ROSEMARY M. COLLYER, District Judge.
Plaintiff Lena T. Konah, a United States citizen and native of Liberia, worked as a licensed practical nurse for Defendant Unity Health Care, Inc. She was assigned to the medical unit at the Central Detention Facility operated by Defendant District of Columbia. She complains that jail inmates made vulgar and lewd comments and gestures at the nurses constantly. Ms. Konah further complains that, on August 5, 2009, she was trapped behind bars with a group of sexually threatening inmates but Defendant Sergeant Robert Jefferson,
Ms. Konah claims that Unity's acts and omissions constituted discrimination based on gender and national origin and that Unity constructively discharged her by terminating her in retaliation for her complaints about the August 5, 2009, incident. She also complains that the District of Columbia violated her rights under the Fourth and Fifth Amendments to the United States Constitution by "seizing" her and by denying her due process and equal protection. Further, Ms. Konah alleges that Sgt. Jefferson intentionally inflicted emotional distress on her and aided in the assault and battery that occurred when one of the inmates grabbed her on the buttocks. In response to Ms. Konah's Third Amended Complaint, Unity and Sgt. Jefferson have filed motions for summary judgment. The District of Columbia moves for judgment on the pleadings.
Ms. Konah worked for Unity as a Licensed Practical Nurse from November 2006 through September 2009.
Each of the "open population" housing units at CDF is monitored by a sergeant, who sits in a glass-walled control module called a "bubble" and who supervises floor officers and inmates. Id. ¶ 10. Inmates who qualify for open population are released from the cells but must remain in the cell block. From the bubble, the sergeant controls one gate ("bubble gate") that connects the cell block to a narrow hallway called the "sally port,"
One of Unity's duties is to administer medications to inmates, which nurses have typically done in the housing units. Unity SUF ¶¶ 7, 41. Correctional officers are required to accompany nurses at all times when they administer medication to inmates. Id. ¶¶ 7-9; Unity MSJ, Ex. 2 [Dkt. 67-6], Deposition of Lena Konah (Konah Dep.), at 95 (Q. "And are you supposed to be escorted by an officer? A. Yes."). If an officer is not immediately available, a nurse can "just come back and wait for one." Konah Dep. at 100. Waiting for an officer was Ms. Konah's typical practice. Id.
Insulting interactions between inmates and nurses were not uncommon at CDF. Unity SUF ¶¶ 22-26. Sometime in April 2009, a nurse—not Ms. Konah—reported that an inmate had thrown urine and feces at her. Id. ¶ 33. On April 21, 2009, several nurses, including Ms. Konah, sent a letter to Unity complaining about security practices at the jail. Id. ¶ 34; Compl. ¶¶ 26, 31; see also Unity MSJ, Ex. 18 [Dkt. 67-6], Letter dated April 21, 2009 (4/21/09 Letter) at 1. The letter described several recent incidents involving feces and "unknown liquids" as well as the general difficulties of working around the inmates while distributing medication.
The day after the nurses' complaint letter, Vali Zabiheian, Unity's Health Services Administrator and the senior management representative for Unity at the D.C. Jail, implemented a "sick call room policy." Unity SUF ¶ 35; see Unity MSJ, Ex. 20 [Dkt. 67-6], Decl. of Vali Zabiheian (Zabiheian Decl.) ¶¶ 1, 7-8 & Ex. A (4/22/09 Zabiheian Memo) at 1. The policy stated:
4/22/09 Zabiheian Memo at 1. On April 30, 2009, during a training meeting, all nursing staff at the Jail, including Ms. Konah, were instructed to use the sick call rooms when dispensing medicine. Unity SUF ¶ 40. According to Unity business records, during a discussion of "Medication Dispensing in Units," all nurses were instructed
Ms. Konah was assigned to dispense medication to inmates on August 5, 2009, in a CDF housing unit known as Southwest-1 or SW 1. Unity SUF ¶ 44. Sgt. Jefferson was on duty at the Southwest-1 bubble that day. On this occasion, Ms. Konah varied from her usual practice of waiting for an officer and entered the sally port unescorted. Konah Dep. at 100, 103. She began to dispense medications to inmates in the sally port, close to the front gate. Unity SUF ¶¶ 45-46. While she was there, the bubble gate opened and closed a few times, presumably to admit and discharge inmates obtaining medications. See Zabiheian Decl., Exs. D & E (SW1 Videos from Aug. 5, 2009). However, a group of inmates from the housing unit, dressed only in their undergarments, approached Ms. Konah in the sally port, making especially lewd and sexually threatening comments. She went to the bubble and asked Sgt. Jefferson to open the front gate to the corridor outside the unit so she could get away from the inmates, but he refused to respond or to open the gate, leaving her trapped in the sally port. As Ms. Konah returned to the front gate, the semi-clothed inmates surrounded her, calling her names and using sexually explicit language; one inmate grabbed her on the buttocks. Ms. Konah asked him something to the effect of "why did you touch me?" and screamed for help from Sgt. Jefferson. See Unity MSJ, Ex. 24 [Dkt. 67-6], DCDC-1 Report Completed by Lena Konah (Konah DCDC-1 Report); id., Ex. 25 [Dkt. 67-6], DCDC-1 Report Completed by Dr. Benedict Kargbo (Kargbo DCDC-1 Report). Dr. Benedict Kargbo, a treatment specialist at the Jail, entered the sally port from the housing unit, saw what was happening, and told the inmate to back away from Ms. Konah, which he did immediately. Unity SUF ¶ 52. Dr. Kargbo joined Ms. Konah's demands that the front gate be opened. Kargbo DCDC-1 Report at 1-2. Sgt. Jefferson eventually opened the front gate. With a corrections officer at the entrance, Ms. Konah and Dr. Kargbo left the sally port at the front gate and entered the main hallway of the Jail.
In the meantime, Ms. Konah took a planned vacation and, on August 26, 2009, told Unity that she was too terrified of the Jail to return to work there. Unity SUF ¶¶ 62-63. She asked for a transfer to the chronic care unit of CDF to avoid the open-population cell blocks, but the "nurse manager" could not put her there and told her to "go back to [her] assigned area" or, if she did not want to do so, to "go home" because she "should not come back." Konah Dep. at 118. Unity agreed to look for a position outside of CDF. Unity SUF ¶ 66. In September 2009, Unity asked Ms. Konah to consider other open positions identified on Unity's Career Opportunity website, and she agreed. Id. ¶¶ 68-69. However, Ms. Konah was hospitalized in September or October 2009. She admits that Unity contacted her attorney about a job opening but says she could not respond because she was in the hospital. Konah Dep. at 142-44.
Unity learned that Ms. Konah was hospitalized on October 9, 2009.
Ms. Konah filed a complaint with the D.C. Office of Human Rights on December 3, 2009. See Unity MSJ, Ex. 42 [Dkt. 67-6], OCHR Complaint. On January 20, 2010, Unity again offered her a position at the Hunt Place Health Center, which she accepted. Unity SUF ¶¶ 81-82. On January 21, 2010, Unity sent Ms. Konah a letter asking her to complete the FMLA documents before her scheduled return to work on January 27, 2010. Unity MSJ, Ex. 38 [Dkt. 67-6], Jan. 21, 2010, Letter from S. Michele Ottley to Lena Konah (noting that Ms. Konah's absence had been "provisionally designated as Intermittent F[amily] M[edical] L[eave]"). On January 27, 2010, Ms. Konah did not show up for work. Unity SUF ¶ 84. Unity informed her that it considered her failure to complete FMLA documents and failure to show up to work a voluntary resignation. Id. ¶ 85. Ms. Konah admits that Unity offered her a job at another Unity Healthcare facility and that she accepted the job in January 2010 but "there was some little discrepancy" she could not recall that prevented her from reporting for work. Konah Dep. at 144-45.
In her deposition, Ms. Konah answered many important questions, especially about events after August 5, 2009, with the statement that she could not recall or could not explain.
Ms. Konah filed a complaint in this Court on June 2, 2010, and the case was
The Court granted in part and denied in part the motion to dismiss. See Konah v. District of Columbia, 815 F.Supp.2d 61 (D.D.C.2011). Concluding that Ms. Konah had not "put forth any facts that might allow the Court to conclude that the District was an employer under [D.C. Circuit precedent]," the Court dismissed her Title VII and D.C. Human Rights Act (DCHRA) claims against the District. Id. at 70-71 (citing, inter alia, Redd v. Summers, 232 F.3d 933 (D.C.Cir.2000)). It likewise dismissed the Title VII claim against Sgt. Jefferson in his individual capacity, id. at 71-72; the claim of discrimination based on national origin against Sgt. Jefferson, id. at 73; the Monell
Sgt. Jefferson and the District answered the Second Amended Complaint, and the parties engaged in discovery. The case was reassigned to the Honorable Rosemary M. Collyer on April 20, 2012, and, following a May 9, 2012, status conference, Ms. Konah filed her Third Amended Complaint, Dkt. 64. Unity filed its answer, Dkt. 65, as did Sgt. Jefferson and the District, Dkt. 66. Shortly thereafter, discovery closed. Unity moved for summary judgment, Dkt. 67, which Ms. Konah opposes, see Dkts. 70-73. The District moved for judgment on the pleadings, Dkt. 68, which Ms. Konah also opposes, Dkt. 79. Sgt. Jefferson filed a separate motion for summary judgment, Dkt. 76; Ms. Konah filed her opposition to that motion on September 13, 2012, Dkt. 84.
The complaint currently before the Court is the Third Amended Complaint, Dkt. 64, which, as discussed below, varies in certain respects from Ms. Konah's prior complaints. Ms. Konah now brings the following seven claims: Count I, discrimination based on sex against the District and Unity, ¶¶ 39-47; Count II, discrimination based on national origin against Unity, ¶¶ 48-51; Count III, reprisal, against Unity
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings will be granted if the movant shows, at the close of the pleadings, that no issue of material fact remains to be resolved, and that he or she is entitled to judgment as a matter of law. See Terry v. Reno, 101 F.3d 1412, 1423 (D.C.Cir.1996); Haynesworth v. Miller, 820 F.2d 1245, 1249 n. 11 (D.C.Cir.1987); Summers v. Howard Univ., 127 F.Supp.2d 27, 29 (D.D.C.2000).
The standard of review for a motion pursuant to Rule 12(c) is essentially the same as that for motions to dismiss pursuant to Rule 12(b)(6). Robinson-Reeder v. Am. Council on Educ., 532 F.Supp.2d 6, 12 (D.D.C.2008), aff'd, 417 Fed.Appx. 4 (D.C.Cir.2011); Robinson v. District of Columbia, 403 F.Supp.2d 39, 47 (D.D.C.2005). The court may not rely on facts outside of the pleadings and must "view the facts presented in the pleadings and the inferences to be drawn therefrom
Although "detailed factual allegations" are not necessary to withstand a motion for judgment on the pleadings, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), "a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted); see also Mpoy v. Fenty, 901 F.Supp.2d 144, 148-49, Civ. No. 09-1140, 2012 WL 5383030, at *3 (D.D.C. Nov. 5, 2012) (applying Twombly and Iqbal to motion for judgment on the pleadings). The facts alleged "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
The Court addresses Sgt. Jefferson's Motion for Summary Judgment before turning to Unity's Motion for Summary Judgment and, finally, the District's Motion for Judgment on the Pleadings.
Robert Jefferson is a sergeant at the D.C. Department of Corrections. Ms. Konah complains that he "aided in the assault and battery" of Ms. Konah by the SW1 inmates with conduct that was "intentional, reckless, and in deliberate disregard of a high degree of probability that emotional distress would result to [Ms. Konah]." Compl. ¶¶ 63-68. Sgt. Jefferson moves for summary judgment.
Ms. Konah entered the sally port at 1:51:43 p.m. and left at 2:06:30 p.m., as shown by video of the front gate to the sally port. See SW 1 Videos from Aug. 5, 2009. The video footage shows that the front gate opened and closed on five occasions while Ms. Konah was in the sally port, including at 2:06:30, when she exited. Id.; see also Konah Dep. at 205 ("Q. And in that video the gate from the main hall into the sally port opened numerous times, didn't it? A. It did.").
Her recollections of August 5, 2009, are otherwise inconsistent. She first testified that she went to the bubble and had her back to the front gate so that she could not see it open or close. Konah Dep. at 196 ("Q. [T]he door at the main gate, was that opening and closing? A. I can't recall because I was backing—my back is turned to the main gate and I'm facing the bubble. So there is no way I can actually figure as to whether the gate is opening or closing."). She then testified that she did, in fact, look at the gates, but did not see the gates opening and closing. Id. at 200 ("I kept looking back and forth to see whether the gate is open for me to go out and I did not see it open."). Despite these statements, she later admitted that she "saw the gate opening closing several times." Id. at 203. The video shows that Sgt. Jefferson opened the front gate multiple times; whether Ms. Konah saw the gate open is unclear.
Sgt. Jefferson argues that the Court can and should disregard those parts of Ms. Konah's testimony that are disputed by the evidence on the video recordings. Mem. P. & A. Supp. Jefferson Mot. Summ. J. (Jefferson MSJ Mem.) [Dkt. 76] at 8-11 (citing Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (holding that where the nonmoving party's evidence at summary judgment is "blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of summary judgment") & White v. United States, 863 F.Supp.2d 41, 49 (D.D.C.2012) (granting defendant's motion for summary judgment where video evidence contradicted assertion that decedent "had both hands raised in a gesture of surrender")). Sgt. Jefferson contends that the videos clearly reveal that Ms. Konah was not held against her will and that, more to the point, he did not aid the alleged assault and battery by the inmates or intentionally inflict emotional distress on Ms. Konah.
Ms. Konah responds that, at best, Sgt. Jefferson admitted that he told her that he could not let her out until another officer was with him. Pl. Mem. P. & A. Opp. Jefferson MSJ (Pl. Jefferson Opp.) [Dkt. 84-1], at 6-7; see also Jefferson Dep. at 52-54 ("She was asking to get out the gate, I couldn't open the gate— . . . I told her I had to bring an officer—we had inmates in
In briefing the instant motion for summary judgment, both Sgt. Jefferson and Ms. Konah contest whether he violated her constitutional rights. The Third Amended Complaint does not make any such claim against Sgt. Jefferson. Compare Complaint [Dkt. 1] ¶¶ 31-33 (alleging Sgt. Jefferson acted with reckless disregard of Fourth Amendment rights), and Am. Compl. [Dkt. 8] ¶¶ 33-35 (same), and Second Am. Compl. [Dkt. 25] ¶¶ 41-45 (same for Fourth and Fifth Amendment rights), with Third Am. Compl. [Dkt. 64] ¶¶ 54-62 (alleging only that Sgt. Jefferson and others acted under color of state law (¶ 55) and that the District violated constitutional rights). While the parties' arguments repeat earlier briefing, the Third Amended Complaint, modified by counsel for the fourth time, has dropped them. What is now pled against Sgt. Jefferson are only the common law torts of assault/battery and intentional infliction of emotional distress. Third Am. Compl. ¶¶ 62-68.
The Court will address the common law claims presented in the Third Amended Complaint before it. For clarity's sake, however, in case the issue is raised on appeal, the Court notes that if there were remaining constitutional claims against Sgt. Jefferson, it would find that he is entitled to qualified immunity. Qualified immunity is "a defense that shields officials from suit if their conduct `d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Ortiz v. Jordan, ___ U.S. ___, 131 S.Ct. 884, 888, 178 L.Ed.2d 703 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Courts employ a two-step inquiry to determine whether qualified immunity applies, looking (1) at whether a constitutional right was violated and (2) whether that right was clearly established. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Johnson v. District of Columbia, 528 F.3d 969, 973 (D.C.Cir. 2008). These two steps may be analyzed in either order. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Ms. Konah entered the sally port at 1:51:43 p.m. and left at 2:06:30 p.m. The video shows that Sgt. Jefferson opened the front gate multiple times while Ms. Konah was in the sally port. She does not challenge the video. Her constitutional claims—whether interpreted as false imprisonment, unreasonable seizure, lack of due process, or equal protection—all reduce to the argument that Sgt. Jefferson should have sounded an emergency call or "code" to bring other guards running and extricate her sooner. E.g., Pl. Jefferson Opp. at 11 ("[Sgt. Jefferson] neither sounded an alarm [n]or placed a call on his radio to other officers standing outside the gate, he stood and just look at Plaintiff
Ms. Konah brings claims under District of Columbia law against Sgt. Jefferson: Count V, assault and battery—two distinct causes of action, see Jackson v. District of Columbia, 412 A.2d 948, 955 (D.C.1980)— and Count VI, intentional infliction of emotional distress. Judge Urbina, in his opinion denying in part the District and Sgt. Jefferson's motion to dismiss, exercised supplemental jurisdiction over the state law claims because those claims and Ms. Konah's federal claims arose from a "common nucleus of operative fact." Konah, 815 F.Supp.2d at 78-79 (citing 28 U.S.C. § 1367(a)). The Court will retain supplemental jurisdiction at this juncture, given the clarity of the applicable law and the developed nature of the record.
District of Columbia law on these three common law torts is clear, and it is clear in a way fatal to Ms. Konah's claims: all three torts require proof of intent on the part of Sgt. Jefferson. "An assault is an intentional and unlawful attempt or threat, either by words or acts, to do physical harm to the plaintiff." Smith v. District of Columbia, 882 A.2d 778, 787 (D.C. 2005) (internal quotation marks and citations omitted; emphasis added). "A battery is an intentional act that causes a harmful or offensive bodily contact." Id. (internal quotation marks and citations omitted; emphasis added). Intentional infliction of emotional distress requires "extreme and outrageous conduct on the part of the defendant which intentionally or recklessly causes the plaintiff severe emotional distress." Kotsch v. District of Columbia, 924 A.2d 1040, 1045 (D.C.2007) (internal quotations and numbering of elements omitted; emphasis added). Ms. Konah simply has not adduced any credible evidence tending to show that Sgt. Jefferson delayed opening the gate intending that Ms. Konah suffer an assault, a battery, or emotional distress. Her best argument on this point is that "Defendant Jefferson caused the offensive contact on Plaintiff because he refused to open the back gate for her to exit, ultimately causing unwanted contact at the hands of the inmates." Pl. Jefferson Opp. at 23. Likewise, her best evidence on the point is her own deposition testimony:
Konah Dep. at 227-28.
The trouble is that there is nothing in the record—even in Ms. Konah's sometimes self-serving deposition testimony— suggesting that Sgt. Jefferson delayed opening the gate with the intention that Ms. Konah suffer an assault, a battery, or emotional distress. See Restatement (Second) of Torts § 18, cmt. e ("It is not enough to make the act intentional that the actor realize that it involves any degree of probability of a harmful or offensive contact or an apprehension of such contact, less than a substantial certainty that it will so result."). That deficit might not be fatal to Ms. Konah's claims if the case were in a different posture; "subjective intent can rarely be proven directly" and often "must be inferred." See Waldon v. Covington, 415 A.2d 1070, 1077 (D.C. 1980). However, the record is not bare, and the pending motion is for summary judgment, not to dismiss. The time for Ms. Konah to provide circumstantial evidence of intent is now. Even her deposition, viewed in the light most favorable to her and setting aside the many inconsistencies and memory gaps, does not tend to show that Sgt. Jefferson "just did not open the gate" for any reason other than that there were inmates in the sally port who would have been able to escape confinement. The record also includes Sgt. Jefferson's deposition, Dr. Kargbo's deposition, the video recordings, and a plethora of documentary evidence, all demonstrating that Sgt. Jefferson delayed opening the front gate for Ms. Konah due to security reasons, not because he wished to see harm befall her. See Jefferson Dep. at 93-101 ("I was waiting for an officer to come, because I had inmates inside the sally port."); Kargbo Dep. at 18. On the basis of this evidence, there is no genuine dispute of material fact, because the evidence does not suggest that Sgt. Jefferson acted intentionally, that he acted recklessly, or that his actions were otherwise "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency."
The Court will, therefore, grant summary judgment in favor of Sgt. Jefferson on Ms. Konah's claims of assault, battery, and intentional infliction of emotional distress.
Pending against Unity are Ms. Konah's claims of discrimination based on sex, Count I; discrimination based on national origin, Count II; reprisal (retaliation), Count III; and constructive discharge, Count VII. There are no genuine disputes of material fact, and summary judgment will be granted in favor of Unity.
In the Third Amended Complaint, Ms. Konah seeks to hold Unity liable for discrimination based on sex and national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the D.C. Human Rights Act ("DCHRA"), D.C.Code § 2-1401.01 et seq.
The Court turns to Ms. Konah's sex discrimination claim against Unity, which is based on the theory that Unity "created an abusive work environment" and "failed to remedy sexually offensive conduct by inmates/staff, gender specific abusive language and sexual assault [that] was ongoing and [] continuous." Compl. ¶¶ 42-43.
"To determine whether a hostile work environment exists, the court looks to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance." Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir. 2008). To prevail on a hostile work environment claim, a plaintiff must show that her employer subjected her to "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The conduct must be sufficiently extreme to constitute an alteration in the conditions of employment, so that Title VII does not evolve into a "general civility code." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id.
Employers can be liable for a hostile work environment created through the actions of third parties, such as inmates. Beckford v. Dep't of Corr., 605 F.3d 951, 957-58 (11th Cir.2010). In such cases, the employer may be liable if he "fails to take immediate and appropriate corrective action in response to a hostile work environment of which the employer knew or reasonably should have known." Id. (discussing "uniform[]" approach of circuit courts to this issue).
As a threshold matter, the Court notes that its analysis of the sex discrimination claim focuses primarily, though not exclusively, on the August 5, 2009 incident involving Ms. Konah. She has alleged that
Ms. Konah testified only that she "was not the only nurse that [sexually harassing insults had] been said to," and when pressed for details or names, she said: "I won't be able to pinpoint because I can't recall. So I can just tell you that there were other incidents where inmates have told nurses these things." Konah Dep. at 233-35. She has not identified any other incidents in which inmate misconduct was directed at her other than vaguely attempting to adopt the events in the April 21, 2009 letter as having happened to her. Id. at 68-69. She claims she reported prior incidents she experienced to Unity but has not provided any evidentiary support for those assertions, id.; the absence of any such evidence is notable in a case in which Unity's business records are extensive. Courts in this Circuit "frown[] on plaintiffs who attempt to bootstrap their alleged discrete acts of [discrimination or] retaliation into a broader hostile work environment claim." Baloch v. Norton, 517 F.Supp.2d 345, 364 (D.D.C.2007), aff'd, 550 F.3d 1191. Accordingly, the Court relies on the testimony of Sgt. Jefferson and Dr. Kargbo and the nurses' complaint letter for context but focuses on the August 5, 2009 incident involving Ms. Konah in evaluating her hostile work environment claim.
Unity argues that it worked with the D.C. Department of Corrections (DOC) to ensure that there were "reasonable policies in place to prevent inmates from assaulting nurses." Unity MSJ at 11. Noting that DOC, not Unity, is "responsible for all safety and security procedures at CDF," Unity emphasizes that it implemented a policy requiring nurses to administer inmate medications in the sick call rooms, effective May 1, 2009, and that Ms. Konah, who had been trained on this policy, violated it on August 5, 2009. Id. Unity also argues that Ms. Konah's allegations do not support a hostile work environment claim because the August 5, 2009 incident was isolated and not "extremely serious" as case law requires. Id. at 15-16 (citing, inter alia, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
Ms. Konah's primary argument derives from what she perceives as Unity's "`negligence and ratification' of the harassment through its failure to take appropriate and reasonable responsive action" to "Plaintiff's and other nurses['] complaints of an abusive environment." Pl. Unity Opp. at 12 (citing Freitag v. Ayers, 468 F.3d 528, 538 (9th Cir.2006)). Characterizing Unity's efforts to protect its nurses as "minuscule," "ineffective and not prompt," Ms. Konah devotes the bulk of her opposition brief to arguing that disputes of fact regarding the medication distribution policy
The Court concludes that Unity took reasonable and appropriate corrective steps to ensure that the environment for Unity nurses at CDF would be as safe and non-hostile as a job situation in a jail requiring direct contact with inmates could be. As a contractor with DC DOC, Unity was ultimately bound by DOC's security policies. Unity SUF ¶ 6. Unity also worked with DOC to develop its own policies applicable to Unity employees to ensure their safety, such as requiring Unity nurses to be escorted at all times by an officer. The record demonstrates that Unity was responsive to security concerns raised by its nurses, reacting to the April 2009 complaint letter by instituting the sick call room policy: "Effective May 1, medication administration and dispensing by the nursing and pharmacy staff will take place in the sick call rooms on the housing units." 4/22/09 Zabiheian Memo at 1. The follow-up by Unity and DOC to the August 5, 2009 incident was also comprehensive, including the immediate medical evaluation of Ms. Konah by the infirmary, a meeting with the warden, the offer of criminal prosecution, and the use of the internal CDF disciplinary system to which inmates are subject.
The mere existence of security measures might be disregarded if Ms. Konah were unaware of them, but there is no genuine dispute of material fact that she knew of the escort policy and the sick call room policy. Unity SUF ¶ 11 (Ms. Konah used a sick call room in March 2009), Konah Dep. at 95, 100 (Ms. Konah was aware of the escort policy and typically followed it), Nursing Staff Meeting Record at Bates UNITY 132-33 (Ms. Konah signed attendance sheet for training on sick call room policy). Ms. Konah was, apparently, in violation of Unity policies when the August 5, 2009 incident took place. Indeed, Ms. Konah says she normally waited for a guard to escort her and offers no explanation for why, on August 5, she departed from this practice. Her brief speculates that Unity "could have gone outside of DOC and brought the matter to the attention of higher level officials" or "properly monitored [and] developed a clear policy on dispensing medication and provided safety equipment for the nurses," Pl. Unity Opp. at 23-24, but Ms. Konah herself concedes that "Unity was not on the unit with me. It was the officer that was on the unit with me. So I'm-the officer was the one that should have done something to prevent the incident happening to me," Konah Dep. at 113. Unity took reasonable measures to prevent harassment and is not liable. See Beckford, 605 F.3d at 959-60 (listing as reasonable measures, inter alia, accompaniment of female staff by security; requiring officers to write disciplinary reports; permitting female staff to report misconduct by inmates; and permitting nurses "to use screens at cell windows and in the bubble to prevent harassment").
The Court turns next to Ms. Konah's vague retaliation claim, which includes only the conclusory statement that "she was subsequently subjected to an adverse action because she opposed discriminatory treatment." Compl. ¶ 52. Her opposition brief states the legal standard for a retaliation claim and then recites, without further legal argument, Ms. Konah's version of the events that took place after August 5, 2009, from Ms. Konah's vacation to her eventual termination by Unity. Pl. Unity Opp. at 24-25.
Title VII's antiretaliation provision prohibits an employer from "discriminat[ing] against" an employee because she has "opposed" a practice proscribed by Title VII or because "[s]he has made a
When the employer offers a "legitimate, non-discriminatory reason" for the allegedly materially adverse action, "the sole remaining question" becomes "retaliation vel non—whether, based on all the evidence, a reasonable jury could conclude that [the] proffered reason . . . was pretext for retaliation." Pardo-Kronemann v. Donovan, 601 F.3d 599, 603-04 (D.C.Cir.2010) (internal quotation marks and citations omitted); see also McGrath, 666 F.3d at 1380 n. 3 ("[T]he only question is whether the employee's evidence creates a material dispute on the ultimate issue of retaliation." (internal quotation marks and citations omitted)). A plaintiff can show pretext "either directly by [showing] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Jones v. Bernanke, 557 F.3d 670, 679 (D.C.Cir.2009) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)).
The Court need not be detained by the imprecise nature of Ms. Konah's allegations because the record is devoid of any evidence to sustain a retaliation claim, either on the theory that Unity retaliated against Ms. Konah for reporting the August 5, 2009 incident by offering her a transfer to a community health center or by terminating her in January 2010. There is no genuine dispute of material fact that Unity had legitimate, nondiscriminatory reasons in offering a transfer from a job setting in which Ms. Konah believed she could no longer work—CDF—to one that would be more amenable. Unity has never questioned Ms. Konah's inability to work among inmates after August 2009. To the contrary, the record reveals that it made multiple efforts to preserve her job and accommodate her during and after her hospitalization, providing prompt and informative communications to Ms. Konah's caregiver. See generally Correspondence Among Unity and Laurel Hospital Regarding FMLA Documents; Correspondence Regarding Open Position.
Furthermore, contrary to Ms. Konah's argument that "she was terminated, without even knowing that she had a viable job offer," Pl. Unity Opp. at 25, Ms. Konah acknowledged that she "accepted the position" and "agree[d] to go back to work," Konah Dep. at 145. Thus, when Unity terminated Ms. Konah for failing to return to work, it acted with a legitimate reason that the documentary evidence overwhelmingly shows was not a pretext for retaliation. See Unity MSJ, Ex. 45 [Dkt. 67-6], Letter From Sidney Jackson dated Jan. 27, 2010, at 1 ("You failed to report to Michele Ottley . . . as directed in the correspondence sent to you on January 21,
Ms. Konah's final claim against Unity is Count VII, constructive discharge. She asserts that Unity was "aware of the abusive environment," which "caused harm to [Ms. Konah] to the extent that the environment was no longer tolerable and as a result [Ms. Konah] was constructively discharged and/or terminated." Compl. ¶ 70. This claim also fails.
A constructive discharge claim "`depends on whether the employer deliberately made working conditions intolerable and drove the employee out.'" Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C.Cir.1997) (citing Clark v. Marsh, 665 F.2d 1168, 1173 (D.C.Cir. 1981)); see also Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) ("A plaintiff who advances such a compound [hostile work environment/constructive discharge] claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign."). A finding of intentional discrimination is a necessary predicate for a finding of constructive discharge. Bishopp v. District of Columbia, 788 F.2d 781, 790 (D.C.Cir. 1986). As set forth above, the record does not demonstrate intentional discrimination by Unity against Ms. Konah. Unity took reasonable measures to ensure the safety of its employees in CDF, an inherently difficult working environment in the best of circumstances, and then attempted to accommodate Ms. Konah's inability to work in CDF through a transfer to a position in a community health center. This is not the "extreme mistreatment" required to sustain a constructive discharge claim. See Robinson-Reeder, 532 F.Supp.2d at 18. The Court thus grants Unity's motion for summary judgment on the constructive discharge claim.
As discussed above, there are no genuine disputes of material fact regarding any of Ms. Konah's claims against Unity, which is entitled to judgment as a matter of law. The Court thus grants Unity's motion for summary judgment in its entirety.
The Complaint advances three counts against the District: Count I, discrimination based on sex; Count III, retaliation for Ms. Konah's opposition to sex discrimination; and Count IV, violations of her Fourth and Fifth Amendment rights due to inadequate training of correctional officers, leading to a custom or practice of sexual misconduct to which the District was deliberately indifferent. The District moves for judgment on the pleadings on all three counts; the Court grants the motion except as to Ms. Konah's equal protection claim.
Addressing the Second Amended Complaint, the Court earlier dismissed allegations that the District violated Title VII and the DCHRA because Unity was Ms. Konah's employer, not the District. See 815 F.Supp.2d at 70-71 (citing, inter alia, Redd v. Summers, 232 F.3d 933 (D.C.Cir.2000)). Those counts were dismissed without prejudice because the Second Amended Complaint neither alleged that Ms. Konah was a District employee nor put forth facts that might allow a court
Ms. Konah's constitutional claims against the District stem in the first instance from the same allegation underlying her claims against Sgt. Jefferson: that when she asked him to open the cell doors, he did not do so immediately. Ms. Konah alleges violations of her Fourth Amendment right to be free from unreasonable seizure and her Fifth Amendment right to due process before incarceration. Ms. Konah clarifies in her opposition to the District's motion that "by not calling CODE Blue or using [some] other means of communication or alarms, limitations were imposed so that other[] [officers] who could have come to Plaintiff['s] rescue" were not summoned. Pl. Opp. Mot. J. Pleadings [Dkt. 69] (Pl. D.C. Opp.) at 20. Additionally, Ms. Konah alleges that she was a victim of sexual harassment in violation of the Equal Protection Clause and that this claim is actionable under 42 U.S.C. § 1983. She cites Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.1996); Pontarelli v. Stone, 930 F.2d 104, 113-114 (1st Cir. 1991), abrogated on other grounds by Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir.1989); and Poulsen v. City of North Tonawanda, N.Y., 811 F.Supp. 884, 894 (W.D.N.Y.1993), to support her constitutional claim to equal protection. Pl. D.C. Opp. at 13.
Constitutional claims against municipalities like the ones advanced by Ms. Konah require a two-step analysis. See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003) (citing Collins v.
Ms. Konah's two lines of argument—on the one hand, Fourth Amendment and Fifth Amendment claims, and, on the other, an Equal Protection claim— must be addressed separately. As to the first, Ms. Konah's alleged constitutional right was either to have the front gate opened more immediately or to have Sgt. Jefferson call a "Code" to summon help more immediately. As alleged in the Complaint, and even as expanded in her brief, Ms. Konah fails to articulate a constitutional violation for which the District might be liable. The actor against whom these allegations run is Sgt. Jefferson. As set forth above, Ms. Konah has not pursued those claims as against Sgt. Jefferson in the Third Amended Complaint; even if she had, the Court would find that he is protected by qualified immunity. Ms. Konah makes no express claim—and none is revealed by the multiple complaints or briefs or the evidentiary record—that any other person or entity had control over the gates to Southwest One on August 5, 2009. But a municipality cannot be held liable under § 1983 under a theory of respondeat superior, solely because it employed a tortfeasor. Monell, 436 U.S. at 691-92, 98 S.Ct. 2018. It can only be liable "where the municipality itself causes the constitutional violation at issue." Simms v. District of Columbia, 587 F.Supp.2d 269, 276 (D.D.C.2008) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018).
Ms. Konah makes no claim that Sgt. Jefferson failed to open the gates to the sally port more immediately because of any action or inaction by the District, much less that any "custom or policy" of the District caused the violation. See id. Moreover, as discussed above, Ms. Konah's testimony reveals that she entered the sally port voluntarily, without waiting for an officer to escort her, and Sgt. Jefferson was unable to open the gate until an officer secured the inmates so that the interior gate could be shut. The incidental delay Ms. Konah suffered was not an unreasonable seizure in violation of the Fourth Amendment or a violation of due process in contravention of the Fifth Amendment. See Butera v. District of Columbia, 235 F.3d 637, 651 (D.C.Cir.2001) ("To assert a substantive due process violation, however, the plaintiff must also show that the District of Columbia's conduct was `so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998))).
Analysis of Ms. Konah's claim of sexual harassment proceeds differently. The Court first evaluates whether Ms. Konah has alleged a constitutional violation. "[T]he Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws." Davis v. Passman, 442 U.S. 228, 234, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (citations omitted).
Passman involved an inquiry into "what `important governmental objectives,' if any, are served by the gender-based employment of congressional staff." Id. at 236 n. 9, 99 S.Ct. 2264. In that context, Passman held:
Id. at 242, 99 S.Ct. 2264. The District of Columbia was not Ms. Konah's employer, which means that she cannot sue the District for gender discrimination under the DCHRA or Title VII. E.g., 42 U.S.C. § 2000e-2 (prohibiting "unlawful employment practice[s]" by an "employer"). With no other avenue to address her claim of a violation of equal protection, she has a cause of action under the Fifth Amendment pursuant to this Court's general federal-question jurisdiction. See Passman, 442 U.S. at 243-44, 99 S.Ct. 2264.
The Court thus turns to the second step of the Monell analysis to determine whether Ms. Konah has "stated a claim that a policy or custom of the District of Columbia caused the constitutional violation alleged." Baker, 326 F.3d at 1306. A plaintiff can make this showing in several ways; what it is important is that she allege an "affirmative link such that a municipal policy was the moving force behind the constitutional violation." Id. (internal quotation marks and citations omitted); see also City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). For example, a plaintiff can show a "custom or policy" by demonstrating "the failure of the government to respond to a need (for example, training of employees) in such a manner as to show `deliberate indifference' to the risk that not addressing the need will result in constitutional violations." Baker, 326 F.3d at 1306-07 (citing Harris, 489 U.S. at 390, 109 S.Ct. 1197 & Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C.Cir. 2000)).
According to the Complaint, the alleged hostile work environment and discriminatory acts were provoked by inmates and allowed without effective limitation by District employees or agents despite it being obvious that something needed to be done. Compl. ¶¶ 18, 26, 30, 31; see id. ¶ 26 ("Plaintiff's supervisors and other management staff at the Central Detention Facility were aware that abusive actions by inmates toward Plaintiff are a pattern and practice. . . ."). Ms. Konah's complaint is that the District did
At this point, the District of Columbia seeks judgment on the pleadings. The Court cannot oblige. Whether Ms. Konah can prove a violation of her constitutional right to equal protection is not the current question. The District's motion attacks only the sufficiency of the allegations in the Third Amended Complaint, which the Court finds are sufficiently clear and detailed to make out a cause of action. See Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
The Court will thus grant the District's motion for judgment on the pleadings in all respects except in regards to Ms. Konah's claim of municipal liability for an equal protection violation.
For the reasons set forth above, Unity's motion for summary judgment and Sgt. Jefferson's motion for summary judgment will be granted. The District's motion for judgment on the pleadings will be granted except in regards to Ms. Konah's claim of municipal liability for an equal protection violation. A memorializing Order accompanies this Opinion.
Unity MSJ, Ex. 24 [Dkt. 67-6], Disciplinary Report by Lena T. Konah (Konah Disciplinary Report) at Bates UNITY228-29.
Konah DCDC-1 Report at Bates UNITY225-26.
