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Burton v. Donovan

United States District Court, District of Columbia

September 29, 2016

SHAUN DONOVAN, Secretary of U.S. Department of Housing and Urban Development, Defendant.


          Gladys Kessler United States District Judge.

         Plaintiff Sandra Burton ("Plaintiff, " "Burton") brings this lawsuit against the Secretary of the United States Department of Housing and Urban Development ("Defendant, " "Government, " or "HUD"). Plaintiff alleges two counts of retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e et seq. Amended Complaint ("AC") ¶¶ 34-44 [Dkt. No. 31].

         Plaintiff alleges she was retaliated against because she had previously complained of racial discrimination by a supervisor at HUD. See generally FAC. Plaintiff seeks to prove retaliation on the basis of both: 1) discrete, materially adverse actions taken by HUD, including multiple suspensions and her forced resignation, AC ¶¶ 37, 42; and 2) a hostile work environment.[1] AC ¶ 33. Plaintiff claims to have suffered severe emotional distress, mental anguish, and economic harm as a result of this retaliation and seeks $300, 000, plus interest, in compensatory damages for each count of retaliation. AC ¶¶ 39, 44. In addition, Plaintiff seeks attorney's fees and costs. Id.

         Defendant filed a Motion for Summary Judgment on December 7, 2015 ("Def.'s Mot."). [Dkt. No. 58]. Plaintiff filed an Opposition on January 11, 2016, [Dkt. No. 64], which she then corrected on January 13, 2016 ("Pl.'s Corr. Opp'n"). [Dkt. No. 65]. Defendant filed its Reply on February 26, 2016 ("Def.'s Reply"). [Dkt. No. 69]. Upon consideration of the Motion, Corrected Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is denied.

         I. Background

         A. Factual Background

         i. Burton's Initial Employment at HUD and Original Complaint of Discrimination

         Sandra Burton, a white woman, was hired by the United States Department of Housing and Urban Development (HUD) in 2006. AC ¶ 7 [Dkt. No. 31]. Initially, Burton worked as a Contract Specialist in the Office of the Chief Procurement Officer ("OCPO"). Id. In 2008, Burton filed a complaint ("2008 EEO Complaint") with HUD's Equal Employment Opportunity ("EEO") Office against her then-supervisor, Dana Long, accusing Ms. Long of discriminating against her on the basis of race. Id. ¶ 8.

         In February 2009, Burton and HUD entered into a settlement agreement ("2009 EEO Settlement") to resolve the 2008 EEO Complaint. AC ¶¶ 9, 10. Pursuant to the 2009 EEO Settlement, Burton was transferred to a new office within OCPO, placed under a new supervisor, and allowed to telework. Id. From November 2009 to June 2010, Jemine Bryon, Chief Procurement Officer in OCPO, was Burton's immediate supervisor in this new position. Id. ¶ 12.

         Beginning on or about June 8, 2010, Elie Stowe became Burton's immediate supervisor. Id. ¶ 13. Bryon became a senior supervisor in Burton's supervisory chain. Id. 17.

         ii. Issues Arise between Burton and Stowe

         Burton alleges that sometime in early August of 2010, Stowe asked to see a copy of the 2009 EEO Settlement. AC ¶ 14. Burton alleges that she and Stowe began to have problems shortly thereafter. For example, Burton alleges that, starting as early as August of 2010 and no later than September of 2010, Stowe began encouraging Burton to either retire or seek other employment, despite the fact that Burton had never expressed a desire to do either. Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No. 65-6 at pp. 47-49]. Burton also alleges that during this time period Stowe repeatedly told Burton that Bryon "hated" her. Id. [Dkt. No. 65-6 at p. 46]. Additionally, Burton alleges that beginning in late September Stowe began to falsely accuse Burton of not being at her assigned station and failing to answer calls while she was teleworking. Id. [Dkt. No. 65-6 at p. 47]. Burton further alleges that Stowe threatened to discipline her as a consequence. Id. Finally, Burton alleges that during this time period Stowe asked Burton whether she had retained an attorney. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at p. 11].

         iii. Incidents Leading to the 5-Day Suspension of Burton in 2011

         On August 25, 2010, a dispute arose between Burton and another colleague, Erma Ellis-Stewart, Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No.65-6 at pp. 54-55]; the exact nature of this dispute is unclear. Id. According to Defendant, Burton behaved in an unprofessional manner by "interrogating" Ms. Ellis-Stewart. Ex. 7 to Pl.'s Corr. Opp'n [Dkt. No. 65-4 at p. 15]. According to Burton, it was Ms. Ellis-Stewart who yelled and then made a false report to management regarding Burton's behavior. Ex. 26 to Pl.'s Corr. Opp'n [Dkt. No. 65-6 at pp. 54-55]. Burton alleges that Stowe and Bryon then demanded that she document her description of the incident in writing, and that when she declined to do so, Stowe threatened that she was in even "bigger trouble." Id. [Dkt. No. 65-6 at p. 55].

         On November 17 and 18, 2010, another series of incidents occurred between Burton and Stowe. On November 17, Stowe called Burton into her office to discuss Burton's practice of copying senior managers on emails. AC ¶ 17. The Government asserts that this was in violation of a directive Stowe had previously given Burton to refrain from doing so. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at p. 5]. From here, Stowe and Burton's versions of events diverge dramatically.

         Burton alleges that Stowe berated her, yelling loudly, cursing, and telling Burton "I got you now." Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at pp. 12-131; see also Ex. 2 to Pl.'s Corr. Opp'n [Dkt. No. 65-4 at pp. 32-37]. Burton alleges that she remained calm throughout this encounter. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at pp. 12-13].

         The Government tells a quite different tale. In a document entitled "Statement of Facts" and drafted by Stowe on November 17, 2010, she recounts that it was Burton who yelled, cursed, and acted in an unprofessional and insubordinate manner. Stowe claimed that, in contrast, she was the one who remained calm throughout the encounter. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. #65-5 at p. 5].

         The next day, November 18, 2010, a series of emails were exchanged in which Stowe asked Burton to complete certain assignments. Ex. 8 to Pl.'s Corr. Opp'n, [Dkt. No. #65-5 at pp. 6-8]. In her responses to Stowe, Burton again copied senior managers, specifically Keith Surber and Bryon. Id. Burton's responses also accused Stowe of "lying" and engaging in "abusive behavior, " and suggested that Stowe, rather than Burton, needed to be disciplined in some manner. Id. [Dkt. No. 65-5 at p. 8.]

         Later that same day, Bryon issued a Notification of Administrative Leave and Enforced Leave, placing Burton on administrative leave for three days and enforced leave for 14 days. Ex. 7 to Pl.'s Corr. Opp'n [Dkt. No. 65-4 at pp. 158 - 159]. As justification for this action, Bryon relied on: Stowe's account of Burton's conduct in the November 17 meeting, where she purportedly "engaged in a heated verbal altercation" with Stowe and was "extremely physically demonstrative, in a threatening manner"; the November 18 emails, in which Burton continued copying senior management and called Stowe a liar; and the August 25 incident with Ms. Ellis-Stewart. hi Bryon concluded that Burton had engaged in repeated unprofessional and insubordinate conduct and that her continued "presence in the workplace may present an immediate threat to the health and safety of coworkers." Id. On December 16, 2010, Stowe issued a Proposal to Suspend Burton for five days. Ex. 8 to Pl.'s Corr. Opp'n [Dkt. No. 65-5 at pp. 2-3]. On January 31, 2011, Bryon upheld Stowe's Proposal, suspended Burton for five days, and also issued her a Memorandum of Counseling. Ex. 5 to Def.'s Mot. [Dkt. No. 59-4]; Ex. 7 to Def.'s Mot. [Dkt. No. 59-6]. Both the Proposal to Suspend and the Suspension were based primarily on Stowe's account of Burton's allegedly unprofessional conduct in the November 17. Ex. 4 to Def.'s Mot. [Dkt. No. #59-3]; Ex. 5 to Def.'s Mot. [Dkt. No. #59-4].

         iv. Incidents Leading to the 30-Day Suspension of Burton in 2011

         Over the course of February 14, 15, and 24, 2011, another series of incidents transpired between Stowe and Burton, which led to Burton being suspended for 30 days. Ex. 8 to Def.'s Mot. [Dkt. No. 59-7]. In a series of emails exchanged between Burton and Stowe on February 14, 2011, Stowe assigned Burton a time-sensitive task that was to be completed by the close of business. Id. [Dkt. No. 59-7 at pp. 6-9]. Burton refused to work on it. Id. The next day, with the project apparently still incomplete, Stowe denied Burton's request for leave. Nonetheless, Burton took leave to attend to unspecified appointments. Id. Asa result, Stowe determined that Burton was Absent Without Leave ("AWOL"). 14 [Dkt. No. 59-7 at pp. 2-3]. Stowe alleges that, in response, Burton twice came to her office on February 24, 2011, and once again loudly berated her. Id.

         As with the previous incidents in November 2010, Burton provides a wholly divergent account of what transpired. Burton claims: she attempted to complete the project assigned to her on February 14; that given its complexity, it was not possible to complete it within the originally specified timeframe; she communicated this to Stowe, and they orally agreed that Burton would complete it by February 15; and that Burton successfully did so. Ex. 10 to Pl.'s Corr. Opp'n [Dkt. No. 65-5 at pp. 27-28]. Similarly, Burton claims that her leave request was orally granted by Stowe on February 14, and that Stowe reneged on their agreement the next morning for the purpose of finding her AWOL. Id. [Dkt. No. 65-5 at p. 29]. Finally, Burton denies that she yelled or cursed at Stowe on February 24, and alleges that Stowe's account of their conversations that day is false. Id., [Dkt. No. 65-5 at pp. 31-32].

         On March 9, 2011, Stowe proposed suspending Burton for 30 days on the basis of these incidents, charging that she failed to follow a lawful order, that she was AWOL, and that she was unprofessional in her conduct and language. Ex. 8 to Def.'s Mot. [Dkt. No. 59-7 at pp. 2-5]. Subsequently, on May 8, 2011, Bryon upheld the Proposal to Suspend Burton for 30 days. Ex. 9 to Def.'s Mot. [Dkt. No. 59-8]. In her decision, Bryon sustained each of the charges made by Stowe. Id. [Dkt. No. 59-8 at 3].

         v. Proposal to Remove Burton and Her Subsequent Resignation

         At some point following Stowe's March 9, 2011 issuance of the Proposal to Suspend Burton for 30 days, David Blocker replaced Stowe as Burton's direct supervisor. See AC ¶ 32. The record contains a number of email exchanges from July 2011 among Burton, Blocker, and other HUD employees, in which Burton copies individuals outside her office, including her attorney, despite previous instructions not to do so. Ex. 10 to Def.'s Mot. [Dkt. No. 59-9 at pp. 10-26]. In a number of other email exchanges between Burton and Blocker, Blocker appears to make some request of Burton, which Burton refuses to comply with. Id.

         On September 22, 2011, Blocker issued a Proposal to Remove Burton from her position at HUD. Ex. 10 to Def.'s Mot. [Dkt. No. 59-9]. Relying on the July 2011 emails, Blocker accused Burton of failing to follow instructions and conduct unbecoming a federal employee. Id. In light of her past disciplinary record, Blocker proposed removing her from federal employment. Id. Blocker stated that he considered the Douglas factors in determining that removal was appropriate. [2] Id. (citing Douglas v. Veterans Admin., 5 M.S.P.R. 280 (M.S.P.B. 1981)). Burton was placed on indefinite administrative leave the same day. Id.

         Before she could be removed from her position, Burton resigned. Complaint ¶ 33; Ex. 12 to Def.'s Mot. [Dkt. No. 58-11]. Subsequently, on January 9, 2012, Keith Surber, a senior manager within OCPO, ratified Blocker's Proposal to Remove Burton. Ex. 11 to Def.'s Mot. Again, this decision purported to apply the Douglas factors. Id.

         vi. Burton's Ongoing Attempts to Raise the Issue of Alleged ...

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