ROYCE C. LAMBERTH, Chief Judge.
This dispute originates from allegations of sexual harassment by former female
The severity of grievances ranges from complaints of inappropriate sexual comments to accusations of unwanted touching and fondling to allegations of the most serious kind—pervasive sexual assault. The factual narratives not only involve descriptions of abhorrent individual victimization but also collectively illustrate insidious systematic problems within DPR's administrative body. Despite DPR's outwardly altruistic participation in welfare-to-work programs, plaintiffs allege that DPR's pattern of intentional neglect in providing adequate training and supervision and its willful refusal to aid disadvantaged employees evince its ongoing participation in systematic discrimination. Plaintiffs complain that gross mismanagement within DPR's administration has significantly contributed to their injuries. They furthermore point to the lack of remedial options available to mitigate the harassment they have suffered. A review of the background of the case, the governing law, the parties' arguments, and the Court's reasoning in resolving any disputes is set forth below.
Because of the sheer volume of detail required in a case involving four individual plaintiffs and several multi-component counts, the parties have submitted extensive evidence in support of their arguments. The Court sets forth below only those facts and details from the procedural history necessary to resolve the arguments that follow.
All four plaintiff-employees occupied different positions at DPR for varying durations between 2000 and 2006. During this time, DPR routinely classified its employees' employment statuses as temporary, seasonal, or term appointments as opposed to permanent positions. Pls.' Mot. Partial Sum m. J., ECF No. 121-3, Ex. 5, at 106-12 ["Marshall Dep."]. Generally, seasonal employees were hired for the summer months; temporary employees were hired for set periods outside specific seasons; and term employees were hired for thirteen-month periods. Id. Only term employees were union members of the American Federation of Government Employees, Local 2741 for the Department of Parks and Recreations ("AFGE Local 2741"). Id. An employee's manager could request the renewal of non-seasonal employment, which would be granted automatically provided that the director or associate director did not reject the request. Id.; Pls.' Mot. Partial Summ. J., ECF No. 121-8, Ex 6, at 52-53 ["Khabo Dep."]. DPR's high-level management personnel transitioned several times during this period; consequently this case involves a shifting cast of individuals responsible for DPR's administration.
Darnell Thompson was the Chief of DPR's Maintenance Division.
Originally retained through Project Arise, DPR hired Burns directly in 2001 to work as a clerical assistant in the Maintenance Department at its Half Street location. Burns' Dep., [121-3], at 43-45. She was appointed as a thirteen-month term employee under the day-to-day direction of clerical assistant, Joyce Roberts. Chief Thompson directly supervised both. Id.; Pls.' Mot. Partial Summ. J., ECF No. 121-10, Ex. 8, at 12-13 ["Roberts' Dep."]. While Thompson denies ever acting inappropriately toward Burns or having any sexual contact with her, Burns alleges a series of progressively inappropriate behavior by Thompson, culminating in physical assault. Pls.' Mot. Partial Summ. J., ECF No. 121-16, Ex. 14["Thompson Lerner Transcript"]; Burns' Dep., [121-3], at 86-90. In late 2001, Thompson's behavior, which Burns had previously perceived as father-like affection, began to turn too intimate. Burns' Dep., [121-3], at 86-90. She alleges that his physical contact, including hugs and shoulder rubs, progressively became more frequent, causing her great discomfort. Id. Burns claims to have repeatedly informed him that the behavior was unwelcome. Id. She also claims that she reported an incident where Thompson kissed her on the cheek to DPR supervisor James Boone, and she testified that Boone apologized and said that "it had been an ongoing thing with Mr. Thompson.... [a]nd he [Boone] would talk to him [Thompson]." Id. at 92:17-20.
After a disciplinary meeting in Thompson's office in April 2002, when she was eight months pregnant, Burns alleges Thompson grabbed her breast and tried to put his tongue in her mouth. Id. at 96:10-12. Burns attempted to fight him off, but in the course of the struggle, he used his body weight to lean on top of her and pushed down on her pregnant stomach for several minutes. Id. at 96:15-18. On May 1, 2002, Burns informed a doctor at the Washington Hospital Center that her supervisor forced himself upon her the previous
For several of the following months, Burns was out on paid administrative leave per DPR's request. Burns' Dep., [121-3], at 105-06. She says she spoke with Director Albert to make arrangements for leave and he "ensured [her] that an investigation was going to take place." Id. at 106:4-5, 120:7-10. Returning to DPR in the summer of 2002, she worked at the Randell and Watkins Recreation Center. Id. at 110:10-11. She had no further contact with Thompson; she suspected, however, that she remained under his supervision because she was still an employee within the Maintenance Department, of which Thompson was still the Director.
Burns' final term that was set on December 3, 2003, expired on January 19, 2004—over a year and half after the incident in Thompson's office. Pls.' Opp'n DMSJ, ECF No. 133-1, Ex. 31 ["Burns Personnel Documents"]. Despite DPR's unsupported assertions to the contrary, Burns claims that she never received any sexual harassment training, was never informed of DPR's sexual harassment policies, and was not told what to do if she was sexually harassed. Pls.' Opp'n DMSJ, ECF No. 132-18, Ex. 21, at ¶ 12 ["Burns Decl."]. She does not remember seeing any posted notices of her federal or local rights regarding workplace discrimination laws. Id. at ¶ 10.
Gaskins, whom DPR also hired through Project Empowerment as a summer employee,
Purportedly out of fear of losing her job, Gaskins made no further complaints to DPR management during her employment. Gaskins Dep., [121-19] at 73, 68-69, 81. Gaskins' employment was prematurely terminated in March 2005. Pls.' Mot. Partial Summ. J., ECF No. 121-20, Ex. 18 ["Gaskins Personnel File"]. Thompson informed her she had been fired for tardiness and failure to keep the Emory Recreation Center clean. Gaskins Dep., [121-19] at 70-71. Within a week of her termination, Gaskins called Director Stanley, who instructed her to get a lawyer if she had complaints against Thompson. See Gaskins Dep. [121-19] at 74:12-20 ("After I was fired I had talked to him to ask him about, questions how I can put out sexual harassment and he said on who and I told him and []he says for me to go get a lawyer.").
Gaskins does not recall seeing any posters regarding federal employment laws or receiving any specific sexual harassment training. She did receive a one-page handout on the subject in October 2004, but cannot remember its contents. Gaskins Dep., [121-19] at 30-31, 89-92.
Byrd was stationed as a maintenance worker and assigned to clean DPR recreation centers through her Project Empowerment placement. Pls.' Mot. Partial Summ. J., ECF No. 121-24, Ex. 22, at 31-40 ["Byrd Dep."]. After transitioning to direct DPR employee status in the summer of 2002, she and another female employee, Katrina Williams, were involved in an altercation with a third party over a non-work related matter. Id. at 45-50. Thompson directed them to report to his office the next day. Id. Although Thompson denies any impropriety, Byrd claims he demanded she expose her breasts or lose her job. Id. at 52-55. After she complied, Thompson assigned her to work at the Half Street office. Id. Thompson Lerner Transcript, [121-16] at 8-9. She began working as a clerical assistant under Joyce Roberts' direction. Roberts Dep., [121-10] at 12-13. On her first day, after rebuffing Thompson's attempts to violently grope her breasts, Byrd alleges that Thompson told her that, "in the morning I
Thompson allegedly refused to give Byrd work assignments, forcing her to sit in his office all day so that she was at his beck and call. Byrd Dep., [121-55] at 102. Byrd explains that Thompson became progressively more controlling and began calling her cell phone at night after telling her at work: "If you don't answer the phone for me tonight, don't come in here tomorrow." Id.; Pls.' Mot. Partial Summ. J., ECF No. 121-26, Ex. 24, at 272 ["Byrd Lerner Transcript"]. Friend and co-worker Marlo Chaney, who witnessed and occasionally answered several of Thompson's late night calls, began to notice a sharp personality change in Byrd. Pls.' Mot. Partial Summ. J., ECF No. 121-27, Ex. 25, at 15:14-22 ["Chaney Lerner Transcript"]. Chaney says Byrd became despondent and would call from her work, "upset and crying," and "would be disgusted ... her whole rapport, her whole frame of mind just completely changed ... she was just always upset." Id. Chaney heard Thompson threaten to fire Byrd and call her "bitch."
Byrd's term employment was extended several times under Thompson's authorization. Pls.' Mot. Partial Summ. J., ECF No. 121-24, Ex. 23 ["Byrd Personnel File I"]. She suggests the harassment would intensify to its apex shortly before her term was due to end and that Thompson used his supervisory status to coerce her agreement to sexual acts. Byrd Dep., [121-24] at 80-81, 161. Thompson notified Byrd on August 1, 2002 that her employment was set to expire on September 30, 2002, and that DPR could make no commitments to continue her employment but would notify her if there was a "change in her status." Pls.' Opp'n DMSJ, ECF No. 133-1, Ex. 27 ["Byrd Personnel File II"]. Despite some suggestions that Thompson complained of Byrd's work performance, he repeatedly requested the renewal or modification of her term, including the extension of her term from ninety days to thirteen months. Id.; Banks Dep., [121-6] at 22-25. Approximately one year after coming to Half Street, Byrd spoke to Roberts and told her "she was being touched by her supervisor" in a sexual way. Roberts Dep., [121-10] at 30. Roberts told Byrd she needed "to take that complaint somewhere else," and did not direct her further. Id. According to Roberts, Byrd's complaint occurred "before we had any sexual harassment training" and therefore she did not know of her responsibility as a manager to document and report claims. Id. at 31.
Acting on lingering feelings of suspicion, Maintenance Supervisor Banks approached Byrd in early 2005 after seeing her visibly upset at work. Banks Dep., [121-6] at 31-33, 36-45. In response to Byrd's description of Thompson's ongoing behavior, Banks advised her to report the harassment to DPR's Human Resources department. Id. at 37. Despite completing training as an Equal Employment Opportunity Commission ("EEOC") counselor, Banks testified that she did not know where or to whom she was supposed to report harassment complaints. Id. at 109. Next, Byrd contacted Arnita Bonner from DPR's Human Resources department. Although the precise events that followed are disputed, it appears Byrd was temporarily transferred to a different location. See Pls.' Reply Statement of Material Facts, ECF No. 135-1, at ¶ 106 ["P's Reply SOF"]; Byrd Dep., [121-24] at 125, 127-28. On April 6, 2005, Byrd filed a complaint with the D.C. Office of Human Rights ("DCOHR") describing the harassment she suffered as Thompson's longtime subordinate. Pls.' Opp'n DMSJ, ECF No. 132-25, Ex. 29, ["Byrd EEOC Charge"].
Byrd does not recall receiving any sexual harassment training or information regarding DPR's sexual harassment policy
On April 7, 2005, the day following Byrd's EEOC filing, Deborah Jackson, AFGE Local 2741 Union President, wrote a letter to D.C. Council Member Kathy Patterson regarding DPR management's conscious disregard of Thompson's persistent, inappropriate behavior. Pls.' Mot. Partial Summ. J., ECF No. 121-35, Ex. 33 ["AFGE Memo"] ("To this day, sexual harassment is on-going and Interim Director Neil Stanley is aware and reluctant to do anything to terminate this seemingly acceptable practice and behavior."). President Jackson expressed the following concerns on behalf of the AFGE Local 2741: three to six allegations of sexual harassment against the Chief of Facility Maintenance were brought without an internal investigation during Directors Albert and Stanley's tenures; the Union had repeatedly requested that Thompson be removed from his position; and all of the women who came forward were dismissed from their employment because they were temporary employees. Id. Ms. Patterson contacted Stanley and requested an investigation. See Pls.' Reply SOF, [135-1] at ¶ 156. Thompson was placed on paid administrative leave, effective April 13, 2005, while an "investigation [was] pending regarding allegations of harassment." Def.'s Opp'n PMSJ, ECF No. 129, Ex. U.
Prompted by external pressure from the AFGE Local 2741 and the D.C. Council, Interim Director Stanley hired private consultant Carolyn Lerner to conduct an independent investigation into Byrd's complaints "because there had been previous complaints against Thompson, and because of the seriousness of Byrd's allegations." Pls.' Mot. Partial Summ. J., ECF No. 121-28, Ex. 26 ["Lerner Report"]. Many employees were interviewed through this process, including those directly implicated and those with peripheral knowledge.
Byrd continued to pursue her allegations with persistent determination despite a noticeable absence of support from her DPR supervisors and co-workers. Accompanied
As rumors of Thompson's behavior became known outside of DPR's protective infrastructure, Burns, Gaskins, and other employees came forward with their own charges of abuse by Thompson. After speaking with an attorney during the summer of 2005 and contacting DPR for her employment records that fall, Burns filed a complaint with the DCOHR on February 3, 2006—746 days after the final expiration of her term. Id. at ¶ 13; Pls.' Opp'n DMSJ, ECF No. 132-25, Ex. 29, ["Burns EEOC Charge"].
Byrd believes that her DPR employment ended because she was the first woman to publically acknowledge the harassment she suffered at DPR. The potential windfall of costly litigation not only implicated Thompson, but also placed the upper echelons of DPR administration under a microscope.
Jean-Baptiste was hired in May of 2006, well after Thompson was fired and investigations of sexual harassment within DPR were underway. Pls.' Opp'n DMSJ, ECF No. 132-6, Ex. 5 ["Jean-Baptiste Dep."] Jean-Baptiste was under the impression that she had been hired for a year-round position upon her placement as a summer lifeguard at the Takoma Pool, but DPR claims it was only a seasonal position set to expire at the end of the summer. Jean-Baptiste Dep., [132-2] at 99; Pls.' Opp'n DMSJ, ECF No. 133-1, Ex. 4 ["Jean-Baptiste Personnel File"].
In mid-June, Ford was demoted and Solomon Robinson was promoted to Area Supervisor. Pls.' Opp'n DMSJ, ECF No. 132-8, Ex. 7, at 21 ["Robinson Dep."]. Robinson and Weaver had been friends for over 15 years. Id. at 8, 10-11, 66. Jean-Baptiste next brought her complaints to Robinson. Jean-Baptiste Dep., [132-2] at 174-76. Prompted by her accusations, Robinson called both Jean-Baptiste and Weaver into his office and made her state her allegations in front of Weaver. Robinson Dep., [132-8] at 17-19, 23. Weaver did not directly dispute her story. Id. at 24.
According to Robinson, summer lifeguards are generally kept on after the summer if their supervisors recommend them. Id. at 52-54. At the end of the summer, Jean-Baptiste was informed that DPR would not retain her past September 29, 2006 or consider her for a permanent lifeguarding position. Jean-Baptiste Dep., [132-2] at 203. Shocked by this revelation, Jean-Baptiste—who still believed she was a year-round employee—contacted DPR Director Roslyn Johnson and Aquatics Director Harold Houston about her termination and allegations of harassment. Id. at 202-03. Jean-Baptiste was granted a two-week extension of her employment at a different pool to determine whether DPR's budget would allow for her hire year-round. Pls.' Opp'n DMSJ, ECF No. 132-15, Ex. 14 ["Jean-Baptiste and DPR Correspondence"]. During this time, she periodically informed Houston and Interim Director Rodgers of her extensive qualifications to persuade them to continue her employment. Id. On October 14, 2006, she sent an e-mail to Houston, copying Rodgers and the EEOC, naming Weaver as her harasser and informing DPR that she would "be taking legal action to stop harassment."
On October 18, 2006, Jean-Baptiste submitted a formal job application to DPR after meeting with Houston and Rodgers to discuss her desire to continue her employment. Jean-Baptiste Dep., [132-2] at 209-10. Although Jean-Baptiste had previously passed a swim assessment to become a summer lifeguard, Houston suggested that she needed to take another test to dispel rumors of her "weak swimming skills," which had arisen from Link's explanation of why Jean-Baptiste was not considered for year-round employment. Id. A swim assessment was conducted on October 19, 2006. Jean-Baptiste and DPR Correspondence, [132-15]. Despite holding water safety instructor certification, American Red Cross lifeguard certification, pool operators' certification, and water aerobics certification Jean-Baptiste was deemed to have failed. Jean-Baptiste alleges that this assessment was unfairly conducted and deviated from DPR's usual requirements. Id. She claims that her assessment took place in only twelve feet of water while other employees were assessed in four feet; that she was required to demonstrate back boarding skills not normally required by DPR or the American Red Cross for lifeguard certification; and that employees assigned to assist her with back boarding were improperly trained. Id. Despite the obvious existence of a record of Jean-Baptiste's skills assessment, DPR did not produce any such record. Id. By October 21, 2006, Jean-Baptiste was informed that her application for continued employment had been rejected. Id.
Byrd independently filed a complaint against the District of Columbia on March 20, 2006. Her two-count action alleged that the District had sexually discriminated against her by creating a hostile work environment and taking adverse employment actions in retaliation for her complaints. Pl.'s Compl., Mar. 20, 2006, ECF No. 1. She filed minor amendments to this complaint on June 20, 2006. Pl.'s Am. Compl., June 20, 2006, ECF No. 13. On October 16, 2006, Byrd filed two motions; the first requested leave to file a second amended complaint, adding Burns as a plaintiff, Pl.'s Mot. For Leave to File Second Am. Class Compl., Oct. 16, 2006, ECF No. 24., and the second sought to consolidate her case with Burns v. District of Columbia, Case No. 1:06-CV-01198 (RBW). Pl.'s Mot. Consolidate Related
Judge Henry H. Kennedy granted Byrd leave to further amend her complaint and referred the Motion to Consolidate to Magistrate Judge Kay for his determination. Kay Order, Nov. 23, 2006, ECF No. 34. Upon receiving permission to amend her complaint, Byrd withdrew her motion for consolidation and jointly filed to dismiss Burns' separate action. Pl.'s Notice of Withdrawal of Motion, Feb. 27, 2007, ECF No. 43. Plaintiffs' Second Amended Class Action Complaint asserted that the District had engaged in discrimination against Byrd and similarly situated female employees by maintaining and condoning discriminatory practices in the workplace. The complaint further alleged that because the class members' claims involved a systematic pattern of discrimination, those claims would be most efficiently resolved together because they implicate common questions of fact concerning DPR's policies, procedures, and sexual harassment training. Second Am. Class Action Compl., Nov. 23, 2006, ECF No. 35 at ¶¶ 2, 59-61. The defined class consisted of "all female persons who are working, or have worked, for the District of Columbia's Department of Parks and Recreation at any time since 2000 to the present," and was expected by plaintiffs to include over thirty more employees—making joinder impractical. Id. ¶ 57.
Plaintiffs subsequently requested leave to file a third amended complaint for the purposes of adding Gaskins and Jean-Baptiste as plaintiffs and withdrawing the class action allegations. Pl.'s Mot. For Leave to File Third Am. Compl., May 11, 2007, ECF No. 44. Magistrate Judge Kay granted leave to file in July of 2005. Kay Mem. Order, July 5, 2007, ECF No. 50. At that stage of the litigation, the Court found there was enough of a logical connection and factual overlap among the four plaintiffs' claims to sufficiently meet Federal Rule of Civil Procedure 20(a)'s two-prong standard for permissive joinder. Id. at 6-7. Specifically, Magistrate Judge Kay found that (1) plaintiffs' claims all allegedly arose from the same series of transactions through a company-wide practice of systematic discrimination; and (2) their claims all involve common questions of law and fact. Id. He also concluded that defendant's judicial efficiency concerns that were raised before the discovery phase of litigation were premature. Id. at 8. The court did recognize the future possibility that jury confusion would cause undue prejudice to the District, but shelved that concern until the facts of the case became more fully developed. Id. Concluding that the present benefits and efficiency served by joinder during discovery outweighed any later risk of prejudice, the Court did not foreclose the District from later seeking severance. Id. at 8-9.
Plaintiffs' Third Amended Complaint includes seven individual causes of action against the District. Third Am. Compl., July 5, 2007, ECF No. 41. The plaintiffs bring all the counts on behalf of all four women with the exception of Count VII, which they bring solely on behalf of Byrd and Jean-Baptiste. Specifically, plaintiffs bring the following counts:
In August 2007, the District moved to dismiss portions of the plaintiffs' action. Def.'s Mot. Dismiss, Aug. 6, 2007, ECF No. 54. In March 2008, Judge Kennedy granted in part and denied in part the District's motion. Kennedy Mem. Op., Mar. 13, 2008, ECF No. 71. Having considered the District's arguments concerning Burns and Gaskins' failure to exhaust their administrative remedies, the court dismissed Burns and Gaskins' DCHRA claims for exceeding the one-year statute of limitations for filing suit. But the Court allowed their Title VII claims to proceed with further discovery to determine if any factual basis existed for excusal from the time limits. Id. at 5-9.
In October 2009, plaintiffs moved for summary judgment seeking (1) judgment on Burns, Byrd, and Gaskins' Title VII and Byrd's DCHRA hostile work environment claims; or alternatively (2) a finding that the District may not assert an affirmative defense to vicarious liability with respect to those claims; and lastly (3) judgment for Burns, Byrd, and Gaskins' Section 1983 claims through the Fifth Amendment. Pls.' Mot. Partial Summ. J., Oct. 9, 2009, ECF No. 121, ["PMSJ"]. The District opposed plaintiffs' motion and cross-moved for summary judgment on (1) all of Gaskins and Burns' Title VII claims for failure to exhaust their administrative remedies; (2) Byrd, Burns, Gaskins, and Jean-Baptiste's Title VII and DCHRA retaliation claims; (3) Byrd and Jean-Baptiste's DCWPA retaliation claims; and lastly (4) all Section 1983 claims. Def.'s Mot. Partial Summ. J., Oct. 16, 2009, ECF No. 123, ["DMSJ"].
Not long after these motions were fully briefed, the District filed a motion asking the court to sever the action into four separate actions pursuant to Federal Rule of Civil Procedure 21, or alternatively order four separate trials under Federal Rule of Civil Procedure 42. Def.'s Mot. Sever, Sept. 16, 2010, ECF No. 155 ["DMSA"]. The case was reassigned to this Court on May 4, 2011.
Courts grant summary judgment when the "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations,... admissions, interrogatory answers, or other materials" show "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)-(c). This standard requires more than the mere existence of some factual dispute between the parties to defeat
In seeking summary judgment, the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those potions [of the evidence in the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once this burden has been met, the non-moving party must "go beyond the pleadings and by [her] own affidavits, or by [the evidence in the record] designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (quotations omitted). The non-moving party's opposition "must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial." Doe, 706 F.Supp.2d at 5; see also Freedman v. MCI Telecomm. Corp., 255 F.3d 840, 845 (D.C.Cir.2001) (holding that plaintiff must have more than "a scintilla of evidence to support [her] claims").
In other words, the non-moving party is required to point to evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). Additionally, because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inference from the facts are jury functions, not those of a judge," the "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Where cross-motions for summary judgment are at issue, the question for the Court is whether the evidence presented by either side is such that no material issue of fact remains. Fowler v. Dist. of Columbia, 404 F.Supp.2d 206, 209 (D.D.C.2005). Because it is difficult for a plaintiff to establish proof in cases involving discrimination, the D.C. Circuit has instructed district courts to view summary judgment motions with special caution, applying a heightened degree of scrutiny. Turner v. Dist. of Columbia, 383 F.Supp.2d 157, 166 (D.C.Cir.2005) (citing Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997)); see also Thomas v. Vilsack, 718 F.Supp.2d 106, 115 (D.D.C. 2010); Waterhouse v. Dist. of Columbia, 124 F.Supp.2d 1, 4 (D.D.C.2000).
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against its employees in hiring decisions, compensation, terms, conditions, or privileges of employment on the basis of an individual's sex. 42 U.S.C. § 2000e-2(a)(1). A claim of sexual harassment is cognizable under the Act if it explicitly or constructively alters the terms or conditions of an individual's employment. Curry v. Dist. of Columbia, 195 F.3d 654, 659 (D.C.Cir.1999). Because it is well-established
The District argues the Court should grant judgment in its favor with respect to Burns and Gaskins' Title VII claims because they failed to exhaust their administrative remedies by timely filing a complaint with D.C. Office of Human Rights ("DCOHR") or the EEOC. Burns and Gaskins concede that they did not make a charge within the 300-day deadline from the date of the discrimination—the last day of their individual employment at DPR. Thus, the only issue here is whether the Court should apply its equitable discretion to toll the statute of limitations.
Before filing a Title VII suit against an employer, an employee must adequately exhaust her administrative remedies within the manner and time limits prescribed by statute. Baird v. Snowbarger, 744 F.Supp.2d 279, 286 (D.D.C. 2010). Due to a work sharing agreement between the EEOC and the DCOHR, an employee in the District of Columbia is required to file an EEOC charge within 300 days of alleged discrimination.
The procedural requirements governing a plaintiff's right to bring a Title VII claim are "part and parcel of the congressional design" to give employers an opportunity to first handle matters internally whenever possible, and to ensure that federal courts are burdened only when reasonably necessary. Winston v. Clough, 712 F.Supp.2d 1, 7 (D.D.C.2010) (internal citations omitted); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of ... sympathy for particular litigants."). At the same time, administrative time limits created by the EEOC do not create a jurisdictional bar to bringing a Title VII suit, but function as a statute of limitations. Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997). A plaintiff's untimely exhaustion of administrative remedies is thus an affirmative defense, and the defendant first bears the burden of proving the inadequacy of the plaintiff's actions. Id. The plaintiff then bears the burden of pleading and proving
It is solely within judicial discretion to apply equitable considerations to excuse a plaintiff's failure to meet administrative time limits. Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 579 (D.C.Cir. 1998). Title VII's remedial purpose permits time limits to be "subject to waiver, estoppel, and equitable tolling `when equity so requires.'" Winston, 712 F.Supp.2d at 7 (quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). The D.C. Circuit has firmly established that this discretion is applied sparingly and exercised only in "extraordinary and carefully circumscribed instances." Smith-Haynie, 155 F.3d at 579 (citing Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C.Cir. 1988)). Under specific circumstances, a court may alternatively apply the "single filing exception" to allow a plaintiff who failed to adhere to administrative requirements to vicariously exhaust her filing responsibilities via another plaintiff's timely filed EEOC claim. Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800, 807 (D.C.Cir.2010) (citing Foster v. Gueory, 655 F.2d 1319, 1323 (D.C.Cir.1981)).
Counsels' arguments, and select applicable jurisprudence, conflate the equitable tolling and equitable estoppel doctrines. Although both operate in a practical sense to toll a limitations period, each has distinct criteria; "[w]hereas equitable tolling allows a plaintiff to avoid the bar of the limitations period if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim, equitable estoppel prevents a defendant from asserting untimeliness where the defendant has taken active steps to prevent the plaintiff from litigating in time." Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1367 (D.C.Cir.1998) (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)) (emphasis in original) (citing Smith-Haynie, 155 F.3d at 579).
Burns filed an EEOC complaint on February 3, 2006, more then 700 days after the expiration of her last term of employment.
Because equitable tolling permits the extension of the limitations period if a plaintiff lacked information essential to her claim, Burns argues that her unawareness of either a legal right to redress or the time limit restraining an ability to do, prevented her from timely filing a complaint. See, e.g., Smith-Haynie, 155 F.3d at 579 (finding the equitable tolling doctrine encompasses cases where a plaintiff was unable to obtain information because of a disability) (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990)). She contends that her ignorance
Burns is partially correct: employers do have a statutory duty to post EEOC notices. 42 U.S.C § 2000e-10(a)-(b).
The Court need not speculate about the distinctions in Burns' mind as to the quality of wrongness—legal or moral— of the discrimination she allegedly suffered, because her requests must be denied in light of her failure to meet the due diligence requirement for equitable tolling. See generally Norman v. United States, 467 F.3d 773, 776 (D.C.Cir.2006) (citing Irwin, 498 U.S. at 96, 111 S.Ct. 453 (1990)).
More then a year after her termination from DPR, Burns sought counsel in August 2005. It was at this time that she claims to have first learned that "she had legal rights protecting her from sexual harassment" and promptly "proceeded with due diligence to pursue them." Pls.' Opp'n DMSJ, ECF No. 132, at 7. Despite being newly enlightened as to the illegality of discrimination, Burns waited over three months until November 2005 to contact DPR and request her personnel records and records of her internal complaint. She then waited until February 3, 2006 to file her charge with the EEOC—746 days after her last day at DPR, 466 days after the lapse of the filing deadline, and nearly four years after the April 2002 incident in Thompson's office.
Considering this timeline and the circumstances surrounding Burns' complaints, the facts do not amount to "extraordinary and carefully circumscribed circumstances" warranting equitable tolling. Mondy, 845 F.2d at 1057. Although DPR defaulted on its statutory duties and arguably failed to effectively respond to Burns' complaints, an employee may not remain complacent in the face of discrimination, nor is she relieved of a duty to diligently pursue her charges. See Marshall v. Honeywell Technology Solutions, Inc., 536 F.Supp.2d 59, 68 (D.D.C.2008) (concluding that even if the plaintiff was misinformed, due diligence was not established where the plaintiff filed 735 days after the discriminatory act and 435 days after the lapse of the limitations period); see generally Baldwin Cnty. Welcome Ctr., 466 U.S. at 151, 104 S.Ct. 1723. The Court must draw the line at some point; in this instance, Burns simply waited too long.
Turning to the doctrine of equitable estoppel, the general rule is that a defendant must engage in "affirmative misconduct" for equitable estoppel to apply. Moore v. Chertoff, 424 F.Supp.2d 145, 150 (D.D.C.2006); White v. Geithner, 602 F.Supp.2d 35, 38 (D.D.C.2009) (requiring a plaintiff to "come forward with specific proof of an employer's affirmative acts or misleading statements that prevented her from filing an EEO complaint." (quoting Klugel v. Small, 519 F.Supp.2d 66, 73 (D.D.C.2007))). According to Burns, the "affirmative action" that prevented her from asserting her legal rights was DPR's intentional withholding of information. On this line of reasoning, DPR's "multiple acts of wrongdoing" include: failing to post requisite EEOC notices, failing to disseminate
Even assuming that all of these assertions are true, DPR's deficient employment practices—while unwise and perhaps unjust—do not amount to affirmative misconduct. This Court has applied equitable estoppel when an employer's actions interfered with an employee's complaints; here, DPR's inaction allegedly prevented Burns from filing a complaint. See, e.g., Smith-Thompson v. Dist. of Columbia, 657 F.Supp.2d 123, 132 (D.D.C.2009) ("Such misconduct typically involves `acts of wrongdoing such as hiding evidence or promising not to rely on a statute of limitations defense.'" (quoting Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1182 (7th Cir.2001))); Currier, 159 F.3d at 1368 ("[E]mployer's affirmatively misleading statements that a grievance will be resolved in the employee's favor can establish an equitable estoppel."); Sanders v. Veneman, 131 F.Supp.2d 225, 230 (D.D.C.2001) (applying equitable estoppel where a plaintiff's supervisor made repeated promises of an eventual promotion). Burns relies on the holding in Smith-Thompson to support her claim for estoppel, arguing that both she and the plaintiff in that case lacked legal counsel yet "proceeded diligently in their attempts to protect their rights despite their lack of knowledge of how to do so." Pls.' Opp'n DMSJ, ECF No. 132, at 17. But Burns omits a key factor in the Smith-Thompson court's reasoning: the plaintiff alleged that her employer told her that she was not allowed to file a complaint elsewhere prior to following internal grievance procedures. 657 F.Supp.2d at 133. Viewing the facts most favorable to Burns, the Court cannot find that DPR actively did anything to mislead or misinform Burns, and therefore will not apply equitable estoppel.
Gaskins, whose DPR employment was terminated in March 2005, never filed an EEOC complaint before joining this lawsuit. She asks the Court to similarly apply the doctrine of equitable estoppel, or alternatively to permit her to "piggyback" on Byrd's EEOC filing under the "single filing exception."
Although the D.C. Circuit has not squarely addressed the issue of whether equitable estoppel is available to plaintiffs who never file a complaint with the EEOC, a court in this district very recently concluded that it is. Dahlman v. American Ass'n of Retired Persons, 791 F.Supp.2d 68, 75-76, 2011 WL 2383966 at *5 (June 13, 2011 D.D.C.) (finding that a Court may consider equitable excuses even when a plaintiff failed to file any complaint with the EEOC). This Court need not address the question, however, because the outcome will be the same: Gaskins cannot invoke equitable estoppel. Following the same reasoning outlined above, DPR did not engage in any affirmative action or misconduct to mislead Gaskins as to her legal rights. Indeed, when Gaskins called Interim Director Stanley and threatened to take legal action days after her termination, his response was to "go get a lawyer." Gaskins Dep. [121-19] at 74:12-20. Gaskins' claims that DPR prevented her from pursuing litigation, or lulled her into a state of inaction by failing to instruct her of her legal rights, are thus unpersuasive.
As explained above, the ordinary rule requires a plaintiff to individually lodge a timely complaint with the EEOC or offer a basis for an equitable
Gaskins and Byrd's complaints are not sufficiently similar to support the single-filing exception. They allege that they are "victims of the same discriminatory practices" because (1) both woman were harassed through "repeated instances of forced sexual touching and intercourse upon threats of termination" inflicted by the same supervisor; (2) the harassment occurred at the approximate same time; and (3) both were unlawfully terminated in retaliation for reporting and resisting the harassment. Because Gaskins was named as a potential victim in the Lerner Report—which was later submitted to the EEOC in relation to Byrd's claims on June 22, 2006—Gaskins contends that DPR was on notice of her forthcoming complaints of sexual harassment and knew that it was subject to potential liability. But the Court agrees with the District's argument that the EEOC charge and the Lerner Report are not precise enough to serve the purposes of vicarious exhaustion because they did not put the District on notice of the extent of Gaskins' allegations or necessarily implicate DPR's liability.
The Lerner Report lists Gaskins as a "witness to be interviewed" because she was a former DPR employee "who complained about harassment from Mr. Thompson." Preliminary Lerner Report, [121-28]. The report does not elaborate on the nature or severity of Gaskins' complaints, but merely reiterates what Gaskins allegedly told Byrd: that she "was fired by Thompson" after he "kissed her on the mouth." Id. These statements would not put DPR on notice of the pervasive nature of the allegations Gaskins now asserts: a long-term pattern of repetitive forced sexual acts.
Although some facts are overlapping, an investigation into Gaskins' complaint requires a different factual inquiry and testimony from different witnesses. Unlike previous applications of the single-filing exception, in which additional investigations were redundant because the employees could only prove their allegations by demonstrating the same pattern of discrimination, Byrd and Gaskins must prove different sets of facts in order to prevail on their specific Title VII claims, and, more specifically, to establish the District's liability. Howard v. Gutierrez, 571 F.Supp.2d 145, 159 (D.D.C.2008) (citing Cook v. Boorstin, 763 F.2d 1462, 1466 (D.C.Cir.1985)). Courts have typically applied the single-filing exception where a systematic pattern of discrimination was an integral part of an employer's practices and multiple plaintiffs' claims arose from one discriminatory mechanism. See, e.g., Moore, 424 F.Supp.2d at 150 (finding that a plaintiff had vicariously exhausted his administrative requirement for charges alleging discriminatory transfers, assignments, and disciplinary policies through the original plaintiffs' non-promotion class complaint). Simply put, an investigation into Byrd's complaint does not necessarily implicate Gaskins' Title VII hostile work environment and retaliation claims.
While the Court is reluctant to reward employers that are delinquent in the responsibilities charged to them by the EEOC, an individual plaintiff's responsibility to act with due diligence and establish her pleading burden cannot be excused, nor can the Court ignore the purposeful design of administrative requirements and the governing law. Accordingly, Burns and Gaskins may not pursue Title VII suits against DPR. As their DCHRA claims were dismissed earlier in this litigation, the following discussion of Title VII and DCHRA applies only to Byrd and Jean-Baptiste.
Byrd argues that the Court should grant judgment in her favor with respect to her hostile work environment claims, or alternatively render judgment barring the District from asserting the Faragher/Ellerth affirmative defense to vicarious liability at trial.
The scope of Title VII protections is not limited to preventing specific discriminatory employment decisions with "tangible" consequences. It also prohibits an employer from subjecting its employees to discriminatory hostile or abusive work environments. Jones v. GlaxoSmithKline, LLC, 755 F.Supp.2d 138, 149 (D.D.C.2010). It is unlawful for a workplace to be permeated with "discriminatory intimidation, ridicule and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris, 510 U.S. 17, 21, 114 S.Ct. 367 (1993) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). To be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive; that is, both a reasonable person and the victim herself would find the workplace hostile or abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Whether an environment is sufficiently hostile "can be determined only by looking at all the circumstances," including the frequency and severity of discriminatory
To establish a prima facie hostile work environment claim against her employer, a plaintiff must demonstrate that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was on the basis of membership in a protected class; (4) the harassment unreasonably interfered with the plaintiff's work performance and created an intimidating, hostile, or offensive working environment; and (5) the existence of respondeat superior liability. Davis v. Coastal Int'l Sec., Inc., 275 F.3d 1119, 1122-23 (D.C.Cir.2002).
If undisputed, Byrd's description of Thompson's conduct during her employment at the DPR easily satisfies the first four elements of a hostile work environment claim. First, as a woman, Byrd is a member of a protected class. See Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 97 (D.D.C.2007). Second, according to Byrd, Thompson engaged in unwelcome harassment at least once a day. She alleges that he constantly touched her breasts or buttocks, made comments sexual in nature, frequently requested sex or oral sex, and forcibly removed her clothing if she did not comply with his demands. Third, the severity of her allegations is plainly sufficient to rise to the level of pervasive harassment required to alter the terms or conditions of employment. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (finding that the plaintiff's allegations that her supervisor repeatedly demanded sexual favors during and after business hours, fondled her in front of other employees, and forcibly raped her on several occasions were more than sufficiently severe to qualify as an actionable hostile work environment claim). Finally, when "challenged conduct typically 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" and therefore are made on the basis of sex. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
Consequently, the parties' dispute boils down to two issues. First, because the parties' factual assertions sharply conflict in every important aspect regarding the extent and nature of Thompson and Byrd's relationship, questions of material fact undoubtedly exist—thus rendering summary judgment inappropriate. Byrd nevertheless argues that her claim must prevail because the District has failed to meet its burden to offer admissible evidence in support of its opposition. The parties' second dispute arises from questions involving the District's vicarious liability for the tortious acts of its managerial employee.
The District offers conflicting and illogical assertions to oppose Byrd's claims. It simultaneously refutes the incidents Byrd recounts by citing Thompson's denial of ever having had any sexual contact with her, see Thompson Lerner Transcript, [121-16] at 19-22, while also arguing that a jury may not find the harassment unwelcome because Byrd and Thompson had a consensual sexual relationship. See Def.
At the summary judgment stage, a non-movant is not required to produce evidence in a form that is admissible, but the evidence must be capable of being converted into admissible evidence at trial. Gleklen, 199 F.3d at 1369; see also America v. Mills, 654 F.Supp.2d 28, 34 (D.D.C. 2009) (finding that "if it is possible to convert evidence into a form that would be admissible at trial," the court may consider it for summary judgment). Thompson's statements contained in the transcript, which were based on his own personal knowledge, can be converted if he testifies to those matters at trial. See Richards v. Option One Mortgage, 2009 WL 2751831, at *1 n. 3 (D.D.C.2009) (explaining that hearsay statements may be converted into admissible evidence if a witness with personal knowledge can testify to them at trial). Presently, there is no reason for the Court to assume that Thompson cannot and will not testify to the disputed facts at trial by virtue of a Trial Subpoena—issued by the authority of the D.C. District Court and served with the force of the United States Marshal Service. Fed. R.Civ.P. 45. In light of the foregoing, a genuine dispute of fact exists as to Byrd's hostile work environment claims and the Court must deny her motion for summary judgment.
Byrd alternatively requests that the Court bar the District from utilizing the Faragher-Ellerth affirmative defense to vicarious municipal liability at trial. The Supreme Court has delineated two categories of hostile work environment
Like the facts in Faragher, the record here cannot support a finding that DPR exercised reasonable care to prevent or correct the harassing behavior. Faragher, 524 U.S. 775 at 807-09, 118 S.Ct. 2275. The employer in Faragher was foreclosed from raising an affirmative defense when it failed to disseminate its anti-harassment policy to the relevant employees, monitor the conduct of the harassing supervisors, or provide any assurances that harassing supervisors could be bypassed in registering complaints. Id. at 808, 118 S.Ct. 2275. The Faragher court explained that an employer does not necessarily have to prove it promulgated an anti-harassment policy and complaint procedure to invoke an affirmative defense. Id. But in certain factual circumstances, the specific need for a policy may be significant in considering the employer's use of reasonable care. Id. The Faragher court found that unlike employers of a smaller workforce, officials "responsible for city-wide operations" could not have reasonably concluded that precautions against hostile environments would be effective without actively communicating formal procedures to employees at its many sprawling locations. Id. at 808-09, 118 S.Ct. 2275. Similarly, this Court finds that DPR, due to its size and structure, needed to systematically communicate complaint procedures to reasonably prevent harassment.
The District fails to prove that it effectively supplied its Maintenance Division employees with information regarding its procedures. See Pls.' Mot. Partial Summ. J., ECF No. 121-38-121-43, Ex. 36-41. Further, it fails to affirmatively identify what paper policy was actually in effect prior to 2005. Id. Testimony of DPR employees and management directly contradict DPR's assertions that information regarding anti-harassment policies was ever effectively distributed, despite DPR's suggestions that its employees "should have received training" or that its feeble production of polices that "should have been in effect." Numerous DPR administrators—including former EEOC Counselor Terrence Reddick, current Human Resources Director Richelle Marshall, former Human Resources Department Head Arnita Bonner, and former DPR Directors Neil Stanley and Neil Albert—do not recall ever having seen DPR's Sexual Harassment and Retaliation Guidelines for Managers
DPR's inadequate promulgation of its policies is further evidenced by its supervisors' repeated, inappropriate responses to complaints of harassment. Roberts, Byrd's direct supervisor, testified that during that the period she supervised Byrd, she did not believe it was her responsibility to handle complaints of harassment or notify anyone if complaints were made to her—directly contradicting the procedure in DPR's Sexual Harassment and Retaliation Guidelines for Managers. See Def.'s Managerial Policy [121-38]. Roberts later acknowledged that she realized this was "something [she] should have done" after receiving harassment training at DPR following Byrd's complaints. Roberts Dep., [121-10] at 12-13. The record shows that other employees had similarly inappropriate reactions to Burns, Gaskins, and Kemper's complaints of harassment. If an anti-harassment policy had actually been disseminated, it is unlikely that ignorance of company procedures would have been as rampant throughout the department.
Even when faced with a specific need for a formal complaint procedure within the Maintenance Division, DPR failed to actively correct inadequacies in the dissemination of information to employees. Although the District disputes that any "formal complaint" was ever filed against Thompson prior to Byrd's filing, the record shows that several of DPR's high-ranking managers were aware of previous accusations of sexual harassment. Stanley and Reddick both testified that they were aware of rumors of misconduct within the Maintenance Division. Khabo stated that he and Albert spoke with Thompson in 2002 regarding the "cloud of complaints" of sexual harassment against him. Plaintiffs, along with other female employees, testify that they personally informed various DPR directors of Thompson's behavior on several occasions. DPR's own response to the EEOC's questions about prior complaints included admissions that it was "aware that four employees of the agency orally complained that they were the subject of sexual harassment," listing employees "Tonya Kemper, Annette Burns, Demera Gaskins and Katrina Williams." Pls.' Mot. Partial Summ. J., ECF No. 121-17, Ex. 15 ("DPR's Response to DCHRO's Request for Information"). Despite numerous rumors, DPR failed to initiate an investigation, circulate any complaint procedures, or monitor the Maintenance Division—allowing Thompson's virtually unchecked authority over his subordinates to continue. Under these circumstances, a jury could not conclude that DPR acted with reasonable caution to prevent or correct ongoing harassment within the department.
Turning to the second prong of the Faragher-Ellerth defense, a finding that Byrd failed to mitigate her damages is not necessary to defeat DPR's liability defense. Nevertheless, in light of the above, a reasonable
Viewing the record in the light most favorable to defendant, the Court finds that the District can be held vicariously liable for Thompson's alleged harassment of Byrd and consequently may not avail itself of the Faragher-Ellerth defense at trial.
Title VII's anti-retaliation provision prohibits employers from retaliating against any employee for asserting her statutorily protected right to speak out against discrimination. 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."); Steele v. Schafer, 535 F.3d 689, 693 (D.C.Cir.2008); Lathram v. Snow, 336 F.3d 1085 (D.C.Cir. 2003). To prove retaliation, a plaintiff must establish that (1) she complained or threatened to complain of sexual discrimination, (2) she suffered a materially adverse action by her employer, and (3) a causal connection links the two. Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir. 2009); Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C.Cir.2008). In the retaliation context, a "materially adverse" action must be both objectively and subjectively harmful, and capable of "dissuad[ing] a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Close "temporal proximity" between the adverse action and the employer's awareness of the protected activity is sufficient to show a causal link. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Byrd and Jean-Baptiste have both established prima facie cases of retaliation. DPR was aware that both women had complained of sexual harassment to either their supervisors or to the EEOC, and their employment with DPR came to an end shortly thereafter.
Byrd and Jean-Baptiste both claim that DPR did not renew or extend
Moreover, the Court must reject the District's position as a matter of policy. Under Title VII, anti-retaliation provisions prevent employer interference with remedial mechanisms available to employees in the workplace by prohibiting employer actions by employers that are likely to deter victims of discrimination from complaining about their working conditions. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405. Were the Court to agree with the District, temporary employees who are subject to contract renewal would be discouraged from speaking out against unlawful acts occurring in the workplace. Because Title VII protects these employees, the Court cannot find that the "natural expiration" of term employment, standing alone, precludes a retaliation claim, as such a conclusion would undermine Title VII's establishment of safeguards to eliminate discrimination in the workplace. Such a holding would consequently allow employers to insulate themselves from liability by merely hiring employees on a term-basis and allowing their employment to lapse whenever complaints of discrimination are lodged.
The District's legal argument does raise one question: In the case of a term employee, what defenses are available to an employer when the employee alleges that her employment term lapsed for purposeful discriminatory or retaliatory reasons? In the Title VII context, the ultimate burden of proving employment actions are retaliatory lies with the plaintiff. At the same time, to sufficiently oppose a claim of retaliation, a defendant-employer must produce "evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Defendant's
The failure to renew an employment term is similar to the failure to hire or failure to promote. In these contexts, defendants that are able to articulate a legitimate, non-discriminatory explanation for their actions can sufficiently defeat a presumption of discrimination. See, e.g., Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010) (explaining the employer properly disputed allegations of retaliation by claiming the plaintiff's transfer to France after her contract expired was because she refused to cooperate with a supervisor and employer wanted to use her expertise on another project); Halcomb v. Office of The Senate Sergeant-at-Arms of U.S. Senate, 563 F.Supp.2d 228, 249 (D.D.C.2008) (finding an employer offered a sufficient explanation for an employee's non-selection by asserting that she lacked a degree in engineering); Than v. Radio Free Asia, 496 F.Supp.2d 38, 46-47 (D.D.C.2007) (finding an employer's assertion that it based its hiring decision on answers a candidate gave during an interview was both reasonable and nondiscriminatory, and was thus sufficient to meet an employer's burden of offering a legitimate reason for not hiring the plaintiff); Fischbach v. Dist. of Columbia Dept. of Corr., 86 F.3d 1180, 1182 (D.C.Cir.1996) (concluding an employer's explanation for not hiring the plaintiff over another applicant was based on both candidates' interviews); see generally Jones v. Bernanke, 493 F.Supp.2d 18, 32 (D.D.C.2007) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (concluding the defendant rebutted the plaintiff's prima facie case by identifying non-discriminatory factors that motivated its decision)).
In this instance, both Byrd and Jean-Baptiste have presented sufficient evidence to state a prima facie case of retaliation. With respect to Byrd, the District has no response for the end of Byrd's tenure with DPR other then to point the Court to the expiration of her term. As set forth above, this is insufficient. Accordingly, the Court will deny defendant's motion for summary judgment with respect to Byrd's retaliation claims. With respect to Jean-Baptiste, the District offers an independent explanation as to why her employment with DPR ended, which the Court now addresses.
In addition to arguing that Jean-Baptiste's position naturally concluded, the District argues that the reason her application for year-round hire was rejected was because she failed a swim assessment. When evaluating a motion for summary judgment on a retaliation claim based entirely on circumstantial evidence—where there is no direct proof of discrimination— the Court considers a plaintiff's claims under the traditional McDonnell Douglas standard. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this burden-shifting framework, a plaintiff must first establish a prima facie case of retaliation; the defendant is then required to rebut the presumption of unlawful retaliation by offering a non-discriminatory reason
Recently, the D.C. Circuit distilled the initial analysis of retaliation claims, explaining that where a defendant has already articulated a legitimate reason for the challenged action, the court need not determine if the plaintiff makes out a prima facie case.
In short, if the plaintiff shows that "a reasonable jury could conclude from all the evidence that the adverse employment action was made for a discriminatory reason," an issue of fact exists and a "motion for summary judgment should be denied." Vilsack, 718 F.Supp.2d at 117 (citing Lathram, 336 F.3d at 1088).
In this instance, the District asserts that Jean-Baptiste "was not hired for a permanent position due to failing her swimming assessment, not due to any retaliatory motive." Def. Reply DMSJ, [140] at 15. The only remaining issue before the Court is whether Jean-Baptiste offered enough evidence to create a question of fact as to whether DPR's explanation is merely pretext to hide unlawful, discriminatory hiring practices.
Jean-Baptiste's notified DPR management of her intent to pursue her legal rights only days before she was compelled to complete a swim assessment as a contingency of her future DPR employment. According to DPR, the negative results of
The DCWPA prohibits certain employment actions and other retaliatory behavior in response to an employee's attempts to speak out against unlawful activity she witnesses or experiences. To establish a prima facie case under the DCWPA, a plaintiff must allege that (1) she made a protected disclosure, (2) her employer or supervisor retaliated by taking, or threatening to take, prohibited personnel actions against her, and (3) her protected disclosure was a contributing factor to the prohibited employment action. A protected disclosure is defined as:
D.C.Code § 1-615.52(a)(6)(D). The District moves for summary judgment on Byrd and Jean-Baptiste's claims; its efforts however, appear half-hearted. It initially argues that the plaintiffs made no protected disclosures that fall under one of the five categories enumerated above, and even if they did, the plaintiffs' statements that sexual harassment within the department was "common knowledge" preclude their complaints from being protected because "a disclosure of information that is publically known is not a disclosure under the WPA." DMSJ [123] (citing Wilburn v. Dist. of Columbia, 957 A.2d 921, 926 (D.C.App.2008)). Both arguments utterly fail to persuade the Court.
Byrd's EEOC filing and testimony before the D.C. Council and Jean-Baptiste's letters to DPR management—both alleging harassment and discrimination in violation of federal and state law—clearly fall
After seemingly abandoning that line of reasoning in its Reply brief, the District further asserts that plaintiffs cannot meet the third element of their prima facie cases because their employment with DPR "did not end as a result of any of their purported complaints or alleged protected activity," relying exclusively on its previous analysis of Title VII retaliation Def. Reply DMSJ, [140] at 38. As demonstrated above, issues of material fact exist as to whether they were subject to adverse employment actions as a consequence of their complaints of discrimination. Id. Byrd and Jean-Baptiste both offered sufficient evidence that a reasonable jury could find their termination was not motivated by the reasons DPR offered, but was in fact reactive to their charges of harassment. See discussion supra Part IV.A.iii.a-c. The Court will therefore deny the District's motion for summary judgment with respect to all DCWPA claims.
Section 1983 of the Civil Rights Acts of 1871 establishes liability for "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Under Section 1983, a municipality is liable only for those constitutional torts arising from action pursuant to official municipal policy. Triplett v. Dist. of Columbia, 108 F.3d 1450, 1453 (D.C.Cir.1997). The District's liability is contingent on a two-step inquiry to determine: (1) whether plaintiffs establish a predicate constitutional violation, and if so, (2) whether a custom or policy of the District of Columbia caused the injury. Baker v. Dist. of Columbia, 326 F.3d 1302, 1306 (D.C.Cir. 2003). The plaintiffs allege the District is liable for violating their First and Fifth Amendment rights. Without addressing the merits of the parties' arguments with respect to the first prong of Section 1983 analysis, the Court finds that no policy or custom of the District of Columbia acted as a "moving force" behind the purported constitutional violations. Baker, 326 F.3d at 1306; see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[T]he touchstone of the § 1983 action against a government body is an allegation that the official policy is responsible for a deprivation of rights protected by the Constitution.").
There are several ways a plaintiff can demonstrate that the District of Columbia is liable via Section 1983. A plaintiff can show municipal practices violated her constitutional rights through (1) "the explicit setting of a policy by the government," (2) "the action of a policy maker within the government," (3) "the adoption through a knowing failure to act by a policy maker of actions by his subordinated that are so consistent that they have become `custom,'" or (4) "the failure of the government to respond to a need (for example, training of employees) in such a manner as to show `deliberate' indifference'
Plaintiffs suggest that the District should be held accountable for their injuries because DPR management knowingly ignored ongoing sexual harassment and discrimination, allowing such conduct to become a "custom" of the agency. They further argue that the need for sexual harassment training was so obvious that the District's failure to respond to this need amounts to "deliberate indifference" to the risk of further injuries. Plaintiffs' arguments fail because no final policy maker can be identified among the relevant key players, and the conduct at issue was not so pervasive that the city itself should have been aware of its occurrence. See Banks v. Dist. of Columbia, 377 F.Supp.2d 85, 91 (D.D.C.2005); Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.D.C.2004).
Under Section 1983, a municipality is not liable under principles of respondeat superior, but is only responsible for the discretionary acts of a municipal employee who possesses policymaking authority. Triplett, 108 F.3d at 1453 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). "Final policymaking authority" for a municipality is a matter of state or local law. Id. (citing Jett v. Dallas Indep. School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). Plaintiffs contend that Directors Stanley and Albert are final policymakers for DPR, and therefore their actions or inactions set employment procedures for the department. In support of their argument, plaintiffs cite cases finding that the Director of the D.C. Department of Mental Health and the Director of the D.C. Department of Corrections are final policymakers because they are "responsible for `the general direction and supervision' of the department." Banks, 377 F.Supp.2d at 91 (citing Triplett, 108 F.3d at 1453). But Banks and Triplett are distinguishable by a crucial factor: both point to specific provisions in the D.C.Code granting the director authority to promulgate rules for the administration of his respective department with regard to the conduct at issue. See Banks, 377 F.Supp.2d at 91 (citing D.C.Code § 7-1131.05 (2001)); Triplett, 108 F.3d at 1453 (citing D.C.Code § 24-442 (1981)). These cases crystallize the rule that authority to make municipal policy is the authority to make final policy specific to the tortious conduct. If an official's discretionary decisions are constrained by policies not of that official's making, then those policies— rather then the official's departure from them—are the act of the municipality. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); see also Maniaci v. Georgetown University, 510 F.Supp.2d 50, 60 (D.D.C. 2007).
Plaintiffs have failed to identify any portion of the D.C.Code specifically granting authority to the DPR director to promulgate administrative rules or anti-harassment policies and procedures similar to those in Banks or Triplett. The D.C. City Council and the Mayor set anti-discriminatory policy and procedure for the entire city, requiring new employees to participate in mandatory sexual harassment training and receive copies of relevant laws. See DPR's Response to DCHRO's Request for Information, [121-17] at 2-3. The individual failures of various DPR directors to sufficiently adhere to the guidelines did not set policy for the municipality. Triplett, 108 F.3d at 1453 (citing Atchinson v. Dist. of Columbia, 73 F.3d 418, 421 (D.C.Cir.1996)). Absent identification of a member of DPR's management staff who is deemed to be a final policymaker under D.C. law, the Court cannot find that DPR's
Without a policy or practice to rely on, the Court finds no basis to hold the District liable for plaintiffs' alleged constitutional injuries under Section 1983. Therefore, the Court will grant defendant's motion for summary judgment with respect to all Section 1983 claims.
In light of the analysis above, this cumbersome lawsuit has been reduced to Byrd and Jean-Baptiste's DCWPA, DCHRA, and Title VII claims. The Court will next consider defendant's motion to sever the remaining viable actions. The Court may sever actions under Federal Rule of Civil Procedure 21 if the parties have been improperly joined pursuant to the permissive joinder requirements of Federal Rule of Civil Procedure 20(a). Rule 20(a) allows parties to join in one action if the plaintiffs' claims (1) arise out of the same transaction or occurrence or series of transactions or occurrences; and (2) involve a common question of law or fact. Fed.R.Civ.P. 20(a); Montgomery v. STG Intern., Inc., 532 F.Supp.2d 29, 35 (D.D.C.2008).
Byrd and Jean-Baptists' hostile work environment and retaliation claims do not implicate a common question of law or fact. The alleged harassment occurred at different times, was committed by different supervisors, at entirely different locations. Plaintiffs argue that both their claims require the Court to examine DPR's administration of sexual harassment policies and complaint procedures to establish a pattern of discrimination. Upon the dismissal of all Section 1983 claims, this argument became moot. Thus, plaintiffs' actions are no longer logically related and severance is appropriate.
Though the Court ultimately finds for the District on a number of issues as a matter of law, it wishes to reiterate its disinclination to reward employers who are careless in preserving the goals that state and federal law prohibiting discrimination are designed to protect. This is particularly true in circumstances where administrators take advantage of those it purports to be helping in particularly vulnerable and socio-economically disadvantaged circumstances.
That said, for the reasons discussed above, the Court will grant the District's motion in part and deny it in part. The Court will grant plaintiffs' alternative argument, barring the District from using the Faragher-Ellerth affirmative defense at trial with respect to Byrd only and will deny the motion in all other respects. The Court will also grant defendant's motion to sever, ordering Byrd and Jean-Baptists' claims to be severed into separate actions.
