Carter-Frost v. District of Columbia ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
PAMELA CARTER-FROST, )
)
Plaintiff, )
v. )
)
DISTRICT OF COLUMBIA, ) Civil Action No. 15-930 (EGS)
)
Defendant. )
)
MEMORANDUM OPINION
I. Introduction
Plaintiff Pamela Carter-Frost (“Ms. Carter-Frost”) brings
three claims against Defendant District of Columbia (“District”)
for events arising from her employment with the District of
Columbia Metropolitan Police Department (“MPD”). Her complaint
alleges (1) gender discrimination; (2) retaliation; and (3) a
hostile work environment—all in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §
2000(e), et seq.; the District of Columbia Human Rights Act
(“DCHRA”), D.C. Code § 2-1401.01, et seq.; and the Civil Rights
Act of 1991, 42 U.S.C. § 1981(a) (“Section 1981”). Ms. Carter-Frost
requests compensatory damages and expenses, in addition to other
equitable relief, including ordering the District to institute
policies against discrimination and imposing supervisory
training. Pending before the Court is the District’s motion for
summary judgment. See Def.’s Mot., ECF No. 19. The Court has
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carefully considered the motion, the response and reply thereto,
the applicable law, and the entire record herein. For the
reasons set forth below, the Court GRANTS IN PART and DENIES IN
PART the defendant’s motion for summary judgment. Ms. Carter-
Frost’s gender discrimination claim may proceed, but the
District is entitled to summary judgment on her retaliation and
hostile work environment claims.
II. Background
Except where indicated, the following facts are not in
dispute. Ms. Carter-Frost was an officer employed with the MPD
for over twenty-five years before she retired in 2015. Pl.’s
Dep., ECF No. 24-2 at 9:24-25; Retirement Order, ECF No. 24-4.
She started her MPD career in 1990 as a patrol officer in the
Sixth District. Id. at 9:24-25. However, for the vast majority
of her employment, from 1992 to 2012, Ms. Carter-Frost worked as
a time and attendance (“T&A”) clerk within the Criminal
Investigation Division (“CID”). Pl.’s Dep., ECF No. 24-2 at
11:6-20:3. As a T&A clerk, Ms. Carter-Frost was responsible for
preparing the payroll by inputting time entries from the
logbook, which documented each officer’s shift. Id. at 16:3-
17:1. She served as a T&A clerk in various MPD CID offices, but
she last worked in CID Headquarters. Id. at 19:5-24. While Ms.
Carter-Frost moved offices at least five times over those twenty
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years, each detail as a T&A clerk was voluntary upon application
or request. Id. at 11:6-20:3.
A. Investigation and “Involuntary” Lateral Details
In 2013, while serving as a T&A clerk at CID Headquarters,
the Investigative Services Bureau (“Bureau”) investigated Ms.
Carter-Frost for misconduct. See Investigative Report, ECF No.
24-6. According to the Bureau’s Report, Ms. Carter-Frost and
another male officer referred to as “Officer J.Y.,” were found
to have violated MPD T&A policy from November 2012 through
January 2013. Id. Officer J.Y. also performed administrative
work at CID Headquarters. Id. at 2. Unlike Ms. Carter-Frost,
Officer J.Y. was not a T&A clerk by title, but he had T&A login
credentials, and he periodically entered T&A information. Id. at
3, 6. According to the Bureau’s findings, Officer J.Y. allowed
Ms. Carter-Frost to enter her own time using his unique T&A
login code. Id. at 7. This violated MPD policy and exposed both
officers to criminal liability because T&A clerks were not
allowed to enter their own hours “due to conflict of interest.”
Id. at 6. While Ms. Carter-Frost admitted that she used Officer
J.Y.’s code to enter her own time, she claims that she was
unaware that doing so was prohibited by MPD rules. Id. at 3.
This finding was referred to the Office of the U.S.
Attorney for the District of Columbia, which declined to
prosecute the case, leaving the violation for administrative
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resolution. USAO-DC Letter, ECF No. 24-10. At that point, the
MPD upheld the charge against both officers and recommended
“adverse action” ranging from reprimand to removal for both.
Recommendation Letter, ECF No. 24-8; Notice of Proposed Action,
ECF No. 24-9. Officer J.Y. was originally suspended for five
days, Final Notice, ECF No. 24-5, but the suspension was
rescinded on appeal. Appeal, ECF No. 24-11. Neither party
submitted formal proof of Ms. Carter-Frost’s punishment. See
generally Def.’s Mot., ECF No. 19; Pl.’s Opp’n, ECF No. 24.
However, it is undisputed that Ms. Carter-Frost was
“involuntarily” transferred twice from her T&A work. Def.’s
Reply, ECF No. 28 at 8, ¶ 22; 11, ¶ 32.
In November or December 2012, Ms. Carter-Frost was
transferred to the Forensics Unit, where she “was assigned to
sit in a workspace with no windows, no telephone, and no desk.”
Pl.’s Opp’n, ECF No. 24 at 5, ¶ 4. There, she was tasked with
filing the police reports from every district. Id. ¶ 5. In
February 2013, she was “involuntarily detailed” a second time to
a patrol position in the Fifth District. Id. ¶¶ 6, 7. This post
became permanent in May 2013, as “corrective action” for her T&A
policy violation. Pl.’s Dep., ECF No. 24-2 at 52:24-53:19. Ms.
Carter-Frost alleges that she felt threatened when faced with
this corrective action: her choices, as she saw them, were to
accept this transfer or be terminated. Id. at 58:14-59:13. As a
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result of the transfer, Ms. Carter-Frost worked as a patrol
officer for the first time in twenty-two years. Id. at 60:20-25.
She remained on patrol until she retired in 2015.
B. Denied Requests and Complaints
Ms. Carter-Frost alleges that she submitted several
personnel requests, which were all denied. These requests
included a request for leave in June 2011, id. at 38:8-40:7; a
request to have her schedule changed at some point in 2012, id.
at 46:4-47:11; and “two or three” requests to be transferred
back to T&A work at the CID, id. at 30:10-18. Ms. Carter-Frost
also alleges that, beginning in November 2012, she was denied
the opportunity to accrue overtime or compensatory time. Id. at
40:20-41:2. According to Ms. Carter-Frost, her male colleagues
had their “basic work requests granted,” such as leave requests
and work preferences. Pl.’s Opp’n, ECF No. 24 at 23-24.
Ms. Carter-Frost also alleges that she made several
complaints regarding this perceived unfair treatment. She
alleges that she first filed a complaint with MPD’s Equal
Employment Opportunity (“EEO”) Branch in 2002, alleging a
hostile work environment. Pl.’s Dep., ECF No. 24-2 at 26:25-
27:19. According to Ms. Carter-Frost, she next complained in the
spring of 2012 to a Commander about her supervisor’s
preferential treatment of male officers. Id. at 34:11-15. She
allegedly made this complaint by sticking a post-it note on the
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Commander’s office door. Id. at 36:2-7. Next, Ms. Carter-Frost
alleges that she filed a second EEO complaint on November 26,
2012, concerning the MPD’s perceived “differential treatment,
retaliation, and hostile work environment.” Pl.’s Stmt. of
Disputed Facts (“Pl.’s Stmt.”), ECF No. 24-14 ¶ 19. However,
according to a MPD Investigator who searched the MPD’s EEO
archives for 2002 and 2012, there is no record of either
complaint. See Tapp Aff., ECF No. 19-2 ¶¶ 2-4.
Ultimately, on August 12, 2013, Ms. Carter-Frost filed a
complaint with the Equal Employment Opportunity Commission
(“EEOC”) and the District of Columbia Office of Human Rights
(DCOHR) alleging retaliation, gender discrimination, and a
hostile work environment. EEOC Charge, ECF No. 24-3 (amended).
She received her right to sue notice on March 17, 2015, ECF No.
24-7, and timely filed this lawsuit on June 16, 2015.
III. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only “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); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). The moving party must identify “those portions
of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
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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). On the other hand, to
defeat summary judgment, the nonmoving party must demonstrate
that there is a genuine issue of material fact. Id. at 324. A
material fact is one that is capable of affecting the outcome of
the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986), while a genuine dispute is one in which “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Further, in the summary judgment
analysis “[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255.
IV. Analysis
A. Ms. Carter-Frost’s DCHRA Claims Are Not Time-Barred
As an initial matter, the District alleges that Ms. Carter-
Frost’s DCHRA claims for gender discrimination and retaliation
are time-barred because: (1) the DCHRA statute of limitations is
one year; (2) the last incident of discrimination/retaliation
allegedly occurred in February 2013; and (3) Ms. Carter-Frost
did not file her claim until June 16, 2015, over two years
later. Def.’s Mot., ECF No. 19 at 7. The DCHRA requires that a
“private cause of action . . . shall be filed . . . within one
year of the unlawful discriminatory act, or the discovery
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thereof.” D.C. Code § 2-1403.16. But the statute of limitations
is tolled upon filing a complaint with the EEOC, which also
automatically cross-files a complaint with the DCOHR. See, e.g.,
Craig v. District of Columbia, 881 F. Supp. 2d 26, 33 (D.D.C.
2012); Ibrahim v. Unisys Corp., 582 F. Supp. 2d 41, 45-47
(D.D.C. 2008) (citing Esteños v. PAHO/WHO Federal Credit
Union, 952 A.2d 878, 880-85 (D.C. 2008)). Ms. Carter-Frost filed
her amended EEOC claim, which was cross-filed with the DCOHR, on
August 12, 2013. EEOC Charge, ECF No. 24-3. On March 17, 2015,
the EEOC denied her claim and Ms. Carter-Frost received her
right-to-sue notice. Notice Right-to-Sue, ECF No. 24-7. She
filed this lawsuit on June 16, 2015. Therefore, the statute of
limitations was tolled from August 12, 2013—the date she filed
the EEOC complaint—through March 17, 2015—the date she received
the right-to-sue notice. Ms. Carter-Frost alleges
discrimination, retaliation, and a hostile work environment
through at least February 2013. See generally Compl., ECF No. 1.
Thus, excluding the time that was tolled while the EEOC
complaint was pending, only eight to nine months elapsed between
the date of last incident and the filing of the complaint. See
Ibrahim, 582 F. Supp. 2d at 45-46 (finding that the plaintiff’s
DCHRA and Title VII claims were timely because the statute of
limitations was tolled while his claim was pending with the
EEOC). Because less than one year passed, Ms. Carter-Frost’s
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DCHRA claims are not time-barred by the applicable one year
statute of limitations.
B. A Reasonable Jury Could Conclude That Ms. Carter-Frost
Was Subject to Gender Discrimination
To establish a viable claim under Title VII, Section 1981,
and the DCHRA, Ms. Carter-Frost must provide sufficient evidence
to establish that she was subject to an adverse action motivated
by gender discrimination. Under Title VII, it is unlawful for an
employer to “discriminate against any individual with respect to
his . . . employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000(e-2)(a)(1).
For her discrimination claims pursuant to all three statutes, 1
Ms. Carter-Frost must establish “two essential elements”: “(i)
the plaintiff suffered an adverse employment action (ii) because
of the plaintiff's race, color, religion, sex, national origin,
age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196
(D.C. Cir. 2008).
If the plaintiff succeeds in proving this prima facie case
by the preponderance of the evidence, “the burden shifts to the
1 See Carpenter v. Fed. Nat’l Mortg. Ass’n, 165 F.3d 69, 72 (D.C.
Cir. 1999) (“In interpreting [the DCHRA] the District of
Columbia also follows [the Title VII] formula . . . .” (citing
Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 (D.C.
1993)); see also Lemmons v. Georgetown Univ. Hosp., 431 F. Supp.
2d 76, 86 (D.D.C. 2006) (“[D]iscrimination claims under both the
DCHRA and Section 1981 are evaluated using the same framework as
claims arising under Title VII . . . .”)(citing Mungin v. Katten
Muchin & Zavis, 116 F.3d 1549, 1553 (D.C. Cir. 1997))(emphasis
added).
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defendant to articulate some legitimate, nondiscriminatory
reason for the [adverse action].” Texas Dept. of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981) (internal citations and
quotations omitted). The employer’s burden is therefore
satisfied if it “simply ‘explains what [it] has done’ or
‘produc[es] evidence of legitimate nondiscriminatory reasons.’”
Id. at 256 (quoting Bd. of Trs. of Keene State Coll. v. Sweeney,
439 U.S. 24, 25 n. 2 (1978)).
Once the defendant employer presents a “legitimate, non-
discriminatory” reason for the adverse action, the prima facie
case “drops out of the picture,” and the burden shifts again.
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C.
Cir. 2008)(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993)). The plaintiff must then “prove by a
preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Burdine, 450 U.S. at 253. The
plaintiff may prove pretext, for example, by showing “the
employer's better treatment of similarly situated employees
outside the plaintiff's protected group, its inconsistent or
dishonest explanations, its deviation from established
procedures . . . , the employer's pattern of poor treatment of
other employees in the same protected group . . ., or other
relevant evidence that a jury could reasonably conclude evinces
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an illicit motive.” Toomer v. Mathis, Civ. No. 11-2216, 2017 WL
3084376 at *7 (D.D.C. July 19, 2017) (quoting Walker v. Johnson,
798 F.3d 1085, 1091 (D.C. Cir. 2015)). The employee’s prima
facie case is “part of the evidence” the Court “must consider in
addressing [the] question of whether she has created a genuine
issue of gender discrimination.” Czekalski v. Peters, 475 F.3d
360, 364 (D.C. Cir. 2007)(internal citations and quotations
omitted).
1. A Reasonable Jury Could Find That Ms. Carter-Frost
Was Subject to Adverse Action
It is undisputed that Ms. Carter-Frost is a woman and
therefore a member of a protected class under the statutes.
Def.’s Reply, ECF No. 28 at 5, ¶ 1. At issue, then, is whether
Ms. Carter-Frost suffered an “adverse action.” See Def.’s Mot.,
ECF No. 19 at 7-12. Ms. Carter-Frost argues that she was subject
to adverse action when she was “unjustly investigated . . . and
audited” and “involuntarily detailed to [the] Forensics Unit and
Fifth District.” Compl., ECF No. 1 ¶¶ 38-54. The District argues
that neither are adverse actions as a matter of law. Def.’s
Mot., ECF No. 19 at 7-12.
An “adverse employment action” is “a significant change in
employment status such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing significant change in benefits.” Douglas v.
11
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)(internal citations
and quotations omitted). The employee must have “experience[d]
materially adverse consequences affecting the terms, conditions,
or privileges of employment or future employment opportunities
such that a reasonable trier of fact could find objectively
tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.
Cir. 2002). Therefore, “[m]ere idiosyncrasies of personal
preference are not sufficient” nor are “[p]urely subjective
injuries, such as dissatisfaction with a reassignment, or public
humiliation or loss of reputation . . . .” Id. at 1130-31
(internal citations and quotations omitted). The Court addresses
each alleged adverse action in turn.
a. Administrative Investigation
Ms. Carter-Frost contends that the MPD investigation into
her T&A work was adverse. Generally, “the 'mere initiation' of
an investigation may not constitute a materially adverse
action.” King v. Holder, 77 F. Supp. 3d 146, 151 (D.D.C. 2015)
(citing Ware v. Billington, 344 F. Supp. 2d 63, 76 (D.D.C.
2004)). However, an investigation may be adverse if it “resulted
in ‘materially adverse consequences affecting the terms,
conditions, or privileges of [Plaintiff's] employment or
[Plaintiff's] future employment opportunities such that a
reasonable trier of fact could conclude that the plaintiff has
suffered objectively tangible harm.’” Id. at 151-52 (quoting
12
Youssef v. FBI, 687 F.3d 397, 401 (D.C. Cir. 2012)). In King v.
Holder, an investigation was adverse in part because the
plaintiff’s promotion was suspended pending the results of the
investigation, potentially affecting the plaintiff’s career. Id.
So here too. The penalties for the T&A policy violation
underlying the MPD’s investigation ranged from “reprimand to
removal.” Notice of Proposed Action, ECF No. 24-9 at 2. Just as
the stalled promotion affected the King plaintiff’s career,
possible termination affects Ms. Carter-Frost’s career. See 77
F. Supp. 3d at 151-52. Additionally, the investigation exposed
Ms. Carter-Frost to criminal liability had the U.S. Attorney’s
Office elected to prosecute, affecting far more than Ms. Carter-
Frost’s career. See USAO-DC Letter, ECF No. 24-10. Moreover, the
investigation did in fact cause “material[ly] adverse
consequences” to the terms of Ms. Carter-Frost’s employment. She
was detailed to the Forensics Unit and then to the Fifth
District as “corrective action.” Pl.’s Dep., ECF No. 24-2 at
53:8-19. On these facts, a reasonable jury could find the
Bureau’s investigation adverse because it had the potential to
“affect her employment in a meaningful way.” Compare with
Herbert v. Architect of the Capitol, 766 F. Supp. 2d 59, 79
(D.D.C. 2011)(finding that an investigation did not meaningfully
affect Plaintiff’s employment because it “involved little more
than interviews with various . . . employees; . . . never
13
proceeded beyond draft form; . . . [and there were] no
recommendations specifically directed towards [Plaintiff]”).
b. Details to the Forensics Unit and Fifth District
Ms. Carter-Frost also argues that the two details, first to
the Forensics Unit and then to the Fifth District, were adverse
actions. See Pl.’s Opp’n, ECF No. 24 at 12-14. The District
argues that these events were not adverse because the transfers
were not accompanied by a decrease in pay, benefits, or
responsibilities. Def.’s Mot., ECF No. 19 at 9-12.
Lateral transfers, as here, qualify as adverse employment
actions only when the reassignment carries with it
“significantly different responsibilities.” Czekalski v.
Peters, 475 F.3d 360, 364 (D.C. Cir. 2007)(quoting Forkkio v.
Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2001)). Generally, this
is a jury question, which the Court “may not take . . . away . .
. if a reasonable juror could find that the reassignment left
the plaintiff with significantly diminished responsibilities.”
Id. at 365. By contrast, mere “subjective dissatisfaction” with
the transfer or the plaintiff’s new working conditions does not
qualify as adverse action.” Zelaya v. UNICCO Servs. Co., 733 F.
Supp. 2d 121, 132 (D.D.C. 2010). Therefore, to determine whether
the reassignment to patrol work was adverse, the Court must
“compare the position the plaintiff held before the transfer to
the one [s]he holds afterwards.” Pardo–Kronemann v. Donovan, 601
14
F.3d 599, 607 (D.C. Cir. 2010). Viewing the evidence in the
light most favorable to Ms. Carter-Frost, she has raised a
genuine issue as to whether her second detail to the Fifth
District left her with significantly different and diminished
responsibilities.
The District suggests that Ms. Carter-Frost’s duties during
her first detail to the Forensic Department were “different” but
not “significantly different” because the work was of the same
type: “administrative.” Def.’s Mot., ECF No. 19 at 11-12. True,
but clearly it cannot make this argument for the second detail
to the Fifth District. Id. at 12. As the District itself
admits, T&A work is “administrative,” while patrolling the
streets of the Fifth District plainly is not. Id. Instead, the
District argues that the second detail was not adverse because
Ms. Carter-Frost’s responsibilities were not diminished, but
rather heightened because patrol work is critical to MPD’s
mission. Id. The Court is not persuaded that the second transfer
was adverse as a matter of law.
Whereas Ms. Carter-Frost had training and decades of
experience for her T&A role, she had not performed patrol work
for over twenty years and felt dangerously ill-equipped to be
“thrown directly onto the street.” Id. at 60:20-61:1. In
Youssef, the D.C. Circuit concluded that a jury could find that
the Plaintiff’s lateral transfer was adverse in part because his
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new position “did not utilize his skills and expertise.” 687
F.3d at 401. Similarly, Ms. Carter-Frost’s skills and expertise
as a T&A clerk were not utilized on patrol in the Fifth
District. Her former position required training and a
“certificate.” Pl.’s Dep., ECF No. 24-2 at 9:2-9; see also
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.
53, 71 (2006)(concluding that the jury had a reasonable basis to
find a reassignment adverse because the new position was “more
arduous” and the former position “required more
qualifications”). Whether or not the second detail was an
adverse action is therefore a factual dispute for a jury to
decide.
Additionally, a jury could find that Ms. Carter-Frost had
diminished responsibilities in the Fifth District based on the
District’s own characterization of her former office—calling the
CID a “specialized unit.” Answer, ECF No. 6 at 5, ¶ 32.
Additionally, the District itself described Officer J.Y.’s
admittedly “administrative” position as “prominent.” Notice of
Proposed Action, ECF No. 24-9. Not only did Ms. Carter-Frost
work in the same office, it is undisputed that she also did
“administrative” work. Def.’s Mot., ECF No. 19 at 11. Therefore,
a reasonable jury could easily conclude that her former role was
“prominent” as well. Compare with Wade v. District of Columbia,
780 F. Supp. 2d 1, 18 (D.D.C. 2011) (finding a lateral transfer
16
to patrol work not an adverse action when the Plaintiff provided
“no evidence” that the transfer affected the “privileges of his
employment”).
It may well be that patrol work is indeed more respected as
mission-critical and therefore, Ms. Carter-Frost’s
responsibilities were not diminished. But on this record, the
Court cannot agree with the District that its two employment
actions—the investigation and the transfer to the Fifth
District—were not adverse as a matter of law.
2. A Reasonable Jury Could Find That Gender
Discrimination Motivated her Transfer to the Fifth
District
Having established a prima facie case, the burden is now on
the District to proffer a legitimate, non-discriminatory reason
for investigating Ms. Carter-Frost and detailing her to the
Fifth District to work patrol. The District does not provide any
justification in the “gender discrimination” section of their
motion, relying entirely on the argument that Ms. Carter-Frost
has not established a prima facie case. See Def.’s Mot., ECF No.
19 at 8-12. However, the District does put forward a legitimate,
non-discriminatory explanation in rebutting Ms. Carter-Frost’s
retaliation claim. Id. at 16-19. Because the retaliation case
rests on the same alleged adverse action, the Court will assume
arguendo that the District intended to put forth the same
argument here. First, the District argues that it had a
17
legitimate reason to conduct the 2013 investigation because
there was good reason to believe that Ms. Carter-Frost and
Officer J.Y. violated its conflict of interest policy. Id. at
18. Second, it argues that it had a legitimate reason to detail
Ms. Carter-Frost from the CID to the Forensics Unit and then to
the Fifth District because it was inappropriate for her to
continue as a T&A clerk in light her policy violation. Id.
The District did have a legitimate, non-discriminatory
reason to conduct the investigation. It is undisputed that
Officer J.Y. allowed Ms. Carter-Frost to use his login
credentials to input her own time, violating MPD policy. See
Investigative Report, ECF No. 24-6 at 3. While Ms. Carter-Frost
claimed that she “was never told at training that she could not
enter time under someone else’s code,” there is no basis in the
record to believe that the investigation was unfounded or
initiated for pretextual reasons. Id. Additionally, the District
does assert a legitimate reason for detailing Ms. Carter-Frost
away from T&A work to the Forensics Unit, in light of her
violation. Def.’s Mot., ECF No. 19 at 18. However, the District
relies on this same explanation to justify detailing Ms. Carter-
Frost from the Forensics Unit—where she was not working as a T&A
clerk—to the Fifth District on patrol. See id. This makes less
sense because the second transfer was not from a T&A position.
However, imposing disciplinary measures are legitimate when
18
warranted after a policy infraction. See Baloch, 550 F.3d at
1200. Ms. Carter-Frost testified that the involuntary detail to
the Fifth District was punishment, or “corrective action,” for
her infraction. Pl.’s Dep., ECF No. 24-2 at 52:24-53:19.
Because the District put forward a legitimate justification
for the adverse action, the burden flips to Ms. Carter-Frost to
establish that the District’s explanation is mere pretext, such
that a reasonable jury could conclude that the District was
motivated by gender. See Burdine, 450 U.S. at 253. She met her
burden by providing evidence that the District treated similarly
situated male officers, specifically Officer J.Y., more
favorably than it did her. Pl.’s Opp’n, ECF No. 24 at 18-20.
A plaintiff can establish “pretext masking a discriminatory
motive by presenting ‘evidence suggesting that the employer
treated other employees of a different race [or gender] . . .
more favorably in the same factual circumstances.’” Burley v.
Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015)
(quoting Brady, 520 F.3d at 495). At the summary judgment stage,
a plaintiff must show, with “evidence substantiated by the
record” that she and the comparator are “similarly situated.”
Burton v. District of Columbia, 153 F. Supp. 3d 13, 67 (D.D.C.
2015). “Factors that bear on whether someone is an appropriate
comparator include the similarity of the plaintiff's and the
putative comparator's jobs and job duties, whether they were
19
disciplined by the same supervisor, and, in cases involving
discipline, the similarity of their offenses.” Burley, 801 F.3d
at 301. Generally, “[w]hether two employees are similarly
situated ordinarily presents a question of fact for the
jury,” but the court may decide that employees are not similarly
situated as a matter of law if a reasonable jury would be unable
to conclude based on the facts that the two employees were
similarly situated. George v. Leavitt, 407 F.3d 405, 414–15
(D.C. Cir. 2005) (citations omitted.)
Ms. Carter-Frost presents evidence sufficient for a
reasonable jury to conclude that she and Officer J.Y. were
similarly situated. Specifically, the two performed
administrative work in the same office: CID Headquarters. Pl.’s
Dep., ECF No. 24-2 at 50:5-51:19; Recommendation Letter, ECF No.
24-7. Despite not having the same job title, the two did the
same type of work. Indeed, the District characterizes Ms.
Carter-Frost’s “type” of work as “administrative,” Def.’s Mot.,
ECF No. 19 at 11, and it describes Officer J.Y.’s “primary
duties” as “administrative,” Investigative Report, ECF No. 24-6
at 1. Despite not serving formally as a T&A clerk, Officer J.Y.
was certified as a T&A clerk and entered T&A periodically. Pl.’s
Dep., ECF No. 24-2 at 51:3-19. Like Ms. Carter-Frost, Officer
J.Y. also had T&A login credentials and did “on a number of
occasions” log onto the T&A database. Investigative Report, ECF
20
No. 24-6 at 3. As the District itself states, the only officers
who typically had T&A credentials “were time and attendance
clerks and supervisors”. Id. at 6; see also Notice of Proposed
Action, ECF No. 24-9 at 2. Viewing the evidence in the light
most favorable to Ms. Carter-Frost, a jury could find that
Officer J.Y.’s position was sufficiently similar to hers.
The District relies exclusively on Ms. Carter-Frost’s and
Officer J.Y.’s different job titles to justify its disparate
treatment of the two: “[e]ven though J.Y. was also subject to
the administrative investigation concerning time and attendance
records, he was not a time and attendance clerk in CID.
Therefore, he is not a proper comparator.” Def.’s Mot., ECF No.
19 at 19. In support, the District cites to a single affidavit,
which concludes, based on MPD records, that Officer J.Y.’s
duties did not include inputting T&A and that he was not a T&A
clerk. Tapp Aff., ECF No. 19-2 ¶¶ 8, 10. However, evidence in
the record discussed supra indicates that Officer J.Y. did in
fact input T&A. Furthermore, it is undisputed that Officer J.Y.
and Ms. Carter-Frost underwent the same administrative
investigation for the same charge and were both found to violate
the same policy. 2 Pl.’s Opp’n, ECF No. 24 ¶ 3.
2 Because Officer J.Y. and Ms. Carter-Frost both endured the
administrative investigation and both potentially faced the same
adverse consequences, a reasonable jury could not find that the
District was motivated by Ms. Carter-Frost’s gender in
21
However, the District’s similar treatment of the two ends
there. Whereas Ms. Carter-Frost was detailed two times in three
months as “corrective action,” Officer J.Y. was not transferred
out of his “prominent” office and ultimately was not punished at
all. See Notice of Proposed Action, ECF No. 24-9; Appeal, ECF
No. 24-11. Therefore, a reasonable juror could infer, based on
the District’ unexplained disparate treatment, that it
transferred Ms. Carter-Frost to the Fifth District due to her
gender. Given this factual dispute, the District’s motion for
summary judgment on Ms. Carter-Frost’s gender discrimination
claim is DENIED. Ms. Carter-Frost’s claim may proceed, but only
to the extent that she argues that she endured gender
discrimination when she was transferred to the Fifth District.
C. A Reasonable Jury Could Not Find That Ms. Carter-Frost
Was Subject to Retaliation
As with discrimination claims, a retaliation claim is
subject to the McDonnell Douglas framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Walker v.
Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). “Under that
framework, a plaintiff must first establish a prima facie case
of retaliation by showing (1) that [s]he engaged in statutorily
initiating it. Therefore, despite finding that the
administrative investigation was an adverse action, Ms. Carter-
Frost’s gender discrimination claim may not proceed on this
basis.
22
protected activity; (2) that [s]he suffered a materially adverse
action by his employer; and (3) that a causal link connects the
two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). If
the plaintiff establishes a prima facie case, the burden shifts
to the employer to articulate a legitimate, non-retaliatory
reason for its actions. Id. If the employer does so, the burden
shifts back to the plaintiff to demonstrate that the employer's
asserted non-retaliatory reason was mere pretext for
retaliation. Id. Thus, the “central question reduces to whether
the plaintiff has produced sufficient evidence for a reasonable
jury to find that the employer's asserted non-retaliatory reason
was not the actual reason for its adverse action and that the
employer intentionally retaliated against the plaintiff.”
Walker, 798 F.3d at 1092.
At issue is whether Ms. Carter-Frost established a prima
facie case—specifically whether she engaged in protected
activity and was subject to adverse action as a result. Ms.
Carter-Frost argues that she engaged in protected activity on
four occasions: (1) in 2002, when she filed an EEO claim with
MPD’s Internal Affairs office, Pl.’s Dep., ECF No. 24-2 at
27:12-29:22; (2) “beginning in early 2012,” when she complained
to her supervisors “regularly,” Compl., ECF No. 1 ¶ 56; (3) on
November 26, 2013, when she filed an EEO complaint with MPD’s
Internal Affairs regarding the Department’s discriminatory
23
treatment, id. ¶ 57; and (4) in August 2013, when she filed a
complaint with the EEOC, id. ¶¶ 58, 59. Ms. Carter-Frost also
argues that she was subject to several adverse actions as a
result of her protected activity. She alleges that she was: (1)
“segregated from her coworkers”; (2) “audited”; (3) “placed
under investigation”; (4) denied requests for leave, overtime,
and a schedule change; (5) “involuntarily detailed” twice; and
(6) denied requests for a detail back to her T&A position. Id.
¶¶ 56, 60. The District argues that Ms. Carter-Frost failed to
establish a prima facie case as a matter of law because there is
no record of her first three complaints. Def.’s Mot., ECF No. 19
at 12-16. Moreover, the District points out that her final EEOC
complaint was filed after the alleged retaliatory behavior and
thus her activity could not have caused any retaliatory action.
Id. at 13-14.
Beyond Ms. Carter-Frost’s self-serving deposition
testimony, there is no evidence that she filed any complaint or
regularly complained to her supervisors. See generally Pl.’s
Opp’n, ECF No. 24 at 23-29. In contrast, the District submitted
an affidavit from EEO Internal Affairs Branch Investigator Tapp,
who stated that the EEO Office has no record of any complaint
from Ms. Carter-Frost in 2002 and 2012. See Tapp Aff., ECF No.
19-2 ¶¶ 3, 4; see Fields v. Office of Johnson, 520 F. Supp. 2d
101, 105 (D.D.C. 2007) (“Self-serving testimony does not create
24
genuine issues of material fact, especially where that very
testimony suggests that corroborating evidence should be readily
available.”). Moreover, Ms. Carter-Frost’s own deposition on
this subject contradicts her argument. She undermined her claim
that she “regularly complained” to her supervisors about
discriminatory treatment when she could only recall one
complaint to a supervisor. Specifically, she could only identify
a single time that she complained during the spring of 2012 when
she posted a “written post-it note” on her supervisor’s door.
Pl.’s Dep., ECF No. 24-2 at 35:15-36:6. Ms. Carter-Frost could
not remember whether her supervisor responded to the complaint.
Id. at 36:11-13. These vague, self-serving allegations are not
sufficient evidence to create a dispute of material fact. See
Arrington v. United States, 473 F.3d 329, 343 (D.C. Cir.
2006)(“When a plaintiff relies entirely on his own self-serving
testimony, which lacks any corroboration and is contradicted by
all the available . . . evidence, a court is not obligated to
reward the plaintiff with a jury trial.”). While it is
undisputed that Ms. Carter-Frost filed an amended EEOC claim in
August 2013, see ECF No. 24-3, all of the alleged adverse
actions occurred prior to February 2013. Therefore, Ms. Carter-
Frost cannot establish that the District’s actions were in
retaliation for any protected activity.
25
Moreover, even if Ms. Carter-Frost had established a prima
facie case, she fails to rebut the District’s legitimate,
nondiscriminatory reasons for the alleged adverse actions. As
discussed above, the District investigated Ms. Carter-Frost,
detailed her from T&A work, and denied her requests to return to
T&A work—all because she had violated MPD T&A policy. See Def.’s
Mot., ECF No. 19 at 18; see, e.g., Baloch, 550 F.3d at 1200
(finding it legitimate that an employer took adverse action
because the “disciplinary measures . . . occurred only after
various infractions” and therefore “good institutional
administration” justified discipline).
Ms. Carter-Frost raises the same comparator argument as she
did for her gender discrimination claim—that the District’s
reasons are pretextual because she was treated differently than
similarly situated male officers. Pl.’s Opp’n, ECF No. 24 at 25-
29. However, unlike her discrimination claim, Ms. Carter-Frost
fails to establish that Officer J.Y. and other male officers are
proper comparators because she includes no information, beyond
speculative conclusions, about the male officers’ protected
activity. See id. Without this information, the Court has no
basis to find that the male officers and Ms. Carter-Frost are
similarly situated. To succeed in a disparate treatment
argument, “a plaintiff can cite the employer's better treatment
of similarly situated employees outside the plaintiff's
26
protected group . . . .” Toomer, 2017 WL 3084376 at *7 (citing
Walker, 798 F.3d at 1092)(emphasis added). For the
discrimination analysis, the Court had that information
concerning Officer J.Y.’s gender. Here, the Court has no
information as to whether Officer J.Y. is “outside” Ms. Carter-
Frost’s “protected group,” that is, employees who engage in
protected activity. See Felder v. Johanns, 595 F. Supp. 2d 46,
68 (D.D.C. 2009)(examining whether the comparator employee
“engaged in protected activity” to determine whether that
employee was treated more favorably); Anderson v. Donahoe, 699
F.3d 989, 996 (7th Cir. 2012) (“Plaintiff has not identified
other employees who did not file EEO complaints (or engage in
similar protected activity) that received more favorable
treatment . . . . his claim fails.”). Ms. Carter-Frost merely
speculates that Officer J.Y. has “no known EEO activity” without
citing support in the record. Compl., ECF No. 1 ¶ 32. While the
Court must examine the facts in the light most favorable to Ms.
Carter-Frost, it cannot “accept bare conclusory allegations as
fact.” Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).
Therefore, unlike her discrimination claim, Ms. Carter-Frost
failed present evidence such that a reasonable jury could
believe that she suffered retaliation as a result of protected
activity, the District’s motion for summary judgment on this
claim is GRANTED.
27
D. A Reasonable Jury Could Not Conclude That Ms. Carter-
Frost Was Subject to a Hostile Working Environment
Ms. Carter-Frost alleges that, as a result of her protected
status and protected activity, the District subjected her to a
hostile working environment. See Compl., ECF No. 1 ¶¶ 73-84.
According to Ms. Carter-Frost, she was “regularly and
continually subjected to harassing conduct” including: (1)
subjecting her to an investigation; (2) segregating her from her
coworkers by detailing her to a “solitary assignment in a room
with no phone or windows”; (3) denying her leave, overtime, and
a schedule change; and (4) “involuntarily” detailing her to
patrol work. Id. ¶ 75. Ms. Carter-Frost alleges that this
harassment caused “routine[] humiliation.” Id. ¶ 74. The
District argues that Ms. Carter-Frost’s claim fails as a matter
of law because she has not presented any evidence of a hostile
work environment. Def.’s Mot., ECF No. 19 at 19-21.
To prevail on a hostile work environment claim “a plaintiff
must show that [her] employer subjected [her] to ‘discriminatory
intimidation, ridicule, and insult’ that is ‘sufficiently severe
or pervasive to alter the conditions of the victim's employment
and create an abusive working environment.’” Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Whether a
workplace is actionably hostile involves both subjective and
28
objective analysis: “[t]he victim must subjectively perceive the
environment to be abusive, and the complained about conduct must
be so severe or pervasive that it objectively creates a hostile
or abusive work environment.” Toomer, 2017 WL 3084376 at *3
(citing Harris, 510 U.S. at 21–22). The court assesses a
workplace environment by looking to “the totality of the
circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it
interferes with an employee's work performance.” Baloch, 550
F.3d at 1201 (citing Faragher v. City of Boca Raton, 524 U.S.
775, 787–88 (1998)). “These standards for judging hostility are
sufficiently demanding to ensure that Title VII does not become
a general civility code.” Faragher, 524 U.S. at 788 (internal
citation and quotation omitted). In an effort to “filter out”
complaints attacking the “ordinary tribulations of the
workplace,” the Supreme Court has “made it clear that conduct
must be extreme to amount to a change in the terms and
conditions of employment . . . .” Id. (internal citation and
quotation omitted).
Although Ms. Carter-Frost has alleged that she felt
harassed and humiliated, none of Ms. Carter-Frost’s allegations,
taken alone or in combination, suggest an objectively hostile
work environment. Ms. Carter-Frost alleges that she was
“regularly and continually subjected to harassing conduct,” but
29
the evidence that she relies on does not rise to the level of an
objectively hostile treatment. For example, Ms. Carter-Frost was
subject to an investigation for undisputed T&A violations. See
Investigative Report, ECF No. 24-6 at 3. She was detailed away
from her former colleagues as a result of that undisputed
violation. Def.’s Mot., ECF No. 19 at 18; Pl.’s Dep., ECF No.
24-2 at 52:24-53:19. Furthermore, she has not established that
she was regularly denied her requests for leave and schedule
changes. See generally Pl.’s Opp’n, ECF No. 24. Therefore, this
alleged “harassment” evidence does not show that the MPD was a
workplace permeated with “discriminatory intimidation, ridicule
and insult.” Harris, 510 U.S. at 21 (quotation marks omitted).
Just as in Outlaw v. Johnson, Ms. Carter-Frost “incorporated,
without elaboration, the allegations of disparate treatment on
which [she] relies for [her] [gender]-discrimination [and
retaliation] claims,” allegations that “cannot alone support a
hostile-work-environment claim.” 49 F. Supp. 3d 88, 91 (D.D.C.
2014). “Ultimately, ‘mere reference to alleged disparate acts of
discrimination ... cannot be transformed, without more, into a
hostile work environment.’” Id. at 92 (quoting Nurriddin v.
Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009)). Ms. Carter-Frost
does not, as she must, describe the “day-to-day” insult or
intimidation that a hostile work environment claim requires. Id.
at 91. Indeed, she does nothing more than state that she felt
30
humiliated as a result of MPD’s discriminatory treatment. See
Compl., ECF No. 1 at ¶¶ 73-84.
While Ms. Carter-Frost does complain of a single instance
of intimidation—she was “yelled at onsite and [had] her personal
space encroached upon by [her supervisor],” was “taunted” by the
supervisor, and had “to deal with implicit threats to her job”—
the record does not support that Ms. Carter-Frost’s day-to-day
environment was objectively hostile. Pl.’s Opp’n, ECF No. 24 at
24; Pl.’s Dep., ECF No. 24-2 at 32:14-34:5. For example, Ms.
Carter-Frost could not remember what the supervisor said during
this lone encounter, testifying that she was intimidated because
of the supervisor’s “tone.” Id. No reasonable jury could find
this single encounter sufficient to support a hostile work
environment claim because it does not demonstrate a
“sufficiently pervasive pattern” of hostile conduct. Toomer,
2017 WL 3084376 at *6. Indeed, a “singular stray comment does
not a hostile environment make.” Freedman v. MCI Telecommc’ns
Corp., 255 F.3d 840, 848 (D.C. Cir. 2001). Moreover, as in
Baloch, Ms. Carter-Frost’s assertions of pervasive abuse are
undermined by “the sporadic nature of the conflicts.” Baloch,
550 F.3d at 1201. While Ms. Carter-Frost may have had “clashes”
with her supervisors, the totality of the circumstances does not
rise to the pervasive pattern necessary to support a hostile
work environment claim. Id. Therefore, the District’s motion for
31
summary judgment as to the hostile work environment claim is
GRANTED.
V. Conclusion
For the foregoing reasons, the District’s summary judgment
is DENIED IN PART and GRANTED IN PART. Ms. Carter-Frost’s
remaining claim is her gender discrimination claim regarding the
“corrective action” lateral transfer to the Fifth District. A
separate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
April 9, 2018
32