United States District Court, District of Columbia
Kessler United States District Judge.
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].
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. 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.
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
Burton's Initial Employment at HUD and Original Complaint
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.
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.
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.
Issues Arise between Burton and Stowe
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].
Incidents Leading to the 5-Day Suspension of Burton in
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].
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.
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].
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].
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.]
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].
Incidents Leading to the 30-Day Suspension of Burton in
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.
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].
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].
Proposal to Remove Burton and Her Subsequent
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.
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.  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.
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.
Burton's Ongoing Attempts to Raise the Issue of Alleged