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Burford v. Yellen

United States District Court, District of Columbia

March 31, 2017



          ROSEMARY M. COLLYER Judge United States District Court

         DeBora Burford was a law enforcement officer in the Law Enforcement Unit of the Board of Governors of the Federal Reserve System from 2002 until February 2012. Ms. Burford alleges that she suffered discrimination due to her sex and age and was retaliated against after she asked the Board to investigate the alleged discrimination. She also complains that she was discharged because of false retaliatory charges. She sues Janet L. Yellen, Chair of the Board of Governors, in her official capacity. The Board moves to dismiss the Amended Complaint or, alternatively, for summary judgment.

         I. FACTS

         At the relevant time, Ms. Burford was approximately 50 years old. As a result, she was, and is, protected from employment discrimination based on her sex by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 (2012), and from discrimination based on her age by the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. Both laws also protect employees from retaliation because they engaged in activities in furtherance of equal employment opportunities. 42 U.S.C. § 2000e-3(a) (“Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings”); Gomez-Perez v. Potter, 553 U.S. 474, 479 (2008) (holding ADEA 29 U.S.C. § 633(a) precludes retaliation based on the filing of an age discrimination complaint).

         Ms. Burford was hired as an officer in the Law Enforcement Unit (LEU) of the Board in December 2002, after a reduction in force at the District of Columbia Department of Corrections (DC DOC) where she had previously been employed as a corrections officer. She gained the rank of senior law enforcement officer and served as a “lead” officer in 2009. While she had earlier filed charges alleging a lack of equal employment opportunity (EEO), this case concerns a series of workplace incidents that began in late 2009 and which Ms. Burford alleges constituted discrimination because of her sex, age, and EEO activity.

         Starting in December 2009, Ms. Burford complains that she was repeatedly confronted by a probationary female officer, Shandra Love, who put Ms. Burford in fear for her physical safety. The first of those incidents occurred on December 1, 2009, when Ms. Love, “in a seemingly unprovoked verbal assault, ” called Ms. Burford a “btch.” Am. Compl. ¶ 12. Ms. Love has admitted using the epithet to address Ms. Burford at a time when Ms. Love was talking to LEU Sergeant Frank Williams on her cell phone. Id. ¶ 13. “With her cell phone to her ear, Love took what appeared to be an aggressive fighter's stance while [Ms. Burford] sat inside the guard booth bracing for what could have [led] to a physical assault against her.” Id. ¶ 15. On a later date, Ms. Love “made unprovoked false accusations that [Ms. Burford] bumped her in the back . . . .” Id. ¶ 24. Ms. Burford alleges that a subsequent incident occurred when Ms. Love falsely claimed that when the two women were in the locker room, Ms. Burford “intentionally brushed [Ms. Love's] hair with her buttocks as Love leaned over her purse, ” and that Ms. Love then “engaged in a barrage of aggressive obscenities against [Ms. Burford], who in fear of physical attack, continued to face her locker and prepare for dayshift roll call.” Id. ¶¶ 28, 30. The Amended Complaint alleges that these “false accusations came after [Ms. Burford] wrote a statement to [the dayshift watch commander, Lieutenant Larence] Dublin alleging that Love was not checking the identifications of vehicle occupants [who] were attempting to enter the Board through the East Court, which was Love's primary responsibility.” Id. ¶ 25. Lt. Dublin allegedly did not investigate Ms. Burford's complaints about Ms. Love, and provided false testimony in the later EEO investigation. Id. ¶¶ 21, 22, 23. He also failed to discipline Ms. Love in a manner that Ms. Burford felt appropriate. See id. ¶¶ 18, 21, 23, 33. Both Lt. Dublin and Ms. Love were younger than 40 at the time of these incidents. Ms. Burford alleges that unidentified harassing conduct towards her from Ms. Love and/or Lt. Dublin “became a condition of [her] continued employment.” Id. ¶ 35.

         These confrontations with Ms. Love and Lt. Dublin's inaction led Ms. Burford to initiate internal EEO proceedings in August 2010, in which she alleged discrimination due to her sex and age. Id. ¶ 26. See also Id. ¶ 120 (alleging that “she filed her EEO complaint after LEU managers failed to address Love's aggressive and potentially violent behaviors”). These conflicts continued after Ms. Burford contacted an EEO Counselor at the Board. See Id. ¶ 36. The Amended Complaint alleges that Ms. Love and Lt. Dublin made false allegations against Ms. Burford during the EEO investigation, during which EEO Counselor Johanna Bruce also interviewed LEU Chief Billy Sauls and Senior Employee Relations Specialist Keisha Hargo, both of whom also allegedly gave false testimony detrimental to Ms. Burford. Id. ¶¶ 25, 26, 27, 28, 29, 38, 39. Ms. Burford further alleges that Ms. Love “admitted that she and Dublin were in constant communication with one another with regard to [Ms. Burford], and that the communication was personal in nature.” Id. ¶ 129.

         For approximately two months between August and October 2010, LEU Administrative Sergeant Michelle Tillery-Fuller consistently assigned Ms. Burford to daily posts that required Ms. Burford to stand for her work shift, carrying “the hefty UP-40 submachine gun, with the weapon's strap painfully digging into Plaintiff's shoulder, when no other LEU officers were forced to endure such abuse.” Id. ¶ 44. Ms. Burford alleges that, as a lead officer and one of only two women LEU leads, she was entitled to seated posts typically filled by lead officers, but which Sgt Tillery-Fuller assigned to male non-lead officers. Id. ¶¶ 46, 48. These standing assignments did not result in any decrease in Ms. Burford's pay or other benefits and did not constitute a demotion. Standing assignments are part of lead officer duties; Ms. Burford alleges, however, that she was assigned a disproportionate number of them on every shift for approximately two months, which “was not normal for any LEU officer.” Id. ¶ 44. She further alleges that she was “the only female lead officer meeting the ADEA's age limit criteria who had been removed from her lead officer position” and replaced with men who were not lead officers. Id. ¶ 48, and that she was “the only lead officer who had engaged in protected activity at the time of her removal from the Lead Officer Program.” Id. ¶ 49. Additionally, the Amended Complaint alleges that Sgt. Tillery-Fuller “stated in her deposition that she doesn't know why [Ms. Burford] wasn't assigned to lead posts” and “only admits to discriminating against [Ms. Burford] after [Sgt. Tillery-Fuller] bec[ame] aggressive and disturbingly upset with Ellen Opper-Weiner, ” then-counsel to Ms. Burford, during the Sergeant's deposition. Id. ¶ 50. Sgt. Tillery-Fuller “angrily” testified in deposition that she removed Ms. Burford “from the Lead Officer Program . . . because [Ms. Burford] was not communicating with officers, which were false allegations made only by Love and Dublin.” Id. ¶ 51. It is alleged that Sgt. Tillery-Fuller knew of Ms. Burford's EEO activities at that time. Id. . ¶ 40.

         In addition to the standing shift assignments, Ms. Burford alleges that she was discriminated and retaliated against when she was blamed for the release of a confidential document she had written for the Board's use to an outside attorney representing an employee suing the Agency. Id. ¶ 60. On August 26, 2010, Ms. Burford was aggressively questioned by Chief Sauls and Ms. Hardo for approximately an hour. Id. ¶ 66, 72. Both interrogators “claimed that it was [Ms. Burford] who released the document to the non Board [sic] attorney.” Id. Ms. Burford complains that Mr. Sauls and Ms. Hargo “threatened to obtain a warrant to seize [Ms. Burford's] home computer. [She] was also threatened with disciplinary action if she did not confess to disclosing the document to the non Board [sic] attorney when Sauls and Hargo both were aware that it was Sauls that committed the act he and Hargo were accusing [Ms. Burford] of committing.” Id. ¶ 67. Ms. Burford was not placed on administrative leave or otherwise disciplined following the interview and she was ultimately exonerated. Id. ¶ 75. She alleges, however, that it was Chief Sauls who had released the document to the Legal Department which, in turn, handed it over to the employee's outside counsel, and that Chief Sauls therefore had prior knowledge that Ms. Burford was not the source of the “leak” when he questioned her severely. According to the Amended Complaint, Ms. Burford “was a reasonable employee who found the retaliatory actions taken against her to be materially adverse” and therefore violative of Title VII and the ADEA. Id. ¶ 92.

         Ms. Burford requested EEO investigations of the above instances of alleged discrimination, and all were ultimately considered, but rejected, by the Equal Employment Opportunity Commission (EEOC) on September 13, 2015, in its review of an Administrative Judge's grant of summary judgment to the Agency. See Mot. to Dismiss Ex. A (EEOC Dec.) [Dkt. 17-1] at 2 (“Upon the required de novo review of the record, we find that the grant of summary judgment was proper.”).

         Ms. Burford alleges additional instances of discrimination beyond those considered by the EEOC. She alleges that her car was vandalized in September 2010 at her home in Waldorf, Maryland and a note was found that explicitly told her to stop her EEO activity. Am. Compl. ¶¶ 83, 84; see also Opp. [Dkt. 19] Ex. D (sign reading “Btch your car is just the beginning!!!! Stop the complaints at the Federal Reserve or else you will be next! I hope we are clear on this!”). A second car in Waldorf was also vandalized in September 2010; the second car belonged to former LEU Master Senior Officer Sabrina Bullock, who also had ongoing EEO activity at the Board. Am. Compl. ¶ 85. Ms. Burford alleges that Chief Sauls falsely reported to the Board's Office of Inspector General (OIG) and to Employee Relations that Ms. Burford had herself vandalized both vehicles. Id. ¶ 90.

         According to the Amended Complaint, Chief Sauls and OIG Senior Special Agent Albert Pleasant conspired “with malicious intent” in September 2010 to allege that Ms. Burford “had engaged in a fictitious cell phone spoofing scandal, ” that had caused her to be named as a suspect by law enforcement. Id. ¶ 91. As part of this conspiracy, Agent Pleasant is alleged to have unlawfully obtained Ms. Burford's personal cellular phone records that he and Chief Sauls then shared with non-law-enforcement personnel at the Board. It is further alleged that Agent Pleasant and Charles Country Sheriff's Detective Higgs banged on Ms. Burford's door at about 10:00 p.m. on May 23, 2011; Agent Pleasant attempted to enter by tugging on the storm door; Agent Pleasant reported this incident to the OIG by email; and Agent Pleasant unsuccessfully attempted to have Ms. Burford falsely prosecuted in Stafford County, the District of Columbia, and the District of Maryland “for the fictitiously alleged spoofing scandal.” Id. ¶¶ 97-101.

         Ms. Burford was terminated on December 8, 2011 for her purported involvement in the cell phone spoofing scandal and for the vandalism on her car and Ms. Bullock's vehicle. Id. ¶¶ 103&104. Her termination was carried out as an alleged “intentional act to humiliate” Ms. Burford, as it occurred where LEU officers reporting for roll call might have observed it. Id. ¶¶ 112-114. The stated reasons for her termination are alleged to be pretextual to hide retaliation. Id. ¶ 103. Although she was immediately placed on leave on December 8, 2011, the effective date of Ms. Burford's termination was February 29, 2012.

         Additionally, Ms. Burford argues that Board Senior Counsel John Kuray prevented Mses. Burford and Bullock from adding retaliatory car vandalism to their ongoing EEO complaints “due to the threatening notes referencing the Board that were found at the crime scenes.” Id. ¶ 109. She adds that Mr. Kuray “also prevented” her timely claim of wrongful termination “from being added to her ongoing EEO activity” even though it was “submitted to the Board by [her counsel] Ellen Opper-Weiner.” Id. ¶ 111.

         Finally, Ms. Burford alleges that Board employees retaliated against her by entering false and defamatory allegations in Ms. Burford's personnel file and then providing copies of that file, including the false and defamatory statements, to DC DOC, which prevented Ms. Burford from returning to employment with the Department of Corrections. Id. ¶¶ 115-119.

         Acting pro se, Ms. Burford now brings all claims before the Court. The Amended Complaint advances the following counts:

(Count 1) Violations of the ADEA, including harassment and retaliation allegedly committed by Ms. Love and Lt. Dublin (younger than age 40) and Admin. Sgt. Tillery-Fuller (over age 40), and discharge;
(Count 2) Sex-Based Discrimination in violation of Title VII, including harassment and retaliation allegedly committed by Ms. Love, Lt. Dublin and Admin. Sgt. Tillerly-Fuller, and discharge;
(Count 3) Disparate Treatment in violation of both Title VII and the ADEA, including a hostile work environment created by Ms. Love, Chief Dublin and Admin. Sgt. Tillery-Fuller; hostile interrogation by Chief Sauls and Ms. Hargo; release of her cell phone records by Chief Sauls and Agent Pleasant to other Board employees; and termination due to false allegations that Ms. Burford vandalized her own automobile and the automobile of a former Board employee;
(Count 4) Disparate Impact in violation of both Title VII and ADEA involving harsh name calling and various other illegal workplace hostilities;
(Count 5) Pervasive and Objectively Hostile Working Environment, involving deliberate aggression and hostility by Ms. Love, Lt. Dublin and Admin. Sgt. Tillery-Fuller; hostile interrogation by Chief Sauls and Ms. Hargo; dissemination of Ms. Burford's cellular records by Chief Sauls and Agent Pleasant; an effort by Agent Pleasant to force his way into Ms. Burford's home; vandalism of Ms. Burford's car; dissemination of confidential records by Ms. Hargo and Jade Mills-Little to the District of Columbia Department of Corrections and other prospective employers; and dissemination of Ms. Burford's confidential EEO file within the Board by Ms. Hargo and Ms. Mills-Little;
(Count 6) Retaliation Violations Under Title VII and ADEA, including false allegations by Ms. Love and Lt. Dublin;
(Count 7) Whistleblower Retaliation Under 18 U.S.C. § 1831j, involving Ms. Burford's disclosures of violations of clearly established law and abuses of authority that prompted “all of Plaintiff's allegations of retaliation contained within the complaint, ” Am. Compl. ¶ 258; and
(Count 8) Violations of the District of Columbia's Human Rights Act (DCHRA), DC Code § 2-1402.62 (2012), by numerous named and unnamed Board employees aiding and abetting one another “in orchestrating and executing a massive discriminatory and retaliatory scheme.” Am. Compl. ¶ 265.

         The Court construes Count 1 to allege age discrimination, id. ¶¶ 161, 171, 175; hostile work environment due to age, id. ¶¶ 163, 164, 165; and retaliation due to age, id., ¶ 175. The Court construes Count 2 to allege a hostile work environment due to sex, id., ¶¶ 182, 183, 184, 185, 188, 189, 191; retaliation due to sex id.; and wrongful termination due to sex. Id. ¶ 193. The Court construes Count 3 to allege disparate (less favorable) treatment due to age (ADEA), sex (Title VII), and retaliation, id. ¶ 199. The Court construes Count 4 to allege disparate impact because of age (ADEA) and sex (Title VII). The Court construes Count 5 to allege a hostile working environment because of age (ADEA), sex (Title VII), and retaliation. Id. ¶¶ 245, 246, 247, 248. The Court construes Count 6 to allege retaliation due to complaints of a hostile work environment under Title VII and the ADEA. Id. ¶ 229. The Court construes Count 7 to allege retaliation for whistleblower activities. Id. ¶¶ 257, 258. The Court construes Count 8 to allege that named and unnamed Board employees aided and abetted one another to discriminate and retaliate against Ms. Burford in violation of the DCHRA. Id. ¶¶ 265, 266.

         Defendant has filed a motion to dismiss. See Mot. to Dismiss [Dkt 17]. Ms. Burford opposes the motion [Dkt. 19] and the Board has replied [Dkt. 20]. Ms. Burford has also moved to strike the Board's Motion to Dismiss, [Dkt. 18], which the Board has opposed [Dkt. 21] and to which Ms. Burford has replied [Dkt. 23].

         II. ...

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