United States District Court, District of Columbia
S. CHUTKAN, United States District Judge
Charnita Thomas brings this suit under Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. § 1983 for sexual
harassment and retaliation. (Am. Compl. ¶¶ 233-41,
249-64). Defendants District of Columbia and Pettiford both
moved for summary judgment. (ECF Nos. 104, 107). Upon
consideration of the District's and Pettiford's
motions, and Thomas's opposition, and for the reasons set
forth below, the court GRANTS IN PART and DENIES IN PART the
District's motion and DENIES Pettiford's motion.
Thomas has been a corrections officer with the DOC since
November 2006. (Am. Compl. ¶ 8). Defendants are the
District of Columbia and Joseph Pettiford, a Major and former
Deputy Warden at the DOC. (Id. ¶¶ 10-11).
Thomas, who began this suit with five co-plaintiffs who have
since settled, alleges that in the years since she began
working for the DOC, she experienced continuous abuse in the
form of sexual comments, propositions, and advances, followed
by acts of retaliation when she refused and complained.
alleges that this years-long pattern of sexual harassment
began shortly after she began working at the DOC, in February
or March 2007, when Pettiford summoned her to his office and
asked her to close the door, then stood close enough so that
his stomach touched her belt buckle and said “I've
been watching you through the cameras” and “you
bad as shit. I want you. Everybody wants you. Now, when are
you going to stop faking that shit and let me climb between
the sheets and get it in?” (Thomas Dep. (Pl. Ex. 2) at
96:16-97:2, 100:2-19). She rejected Pettiford's sexual
advance and left his office. (Id. at 100:2-22).
Afterwards, she felt shocked, numb, and scared, particularly
because Pettiford was her supervising officer at the DOC.
(Id. at 100:12-19). In Thomas's words,
“he's supposed to be [the] one that I go to for
help if something were to happen like this, ” so
“who could I go to?” (Id. at 101:15-17).
weeks later, according to Thomas and Ja'net Sheen,
another officer, Pettiford stopped the two of them in a
hallway and told them to call in sick the next day so he
could “see [them] get it in” and “join
in.” (Id. at 110:2-8; Sheen Dep. (Pl. Ex. 14)
at 31:21-32:8). Pettiford also told Thomas “if we were
together, me and you, we would be dangerous, ” and told
Sheen “you bowlegged, I'm sure [your fiancé]
digs into that pussy very well.” (Thomas Dep. at
109:19-21, 110:2-4; Sheen Dep. at 32:2-4). Both Thomas and
Sheen state that they walked away after these comments and
felt scared, so they decided to tell no one about the
incident. (Thomas Dep. at 111:2-4, 115:16-19, 111:10-21;
Sheen Dep. at 32:17-33: 8).
these encounters, Thomas avoided signing up for overtime
shifts in order to avoid being close to Pettiford's
office in the command center (Thomas Dep. at 117:12-120:5),
and eventually she requested and received a transfer to the
Juvenile Annex in a different building (Am. Compl.
¶¶ 82, 86-87). Thomas alleges that despite her
efforts to avoid him, Pettiford continued to make visits to
her post “on a regular basis, ” and would put his
hands on her shoulders and caress her back. (Thomas Dep. at
117:12-118:5; 120:3-4; 127:6-10, 8-19; 129:6-130:8;
126:13-15). He also allegedly repeatedly whispered into her
ear comments such as “you gonna make this hard for
yourself” and “[y]ou know what's up.”
(Id. at 122:3-18). These incidents continued for
years, and Thomas offered as a recent example that in May or
June of 2012 Pettiford went to her post in the Juvenile Annex
while she was wearing a sweater wrapped around her waist.
Pettiford said “you need to move that sweater and drop
it like it's hot.” (Id. at 126:5-8). Four
other female officers describe similar incidents.
(See Sheen Aff. (Pl. Ex. 15); Nipper Aff. (Pl. Ex.
23); Fields Aff. (Pl. Ex. 22); Nelson Aff. (Pl. Ex. 4)).
Moreover, when asked during his deposition whether he has
ever violated DOC's sexual harassment policy, Pettiford
replied “I probably have.” (Pettiford Dep. (Pl.
Ex. 3) at 91:20-94:22).
also alleges harassment from Sergeant Sheila Marr and
Sergeant Goldman Kinsey. Thomas alleges that in December
2007, Marr called to her, “[T]here go my baby . . .
that uniform don't do Thomas . . . no justice.”
(Thomas Dep. at 134:3-19, 135:6-11). Thomas alleges that Marr
periodically made other comments, including “you
don't know what you're missing” and “I
can make you feel better than a man” and
“don't knock it until you try it-you just might
like it.” (District Ex. B at 4). Most recently, in July
2013, Thomas states that Marr told her to “smack it,
flip it, rub it down, ” which she interpreted to be
referring to her genitals. (Thomas Dep. at 162:1-5; District
Ex. B at 4). Thomas recalls that in April 2013, Kinsey told
her that he, unlike her then-boyfriend, was “big and
thick.” (Thomas Dep. at 196:13-18, 198:4- 9; District
Ex. B at 4). He also made comments to Thomas such as
“you know I always wanted you” and
“you've always been my baby.” (District Ex. B
incidents went unreported for several years because,
according to Thomas, she felt that filing a complaint would
leave her physically unsafe, and because the senior officers
shared information about complaints and stuck together, so
she “didn't trust anybody.” (Thomas Dep. at
121:15-20). In September 2012, she informed the DOC Office of
Internal Affairs about the harassment during an interview.
(Am. Compl. ¶¶ 91-92; Def. Ex. 10). Her complaint
was referred to PREEMPT Corp., the external entity with which
DOC contracts to investigate allegations of sexual
harassment. (Id. ¶ 95; District Ex. P, R).
Thomas also filed a charge of discrimination with both the
D.C. Office of Human Rights (“DCOHR”) and the
U.S. Equal Employment Opportunity Commission
(“EEOC”) in August 2012. (Def. Ex. D, B). In
August 2013, the EEOC issued its Dismissal and Notice of
Right to Sue letter for Thomas's 2012 charge. (Def. Ex.
G). Thomas commenced this suit in November 2013, and later
amended her complaint in May 2014. Thomas filed an additional
charge with the DCOHR and EEOC in November 2014 and received
her Right to Sue letter, and she filed another charge in June
2015. (Def. Exs. H, I).
alleges that after she lodged her first complaint in 2012,
she experienced retaliation from those she accused of
harassment and others in the DOC, including Sergeant Kinsey
and Major Pettiford. (Thomas Dep. at 200:12-201:2; District
Ex. C at 5; July 22 e-mail chain, DC-000501 (Pl. Ex. 16);
August 2, 2013 e-mail chain, DC-01036 (Pl. Ex. 17); Am.
Compl. ¶ 100). She contends that due to the harassment
and retaliation, she experienced intense stress and anxiety.
She was diagnosed in July 2012 with acute stress disorder,
insomnia, and anxiety by Dr. Philip Briley, who recommended
that she “be assigned to a supervisor she feels safe
with.” (Pl. Ex. 35). Thomas was also treated by Dr.
Reginald Biggs, a psychiatrist, between August 2012 and
November 2014 for “frequent and severe anxiety and
depression” and “persistent insomnia with
psychomotor retardation and depressed mood.” (Pl. Ex.
19). Thomas took several leaves of absence from her
employment, including for eight to ten months in 2013,
allegedly due to her stress, anxiety, concern for her safety,
and to avoid continued harassment or retaliation. (Thomas
Dep. at 73:1-74:17). In May 2015, Thomas was diagnosed by Dr.
Lisa Piechowski, a psychologist, with psychological distress
consistent with a diagnosis of post-traumatic stress
disorder. (Piechowski Dep. (Pl. Ex. 20) at 23:18-21).
SUMMARY JUDGMENT STANDARD
judgment is appropriate where there is no disputed genuine
issue of material fact and the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In determining
whether a genuine issue of material fact exists, the court
must view all facts in the light most favorable to the
nonmoving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)). The movant must rely on record materials to
demonstrate the absence of any genuinely disputed issues of
material fact. Fed.R.Civ.P. 56(a); Celotex Corp.,
477 U.S. at 332. The nonmoving party, in response, must
present her own evidence beyond the pleadings to demonstrate
specific facts showing that there is a genuine issue for
trial. Celotex Corp., 477 U.S. at 324. A fact is
material if “a dispute over it might affect the outcome
of a suit, ” and an issue is genuine if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986)) (internal quotation marks omitted). The non-movant is
“required to provide evidence that would permit a
reasonable jury to find” in his or her favor.
Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.
Cir. 1987) (citations omitted).
Hostile Work Environment Claims
alleges that both the District of Columbia and Pettiford are
liable for creating a hostile work environment. Her claims
against the District arise under Title VII and 42 U.S.C.
§ 1983, and her claims against Pettiford arise only
under § 1983. (See Am. Compl. ¶¶
233-41 (Count II -§ 1983), 249-58 (Count IV - Title
Exhaustion of Administrative Remedies
District (though not Pettiford) argues that it is entitled to
summary judgment on Count IV because Thomas failed to timely
exhaust the necessary administrative remedies before bringing
suit. Title VII requires an aggrieved individual to first
file a charge with the EEOC and local agency within 300 days
of the unlawful employment practice before bringing suit. 42
U.S.C. § 2000e-5(e)(1), (f)(1); Lewis v. City of
Chicago, 560 U.S. 205, 210 (2010) (“Before
beginning a Title VII suit, a plaintiff must first file a
timely EEOC charge.”). The failure to exhaust
administrative remedies under Title VII is an affirmative
defense, so the District must establish by a preponderance of
the evidence that Thomas failed to exhaust her remedies.
See Mondy v. Sec'y of the Army, 845 F.2d 1051,
1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring) (citing
Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)).
District first argues that Thomas's EEOC charge fails to
explicitly allege a hostile work environment claim. It notes
that the charging document for her August 2012 claim only
checks the box for “retaliation” and
“lack[s] the words ‘hostile work environment,
'” and therefore the 2012 EEOC process only
exhausted the administrative remedies as to Thomas's
retaliation claim. The District further argues that
Thomas's November 2014 EEOC charge, which alleges ongoing
sexual harassment dating back to March 2007, may only serve
to timely exhaust those allegations that occurred no more
than 300 days prior to the charge. Finally, the District
argues that the 2012 charging documents are defective because
they state that the discrimination began and ended on October
2, 2012, suggesting the complaint was spurred by an isolated
incident, rather than ongoing harassment.
primary purpose of the exhaustion requirement is to provide
the EEOC and defendants with sufficient notice to begin the
investigative process. Park v. Howard Univ., 71 F.3d
904, 907 (D.C. Cir. 1995) (citations omitted). Therefore, the
exhaustion requirement “should not be construed to
place a heavy technical burden on individuals untrained in
negotiating procedural labyrinths.” Id.
(quoting Loe v. Heckler, 768 F.2d 409, 417 (D.C.
Cir. 1985) (internal quotation marks omitted). Because
exhaustion is not “a mere technicality, ”
however, a plaintiff's claims in her subsequent Title VII
suit are “limited in scope to claims that are like or
reasonably related to the allegations of the charge and
growing out of such allegations.” Id. (quoting
Cheek v. W. and S. Life Ins. Co., 31 F.3d 497, 500
(7th Cir. 1994)) (citation and internal quotation marks
omitted). In Park, the D.C. Circuit found that the
plaintiff had not exhausted her claim because her EEOC charge
failed to mention a hostile work environment claim and also
lacked “any factual allegations supporting such a
claim.” Id. at 908. Therefore, while