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Smith v. Ergo Solutions, LLC

United States District Court, District of Columbia

January 9, 2019

TWILA SMITH, et al., Plaintiffs,
v.
ERGO SOLUTIONS, LLC, et al. Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES United States District Judge

         Plaintiffs Twila Smith and Deirdra Gilliam Osborne filed this action against their former employer, Ergo Solutions, LLC (“Ergo”), and one of Ergo's owners, [1] George Brownlee, alleging sexual harassment. They seek equitable relief and damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the District of Columbia Human Rights Act (the “DCHRA”), D.C. Code § 2-1401 et seq. The parties have filed cross-motions for summary judgment. See Pls.' Mem. in Supp. of Their Mot. for Summ. J. (“Pls.' Mot.”) [ECF No. 87-1]; Defs.' Opp'n to Pls.' Mot. for Summ. J. & Defs.' Cross-Mot. for Summ. J. (“Defs.' Opp'n & Mot.”) [ECF No. 100]. Plaintiffs have also moved to strike two affidavits that defendants proffered in support of their motion for summary judgment. See Mot. to Strike [ECF No. 111]. For the reasons explained herein, the Court will deny plaintiffs' motions and grant in part and deny in part defendants' motion.

         BACKGROUND

         I. Ergo's Policies and Procedures

         Ergo is a private health care services company with four owners. George Brownlee 30(b)(6) Dep., Ex. 6 to Pls.' Mot. (“30(b)(6) Dep.”) [ECF Nos. 91-1, 91-2, 92-1] at 20:13-22, 78:1-6; Brownlee Dep. at 80:1-4. Beginning in 2007, Ergo had a formal employee policy and procedure manual, which included a “zero tolerance” sexual harassment policy. Jerry Warren Dep., Ex. 3 to Pls.' Mot. [ECF No. 88-3] at 10:6-11:7, 18:12-19:13; 30(b)(6) Dep. at 93:12-94:3. Under that policy, sexual harassment complaints were to be directed to the complainant's direct supervisor or to a corporate compliance officer. 30(b)(6) Dep. at 120:21-121:4, 121:22-122:8. The complainant and alleged harasser were to be physically separated during an investigation into alleged conduct, and an employee could be suspended for violating the policy. Id. at 131:1-11. The policy was revised in 2010.[2] Ergo employees testified that they were aware of the policy and received some sexual harassment training. Raphael Denbow Dep., Ex. 9 to Defs.' Opp'n & Mot. [ECF No. 100-10] at 16:3-17:1; Brooke Cawley Dep., Ex. 10 to Defs.' Opp'n & Mot. [ECF No. 100-11] at 9:15-11:16.

         An investigation into other employees' sexual harassment allegations at Ergo in November 2009 concluded that sexual harassment was occurring at Ergo, notwithstanding its sexual harassment policy. Hartman Letter Re: Investigation of Allegations of Potential Sexual Harassment (“Hartman Report”), Ex. 9 to Pls.' Mot. [ECF No. 93-1] at 1. The report concluded that “[i]n light of the totality of the allegations, it is more likely than not that it would ultimately be determined that one or more Ergo employees actually was the victim of sexual harassment in the workplace.” Id. at 6. The report also stated that “[c]learly, principals have felt little or no compunction about having operated outside the scope of Ergo's guidelines policies, ” and it “strongly recommend[ed] that Ergo revise its current sexual harassment policy.” Id. at 7-8. Jerry Warren, Ergo's director of human resources from 2007 to 2010, also testified in his deposition that, during his time at Ergo, he observed sexual harassment in the workplace, including instances where a relationship that was initially consensual became nonconsensual and harassing. Warren Dep. at 47:7-48:18. Smith knew of the policy but observed that “the owners paid no attention to it in their conduct.” Twila Smith Aff., Ex. 7 to Pl[s.'] Reply to Def[s.'] Opp'n to the Mot. for Summ. J. [ECF No. 109-1] ¶ 7. In contrast, Ergo co-owner Olu Ezeani testified that Ergo took sexual harassment complaints “very seriously.” Olu Ezeani Aff., Ex. 2 to Defs.' Opp'n & Mot. [ECF No. 100-3] ¶ 6.

         II. Facts Related to Twila Smith

         Smith began working at Ergo in October 2005 as an occupational therapist. Twila Smith Dep., Ex. 1 to Pls.' Mot. [ECF No. 88-1] at 16:18-20. Smith alleged that Brownlee and a coworker named Marvin Fairclough[3] subjected her to sexual harassment during her employment at Ergo. Id. at 38:18-39:9.

         A. Fairclough's Harassment of Smith

         Fairclough began “touching and grabbing [Smith's] private parts” and “rub[bing] up against” Smith in 2008, and his behavior occurred “frequently” and continued throughout Smith's time at the work site she shared with Fairclough.[4] Id. at 171:20-173:3, 176:14-17. Fairclough also sent a picture of his penis to Smith's cell phone. Id. at 173:19-174:4. Smith noted that “his behavior was consistent” in that he also groped and grabbed other women at their work site. Id. at 176:14-177:9. Smith never went out with Fairclough or sent any videos or photos to him via text message. Id. at 173:4-14, 176:9-13. Smith was not aware of Fairclough ever being disciplined for his behavior. Id. at 176:20-22.

         The parties dispute whether Smith ever complained of Fairclough's harassment. Smith stated that she complained about Fairclough to her supervisor, Brooke Cawley, “[m]ore than three times, ” but nothing was done and eventually she “just stopped complaining.” Id. at 172:2-21. Cawley stated that Smith never complained to him about sexual harassment and that he had never heard about Smith being sexually harassed in the workplace until this litigation. Cawley Dep. at 12:12-22.

         B. Brownlee's Alleged Harassment of Smith

         Smith and Brownlee agree that they had a relationship of a physical nature, beginning in 2006 or 2007 with what Smith characterized as “inappropriate touching or jokes and laughing it off type of things.” Smith Dep. at 39:17-22, 40:22-41:9. It is undisputed that over the years that followed, Brownlee called and texted Smith on her cell phone, took Smith out to lunch, touched Smith's genitals and breasts, grabbed her buttocks, and sent a photo of his penis to Smith's cell phone. Brownlee Dep. at 36:15-37:16, 43:8-14; Smith Dep. at 44:2-46:3, 62:10-64:16, 88:1- 91:4, 116:7-14. In response, Smith sent photos of her breasts and leg to Brownlee's work email in 2008. Brownlee Dep. at 45:20-46:8; Smith Dep. at 116:15-22; 120:1-19. Brownlee and Smith also visited a nightclub together, danced for approximately an hour, then moved to Smith's car, where they masturbated in each other's presence. Brownlee Dep. at 38:5-9; Defs.' Corrected Statement of Facts Not in Dispute (“Defs.' Statement of Undisputed Facts”) [ECF No. 114-1] ¶¶ 24, 25; Smith Dep. 105:12-108:9.

         The parties dispute whether some events happened as Smith has described them. Most notably, Smith testified that, while at a conference in Maryland on behalf of Ergo, Brownlee “tricked” her into walking into a stairwell; pushed her against a wall; said, “Come on, give me a kiss”; and then, over her objection, kissed her several times on the lips. Smith Dep. at 56:9-58:22. Brownlee denied that he ever attempted to kiss Smith. Brownlee Dep. at 38:10-21, 44:4-5.

         The parties also dispute the voluntariness of Smith's actions. Smith stated that she never kissed Brownlee voluntarily, or voluntarily had any sort of physical relationship with him. Smith Dep. at 85:17-86:6; see also id. at 44:2-46:5; 86:9-18. Smith said that Brownlee's texts were “inappropriate” and that his frequent physical contact generally made her “uncomfortable.” Id. at 62:10-64:16, 69:27-70:1, 75:2-10. Smith testified that Brownlee's sexual advances were unwanted; for example, when Brownlee attempted to touch her genitals while driving in the car on two occasions, she reported that she tried to pull his hand out of her pants. Id. at 93:18-95:7; see also id. at 100:1-12. Smith stated that “after a certain time” it became “too much” and that she “avoided him” at work. Id. at 64:11-16.

         The parties also disagree about whether Smith reported Brownlee's behavior to others.[5]Smith testified that she complained verbally to Cawley, Ezeani, Warren, and another supervisor, Raphael Denbow. Smith Dep. at 59:5-22, 61:5-16, 64:22-65:12, 71:2-17, 77:11-13, 79:16-21, 80:9-81:4, 121:20-21.[6] She believed that Denbow had also personally witnessed an incident in which Brownlee touched her genitals in public at a conference. Id. at 82:14-22. After many complaints, she concluded that it “was futile, so ultimately, [she] stopped complaining because [she] was getting backlash from it.” Id. at 77:7-10.

         Cawley and Ezeani denied that Smith ever complained. Cawley Dep. at 12:12-22; Ezeani Aff. ¶ 2. Warren acknowledged that Smith told him that Brownlee had sexually harassed her, but only after Warren had left Ergo. Warren Dep. at 54:13-55:17. Denbow testified in his deposition that Smith never accused Brownlee of sexual harassment “in those words, ” but he recalled that Smith told him “George just grabbed me” in a “playful” manner at a conference. Denbow Dep. at 20:16-21:14.

         Finally, the parties dispute whether Smith faced work-related repercussions for refusing Brownlee's advances. Brownlee never indicated that refusal to go to lunch, for example, would result in Smith being fired, being suspended, having her pay docked, or being denied bonuses, but Smith believed that he “implied” that she would not be promoted if she did not go to lunch with him. Smith Dep. at 47:6-48:3. Also, when she did not go to lunch with him she “would not be included in professional events and professional things” and was “isolated and alienated.” Id. at 48:13-18. A month after Brownlee allegedly tried to kiss her in a stairwell, Smith traveled to Las Vegas for a professional event where Brownlee allegedly told her she could not participate in events with the Ergo group because he was “upset that [Smith] had complained to someone” about the kiss. Id. at 55:1-56:3.

         Smith testified that Brownlee texted her asking for sex in 2010, [7] and she refused. Id. at 125:2-126:6. Approximately a week later, at some point in April or May 2010, Ergo suspended Smith for a week without pay, “supposedly” for allowing her occupational therapy license to expire. Id. at 125:22-127:12. Ergo then terminated Smith's employment a few months later, in July 2010, “allegedly for poor performance.” Smith Aff. ¶ 19; Smith Dep. at 18:1-7. Defendants contend that Smith was suspended and terminated for legitimate reasons related to allowing her occupational therapy license to expire, failing to submit timely patient notes, and exhibiting unprofessional behavior. Defs.' Statement of Undisputed Facts ¶¶ 29-32, 35, 52; Mem. Re: Twila Smith Termination, Ex. 12 to Defs.' Opp'n & Mot. [ECF No. 100-13] at 1.

         III. Facts Related to Deirdra (Gilliam) Osborne

         Osborne worked at Ergo as a speech pathologist from 2008 to 2011. Osborne Dep. at 16:18-20, 21:1-5. Like Smith, Osborne alleged that both Fairclough and Brownlee sexually harassed her during her time at Ergo. Id. at 35:11-21. Osborne resigned from Ergo in April 2011 to take a job for higher pay at another company. Id. at 142:11-143:19.

         A. Fairclough's Harassment of Osborne

         Fairclough sexually harassed Osborne from June or July 2010, when they began working at the same facility, until October or November 2010, when Ergo transferred Fairclough to another facility.[8] Id. at 112:22-114:4. Fairclough “would stand purposefully in front of the door, when [Osborne] had to maneuver [her]self to get out of [it], and try to touch [her], . . . saying [in]appropriate, sexual things, [and] asking for [her] phone number.” Id. at 114:5-12. He also tried once to kiss her while “blocking the doorway.” Id. at 116:16-22. Fairclough also employed “sexual innuendos, ” telling Osborne “how good it would be.” Id. at 115:15-20. Osborne never went out with Fairclough, texted him, called him, or otherwise engaged in a relationship with him. Id. at 115:21-116:12. Osborne complained to Brownlee about Fairclough's harassment, [9] and Brownlee told her that Fairclough would be moved to a different facility. Id. at 120:14-122:3. After the transfer, Fairclough's harassment stopped. Defs.' Statement of Undisputed Facts ¶ 84; Osborne Dep. at 126:6-18.

         B. Brownlee's Alleged Harassment of Osborne

         It is undisputed that Osborne and Brownlee had a sexual relationship and “went out . . . several times in 2010.” Defs.' Statement of Undisputed Facts ¶ 87; see Osborne Dep. at 46:1-6, 97:13-20. The parties agree about some contours of this sexual relationship. For example, Brownlee called and texted Osborne on her cell phone, asked her out to lunch, and had sexual intercourse with her in her home three times. Brownlee Dep. at 49:22, 50:1-51:6; Defs.' Statement of Undisputed Facts ¶¶ 88, 91-93; Osborne Dep. at 66:11-68:12, 69:21-71:13, 74:4-75:12. Osborne sent Brownlee a photo of herself in a bikini, characterized as reciprocation for a photo of Brownlee's penis sent to her cell phone. Osborne Dep. at 43:11-18, 153:12-20; Defs.' Statement of Undisputed Facts ¶ 95. Osborne also manually stimulated Brownlee's penis in a movie theater. Osborne Dep. at 105:10-17, 110:7-15; Defs.' Statement of Undisputed Facts ¶ 96. However, the parties dispute whether Brownlee initiated sex acts with Osborne in the workplace. Osborne Dep. at 61:3-63:14; Brownlee Dep. at 53:5-8.

         Although the parties agree that Osborne and Brownlee had a sexual relationship, they disagree about whether the relationship was coerced. For example, Osborne stated that if she failed to answer Brownlee's calls or return text messages, Brownlee would respond, “How are you not going to answer my phone calls? I'm the CEO.” Osborne Dep. at 77:6-9. Osborne also stated that Brownlee never directly threatened her job, but “he did possibly discuss a promotion with [her], ” he threatened that he could move her “to another building” where she would not be able to do the type of work that she valued, [10] and she felt overall “very pressured . . . to submit to him.” Id. at 73:16-74:1, 75:13-76:14. In contrast, Brownlee characterizes Osborne as a willing partner in their sexual relationship. Defs.' Opp'n & Mot. at 3-4.

         Osborne complained about Brownlee to a supervisor, Brian Eft, but then told him not to forward the complaint to human resources, reasoning that “[i]f [she didn't] respond [to Brownlee's advances], maybe it will go away.” Id. at 94:7-20. In late 2010, Osborne also mentioned being “uncomfortable” to Flanagan (without using Brownlee's name) but told Flanagan she did not want to formally lodge a complaint or to spur further investigation. Id. at 133:10-134:13, 135:14- 136:12; Flanagan Aff. ¶¶ 5-7. Osborne testified that she also complained to Cawley, but he denied ever hearing a complaint from Osborne. Osborne Dep. at 128:6-132:19; Cawley Dep. at 15:4-11.

         IV. Procedural History

         Smith and Osborne, along with another Ergo coworker who also alleged similar workplace misconduct, [11] filed a complaint and then an amended complaint in 2014. See Order, Apr. 6, 2016 [ECF No. 51] at 1. Smith, Osborne, and their co-plaintiff then moved to certify a class of Ergo employees subjected to sexual harassment. In March 2015, this Court denied in part and granted in part defendants' motion to dismiss and denied plaintiffs' motion to certify the class pending further pre-certification discovery. Smith v. Ergo Solutions, LLC, 306 F.R.D. 57, 68 (D.D.C. 2015). Smith and Osborne filed a second amended complaint, discovery commenced, the parties attempted settlement discussions, and the case was administratively stayed for several months. Order, Apr. 6, 2016, at 1. Smith and Osborne's supplemental third amended complaint followed, whittling the claims down to quid pro quo and hostile work environment sexual harassment claims under Title VII against Ergo and under the DCHRA against Ergo and against Brownlee in his individual capacity.[12] 3d Am. Compl. [ECF No. 52] ¶¶ 80-110; Order, Apr. 6, 2016, at 2. The parties then engaged in a lengthy discovery dispute. See Smith v. Ergo Solutions, LLC, Civil Action No. 14-382, 2018 WL 5810836 (D.D.C. Nov. 6, 2018).

         The parties have filed cross-motions for summary judgment, and plaintiffs have filed a motion to strike two affidavits that defendants offered in support of their combined motion for summary judgment and memorandum in opposition to plaintiffs' motion for summary judgment. These motions have been fully briefed and are now ripe for the Court's consideration.

         LEGAL STANDARD

         Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, ...


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