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Brokenborough v. District of Columbia

United States District Court, District of Columbia

February 17, 2017

BROKENBOROUGH, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.


          TANYA S. CHUTKAN, United States District Judge

         Plaintiff 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.


         Charnita 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.

         Thomas 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).

         A few 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).

         Following 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).

         Thomas 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 at 4).

         These 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).

         Thomas 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 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).


         A. Hostile Work Environment Claims

         Thomas 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 VII)).

         1. Exhaustion of Administrative Remedies

         The 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)).

         The 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.

         The 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 ...

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