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Kennedy v. National Railroad Passenger Corporation

United States District Court, D. Columbia

September 29, 2015

SHEILA KENNEDY, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant

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[Copyrighted Material Omitted]

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          SHEILA KENNEDY, an individual, Plaintiff, Pro se, Davie, FL.

         For NATIONAL RAILROAD PASSENGER CORPORATION, doing business as AMTRAK, Defendant: Andrew G. Sakallaris, LEAD ATTORNEY, MORGAN, LEWIS & BOCKIUS LLP, Washington, DC.

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         Memorandum Opinion

         BERYL A. HOWELL, United States District Judge.

         The plaintiff, Sheila Kennedy, who is proceeding pro se,[1] brings this action against her former employer, the National Railroad Passenger Corporation, d/b/a Amtrak (" Amtrak" ), claiming that she was subjected to sexual harassment in 2009 and then retaliation by multiple co-workers and supervisors at several job sites, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (" Title VII" ), and the D.C. Human Rights Act, D.C. Code § 2-1401.01, et seq. (" DCHRA" ). Compl. ¶ ¶ 1-2, 73-131, ECF No. 1. Amtrak contends that the plaintiff " struggled" to do her jobs and " when co-workers or managers pointed out her deficiencies, she responded by" asserting " charges of discrimination and mistreatment." Def.'s Mem. Supp. Mot. Summ. J. (" Def.'s Mem." ) at 1, ECF No. 35. Pending before the Court is Amtrak's motion for summary judgment. For the reasons discussed below, this motion is granted.

         I. BACKGROUND

         In opposing the pending motion for summary judgment, the plaintiff has not responded concisely to Amtrak's Statement of Material Undisputed Facts (" Def.'s SMF" ), ECF No. 35-2, as required by Local Civil Rule 7(h)(1) and as directed in this Court's Order, dated November 26, 2014, at 3, ECF No. 38, but instead has filed approximately four hundred pages of various documents, see Pl.'s Conclusion Def.'s Mot. Summ. J. (" Pl.'s Opp'n" ) Exs. A--R, ECF No. 36-1-20; Pl.'s Mot. Dismiss Def.'s Mot. Summ. J. (" Pl.'s Suppl. Opp'n" ), ECF No. 39, including nearly ninety pages of handwritten notes with varying

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degrees of legibility, see Pl.'s Opp'n Ex. O (" Pl.'s Handwritten Notes" ), ECF No. 36-17. The Court has nevertheless carefully considered these submitted materials in evaluating the parties' factual assertions and arguments, and the inferences that can be drawn in favor of the plaintiff as the non-moving party. The facts pertinent to the plaintiff's claims are summarized below, with citation to the exhibits submitted by both parties, followed by a brief overview of the procedural history.

         A. Factual History

         The plaintiff alleges that she was subjected to sexual harassment by one co-worker in 2009, and then retaliation by three different sets of co-workers and supervisors in three different jobs in two different cities over the span of four years. Her alleged experiences in each of these jobs are described below.

         1. Plaintiff's Job on Moving Passenger Trains in Washington, D.C.

         Following training for the job, the plaintiff was assigned, on April 14, 2008, to be an Amtrak Assistant Conductor working on moving passenger trains, which is called " Road" service. Def.'s SMF ¶ 1, 11. The duties for this job assignment included assisting passengers while they board and exit the trains, and collecting revenue from passengers, Def.'s Mem. at 1 n.2, with the " primary duty [] to ensure the safe operation of Amtrak's trains," id. at 1. During this assignment, the plaintiff alleges that a co-worker, Conductor Dwight McClurkin (" Co-Worker 1" ), committed four incidents of sexual harassment over the course of about seven months. Def.'s Mot. Summ. J. (" Def.'s Mot." ) Ex. D (" Pl. Dep." ) 16:13-17:3, 24:24-25:4, 30:17-22, ECF No. 35-8.

         The first incident occurred toward the end of 2008 or the beginning of 2009. Id. 16:22-25. The plaintiff alleges that Co-Worker 1 asked her about a club called Taboo and whether the plaintiff would go there with him, an invitation the plaintiff declined. Id. 19:15-18; 20:7-13; Def.'s Mot. Ex. J (" Pl.'s July 9, 2009, Email" ) at 1, ECF No. 35-14; Pl.'s Opp'n Ex. A (" Pl.'s February 2010 Letter to EEOC" ) at 6, ECF No. 36-1. The second incident occurred a few weeks later, when Co-Worker 1 allegedly again asked if the plaintiff had gotten the information regarding the club for him, Pl. Dep. 23:19-21, to which the plaintiff responded " no" and quickly walked away. Id. 23:22-24; see also Pl.'s July 9, 2009, Email at 1; Pl.'s February 2010 Letter to EEOC at 6.

         Approximately six months later, the plaintiff alleges that, on May 31, 2009, Co-Worker 1 asked her if she had a boyfriend. Pl. Dep. 28:24-29:12; Pl.'s July 9, 2009, Email at 1; Pl.'s February 2010 Letter to EEOC at 7. The plaintiff responded " no" and explained she was looking for someone who can keep up with her exercise regimen, which allegedly prompted Co-Worker 1 to say that he, too, can go a long time and that he was " long." Pl. Dep. 29:24-29:12; Pl.'s July 9, 2009, Email at 1; Pl.'s February 2010 Letter to EEOC at 6-7. After this incident, the plaintiff felt uncomfortable whenever Co-Worker 1 walked to her section of the train and looked at her. Pl.'s July 9, 2009, Email at 2; Pl.'s February 2010 Letter to EEOC at 7. Finally, the plaintiff alleges that, on July 4, 2009, Co-Worker 1 brushed up against her while she was collecting tickets. Pl. Dep. 36:4-13, 38:13-39:4; Pl.'s July 9, 2009, Email at 2; Pl.'s February 2010 Letter to EEOC at 7.

         The plaintiff did not report any of these four incidents when they occurred. Def.'s SMF ¶ 17. Instead, on July 5, 2009, the plaintiff allegedly confronted Co-Worker 1 about his sexually suggestive conduct and asked him to stop. Pl. Dep. 41:19-42:17;

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Pl.'s July 9, 2009, Email at 2; Pl's February 2010 Letter to EEOC at 7. Thereafter, Co-Worker 1 apparently stopped making any comments to the plaintiff that she perceived as sexual in nature but the plaintiff nonetheless alleges that Co-Worker 1 subsequently criticized her job performance, which made her feel uncomfortable. Pl.'s July 9, 2009, Email at 2; Pl's February 2010 Letter to EEOC at 8. The plaintiff cites instances in which Co-Worker 1 chided her for forgetting to collect tickets, for failing to find seats for passengers, and raising his voice once regarding cookie crumbs on the floor of a train. Pl.'s July 9, 2009, Email at 2; Pl's February 2010 Letter to EEOC at 7. In addition, on July 7, 2009, at the request of a family of four, the plaintiff turned two seats to face each other, in violation of safety standards, and when Co-Worker 1 asked her to restore the seats to a safe condition, she disobeyed his orders until compelled by a supervisor. Pl.'s July 9, 2009, Email at 2-3; Pl's February 2010 Letter to EEOC at 3-4.

         Shortly after the plaintiff was reprimanded by a supervisor for creating unsafe conditions for passengers, the plaintiff sent an email, on July 9, 2009, to Amtrak's Dispute Resolution Office (" DRO" ), summarizing the encounters she had with Co-Worker 1 that she believed were sexual harassment. Pl. Dep. 34:1-35:4. On July 10, 2009, the plaintiff attended a meeting with Co-Worker 1 and three supervisors to discuss the seat-turning incident, but did not mention any alleged sexual harassment. Id. 57:12-24. Although the supervisors recommended that Co-Worker 1 and the plaintiff work in separate cars to minimize contact between the two, id., the plaintiff allegedly had two more interactions with Co-Worker 1 in the beginning of August regarding the plaintiff's deficient work performance, Def.'s Mot. Ex. L (" DRO's Investigative Findings" ) at 3, ECF No. 35-16.

         Approximately one month after sending her email to the DRO and the meeting with her supervisors, the plaintiff notified her immediate supervisor, who is a woman, for the first time, on August 6, 2009, of her sexual harassment allegations. DRO's Investigative Findings at 7 n.8. The supervisor allegedly advised the plaintiff that she had been the subject of complaints regarding her own inappropriate behavior, such as showing her abdominal surgical scars to coworkers. Pl. Dep. 99:8-17. The next day, DRO informed the plaintiff that interviews with other coworkers regarding the sexual harassment allegations would be initiated. DRO's Investigative Findings at 1. The plaintiff requested that DRO stop investigating her sexual harassment charge, id., a request that the plaintiff reiterated on September 4, 2009, Def.'s Mot. Ex. M (" September 4, 2009, Email Exchange" ), ECF No. 35-17. Despite the plaintiff's request, the DRO investigator, who is a woman, continued the investigation because " Amtrak is obligated to investigate [sexual harassment] complaints when it becomes aware of them." Id.

         After interviewing the plaintiff and seven of her coworkers and supervisors, the DRO investigator found no evidence of sexual harassment or that the disagreements between the plaintiff and Co-Worker 1 were related to the plaintiff's alleged rejection of purported sexual advances, which could not be verified through other witnesses. DRO's Investigative Findings at 1, 8. Instead, three co-workers reported that the plaintiff engaged in inappropriate sexual conduct, such as making sexual comments about other coworkers and rubbing male coworkers' shoulders and heads. Id. at 6. Three coworkers cited the plaintiff's poor job performance as a reason for Co-Worker 1's fraught relationship with the plaintiff, id. at 5-7, and no supervisor witnesses had heard from the plaintiff

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about sexual harassment prior to the investigation, id. at 7. The DRO concluded that both the plaintiff and Co-Worker 1 engaged in inappropriate conversations, though not necessarily with each other, and so both were provided with a copy of Amtrak's sexual harassment policy to review. Id. at 9. DRO forwarded these findings to the plaintiff. Def.'s Mot. Ex. N (" November 2, 2009, DRO Letter to Pl." ), ECF No. 35-18.

         Finally, on October 4, 2009, the plaintiff alleges that she felt intimidated by Co-Worker 1 who watched her perform a brake test. Pl.'s February 2010 Letter to EEOC at 6. This was the last time the two worked together since, on October 26, 2009, the plaintiff voluntarily transferred to a new job assignment working on empty trains within Amtrak's terminals and maintenance facilities, an assignment called working in the " Yard." Pl. Dep. 77:16-78:9.

         2. Plaintiff's Job on Empty Passenger Trains in Washington, D.C.

         Shortly after transferring to the Yard, the plaintiff filed a complaint with the EEOC, on January 10, 2010, and subsequently, on March 16, 2010, filed a formal Charge of Discrimination with the EEOC and the D.C. Office of Human Rights, claiming sexual harassment and retaliation. Compl. ¶ 40-41.

         At her new assignment in the Yard, the plaintiff worked with a new set of supervisors and coworkers. Pl. Dep. 105:1-2; 114:2-14; Pl.'s Opp'n Ex. 1 (" Pl.'s Empl. Records" ) at 18, ECF No. 36-2. Here, too, the plaintiff's coworkers complained to supervisors about the plaintiff's poor job performance, after which her supervisors personally observed her and also found her performance deficient and unsafe. Def.'s Mot. Ex. B (" Broadus Decl." ) ¶ 6, ECF No. 35-6; Def.'s Mot. Ex. C (" Maldonado Decl." ) ¶ ¶ 5-6, ECF No. 35-7. As a result, the plaintiff was placed with a new Yard train crew, with co-workers who had more seniority and experience, and more time to train her. Broadus Decl. ¶ ¶ 8-9.

         The plaintiff felt that her work in the previous Yard crew had been good and attributed her transfer, not to the perceived need for her to obtain more training, but to a male co-worker, on the previous Yard crew, who purportedly did not want to work with her due to her sexual harassment complaint against Co-Worker 1 and because she did not condone his unsafe practices. Pl. Dep. 142:23-145:6; Compl. ¶ 44; Pl.'s Suppl. Opp'n at 8; Pl.'s Opp'n Ex. M (" Recording Trans." ) at 1, ECF No. 36-15. All parties agree that the plaintiff's performance did not improve with the new train crew. Def.'s Mot. Ex. A (" Smith Decl." ) ¶ 11, ECF No. 35-5; Pl. Dep. 143:24-144:17. As a result, on June 9, 2010, the plaintiff met with a senior supervisor and her union representative to discuss her performance deficiencies. Broadus Decl. ¶ 12; Smith Decl. Ex. 1 (" August 17, 2010 Supervisor Letter" ), ECF No. 35-5. During this meeting, the plaintiff agreed to remedial training. See August 17, 2010 Supervisor Letter.

         During the next three weeks, the plaintiff received remedial training that was observed by her supervisor, who noted that she did not have the basic skills needed to work in the Yard. See generally Broadus Decl. Ex. 1 (" T.E.S.T.S. Entries" ) ECF No. 35-6. Consequently, on July 1, 2010, the plaintiff was sent home because her work on the equipment was unsafe. Pl. Dep. 178:17-179:23. Amtrak then provided additional remedial training to the plaintiff in Wilmington, Delaware, where her two training supervisors, both women, observed that she was still unable to satisfactorily perform her job duties and that their " main concern is for her overall safety in the yard." Def.'s Mot. Ex. U (" Wilmington Eval." ) at 2, ECF No. 35-25.

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          On August 31, 2010, the plaintiff returned to her station in the Yard in Washington, D.C. and was advised at the beginning of her shift that she would be evaluated that night by her female supervisor. Pl.'s Opp'n Ex. L (" Pl.'s September 1, 2010, Letter to Amtrak President" ), ECF No. 36-14. As soon as the supervisor got on the engine, however, the plaintiff became ill from stress and immediately left work. Id. As a consequence, the plaintiff was never evaluated.

         On September 1, 2010, the plaintiff wrote a letter to the President of Amtrak complaining that her female supervisor in the Yard had harassed her because she had been labeled as a " snitch." Id. The letter recounted instances in which her supervisor stood over her, discussed switching her to another shift, told her that her coworkers did not want to work with her because she was unsafe, and marked her August 31, 2010 departure as an unexcused absence when she walked off her shift that night due to stress from the evaluation. Id.

         Amtrak notified the plaintiff of a formal investigation triggered by her conduct on August 31, 2010, when she avoided an evaluation by leaving and thereby failing to demonstrate that she was able to perform her duties as Assistant Conductor. Def.'s Mot. Ex. V (" Not. of Investigation" ), ECF No. 35-26. Following a hearing, the plaintiff was notified of her dismissal, effective October 14, 2010. Def.'s Mot. Ex. X (" November 16, 2011, Pub. L. Bd. Decision" ) at 2, ECF No. 35-28.[2] Within two months of her dismissal, the plaintiff filed, on December 16, 2010, a second Charge of Discrimination with the EEOC and the D.C. office of Human Rights based on what she believed was retaliation in the Yard for the previous sexual harassment complaint she made against Co-Worker 1. Compl. ¶ 55.

         The plaintiff appealed her termination both within Amtrak and to a Public Law Board, an external panel with jurisdiction to resolve disputes between carriers and employees under the Railway Labor Act, and, although the bases for her dismissal were affirmed twice, she was permitted to return to her position as an Assistant Conductor after more training. Def.'s Mot. Ex. W (" February 7, 2011, Amtrak Letter to Plaintiff" ) at 2-3, ECF No. 35-27; November 16, 2011, Pub. L. Bd. Decision at 5-6. The plaintiff accepted her reinstatement and, after additional training in Washington, D.C., voluntarily ...


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