United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Kalisha Thomas brought this action against Securiguard, Inc.,
her former employer, claiming that she was subjected to
sexual harassment, discrimination, and retaliation, all in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e) et seq. (2012), and the
District of Columbia Human Rights Act (“DCHRA”),
D.C. Code § 2-1401 et seq. Securiguard is a
private contractor that provides security services at
buildings including federal office buildings. During her
employment with Securiguard, plaintiff worked as a Special
Police Officer (“SPO”) at the Thurgood Marshall
Federal Judiciary Building, home of the Administrative Office
of the United States Courts (“AOUSC”). Plaintiff
alleges that an employee of the Administrative Office, John
Glover, who was also stationed at the Marshall Building,
sexually harassed her on a near daily basis. She claims that
after she reported Glover’s conduct to her superiors,
she experienced additional discrimination and retaliation.
has moved for summary judgment on all counts. Def.’s
Mot. for Summ. J. [Dkt. # 20] (“Def.’s
Mot.”). It argues, among other things, that the conduct
at issue was not sufficiently severe or pervasive to create a
hostile work environment, and that it has supplied
legitimate, non- discriminatory reasons for all of the
actions it took. Def.’s Mem. in Supp. of Def.’s
Mot. [Dkt. # 20-3] (“Def.’s Mem.”).
Plaintiff opposed the motion. Pl.’s Opp. to
Def.’s Mot. [Dkt. # 24] (“Pl.’s
this is a close case, and plaintiff may face significant
challenges at trial, the Court will deny in part and grant in
part defendant’s motion for summary judgment since the
issues in dispute are questions of fact that must be decided
by a jury.
September 2015, Securiguard Inc. (“SGI” or
“defendant”) was awarded a contract to provide
physical security services at the Thurgood Marshall Federal
Judiciary Building (the “Marshall Building”),
located at One Columbus Circle, N.E., Washington, D.C. 20544.
Def.’s Statement of Undisputed Material Facts [Dkt. #
20-1] (“Def.’s SUMF”) ¶ 1. This
contract provided for both stationary and roving security
officers in the building. Id. ¶ 3.
Kalisha Thomas (“plaintiff” or
“Thomas”) was an armed SPO who had worked at the
Marshall Building since approximately 2011, under different
security companies. Plaintiff’s Statement of Facts
[Dkt. # 24-42] (“Pl.’s SF”) ¶ 2.
Before SGI, plaintiff was employed by U.S. Security
Associates. Def.’s SUMF ¶ 35. When she was
employed by U.S. Security Associates, she held a position
called “Victor 2” from which she would fill in as
a supervisor when needed, although this position did not
carry additional pay or benefits. Id. ¶ 42;
Dep. of Kalisha Thomas, Ex. 1 to Pl.’s Opp. [Dkt. #
24-1] (“Thomas Dep.”) at 84:19–85:5. The
Victor 2 position was not an official position under
SGI’s contract, although SGI continued to use the
title. Dep. of John Fitzgerald Glover, Ex. 17 to Pl.’s
Opp. [Dkt. # 24-17] (“Glover Dep.”) at
119:12–17; Dep. of Leslie Howard-Watts, Ex. 3 to
Pl.’s Opp. [Dkt. # 24-3] (“Howard-Watts
Dep.”) at 89:3–18; Dep. of Perry Delvin Shumake,
Ex. 5 to Pl.’s Opp. [Dkt. # 24-5] (“Shumake
Dep.”) at 69:9–70:3.
October 24, 2015, after SGI was awarded the contract, it
hired plaintiff as an incumbent security guard. Def.’s
SUMF ¶ 35. Her base pay rate upon transfer to SGI was
$26.90 per hour, and she received additional employee
benefits such as health and pension plan contributions.
Id. ¶ 38. When SGI hired plaintiff, it gave her
the SGI Employee Handbook and SGI policies on topics such as
employment discrimination and sexual harassment. Plaintiff
acknowledged the receipt of these materials on October 15,
2015. Def.’s SUMF ¶ 36. All SGI employees at the
Marshall Building were represented by the United Government
Security Officers of America International Union, Local 276
(“the Union”). Id. ¶ 34. Plaintiff
worked for SGI between October 24, 2015 and September 15,
2016. Id. ¶ 35; Decl. of Leslie Howard-Watts,
Ex. A to Def.’s Mot. [Dkt. # 20-4] (“Howard-Watts
Decl.”) at SGI 000612.
2001, John Glover has worked as a physical security
specialist for the AOUSC at the Marshall Building.
Def.’s SUMF ¶ 9. Glover was not an employee of
SGI. See Glover Dep. at 12:9–14. He served as
the liaison between the AOUSC and SGI and functioned as the
Contracting Officer’s Representative
(“COR”). Glover Dep. at 36:6–10. He was
supervised by Scott Ellermets, the Chief of the
Administrative Services Division. Id. at
area of responsibility was physical security, which entailed
purchasing physical equipment and overseeing the daily
operations of the physical security staff, including the
contractors. Id. at 29:15–21. He was also
tasked with enforcing policies and procedures, responding to
emergency incidents, and ensuring that the security staff
were performing in compliance with the contract.
Id.; Def.’s SUMF ¶ 18. As Glover put it,
in carrying out his responsibilities, he would physically
walk the areas of the building to ensure that security posts
were manned and performance deficiencies were kept to a
minimum. Glover Dep. At 30:9–32:18. Under SGI’s
contract with the AOUSC, SGI must report any disciplinary
actions taken against security personnel at the Marshall
Building to the COR. Def.’s SUMF ¶ 7.
November 30, 2015, SGI hired Major Tracey Hayes as the
Project Manager in charge of security at the AOUSC in the
Marshall Building. Aff. of Major Tracey Hayes, Ex. 7 to
Pl.’s Opp. [Dkt. # 24-7] (“Hayes Aff.”)
¶¶ 2, 4. She oversaw between forty-five and fifty
special police officers, three supervisory lieutenants, and
one captain. Id. ¶ 3. Hayes worked closely with
Glover – they met weekly to discuss the physical
security of the building. Hayes Aff. ¶ 5. During the
time plaintiff worked for SGI, Major Hayes was one of her
supervisors. Plaintiff also reported to Lieutenant Michelle
Lee-Anthony and Captain David Grogan. Thomas Dep. at
45:8–9 (indicating that Grogan was one of her
supervisors); id. at 59:10–11 (indicating
Lieutenant Lee-Anthony was one of her supervisors).
has known Glover since she started working at the Marshall
Building in approximately 2012. Thomas Dep. at
32:13–21. Plaintiff is openly gay, id. at
25:19–26:9, and she believes that others at the
Marshall Building knew she was gay. Id. at
30:21–31:15. She asserts that throughout the time she
was employed by SGI, Glover harassed her at least two to
three times a week. Id. at 52:17–53:20. The
harassment included referring to plaintiff as
“sir”; calling her a “man”; making
comments about how masculine or mannish she was; calling her
a “playboy” and commenting that she must have a
lot of girlfriends; and laughing at her while shaking his
head in a manner that made her feel uncomfortable.
Id. at 41:18–58:17, 68:14–71:20.
took over the Marshall Building contract, and plaintiff
became its employee at the end of October 2015. Def.’s
SUMF ¶ 35. Plaintiff states that she complained about
Glover’s conduct soon after SGI took over the contract
by informing Lieutenant Lee-Anthony and Captain Grogan.
Thomas Dep. at 44:22–47:17; see Lee-Anthony
Dep., Ex. 4 to Pl.’s Opp. [Dkt. # 24-4] (“Lee-
Anthony Dep.) at 41:8–43:13; Shumake Dep. at
99:10–14 (Grogan left SGI shortly after February 2016).
Plaintiff also testified that she complained about Glover to
the Project Manager, Major Hayes, on at least two occasions:
before January 15, 2016, and again on that date. Thomas Dep.
at 98:5–17, 274:5–11; Hayes Aff. ¶ 14
(meeting with Thomas occurred on Jan. 15, 2016).
January 15, 2016, Major Hayes decided to remove plaintiff
from the Victor 2 position. Hayes Aff. ¶ 14. Hayes
testified that there were several reasons for the removal:
the Victor 2 position would now require work on Fridays, when
plaintiff did not want to work; plaintiff had told Major
Hayes that she had a history with Glover and did not get
along with him; Glover and Lieutenant Michelle Lee-Anthony
had reported that plaintiff had a sarcastic demeanor on one
occasion; Major Hayes was of the view that removing plaintiff
from the position would reduce the interactions with Glover;
and Major Hayes was concerned that plaintiff could not
respect certain confidentiality rules. Id.; 2/11/16
Hayes Handwritten Note, Ex. 33 to Pl.’s Opp. [Dkt. #
24-33] (“Hayes’s Note”) at SGI 000163; Dep.
of Major Tracey Hayes, Ex. 6 to Pl.’s Opp. [Dkt. #
24-6] (“Hayes Dep.”) at 58:1–62:5.
Plaintiff would remain a Special Police Officer for the
Marshall Building, though.
filed an EEOC complaint on February 16, 2016, alleging
discrimination and retaliation based on sex. Notice of
Charge, Ex. 11 to Pl.’s Opp. [Dkt. # 24-11]
(“EEOC Compl.”). She wrote that she had been
harassed by Glover for years because of her sexuality, and
that she had been removed from the Victor 2 position at the
request of Glover. Id. SGI was notified about the
complaint on approximately February 17, 2016, when the EEOC
emailed the Notice of Charge to Leslie Howard-Watts,
SGI’s Human Resources Director. 2/17/16 Email from EEOC
to Howard-Watts, Ex. 12 to Pl.’s Opp. [Dkt. # 24-12].
The record does not indicate that SGI opened an official
investigation – there is some testimony that
Howard-Watts spoke to plaintiff about the allegations, and
Howard-Watts understood that the legal department was
informed. Howard-Watts Dep. at 75:8–77:13.
3, 2016, plaintiff sent an email to her Union Representative,
Brian Howard, in which she reiterated her complaints about
Glover and added that she believed Glover was trying to
“intimidate and provoke” her. Def.’s SUMF
¶ 52. She described a particular day, when Glover walked
by her post four times while laughing and shaking his head,
and she wrote that she did not feel comfortable in her
workplace. Howard-Watts Decl. at SGI 000266–67. On June
6, 2016, the email was forwarded to Howard-Watts who stated
that she would look into it. Id. at SGI 000265. The
Senior Operations Manager at SGI, Perry Shumake, reviewed
video footage from that day, but in his assessment, the video
did not substantiate the claims: it was either too blurry or
Glover was out of the frame. 6/7/16 Email from Shumake to
Howard-Watts, Ex. E to Def.’s Mot. [Dkt. # 20-8] at SGI
000374. SGI notes that Howard-Watts and Shumake interviewed
Glover and put his supervisor on notice of the allegations
against him. Howard-Watts Dep. at 160:22–62:13; see
also Glover Dep. at 93:3–94:2 (indicating that he
suggested that Shumake review the video tapes). Howard-Watts
notified the President and CEO of SGI, Patricia Marvil, of
the complaint. 6/6/16 Email from Howard-Watts to Marvil, Ex.
16 to Pl.’s Opp. [Dkt. # 24-16]. She also notified an
employee in the Fair Employment Practices Office at the
AOUSC. See Howard-Watts Decl. ¶ 4; Howard-Watts
Dep. at 126–27:14, 129:8–13.
10, 2016, Howard-Watts informed plaintiff that SGI would
transfer her to the Library of Congress,  and that her pay
rate would remain the same although SPOs at the Library of
Congress were generally paid less than those at the Marshall
Building. Thomas Dep. at 112:12– 113:16; Ex. C to
Def.’s Mot., Excerpts of Thomas Dep. & Attachments
[Dkt. # 20-6] (“Def.’s Ex. C”) at SGI
000384–85; Ex. D to Def.’s Mot., Excerpts of
Howard-Watts Dep. & Attachments [Dkt. # 20-7]
(“Def.’s Ex. D”) at SGI 000380. Plaintiff
took about a week to consider the decision and attended
training classes for the Library of Congress position,
Howard-Watts Decl. at SGI 000276–79, but she ultimately
decided that she did not want to transfer. Thomas Dep. at
129:9– 20; see Howard-Watts Decl. at SGI
30, 2016, plaintiff emailed Howard-Watts that she would pick
up her check and return her uniform, and stated: “For
the record, I did not resign.” Def.’s Ex. D at
SGI 000433 (“6/30/16 Howard-Watts Email”).
Howard-Watts responded, stating: “Refusing an
assignment that is comparable to what you are currently
working is the same as resigning. You are making the decision
to discontinue employment with SGI.” Id.
5, 2016, the Union filed a grievance on plaintiff’s
behalf based on her removal from the Marshall Building.
Howard-Watts Decl. at SGI 000281. On August 5, SGI and
plaintiff reached a settlement agreement, in which all claims
related to her employment were resolved, and plaintiff was
reinstated to the Marshall Building. Def.’s Ex. C at
SGI 000228–34 (“Settlement
Agreement”). Pursuant to the agreement, plaintiff
withdrew her EEOC charge on August 8. Request for Withdrawal
of Charge of Discrimination, Ex. F to Def.’s Mot. [Dkt.
August 9, 2016, the Human Resources Director, Howard-Watts,
informed Major Hayes that plaintiff had been reinstated and
that she was uniformed on that day. Howard-Watts Decl. at SGI
000284. On August 12, Howard-Watts informed Glover that
plaintiff had been reinstated. Id. at SGI 000215. On
August 17, Glover responded to the email, stating that a
“request to add her to the contractor database has been
placed” and that he would “schedule her for a
suitability check.” Howard Watts Decl. at SGI 000239;
Def.’s SUMF ¶ 93. The “suitability
check” was a requirement imposed by the AOUSC for all
officers assigned to the AOUSC location. Glover Dep. at
47:18– 21; Def.’s SUMF ¶ 94. All of
plaintiff’s fellow security guards underwent the
suitability determination. Thomas Dep. at 179:11–21.
Glover was not responsible for determining suitability; his
role was limited to scheduling the suitability background
checks with the Human Resources Department at the AOUSC.
Def.’s SUMF ¶ 97.
suitability evaluator in this case was Carla Harris, who
worked in Human Resources at the AOUSC. Id. ¶
99. She had never met plaintiff before. Id. ¶
100. As part of the evaluation, plaintiff had to fill out a
form entitled “Declaration for Federal
Employment” that asked a number of questions about her
background. Howard Watts Decl. at SGI 000258–59. On
that form, plaintiff answered “yes” to two
• During the last 5 years, have you been fired from any
job for any reason, did you quit after being told that you
would be fired, did you leave any job by mutual agreement
because of specific problems or were you debarred from
Federal employment by the Office of Personnel Management or
any other Federal agency?
• Are you delinquent on any Federal debt?
Id. She explained later in the form: “On June
17[, ] 2016 I was removed from [the Marshall Building]
because I refused to be transferred to another site by
Securiguard Inc. Securiguard did an automatic
September 14, 2016, the AOUSC faxed Securiguard an Employment
Verification form to fill out, asking for “clarifying
comments” regarding plaintiff’s separation from
SGI. SGI filled out one portion of the form, stating that
plaintiff was employed at SGI from “11/01/2015”
to “On leave 6/13/2016.” Id. at SGI
000256–57. The rest of the form was rubber stamped:
“COMPANY POLICY PRECLUDES PROVIDING ANY INFORMATION
OTHER THAN DATES OF EMPLOYMENT AND POSITIONS HELD.”
September 15, 2016, Harris of the AOUSC Human Resources
Department determined that plaintiff was unsuitable. Ex. G to
Def.’s Mot., Marvil Dep. Excerpts & Attachments
[Dkt. # 20-10] at SGI 000567; Howard-Watts Decl. at SGI
000248. Plaintiff called Harris to inquire about the basis
for her decision, and Harris informed her that it was because
she had been terminated in June of 2016. Howard-Watts Decl.
at SGI 000203–04. Plaintiff then asked the Human
Resources Director at SGI, Howard-Watts, to contact Harris to
clarify what had taken place at that time. Id.
September 21 and 23, Howard-Watts contacted Glover regarding
the suitability determination. She informed him that
plaintiff had not been terminated the previous June, but that
she had been placed on a leave of absence, and that if the
determination was made because the AOUSC thought she was
terminated, it was wrong and should be corrected.
Id. at SGI 000203. Glover responded that the
suitability adjudicator, in this case, Harris, “makes
the conclusive determination and the determination is not
subject to review, ” and that “[c]ontractors are
not guaranteed by policy to any specific due process.”
Id. at SGI 000250. Darlene Thomas, Harris’s
supervisor, Dep. of Carla Michele Harris, Ex. 28 to
Pl.’s Opp. [Dkt. # 24-28] (“Harris Dep.”)
at 26:17–27:10, contacted Howard-Watts, informing her
that they did not need any further information, and that the
“decision pertaining to her suitability will not be
revisited.” Howard-Watts Decl. at SGI 000202.
September 23, 2016, Howard-Watts informed plaintiff of the
AOUSC’s response, and stated that the action was now
beyond her control and that she would be unable to assist any
further. Id. at SGI 000201. That same day,
Howard-Watts sent a letter to plaintiff, stating that because
of her negative suitability determination, she was being
separated from Securiguard effective September 15, 2016.
Id. at SGI 000612.
alleges that in the Spring of 2017, she sought
defendant’s cooperation with providing documentation
that was needed for plaintiff to maintain her Armed Special
Police Officer license. Thomas Dep. at 147:12–149:14.
On April 25, 2017, union president Brian Howard asked
Howard-Watts to provide the transfer paperwork, and he avers
that Howard-Watts told him that she would speak with
plaintiff about it, Decl. of Brian Howard, Ex. 21 to
Pl.’s Opp. [Dkt. # 24-21] (“Howard Decl.”)
¶¶ 11–12, but Howard-Watts testified that she
was not aware of plaintiff’s request. Howard-Watts Dep.
at 167:12–169:17. The paperwork was not transferred,
and plaintiff alleges that because of defendant’s
failure, her license expired on May 31, 2017, and she was
required to re-apply, as if she had never had one before.
Thomas Dep. at 157:21–158:4.
January 22, 2018, plaintiff filed a lawsuit in this court
against Securiguard, alleging violations of Title VII and the
DCHRA, including hostile work environment, discrimination
based on sex and sexual orientation, and retaliation. Compl.
[Dkt. # 1] ¶¶ 38–52. On February 4, 2019, SGI
moved for summary judgment. Def.’s Mot.
judgment is appropriate “if the movant shows 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 informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat summary judgment, the non-moving
party must “designate specific facts showing that there
is a genuine issue for trial.” Id. at 324
(internal quotation marks omitted).
mere existence of a factual dispute is insufficient to
preclude summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986). A dispute is
“genuine” only if a reasonable fact-finder could
find for the non-moving party; a fact is
“material” only if it is capable of affecting the
outcome of the litigation. Id. at 248; Laningham
v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, the court must “view
the facts and draw reasonable inferences ‘in the light
most favorable to the party opposing the summary judgment
motion.’” Scott v. Harris, 550 U.S. 372,
378 (2007) (alterations omitted), quoting United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
The Federal Enclave Doctrine does not apply.
argues that the D.C. Human Rights Act is inapplicable to this
case because the events giving rise to the causes of action
took place in a federal government building that is a federal
enclave in which state laws do not apply. Defendant argues
that its motion for summary judgment should be granted as to
the DCHRA claims on this basis. Def.’s Mem. at 9.
Federal Enclave Doctrine finds its authority in the Supremacy
Clause of the Constitution:
[Congress shall have the power] [t]o exercise exclusive
Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards, and other
U.S. Const. art. I, § 8, cl. 17. In Goodyear Atomic
Corp. v. Miller, the Supreme Court explained that the
doctrine establishes that “a federally owned facility
performing a federal function is shielded from direct state
regulation, even though the federal function is carried out
by a private contractor, unless Congress clearly authorizes
such regulation.” 486 U.S. 174, 181 (1988).
Essentially, where Congress purchases land from a state, that
state loses legislative authority over these
“enclaves” unless reserved or authorized by
Congress. Id.; ITEL Corp. v. District of
Columbia, 448 A.2d 261, 264 (D.C. 1982) (noting mere
acquisition without state’s consent insufficient to
trigger enclave exemption). The purpose of the exemption is
to distance federal functions from excessive state influence
or interference. See Michael J. Malinowski,
Federal Enclaves and Local Law: Carving Out A Domestic
Violence Exception to Exclusive Legislative
Jurisdiction, 100 Yale L.J. 189, 193 (1990),
citing The Federalist No. 43, at 273 (J. Madison)
(C. Rossiter ed. 1961).
motion does not require the dismissal of the DCHRA counts.
First, it cites no authority holding that the DCHRA does not
apply to private employers working within a federal building.
The few cases defendant identifies all concern sites where
the state expressly consented to the transfer of property and
relinquished jurisdiction. See e.g., Vincent v.
Gen. Dynamics Corp., 427 F.Supp. 786, 795 (N.D. Tex.
1977) (Texas governor executed deed of cession recognizing
exclusive federal jurisdiction over parcels acquired from
City of Fort Worth for air force plant); see also
Sundaram v. Brookhaven Nat. Labs., 424 F.Supp.2d 545,
570 (E.D.N.Y. 2006) (where the federal government purchased a
research lab in the State of New York, and where the deed
granted exclusive federal jurisdiction over the land, the NY
state human rights law did not apply to activities that
occurred on the property).
more fundamentally, the District is not a state, and Congress
has, at least passively, authorized D.C. to regulate the
workplace. Its local laws are passed by the Council of the
District of Columbia, which was created by Congress under the
Home Rule Act in 1973. Congress delegated its legislative
authority to the Council, and it reserved for itself thirty
days to reject any proposed law before automatic passage.
See D.C. Code §§ 1-201.02(a),
1-206.02(c)(1) (2012). The District’s legislation is
thereby authorized by Congress. The federal enclave would
therefore not apply to exempt federal buildings from D.C.
argues that Congress restricted the Council from enacting any
law “which concerns the functions or property of
the United States or which is not restricted in its
application exclusively in or to the District.” D.C.
Code § 1-206.02(a)(3) (defendant’s emphasis). But
the DCHRA concerns neither the functions nor the property of
the United States – the law’s purpose is only to
“secure an end in the District of Columbia to
discrimination.” D.C. Code § 2-1401.01.
Furthermore, this provision of the D.C. Code was intended to
proscribe laws with potential national implication. See
District of Columbia v. Greater Washington Cent. Labor
Council, AFL-CIO, 442 A.2d 110, 116 (D.C. 1982) (noting
authors’ intent to safeguard national operations like
legislative administration and federal physical planning).
D.C. Court of Appeals noted in ITEL Corporation:
The District of Columbia is treated differently from federal
enclaves within state boundaries, such as various military
bases. Within state boundaries, federal enclaves are areas
owned by the federal government and purchased with the
consent of the state legislature. . . . [A]ll parts of the
District of Columbia are within exclusive congressional
jurisdiction, regardless of whether they are privately- or
federally-owned. If a presumption or implied exemption is to
be derived from Article I, it would have to apply to the
448 A.2d at 264. Such a result would surely be at odds with
the D.C. Council’s authority to pass local statutes.
Thus, defendant has not established that an employer’s
conduct at the Marshall Building is exempted from D.C. local
regulation, and plaintiff’s claims can proceed under
both the DCHRA and Title VII.
Discrimination based on gender stereotyping is actionable
under Title VII.
argues that plaintiff’s discrimination claims fail as a
matter of law because the D.C. Circuit has not ruled that
discrimination based upon sexual orientation or based on a
failure to conform to traditional gender stereotypes is
proscribed by Title VII. Def.’s Mem. at 10–12.
contrary to defendant’s contention, it is well
established that gender stereotyping can form the basis of a
discrimination claim under Title VII. In Price Waterhouse
v. Hopkins, the Supreme Court accepted the district
court’s finding that a woman had suffered
discrimination in the form of sex stereotyping when she was
not considered for partnership because she did not walk,
dress, and style herself in a traditional
“feminine” fashion. 490 U.S. 228, 235 (1989).
After Price Waterhouse, numerous federal courts
concluded that punishing employees for failure to conform to
sex stereotypes is actionable sex discrimination under Title
VII. See, e.g., Medina v. Income Support
Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“[A]
plaintiff may satisfy her evidentiary burden [under Title
VII] by showing that the harasser was acting to punish the
plaintiff's noncompliance with gender
stereotypes.”); Bibby v. Phila. Coca Cola Bottling
Co., 260 F.3d 257, 264 (3d Cir. 2001) (Title VII claim
is stated when “the harasser was acting to punish the
victim’s noncompliance with gender stereotypes”);
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864,
870 (9th Cir. 2001) (male plaintiff stated a Title VII claim
where he was harassed “for walking and carrying his
serving tray ‘like a woman’” –
i.e., for having feminine mannerisms); Higgins
v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261
n.4 (1st Cir. 1999) (“Just as a woman can ground an
action on a claim that men discriminated against her because
she did not meet stereotyped expectations of femininity, a
man can ground a claim on evidence that other men
discriminated against him because he did not meet
stereotypical expectations of masculinity.”); Doe
v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997)
(“[A] man who is harassed because his voice is soft,
his physique is slight, his hair is long, or because in some
other respect he . . . does not meet his coworkers’
idea of how men are to appear and behave, is harassed
‘because of’ his sex.”), vacated and
remanded on other grounds, 523 U.S. 1001 (1998).
in this district have also recognized that gender
stereotyping, regardless of sexual orientation, can be a
basis for Title VII discrimination. See Creese v.
District of Columbia, 281 F.Supp.3d 46, 53 (D.D.C.
2017); Holmes v. Univ. of the D.C., 244 F.Supp.3d
52, 65 (D.D.C. 2017); Terveer v. Billington, 34
F.Supp.3d 100, 116 (D.D.C. 2014); Robertson v.
Dodaro, 767 F.Supp.2d 185, 193 (D.D.C. 2011); Nuskey
v. Hochberg, 657 F.Supp.2d 47, 58 (D.D.C. 2009);
Kimmel v. Gallaudet Univ., 639 F.Supp.2d 34, 41
(D.D.C. 2009); Schroer v. Billington, 577 F.Supp.2d
293, 303 (D.D.C. 2008).
the D.C. Circuit has not yet addressed the question of
whether discrimination based on sexual orientation, standing
alone, is covered by Title VII,  the Court need not decide
the issue in this case because the discrimination alleged
falls squarely within the legally recognized category of
gender stereotyping discrimination. The comments forming the
basis of plaintiff’s claim all draw attention to a
perceived lack of “femininity” in accordance with
Glover’s standards. Thus, plaintiff may proceed with
her Title VII gender discrimination claims, and the Court
will not grant summary judgment in favor of the defendant on
Count I, plaintiff alleges that she was discriminated against
on the basis of her gender. A plaintiff establishes a
prima facie case of gender discrimination by showing
that “(1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of
discrimination.” Czekalski v. Peters, 475 F.3d
360, 364 (D.C. Cir. 2007).
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the Supreme Court set out a three-pronged burden
shifting framework to be used when analyzing discrimination
claims under Title VII. First, the employee must establish a
prima facie case of discrimination. If the employee
is able to do so, the burden shifts to the employer to
provide a legitimate, non-discriminatory reason for its
action. If the employer meets its burden, the burden shifts
back to the employee to prove that the reason stated was mere
pretext and that she suffered intentional discrimination.
Id. at 802– 04; Figueroa v. Pompeo,
923 F.3d 1078, 1086 (D.C. Cir. 2019). However,
[i]n a Title VII disparate-treatment suit where an employee
has suffered an adverse employment action and an employer has
asserted a legitimate, non-discriminatory reason for the
decision, the district court need not – and should
not – decide whether the plaintiff actually made
out a prima facie case under McDonnell Douglas.
Brady v. Office of Sergeant at Arms, 520 F.3d 490,
494 (D.C. Cir. 2008) (emphasis in original). Particularly at
summary judgment, the “general expectation [is] that .
. . the District Court will focus on the third prong.”
Figueroa, 923 F.3d at 1086.
where the employer has provided a legitimate
non-discriminatory reason for its action, the central
question becomes whether the employee produced sufficient
evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not
the actual reason and that the employer intentionally
discriminated against the plaintiff. The Court considers this
question “‘in light of the total circumstances of
the case, ’ asking ‘whether the jury could infer
discrimination from the combination of (1) the
plaintiff’s prima facie case; (2) any evidence
the plaintiff presents to attack the employer’s
proffered explanation for its actions; and (3) any further
evidence of discrimination that may be available to the
plaintiff . . . or any contrary evidence that may be
available to the employer.’” Evans v.
Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013), quoting
Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir.
alleges that five events amounted to adverse employment
actions on the part of SGI: (1) the loss of the Victor 2
position; (2) the removal from the Marshall Building; (3) the
placement on unpaid leave; (4) SGI’s role in the
suitability determination; and (5) the termination. Compl.
¶ 38; Pl.’s Opp. at 28.
Court finds that plaintiff may move forward with her
discrimination claim with respect to the first alleged
adverse action – the removal from the Victor 2
position. But as to the other four actions, plaintiff has
failed to come forward with any evidence of pretext or
Removal from the Victor 2 position
January 15, 2016, Major Hayes informed plaintiff that she was
no longer going to serve in the Victor 2 position. Hayes Aff.
¶ 14; Hayes’s Note at SGI 000163; Hayes Dep. at
58:8–61:21. Defendant argues that removal from the
Victor 2 position was not an adverse employment action,
because this position was essentially a “glorified
roving position” that was not an actual job
category. See Def.’s Mem. at
25–26; Def.’s Reply in Supp. of its Mot. to
Dismiss [Dkt. # 26] (“Def.’s Reply”) at
19–20. Plaintiff asserts that the Victor 2 position was
a “Lead Officer” position that included
supervisory responsibilities. Pl.’s Opp. at 1.
“reassignment with significantly different
responsibilities, or . . . a significant change in
benefits” generally indicates an adverse action.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998). The parties agree that the Victor 2 position did
not come with an increase in salary or ...