Craig v. Metropolitan Police Department , 74 F. Supp. 3d 349 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOANNE T. CRAIG, :
:
Plaintiff, : Civil Action No.: 11-1200 (RC)
:
v. : Re Document No.: 70
:
DISTRICT OF COLUMBIA et al., :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Joanne Craig alleges that she was sexually harassed by a co-worker at the
Metropolitan Police Department (“MPD”), and that when she reported the harassment to her
supervisor, her supervisor retaliated by denying her training and transferring her to another
district. She brings this employment discrimination action against her employer, the District of
Columbia (the “District”), and her former supervisor, Joel Maupin (collectively, the
“Defendants”), alleging claims of sex discrimination and retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the District of Columbia
Human Rights Act, D.C. Code §§ 2-1401-01 et seq. (“DCHRA”). Now pending before the Court
is the Defendants’ motion for summary judgment. The Defendants argue first that the Plaintiff’s
claims are barred because they are unexhausted and untimely, and second, that the Plaintiff has
failed to establish a prima facie case of discrimination or retaliation. Upon consideration of the
Defendants’ motion, the memoranda in support thereof and opposition thereto, and the
evidentiary record submitted by both parties to supplement their filings, the Court will grant in
part and deny in part the Defendants’ motion for summary judgment.
II. FACTUAL BACKGROUND 1
Plaintiff Joanne Craig is a female who began working for MPD as a police officer in
1988. 2d Am. Compl. ¶¶ 8–9, ECF No. 26. 2 In November 1995, she was promoted to the
position of sergeant and assigned to MPD’s Seventh District. Id. ¶ 11. Eric Levenberry is a
male who joined MPD as an officer in 1992 and became a sergeant in 2001. See Levenberry
Dep. 21:8–22:4, 44:1–45:4, Sept. 16, 2013, ECF No. 76-3. Sgt. Craig first encountered Sgt. Eric
Levenberry in 2006 when the latter was assigned to investigate an incident involving one of Sgt.
Craig’s officers. See 2d Am. Compl. ¶ 13. Sgt. Craig recalled that Sgt. Levenberry cut her off
when she was answering one of his questions, but that he was respectful to her subordinate male
officer. Id.; Craig Dep. 95:18–97:2, May 14, 2013, ECF Nos. 70-2, 76-2.
In early 2007, Sgt. Levenberry was detailed to the Seventh District. 2d Am. Compl. ¶ 14.
Sgts. Craig and Levenberry worked in different offices and had little or no contact during Sgt.
Levenberry’s first several months at the Seventh District. See id. ¶ 14. During a chance parking
1
When a court is analyzing a motion for summary judgment, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, although many of the facts in this
case are disputed, the Court will accept the facts alleged by Sgt. Craig as true and will view the
evidence in the light most favorable to her.
2
In Sgt. Craig’s opposition to the Defendants’ motion for summary judgment, she points
out that defense counsel asked Sgt. Craig at her deposition if all of the facts alleged in her second
amended complaint were true and correct. See Pl.’s Opp’n at 3 n.1 (citing Craig Dep., 11:1–
12:15, May 14, 2013). Sgt. Craig testified that they were. As a result, she contends that the
second amended complaint became a verified complaint. Defendants have not disputed the
point, and in light of Sgt. Craig’s testimony under oath that all of the factual allegations in her
second amended complaint are true and accurate, the Court will treat the second amended
complaint as a verified complaint and the functional equivalent of an affidavit. See Neal v.
Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992) (“Verification is defined as ‘[c]onfirmation of
correctness, truth, or authenticity, by affidavit, oath, or deposition.’” (quoting Black’s Law
Dictionary 1400 (5th ed. 1979))).
2
lot encounter in October 2007, however, Sgt. Levenberry told Sgt. Craig that a female officer at
the Seventh District had made a complaint against him alleging that he had harassed her. Craig
Dep. 26:6–27:2; 2d Am. Compl. ¶ 16. While discussing the complaining officer’s allegation,
Sgt. Levenberry stated that the female officer was not his type and that “nobody wants her big
stinky butt anyway.” 2d Am. Compl. ¶ 16. Sgt. Craig was taken aback by the comment and
promptly ended the conversation. Id.In December 2007, Sgts. Craig and Levenberry began working the same shift out of the
Seventh District’s sergeant’s office. See id. ¶ 17. And although Sgt. Craig would have preferred
to avoid Sgt. Levenberry, 3 for the first several weeks that they worked together, she and Sgt.
Levenberry had a cordial relationship. Id. ¶ 22. Beginning in February 2008, however, that
relationship began to deteriorate. Id. ¶ 23.
A. Allegations regarding Sgt. Levenberry
According to Sgt. Craig, her trouble with Sgt. Levenberry began around February 2008,
when he started to cut her off when she was speaking. See Craig Dep. 100:3–11. He frequently
disagreed with or contradicted Sgt. Craig, and she believed that he did so to undermine her. Id.
at 100:12–17. Sgt. Craig responded to this behavior by walking away from Sgt. Levenberry
3
As the basis for her desire to avoid Sgt. Levenberry, Sgt. Craig cites – in addition to the
October 2007 encounter in a parking lot – stories and rumors that she had heard through the
department “grapevine” about Sgt. Levenberry’s alleged history of harassing women. See Craig
Dep. 97:21–98:15, 99:2–10; 2d Amend Compl. ¶ 21. She also claims to have had conversations
with female officers regarding other complaints about Sgt. Levenberry. See, e.g., Craig Dep.
97:21–98:15. However, Sgt. Craig does not assert that she personally witnessed Sgt. Levenberry
harassing other women or being disciplined for having done so, and she has failed to offer
supporting documentation, affidavits, or deposition testimony from those with personal
knowledge of the alleged harassment. Although the Court is compelled to accept as true all of
Sgt. Craig’s factual allegations that are based on personal knowledge, the Court cannot credit
sheer hearsay regarding Sgt. Levenberry’s alleged harassment of other women. See Gleklen v.
Democratic Cong. Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (“[Plaintiff’s]
evidence about the conversation is sheer hearsay; she would not be permitted to testify about the
conversation at trial. It therefore counts for nothing.” (citation omitted)).
3
when he attempted to initiate a conversation, and by refusing to address him when speaking to
others. Id. at 100:18–101:1. Despite her attempts to avoid speaking with him, however, Sgt.
Levenberry continued to approach Sgt. Craig. In March 2008, he began asking Sgt. Craig
questions about her personal life. Id. at 100:12–103:13. When Sgt. Levenberry asked Sgt. Craig
if she was married, she suspected that he might be considering asking her out and told him that
she was not married but was seeing someone. Id. at 102:7–11. Her suspicions were later proven
correct when despite her statement that she was seeing someone, Sgt. Levenberry asked Sgt.
Craig if she wanted to go out with him. Id. at 103:4–13. Frustrated with his refusal to listen, she
ended the conversation by declining forcefully and telling him that he needed to “go home and
fuck [his] wife.” Id. at 103:4–13.
That same month, Sgt. Craig became the subject of an unrelated and confidential internal
affairs investigation regarding her off-duty conduct. Although the investigation should have
been confidential, Sgt. Craig believed that Sgt. Levenberry somehow obtained information about
it because he told Sgt. Craig that he knew about the investigation, that she could discuss it with
him, and that he had important information for her. 2d Am. Compl. ¶¶ 30–34. Sgt. Levenberry
also loudly announced to the office that Sgt. Craig had been “down at IAD” upon her return from
an interview there, which Sgt. Craig found embarrassing. Id. ¶ 33. On another occasion, Sgt.
Levenberry sat down next to Sgt. Craig’s desk and pulled her between his legs, telling her that he
was there for her if she wanted to talk. Id. ¶ 44. When Sgt. Craig tried to move away and to pull
Sgt. Levenberry’s hands off of her chair, he refused to release her and told her to be quiet, only
letting her pull away from him after she got even louder. Id.
During the spring and summer of 2008, Sgt. Levenberry repeatedly complimented Sgt.
Craig’s physical appearance, commented on the impropriety of her attire, and stared at her in a
4
lecherous way. Id. ¶¶ 35, 40, 41. He also rubbed her hair without permission. Id. At one point
in March 2008, Sgt. Levenberry told Sgt. Craig “this is where babies come from,” while sitting
with his legs open and rubbing his groin. Id. at 104:5–17; 2d Am. Compl. ¶ 27. Sgt. Craig also
recalls an encounter in the summer of 2008 when Sgt. Levenberry interrupted her conversation
with another sergeant, saying “oh you think you’re bad, huh.” Id. ¶ 36. When Sgt. Craig replied
that she did not think so but that she would express her opinion, Sgt. Levenberry proceeded to
chase her around the room until another sergeant blocked her path, at which point Sgt.
Levenberry picked her up, threw her over his shoulders, placed his hands on her buttocks, and
said “see, you ain’t bad.” Id. Sgt. Levenberry ignored Sgt. Craig’s repeated requests to be let
down until she began to kick and scream. Id. Shortly after that incident, Sergeant Craig
complained about Sgt. Levenberry’s conduct to her superior, Lieutenant Peter Hunt. 4 Id. ¶ 37.
Lieutenant Hunt told her that they needed to learn how to get along and to “stop being silly.” Id.
Sgt. Craig decided to go about her work and hoped that Sgt. Levenberry would leave her alone.
Craig Dep. 108:4-15.
At some point after Sgt. Craig complained to Lieutenant Hunt, she came in to do roll call
and sat down at the table two chairs away from Sgt. Levenberry. Id. at 110:1–112:4. Sgt.
Levenberry then got up and moved to the area where officers were sitting, which Sgt. Craig felt
was disrespectful. Id. She also felt undermined by Sgt. Levenberry when he cut her off or
contradicted the instructions she gave to officers during roll call, and she observed that he did not
4
The precise date that Sgt. Craig spoke with Lieutenant Hunt is not clear. Her verified
complaint states that she complained to Lt. Hunt in the summer 2008, 2d Am. Compl. ¶ 37, but
at her deposition, she described the conversation as having occurred in March 2008, Craig Dep.
107:12–108:1. Neither her complaint nor her deposition claim that she spoke with Lieutenant
Hunt twice, but in her Answers to the District of Columbia’s First Set of Interrogatories, she
asserts that she reported Sgt. Levenberry’s harassment to Lt. Hunt first in early spring of 2008
and then again in the Summer of 2008. Pl.’s Resp. to Defs.’ Interrog. No. 11.
5
treat their male co-workers in a similar fashion. Id. at 112:6–18, 114:13–18. Further, she alleges
that as a result of her efforts to avoid Sgt. Levenberry and the sergeant’s office, Sgt. Levenberry
frequently misinformed the supervising lieutenants regarding Sgt. Craig’s whereabouts and work
hours, subjecting her to increased scrutiny. 2d Am. Compl. ¶ 46. She also contends that her
efforts to avoid Sgt. Levenberry’s harassment negatively affected her work, id. ¶ 45, and took a
serious toll on her mental and physical well-being, id. ¶ 58.
In addition, Sgt. Craig asserts that Sgt. Levenberry reported her partnership with another
sergeant in an effort to isolate her, id. ¶ 39, made an inappropriate comment about not knowing
why Sgt. Craig was mad because he did not sleep with her, id. ¶ 43, and told her that he knew
who she was “messing with” and that she ought to “fuck up, not down,” id. ¶ 47. Then, on
September 23, 2008, Sgt. Craig’s partner asked her to fill in for him in handling check off. Id. ¶
51. Sgt. Levenberry was the roll call official that day, and when Sgt. Craig told him that she
would be substituting for her partner, Sgt. Levenberry was rude and ignored her. Id. Sgt. Craig
responded by asking if Sgt. Levenberry was “going to continue to be a Butt Hole,” which
prompted Sgt. Levenberry to jump out of his chair yelling, forcing her back as he pressed up
against her, pointed a finger in her face and called her “a fucking bitch.” Craig Dep. 15:12–19,
89:2–21. Sgt. Craig feared for her safety during the altercation, and she filed a PD-119
complaint form with Lieutenant Patricia Janifer in response to the incident. See id. at 15:10–19.
Lieutenant Janifer held a meeting with Sgts. Craig and Levenberry about the conflict
between the two in September. Although Sgt. Craig alleges that she told Lt. Janifer that Sgt.
Levenberry was sexually harassing her, see Pl.’s Answer to Defs.’ Interrog. No. 11, ECF No. 80,
she contends that the meeting did not address any allegations of sexual harassment. See Pl.’s
Opp’n to Defs.’ Mot. for Summ. J., 20, June 9, 2014, ECF No. 76. Then, in early October 2008,
6
Commander Maupin requested a meeting with Sgt. Craig to discuss the September 23 incident.
See Pl.’s Stmt. of Facts ¶ 17, ECF No. 76-1; Pl.’s Opp’n at ¶ 39. According to Sgt. Craig, in
addition to telling Commander Maupin about the September 23 altercation that was the subject
of her complaint, she also told him that Sgt. Levenberry had been harassing her and asking her
out on dates. Craig Dep. 21:1–20. She recounted the conversation where Sgt. Levenberry asked
her out, id. 21:18–22, and she told Commander Maupin about the time that Sgt. Levenberry
picked her up and placed his hands on her buttocks, id. 22:9–23:17. Commander Maupin asked
Sgt. Craig what she wanted him to do, and she said that she no longer wanted to be around Sgt.
Levenberry. Id. Commander Maupin responded by telling Sgt. Craig to stay away from Sgt.
Levenberry. Id. 23:18–20; see also 2d Am. Compl. ¶ 53. Sgt. Craig did not speak with Sgt.
Levenberry again after meeting with Commander Maupin, Craig Dep. 176:03–09, but she does
contend that Sgt. Levenberry continued to harass her up until she left the Seventh District by
reporting her as absent to their superiors, and by speaking badly about her to her co-workers. 5
See Pl.’s Opp’n at 29; Levenberry Dep. 91:6–97:2.
B. Allegations regarding Commander Maupin
After the October 2008 meeting, Sgt. Craig contends that Commander Maupin not only
failed to take action on her sexual harassment allegations, but also denied her Police Segway
Certification training on November 24-26, 2008, Crisis Intervention Training in April 2009, and
5
Sgt. Craig asserts that Sgt. Levenberry spoke disparagingly about Sgt. Craig to her co-
workers after the September 23 incident, referring to her as the “enemy.” However, she admitted
that she did not hear him make the comments directly and learned about them only because she
was told by others about what Sgt. Levenberry had said to them. See Craig Dep. 27:14–29:21.
The Court cannot credit such statements at the summary judgment stage. See Greer v. Paulson,
505 F.3d 1306, 1315 (D.C. Cir. 2007) (“Because Greer's evidence about Carter's statement is
‘sheer hearsay,’ it ‘counts for nothing’ on summary judgment.” (quoting Gleklen, 199 F.3d at
1369)); Riggsbee v. Diversity Servs., Inc., 637 F. Supp. 2d 39, 46 (D.D.C. 2009) (“[O]n summary
judgment, statements that are impermissible hearsay or that are not based on personal knowledge
are precluded from consideration by the Court.”).
7
participation in the take home vehicle program on an unspecified date, all in retaliation for her
complaint regarding Sgt. Levenberry’s sexual harassment. 2d Am. Compl. ¶ 53.
Then, on February 21, 2010, Commander Maupin detailed Sgt. Craig out of the Seventh
District, her place of work for fifteen years, to the Fourth District, which was farther from her
home. Id. ¶ 55. The detail became a formal transfer on April 24, 2011. Id. ¶ 56. When Sgt.
Craig met with Commander Maupin in May 2011 regarding the grievance she filed over her
transfer, she asked him why she was detailed out and transferred, and Commander Maupin
replied that it was because she “had made an EEO[C] complaint.” Craig Dep. 57:1–9.
C. Procedural History
On February 26, 2009, Sgt. Craig filled out an Equal Employment Opportunity
Commission (“EEOC”) Intake Questionnaire alleging that Sgt. Levenberry was sexually
harassing her and retaliating against her. See EEOC Intake Questionnaire, Feb. 26, 2009, ECF
No. 76-6. At the end of the Intake Questionnaire was a section that asks the complainant to
check a box indicating what she would like the EEOC to do with the information provided, and it
instructs a complainant who wishes to file a charge and initiate an EEOC investigation to check
the first box. See id. at 4. Alternatively, the form provides a second box to check for those who
wish to speak with an EEOC employee before deciding whether to file a charge. Sgt. Craig did
not check either box. Id.
Sgt. Craig filed her first EEOC charge on May 19, 2009, 6 alleging that beginning in April
6
Sgt. Craig confuses her completion of the Intake Questionnaire with the filing of a
charge of discrimination with the EEOC. The two are not the same. See Park v. Howard Univ.,
71 F.3d 904, 908–09 (discussing the distinction between a valid charge under Title VII and an
unsworn pre-complaint questionnaire to which an employer did not have access); Duberry v.
Inter-Con Sec. Sys., 898 F. Supp. 2d 294, 298–99 (D.D.C. 2012) (holding that “submission of the
Intake Questionnaire is neither a substitute for the charge, nor tolls the deadline”). Although Sgt.
Craig argues that the Intake Questionnaire can be deemed a charge “if the document reasonably
8
2008, Sgt. Levenberry had sexually harassed her, discriminated against her because of her sex,
and retaliated against her by calling in sick so that she had to work extra hours. See Defs.’ Mot.
Summ. J. at Ex. 2. She amended the charge on June 16, 2009, 7 removing language that had
incorrectly referred to Sgt. Levenberry as her supervisor and deleting an erroneous statement that
she had complained about Sgt. Levenberry to the Internal Affairs Department. 8 Defs.’ Mot.
Summ. J. at Ex. 3. The amended charge clarified that Sgt. Levenberry retaliated against Sgt.
Craig because she refused his advances, and it states that he did so by, among other things,
speaking disparagingly about her to others in the office. Sgt. Craig received a right to sue letter
from the EEOC on March 31, 2012. 2d Am. Compl. ¶ 7.
On February 10, 2012, Sgt. Craig filed a second charge, this time alleging that
Commander Maupin retaliated against her for filing an EEOC complaint by transferring her to
the Fourth District on April 23, 2011. See Defs.’ Mot. Summ. J. at Ex. 4. She received a right to
sue letter corresponding to the second charge on February 28, 2012. 2d Am. Compl. ¶ 7.
Sgt. Craig initiated the present action by filing a civil complaint on June 28, 2011. She
filed her second amended complaint against the District of Columbia and Commander Maupin
can be construed to request agency action and appropriate relief on the employee’s behalf,”
Tucker v. Howard Univ. Hospital, 764 F. Supp. 2d 1, 7 (D.D.C. 2011), she seemingly ignores the
fact that she failed to complete the portion of the questionnaire that requests agency action and,
unlike the plaintiff in Tucker, she did not attach a letter from her attorney requesting the
initiation of an investigation into her claims. Accordingly, the Court cannot treat Sgt. Craig’s
completion of the February 2009 Intake Questionnaire as the equivalent of filing a charge of
discrimination with the EEOC, which Sgt. Craig did not do until May 19, 2009.
7
Although Sgt. Craig dated the amended charge June 15, 2009, she stated in her
deposition that she filled in the incorrect date and it should have read June 16, 2009. Craig Dep.
78:9–11.
8
Sgt. Craig explained at her deposition that although she called the Internal Affairs
Division once and asked to be transferred to someone in the EEO Office, the person who
answered the phone asked for her information before transferring her, and because she did not
want to provide her information, the call ended there. Craig Dep. 48:5–51:7. She did not speak
with anyone in the EEO Office or mention any names to the Internal Affairs Department. Id.9
on March 28, 2012, and this Court dismissed Sgt. Craig’s claims for unliquidated damages under
the DCHRA and her claims under Title VII as to Commander Maupin on August 2, 2012, see
Order, Aug. 22, 2012, ECF. No. 33. The following claims remain: (1) sex discrimination by the
District in violation of Title VII and the DCHRA, (2) sex discrimination by Commander Maupin
in violation of the DCHRA, (3) retaliation by the District in violation of Title VII and the
DCHRA, and (4) retaliation by Commander Maupin in violation of the DCHRA.
The Defendants have now moved for summary judgment as to all claims on the basis of a
combination of factors, including Sgt. Craig’s alleged failure to: (1) exhaust administrative
remedies, (2) file within the applicable statute of limitations, (3) utilize the District’s anti-sexual
harassment policy, (4) make out a prima facie case of sex discrimination or retaliation, and (5)
establish entitlement to the relief requested. Sgt. Craig opposes the Defendants’ motion, arguing
that her claims do not fail as a matter of law and that there are genuine issues of material fact that
make summary judgment inappropriate. For the reasons set forth below, the Court will deny the
Defendants’ motion for summary judgment as to Sgt. Craig’s discriminatory hostile work
environment claim against the District under Title VII and the DCHRA, but will grant summary
judgment in favor of the Defendants as to the remainder of Sgt. Craig’s claims. Additionally, the
Court will grant the Defendants’ motion for summary judgment on the issue of liquidated
damages against the District, but will deny the motion as it pertains to Sgt. Craig’s request for
injunctive relief from the District on the basis of her remaining claim.
III. ANALYSIS
A. Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and [thus] the movant is entitled to judgment as a matter of law.” Fed. R.
10
Civ. P. 56(a); accord Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). “A fact is material
if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about a
material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When Rule 56 is invoked, the moving party
has the initial burden of demonstrating the absence of a genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear
the burden of persuasion at trial, its burden “may be discharged by ‘showing’ — that is, pointing
out to the district court — that there is an absence of evidence to support the nonmoving party’s
case.” Id. at 325.
Once the moving party has met its burden, to defeat the motion the nonmoving party
must designate “specific facts showing that there is a genuine issue for trial.” Id. at 324 (citation
omitted). Although the Court must view this evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party’s favor, see Grosdidier v.
Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23–24 (D.C. Cir. 2013), the nonmoving party
must show more than “[t]he mere existence of a scintilla of evidence in support of” her position
— “there must be evidence on which the jury could reasonably find for [the nonmoving party].”
Anderson, 477 U.S. at 252. Moreover, the nonmoving party “may not rest upon mere allegation
or denials of his pleading but must present affirmative evidence showing a genuine issue for
trial.” Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation marks
and citation omitted).
Finally, the Court notes that “[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 at
11
summary judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013)
(citation omitted). Indeed, a court’s role in deciding a summary judgment motion is not to
“determine the truth of the matter, but instead [to] decide only whether there is a genuine issue
for trial.” Id. (citation omitted).
B. Exhaustion of Administrative Remedies under Title VII
The Defendants first argue that summary judgment is appropriate as to Sgt. Craig’s
claims under Title VII that the District unlawfully: (1) denied her training opportunities, (2)
denied her the opportunity to participate in MPD’s take home vehicle program, and (3) detailed
her to the Fourth District. 9 They contend that Sgt. Craig’s failure to mention the incidents in any
of her EEOC charges constitutes a failure to exhaust administrative remedies as to those claims,
and accordingly, the Court must grant summary judgment as a matter of law. Sgt. Craig, on the
other hand, argues that the alleged incidents constitute retaliatory harassment that is like or
reasonably related to the allegations set forth in her timely 2009 EEOC charge such that they
ought to be considered by this Court. 10 As explained below, the Defendants have the better
argument.
The EEOC, which has broad authority to enforce Title VII’s mandates, has established
9
Failure to exhaust administrative remedies is an affirmative defense, and the burden
rests with the defendant. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir.1997).
10
Sgt. Craig’s memorandum in opposition to the Defendants’ motion for summary
judgment argues that the denial of training and a vehicle and the detail were part of a single,
retaliatory hostile work environment claim exhausted by virtue of her 2009 administrative
filings. See Pl.’s Opp’n at 26, 28–30, 36. Significantly, she does not argue that this retaliatory
hostile work environment claim was included in her 2012 charge regarding her transfer to the
Fourth District. Nor does she contend that the transfer should be considered part of the same
hostile work environment claim as her training, vehicle, and detail-related allegations. See id. at
36 (identifying only the denial of training and a vehicle and the detail as the basis for her
retaliatory hostile work environment claim against the District, and distinguishing that claim
from her retaliatory transfer claim). For these reasons, the Court looks only to the 2009 EEOC
filings to determine whether Sgt. Craig exhausted her claim regarding the training, vehicle, and
detail incidents.
12
detailed procedures for the administrative resolution of discrimination complaints. Bowden v.
United States, 106 F.3d 433, 437 (D.C. Cir. 1997). “Complainants must timely exhaust these
administrative remedies before bringing their claims to court.” Id. Ordinarily, this means that a
plaintiff alleging a violation of Title VII must file an EEOC charge within 180 days of the date
that the allegedly discriminatory act occurred. 42 U.S.C. § 2000e-5(e)(1). In the District of
Columbia, however, a “worksharing agreement” between the EEOC and the local agency tasked
with investigating discrimination claims results in the automatic cross-filing of an EEOC
complaint with the local agency, thereby extending the filing deadline for plaintiffs in the
District to 300 days. See 42 U.S.C. § 2000e-5(e)(1); Carter v. George Washington Univ., 387
F.3d 872, 879 (D.C. Cir. 2004).
If a plaintiff alleges discrete acts of discrimination or retaliation – acts like a refusal to
hire, termination, failure to promote, or denial of a transfer – the plaintiff’s failure to comply
with the applicable filing deadline will cause those claims to be time barred, “even when they are
related to acts alleged in timely filed charges.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113–14 (2002). If, however, a plaintiff files an administrative complaint alleging a number
of separate acts that together make up a single hostile work environment claim, “the employer
may be liable for all acts that are part of this single claim” so long as the employee files her
charge “within 180 or 300 days of any act that is part of the hostile work environment.” Id. at
118.
In this case, the timeliness of Sgt. Craig’s 2009 charge alleging sexual harassment and
retaliation is not in question. The charge was filed on May 19, 2009, well within 300 days of the
denial of Police Segway Certification Training on November 24-26, 2008, Crisis Intervention
Training in April 2009, and participation in MPD’s Take Home Vehicle Program on an
13
unspecified date after September 23, 2008. The May 2009 charge also preceded Sgt. Craig’s
detail to the Fourth District by more than nine months. However, while the Defendants do not
question the timeliness of Sgt. Craig’s 2009 charge, they do question its scope. 11 Specifically,
the Defendants argue that the 2009 EEOC charge cannot be read to encompass Sgt. Craig’s
unfiled retaliation claims regarding the denial of training and a vehicle and her detail to the
Fourth District, and that as a consequence, those claims were not exhausted. As the Defendants
point out, neither the original May 2009 EEOC charge nor the June 2009 amended version made
mention of either Commander Maupin, the denial of training opportunities and a take home
vehicle, or the detail to the Fourth District. 12 Nevertheless, Sgt. Craig believes that those claims
are still viable because they are “like or reasonably related to” the timely allegations of ongoing
harassment and retaliation set out in her first administrative complaint. Pl.’s Opp’n at 30
(quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)).
In Park, the D.C. Circuit Court held that a “Title VII lawsuit following the EEOC charge
is limited in scope to claims that are like or reasonably related to the allegations of the charge
and growing out of such allegations.” 71 F.3d at 907 (quotation marks omitted). This limitation
serves the important function of ensuring that the charged party receives notice of the claim, and
it allows for the narrowing and prompt adjudication of issues. Id. A claim is “like or reasonably
11
See, e.g., Ashraf-Hassan v. Embassy of France in U.S., 878 F. Supp. 2d 164, 169–73
(D.D.C. 2012) (distinguishing between exhaustion arguments that are based on timeliness and
those based on scope); Ahuja v. Detica Inc., 873 F. Supp. 2d 221, 228 (D.D.C. 2012) (“[T]he
question in this case is not whether Plaintiff filed a timely charge, but rather whether she can
expand the substantive scope of this action by relying on allegations that . . . are altogether
absent from her formal Charge.”); but see Hyson v. Architect of Capitol, 802 F. Supp. 2d 84, 96
(D.D.C. 2011) (collapsing the timeliness and scope inquiries to hold that “plaintiffs may
incorporate non-exhausted allegations into a hostile work environment claim so long as some
allegations were exhausted and all of the allegations together form one hostile environment
claim.”).
12
The Court notes that if Sgt. Craig submitted any attachments along with her formal
EEOC charges, neither party has mentioned their existence or provided them to the Court.
14
related” to charged conduct if, at a minimum, it “arise[s] from the administrative investigation
that can reasonably be expected to follow the charge of discrimination.” Id. (quotation marks
omitted); see also Hampton v. Schafer, 561 F. Supp. 2d 99, 103 (D.D.C. 2008) (“[B]ecause the
alleged discriminatory conduct plaintiff uses as the foundation for his hostile work environment
claims is the same conduct about which he complained before . . . the EEOC, plaintiff has
adequately exhausted his administrative remedies.”).
Applying Park’s “like or reasonably related” test to the facts at hand, 13 the Court begins
by reviewing the allegations in Sgt. Craig’s EEOC charge. Sgt. Craig’s amended charge, filed
on June 16, 2009, indicates that she has been discriminated against on the basis of sex and
retaliated against. When asked about the particulars of her claim, Sgt. Craig supplied the
following:
13
In National Railroad Passenger Corporation v. Morgan, the Supreme Court analyzed
the timely filing requirement of Title VII and held that, with respect to hostile work environment
claims, a plaintiff “need only file a charge within 180 or 300 days of any act that is part of the
hostile work environment,” to prevent related incidents that occurred outside the statutory period
from being time-barred. See 536 U.S. 101, 118 (2002). The D.C. Circuit Court has declined to
decide whether or to what extent Morgan’s timeliness analysis affects the “like or reasonably
related” standard from the Park line of cases. See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir.
2010) (holding that it was not necessary to decide the relationship between Morgan and Park
where the plaintiff failed to exhaust administrative remedies under her preferred “like or
reasonably related” standard). For present purposes, it is sufficient to note that Morgan’s
holding regarding the timeliness of an administrative charge for exhaustion purposes does not
appear to be in direct conflict with Park’s analysis regarding a timely-filed charge’s scope. See
Ahuja v. Detica Inc., 873 F. Supp. 2d 221, 229 (D.D.C. 2012) (reasoning that “Park remains
good law because it addresses the question of when a plaintiff can expand the substantive scope
of a federal action by relying on allegations that appear in an intake questionnaire that are absent
from a timely charge,” and distinguishing Park, which addresses scope, from subsequent cases
concerned with the question of timeliness). In any event, this Court will follow the Circuit
Court’s lead in declining to decide the precise nature of the relationship between Morgan and
Park because, even using Sgt. Craig’s own “like or reasonably related” theory, she failed to
exhaust these three claims. See Hudson v. Children's Nat'l Med. Ctr., 645 F.Supp.2d 1, 3 n. 4
(D.D.C. 2009) (“Because this Circuit has yet to address the precise reach of Morgan, and
because . . . the plaintiff's allegations fail to satisfy even the more liberal standard announced in
Park, the court declines to pass on this issue.”).
15
I was hired by the Metropolitan Police Department as a Police Officer on
10/23/88. In April 2008, my employer discriminated against me and continues to
[do] so by sexually harassing me and retaliating against me. Sgt. Eric Levenberry
sexually harasses me on a continuous basis. For example, he has asked me out on
dates [and engaged in several other harassing behaviors]. . . . Finally, because I
have refused Sgt. Levenberry’s advances, he has retaliated against me. For
example, he began to make disparaging remarks about me to others in the office.
I worry that he will physically hurt me if he is able to be alone with me. I believe
that I have been discriminated against because of my sex (sexual harassment), in
violation of Title VII of the Civil Rights Act of 1964, as amended.
See Defs.’ Mot. Summ. J., Ex. 3. The administrative complaint does state a general claim of
sexual harassment and retaliation occurring between April 2008 and June 2009, but it identifies
only Sgt. Levenberry as the perpetrator of that harassment and retaliation. It does not mention
Commander Maupin by either name or position. It does not suggest that anyone other than Sgt.
Levenberry engaged in or condoned discriminatory or harassing conduct. Cf. Ashraf-Hassan v.
Embassy of France in U.S., 878 F. Supp. 2d 164, 173 (D.D.C. 2012) (holding that employer was
on notice that plaintiff’s colleagues and supervisors had discriminated against the plaintiff where
the EEO Charge mentioned one individual by name but also specifically stated that plaintiff’s
“colleagues and supervisors” had subjected her to a hostile work environment). It does not
allege that Sgt. Craig had reported Sgt. Levenberry to anyone at MPD, let alone that she was
harassed as a consequence of reporting his harassment. 14 And despite the fact that Sgt. Craig
clearly demonstrated an understanding of the amendment process – which she successfully
navigated in June 2009 – she did not seek to amend her 2009 charge to include either the prior,
uncharged incidents or her subsequent detail to the Fourth District. 15
Sgt. Craig asserts that her retaliatory hostile work environment claim based on the
14
In fact, Sgt. Craig amended her charge to remove an allegation that she had reported
Sgt. Levenberry’s harassment to Internal Affairs.
15
Once a party has submitted a complaint to the EEOC, she is free to amend it “to
include issues or claims like or related to those raised in the complaint” at any time prior to the
conclusion of the investigation. 29 C.F.R. § 1614.106(d).
16
training, vehicle and detail allegations “grow[s] out of” her 2009 EEOC charge, but she provides
no support for this assertion, and the denial of training and a vehicle occurred months prior to the
filing of her administrative complaint, which fails to make even a cursory reference to those
incidents, similar conduct, or Commander Maupin. Cf. Cross v. Small, No. 04-A-1253, 2006
WL 2819758, at *13–15 (D.D.C. Sept. 29, 2006) (holding that plaintiff’s charge of
discriminatory harassment and retaliation did not exhaust claims regarding retaliatory
disparagement that occurred prior to the filing but were omitted from the particulars of the
charge, which failed to include so much as a hint that the incident had occurred). And although
the Supreme Court recognized in Morgan the possibility that an employer could be held liable
under Title VII for acts that contributed to a single hostile work environment claim but that post-
dated an administrative charge, it accounted for that possibility where the acts were part of a
single claim and the plaintiff filed a subsequent charge encompassing both the pre- and post-
charge conduct. See Morgan, 536 U.S. at 117 (“Subsequent events . . . may still be part of the
one hostile work environment claim and a charge may be filed at a later date and still
encompass the whole.” (emphasis added)); see also Gilbert v. Napolitano, 958 F. Supp. 2d 9, 17
(D.D.C. 2013) (“How can an agency be expected to resolve matters internally if administrative
complaints are understood to spontaneously and unpredictably encompass new claims that arise
in the months after the complaint is filed? Obviously, it can't.”). Because Sgt. Craig did not file
a later charge encompassing the pertinent post-charge conduct, Morgan seemingly offers her no
relief from the exhaustion requirement. See also Burkes v. Holder, 953 F. Supp. 2d 167, 176
(D.D.C. 2013) (dismissing uncharged claims of post-complaint retaliation because plaintiff “did
not exhaust his administrative remedies with respect to any of the acts he alleges are a part of his
retaliatory hostile work environment”); Peterson v. Archstone, 601 F. Supp. 2d 123, 127 (D.D.C.
17
2009) (dismissing uncharged claim of post-complaint retaliation where plaintiff failed to amend
his administrative complaint to include the alleged retaliation). 16
By way of response, Sgt. Craig offers two arguments: first, she argues that “a lenient
standard applies” to exhaustion, and second, that Commander Maupin waived the defense of
failure to exhaust administrative remedies by virtue of his failure to argue the point in his
answer. See Pl.’s Opp’n at 30. Both arguments are unavailing. As to Sgt. Craig’s lenient
pleading standard argument, “[a]lthough it is true that the administrative charge requirement
should not be construed to place a heavy technical burden on individuals untrained in negotiating
procedural labyrinths, it is also true that the requirement of some specificity in a charge is not a
mere technicality.” Park, 71 F.3d at 907 (internal quotation marks omitted) (internal citation
omitted). “[A]llowing a complaint to encompass allegations outside the ambit of the predicate
EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as
deprive the charged party of notice of the charge.” Stewart v. White, No. 13-cv-1125, 2014 WL
3747664, at *6 (D.D.C. July 31, 2014) (quoting Marshall v. Fed. Express Corp., 130 F.3d 1095,
1098 (D.C. Cir.1997)); see also Park, 71 F.3d at 908 (“The goals behind the requirement of prior
resort to administrative relief would be frustrated if the filing of a general charge with the EEOC
16
In finding that the claims at issue were not exhausted, the Court does not hold that
every episode of harassment comprising a retaliatory hostile work environment claim must be
detailed in a plaintiff’s administrative charge. Rather, the Court holds that where a plaintiff fails
to identify conduct in her administrative charge upon which she bases a civil claim under Title
VII, and where she also fails to establish that the uncharged conduct is “like or reasonably
related to the allegations of the charge and growing out of such allegations,” she cannot recover
on the basis of the uncharged allegations that are beyond the scope of her administrative
complaint. See Park, 71 F.3d at 907; see also Morgan, 536 U.S. at 120 (holding that for
limitations purposes, a timely-filed hostile work environment charge encompasses only those
acts that “are part of the same actionable hostile work environment practice,” meaning that the
“pre- and post-limitations period incidents involved the same type of employment actions,
occurred relatively frequently, and were perpetrated by the same managers” (internal quotation
marks omitted)).
18
would open up the possibility of judicial challenges to any related conduct that took place in
connection with the employment relationship.”).
Accordingly, while a complainant need not describe every factual detail of her claim to
satisfy the exhaustion requirement, she cannot file “a vague or circumscribed EEOC charge” and
expect that charge to “satisfy the exhaustion requirement for claims it does not fairly embrace.”
Marshall, 130 F.3d at 1098; see also Youssef v. Holder, 881 F. Supp. 2d 93, 102 (D.D.C. 2012)
(explaining that a “sweeping and non-specific statement” to the effect that the complainant’s
employer maintained a hostile work environment by, among other things, investigating the
complainant, was likely so vague and ambiguous as to constitute a failure to exhaust
administrative remedies unless the complainant provided the EEO office with additional
information during the course of the investigation); Blue v. Jackson, 860 F. Supp. 2d 67, 75
(D.D.C. 2012) (holding that plaintiff failed to exhaust claim pertaining to his discriminatory
termination because the termination involved “separate conduct that was never set forth in the
administrative complaint,” which alleged discrimination on the basis of other conduct). And as
to Sgt. Craig’s waiver argument, although a defendant certainly may waive the affirmative
defense of failure to exhaust, Sgt. Craig’s claims under Title VII pertain only to the District; no
Title VII claims are pending against Commander Maupin. Commander Maupin’s failure to
argue for dismissal of Sgt. Craig’s Title VII claims on exhaustion grounds is therefore irrelevant.
In sum, the charged and uncharged incidents of retaliation in this case involve different
types of actions allegedly motivated by different oppositional activity. 17 The incidents occurred
17
The only incident of retaliatory conduct mentioned in Sgt. Craig’s amended
administrative complaint was a reference to Sgt. Levenberry making disparaging comments
about Sgt. Craig because she had rejected his advances. Defs.’ Mot. Summ. J., Ex. 3. In
contrast, Sgt. Craig now alleges that Commander Maupin engaged in different behaviors, i.e.,
denying her training and a vehicle and detailing her, and that he did so not because she rejected
19
with dissimilar frequency, 18 and were perpetrated by different individuals at different levels –
both supervisory and non-supervisory – in MPD. In the face of these differences, Sgt. Craig has
offered not an iota of support for her bald assertion that the incidents are like or reasonably
related. She has not given the Court any reason to believe that the allegations at issue were
likely revealed during the investigation of her allegations regarding Sgt. Levenberry. Cf.
Youssef, 881 F. Supp. 2d at 102 (holding that plaintiff’s provision of additional information
during the investigative process salvaged an otherwise inadequate charge). Neither has she
claimed any equitable basis for avoiding the exhaustion requirement. See Bowden, 106 F.3d at
437 (holding that the plaintiff “bears the burden of pleading and proving facts supporting
equitable avoidance of the defense”).
The Court therefore concludes that Sgt. Craig’s timely administrative charge, which
described only the harassing conduct of Sgt. Levenberry and his response to her rejection, was
not sufficient to provide notice of her uncharged claim of a retaliatory hostile work environment
created by Commander Maupin based on the denial of trainings and a vehicle and on the 2010
detail. Cf. Park, 71 F.3d at 909 (“Because Park's EEOC charge contained no claims or factual
allegations that could reasonably be expected upon investigation to lead to a hostile work
environment claim, we hold that she failed to exhaust her administrative remedies for such a
claim at the EEOC.”); see also Reynolds v. Tangherlini, 737 F.3d 1093, 1100 (7th Cir. 2013)
(holding that plaintiff’s uncharged retaliation claims were not “like or reasonably related to” his
administrative charge where “the relevant claim and the administrative charge [did not] describe
his advances, but because she reported sexual harassment committed by another sergeant. See 2d
Am. Compl. ¶¶ 53, 55.
18
Whereas Sgt. Levenberry’s harassment was allegedly continuous beginning in April
2008 until February 2010, Commander Maupin is alleged to have taken retaliatory action against
Sgt. Craig on a total of four occasions spread out over a span of roughly fifteen months.
20
the same conduct and implicate the same individuals” (internal quotation marks omitted)). The
allegation that Commander Maupin retaliated against Sgt. Craig for complaining about Sgt.
Levenberry by denying her training and a vehicle and detailing her to the Fourth District in a
retaliatory manner is not “like or reasonably related” to the allegations set forth in Sgt. Craig’s
2009 EEOC charge. The Court therefore finds that Sgt. Craig failed to exhaust her
administrative remedies as to her Title VII retaliatory hostile work environment claim based on
the denial of training opportunities and a vehicle and on the February 2010 detail. The District’s
motion for summary judgment as to those claims on the basis of Sgt. Craig’s failure to exhaust
administrative remedies is granted. 19
C. DCHRA’s Statute of Limitations
Turning from Title VII to the DCHRA, the Defendants next argue that the same subset of
claims – the denial of training opportunities and participation in the take home vehicle program
and the detail to the Fourth District – are time-barred due to Sgt. Craig’s failure to abide by the
DCHRA’s one-year statute of limitations for filing a civil complaint. In opposition, Sgt. Craig
cites the ability of D.C. plaintiffs to cross-file a complaint with the EEOC and local agency
within 300 days, see Pl.’s Opp’n at 30, and she argues that her first EEOC complaint effectively
tolled the running of the statute of limitations for these claims until she received her right to sue
letter, Pl.’s Sur-Reply in Opp’n at 4, July 31, 2014, ECF No. 86. Sgt. Craig is correct that a
timely-filed EEOC charge tolls the statute of limitations under the DCHRA, but as explained
above, Sgt. Craig’s 2009 EEOC charge did not include the incidents in question and thus did not
19
Because the Court finds that Sgt. Craig failed to exhaust her claims regarding the
trainings, vehicle, and detail, it need not and will not consider the Defendants’ alternative
arguments that the incidents are discrete and do not constitute materially adverse actions, that
Sgt. Craig failed to establish that the actions were the result of gender discrimination, or that they
are inadequate to support a hostile work environment claim.
21
toll the limitations period as to those incidents.
Section 2–1403.16 of the D.C. Code provides that any DCHRA claim must be filed
within one year of the allegedly unlawful incident’s occurrence or the discovery thereof. Ellis v.
Georgetown Univ. Hosp., 631 F.Supp.2d 71, 77 (D.D.C. 2009). The Code further instructs that
“[t]he timely filing of a complaint with the [D.C. Office of Human Rights] . . . shall toll the
running of the statute of limitations while the complaint is pending.” § 2–1403.16. Because a
charge filed with the EEOC in the District of Columbia is automatically cross-filed with the D.C.
Office of Human Rights, filing a charge with the EEOC suffices to toll the one-year statute of
limitations for DCHRA claims. See Tucker v. Howard University Hosp., 764 F.Supp.2d 1, 6
(D.D.C. 2011); Ibrahim v. Unisys Corp., 582 F.Supp.2d 41, 45 (D.D.C. 2008) (citing Esteños v.
PAHO/WHO Fed. Credit Union, 952 A.2d 878, 886 (D.C. 2008)).
Once again, there is no question that Sgt. Craig’s 2009 charge was timely filed. It
doubtlessly served to toll the running of the statute of limitations as to the claims within the
charge. But the Defendants contend that because Sgt. Craig’s administrative complaints did not
include her training, vehicle, and detail claims, the limitations period ran out as to those claims
on February 21, 2011, a year after she was detailed. Sgt. Craig, while flatly asserting that the
Defendants’ statute of limitations argument is “in error,” has failed to address the substance of
the Defendants’ argument that the limitations period was not tolled by administrative complaints
that neglected to refer to the conduct in question. See Pl.’s Opp’n at 30. The Defendants urge
the Court to treat the limitations argument as conceded, see Defs.’ Reply to Pl.’s Opp’n at 4, July
9, 2014, ECF No. 82; see also Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.
Supp. 2d 15, 25 (D.D.C. 2003) (“[W]hen a plaintiff files an opposition to a dispositive motion
and addresses only certain arguments raised by the defendant, a court may treat those arguments
22
that the plaintiff failed to address as conceded.”), but in light of both Sgt. Craig’s position as the
non-moving party and the analytical overlap between the exhaustion and limitations issues, the
Court will proceed to analyze the limitations issue on the merits.
Borrowing from the Title VII framework, the D.C. Court of Appeals has held in the
DCHRA context that “[i]t is only logical to limit the permissible scope of the civil action to the
scope of the EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.” Ivey v. District of Columbia, 949 A.2d 607, 615 (D.C. 2008) (quoting Sanchez
v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). Applying the same “like or
reasonably related” test articulated by the D.C. Circuit Court, the D.C. Court of Appeals
determined that “[i]t is sufficient that the EEOC be apprised, in general terms, of the alleged
discriminatory parties and the alleged discriminatory acts.” Id. Thus, where a plaintiff failed to
explicitly raise a claim of personal-appearance discrimination in her EEOC complaint but the
incidents giving rise to that claim were identical to the incidents alleged in her administrative
complaint, the D.C. Court of Appeals concluded that the claims related back to the EEOC
complaint. Id. at 616. On the other hand, where a plaintiff’s administrative complaint expressly
identified discriminatory actions taken by certain defendants but not others, the administrative
complaint will not serve to toll the DCHRA’s statute of limitations as to claims against those
defendants who were not identified in the administrative complaint. Zelaya v. UNICCO Service
Co., 587 F. Supp. 2d 277, 285 (D.D.C 2008) (reasoning that failure to sufficiently identify
certain individuals in administrative complaint meant that those individuals did not receive
adequate notice of the claims against them or the statutory opportunity to mediate); see also
Brown v. Children's Nat. Med. Ctr., 773 F. Supp. 2d 125, 136–37 (D.D.C. 2011) (“[P]laintiff's
charge of discrimination did not name the individual defendants as the parties responsible for the
23
discrimination and retaliation she suffered. Plaintiff cannot now proceed as against the
individual defendants on DCHRA claims that were neither brought within the one-year statute of
limitations nor filed with the EEOC or the DCOHR.”).
Here, unlike Ivey, the incidents in question were never alleged in any of Sgt. Craig’s
administrative complaints. As in Zelaya, the administrative complaint identified a different
individual alleged to have taken different discriminatory acts, and it failed to implicate the
alleged perpetrator of the uncharged acts by either name or position. Accordingly, and for the
reasons described above, see Part III.B, supra, the Court finds that Sgt. Craig’s timely-filed
EEOC charges failed to include the uncharged acts taken by Commander Maupin relating to
training, a vehicle, and the 2010 detail. The 2009 administrative charge therefore did not serve
to toll the DCHRA’s statute of limitations as to these unfiled allegations. Because Sgt. Craig’s
civil complaint was filed on June 28, 2011, well beyond the one-year limitations period that
closed on February 21, 2011, the Court grants the Defendants’ motion for summary judgment as
to Sgt. Craig’s training, vehicle, and detail-related claims under the DCHRA.
D. The merits of Sgt. Craig’s claims against the District
As to the District, Sgt. Craig asserts claims of discrimination and retaliation under both
the DCHRA and Title VII. The DCHRA, just like Title VII, prohibits certain discriminatory
practices by employers. See D.C. Code § 2-1402.11(a)(1). Specifically, the DCHRA – like Title
VII – makes it unlawful for an employer to “fail or refuse to hire, or to discharge, any individual;
or otherwise discriminate against any individual, with respect to his compensation, terms,
conditions, or privileges of employment” based upon several protected categories, including
sex. 20 Id.20
The DCHRA is broader than Title VII insofar as it prohibits discrimination based
24
Given the similarities between the statutes, it is not surprising that the D.C. Court of
Appeals “has made clear that federal case law addressing questions arising in Title VII cases is
applicable to the resolution of analogous issues raised regarding DCHRA claims.” Ali v. District
of Columbia, 697 F. Supp. 2d 88, 92 n.6 (D.D.C. 2010) (citing Howard Univ. v. Green, 652 A.2d
41, 45 n.3 (D.C. 1994)); see also, e.g., Regan v. Grill Concepts-D.C., Inc., 338 F. Supp. 2d 131,
134 (D.D.C. 2004) (“This Court, too, will consider [p]laintiff’s claims under [the DCHRA]
utilizing the case law developed for suits brought under Title VII.”); MacIntosh v. Bldg. Owners
& Mgrs. Ass’n Int’l, 310 F. Supp. 2d 240, 244 (D.D.C. 2004) (noting that in analyzing a claim of
employment discrimination under the DCHRA, this Court looks to Title VII jurisprudence).
Further, “in considering claims of discrimination under the DCHRA, [courts] employ the same
three-part, burden-shifting test articulated by the Supreme Court for Title VII cases in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).” 21 Hollins v. Fed. Nat. Mortg.
Ass’n, 760 A.2d 563, 571 (D.C. 2000); see also McFarland v. George Wash. Univ., 935 A.2d
337, 346 (D.C. 2007); Atlantic Richfield Co. v. District of Columbia Comm’n on Human Rights,
on the “race, color, religion, national origin, sex, age, marital status, personal appearance, sexual
orientation, gender identity or expression, family responsibilities, genetic information, disability,
matriculation, or political affiliation of any individual,” whereas Title VII prohibits
discrimination only with respect to an individual’s “race, color, religion, sex, or national origin.”
Compare D.C. Code § 2-1402.11(a)(1), with 42 U.S.C. § 2000e-2(a)(1).
21
The McDonnell Douglas burden-shifting framework operates as follows: first, if a
plaintiff alleges employment discrimination but lacks direct evidence to support the claim, the
plaintiff bears the burden of establishing a prima facie case of discrimination or retaliation. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Cones v. Shalala, 199 F.3d 512,
516 (D.C. Cir. 2000). If the plaintiff does so, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the allegedly discriminatory or retaliatory act.
McDonnell, 411 at 802. If the employer then proffers such a reason, “the burden-shifting
framework disappears,” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009), and the central
question before the court is “whether the employee produced sufficient evidence for a reasonable
jury to find that the employer's asserted [nondiscriminatory or non-retaliatory] reason was not the
actual reason and that the employer intentionally [discriminated or retaliated] against the
employee in violation of Title VII.” McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012)
(quotations omitted).
25
515 A.2d 1095, 1099 (D.C. 1986).
Thus, because Sgt. Craig alleges the same facts and violations under both Title VII and
the DCHRA, and because both statutes apply the same legal standard, the Court will analyze the
claims against the District simultaneously.
1. Sex Discrimination
Sgt. Craig claims that the District is liable for the discriminatory hostile work
environment created by Sgt. Levenberry. 22 See Pl.’s Answer to Defs.’ Interrog. No. 6. The
Defendants argue that even taking Sgt. Craig’s allegations as true, she has failed to make out a
claim of discrimination because the alleged incidents of harassment were not sufficiently severe
or pervasive to give rise to a hostile work environment. The Defendants also contend that Sgt.
Craig’s claims must fail because she unreasonably failed to take advantage of the District’s anti-
harassment policy. Finding both of these arguments unavailing, the Court will deny the
Defendants’ motion for summary judgment as to Sgt. Craig’s claim against the District that she
22
Neither Sgt. Craig’s complaint nor her briefs are models of clarity, leaving the precise
scope of her sex discrimination claim unclear. In an abundance of caution, the Court briefly
addresses the possibility that Sgt. Craig claims sex discrimination on a basis other than Sgt.
Levenberry’s sexual harassment. A searching review of the complaint, however, reveals only
allegations that Sgt. Levenberry harassed Sgt. Craig on the basis of gender, and that both Sgt.
Levenberry and Commander Maupin retaliated against Sgt. Craig for reporting the harassment.
She specifically alleges that she was denied training and a take home vehicle “because of her
opposition to the harassment by Sgt. Levenberry,” and not because of her gender. 2d Am.
Compl. ¶ 53. She also claims that she was detailed “for her oppositional and prior EEO
activity,” id. ¶ 55, and her second EEOC charge alleges that her transfer “was a retaliatory act,
directly attributable to a previous complaint filed with the EEOC,” Defs.’ Mot. for Summ. J., Ex.
4. Taking Sgt. Craig at her word, then, it appears that her sole claim of sex discrimination
regards Sgt. Levenberry’s sexual harassment. She has failed to so much as allege that any of the
other incidents in question occurred because of her sex. As a result, Sgt. Craig has failed to state
a separate claim of sex discrimination. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493
(D.C. Cir. 2008) (“[The] statutory text establishes two elements for an employment
discrimination case: (i) the plaintiff suffered an adverse employment action (ii) because of the
employee's race, color, religion, sex, or national origin.” (emphasis added)).
26
was subjected to a discriminatory hostile work environment in violation of Title VII and the
DCHRA.
It is well-established that sexual harassment is a prohibited form of sex discrimination.
See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (holding that a supervisor who
sexually harasses a subordinate discriminates on the basis of sex). To be actionable under Title
VII, the sexual harassment must be “so severe or pervasive” as to “alter the conditions of the
victim’s employment and create an abusive working environment.” Faragher v. City of Boca
Raton, 524 U.S. 775, 786 (1998) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S.
75, 78 (1998)); see also Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (“When the workplace is
permeated with 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, Title VII is violated.”). “[S]imple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher, 524 U.S. at 788.
To establish a prima facie case of hostile work environment based on sexual harassment,
a plaintiff must demonstrate that (1) she is a member of a protected class; (2) she was subject to
unwelcome harassment; (3) the harassment occurred because of her sex; (4) the harassment
affected a term, condition, or privilege of employment; and (5) there is a basis for holding the
employer liable for the creation of the hostile work environment. See Johnson v. Shinseki, 811 F.
Supp. 2d 336, 345 (D.D.C. 2011); see also Elam v. Bd. of Trs., 530 F. Supp. 2d 4, 22 n.7 (D.D.C.
2007) (“The elements of a hostile work environment claim under the DCHRA mirror the federal
requirements.” (citing Lively v. Flexible Packaging Assoc., 830 A.2d 874, 889 (D.C. 2003))).
The environment must be both objectively and subjectively hostile when considered in light of
27
the totality of the circumstances, Faragher, 524 U.S. at 787, and relevant factors include “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an
employee’s work performance.” Harris, 510 U.S. at 23.
a. Severe or pervasive conduct
In this case, Sgt. Craig is a female who argues that she was subjected to unwanted sexual
harassment by her male co-worker. There is no question that Sgt. Craig is a member of a
protected class who alleges that she experienced unwanted harassment because of her sex. See
Davis v. Coastal International Security, Inc., 275 F.3d 1119, 1123 (D.C. Cir. 2002) (holding that
when the challenged conduct “involves explicit or implicit proposals of sexual activity” between
members of the opposite sex, “it is reasonable to assume those proposals would not have been
made to someone of the same sex” (internal quotation marks omitted)). The Defendants argue,
however, that Sgt. Craig has failed to establish the fourth element of a hostile work environment
claim because she has failed to show that the harassment was so severe or pervasive as to affect a
term, condition, or privilege of her employment.
As the Defendants point out, “even multiple instances of physical contact and sexual
advances may not be sufficient to meet the demanding legal standard for a hostile work
environment.” Bergbauer v. Mabus, 934 F. Supp. 2d 55, 77 (D.D.C. 2013). And in Akonji v.
Unity Healthcare, Inc., 517 F. Supp. 2d 83, 97–98 (D.D.C. 2007), this Court held that where a
plaintiff alleged that her supervisor touched the plaintiff’s buttocks, tried to kiss her and touch
her on multiple occasions, asked her out and told her she was beautiful, the plaintiff failed to
allege harassment of sufficient severity or pervasiveness to constitute a hostile work environment
claim. Id. (holding that allegations of five discrete acts over a two-year period along with
28
“infrequent inappropriate comments and staring” did not reach the level of severe or extreme
conduct prohibited by Title VII). By way of comparison, the Defendants argue, Sgt. Craig is
here alleging only four discrete incidents of harassment that occurred over a span of six or seven
months: (1) Sgt. Levenberry asking her out, (2) his touching his groin while stating that was
where babies came from, (3) his picking her up and placing his hands on her buttocks, and (4) his
calling her an offensive name while pointing his finger in her face in a manner that she viewed as
physically threatening.
Despite the Defendants’ best efforts to recast Sgt. Craig’s hostile work environment
claim as one regarding only four discrete incidents, the record simply will not support such a
finding. As Sgt. Craig rightly points out, a number of her assertions are missing from the
Defendants’ four-incident summary, including her allegations that: (1) Sgt. Levenberry
repeatedly commented on the propriety of her attire as well as her attractiveness in a way that
made her feel uncomfortable; (2) that he trapped her between his legs and refused to let her up,
telling her to be quiet when she tried to pull his arms away; (3) that he rubbed her hair without
permission; (4) that he routinely looked at her in a “lecherous” manner; (5) that he made an
inappropriate comment regarding Sgt. Craig’s mood and the two of them not sleeping together;
(6) that he made an inappropriate comment about the man he believed she was dating, telling her
to “fuck up, not down;” and (7) that Sgt. Levenberry routinely disrespected and undermined Sgt.
Craig. Even setting aside complaints regarding Sgt. Levenberry’s non-sexual behavior,
inappropriate comments, and stares, the Court is left with at least six troubling incidents: one
unwelcome romantic proposition, one lewd gesture, three incidents of unwanted touching that
included two incidents of physical restraint, and one altercation that involved physically
threatening behavior coupled with verbal abuse, all of which allegedly occurred in a span of six
29
or seven months. Cf. Akonji, 517 F. Supp. 2d at 99 (holding that five instances of alleged
harassment were not sufficiently severe or pervasive where, among other things, “well over a
year passed between the early incidents involving touching and the most recent one”).
And as Sgt. Craig points out, the Defendants’ presentation of even the limited subset of
incidents that they acknowledge fails to include all pertinent details about those incidents. For
example, Sgt. Craig testified not only that Sgt. Levenberry picked her up, threw her over his
shoulders, and grabbed her buttocks, but also that he ignored her repeated requests to be released
and that he refused to put her down until she began kicking and screaming. 2d Am. Compl. ¶ 36.
And although the Defendants acknowledge Sgt. Craig’s allegation that Sgt. Levenberry called
her a name and that she perceived him as physically threatening, they fail to mention that Sgt.
Levenberry “pressed up against” Sgt. Craig, getting so close to her that his chest pushed against
her and she had to step back several steps. Craig Dep. 89:2–90:4. Even after Sgt. Craig stepped
back, she alleges that he continued advancing towards her while pointing his finger in her face
and calling her a “fucking bitch.” Id. Both of these incidents, when described in full and
considered alongside Sgt. Craig’s other allegations, suggest the kind of serious and objectively
“physically threatening or humiliating” conduct that supports a hostile work environment claim.
Harris, 510 U.S. at 21–23.
Like the plaintiff in Johnson, Sgt. Craig has alleged a pattern of escalating harassment
that prompted her to seek medical treatment for stress and that culminated in an altercation that
left her fearing for her safety. Cf. 811 F.Supp.2d at 346 (holding that the escalating nature of the
harassment, along with the fact that it caused the plaintiff to leave work and seek medical
treatment, was sufficient to constitute a hostile work environment); see also id. (holding that
“evidence of [the plaintiff’s] mental state during this period provides further proof upon which a
30
jury could find the existence of a hostile work environment”). According to Sgt. Craig, the
harassment was so severe and pervasive that: (1) she avoided the sergeants’ office, which
negatively impacted her work; (2) she had to take leave to deal with the stress; (2) she had a hard
time even getting out of bed; (3) she began attending weekly counseling through the Employee
Assistance program to deal with her emotional distress; and (4) her physician prescribed her
medication for the same. See Craig Dep. 164:19–165:19; 2d Am. Coml. ¶¶ 45, 58; see also
Harris, 510 U.S. at 21–23 (holding that courts should consider, among other factors, whether the
alleged conduct “unreasonably interferes with an employee’s work performance”).
Viewing the allegations as a whole, the Court concludes that there is a genuine dispute of
material fact as to whether Sgt. Levenberry’s conduct was so severe or pervasive as to constitute
a hostile work environment. Cf. Baker v. Library of Cong., 260 F. Supp. 2d 59, 67 (D.D.C.
2003) (finding plaintiff made out prima facie case of sexual harassment where she alleged,
among other things, that a co-worker told her not to fall in love with him and implied that she
was a homosexual, and that she was harassed and intimidated).
b. The District’s liability
Having found that there is a genuine issue of material fact as to the severe or pervasive
element of Sgt. Craig’s prima facie case, the Court must still determine whether the District can
be held liable for Sgt. Levenberry’s actions. If the District cannot be held liable, then Sgt.
Craig’s hostile work environment claim fails as a matter of law.
An employer's liability for a hostile work environment created by its employees is
analyzed differently depending on whether the harasser is the plaintiff's supervisor or co-worker.
The parties have briefed this issue under the assumption that the Supreme Court's decisions in
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries Inc. v. Ellerth,
31
524 U.S. 742 (1998) control this case. In Faragher, the Court established that “[a]n employer is
subject to vicarious liability to a victimized employee for an actionable hostile environment
created by a supervisor with immediate (or successively higher) authority over the employee.”
524 U.S. at 807. An employer may avoid liability, however, if it can establish the following two
elements of the Faragher/Ellerth defense: “(a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.” Id.; see also Burlington, 524 U.S. at 765.
In this case, however, the alleged harasser is the plaintiff's co-worker, not her supervisor.
As a result, a different standard governs—the negligence standard set forth in Curry v. District of
Columbia, 195 F.3d 654, 659 (D.C. Cir. 1999); see also Vance v. Ball State Univ., 133 S. Ct.
2434, 2448 (2013) (holding that negligence, not the vicarious liability test set forth in Faragher
and Ellerth, “provides the better framework for evaluating an employer’s liability” when the
harassing employee does not have supervisory authority over the victim). In Curry, the D.C.
Circuit found that “[a]n employer's liability for a hostile work environment sexual harassment
claim differs depending on who does the harassing.” 195 F.3d at 659. When the harasser is not a
supervisor, “[a]n employer may be held liable for the harassment of one employee by a fellow
employee (a non-supervisor) if the employer knew or should have known of the harassment and
failed to implement prompt and appropriate corrective action.” Id. at 660. Therefore, in co-
worker harassment cases, the burden falls on the plaintiff to prove that the employer was
negligent and not on the employer to prove the elements of the Faragher/Ellerth affirmative
defense. See Vance, 133 S. Ct. at 2450.
Unfortunately, neither party has briefed the issue of employer liability under the
32
applicable negligence standard articulated in Curry and Vance. The District argues that the
Faragher/Ellerth defense applies because Sgt. Craig waited until late September 2008 to report
harassment that allegedly began in March 2008, and that whatever corrective action the District
took must have been sufficient because the harassing conduct ceased after Sgt. Craig reported it.
On the other hand, Sgt. Craig contends that she reported the harassment to a superior – Lt. Hunt
– on at least one occasion or perhaps twice in the spring and summer of 2008 without results.
The District’s anti-harassment policy provides that if an employee believes she is being
sexually harassed, “the situation should be discussed immediately with a supervisor, who shall in
turn immediately notify the Diversity and EEO Compliance Unit, Office of Professional
Responsibility.” Defs.’ Mot. Summ. J., Ex. 5. Therefore, drawing all inferences in Sgt. Craig’s
favor, it appears that the District knew or should have known of the harassment as early as
March 2008 when Sgt. Craig first reported the harassment to Lt. Hunt, but that the harassment
continued unchecked and intensified, leading up to the September 2008 incident that she reported
to Lt. Janifer and Commander Maupin. Commander Maupin told Sgt. Craig to stay away from
Sgt. Levenberry after that incident, but he allegedly took no other action, and Sgt. Craig contends
that Sgt. Levenberry continued to harass her by reporting her absent at roll call until her 2010
detail to the Fourth District.
In the absence of appropriate briefing by the Defendants, and in light of the record
presently before the Court, the Court cannot conclude as a matter of law that Sgt. Craig has
failed to establish the District’s negligence. Treating Sgt. Craig’s factual allegations as true, 23
23
Although the Defendants would have us discredit Sgt. Craig’s testimony as self-serving
and conclusory, it would be inappropriate for the Court to ignore or discredit the sworn
statements of fact provided a non-moving party when analyzing a motion for summary judgment.
See Desmond v. Mukasey, 530 F.3d 944, 964 (D.C. Cir. 2008) (explaining that “there is no rule
of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case
33
and drawing all inferences in her favor, there appears to be a genuine issue of material fact
regarding whether the District knew or should have known of the harassment. Sgt. Craig claims
to have reported Sgt. Levenberry’s harassment on at least three separate occasions and to at least
three different supervisors. Additionally, the parties dispute whether the District implemented
appropriate corrective action. The Court therefore must deny the Defendants’ motion for
summary judgment as to the discriminatory hostile work environment claim against the District
under Title VII and the DCHRA.
2. Retaliation
Sgt. Craig next alleges that the District is liable for Commander Maupin’s retaliatory
transfer of Sgt. Craig to the Fourth District in 2011 after she filed her first EEOC charge. 24
of discrimination that could withstand a summary judgment motion” (quoting George v. Leavitt,
407 F.3d 405, 413 (D.C. Cir. 2005))). The Defendants’ argument to the contrary is based upon a
misreading of Arrington v. United States, 473 F.3d 329, 342–43 (D.C. Cir. 2006). In Arrington,
the D.C. Circuit Court held that “summary judgment is ‘most likely when a plaintiff’s claim is
supported solely by the plaintiff’s own self-serving testimony, unsupported by corroborating
evidence, and undermined either by credible evidence, physical impossibility or other persuasive
evidence that the plaintiff has deliberately committed perjury.’” Id. at 343 (citation omitted).
Although Sgt. Craig’s testimony is largely unsupported by corroborating evidence, the
Defendants have not suggested that Sgt. Craig perjured herself. The Court will therefore decline
the Defendants’ invitation to disregard Sgt. Craig’s sworn factual allegations, the credibility of
which is appropriately determined by a jury.
24
Sgt. Craig’s claim of retaliatory transfer is her only viable retaliation claim against the
District, and thus it is the only claim analyzed in this section. As previously discussed in Parts
III.B and III.C of this opinion, Sgt. Craig’s claim that Commander Maupin created a retaliatory
hostile work environment by denying her trainings and a take-home vehicle and by detailing her
to the Fourth District is barred under both Title VII and the DCHRA. In addition, although Sgt.
Craig suggests that Sgt. Levenberry retaliated against her by making disparaging comments, she
has offered no potentially admissible evidence to support this claim. See n. 5, supra. To the
extent that Sgt. Craig may wish to pursue a separate claim of retaliatory hostile work
environment on the basis of Sgt. Levenberry’s reporting her absent because she complained
about him, Sgt. Craig neither established such a claim in her complaint, see 2d Am. Compl. ¶ 46
(alleging that Sgt. Levenberry misinformed their supervisors about her attendance because she
avoided him, not because she reported him), nor argued in support of such a claim in her
opposition to the Defendants’ motion for summary judgment, see Pl.’s Opp’n at 35–36 (arguing
only that the District is liable for retaliatory acts committed by Commander Maupin, not Sgt.
34
According to the Defendants, however, there is no evidence to support a causal link between Sgt.
Craig’s protected activity in 2009 and the transfer in 2011. They also contend that the lateral
transfer is not a materially adverse action. Although the Court finds that there is evidence of a
causal connection between Sgt. Craig’s EEOC charge and her subsequent transfer, based on the
facts as alleged by Sgt. Craig, the Court agrees with the Defendants that the lateral transfer at
issue is not materially adverse and thus is insufficient as a matter of law to support a claim of
retaliation.
a. Causal connection
Title VII’s anti-retaliation provision prohibits an employer from discriminating against an
employee because the employee “‘opposed any practice’ made unlawful by Title VII or ‘made a
charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Manuel v.
Potter, 685 F. Supp. 2d 46, 65 (D.D.C. 2010) (citing 42 U.S.C. §2000e-3(a); Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). To establish a prima facie case of retaliation,
Sgt. Craig must demonstrate that she engaged in a protected activity and that her employer took
materially adverse action against her because she engaged in that activity. Bridgeforth v. Jewell,
721 F.3d 661, 663 (D.C. Cir. 2013).
The Defendants do not dispute the fact that Sgt. Craig’s filing of an EEOC charge in
2009 constituted protected activity. Instead, they contend that the passage of time between Sgt.
Craig’s filing of her administrative complaint in 2009 and the transfer in 2011 precludes a
finding of causation. The Defendants are correct insofar as they acknowledge that close
Levenberry). Even if Sgt. Craig had not waived the claim, though, it clearly would have failed
on the merits because an allegation that a co-worker misreported her attendance on an
unspecified number of occasions, standing alone, lacks the requisite severity to support a
retaliatory hostile work environment claim. See Morgan, 536 U.S. at 116 (defining a hostile
work environment as ubiquitous intimidation, insult and ridicule so pervasive as to negatively
affect the plaintiff's day-to-day working life).
35
temporal proximity can establish causation, but they miss the mark by suggesting that temporal
proximity is the only means of showing causation. See Sharma v. District of Columbia, 791 F.
Supp. 2d 207, 219–20 (D.D.C. 2011); Casole v. Johanns, 577 F. Supp. 2d 138, 141 (D.D.C.
2008). Moreover, the Defendants seem to ignore Sgt. Craig’s deposition testimony stating that
during her meeting with Commander Maupin and a union representative to discuss Sgt. Craig’s
transfer-related grievance, Commander Maupin stated that Sgt. Craig was transferred to the
Fourth District because she had made an EEOC complaint. Craig Dep. 56:10–58:2. The Court
is obligated to credit Sgt. Craig’s non-conclusory, factual allegations regarding the cause of her
transfer, and as such, the Court finds that Sgt. Craig has alleged facts supporting her claim that
she was transferred because of her protected activity. The only question remaining is whether
Sgt. Craig’s transfer constituted a materially adverse action.
b. Materially adverse action
Title VII offers no protection against trivial harms, petty slights, ordinary rudeness, or
minor annoyances, and it does not establish “a general civility code for the American
workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotation marks omitted). It does, however, forbid retaliation in the form of a materially adverse
action, meaning that the action “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. (internal quotation marks omitted). Whether a
particular action is material is a context-specific question that “should be judged from the
perspective of a reasonable person in the plaintiff's position, considering all the circumstances.”
Id. at 71 (citation omitted).
The Defendants contend that because Sgt. Craig’s transfer to the Fourth District involved
no changes in her benefits, grade level, duties, or compensation, it constitutes a lateral transfer
36
that cannot be materially adverse. See Hernandez v. Gutierrez, 850 F. Supp. 2d 117, 122
(D.D.C. 2012) (holding that a transfer did not qualify as materially adverse where it was not
accompanied by a significant change in responsibilities). Sgt. Craig counters by arguing that the
transfer was material because the Fourth District was an unspecified distance farther from her
home, she had worked at the Seventh District for roughly 15 years, and the transfer “marked her
as a trouble maker.” Pl.’s Opp’n at 36–37.
In most cases, the question of whether a particular transfer is materially adverse should
be left to the jury to determine. Id.; see also Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir.
2007) (“The court may not take that question away from the jury if a reasonable juror could find
that the reassignment left the plaintiff with significantly diminished responsibilities.”). For
example, when a plaintiff contends that a consequence of his reassignment was that he lost all
supervisory responsibilities and received less significant duties, he has presented a genuine issue
as to whether the reassignment constituted a materially adverse action. See Geleta v. Gray, 645
F.3d 408, 412 (D.C. Cir. 2011); Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir.
2010) (holding that a reasonable jury could conclude from the job descriptions that attorneys in
the plaintiff’s old position had “significantly different responsibilities” than attorneys at the
position to which he was reassigned). If however, a plaintiff provides only expressions of
subjective dissatisfaction with her new position and fails to allege that the transfer had any
objectively adverse consequences, she has failed to show that her lateral transfer was materially
adverse and summary judgment is appropriate. See Hernandez, 850 F. Supp. at 122–23 (holding
that transfer of employee that resulted in the employee’s general dissatisfaction with her new
position but that was unaccompanied by any change in pay grade or job responsibilities was not
an adverse action); see also Burlington, 548 U.S. at 68 (“We refer to reactions of a reasonable
37
employee because we believe that the provision's standard for judging harm must be objective.”).
A careful review of the record in this case reveals that Sgt. Craig has offered no factual
basis on which a reasonable jury could conclude that her transfer constituted a materially adverse
action. 25 She does not dispute the fact that her transfer to the Fourth District was a lateral
transfer; she does the same job with the same title, her tour of duty has remained the same, and
she has retained both her seniority and her assignment to the day shift. See Craig Dep. 163:6–12;
Defs.’ Statement of Facts No. 34. Unlike the plaintiffs in Geleta and Pardo-Kronemann,
however, Sgt. Craig has not identified a single fact that would suggest that her lateral transfer
resulted in any change or reduction in responsibilities, duties, benefits, or prospects for
advancement. Neither has she alleged that working at the Fourth District is more dangerous, 26
more demanding, less prestigious, or less rewarding than her work at the Seventh District. Cf.
Burlington, 548 U.S. at 71 (holding that although “reassignment of job duties is not
automatically actionable,” the plaintiff in that case established the material adversity of her
reassignment by showing that the new assignment was less prestigious, “more arduous and
dirtier”). In fact, Sgt. Craig has failed to allege that her work at the Fourth District is dissimilar
25
Although Sgt. Craig’s unsupported allegation that the transfer was materially adverse
was sufficient to clear the low burden imposed by Federal Rule of Civil Procedure 8(a)(2) at the
motion to dismiss stage of these proceedings, the Defendants correctly point out that the burden
on the plaintiff at summary judgment is different. See Garay v. Liriano, 943 F. Supp. 2d 1, 20
(D.D.C. 2013) (“Summary judgment is the put up or shut up moment in a lawsuit, when a party
must show the evidence it has that would convince a trier of fact to accept its version of the
events.” (quoting Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008))).
26
In fact, the Court takes judicial notice of the fact that the Fourth District appears to
contain less violent crime than the Seventh District. Compare Crime Statistics – Fourth District:
Annual Crime Totals 2008-2012, Metropolitan Police Department,
http://mpdc.dc.gov/node/199542 (last visited Nov. 13, 2014), with Crime Statistics – Seventh
District: Annual Crime Totals 2008-2012, Metropolitan Police Department,
http://mpdc.dc.gov/node/199602 (last visited Nov. 13, 2014). See also Pharm. Research &
Manufacturers of Am. v. U.S. Dep't of Health & Human Servs., No. 13-cv-1501, 2014 WL
2171089, at *3 (D.D.C. May 23, 2014) (“Courts in this jurisdiction have frequently taken judicial
notice of information posted on official public websites of government agencies.”).
38
in any way from her work at the Seventh District.
Instead, Sgt. Craig bases her assertion of material adversity on claims that the Fourth
District is less desirable because it is farther from her home and that she did not want to leave the
place she had worked for 15 years. As to the claim that the Fourth District is farther from her
home than the Seventh District, Sgt. Craig has failed to provide the Court with any basis for
assessing the materiality of her assertion. She has not alleged any change in commuting times or
specified the comparative distances involved. 27 Critically, she has failed to so much as allege
that the change in geography has had any impact on her whatsoever. See Burlington, 548 U.S. at
67 (holding that Title VII’s anti-retaliation provision “protects an individual not from all
retaliation, but from retaliation that produces an injury or harm.”). Thus, although one could
imagine a scenario where a reassignment to a remote office resulted in significant and objective
hardship for an employee, Sgt. Craig has presented no evidence to support such a finding here.
Sgt. Craig’s only other grounds for finding the transfer to be materially adverse – that she
did not want to leave the place she had worked for 15 years and that she was afraid that others
might view her as a trouble-maker because she was transferred – represent the kind of “’purely
subjective injuries’” like “dissatisfaction with a reassignment, public humiliation, or loss of
reputation” that do not constitute adverse actions within the scope of Title VII’s anti-retaliation
provision. Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quoting Forkkio v. Powell,
306 F.3d 1127, 1130 (D.C. Cir. 2002)); Sledge v. District of Columbia, No. 11-cv-1888, 2014
WL 3845798, at *11 (D.D.C. Aug. 6, 2014); see also Garza v. Wautoma Area Sch. Dist., 984 F.
Supp. 2d 932, 942 (E.D. Wis. 2013) (rejecting claim that a lateral transfer was materially adverse
27
Given the District’s small size – 61.05 square miles, see State and County QuickFacts,
U.S. Census Bureau (Jul. 8, 2014), http://quickfacts.census.gov/qfd/states/11000.html -- it is
possible that any change in office location is not material. Certainly, Sgt. Craig has offered no
basis for finding an unspecified change in distance from home material in this case.
39
solely because it could be viewed by co-workers as a punishment). And as this Court explained
in Zelaya v. UNICCO Service Co., 733 F. Supp. 2d 121, 132 (D.D.C. 2010), a lateral transfer is
not materially adverse simply because a plaintiff may lose the relationships she had fostered with
individuals at her first job site during her years of employment there. Id. Although a plaintiff’s
loss of relationships may be subjectively detrimental, her “subjective dissatisfaction with
working conditions, without more,” is insufficient to establish the requisite material adversity
necessary to make out a retaliatory transfer claim. Id. In this case, Sgt. Craig has offered
nothing to buttress her claims of subjective dissatisfaction. She does not allege that working in a
different district will have any impact on her advancement potential, seniority, duties,
responsibilities, schedule, work assignments, or any other facet of her job. Thus, although Sgt.
Craig is correct in arguing that a lateral transfer can constitute a materially adverse action
sufficient to give rise to a Title VII claim, she has failed to show that the transfer in question was
such an action. 28 See Martin v. Locke, 659 F. Supp. 2d 140, 150 (D.D.C. 2009) (recognizing that
a lateral transfer may be materially adverse but finding that “plaintiff's generalized impressions
about the inferiority of her new job, unsupported by any specific factual allegations, do not rise
to this level”).
Accordingly, on this record, the Court cannot conclude that Sgt. Craig’s 2011 transfer
was materially adverse. The Court therefore finds that the District is entitled to summary
judgment as a matter of law regarding Sgt. Craig’s retaliation claim due to her failure to establish
that the 2011 transfer was materially adverse.
28
The Court’s finding that Sgt. Craig’s transfer was not materially adverse should not be
taken to mean that no transfer of a law enforcement officer from one district to another could be
materially adverse. Indeed, the Court could readily imagine a situation where a transfer could
dissuade a reasonable officer from making or supporting a charge of discrimination if, for
example, the transfer were accompanied by unfavorable hours and more dangerous duties, or the
reduced availability of career-enhancing assignments.
40
E. The merits of Sgt. Craig’s claims against Commander Maupin
Unlike Title VII, the DCHRA allows for individual liability under certain circumstances.
Purcell v. Thomas, 928 A.2d 699, 715 (D.C. 2007) (concluding that the DCHRA does not
“preclude a claim against individual management and supervisory employees involved in
committing the allegedly discriminatory conduct,” and holding that because the defendant “was a
high level official . . . who exercised extensive supervisory, management and administrative
authority over the corporation, he was individually liable . . . under the DCHRA”); see also
Zelaya v. UNICCO Serv. Co., 587 F.Supp.2d 277, 284–85 (D.D.C. 2008) (concluding that
plaintiff's former supervisor could be held individually liable under the DCHRA). Sgt. Craig’s
claims against Commander Maupin – that he discriminated against Sgt. Craig by aiding and
abetting Sgt. Levenberry’s sexual harassment, and that he retaliated against her by transferring
her in 2011 – are thus brought exclusively as claims under the DCHRA. The Court addresses the
Defendants’ challenges to each claim in turn.
1. Sex Discrimination
Sgt. Craig contends that Commander Maupin discriminated against her on the basis of
sex in violation of the DCHRA by virtue of his having “aided and abetted Sgt. Levenberry’s
harassment after the harassment was reported to him in early October 2008.” 29 Pl.’s Opp’n at
34. By way of evidence, Sgt. Craig points to the facts that: (1) Commander Maupin did not
follow-up on her report of harassment or, to her knowledge, punish Sgt. Levenberry; (2) his
failure to act facilitated Sgt. Levenberry’s continued harassment of Sgt. Craig by means of his
reporting her absent at roll call, and (3) Commander Maupin reassigned Sgt. Craig out of the
29
As explained in n.22, supra, Sgt. Craig has not stated a claim of sex discrimination
separate and apart from her claim that Sgt. Levenberry sexually harassed her.
41
Seventh District when he should have moved Sgt. Levenberry. 30 The Defendants, on the other
hand, point out that the conduct about which Sgt. Craig complained to Commander Maupin
ceased after she made the complaint, and that nothing in the record supports a finding that
Commander Maupin aided or abetted Sgt. Levenberry’s harassing conduct. 31
The DCHRA makes it unlawful “for any person to aid, abet, invite, compel, or coerce the
doing of any of the acts forbidden under the provisions of this chapter or to attempt to do so.”
D.C. Code § 2–1402.62. According to the D.C. Court of Appeals, “[a]n aider or abettor is one
who in some sort associate[s] himself with the venture, . . . participate[s] in it as something he
wishe[s] to bring about, [and] seek[s] by his action to make it succeed.” Wallace v. Skadden,
Arps, Slate, Meagher & Flom, 715 A.2d 873, 888 (D.C. 1998) (quoting Roy v. United States, 652
A.2d 1098, 1104 (D.C. 1995)) (alterations in original). More specifically, in the context of a
claim under the DCHRA that a supervisor aided or abetted the sexual harassment of his
subordinate, the supervisor will be liable if the plaintiff proves that the supervisor “knew or
should have known that the plaintiff was being sexually harassed, and if he repeatedly refused to
take prompt action to end the harassment.” Id. at 888 (internal quotation marks omitted); Martin
v. District of Columbia, 968 F. Supp. 2d 159, 165 (D.D.C. 2013). The Court will therefore
review the record evidence regarding Commander Maupin’s knowledge of Sgt. Levenberry’s
harassment and his response.
Although Commander Maupin testified that Sgt. Craig never told him that Sgt.
Levenberry was sexually harassing her, Maupin Dep. 68:2–69:13, at the summary judgment
30
The Court notes that Sgt. Craig does not explain how assigning Sgt. Craig to a different
district than Sgt. Levenberry, thereby ending all contact between the two, could be viewed as
either aiding or abetting Sgt. Levenberry’s harassment of Sgt. Craig.
31
The Defendants do not argue that Sgt. Craig’s claim that Commander Maupin was
complicit in Sgt. Levenberry’s harassment is time-barred. The Court therefore does not address
the issue.
42
stage, the Court will credit Sgt. Craig’s assertions to the contrary. According to Sgt. Craig, she
advised Commander Maupin in early October 2008 that Sgt. Levenberry had been harassing her.
See Craig Dep. 21:1–3. She told him about the September 2008 roll call altercation, the incident
where Sgt. Levenberry picked her up and put his hands on her buttocks, that Sgt. Levenberry had
asked her out, and that she was sick of Sgt. Levenberry’s behavior and did not feel safe. Id. at
21:4–22:15. When Commander Maupin asked Sgt. Craig what she wanted him to do about the
situation, she told him that she did not want to be around Sgt. Levenberry anymore. Id. at 23:10–
17. Commander Maupin responded by telling Sgt. Craig not to talk to Sgt. Levenberry and to
stay away from him. Id. at 23:18–20. Sgt. Craig admits that she had no further contact or
communication with Sgt. Levenberry after this date, id. at 176:03–09, but she contends that Sgt.
Levenberry continued to harass her in other ways. Nevertheless, she admits that she never spoke
to Commander Maupin about Sgt. Levenberry again after the October 2008 meeting, id. at
45:20–46:1, 136:18–21, and she does not know if anyone else informed Commander Maupin
about Sgt. Levenberry’s post-meeting conduct, id. at 28:14–19.
On this record, the Court finds that Sgt. Craig has failed to establish a claim against
Commander Maupin under the DCHRA for aiding and abetting Sgt. Levenberry’s sexual
harassment. Sgt. Craig admits that she had no further contact or communication with Sgt.
Levenberry after she reported him to Commander Maupin, and she does not allege that the
incidents that she complained about reoccurred after their meeting. Although Sgt. Craig
contends that Sgt. Levenberry harassed her in new ways after the October 2008 meeting, she also
admits that she never brought those actions to Commander Maupin’s attention. Without any
evidence that Sgt. Craig complained again or otherwise informed Commander Maupin that Sgt.
Levenberry continued to harass her even after the two stopped interacting per his instructions,
43
the Court cannot find that Commander Maupin “repeatedly refused to take prompt action to end
the harassment.” Wallace, 715 A.2d at 888 (emphasis added); see also Martin v. District of
Columbia, 968 F. Supp. 2d 159, 165 (D.D.C. 2013) (holding that without evidence that the
supervisor was on notice of retaliation, there was no basis to find that he aided or abetted it).
Thus, in the absence of any evidence that Commander Maupin was on notice of Sgt.
Levenberry’s post-meeting behavior, or that he refused multiple requests to end harassment, the
Court finds that Sgt. Craig has failed to show that Commander Maupin sought “by his action to
make [Sgt. Levenberry’s harassment] succeed.” Wallace, 715 A.2d at 888 (internal quotation
marks omitted). The Court therefore grants the Defendants’ motion for summary judgment as to
Sgt. Craig’s claim that Commander Maupin aided and abetted Sgt. Levenberry’s sexual
harassment of Sgt. Craig in violation of the DCHRA.
2. Retaliation
In addition to her discrimination claim against Commander Maupin, Sgt. Craig also
brings a claim of retaliation under the DCHRA. 32 She alleges that Commander Maupin
retaliated against her for filing her first EEOC charge by transferring her to the Fourth District.
Pl.’s Opp’n 36–37. As explained above in Part III.D.2, however, the Defendants have argued
and the Court agrees that Sgt. Craig has failed to establish that her lateral transfer constituted a
materially adverse action that would dissuade a reasonable worker from filing an EEOC charge.
The DCHRA, like Title VII, contains an anti-retaliation provision that makes it unlawful
“to coerce, threaten, retaliate against, or interfere with any person in the exercise or enjoyment of
32
As set forth above in Part III.C, the Court has granted the Defendants’ motion for
summary judgment as to Sgt. Craig’s claims against both the District and Commander Maupin
regarding the denial of training and a vehicle and the 2010 detail for failure to file within the
DCHRA’s one-year statute of limitations. The Court therefore does not analyze the merits of
those claims.
44
. . . any right granted or protected under [the DCHRA].” D.C. Code § 2–1402.61. Accordingly,
the D.C. Court of Appeals has construed the DCHRA to “guarantee employees the same
protection from retaliation as is provided by the so-called ‘opposition clause’ in Title VII.”
Vogel v. D.C. Office of Planning, 944 A.2d 456, 463 n.12 (D.C. 2008). A plaintiff seeking to
establish a prima facie case under the DCHRA is thus required, just as in the Title VII context, to
show that “a reasonable employee would have found the challenged action materially adverse
which . . . means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Propp v. Counterpart Int’l, 39 A.3d 856, 863–64 (D.C. 2012)
(quoting Burlington, 548 U.S. at 68).
Because Sgt. Craig has failed to show that her lateral transfer to the Fourth District
constituted a materially adverse action, she has failed to make out a prima facie case of
retaliation. Thus, for the reasons set forth in Part III.D.2 of this opinion, the Court will grant the
motion for summary judgment as to Sgt. Craig’s retaliation claim against Commander Maupin
under the DCHRA. 33
F. Claims for injunctive relief and liquidated damages related to the District’s conduct
For their final argument, the Defendants contend that Sgt. Craig’s requests for injunctive
relief from the District must fail, along with any claim for liquidated damages. The Defendants
note that, to the extent that Sgt. Craig seeks injunctive relief from the District in the form of a
return to the Seventh District, she has shown no entitlement to that relief because the transfer to
the Fourth District was not materially adverse. Additionally, the Defendants argue that because
Sgt. Craig has provided no evidence that she suffered any decrease in salary, her claim for
33
Because the Court has determined that the Defendants are entitled to summary
judgment as to all of Sgt. Craig’s claims against Commander Maupin, the Court need not and
will not address the Defendants’ additional argument that the relief that Sgt. Craig requests from
Commander Maupin is unavailable.
45
liquidated damages must also fail. Sgt. Craig, by way of opposition, notes that her request for
injunctive relief is not limited to a transfer back to the Seventh District and that it is too early at
this stage of the litigation to determine appropriate relief. For the reasons that follow, the Court
will grant the Defendants’ motion for summary judgment on the issue of liquidated damages but
will deny the motion as to the availability of injunctive relief.
Beginning with the issue of liquidated damages, Defendants correctly point out that Sgt.
Craig has not produced any evidence of a change in salary that might support an award of
liquidated damages. In fact, Sgt. Craig has provided no evidence that she is entitled to any
specific quantity of damages at any point in this litigation, either pre- or post-discovery. Her
complaint requests an unspecified quantity of “compensatory and general damages, subject to
proof,” 2d Am. Compl. at 18, but when asked to “itemize and describe all damages” she had
suffered, Sgt. Craig failed to provide any sort of itemization, accounting, or sum. See Pl.’s Resp.
to Defs.’ Interrog. No. 18. Then, in response to the Defendants’ motion for summary judgment
on the issue of her entitlement to liquidated damages, Sgt. Craig offered only two sentences on
the subject, stating that she “is unable to determine what the posture of the case will be at the
trial,” and thus “will request that relief for Sgt. Craig be deferred until then.” Pl.’s Opp’n at 38.
Sgt. Craig appears to misapprehend the nature of liquidated damages. “Damages are
considered to be liquidated if at the time they arose, they were ‘an easily ascertainable sum
certain.” 34 Lindsey v. District of Columbia, 810 F. Supp. 2d 189, 202 (D.D.C. 2011); cf. Black’s
Law Dictionary 419 (8th ed. 2004) (defining unliquidated damages as “[d]amages that cannot be
determined by a fixed formula and must be established by a judge or jury”). By definition, then,
34
For example, back pay awards and lost retirement benefits are easily ascertainable and
thus qualify as liquidated damages, while “compensatory damages that are not easily
ascertainable, such as emotional distress and pain and suffering, are unliquidated . . . .” Hodges
v. District of Columbia, 959 F. Supp. 2d 148, 157 (D.D.C. 2013).
46
Sgt. Craig should have been able to easily ascertain the sum of liquidated damages she seeks
prior to trial, but she has failed to do so or to establish that she will be able to do so in the future.
Additionally, as the Defendants note, Sgt. Craig’s opposition to their motion for summary
judgment does not dispute the Defendants’ assertion that she has not provided sufficient
evidence of liquidated damages. See Pl.’s Opp’n at 37–38. The Defendants therefore urge the
Court to treat the issue as conceded. 35 See COMPTEL v. FCC, 945 F. Supp. 2d 48, 55 (D.D.C.
2013) (“Where a party fails to address arguments raised by the opposing party’s motion for
summary judgment, the Court may treat those arguments as conceded.”); Hopkins v. Women’s
Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood
in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only
certain arguments raised by the defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.”).
Accordingly, due to both Sgt. Craig’s failure to produce evidence of liquidated damages
and her failure to contest the Defendants’ argument regarding the inadequacy of the evidence
presented, the Court will award summary judgment to the Defendants on the issue of liquidated
damages. 36
As to the availability of injunctive relief, the Defendants correctly point out that Sgt.
Craig is not entitled to a transfer back to the Seventh District in light of the Court’s finding that
35
Although Sgt. Craig’s opposition contained a cursory reference to damages, her sur-
reply lacks even that, and contains no mention of the subject of liquidated damages whatsoever.
See Pl.’s Sur-Reply, ECF No. 86.
36
See Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., No.
11-cv-1623, 2014 WL 4759945, at *32 (D.D.C. Sept. 25, 2014) (granting summary judgment to
defendants on issue of damages because the plaintiff “fails to address [defendant’s] argument
that it has not provided sufficient evidence of actual damages,” and noting that plaintiff would
also fail on the merits because it “provides no evidence from which the Court can determine
whether it suffered actual damages and, if so, in what amount”).
47
her transfer to the Fourth District was not materially adverse. However, in arguing that this bars
Sgt. Craig from seeking injunctive relief, the Defendants seemingly ignore the fact that Sgt.
Craig’s request for relief is not limited to a request for a return transfer. Examination of Sgt.
Craig’s complaint reveals a general request for injunctive relief from the Defendants’ allegedly
unlawful conduct committed in violation of Title VII and the DCHRA. See 2d Am. Compl. at
18. Thus, in light of the continuing viability of Sgt. Craig’s discriminatory hostile work
environment claim, and in the absence of any basis for construing the requested relief solely as a
request for a transfer, the Court will deny the Defendants’ motion for summary judgment as to
Sgt. Craig’s request for injunctive relief.
Sgt. Craig will ultimately bear the burden of establishing entitlement to the relief she
seeks, but in the absence of any compelling reason to decide the question of appropriate relief
before the District’s liability has been determined, the Court will deny the motion and decide the
issue of appropriate injunctive relief, if any, at the remedial stage of the litigation. See Davis v.
Filip, 596 F. Supp. 2d 16, 24 (D.D.C. 2009) (deferring consideration of the appropriateness of
plaintiff’s requested relief until after liability has been established).
IV. CONCLUSION
For the foregoing reasons, the Defendants’ motion for summary judgment is GRANTED
IN PART AND DENIED IN PART. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: November 24, 2014 RUDOLPH CONTRERAS
United States District Judge
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