United States District Court, District of Columbia
D. BATES United States District Judge
Twila Smith and Deirdra Gilliam Osborne filed this action
against their former employer, Ergo Solutions, LLC
(“Ergo”), and one of Ergo's owners,
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.
Ergo's Policies and Procedures
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. 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
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.
Facts Related to Twila 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 subjected her to sexual harassment
during her employment at Ergo. Id. at 38:18-39:9.
Fairclough's Harassment of Smith
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. 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.
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.
Brownlee's Alleged Harassment of 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.
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
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
parties also disagree about whether Smith reported
Brownlee's behavior to others.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. 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.
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.
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.
testified that Brownlee texted her asking for sex in 2010,
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.
Facts Related to Deirdra (Gilliam) 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.
Fairclough's Harassment of Osborne
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. 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,
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
Brownlee's Alleged Harassment of Osborne
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.
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,
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.
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.
and Osborne, along with another Ergo coworker who also
alleged similar workplace misconduct,  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. 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).
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
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),