Sims v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
SABRINA SIMS, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-625 (ESH)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
On April 20, 2012, plaintiff, then a sergeant in the Metropolitan Police Department
(“MPD”), filed suit against the District of Columbia alleging unlawful discrimination, retaliation,
and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”). (See Compl. [ECF No.1].) Following discovery, defendant
moved for summary judgment on all counts. (See Mem. in Support of D.C.’s Mot. for Summ. J.,
Nov. 13, 2013 [ECF No. 23-1] (“Def.’s Mot.”).) Plaintiff opposed this motion and filed her own
motion for partial summary judgment on the issue of retaliation. (See Pltf.’s Opp. to District’s
Mot. for Summ. J., Dec. 6, 2013 [ECF No. 26] (“Pltf.’s Opp.”); Pltf.’s Mot. for Partial Summ. J.,
Nov. 13, 2013 [ECF No. 22] (“Pltf.’s Mot.”).) Based on a thorough examination of the record
and for the reasons stated below, the Court will grant summary judgment for defendant on
plaintiff’s discrimination claim. On plaintiff’s retaliation claim, both parties’ motions for
summary judgment will be denied, and on plaintiff’s hostile work environment claim,
defendant’s motion for summary judgment will be denied.
1
FACTUAL BACKGROUND
Plaintiff joined the MPD in 1990 and began working in the Youth Investigations Branch
(“Youth Division”) in 1998. (Dep. of Sabrina Sims, June 11, 2013 [ECF No. 23-4] (“Sims
Dep.”), at 14-16.) Plaintiff remained in the Youth Division until December 2010, when, at her
request, she was transferred to the Criminal Investigations Division (“CID”). (Id. at 84-85.)
Today, plaintiff continues to work in the CID, where she was promoted to the rank of lieutenant
in 2012. (Id. at 16, 22.)
The circumstances leading up to plaintiff’s departure from the Youth Division underlie
this lawsuit. In early 2010, plaintiff complained to Commander Charnette Robinson, the female
head of the Youth Division, that she was giving preferential treatment to less senior male
officers. 1 (Id. at 59; see also Pltf.’s Opp., Ex. 7 (“D.C Charge of Discrimination Form”).) In
April 2010, plaintiff complained to Assistant Chief Newsham about this allegedly discriminatory
behavior and requested a transfer away from Commander Robinson. (Sims Dep. at 84-85.)
After plaintiff’s transfer request was denied, she began receiving what she viewed as
undesirable assignments from Commander Robinson. (Id. at 46-53, 94-95.) She was assigned to
work short-term details outside of her unit lasting no more than several days and was also
assigned to a Congressional Forum which, in her view, was unrelated to her duties. (Id. at 47-48,
94-95.) These assignments not only took plaintiff away from her regular work, but they did not
provide opportunities for overtime and overtime pay. In June 2010, plaintiff was forced to work
the midnight tour of duty for three to four weeks which plaintiff alleges, was “something no
1
Robinson came to the Youth Division in March 2009. (Sims Dep. at 99.) Plaintiff testified at her
deposition that she did not have any prior issues with her supervisors at the Youth Division until
Robinson took over as Commander. (Id.)
2
other sergeant assigned to the unit ha[d] been required to do.” 2 (Id. at 42, 118-19 (citing Pltf.’s
Opp., Ex. 5 (“Formal EEOC Complaint”), Sept. 14, 2010 [ECF No. 26-5]).)
In September 2010, plaintiff filed a formal Equal Employment Opportunity (“EEO”)
complaint with the MPD’s Diversity & Equal Employment Opportunity Compliance Branch
(“MPD’s EEO Office”), alleging unlawful gender discrimination, retaliation, and a hostile work
environment. (See “Formal EEOC Complaint.”) Plaintiff alleged that “Commander Charnette
Robinson repeatedly affords the male sergeants opportunities over the female sergeants” and
“having filed a grievance in reference to these matters [previously] . . . the actions displayed by
Commander Robinson constitute retaliation. . . .” (Id.)
Specifically, plaintiff relied on two incidents. First, she discussed Commander
Robinson’s decision not to assign her to the “Bundy School” in March 2010. Despite the fact
that plaintiff was the more senior sergeant, Commander Robinson instead assigned Sergeant
Torrence, a male, to the desirable six-month detail. Following an intervention by plaintiff’s
union, plaintiff ultimately was assigned to the Bundy School detail in September 2010.
However, unlike Sergeant Torrence, plaintiff was not given a set schedule of hours or days off.
Instead, she was scheduled to work “rotating shifts” and train another sergeant. (Id.; see also
Sims Dep. at 76-84.)
2
Defendant contests the factual veracity of this claim citing to plaintiff’s exhibits 10 and 13. (Reply to
Pltf.’s Opp to D.C.’s Mot. for Summ. J. (“Def.’s Reply”), Dec. 24, 2013 [ECF No. 31], at 7.) These
exhibits describe plaintiff’s hours as 11:30 a.m. to 8 p.m. which, as defendant correctly notes, is not the
midnight shift. However, in her deposition, plaintiff testified that unlike her co-workers, she was forced
to work the midnight shift on a number of occasions. There seems to be some confusion over exactly
when these midnight shifts were worked. However, at the summary judgment stage, the Court is required
to accept all factual statements in support of the non-moving party. Fed. R. Civ. P. 56. Therefore,
because there is a factual dispute on this issue, the Court will accept plaintiff’s contention that she worked
the midnight shift as true for purposes of deciding this motion.
3
Plaintiff also described an incident when Commander Robinson informed male sergeants
of training opportunities but failed to discuss those training opportunities with her. (See Formal
EEOC Complaint; Sims Dep. 62-65.) Even after plaintiff asked Commander Robinson about the
training opportunities directly, the Commander said that she would “get back” to plaintiff and
“give [her] the information.” (Sims Dep. at 66.) Later, after plaintiff applied for these training
programs, her application was passed over in favor of the less-senior, male sergeants. In
plaintiff’s view, she was “repeatedly overlooked and intentionally excluded” from training
programs in retaliation for her claims of discrimination. (See Formal EEO Complaint.)
After plaintiff filed her formal EEO complaint in September, she claims that she was
subjected to further retaliatory action in the form of disciplinary actions. In October 2010, less
than one month after she submitted the formal EEO complaint, plaintiff was issued a “Work
Performance Plan” (WPP) over the objections of her immediate supervisor, Lieutenant Tate.
(Sims Dep. at 67-76; Pltf.’s Opp., Ex. 3, Dep. of Alphonso Augustus Lee, Vol. 2., Sept. 19, 2013
[ECF No. 26-3], 134-35.) Plaintiff was informed that she had been placed on a WPP because
she had overdue reports. However, prior to being placed on the WWP, plaintiff was not made
aware of any problems with her work performance. (Sims Dep. at 72-73.) Moreover, no other
officers in the Youth Division were put on WPPs in 2010, despite the fact that some officers had
a greater number of overdue reports than plaintiff. (Id. at 127-129.) Later that month,
Commander Robinson relied on the fact that plaintiff was on a WWP to deny training
opportunities that plaintiff had requested. (Id. at 85-88, 94; see also Pltf.’s Opp., Ex. 8 (e-mail
from Sims to Lee, Oct. 26, 2010).)
During October and November of 2010, Commander Robinson questioned plaintiff about
her EEO Complaint and refused to let her respond in writing to a co-worker’s EEO complaint.
4
(Sims Dep. at 111-13, 135-36.) In December 2010, Commander Robinson denied plaintiff’s
leave request without any explanation. Only after plaintiff complained to Commander
Robinson’s supervisor, Assistant Chief Newsham, was her request for leave granted. (Id. at 138-
39.)
In response to plaintiff’s formal EEO complaint, Alphonso Lee (an MPD EEO official)
conducted an investigation. (Pltf.’s Opp., Ex. 2, Dep. of Alphonso Augustus Lee, Vol. 1., Sept.
19, 2013 [ECF No. 26-2] (“Lee Dep., Vol. 1.”), 35-44.) Though Mr. Lee concluded based on his
investigation that there was insufficient evidence to sustain plaintiff’s claim of gender-based
discrimination, he “sustained” plaintiff’s retaliation claim, explaining that “there was a
probability that retaliation [by Commander Robinson] occurred” based on “the allegations
proffered by Lieutenant Sims, and the information collected after the allegation was made.” (Id.
at 41-42.) On December 2, 2010, the Assistant Chief of Police “concur[ed] with [the] findings”
of Mr. Lee that retaliatory misconduct likely took place. (Pltf.’s Opp., Ex. 6.) Later that month,
plaintiff was transferred to the CID where she continues to work apparently without difficulty.
(See Sims Dep. at 85.)
ANALYSIS
I. STANDARD OF REVIEW
A district court may grant summary judgment only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). A
“material fact is one that ‘might affect the outcome of the suit under governing law.’” Talavera,
638 F.3d at 308 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). For a dispute
about a material fact to be “genuine,” the evidence must be such that “a reasonable jury could
5
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. at 248. In ruling
on a motion for summary judgment, a court must “view all facts and draw all reasonable
inferences in favor of the nonmoving party.” Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004);
Youngberg v. March, 676 F.3d 1114, 1117 (D.C. Cir. 2012). A court should grant summary
judgment only if “no reasonable jury could reach a verdict in [the non-moving party’s] favor.”
Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009).
II. DISCRIMINATION
In order to succeed on a claim of unlawful discrimination under Title VII, plaintiff first
must establish a prima facie case that “(1) she is a member of a protected class; (2) she suffered
an adverse employment action; and (3) the unfavorable action gives rise to an inference of
discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Though in this case plaintiff is a member of
protected class by virtue of her gender, the parties disagree on whether she has sufficiently
articulated an adverse employment action for purposes of establishing a prima facie case of
discrimination. Because the Court agrees with the defendant that plaintiff has failed to identify
an adverse employment action, defendant’s motion for summary judgment as to this claim will
be granted.
In the discrimination context, an adverse employment action is defined narrowly as “a
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing significant change in benefits.”
Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (citations and internal quotation marks
omitted). “[A]n employee suffers an adverse employment action if [s]he experiences materially
adverse consequences affecting the terms, conditions, or privileges of employment or future
6
employment opportunities such that a reasonable trier of fact could find objectively tangible
harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (citing Brown v. Brody, 199
F.3d 446, 457 (D.C. Cir. 1999)). In most circumstances, tangible harm “inflicts direct economic
harm.” Douglas, 559 F.3d at 552 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762
(1998)). Where the alleged significant change in employment status is not obvious, “an
employee must go the further step of demonstrating how the decision nonetheless caused such an
objectively tangible harm.” Douglas, 559 F.3d at 553.
In support of her claim, plaintiff identifies two allegedly adverse employment actions
taken by defendant. First, she argues that “involuntary details negatively affected her work
schedule.” (Pltf.’s Opp. at 30.) Second, plaintiff contends that she “lost pay, including overtime
pay, when Commander Robinson detailed [her] to the Presidential Summit in April 2010 and the
Child Advocacy Center in April 2010.” (Id.) Defendant responds that these undesirable
assignments are, as a matter of law, not materially adverse employment actions. (See Def.’s
Reply at 4-5.) Moreover, it argues, there is insufficient evidence in the record to conclude that
plaintiff in fact “lost pay, including overtime pay.” (Id. at 2-3.) At most, in defendant’s view,
plaintiff has presented evidence that she lost “the opportunity to receive overtime work and
compensation,” but the mere loss of the opportunity for overtime cannot qualify as an adverse
action absent additional evidence. (Id.)
In response to plaintiff’s first allegedly adverse action, defendant is correct that plaintiff’s
claim does not rise to the level of an adverse action sufficient to establish a prima facie case of
decimation. The Court of Appeals has held on several occasions that “purely subjective injuries,
such as dissatisfaction with a reassignment,” are not adverse employment actions for purposes of
establishing a prima facie case of discrimination. Forkkio, 306 F.3d at 1130-31; Douglas, 559
7
F.3d at 552. Plaintiff’s allegation that temporary detail assignments “negatively affected her
work schedule” unquestionably falls into this category of non-actionable “dissatisfaction.”
In response to plaintiff’s second allegedly adverse action, defendant is also correct that
plaintiff has failed to offer a factual basis for the claim that she “lost pay” or “overtime pay.”
(Def.’s Reply at 2-3.) At most, the record demonstrates that plaintiff may have lost the
opportunity to earn overtime pay while participating in the two short-term detail assignments
lasting as little as one day. (See Sims Dep. 46-47.) Though the Court of Appeals has not
specifically addressed whether the mere potential for lost overtime pay may constitute an adverse
action, Judge Bates has considered the issue holding, “lost opportunity for overtime (assuming
plaintiff has proven there were opportunities to work overtime) is only an adverse employment
action where the trier of fact could reasonably conclude that plaintiff in the past sought
opportunities for overtime pay or it was otherwise known to defendant that plaintiff desired such
opportunities.” 3 Bell v. Gonzales, 398 F. Supp. 2d 78, 97 (D.D.C. 2005). This standard is
supported by the fact that overtime is not “universally regarded as desirable” and the
“[i]mposition of a requirement to work overtime against the wishes of an employee, even for pay
. . . has been recognized as an adverse employment action.” Id. (citing Dickerson v. SecTek, Inc.,
238 F. Supp. 2d 66, 76-77 & n.5). Moreover, all of the federal courts of appeal that have
considered this question have adopted similar approaches. 4
3
Bell concerned a claim of retaliation (not discrimination), but was considered at a time when the
“adverse action” standard was the same for discrimination and retaliation claims. More recently, applying
this standard in the discrimination context, another district court noted that plaintiff’s discrimination claim
could go forward where “the plaintiffs have alleged both that overtime opportunities existed and that they
actively pursued those opportunities. Saint-Jean v. D.C., 844 F. Supp. 2d 16, 22 n.6 (D.D.C. 2012)
(emphasis added). No such evidence that Sims pursued overtime opportunities exists in this case.
4
See, e.g., Lewis v. City of Chicago, 496 F.3d 645, 653-54 (7th Cir. 2007) (holding that denying
opportunities for overtime that constitute “a significant and recurring part of an employee’s total earnings
8
Plaintiff fails to offer sufficient factual evidence to establish a materially adverse action
under this standard. In Bell, the “[p]laintiff’s declaration and deposition testimony . . .
provide[d] evidence from which a trier of fact could reasonably conclude that defendant[] w[as]
aware of plaintiff's desire to work overtime. . . .” 398 F. Supp. 2d at 97. Here, plaintiff has
failed to identify any such evidence. She has not alleged, for example, that she was interested in
working overtime, that her supervisor was aware that she was interested in working overtime, or
that she was going to receive overtime pay absent the detail assignments. To the contrary, the
record demonstrates only that she was assigned to detail assignments that lasted no more than a
several days that did not provide opportunities for overtime. Furthermore, unlike the plaintiff in
Lewis v. City of Chicago, the plaintiff in this case is unable to “construct from the evidence an
argument that by denying her the opportunity . . . she lost her ability to potential[ly] . . . earn
many hours of overtime.” 496 F.3d at 653. Instead, the evidence presented demonstrates that she
lost the potential for overtime pay on a limited number of occasions.
For these reasons, no reasonable jury could conclude that defendant’s actions affected the
terms, conditions, or privileges of employment or future employment opportunities. The Court
therefore will grant defendant’s motion for summary judgment on the claim of discrimination.
III. RETALIATION
Under Title VII, it is “an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment . . . because he has opposed any
similar to a recurring raise” could represent an adverse employment action, but “insignificant and
nonrecurring [overtime] like a discretionary bonus” could not); Broska v. Henderson, 70 F. App’x 262,
267-68 (6th Cir. 2003) (“While we again stress that allegations of a denial of overtime, properly
supported, could constitute an adverse employment action, [plaintiff] has put forth virtually no evidence
on the overtime issue.”); Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1118 (11th Cir. 2001) (holding
that the denial of overtime pay and other discretionary pay “deprived Bass of compensation which he
otherwise would have earned [and therefore constituted] adverse employment actions for purposes of
Title VII”).
9
practice made an unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). To succeed on a retaliation claim, a
plaintiff must establish that “(1) that he engaged in a statutorily protected activity; (2) that he
suffered a materially adverse action by his employer,” Jones v. Bernanke, 557 F.3d 670, 677
(D.C. Cir. 2009); and (3) that “his . . . protected activity was a but-for cause of the . . . adverse
action by the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (June 24,
2013).
A plaintiff may establish unlawful retaliation in one of two ways. She may rely on direct
evidence, if such evidence exists. See Jones, 557 F.3d at 679. If not, she must rely on
circumstantial evidence under the familiar burden-shifting framework set out by the Supreme
Court in McDonnell Douglas v. Green, 411 U.S. 792, 802-03 (1973). See id. Under this
approach, she first must establish a prima facie case of retaliation. Then, the burden shifts to the
employer “to articulate some legitimate, non-[retaliatory] reason” for the adverse action. Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981) (citing McDonnell Douglas, 411
U.S. at 802); see also Jones, 557 F.3d at 677. If the employer satisfies that burden, “the burden-
shifting framework disappears, and a court reviewing summary judgment looks to whether a
reasonable jury could infer retaliation from all the evidence.” Jones, 557 F.3d at 677.
Both parties have filed motions for summary judgment on plaintiff’s retaliation claim.
Plaintiff’s motion for partial summary judgment alleges that there is direct evidence of retaliation
and that there is therefore “no questions of material fact in dispute that Defendant retaliated
against her,” or in the alternative, “that she has [conclusively] shown a prima facie case of
retaliation.” (Pltf.’s Mot. at 4, 18-19.) Defendant, on the other hand, moves for summary
10
judgment on the grounds that there is no direct evidence of discrimination and, although there is
sufficient evidence that plaintiff undertook protected activities, she has failed to identify an
adverse action or demonstrate that her protected activity was the but-for cause of an adverse
action for purposes of establishing a prima facie case of retaliation. (Def.’s Mot. at 8-10.) For
the reasons set forth below, the Court will deny both motions.
A. Plaintiff’s Motion for Partial Summary Judgment
In her motion for partial summary judgment, plaintiff alleges that because “the District
admits to retaliating against Ms. Sims,” “there is direct evidence of retaliation” and “there are no
questions of material fact in dispute that Defendant retaliated against [plaintiff].” (Pltf.’s Mot. at
18-19.) The Court disagrees. 5
Under Title VII, “[d]irect evidence of discrimination is evidence that, if believed by the
fact finder, proves the particular fact in question without any need for inference. Such evidence
includes any statement or written document showing a discriminatory motive on its face.”
Manuel v. Potter, 685 F. Supp. 2d. 46, 61 n.11 (D.D.C. 2010) (quoting Lemmons v. Georgetown
Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006)) (emphasis in original)). As the First Circuit
has explained, direct evidence is “‘a smoking gun’ showing that the decisionmaker relied upon a
protected characteristic in taking an employment action.” PowerComm, LLC v. Holyoke Gas &
Elec. Dep’t, 657 F.3d 31, 35 (1st Cir. 2011) (citing Smith v. F.W. Morse & Co., 76 F.3d 413, 421
(1st Cir. 1996)). Such “[d]irect evidence is rare.” Portis v. First Nat. Bank, 34 F.3d 325, 328
5
Defendant responds to plaintiff’s allegations regarding direct evidence by focusing on the
inadmissibility of this evidence. However, the dispositive issue is not whether plaintiff’s “direct
evidence” is admissible, but rather if it is “direct evidence” at all. The Court need not address defendant’s
admissibility argument, but rather it will focus only on the proper characterization of the evidence.
11
(5th Cir. 1994). In the Court’s view, the standard for what constitutes “direct evidence” in the
Title VII discrimination context is equally applicable in the Title VII retaliation context.
The “direct evidence” that plaintiff identifies in her motion is the finding made by the
MPD EEO Officer, Alphonso Lee, “sustaining” the allegation that unlawful retaliation likely
took place. (Pltf.’s Mot. at 18-19.) However, contrary to plaintiff’s view, an after-the-fact
determination based on an internal investigation by an MPD EEO Officer is not “direct
evidence” of retaliation. As Lee explained in his 30(b)(6) deposition, his conclusion that “there
was a probability that retaliation [by plaintiff’s supervisor] occurred” was based on “the
allegations proffered by Lieutenant Sims, and the information collected after the allegation was
made.” (Lee Dep., Vol. 1., at 41.) In other words, Mr. Lee made a quasi-judicial finding based
on an internal review of circumstantial evidence. Mr. Lee’s conclusions do not transform this
circumstantial evidence into direct evidence simply because he is employed by the defendant.
Plaintiff’s motion must therefore be denied.
B. Defendant’s Motion for Summary Judgment
Defendant contends that it is entitled to summary judgment on plaintiff’s retaliation claim
on the grounds that plaintiff has failed to articulate a “materially adverse action” sufficient to
establish a prima facie case. (Def.’s Mot. at 8.) In response, plaintiff identifies twelve actions
which, in her view, constitute materially adverse actions taken by defendant in retaliation for her
participation in protected activities. 6 (Pltf.’s Opp. at 23-25.) Because the Court agrees with the
6
These actions include: (1) assigning plaintiff to “undesirable details”; (2) placing her on a Work
Performance Plan (“WPP”) over the objection of Lieutenant Tate; (3) initially refusing to assign her to a
desirable post at the Bundy School and, once assigned, denying her a regular schedule of hours or set days
off; (4) requiring her to work the midnight shift; (5) giving her negative remarks on her performance
evaluation; (6) asking her about her EEO complaint during an unrelated, yet recorded interview; (7)
refusing to let her respond in writing to questions pertaining to a co-worker’s EEO complaint; (8)
requiring her to remain in the department for three months after her retaliation allegation was sustained by
12
plaintiff that a reasonable jury could conclude that some (though not all) of these actions rise to
the level of materially adverse actions, defendant’s motion for summary judgment will be
denied. 7
As the Supreme Court explicitly held in Burlington Northern v. Santa Fe Railway Co.,
548 U.S. 53, 64 (2006), Title VII’s retaliation provision is broader than the substantive
antidiscrimination provisions. Retaliation claims, therefore, are “not limited to discriminatory
actions that affect the terms and conditions of employment,” but rather prohibit any employer
action that “well might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Id. at 64, 68 (internal citations and quotation marks omitted); Baloch v.
Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008) (“‘Adverse actions’ in the retaliation
context encompass a broader sweep of actions than those in a pure discrimination claim.”) This
is not to say that any action taken by defendant that negatively affects plaintiff may constitute a
sufficient basis for bringing a retaliation claim. Rather, courts still “speak of material adversity
because . . . it is important to separate significant from trivial harms. Title VII . . . does not set
forth ‘a general civility code for the American workplace.’” Burlington, 548 U.S. at 68
(emphasis in original) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80
the MPD EEO Office and nine months after she requested a transfer; (9) not informing her of training
programs and refusing to provide requested training information when she expressed interest; (10) not
selecting her for training on the grounds that she was on a WPP; (11) initially denying her leave (though
eventually approving it); and (12) forcing her to withstand negative comments from her co-workers. (See
Pltf.’s Opp. at 23-25.)
7
Defendant also argues, albeit briefly, in its motion for summary judgment that “there is no record
evidence linking any of these allegations to the plaintiff’s filing of an EEO complaint.” (Def.’s Mot. at
10.) In so arguing, defendant attempts to call into question the causation element of plaintiff’s prima
facie case. However, defendant completely ignores the temporal proximity between the protected
activities and the allegedly adverse actions. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001); Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012). The Court will therefore focus
exclusively on the issue of whether plaintiff has demonstrated the existence of materially adverse actions.
13
(1998)); see also Wiley v. Glassman, 511 F.3d 151, 161 (D.C. Cir. 2007) (“Actionable retaliation
claims are limited to those where an employer causes “material adversity,” not “trivial harms.”)
At the same time, the adverse action standard for retaliation claims is phrased in “general terms
because the significance of any given act of retaliation will often depend upon the particular
circumstances. Context matters.” Test v. Holder, 614 F. Supp. 2d 73, 84 (D.D.C. 2009) (quoting
Burlington, 548 U.S. at 69).
While plaintiff is generally required to identify a particular adverse action in order to
establish a prima facie case of retaliation, courts within this jurisdiction have recognized that it is
at times difficult to “examine whether any isolated action, on its own, qualifies as ‘adverse.’”
Test, 614 F. Supp. 2d at 84. Therefore, in addition to considering the merits of each allegedly
retaliatory act, the court also must consider whether, “based upon the combined effect of . . .
alleged events, a reasonable worker could be dissuaded from engaging in protected activity.” Id.
(internal quotations and citation marks omitted); see also Mogenhan v. Napolitano, 613 F.3d
1162, 1166 (D.C. Cir. 2010) (explicitly considering plaintiff’s allegedly retaliatory actions
individually as well as a group when determining whether they were materially adverse).
As an initial matter, the Court concludes that seven of the twelve allegedly adverse
actions identified by plaintiff do not rise to the level of materially adverse employment actions,
even under Burlington Northern’s more forgiving standard. These incidents include: (1)
assigning plaintiff to “undesirable details”; (2) asking her about her EEO complaint during an
unrelated, yet recorded interview; (3) refusing to let her respond in writing to questions
pertaining to a co-worker’s EEO complaint; (4) requiring her to remain in the Youth Division for
three months after her retaliation allegation was sustained by the MPD EEO Office and nine
months after she initially requested a transfer; (5) not informing her of training opportunities and
14
refusing to provide this information when asked; (6) temporarily assigning plaintiff to the
midnight shift; and (7) forcing her to withstand negative comments from her co-workers.
Specifically, the allegations the plaintiff was detailed to undesirable positions, she was
not immediately transferred to a new department after her retaliation claim was sustained, and
she was required to temporarily work midnight shifts demonstrate only “less favorable
assignments,” which, as the D.C. Circuit has explained, do not rise to the level of materially
adverse actions for purposes of sustaining a retaliation claim. See Jones, 429 F.3d at 281.
Similarly, the other allegedly adverse actions described above represent, at most, “minor
inconveniences . . . [that do] not rise to the level of adverse action necessary to support a [prima
facie retaliation] claim.” Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (internal citations
and quotation marks omitted).
In addition, plaintiff’s claim that defendant “provided negative remarks on her
performance evaluation” is not supported by the record. The only two citations in the record that
plaintiff relies on in support of this proposition demonstrate that plaintiff was put on a work
performance plan, not that anyone gave her an additional negative evaluation while she was on
that work performance plan. (See Sims Dep. at 72-73 (describing plaintiff’s placement on the
WPP); Pltf.’s Opp., Ex. 9 (Dep. of Mark V. Carter, Sr., Sept. 16, 2013 [ECF No. 26-9], at 53)
(describing the fact that MPD was unaware of any concerns regarding plaintiff prior to her
placement on the WPP).)
Once these eight allegedly adverse actions are removed from the equation, the four
claims that remain are that: (1) plaintiff was put on a work performance plan over the objection
of her immediate supervisor; (2) she was denied training opportunities on the ground that she
was on the work performance plan; (3) she was initially denied a desirable post at the Bundy
15
School and, after she finally received the assignment, was denied a regular schedule of hours or
set days off; and (4) she was denied leave by her Commander Robinson, though her leave
request was later granted by the Assistant Chief when she appealed Commander Robinson’s
decision. (See Pltf.’s Opp. at 23-25.) For the reasons discussed below, the Court concludes that
a reasonable jury could find that individually and as a group these adverse actions would
dissuade a reasonable person from “making or supporting a charge of discrimination.”
Therefore, defendant’s motion for summary judgment must be denied.
First, regarding plaintiff’s work performance plan, defendant contends that “the sole act
of placing a plaintiff on a [performance improvement plan without] more does not constitute an
adverse employment action.” (Def.’s Reply at 7 (citing Bonnette v. Shinseki, 907 F. Supp. 2d 54,
71 (D.D.C. 2012)).) While an accurate characterization of the law, it is of little help to
defendant’s case. Plaintiff does not only allege that she was placed on a work performance plan,
she also alleges that the work performance plan was relied upon as a basis to deny her training
opportunities. (See Sims Dep. at 87; Pltf.’s Opp., Ex. 15.) While alone the denial of training
opportunities or placement on a work performance plan might be insufficient to establish a prima
facie case of retaliation, because the denial of training was directly tied to the work performance
plan, the Court is satisfied that a reasonable jury could conclude that defendant undertook a
materially adverse action. Cf. Porter v. Shah, 606 F.3d 809, 818 (D.C. Cir. 2010).
Second, regarding her detail at the Bundy School, plaintiff alleges that she was initially
denied her detail request and, once given the detail, she was denied a regular schedule of hours
or set days off. (See Sims Dep. at 76-83.) While the initial denial fails to rise to the level of an
adverse employment action (and likely occurred prior to plaintiff’s protected activities), the
denial of a regular schedule or days off constitutes a denial of regular privileges of employment.
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As such, it may constitute an adverse action for purposes of establishing a prima facie case of
retaliation. See Ginger v. D.C., 477 F. Supp. 2d 41, 50 (D.D.C. 2007) (holding, albeit in the
more stringent discrimination context, that “it is hard to say that a change from a permanent []
shift to a rotating shift . . . is not a change in the conditions or privileges of employment
sufficient to constitute an adverse employment action”) (citing Freedman v. MCI Telecomms.
Corp., 255 F.3d 840, 844 (D.C. Cir. 2001)).
Third, regarding the denial of plaintiff’s leave request by Commander Robinson,
defendant argues that because plaintiff’s request was ultimately granted by the Assistant Chief it
cannot constitute a materially adverse action. (Def.’s Reply at 6-7.) In support of this contention,
defendant cites Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002), for the proposition that
“Title VII does not provide relief for victims of attempted retaliation.” (Id.) However, Stewart
pre-dates Burlington Northern and explicitly relies on the more restrictive standard that all
materially adverse actions must affect the “terms, conditions, or privileges with employment.”
Under the less restrictive Burlington Northern standard, however, the Court must now focus
exclusively on whether the adverse action “might [] dissuade[] a reasonable worker from making
or supporting a charge of discrimination.” 548 U.S. at 64. Framed in this way, the ultimate
outcome of plaintiff’s leave request is of far less importance than the fact that it was initially
denied. If a supervisor is permitted to deny an individual’s leave request in retaliation for
engaging in a protected activity, the Court is satisfied that a reasonable jury could conclude that
this would deter individuals from engaging in the protected activities in the first place, even if
these individuals know they have the right to appeal denials of leave to their supervisor’s
supervisor. Therefore, after Burlington Northern, attempted retaliation can in circumstances
such as this one serve as a sufficient basis for establishing a prima facie case of retaliation.
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Finally, the Court recognizes that it is difficult, if not impossible, to “examine whether
any isolated action, on its own, qualifies as adverse.” Instead, courts must consider whether
“based upon the combined effect of . . . alleged events, a reasonable worker could be dissuaded
from engaging in protected activity.” Test, 614 F. Supp. 2d at 84 (internal quotations and citation
marks omitted). In this case, though the Court concludes that several of the alleged materially
adverse actions could stand on their own for purposes of establishing a prima facie case of
retaliation, it must also be noted that plaintiff has met her initial burden based on the totality of
the allegedly retaliatory actions as well.
For these reasons, the Court will deny both defendant’s and plaintiff’s motions for
summary judgment on plaintiff’s retaliation claim.
IV. HOSTILE WORK ENVIRONMENT
Plaintiff also alleges that she was subjected to a hostile work environment arising out of
the twelve incidents offered in support of her unlawful retaliation claim. While plaintiff is not
precluded from relying on the same underlying incidents in support of her hostile work
environment claim, the metric for success on a hostile work environment claim is different from
a claim of retaliation. See Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011) (describing
the differences between a claim for retaliation and a claim for a retaliatory hostile work
environment). Unlike a retaliation claim, where a plaintiff must demonstrate that an adverse
action or actions were taken because plaintiff engaged in protected activity, in order to succeed
on a hostile work environment claim she must instead show, “that h[er] employer subjected h[er]
to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an abusive working environment.’”
18
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)).
To determine whether an environment is “hostile,” courts look to “‘all the
circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 (2002) (quoting Harris, 510 U.S. at 23). Here, defendant argues that “[t]he
conduct about which Sims complains simply does not reach this [hostile work environment]
threshold . . . [and t]he Court therefore dismiss plaintiff’s hostile work environment claim.”
(Def.’s Reply at 11.) In plaintiff’s view, however, “[t]he evidence establishes that Commander
Robinson took every opportunity, no matter how slight, to create a hostile work environment for
[plaintiff.]” (Opp. at 31.)
It is beyond dispute that defendant took a number of actions detrimental to plaintiff in the
wake of her protected activities between April and December 2010. Based on a careful review
of the record and for the reasons discussed above regarding plaintiff’s retaliation claim, the Court
holds that a reasonable jury could conclude that she was subjected to an unlawful retaliatory
hostile work environment. Therefore, the Court will deny defendant’s motion for summary
judgment on plaintiff’s hostile work environment claim as well.
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CONCLUSION
Accordingly, and for the reasons stated above, defendant’s motion for summary judgment
will be GRANTED as to plaintiff’s discrimination claim but will be DENIED on plaintiff’s
retaliation and hostile work environment claims. Plaintiff’s motion for partial summary
judgment on retaliation will also be DENIED. A separate order accompanies this Memorandum
Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: February 6, 2014
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