment and health. For example, in July 2010, plaintiff sat in the roll call room and avoided the Narcotics office to " get away from the beating." ( Id. at 63.) As a result of the harassment, plaintiff says he still suffers from headaches, nausea, loss of sleep, and anxiety, and regularly attends therapy. ( See id. at 85-86.)

         Following an instance when Sergeant Nickerson called plaintiff a " fucking retard," plaintiff reported the ongoing harassment to Lieutenant Fitzgerald on August 12, 2010. ( See id. at 77.) Lieutenant Fitzgerald said that he did not know why people disliked plaintiff and suggested that he take annual leave for two days. ( See id. at 74.) On August 13, 2010, plaintiff called Officer Jody Shegan, a union representative, and communicated some of Sergeant Nickerson's comments. ( See id. at 75.) Officer Shegan then informed the Internal Affairs Division of plaintiff's concerns, which upset plaintiff because he was worried about repercussions for complaining. ( See id. at 75-76.) Thereafter, plaintiff received a call from the Internal Affairs Division, and he discussed how he was being treated by Sergeant Nickerson. ( See id. at 76.)

         When plaintiff returned to work on August 17, 2010, he met with Captain Deville, Lieutenant Fitzgerald, and Officer Shegan. ( See id. at 96.) Captain Deville informed plaintiff that the Department would investigate plaintiff's allegations and asked him how he would handle future incidents of harassment from Sergeant Nickerson. ( See Pl. Dep. Tr. at 96, 98.) When plaintiff responded that he would write them down and inform Captain Deville, the Captain " shrugged his shoulders" and said " you are out . . . . you are out of the office." ( Id. at 98.) Plaintiff requested to be transferred to the Narcotics and Special Investigations Division (" NSID" ), but instead, he was transferred to the Auto Theft Unit, although he was permitted to continue to work on some narcotics cases. ( See id. at 102, 104.) Later that day, Captain Deville again met with plaintiff and asked him if he was going to file an Equal Employment Opportunity (" EEO" ) complaint. ( See id. 100-01.) Plaintiff responded that he intended to do so. ( See id. ) Plaintiff filed an internal EEO complaint with MPD's

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Internal Affairs Division and EEO Compliance Branch on August 22, 2010. ( See Pl.'s St. of Mat. Facts in Dispute at 9.)

         Plaintiff alleges that in retaliation for complaining in August 2010, Captain Deville transferred him to the Auto Theft Unit on the same day that he filed his EEO internal complaint. ( See Compl. ¶ 51.) Following the reassignment, plaintiff was under the direct supervision of Sergeant Drummond, but the rest of the chain of command remained the same. ( See Pl. Dep. Tr. at 104.) In the Auto Theft Unit, plaintiff participated in fewer search and arrest warrants. ( See id. at 187.) As a result, plaintiff appeared in court less, reducing his overtime pay significantly. ( See id. at 188.) In 2009, plaintiff earned between $75,000 and $80,000, but in 2011, plaintiff earned only $54,000. ( See id. )

         In the Auto Theft Unit, plaintiff no longer interacted frequently with Sergeant Nickerson, but he nonetheless alleges that he was still retaliated against in numerous ways for his EEO complaint. ( See id. at 103.) Specifically, he was required to wear a uniform even though he had previously been allowed to work in plain clothes. ( See id. ) He was also directed to drive a marked scout car instead of an unmarked car. ( See id. ) When plaintiff was allowed to drive an unmarked car, his vehicle lacked police lights or sirens. ( See id. at 128.) Plaintiff was not provided with a laptop for his vehicle even though some vehicles were equipped with two laptops if two officers rode together. ( See Pl.'s Dep. Tr. at 129.) Plaintiff alleges that he was assigned responsibilities below his seniority level, and his supervisors and fellow officers declined to inform him about assignments, Unit schedules, and search warrants. ( See id. at 134-37.) Plaintiff participated in the Robbery Intervention Program, but when the program was temporarily suspended, plaintiff was not permitted to resume his detail because of what one sergeant described as plaintiff's " administrative issues." ( Id. at 141-42.) Plaintiff was eventually transferred to the Crime Patrol Unit where he currently works under the supervision of Sergeant Williams, Captain Carrol, and Commander Contee. Plaintiff claims this was a demotion. ( See Compl. ¶ 56.)

         On March 11, 2011, plaintiff filed a discrimination claim against MPD with the D.C. Office of Human Rights (" DCOHR" ) alleging that he was subjected to a hostile work environment on account of his religion and retaliation. ( See Pl.'s St. of Mat. Facts in Dispute at 9.) The DCOHR determined that there was probable cause to believe that the District had subjected plaintiff to a hostile work environment because of his religion, but that there was no probable cause to support his retaliation claim. ( See id. at 10.)

         In his complaint, plaintiff alleges that defendant subjected him to discrimination and a hostile work environment because of his religion in violation of Title VII of the Civil Rights Act, 42 U.S.C. § § 2000e, et seq., and his prior military service in violation of the Uniformed Services Employment and Reemployment Rights Act (" USERRA" ), 38 U.S.C. § § 4301, et seq. Plaintiff also alleges that defendant retaliated against him for his protected activity and is liable for negligently retaining and supervising Sergeant Nickerson. Finally, plaintiff has brought discrimination, hostile work environment, and retaliation claims under the District of Columbia Human Rights Act, D.C. Code § § 2-1401, et seq., but has now dismissed those claims. ( See Opp. at 9 n.2.)

         In its motion for summary judgment, defendant argues that plaintiff (1) failed to exhaust his administrative remedies with respect to his Title VII discrimination and retaliation claims; (2) cannot prove a prima

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facie case for discrimination based on military service; (3) cannot prove a hostile work environment under Title VII; (4) cannot bring a hostile work environment claim under USERRA; (5) cannot prove a prima facie case for retaliation under Title VII and has not stated a claim for retaliation under USERRA; and (6) is precluded from bringing his negligence claim because it is preempted by Title VII.

         ANALYSIS

         I. STANDARD OF REVIEW

         Under Federal Civil Rule of Procedure 56, a motion for summary judgment shall be granted if the pleadings, discovery, and any affidavits show that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); s ee alsoAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " A genuine issue of material fact exists if the evidence, viewed in a light most favorable to the nonmoving party, could support a reasonable jury's verdict for the non-moving party." Brooks v. Grundmann, 748 F.3d 1273, 1276, 409 U.S. App.D.C. 299 (D.C. Cir. 2014) (quoting Hampton v. Vilsack, 685 F.3d 1096, 1099, 401 U.S. App.D.C. 472 (D.C. Cir. 2012)) (internal citation marks omitted). A moving party is thus entitled to summary judgment against " a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will ...


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