RUDOLPH CONTRERAS, United States District Judge
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.
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.
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 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,
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 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,
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 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.
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
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, 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.
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 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.
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,
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 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.
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. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548.
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, 106 S.Ct. 2548 (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, 106 S.Ct. 2505. 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 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).
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.
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, 122 S.Ct. 2061, 153 L.Ed.2d 106 (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, 122 S.Ct. 2061.
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 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.
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 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,
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.
Sgt. Craig asserts that her retaliatory hostile work environment claim based on the 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
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, 61 F.Supp.3d 118, 129, 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
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.
The Court therefore concludes that Sgt. Craig's timely administrative charge, which described only the harassing conduct of Sgt. Levenberry and his response
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 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,
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 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 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
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.
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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)."
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.
Sgt. Craig claims that the District is liable for the discriminatory hostile work environment created by Sgt. Levenberry.
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, 106 S.Ct. 2399, 91 L.Ed.2d 49 (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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)); see also Harris v. Forklift Sys., 510 U.S. 17, 21,
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 the totality of the circumstances, Faragher, 524 U.S. at 787, 118 S.Ct. 2275, 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, 114 S.Ct. 367.
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 "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
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 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, 114 S.Ct. 367.
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
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).
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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington Industries Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (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, 118 S.Ct. 2275. 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, 118 S.Ct. 2257.
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., ___ U.S. ___, 133 S.Ct. 2434, 2448, 186 L.Ed.2d 565 (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
Unfortunately, neither party has briefed the issue of employer liability under the 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,
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.
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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (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
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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (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, 126 S.Ct. 2405 (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 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
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.
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
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, 63 F.Supp.3d 1, 20-21, 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 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.
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.
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.
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."
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,
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 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, 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
In addition to her discrimination claim against Commander Maupin, Sgt. Craig also brings a claim of retaliation under the DCHRA.
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 ... 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, 126 S.Ct. 2405).
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.
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 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.
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."
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.
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).
For the foregoing reasons, the Defendants' motion for summary judgment is
