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Thomas v. Securiguard Inc.

United States District Court, District of Columbia

September 30, 2019

KALISHA THOMAS, Plaintiff,
v.
SECURIGUARD INC., Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Defendant 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 Opp.”).

         While 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.

         BACKGROUND

         In 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.

         Plaintiff 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.

         On 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.

         Since 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 23:1–7.

         Glover’s 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.

         On 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).

         Plaintiff 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.

         SGI 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).

         On 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.

         Plaintiff 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.

         On June 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.

         On June 10, 2016, Howard-Watts informed plaintiff that SGI would transfer her to the Library of Congress, [1] 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 000387.

         On June 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.

         On July 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”).[2] 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. # 20-9].

         On 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.

         The 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 questions:

• 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 resignation.” Id.

         On 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.” Id.

         On 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.

         On 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.

         On 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.

         Plaintiff 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.

         On 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.

         STANDARD OF REVIEW

         Summary 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).

         The 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).

         ANALYSIS

         I. The Federal Enclave Doctrine does not apply.

         Defendant 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.

         The 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 needful Buildings

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).

         Defendant’s 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).

         But 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. local law.

         Defendant 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).

         As the 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 entire District.

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.

         II. Discrimination based on gender stereotyping is actionable under Title VII.

         Defendant 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.

         But 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).

         Courts 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).

         While the D.C. Circuit has not yet addressed the question of whether discrimination based on sexual orientation, standing alone, is covered by Title VII, [3] 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 this basis.

         III. Discrimination

         In 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).[4]

         In 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.

         Thus, 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. 2012).

         Plaintiff 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.

         The 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 causation.

         a. Removal from the Victor 2 position

         On 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.[5] 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.

         A “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 ...


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