United States District Court, D. Columbia
[Copyrighted Material Omitted]
KENNEDY, an individual, Plaintiff, Pro se, Davie, FL.
NATIONAL RAILROAD PASSENGER CORPORATION, doing business as
AMTRAK, Defendant: Andrew G. Sakallaris, LEAD ATTORNEY,
MORGAN, LEWIS & BOCKIUS LLP, Washington, DC.
A. HOWELL, United States District Judge.
plaintiff, Sheila Kennedy, who is proceeding pro
se, 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.
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
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
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
Plaintiff's Job on Moving Passenger Trains in Washington,
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
Plaintiff's Job on Empty Passenger Trains in Washington,
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.
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.
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.
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.
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.
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.
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. 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.
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 ...