United States District Court, District of Columbia
Document No. 13
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS AND MOTION FOR PARTIAL
Rudolph Contreras United States District Judge.
Allen brings this employment discrimination action against
Steven Mnuchin, the Secretary of the Treasury, in his
official capacity. Ms. Allen alleges that her employer, the
United States Bureau of Engraving and Printing
(“BEP”), discriminated against her, retaliated
against her on the basis of her Equal Employment Opportunity
(“EEO”) complaints, unfairly denied her two
promotions, and created a hostile work environment in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C. §
2000e, et seq.
pre-answer motion, BEP moves to dismiss Plaintiff's
retaliation claim (Count One), disparate treatment claim
(Count Three), harassment claim (Count Four), and race and
sex discrimination claim (Count Six) as duplicative of Ms.
Allen's hostile work environment claim (Count Two).
See Def.'s Mot. Dismiss and Mot. Part. Summ. J.,
ECF No. 13. BEP also moves for partial summary judgment on
Ms. Allen's denial of equal employment opportunity claim
(Count Five). See Id. Because Ms. Allen has
voluntarily withdrawn her denial of equal employment
opportunity claim, including two non-promotion allegations,
see Pl. Opp'n, ECF No. 14, the Court will
dismiss that claim. And to the extent that Ms. Allen's
claim of race and sex discrimination does not present any
unique factual allegations or legal theories, the Court will
partially dismiss that claim. But because Ms. Allen's
Amended Complaint states a plausible claim to relief, see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), for,
respectively, 1) retaliatory hostile work environment; 2)
hostile work environment due to race discrimination; and 3)
hostile work environment due to gender/sex discrimination,
the Court will deny BEP's motion to dismiss
Plaintiff's other claims. In so ruling, the Court cautions
that, for each of these hostile work environment claims,
parties' future submissions must provide more
analytically crisp arguments that connect the alleged facts
or rebuttals to each element of the hostile work environment
legal standard articulated by the D.C. Circuit in Baird
v. Gotbaum (“Baird I”), 662 F.3d
1246, 1248 (D.C. Cir. 2011) and Baird v. Gotbaum
(“Baird II”), 792 F.3d 166, 168 (D.C.
Allen is an employee at the United States Department of the
Treasury's Bureau of Engraving and Printing. Am. Compl.
¶ 12, ECF No. 12. Ms. Allen self-identifies as an
African-American woman with dark complexion, id. at
¶ 10, and asserts ongoing workplace discrimination on
the basis of these characteristics. She avers that a series
of problematic encounters with a white male co-worker, Andrew
Wilson, subjected her to abusive and dangerous workplace
conditions and argues that BEP's failure to redress Mr.
Wilson's problematic behavior created a hostile work
environment. Id. at ¶ 1. Plaintiff further
contends that BEP's actions represent disparate treatment
of Ms. Allen and other similarly situated employees on the
basis of race and sex, see Id. at ¶¶ 1,
10, and that BEP retaliated against her when she reported Mr.
Wilson's discriminatory behavior and when she complained
about the responses of her supervisors, Julie Evans and Dr.
G. Gupta, see Id. at ¶¶ 4, 10-11.
first reported incident between Plaintiff and Mr. Wilson
occurred on April 30, 2008. Id. at ¶ 12. That
day, Ms. Allen was working with another African-American
female when Mr. Wilson kicked a trashcan toward Ms.
Allen's head while yelling at her. Id. at
¶¶ 12-14; see also Compl. Ex. 4, ECF No.
1-4. Ms. Allen reported the incident to her immediate
supervisor, Julie Evans, and the supervising manager, Dr. G.
Gupta, as well as to BEP's Police Department and to its
Equal Employment Opportunity Department. Am. Compl. at ¶
16. Ms. Evans did not remove Mr. Wilson from Plaintiff's
physical proximity, as Ms. Allen requested, and instead moved
Mr. Wilson “around the corner on the same floor where
Plaintiff worked, ” leaving the two employees in
“close physical contact.” Id. at
Allen and other BEP employees reportedly experienced
additional negative interactions with Mr. Wilson during the
summer months. On June 4, 2008, Mr. Wilson told another
African-American female, Rachelle Wright, that “there
was no fuc… way a Black man will become
president.” Id. at ¶ 26. Though Ms.
Allen was not present for Mr. Wilson's statement to Ms.
Wright, Ms. Allen accompanied Ms. Wright to the BEP Police
Department to report the incident. Id. at ¶ 27.
And on June 19, 2008, Ms. Allen sent an email to her
supervisors reporting that “Andy [Wilson] have [sic]
come into our office 201-26 every day during lunch time to
wait on Rose, ” which made her “very much
afraid.” Id. at ¶ 25. Ms. Allen also
filed an EEO complaint against Mr. Wilson alleging that
BEP's failure to discipline him for his behavior
permitted him to engage in ongoing harassment of black female
employees. See Compl. Ex. 1, ECF No. 1-3.
Another African-American female employee, Rachelle Wright,
provided a declaration in support of this EEO complaint.
See Compl. Ex. 3, ECF No. 1-5. Ms. Wright stated
that only employees who had filed an EEO complaint in their
office were asked to participate in a June 23, 2012, office
clean-up. Id. Another employee who self-identifies
as a Hispanic female, Jessica Xiomara Escobar, also reported
that she was “a victim of Mr. Wilson's
inappropriate aggressive behavior” in a 2008 statement
in support of Ms. Allen's EEO complaint. Compl. Ex. 2,
ECF No. 1-4.
interactions between Mr. Wilson and other employees then
appear to have paused from 2008 to mid-2011. But the situation
heated up once more on July 27, 2011, when Mr. Wilson coughed
on Ms. Allen and referred to her as an “idiot stupid
person.” Am. Compl. at ¶ 10. The next day, BEP
convened a Violence Intervention Team
(“VIT”) that determined that Ms. Allen and Mr.
Wilson should refrain from any verbal
communication. Id. at ¶ 28.
Allen filed additional complaints with management after the
July 27, 2011 event. Though the precise chronology is not
clear from the pleadings, Ms. Allen appears to have contacted
other BEP personnel about the July 27th incident, including
Associate Director Judith Diaz-Myers. Id. at ¶
44. Ms. Diaz-Myers informed Ms. Allen that, because Ms. Allen
had already called Chief of Security Will Levy, BEP protocol
did not permit Ms. Diaz-Myers to take any action until Mr.
Levy met with supervisors “to formulate an approach to
intervene into the situation” so that Ms. Allen
“d[id] not feel threatened.” Id. On
August 1, 2011, Ms. Allen wrote to BEP Director Larry R.
Felix to report that she had not received any update
regarding such a meeting. Id.
further interactions between Plaintiff and Mr. Wilson
occurred in late summer and early fall of 2011. On August 24,
2011, Mr. Wilson began pacing in front of Ms. Allen's
work area, “staring angrily and menacingly, as if he
were looking for an opportunity to physically attack
[her].” Id. at ¶ 29. On September 26,
2011, Mr. Wilson entered Ms. Allen's work space and again
stared “angrily and menacingly.” Id. at
¶ 30. And on October 26, 2011, Mr. Wilson entered the
area where Ms. Allen was eating lunch and stared at her
“in an angry menacing manner.” Id. at
these interactions, the conflicts again appeared to briefly
cease until early 2012, when several episodes involving Mr.
Wilson and other employees occurred. On February 23, 2012,
Mr. Wilson approached Ms. Allen, raised his cane at her, and
“struck twice at Plaintiff's head.”
Id. at ¶ 34. That same day, BEP convened a VIT
once more. Id. at ¶ 35. This VIT classified the
February 23rd episode as an “internal personal
conflict, ” id. at ¶¶ 35-36, and
recommended once more that Ms. Allen and Mr. Wilson refrain
from all verbal communications, id. at ¶ 37.
BEP also responded to the February 23rd episode by issuing a
memorandum on March 1, 2012 that directed the two individuals
to stay ten feet apart in the workforce (“10-Foot
Separation Order”). Id. at ¶ 38. Ms.
Allen followed up on this incident by contacting a BEP
attorney, Nicole Washington, to report Mr. Wilson's anger
and to complain that he was “carrying a
weapon [his cane] in the BFP
[sic]” when he did not require the cane for walking.
Id. at ¶ 43. Ms. Washington's documentation
of the incident suggests that Mr. Wilson saw the interaction
differently, contending that he was “a bit upset about
a delay in getting to a men's room.” Id.
In their investigation of this incident, supervisors and the
VIT accused Ms. Allen of lying by asserting that Mr. Wilson
“struck her with his cane, ” when in fact the
accusation was that Mr. Wilson “struck at her
with his cane.” Id. at ¶ 64 (emphasis
Allen pursued administrative interventions, there were soon
further negative interactions between Mr. Wilson and BEP
employees, including but not limited to Ms. Allen. On March
21, 2012, employee Diane Crips wrote a letter to the office
of security to report that she witnessed Mr. Wilson viewing
Ku Klux Klan material on his computer during work hours.
Id. at ¶ 128 & n.4. In response, Dr. G.
Gupta asked Ms. Evans to speak with Mr. Wilson and
“counsel [him] not to view racial [sic] inappropriate
material on a BEP computer if such behavior . . . with
malicious intent is substantiated.” Id.
25, 2012, Mr. Wilson “angrily lifted his cane” at
Ms. Allen in the hallway, “as if he was trying to gain
a striking distance” to her. Id. at ¶ 39.
That same day, Mr. Wilson also lifted his cane to strike
another employee, Gary Cloth, id. at ¶¶
46, 84, and remarked that he “was not joking, ”
id. at ¶ 86. This interaction led Mr. Cloth to
complain to his supervisors and to refuse to work alongside
Mr. Wilson. Compl. Ex. 6, ECF No. 1-8 (“I had my own
incident with Andy, in late June . . . . I informed my
boss, Julie Evans, and the acting Office Chief at the time .
. . that I considered working with Andy to be Working [sic]
in an unsafe and hostile working environment and I was no
longer willing to do so.”); see also Am.
Compl. at ¶ 85. A VIT convened to address the
interaction between Mr. Cloth and Mr. Wilson. Id. at
¶ 89. This VIT classified Mr. Wilson's “use of
his cane to strike Gary Cloth” as “use of a
deadly weapon and an attempted assault.” Id.
next interaction between Plaintiff and Mr. Wilson occurred on
July 18, 2012, when Mr. Wilson verbally threatened Ms. Allen
in the “hearing presence” of Ms. Evans with the
warning, “if you tell one more thing on me.”
Id. at ¶ 41; cf. Compl. Ex. 6, ECF No.
1-8 (Mr. Cloth reports Mr. Wilson's “intimidating
remark, ” as related to him by Ms. Allen). Ms. Allen
also reported this incident to BEP, to Ms. Evans, to BEP
police, and to BEP's Equal Employment Office. Am. Compl.
at ¶ 42.
Amended Complaint does not allege any further incidents until
2013, when Mr. Wilson had a similar interaction with another
co-worker, Kenneth Kippeman. On January 17, 2013, Mr. Wilson
“violently threaten[ed]” Mr. Kippeman.
Id. at ¶ 106. Mr. Kippeman contacted Ms. Evans
and requested an explanation for Mr. Wilson's
“attack” at the vending machine, along with an
apology. Id. at ¶ 107. Neither the specific
result of this request nor the details of any administrative
action are reported in Plaintiff's Amended Complaint or
in the exhibits attached to the original
complaint. Ms. Allen asserts that, in contrast to
BEP's classification of her interactions with Mr. Wilson
as a “personal conflict” that was insufficiently
investigated, id. at ¶ 101, “Mr.
Wilson's violence against Cloth and Kippeman was
classified as behavior that created a hostile work
environment, ” id. at ¶ 109, and their
“claims were actually investigated at the Agency level,
” id. at ¶ 111.
these interactions, Ms. Allen ceased her complaints to BEP in
“fear of retaliation by Mr. Wilson with his cane and
the Agency's failure to protect” her. Id.
at ¶ 48. Between 2008 and 2012, and at “times
thereafter, ” she “lived in morbid fear that Mr.
Wilson would attack her with his cane and seriously injure
her or kill her.” Id. at ¶ 55. She
“pared [sic] with other employees when she entered the
common areas of the Agency, ” id. at ¶
56. A final interaction with Mr. Wilson occurred on one such
occasion on October 16, 2014. That morning, Ms. Allen was
walking to the cafeteria to get breakfast with another
employee, Tracey Newell. Ms. Allen spotted Mr. Wilson at the
end of the hallway, made eye contact with Mr. Wilson and
discerned an “angry look on his face, ” and told
Ms. Newell, “let's go back” as Ms. Allen
became nervous and began shaking. Id. at ¶ 49.
Ms. Allen and Ms. Newell turned toward Ms. Allen's
office, intending to allow Mr. Wilson to pass; Mr. Wilson
instead halted at the end of the hallway with a
“glaring stare” while lifting his cane, hitting
the floor with it repeatedly, and “going off and making
all types of noise.” Id. Mr. Wilson eventually
left, “mumbling, ” after which both Ms. Allen and
Ms. Newell reported the incident to the Manager of Material
Technology, Jessica Gonzalez. Id. No further
incidents or administrative proceedings are alleged in the
Amended Complaint, though Mr. Wilson appears to have been
terminated in 2018. Id. at ¶ 131.
March 5, 2018, the Equal Employment Opportunity Commission
issued a “Right to Sue Letter, ” id. at
¶ 8, giving Ms. Allen 90 days to bring a civil action
under Title VII in federal court, see 29 C.F.R.
§ 1601.28. Plaintiff filed her Complaint within
this deadline on May 25, 2018, and subsequently filed an
Amended Complaint on October 11, 2018. See Am.
Compl. Defendant responded with a motion to dismiss in part
and a motion for partial summary judgment on October 25,
2018. See Def. Mot. Dismiss and Mot. Part. Summary
Judgment. That motion is ripe for the Court's
motion for partial summary judgment presents the simpler
issue in this suit, and so the Court will assess it first.
Motion for ...