Kennedy v. National Railroad Passenger Corporation ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHEILA KENNEDY,
Plaintiff,
Civil Action No. 13-cv-01819 (BAH)
v.
Judge Beryl A. Howell
NATIONAL RAILROAD PASSENGER
CORPORATION,
Defendant.
Memorandum Opinion
The plaintiff, Sheila Kennedy, who is proceeding pro se,1 brings this action against her
former employer, the National Railroad Passenger Corporation, d/b/a Amtrak (“Amtrak”),
claiming that she was subjected to sexual harassment in 2009 and then retaliation by multiple co-
workers and supervisors at several job sites, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the D.C. Human Rights Act, D.C. Code §2-
1401.01, et seq. (“DCHRA”). Compl. ¶¶ 1–2, 73–131, ECF No. 1. Amtrak contends that the
plaintiff “struggled” to do her jobs and “when co-workers or managers pointed out her
deficiencies, she responded by” asserting “charges of discrimination and mistreatment.” Def.’s
Mem. Supp. Mot. Summ. J. (“Def.’s Mem.”) at 1, ECF No. 35. Pending before the Court is
Amtrak’s motion for summary judgment. For the reasons discussed below, this motion is
granted.
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The plaintiff was represented by counsel when she filed her complaint and through discovery, but her counsel
moved to withdraw due to “irreconcilable differences” shortly before the date that Amtrak’s motion for summary
judgment was due. Pl.’s Counsel’s Mot. Withdraw As Attorney at 1, ECF No. 33. Counsel’s motion to withdraw
was granted, and the plaintiff’s request for assignment of a pro bono attorney was denied, since she had “neither
stated that she is working towards securing new counsel nor demonstrated any effort to obtain other representation.
In addition, the plaintiff [did] not assert that she suffers from any hardship that would justify providing Court
appointed pro bono counsel in the instant matter.” Minute Order, dated September 3, 2014.
I. BACKGROUND
In opposing the pending motion for summary judgment, the plaintiff has not responded
concisely to Amtrak’s Statement of Material Undisputed Facts (“Def.’s SMF”), ECF No. 35-2,
as required by Local Civil Rule 7(h)(1) and as directed in this Court’s Order, dated November
26, 2014, at 3, ECF No. 38, but instead has filed approximately four hundred pages of various
documents, see Pl.’s Conclusion Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) Exs. A–R, ECF No. 36-
1–20; Pl.’s Mot. Dismiss Def.’s Mot. Summ. J. (“Pl.’s Suppl. Opp’n”), ECF No. 39, including
nearly ninety pages of handwritten notes with varying degrees of legibility, see Pl.’s Opp’n Ex.
O (“Pl.’s Handwritten Notes”), ECF No. 36-17. The Court has nevertheless carefully considered
these submitted materials in evaluating the parties’ factual assertions and arguments, and the
inferences that can be drawn in favor of the plaintiff as the non-moving party. The facts
pertinent to the plaintiff’s claims are summarized below, with citation to the exhibits submitted
by both parties, followed by a brief overview of the procedural history.
A. Factual History
The plaintiff alleges that she was subjected to sexual harassment by one co-worker in
2009, and then retaliation by three different sets of co-workers and supervisors in three different
jobs in two different cities over the span of four years. Her alleged experiences in each of these
jobs are described below.
1. Plaintiff’s Job on Moving Passenger Trains in Washington, D.C.
Following training for the job, the plaintiff was assigned, on April 14, 2008, to be an
Amtrak Assistant Conductor working on moving passenger trains, which is called “Road”
service. Def.’s SMF ¶ 1, 11. The duties for this job assignment included assisting passengers
while they board and exit the trains, and collecting revenue from passengers, Def.’s Mem. at 1
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n.2, with the “primary duty [] to ensure the safe operation of Amtrak’s trains,” id. at 1. During
this assignment, the plaintiff alleges that a co-worker, Conductor Dwight McClurkin (“Co-
Worker 1”), committed four incidents of sexual harassment over the course of about seven
months. Def.’s Mot. Summ. J. (“Def.’s Mot.”) Ex. D (“Pl. Dep.”) 16:13–17:3, 24:24–25:4,
30:17–22, ECF No. 35-8.
The first incident occurred toward the end of 2008 or the beginning of 2009. Id. 16:22–
25. The plaintiff alleges that Co-Worker 1 asked her about a club called Taboo and whether the
plaintiff would go there with him, an invitation the plaintiff declined. Id. 19:15–18; 20:7–13;
Def.’s Mot. Ex. J (“Pl.’s July 9, 2009, Email”) at 1, ECF No. 35-14; Pl.’s Opp’n Ex. A (“Pl.’s
February 2010 Letter to EEOC”) at 6, ECF No. 36-1. The second incident occurred a few weeks
later, when Co-Worker 1 allegedly again asked if the plaintiff had gotten the information
regarding the club for him, Pl. Dep. 23:19–21, to which the plaintiff responded “no” and quickly
walked away. Id. 23:22–24; see also Pl.’s July 9, 2009, Email at 1; Pl.’s February 2010 Letter to
EEOC at 6.
Approximately six months later, the plaintiff alleges that, on May 31, 2009, Co-Worker 1
asked her if she had a boyfriend. Pl. Dep. 28:24–29:12; Pl.’s July 9, 2009, Email at 1; Pl.’s
February 2010 Letter to EEOC at 7. The plaintiff responded “no” and explained she was looking
for someone who can keep up with her exercise regimen, which allegedly prompted Co-Worker
1 to say that he, too, can go a long time and that he was “long.” Pl. Dep. 29:24–29:12; Pl.’s July
9, 2009, Email at 1; Pl.’s February 2010 Letter to EEOC at 6–7. After this incident, the plaintiff
felt uncomfortable whenever Co-Worker 1 walked to her section of the train and looked at her.
Pl.’s July 9, 2009, Email at 2; Pl.’s February 2010 Letter to EEOC at 7. Finally, the plaintiff
alleges that, on July 4, 2009, Co-Worker 1 brushed up against her while she was collecting
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tickets. Pl. Dep. 36:4–13, 38:13–39:4; Pl.’s July 9, 2009, Email at 2; Pl.’s February 2010 Letter
to EEOC at 7.
The plaintiff did not report any of these four incidents when they occurred. Def.’s SMF ¶
17. Instead, on July 5, 2009, the plaintiff allegedly confronted Co-Worker 1 about his sexually
suggestive conduct and asked him to stop. Pl. Dep. 41:19–42:17; Pl.’s July 9, 2009, Email at 2;
Pl’s February 2010 Letter to EEOC at 7. Thereafter, Co-Worker 1 apparently stopped making
any comments to the plaintiff that she perceived as sexual in nature but the plaintiff nonetheless
alleges that Co-Worker 1 subsequently criticized her job performance, which made her feel
uncomfortable. Pl.’s July 9, 2009, Email at 2; Pl’s February 2010 Letter to EEOC at 8. The
plaintiff cites instances in which Co-Worker 1 chided her for forgetting to collect tickets, for
failing to find seats for passengers, and raising his voice once regarding cookie crumbs on the
floor of a train. Pl.’s July 9, 2009, Email at 2; Pl’s February 2010 Letter to EEOC at 7. In
addition, on July 7, 2009, at the request of a family of four, the plaintiff turned two seats to face
each other, in violation of safety standards, and when Co-Worker 1 asked her to restore the seats
to a safe condition, she disobeyed his orders until compelled by a supervisor. Pl.’s July 9, 2009,
Email at 2–3; Pl’s February 2010 Letter to EEOC at 3–4.
Shortly after the plaintiff was reprimanded by a supervisor for creating unsafe conditions
for passengers, the plaintiff sent an email, on July 9, 2009, to Amtrak’s Dispute Resolution
Office (“DRO”), summarizing the encounters she had with Co-Worker 1 that she believed were
sexual harassment. Pl. Dep. 34:1–35:4. On July 10, 2009, the plaintiff attended a meeting with
Co-Worker 1 and three supervisors to discuss the seat-turning incident, but did not mention any
alleged sexual harassment. Id. 57:12-24. Although the supervisors recommended that Co-
Worker 1 and the plaintiff work in separate cars to minimize contact between the two, id., the
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plaintiff allegedly had two more interactions with Co-Worker 1 in the beginning of August
regarding the plaintiff’s deficient work performance, Def.’s Mot. Ex. L (“DRO’s Investigative
Findings”) at 3, ECF No. 35-16.
Approximately one month after sending her email to the DRO and the meeting with her
supervisors, the plaintiff notified her immediate supervisor, who is a woman, for the first time,
on August 6, 2009, of her sexual harassment allegations. DRO’s Investigative Findings at 7 n.8.
The supervisor allegedly advised the plaintiff that she had been the subject of complaints
regarding her own inappropriate behavior, such as showing her abdominal surgical scars to
coworkers. Pl. Dep. 99:8–17. The next day, DRO informed the plaintiff that interviews with
other coworkers regarding the sexual harassment allegations would be initiated. DRO’s
Investigative Findings at 1. The plaintiff requested that DRO stop investigating her sexual
harassment charge, id., a request that the plaintiff reiterated on September 4, 2009, Def.’s Mot.
Ex. M (“September 4, 2009, Email Exchange”), ECF No. 35-17. Despite the plaintiff’s request,
the DRO investigator, who is a woman, continued the investigation because “Amtrak is obligated
to investigate [sexual harassment] complaints when it becomes aware of them.” Id.After interviewing the plaintiff and seven of her coworkers and supervisors, the DRO
investigator found no evidence of sexual harassment or that the disagreements between the
plaintiff and Co-Worker 1 were related to the plaintiff’s alleged rejection of purported sexual
advances, which could not be verified through other witnesses. DRO’s Investigative Findings at
1, 8. Instead, three co-workers reported that the plaintiff engaged in inappropriate sexual
conduct, such as making sexual comments about other coworkers and rubbing male coworkers’
shoulders and heads. Id. at 6. Three coworkers cited the plaintiff’s poor job performance as a
reason for Co-Worker 1’s fraught relationship with the plaintiff, id. at 5–7, and no supervisor
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witnesses had heard from the plaintiff about sexual harassment prior to the investigation, id. at 7.
The DRO concluded that both the plaintiff and Co-Worker 1 engaged in inappropriate
conversations, though not necessarily with each other, and so both were provided with a copy of
Amtrak’s sexual harassment policy to review. Id. at 9. DRO forwarded these findings to the
plaintiff. Def.’s Mot. Ex. N (“November 2, 2009, DRO Letter to Pl.”), ECF No. 35-18.
Finally, on October 4, 2009, the plaintiff alleges that she felt intimidated by Co-Worker 1
who watched her perform a brake test. Pl.’s February 2010 Letter to EEOC at 6. This was the
last time the two worked together since, on October 26, 2009, the plaintiff voluntarily transferred
to a new job assignment working on empty trains within Amtrak’s terminals and maintenance
facilities, an assignment called working in the “Yard.” Pl. Dep. 77:16–78:9.
2. Plaintiff’s Job on Empty Passenger Trains in Washington, D.C.
Shortly after transferring to the Yard, the plaintiff filed a complaint with the EEOC, on
January 10, 2010, and subsequently, on March 16, 2010, filed a formal Charge of Discrimination
with the EEOC and the D.C. Office of Human Rights, claiming sexual harassment and
retaliation. Compl. ¶ 40–41.
At her new assignment in the Yard, the plaintiff worked with a new set of supervisors and
coworkers. Pl. Dep. 105:1–2; 114:2–14; Pl.’s Opp’n Ex. 1 (“Pl.’s Empl. Records”) at 18, ECF
No. 36-2. Here, too, the plaintiff’s coworkers complained to supervisors about the plaintiff’s
poor job performance, after which her supervisors personally observed her and also found her
performance deficient and unsafe. Def.’s Mot. Ex. B (“Broadus Decl.”) ¶ 6, ECF No. 35-6;
Def.’s Mot. Ex. C (“Maldonado Decl.”) ¶¶ 5-6, ECF No. 35-7. As a result, the plaintiff was
placed with a new Yard train crew, with co-workers who had more seniority and experience, and
more time to train her. Broadus Decl. ¶¶ 8–9.
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The plaintiff felt that her work in the previous Yard crew had been good and attributed
her transfer, not to the perceived need for her to obtain more training, but to a male co-worker,
on the previous Yard crew, who purportedly did not want to work with her due to her sexual
harassment complaint against Co-Worker 1 and because she did not condone his unsafe
practices. Pl. Dep. 142:23–145:6; Compl. ¶ 44; Pl.’s Suppl. Opp’n at 8; Pl.’s Opp’n Ex. M
(“Recording Trans.”) at 1, ECF No. 36-15. All parties agree that the plaintiff’s performance did
not improve with the new train crew. Def.’s Mot. Ex. A (“Smith Decl.”) ¶ 11, ECF No. 35-5; Pl.
Dep. 143:24–144:17. As a result, on June 9, 2010, the plaintiff met with a senior supervisor and
her union representative to discuss her performance deficiencies. Broadus Decl. ¶ 12; Smith
Decl. Ex. 1 (“August 17, 2010 Supervisor Letter”), ECF No. 35-5. During this meeting, the
plaintiff agreed to remedial training. See August 17, 2010 Supervisor Letter.
During the next three weeks, the plaintiff received remedial training that was observed by
her supervisor, who noted that she did not have the basic skills needed to work in the Yard. See
generally Broadus Decl. Ex. 1 (“T.E.S.T.S. Entries”) ECF No. 35-6. Consequently, on July 1,
2010, the plaintiff was sent home because her work on the equipment was unsafe. Pl. Dep.
178:17–179:23. Amtrak then provided additional remedial training to the plaintiff in
Wilmington, Delaware, where her two training supervisors, both women, observed that she was
still unable to satisfactorily perform her job duties and that their “main concern is for her overall
safety in the yard.” Def.’s Mot. Ex. U (“Wilmington Eval.”) at 2, ECF No. 35-25.
On August 31, 2010, the plaintiff returned to her station in the Yard in Washington, D.C.
and was advised at the beginning of her shift that she would be evaluated that night by her
female supervisor. Pl.’s Opp’n Ex. L (“Pl.’s September 1, 2010, Letter to Amtrak President”),
7
ECF No. 36-14. As soon as the supervisor got on the engine, however, the plaintiff became ill
from stress and immediately left work. Id. As a consequence, the plaintiff was never evaluated.
On September 1, 2010, the plaintiff wrote a letter to the President of Amtrak complaining
that her female supervisor in the Yard had harassed her because she had been labeled as a
“snitch.” Id. The letter recounted instances in which her supervisor stood over her, discussed
switching her to another shift, told her that her coworkers did not want to work with her because
she was unsafe, and marked her August 31, 2010 departure as an unexcused absence when she
walked off her shift that night due to stress from the evaluation. Id.Amtrak notified the plaintiff of a formal investigation triggered by her conduct on August
31, 2010, when she avoided an evaluation by leaving and thereby failing to demonstrate that she
was able to perform her duties as Assistant Conductor. Def.’s Mot. Ex. V (“Not. of
Investigation”), ECF No. 35-26. Following a hearing, the plaintiff was notified of her dismissal,
effective October 14, 2010. Def.’s Mot. Ex. X (“November 16, 2011, Pub. L. Bd. Decision”) at
2, ECF No. 35-28. 2 Within two months of her dismissal, the plaintiff filed, on December 16,
2010, a second Charge of Discrimination with the EEOC and the D.C. office of Human Rights
based on what she believed was retaliation in the Yard for the previous sexual harassment
complaint she made against Co-Worker 1. Compl. ¶ 55.
The plaintiff appealed her termination both within Amtrak and to a Public Law Board, an
external panel with jurisdiction to resolve disputes between carriers and employees under the
Railway Labor Act, and, although the bases for her dismissal were affirmed twice, she was
permitted to return to her position as an Assistant Conductor after more training. Def.’s Mot. Ex.
2
At the hearing, the plaintiff was represented by her union representative and was allowed to cross-examine
witnesses and present her own evidence. Def.’s Mot. Ex. W (“February 7, 2011, Amtrak Letter to Plaintiff”) at 2,
ECF No. 35-27.
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W (“February 7, 2011, Amtrak Letter to Plaintiff”) at 2-3, ECF No. 35-27; November 16, 2011,
Pub. L. Bd. Decision at 5–6. The plaintiff accepted her reinstatement and, after additional
training in Washington, D.C., voluntarily transferred to a position in Miami, Florida. Pl. Dep.
249:14–250:5; Pl.’s Mot. Ex. M (“May 15, 2012, Miami Supervisor Letter to Pl.”), ECF No. 39.
3. Plaintiff’s Job in Miami, Florida
On January 17, 2012, the plaintiff began working for Amtrak in Miami, Florida, where
she alleges that she was, again, subject to retaliatory actions by her supervisor and co-workers.
Compl. ¶¶ 63–64. Specifically, the plaintiff alleges that “Amtrak continued its pattern of
retaliation against the Plaintiff by,” id. ¶ 64, inter alia, failing to give her proper assignments, id.,scheduling her with “inconsistent and irregular hours,” id., forcing her to take the conductor test
prematurely, id. ¶ 65, and then “wrongfully refus[ing] to allow [her] to work with her recovery
medications,” id. ¶ 70.
According to the plaintiff, she missed the administration of the tests required for
promotion to Conductor due to her illness from the stress caused by her Miami supervisor
forcing her to take these tests prematurely. Compl. ¶ 65; May 15, 2012, Miami Supervisor Letter
to Pl. When the plaintiff identified stress as the excuse for her job absence, Amtrak required that
she submit authorization from her physician before she could return to work. Compl. ¶ 69. On
June 4, 2012, the plaintiff submitted her physician’s authorization allowing her to work while
taking medication to treat vertigo. Pl.’s Mot. Ex. D (“Auth. to Work”) at 2–3, ECF No. 39. On
June 19, 2012, however, Amtrak’s own physician denied the authorization because of side
effects from the plaintiff’s prescribed medication. Id. at 1. On July 5, 2012, the plaintiff was
dismissed because she had been “absent without authorized medical leave” since failing to take
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her exams on May 15, 2012, despite numerous directives by Amtrak for her to make contact to
discuss her circumstances. Pl.’s Mot. Ex. E (“July 5, 2012, Termination Letter”), ECF No. 39.
B. Procedural History
On July 28, 2013, the plaintiff filed this lawsuit in the U.S. District Court for the
Southern District of Florida. Her complaint contains six counts, claiming sexual harassment,
hostile work environment and retaliation, in violation of Title VII, in Counts I, III and V,
respectively, and the same three claims, in violation of the DCHRA, in Counts II, IV and VI,
respectively. Amtrak’s Motion to Dismiss for improper venue, under Federal Rule of Civil
Procedure 12(b)(3), was granted and the case was subsequently transferred to this Court. See
Order Granting in Part Mot. Dismiss (“Mot. Dismiss Order”), ECF No. 19.
Following extended discovery for over six months, see Minute Orders, dated December
20, 2013, and May 13, 2014 (allowing discovery, with extensions, from December 20, 2013 until
July 30, 2014), Amtrak filed the pending motion for summary judgment. The plaintiff’s initial
response to this motion consisted of two brief handwritten paragraphs requesting a jury trial, see
Pl.’s Opp’n at 1–2, without addressing any arguments set out in Amtrak’s moving papers, and
accompanied by over 300 pages of various documents. The plaintiff was afforded an additional
opportunity to submit a substantive opposition, see Order, dated November 26, 2014, ECF No.
38, which she did by filing a document styled “Motion to Dismiss Defendant’s Motion for
Summary Judgment,” ECF No. 39, that consists of 103 pages, including a number of exhibits
already provided by Amtrak with its motion, compare, e.g., Pl.’s Suppl. Opp’n Exs. E, G, J, K,
and L, with Def.’s Mot. Exs. Y, K, Broadus Decl. Ex. 1, Def.’s Mot. Exs. Q, and V. Amtrak’s
motion for summary judgment is now ripe for consideration.
II. LEGAL STANDARD
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Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “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). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the burden to demonstrate the “absence of a genuine
issue of material fact” in dispute, id. at 323, while the nonmoving party must present specific
facts supported by materials in the record that would be admissible at trial and that could enable
a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. ("Liberty Lobby"), 477
U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on
summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable
jury could return a verdict for the nonmoving party”) (internal quotations and citation omitted);
see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay . . . counts for
nothing on summary judgment.”) (internal quotation marks omitted); FED. R. CIV. P. 56(c) and
(e)(2), (3).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014), and “[t]he evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby, 477 U.S.
at 255). Courts must avoid making “credibility determinations or weigh[ing] the evidence,”
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since “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000); see also Burley v. Nat’l Passenger Rail
Corp., No. 14-7051, 2015 WL 5474078, *3 (D.C. Cir. Sept. 18, 2015). In addition, for a factual
dispute to be “genuine,” the nonmoving party must establish more than “[t]he mere existence of
a scintilla of evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot
rely on “mere allegations” or conclusory statements, see Equal Rights Ctr. v. Post Props., 633
F.3d 1136, 1141 n.3 (D.C. Cir. 2011); Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006);
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.
Cir. 1993); accord FED. R. CIV. P. 56(e). If “‘opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.’” Lash v. Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)). The Court is only required to consider the materials explicitly cited by the
parties, but may on its own accord consider “other materials in the record.” FED. R. CIV. P.
56(c)(3).
III. DISCUSSION
The plaintiff claims that Co-Worker 1 sexually harassed her, Compl. ¶ 75, and that
Amtrak supervisors not only did nothing to protect her from this harassment, id. ¶ 78, but
retaliated against her in all three of her job assignments in two different cities over the span of
four years, id. ¶ 119, in violation of Title VII, id. ¶¶ 73–82, 93–102, 113–22 (Counts I, III, V)
and the DCHRA, Id. ¶¶ 83– 92, 103– 112, 123–131 (Counts II, IV, VI). Amtrak counters, first,
to the extent the plaintiff alleges that she was subject to any retaliation when she worked for
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Amtrak in Miami, Florida, those claims are barred by her failure to exhaust the allegations
administratively. Def.’s Mem. at 23–24. Second, Amtrak argues that the plaintiff has failed to
demonstrate that Co-Worker 1’s conduct was sufficiently severe or pervasive to amount to a
hostile work environment, id. at 7–9, particularly since Amtrak promptly and adequately
responded to her complaint by initiating a thorough DRO investigation, id. at 14–15. Amtrak
further argues that the plaintiff’s retaliation claims stemming from her work in Washington, D.C.
fail because she has not shown that her evaluating supervisors were aware of her sexual
harassment complaint. Id. at 18. The Court discusses each of Amtrak’s arguments seriatim
below. 3
A. The Plaintiff Failed to Exhaust Claims Arising from Her Amtrak Job in
Miami, Florida
The plaintiff filed two charges of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the D.C. Office of Human Rights, on March 16, 2010 and December
16, 2010, based on events that occurred when she was assigned to the Road and the Yard, in
Washington, D.C., respectively, see Compl. Ex. A (“First Charge of Discrimination”), ECF No.
1-3; id. Ex. C (“Second Charge of Discrimination”), ECF No. 1-5. No administrative complaint
or charge was ever filed for any events occurring after the plaintiff’s voluntary transfer to an
Amtrak job in Miami, Florida. Consequently, Amtrak argues that to the extent the plaintiff has
asserted Miami-based claims of retaliation, these claims are barred due to lack of administrative
exhaustion. Def.’s Mem. at 23. The Court agrees.
3
The same analysis applies to the plaintiff's claims under both Title VII and the DCHRA and these “claims thus rise
and fall together.” Burley, 2015 WL 5474078, at *3. See also Bryant v. District of Columbia, 102 A.3d 264, 268
(D.C. 2014) (“[t]he analytical framework for establishing a prima facie case of retaliation is the same under both the
DCHRA and Title VII”); Estenos v. PAHO/WHO Federal Credit Union, 952 A.2d 878, 886–88 (D.C. 2008) (noting
cases construing Title VII are applicable “in interpreting and applying the provision of the DCHRA”); Fred A. Smith
Management Co. v. Cerpe, 947 A.2d 907, 913–14 (D.C. 2008) (same); Lively v. Flexible Packaging Ass’n, 830 A.2d
874, 887–89 (D.C. 2003) (Title VII analysis applicable to DCHRA hostile work environment claims).
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Under Title VII, plaintiffs “‘must timely exhaust the[ir] administrative remedies before
bringing their claims to court.’” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (alteration in
original) (quoting Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)); see also Love v.
Pullman Co., 404 U.S. 522, 523 (1972); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
104–5, 109 (2002) (a Title VII plaintiff must “file a charge with the [EEOC] either 180 or 300
days after the alleged unlawful employment practice occurred”); 42 U.S.C. § 2000e-5(f)(1).
Additionally, a plaintiff must file a separate charge in order to exhaust administratively each
discrete retaliatory or discriminatory act. Morgan, 536 U.S. at 114.
The D.C. Circuit in Payne left open the question whether, after Morgan, each new
discrete discriminatory act must be filed with the EEOC, or whether, according to a pre-Morgan
line of D.C. Circuit cases, any unexhausted Title VII claim may be eligible for judicial
adjudication, without the necessity of separate administrative processing, if it is within the scope
of the prior EEO investigation, as “reasonably related” to the filed charge. Under the pre-
Morgan approach, a charge may be regarded as “reasonably related” to a filed charge if, “at a
minimum,” it “arise[s] from an administrative investigation that can reasonably be expected to
follow the [filed] charge of discrimination” since this “connection” gives the agency “an
opportunity to resolve the claim administratively before the employee files her complaint in
district court.” Payne, 619 F.3d at 65 (original alterations, internal quotations and citations
omitted). Without deciding “whether Morgan did in fact overtake that line of case,” the D.C.
Circuit concluded in Payne that the plaintiff had failed to exhaust certain retaliation claims when
the underlying conduct occurred several months after the conclusion of the EEO investigation,
noting that “the retaliatory conduct . . . could not possibly have ‘arisen from the administrative
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investigation’ that followed the EEO complaints . . . because the administrative investigation of
those complaints ended” well before the alleged retaliatory conduct occurred. Id.While a minority view on this Court is that the “reasonably related” test for unexhausted
claims, as set out in Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995), survives
Morgan, the majority view has interpreted Morgan to “require exhaustion for all discrete acts of
retaliation after an administrative charge is filed, ‘regardless of any relationship that exists
between those discrete claims and any others.’” Hicklin v. McDonald, No. 14-1569, 2015 WL
3544449, at *2–3 (D.D.C. June 8, 2015) (quoting Rashad v. Wash. Metro. Area Transit Auth.,
945 F. Supp. 2d 152, 165–66 (D.D.C. 2013)). This Court has followed the majority view. See
Smith v. Lynch, No. 10-1302, 2015 WL 4324167, at *9 (D.D.C. July 15, 2015).
Regardless, under either the majority or the more lenient minority view of the Supreme
Court's holding in Morgan, the plaintiff’s Miami-based retaliation claims would be barred for
failure to exhaust administrative review. The plaintiff began work “at the Miami Florida crew
base” in January 2012, Compl. ¶ 63, and, thus, her allegations that her new supervisors and co-
workers engaged in retaliatory conduct occurred over a year after the alleged retaliation that was
the subject of her two 2010 EEO charges. Moreover, the plaintiff’s Miami-based retaliation
allegations point to actions by new supervisors and co-workers living in a geographically distant
city from where the conduct described in the first two EEO charges occurred. Given the gap in
time, the differences in personnel involved, the difference in work site locations at issue, and the
differences in the retaliatory actions alleged, an administrative investigation of the first two EEO
charges concerning alleged events that occurred in D.C. would not have led the EEOC to
Amtrak’s Miami office. Accord Mot. Dismiss Order (District Court for the Southern District of
Florida concluding “that these post-EEOC-complained-of-events do not fall within the
15
reasonably expected scope of an EEOC investigation of [the plaintiff]’s administrative charges
filed in March and December 2010[.]”).
Consequently, the Court finds that, even under the minority interpretation of Morgan, the
plaintiff’s Miami-based retaliation allegations are not reasonably related to the EEO charges that
she filed and, therefore, may not be deemed exhausted. Accordingly, Amtrak is entitled to
summary judgment on any Miami-based retaliation claim asserted by the plaintiff due to her
failure to exhaust.
B. Sexual Harassment and Hostile Work Environment Claims Arising from
Plaintiff’s Amtrak Jobs in Washington, D.C.
The allegations underlying the plaintiff’s sexual harassment and hostile work
environment claims arise out of the same events that allegedly occurred during her tenure
working in Washington, D.C, compare Compl. ¶¶ 73–82, with ¶¶ 93–102; compare ¶¶ 83–92,
with ¶¶ 103–112, and, therefore, will be addressed together.
The law is well-settled that sexual harassment may create a hostile environment when it
is so “‘severe or pervasive [as] to alter the conditions of [the victim's] employment and create an
abusive working environment.’” Taylor v. Solis, 571 F.3d 1313, 1318 (D.C. Cir. 2009)
(alterations in original) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986)). Even
accepting as true the plaintiff’s allegations that her interactions with Co-Worker 1 were
inappropriate, uninvited and unwelcome, the allegations fall far short of meeting the threshold
for a hostile work environment.
The Court looks to the totality of the circumstances when determining whether the
plaintiff has produced enough facts to survive summary judgment that a hostile environment
exists, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
16
interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993); see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013); Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). The bar is set very high; the Supreme Court
has emphasized that Title VII is not “a general civility code,” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998), such that “offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment,” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotations
omitted).
The plaintiff has alleged hostile work environment claims during her time in Washington,
D.C., working both on moving passenger trains on the Road and with empty trains in the Yard.
During her time on the Road, the plaintiff claims that she was subjected to sexual harassment and
a hostile work environment based on three allegedly sexual comments made by Co-Worker 1, his
conduct in allegedly brushing up against her, and his rude behavior in pointing out her work
deficiencies after she rejected his sexual advances on July 5, 2009. See supra Part I.A.1.
At the outset, Amtrak argues that evidence of Co-Worker 1’s conduct after the plaintiff
confronted him on July 5, 2009, should not be considered as part of any hostile work
environment because the subsequent conduct consisted only of Co-Worker 1’s comments about
the plaintiff’s deficient work performance. Def.’s Mem. at 7–8. Indeed, “evidence that bears no
connection to the plaintiff’s protected status cannot support a hostile work environment claim.”
Herbert v. Architect of Capitol, 839 F. Supp. 2d 284, 299 (D.D.C. 2012). At the same time, “a
‘hostile work environment claim is composed of a series of separate acts that collectively
constitute one unlawful employment practice. . . . A court’s task is to determine whether the acts
about which an employee complains are part of the same actionable hostile work environment
17
practice.’” Bergbauer v. Mabus, 934 F. Supp. 2d 55, 70 (D.D.C. 2013) (emphasis and ellipses in
original) (quoting Morgan, 536 U.S. at 120). Here, the plaintiff contends that Co-Worker 1’s
criticism of her work performance after July 5, 2009, stemmed from her rejection of his sexual
advances and should be considered as part of the same actionable hostile work environment
claim. Pl.’s July 9, 2009, Email at 2.
The Court need not resolve this argument, however. Even considering all of Co-Worker
1’s conduct together, the plaintiff still fails to make a sufficient showing that this conduct was
sufficiently severe or pervasive as to create a hostile work environment. First, the incidents were
isolated and infrequent occurrences—consisting of only four interactions that the plaintiff asserts
were sexual in nature over the period of late 2008 or early 2009 through July 4, 2009. Such a
“few isolated incidents of offensive conduct do not amount to actionable harassment.” Stewart v.
Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002). Moreover, these interactions may have made the
plaintiff uncomfortable but they were not so overt, constant and aggressive as to amount to
severe or chronic abuse. See, e.g., Martinez v. P.R. Fed. Affairs Admin., 813 F. Supp. 2d 84, 97
(D.D.C. 2011) (finding numerous sexually inappropriate comments, heightened scrutiny,
reassignment of job duties to others, creation of procedures that necessitated more contact not so
pervasive, severe or abusive as to create a hostile work environment); Akonji v. Unity
Healthcare, Inc., 517 F. Supp. 2d 83, 97–98 (D.D.C. 2007) (no hostile work environment where
plaintiff’s supervisor repeatedly touched plaintiff and made sexually suggestive comments);
Coles v. Kelly Servs., Inc., 287 F. Supp. 2d 25, 26–27, 31 (D.D.C. 2003) (sending sexually
explicit emails, mimicking sex, and after the plaintiff rejected sexual advances, making
physically threatening gestures and swearing do not constitute hostile work environment). The
four interactions occurring over seven months that are described by the plaintiff involved no
18
aggressive or threatening physical contact or the type of chronic verbal abuse that has been found
sufficient to defeat summary judgment. See, e.g., Regan v. Grill Concepts-D.C., Inc., 338 F.
Supp. 2d 131, 137–38 (D.D.C. 2004) (denying summary judgment where supervisor repeatedly
made sexually charged and degrading comments and a fellow coworker exposed herself);
Berman v. Wash. Times Corp., No. 92-2738, 1994 WL 750274, at *3 (D.D.C. Sept. 23, 1994)
(denying summary judgment on DCHRA claims where supervisor “pursued [the plaintiff]
around the office on numerous occasions, commented on her attractive appearance, and
intentionally intimidated her[,]” and the “work environment was replete with misogynistic
decorations, including degrading signs, pictures of scantily-clad women, and a pornographic
game.”). Indeed, none of the plaintiff’s interactions with Co-Worker 1 that she alleges were of a
sexual nature were of sufficient seriousness to prompt the plaintiff to report the incidents to her
supervisors until a month or more after the incidents occurred and only when her work
performance was subject to criticism by her supervisors. 4
The post-July 4, 2009 interactions between the plaintiff and Co-Worker 1 allegedly
involved the latter’s criticism of the plaintiff’s work performance. 5 Even if, as the plaintiff
alleges, Co-Worker 1’s criticism was motivated in part by the plaintiff’s rejection of his alleged
unwanted sexual attention, the plaintiff does not dispute, and witnesses corroborate, that Co-
Worker 1 had legitimate reasons to criticize the plaintiff’s poor job performance, including that:
the plaintiff waited until Co-Worker 1 told her to find seats for passengers seated on the floor of
the train, Def.’s Mot. Ex. E (“Pl.’s Interrogs.”) at 18, ECF No. 35-9; she created an unsafe
4
Even after the plaintiff raised the sexual harassment charge, which triggered an internal investigation, she
apparently requested that the investigation stop. September 4, 2009, Email Exchange.
5
Although the parties dispute whether Co-Worker 1 is a supervisor under Title VII, compare Def.’s Mem. at 12–13,
with Pl.’s Suppl. Opp’n at 2, this issue need not be resolved since, regardless of Co-Worker 1’s position vis a vis the
plaintiff, no hostile work environment was created by either his conduct or his criticism, along with others, of the
plaintiff’s work performance.
19
condition when she turned seats around, Def.’s Mot. Ex. H (“Starver Dep.”) 81:1–17 (explaining
that Assistant Conductors are not trained to turn seats, which could be unsafe when not properly
performed), ECF No. 35-12; and she admitted to disobeying Co-Worker 1’s order to turn the
seats around, until asked by their supervisor, Pl.’s Interrogs. at 19. In addition, the plaintiff was
apparently known for refusing to properly ticket passengers who missed their stops. DRO’s
Investigative Findings at 5 (confirmed by a witness).
Even if Co-Worker 1 could have relayed his criticism in a more polite manner, any
embarrassment the plaintiff felt from his public criticism does not rise to the level of a hostile
work environment. See Faragher, 524 U.S. at 788 (“[c]onduct must be extreme to amount to a
change in the terms and conditions of employment”); Rattigan v. Gonzales, 503 F. Supp. 2d 56,
79 (D.D.C. 2007) (finding that unrelated comments, threats and slights at work do not constitute
hostile work environment and that “not everything that makes an employee unhappy is an
actionable” under Title VII”). 6 In addition, at the time when a supervisor reprimanded the
plaintiff for creating an unsafe condition, followed by a meeting with three supervisors, on July
10, 2009, none of the supervisors were aware of the plaintiff’s sexual harassment charge. Thus,
the plaintiff has utterly failed to show that evidence regarding the plaintiff’s poor job
performance on the Road has any connection to her gender or her allegations of sexual
harassment and, therefore, cannot support her hostile work environment claim. See Davis v.
6
To the extent the plaintiff alleges that she was constructively discharged due to the hostile work environment, see
Compl. ¶ 119, 129, this claim fails. First, the plaintiff was not dismissed as a result of her poor job performance at
her Road job assignment, but merely voluntarily transferred to the Yard. Second, even if her voluntary transfer were
construed to be an involuntary demotion amounting to a constructive discharge, her claim would still fail. The
standard for constructive discharge is even more onerous than that for a standard hostile work environment claim.
See Pa. State Police v. Suders, 542 U.S. 129, 134 (2004) (“[T]o establish ‘constructive discharge,’ the plaintiff must
make a further showing: She must show that the abusive working environment became so intolerable that her
resignation qualified as a fitting response.”). Since the plaintiff is unable to show that the harassing behavior she
alleges was sufficiently severe or pervasive to support a hostile work environment claim, her constructive discharge
claim fails for the same reason.
20
Coastal Int'l Sec., Inc., 275 F. 3d 1119, 1122–24 (D.C. Cir. 2002) (affirming summary judgment
for employer and rejecting sexual harassment claim where evidence showed that alleged
harassment was “motivated by a workplace grudge, not sexual attraction”); Dudeley v. Wash.
Metro Area Transit Auth., 924 F. Supp. 2d 141, 171 (D.D.C. 2013) (“A litany of cases shows
that simply having a rude, harsh, or unfair boss is not enough for a hostile work environment
claim.”); Singh v. U.S. House of Representatives, 300 F. Supp. 2d 48, 56 (D.D.C. 2004)
(“Criticisms of a subordinate’s work and expressions of disapproval (even loud expressions of
disapproval) are the kinds of normal strains that can occur in any office setting[.]”).
The plaintiff also makes a hostile work environment claim covering her time working in
the Yard, because her new supervisors repeatedly reprimanded her and closely observed her due
to poor work performance, a male supervisor sent her home because she was unsafe, and she was
transferred from one shift to another because a male co-worker did not want to work with her.
Pl.’s Suppl. Opp’n at 5–6; Pl. Dep. at 142:25–143:12. Similar to the plaintiff’s allegations about
her job assignment on the Road, the plaintiff has failed to produce evidence showing that her
treatment in the Yard was due to her gender, rather than to continuing legitimate concern over
her job performance and the safety risks posed by her poor performance. Criticism of the
plaintiff’s job performance in the Yard appears to have been regularly and consistently given,
leading to several periods of remedial training without apparent improvement. The plaintiff has
not shown that this criticism was related to the plaintiff’s membership in a protected class,
instead, this criticism was related to the perceived safety risks posed by her job performance.
In sum, the Court finds that the plaintiff has failed to produce sufficient evidence for a
reasonable jury to find that Amtrak’s treatment of the plaintiff was due to anything other than her
21
poor job performance or that this treatment amounted to sexual harassment or a hostile work
environment. Accordingly, Amtrak is entitled to summary judgment on Counts I through IV.
C. Retaliation Claims
The plaintiff also makes two retaliation claims: first, that her co-workers and supervisors
retaliated against her for filing sexual harassment complaints against Co-Worker 1, both
internally and with the EEOC; and, second, that her Yard supervisors retaliated against her for
writing a letter, on September 1, 2010, to the President of Amtrak complaining of hostile work
environment and unfair treatment by a female Yard supervisor. Compl. ¶¶118–19, 128–29. As
discussed below, these retaliation claims fail.
To prevail on a claim of unlawful retaliation, an employee must show “she engaged in
protected activity, as a consequence of which her employer took a materially adverse action
against her.” Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007). “A materially adverse
action is one that ‘could well dissuade a reasonable worker from making or supporting a charge
of discrimination.’” Taylor, 571 F.3d at 1320 (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 57 (2006)). While the three-step burden-shifting test of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), applies to retaliation claims based, as here, on
circumstantial evidence, the D.C. Circuit has instructed that if the employer offers a legitimate,
nondiscriminatory reason for its action, then the 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); see Jones v. Bernanke, 557 F.3d
670, 678 (D.C. Cir. 2009) (retaliation claim). Instead, “the court should proceed to the question
of retaliation vel non,” which question can be resolved “in favor of the employer based either
upon the employee's failure to rebut its explanation or upon the employee's failure to prove an
element of her case,” such as whether “her employer took a materially adverse action against
22
her.” Taylor, 571 F.3d at 1320 n.12; see also Hernandez v. Pritzker, 741 F.3d 129, 133 (D.C.
Cir. 2013) (noting that “the ‘central question’ in [the] case is whether [the plaintiff] has produced
sufficient evidence for a reasonable jury to find those reasons were but pretexts for retaliation”)
(quoting McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012)); Hamilton v. Geithner, 666
F.3d 1344, 1351 (D.C. Cir. 2012) (“Where, as here, the employer claims a legitimate, non-
discriminatory explanation for its decision to promote one employee over another, the ‘one
central inquiry’ on summary judgment is ‘whether the plaintiff 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 on a
prohibited basis.’”) (quoting Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir.
2008)); Talavera v. Shah, 638 F.3d 303, 308–309 (D.C. Cir. 2011).
Focus on this “one central inquiry” is appropriate because a legitimate non-
discriminatory reason for the employer’s actions breaks the necessary “but-for causation” link
between the protected activity and the adverse employment action. See Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2528, 2533 (2013). The D.C. Circuit has instructed that “this
question” is considered “‘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.’” Hamilton, 666 F.3d at 1351 (quoting
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289, 1291 (D.C. Cir. 1998) (en banc)).
At the outset, the plaintiff indisputably engaged in protected activity both by utilizing the
internal grievance procedure, which triggered the DRO investigation, as well as by filing EEOC
23
complaints in March and December 2010. See Richardson v. Gutierrez, 477 F. Supp. 2d 22, 27
(D.D.C. 2007) (“It is well settled that Title VII protects informal, as well as formal, complaints
of discrimination.”); Bell v. Gonzales, 398 F. Supp. 2d 78, 94 (D.D.C. 2005) (“Initiation of EEO
counseling to explore whether an employee has a basis for alleging discrimination constitutes
protected activity, even in the absence of an unequivocal allegation of discrimination.”). Yet, as
discussed below, the alleged retaliatory actions taken against her in Washington, D.C., do not
amount to materially adverse actions and, even if they did, the plaintiff has not presented any, let
alone sufficient, evidence to rebut Amtrak’s legitimate, nondiscriminatory reasons for its actions.
1. Alleged Retaliation for the Plaintiff’s Sexual Harassment Complaint
The plaintiff alleges that because she filed a sexual harassment complaint against Co-
Worker 1, she was subjected to a variety of retaliatory actions. First, the plaintiff claims that her
supervisor retaliated against her by warning her that “another employee had seen her abdomen
and stomach in the lady’s room,” Compl. ¶ 119 (a), and that the plaintiff should “watch [herself]
too,” Pl. Dep. 99:8–11. This comment from her supervisor was apparently made to the plaintiff
in private and, on its face, appeared to caution the plaintiff about how her own conduct could
offend others, without affecting the plaintiff’s employment negatively in any way. Even though,
in the retaliation context, actions amounting to an “adverse employment action” have “a broader
meaning” and “are ‘not limited to discriminatory actions that affect the terms and conditions of
employment,’” Baird v. Gotbaum, 662 F.3d 1246, 1249 (D.C. Cir. 2011) (quoting Burlington,
548 U.S. at 64), this single comment critical of the plaintiff’s own interactions with coworkers,
simply does not amount to retaliation. Baloch, 550 F.3d at 1199 (“sporadic verbal altercations or
disagreements do not qualify as adverse actions for purposes of retaliation claims”).
Second, the plaintiff alleges that she was retaliated by her supervisors and Co-Worker 1
because she received negative comments in her work record the day after she filed her internal
24
harassment complaint and thereafter. Pl.’s Suppl. Opp’n at 2. While the timing of the negative
comments, at first blush, gives pause, Amtrak argues that this claim fails because these negative
comments are not materially adverse actions and the plaintiff has not demonstrated that she
would not have received those negative marks but for her harassment complaint. Def.’s Suppl.
Reply Supp. Mot. Summ. J. (“Def.’s Suppl.”) at 8–9, ECF No. 40. The Court agrees for several
reasons.
First, the negative comments in the plaintiff’s work record and the verbal criticism of the
plaintiff’s work performance were based on observations of actions taken by the plaintiff that she
does not dispute and, therefore, are not linked to her protected behavior. Indeed, the plaintiff
does not demonstrate that the negative comments in her work record in July 2009 are linked to
her filing the harassment complaint since her immediate supervisor was unaware of the alleged
sexual harassment at the time the criticism was documented and was only made aware a month
later when the plaintiff sent her an email regarding her sexual harassment complaint on August 6,
2009. DRO’s Investigative Findings at 8.
Between July 9, 2009, when the plaintiff first emailed her complaint to the DRO, and
October 26, 2009, when the plaintiff voluntarily transferred to work in the Yard, the plaintiff
received two negative marks. See Pl.’s Suppl. Opp’n, Ex. B (“Work Record”) at 4–5, ECF No.
39. The first for failing to obey Co-Worker 1’s direction to return seats to their original position
pursuant to safety protocol, id. at 4, and the second for failing to obey Co-Worker 1’s
instructions to ticket a passenger who had missed her stop, id. at 5; see also DRO’s Investigative
Findings at 3. Amtrak presented legitimate reasons for these informal reprimands that the
plaintiff does not rebut. The plaintiff, in fact, violated standard policies by failing to obey Co-
Worker 1’s instructions, when he was serving as a conductor. Specifically, conductors must
25
ensure that every passenger is safe and ticketed properly, Pl.’s Suppl. Opp’n, Ex. C (“Amtrak
Service Standards Manual”) at 1, ECF No. 39 (“The Conductor is responsible for the safe
movement and operation of the train, the collection and protection of Amtrak ticket revenue[.]”),
and Assistant Conductors “must follow the Conductor’s instructions,” id. Co-Worker 1’s
instructions about the proper arrangement of seats comported with applicable safety rules:
Assistant Conductors are not permitted to turn around seats because it is unsafe. See Starver
Dep. 81:1–17. In addition, another coworker, whom the plaintiff had identified as a witness for
the DRO, advised the DRO investigator that the plaintiff routinely refused to ticket passengers
properly and that Co-Worker 1 bore the consequences. DRO’s Investigative Findings at 5. In
short, the criticism of the plaintiff’s work performance appears warranted and unrelated to either
her gender or her charge of sexual harassment.
Second, the plaintiff alleges also that her new co-workers in the Yard, to which she
voluntarily transferred from the Road, retaliated against her because of her sexual harassment
complaint. Compl. ¶¶ 119, 129. Amtrak argues that this also fails because the plaintiff has
presented no proof that any of her co-workers knew of the sexual harassment complaint at the
time. Def.’s Supp. at 10. In fact, each of her supervisors in the Yard submitted declarations that
they did not know of the plaintiff’s internal sexual harassment complaint at the time she worked
there after transferring from the Road. See Smith Decl. ¶ 18; Broadus Decl. ¶ 20; Maldonado ¶
16. The plaintiff also alleges that a male co-worker did not want to work with her because of her
reputation, but the plaintiff herself admitted that she did not have actual personal knowledge of
this and cites only rank hearsay to support this allegation. Pl. Dep. 247:15–248:8 (“Q: What
evidence do you have that the reason that you were pulled off of the job is because you filed a
charge against [Co-Worker 1]? A: My engineer on 29C said to me that people do not want to
26
work with me because I get people in trouble and fired. . . . Q: Did he mention who those people
were? A: He didn’t really call anyone by name, but I knew who he was talking about.”). This is
insufficient to defeat a summary judgment motion. See Greer, 505 F.3d at 1315 (“[S]heer
hearsay . . . counts for nothing on summary judgment.”) (internal quotation marks omitted). The
plaintiff therefore cannot establish that any of the employment actions taken were motivated by
her sexual harassment complaint.
Finally, criticism of an employee’s work performance that “do[es] not amount to a
pattern of antagonism” simply does not amount to an adverse employment action sufficient to
make out a case of retaliation. Taylor, 571 F.3d at 1322 (finding employer entitled to summary
judgment on retaliation claim because allegations that plaintiff’s supervisor “criticized her work
and yelled at her . . . [do] not provide[] a reasonable jury any basis upon which to disbelieve the
[employer’s] explanation”); Turner v. U.S. Capitol Police Bd., 983 F. Supp. 2d 98, 107 (D.D.C.
2013) (poor performance evaluation does not constitute materially adverse action because it
would not have “dissuaded a reasonable worker from making or supporting a charge of
discrimination” where there is no allegation that it “caused [the] plaintiff to miss out on a bonus,
salary increase, or promotion,” or that it “hindered her professional opportunities”) (citing
Taylor, 571 F.3d at 1321). Rather than being confronted with a “pattern of antagonism,” the
plaintiff was offered numerous training opportunities to address the deficiencies observed in her
performance.
For all of these reasons, no reasonable jury could conclude that the plaintiff has made a
sufficient showing that critical comments about her work performance were made in retaliation
for her protected activity and, therefore, Amtrak is entitled to summary judgment on this aspect
of the plaintiff’s retaliation claim.
27
2. Retaliation for the Plaintiff’s Letter to the President of Amtrak
The plaintiff alleges that her first termination, effective on October 14, 2010, was in
retaliation for her sending a letter, on September 1, 2010, to the President of Amtrak. Compl. ¶¶
118, 128. She sent this letter the day after walking off the job to avoid an evaluation after her
remedial training in Wilmington, Delaware. In the letter, the plaintiff complained about her
female Yard supervisor’s conduct toward her, including attempting to evaluate her following her
remedial training on the night of August 31, 2010. See Pl.’s September 1, 2010, Letter to
Amtrak President. On September 8, 2010, the plaintiff received a Notice of Formal Investigation
from Amtrak, directing her to appear for a formal investigation, charging her with violation of
two Standards of Excellence based on her leaving her job on August 31, 2010. Not. of
Investigation.
Amtrak argues that this retaliation claim fails because the plaintiff has not established
that the Notice of Formal investigation was motivated by her letter. 7 Def.’s Mem. at 22. The
Court, again, agrees. First, the plaintiff has not shown who, if anyone, involved with the
decision to send her the Notice of Formal Investigation, was even aware of the letter to Amtrak’s
president. Second, the Notice of Formal Investigation and her first termination were based on
undisputed events that occurred on August 31, 2010. Despite knowing that she would be
evaluated, by her own admission, she walked off the job due to “stress.” Not. of Investigation. 8
7
Amtrak disputes whether the plaintiff’s letter to the President of Amtrak is protected activity under Title VII, see
Def.’s Mem. at 21–22, but the Court need not resolve this issue because, even if it is, the plaintiff has failed to
submit sufficient evidence to rebut the legitimate, non-retaliatory reasons for the plaintiff’s dismissal.
8
Following the Notice of Formal Investigation, the plaintiff attended a hearing about the charge with her union
representative, during which time she was allowed to introduce her own evidence and cross-examine witnesses. See
Amtrak February 7, 2011, Letter to Pl. at 2. She was found to have violated the two Standards of Excellence and
terminated. Id. After years of administrative appeals, those findings have not been disturbed. See generally id.;
November 16, 2011, Pub. L. Bd. Decision.
28
Therefore, the plaintiff has not provided sufficient evidence to rebut Amtrak’s legitimate,
nondiscriminatory explanation for the adverse employment action of her dismissal in 2010.
Accordingly, Amtrak is entitled to summary judgment on the plaintiff’s retaliation claims
in Counts V and VI.
IV. CONCLUSION
Upon consideration of the plaintiff’s complaint and the voluminous exhibits submitted by
both parties, the Court concludes that the plaintiff has failed to produce sufficient evidence for a
reasonable jury to find that Amtrak’s asserted non-discriminatory reasons for its treatment of the
plaintiff—namely, her poor job performance in three different job assignments in two different
cities—was not the actual reason for such treatment. Accordingly, the defendant’s motion for
summary judgment on the plaintiff’s claims of sexual harassment, hostile work environment and
retaliation is granted.
The Clerk of the Court will be directed to close this case.
An Order consistent with this Memorandum Opinion will issue contemporaneously.
DATE: September 29, 2015
Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
District Court for the District of Columbia,
ou=United States District Court Judge,
email=Howell_Chambers@dcd.uscourts.
gov, c=US
Date: 2015.09.29 10:54:37 -04'00'
___________________________
BERYL A. HOWELL
United States District Judge
29