United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
Paige Tucker brought this action under Title VII of the Civil
Rights Act of 1964 against her former employer the Federal
Emergency Management Agency ("FEMA" or
"Defendant"), which is part of the Department of
Homeland Security. Defendant terminated Plaintiffs employment
in March 2010 for "unacceptable performance."
Plaintiff contests Defendant's explanation, alleging that
Defendant (1) discriminated against her because of her
gender; (2) retaliated against her for reporting the sexually
harassing behavior of a colleague; and (3) subjected her to a
hostile work environment.
has moved for summary judgment on all claims. Having reviewed
the evidence, the court finds that a reasonable jury could
conclude that Defendant (1) discriminated against Plaintiff
because of her gender, and (2) retaliated against Plaintiff
for reporting her colleague's sexually harassing
behavior. On the other hand, the court finds that no
reasonable jury could conclude that Plaintiff faced a hostile
work environment at FEMA. The court therefore grants in part
and denies in part Defendant's Motion for Summary
Rule of Civil Procedure 56 provides that a court should grant
summary judgment if "there is no genuine dispute as to
any material fact and [the moving party] is entitled to
judgment as a matter of law." Fed. R. Civ. Pro. 56(a). A
material fact is one that is capable of affecting the outcome
of litigation. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
"mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, [ ] on which that
party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment "bears the initial
responsibility of informing the district court of the basis
for its motion" and identifying those portions of the
record that it believes "demonstrate the absence of a
genuine issue of material fact." Id. at 323.
the moving party has made an adequate showing that a fact
cannot be disputed, the burden shifts to the party opposing
summary judgment to "set forth specific facts showing
that there is a genuine issue for trial."
Anderson, 477 U.S. at 250 (citation and internal
quotation marks omitted) (footnote omitted). The nonmoving
party may oppose the motion using "any of the kinds of
evidentiary materials listed in Rule 56(c), except the mere
pleadings themselves, and it is from this list that one would
normally expect the nonmoving party to make the showing to
which [the Court has] referred." Celotex Corp.,
477 U.S. at 324. "The evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn
in his favor." Anderson, 477 U.S. at 255
(citation omitted). However, "[t]o defeat a motion for
summary judgment, the non-moving party must offer more than
mere unsupported allegations or denials." Dormu v.
District of Columbia, 795 F.Supp.2d 7, 17 (D.D.C. 2011)
(citing Celotex, 477 U.S. at 324). In other words,
if the non-movant's evidence is "merely
colorable" or "not significantly probative, "
summary judgment may be granted. Anderson, 477 U.S.
at 249-50. Summary judgment, then, is appropriate when the
nonmoving party fails to offer "evidence on which the
jury could reasonably find for the [non-movant]"
nutshell, taking the evidence in the light most favorable to
Plaintiff, the factual predicate for Plaintiffs claims is as
follows. In the spring of 2009, Plaintiff was a probationary
employee within FEMA's Disaster Reserve Workforce
Division. During the summer and early fall of 2009, one of
her co-workers, David Thompson, repeatedly engaged in acts of
sexual harassment directed at her and other women in the
office. Plaintiff first took her concerns about
Thompson's improper behavior to her supervisor, Richard
Rosene, who failed to take any corrective action. As
Thompson's harassing behavior continued, Plaintiff took
her complaints about Thompson to FEMA's security office
in September 2009. Thereafter, Rosene became overtly and
increasingly hostile towards Plaintiff. Most significantly,
in November 2009, Rosene gave Plaintiff a negative
performance review, only weeks after she had received a
commendation for her work. Plaintiff received a second
negative review from Rosene in January 2010, and Defendant
terminated Plaintiff approximately two months later.
summarily set forth the factual background, the court turns
to Plaintiffs claims and the specific evidence offered by the
parties concerning those claims.
Hostile Work Environment Claim
court begins with Plaintiffs hostile work environment claim.
To make out such a claim, Plaintiff must show that she was
subjected "to discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an
abusive working environment." Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(citation and internal quotation marks omitted). In deciding
whether the evidence meets that standard, "the court
looks to the totality of the circumstances, including the
frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an
employee's work performance." Id.; see also
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)
(whether an environment is "hostile" or
"abusive" can be determined only by looking at all
the circumstances). "In order to be actionable under the
statute, a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable
person would find hostile or abusive." Faragher v.
City of Boca Raton, 524 U.S. 775, 787 (1998); see
also Baird v. Gotbaum, 792 F.3d 166, 172 (D.C. Cir.
2015) ("[T]he standard for severity and pervasiveness is
... an objective one.") (citing Harris, 510
U.S. at 21).
contends that the actions and comments of her colleague,
David Thompson, created a hostile work environment. Compl.,
ECF No. 1, ¶¶ 51-60. Specifically, Plaintiff
testified that, beginning in approximately June 2009,
Thompson engaged in numerous incidents of inappropriate
behavior, including making comments to Plaintiff about her
clothes, perfume, and remarking that Plaintiffs necklace
"would hit right along [her] breast line." Pl's
Opp'n to Def's Mot. for Summ. J., ECF No. 18
[hereinafter Pl's Opp'n.], Ex. 4, Dep. of Paige
Tucker on March 28, 2012, ECF No. 18-5 [hereinafter Tucker
Dep. I.], at 23-25. According to Plaintiff, Thompson also
made comments about the physical characteristics of other
colleagues, directing them "[m]ostly toward female
staff." Id. at 24. Plaintiff heard through
another colleague of an incident in early September 2009,
during which Thompson, while with other FEMA employees
waiting to get their blood pressure checked, "was saying
things of a very sexual nature to everyone" and
"really upsetting everybody on site." Def's
Mot. for Summ. J., ECF No. 17 [hereinafter Def's Mot.],
Ex. C, Dep. of Paige Tucker, April 24, 2015, ECF No. 17-3
[hereinafter Tucker Dep. II], at 62. During that the same
incident, Thompson supposedly grabbed the arm of the female
nurse taking his blood pressure and held it without her
consent. Pl's Opp'n, Ex. 2, Dep. of Richard Rosene,
ECF No. 18-3 [hereinafter Rosene Dep.], at 44-46. Plaintiff