RUDOLPH CONTRERAS, United States District Judge.
Plaintiff Sharon D. Richardson, an African-American female, was an employee of Defendant The Johns Hopkins University ("JHU") from April 2011 to January 2013. Ms. Richardson brings this civil action against JHU and four of its employees or former employees, Defendants George Petasis, Shanna Hines, Deborah Grandval,
Before the Court is Defendants' motion seeking summary judgment on all counts
JHU's Paul H. Nitze School of Advanced International Studies ("SAIS") is a global educational institution that maintains its primary campus in Washington, D.C. Its Office of Information Technology provides computing support for SAIS students, faculty, and staff, including computing and audio-visual support for SAIS events. See Defs.' Stmt. Facts Not In Dispute ("Defs.' SOF") ¶ 1, ECF No. 40-2. Plaintiff Sharon Richardson began working for SAIS's Office of Information Technology on April 11, 2011 and resigned on January 22, 2013. See id. ¶ 6.
Ms. Richardson was hired as an Information Technology Manager with the title of Director of Operations and maintained this title throughout her employment.
As the Director of Operations, Ms. Richardson supervised approximately eight employees. See Defs.' SOF ¶ 11.
The signs of a future strained relationship between Ms. Richardson and Mr. Petasis were evident early in Ms. Richardson's employment. When Ms. Richardson began working in April 2011, Mr. Petasis
On or about May 5, 2011, however, Mr. Petasis yelled at Ms. Richardson in front of Mohammad Elahi, one of Ms. Richardson's staff members. See id. ¶ 16; Defs.' Ex. 7, ECF No. 40-9 (handwritten note dated May 11, 2011 describing the incident). Ms. Richardson states that Mr. Petasis "yelled and screamed at me in a physically hostile manner" and was "so close that I could feel his breath and smell the coffee on his breath." Richardson Aff. ¶ 11. Ms. Richardson testified that she confronted Mr. Petasis about his conduct soon afterwards and told him that she found it "offensive." See Sharon Richardson Dep. Tr. at 222:8-223:21, Defs.' Ex. 1-B ("Richardson Dep. Tr."), ECF No. 41-2. She testified that their interaction was calm and that it ended by shaking hands. See id. Ms. Richardson also mentioned this incident to Defendant Shanna Hines, an African-American woman who was the Human Resources Manager during Ms. Richardson's employment, shortly thereafter. See Defs.' SOF ¶ 5; Richardson Dep. Tr. at 223:22-224:15. Ms. Richardson states, however, that Mr. Petasis frequently yelled and screamed at her and invaded her personal space throughout her employment. See Richardson Aff. ¶ 10. Nevertheless, Ms. Richardson testified that from May to September 2011, she and Mr. Petasis had a "good relationship" and treated each other with respect. See Richardson Dep. Tr. at 262:16-263:2, Defs.' Ex. 1-C, ECF No. 41-3.
Mr. Petasis states that within the first few months of Ms. Richardson's employment, he realized that Ms. Richardson's "technical competence was not at the level [he] had understood it to be based on her resume and [his] interview of her."
Ms. Richardson states that on or about September 27, 2011,
Two days later, on September 29, 2011, at her request, Ms. Richardson met with Ms. Hines and Defendant Myron Kunka, the Associate Dean for Finance and Administration at the time, who was responsible for overseeing Human Resources and the Office of Information Technology, to generally discuss her and her staff's concerns about Mr. Petasis. See Defs.' SOF ¶ 22. After the meeting, Ms. Richardson created a "Memorandum For Record" memorializing her recollection of the conversation. See Defs.' Ex. 8, ECF No. 40-10. According to Ms. Richardson's memorandum, the purpose of the meeting was to, first, "[m]ake management formally aware" that the Office of Information Technology was a "hostile" environment and, second, to "share concerns expressed by my direct reports (staff/personnel) and myself." Id. at SDR000992. Ms. Richardson stated that her staff had expressed concerns regarding Mr. Petasis's "inappropriate and unprofessional behavior" and that she was doing her job "to project that information forward" by putting it "on record." Id. She stated that her staff felt "threatened and bullied" by Mr. Petasis for a few different reasons. Id. She stated, for example, that she was informed that Mr. Petasis "has a history of volatile actions such as yelling, intimidation, harassment and even pounding his fist on the desk." Id. at SDR000992-93. She also stated that her male staff had complained about Mr. Petasis grabbing their shoulders and shaking them. See id. at SDR000993.
Ms. Richardson also told Ms. Hines and Mr. Kunka that some of her male staff wanted Mr. Petasis to stop referring to them as "his boys." Id. at SDR000992. She wrote in her memorandum: "They find this reference offensive and degrading, example: One staff is of [Philippians [sic] Origin] and another is [Ethiopian Nationality]." Id. (punctuation in original). During her deposition testimony, Ms. Richardson provided some clarification. She testified that the members of her staff that she referenced were Michael Berbano, who she said was of Filipino origin, and Mr. Elahi, who she said was of Iranian origin.
On January 24, 2012, Mr. Petasis had a heated discussion with Ms. Richardson in which she claims that he yelled at her regarding a meeting that Ms. Richardson had requested with Human Resources earlier that month. See Richardson Aff. ¶ 28; Pl.'s Ex. 11, ECF No. 42-14. Ms. Richardson summarized that discussion in a memorandum dated two days later and addressed to Mr. Petasis.
On February 22, 2012, Ms. Richardson had an encounter with Ms. Grandval that Ms. Richardson characterizes as threatening. See, e.g., Richardson Dep. Tr. at 323:17-18, Defs.' Ex. 1-D, ECF No. 41-4. According to Ms. Richardson's testimony, Ms. Grandval came to her office to ask her a question, and, because Ms. Richardson was doing something else at the time, she did not respond. See id. at 322:6-9. Ms. Grandval then, according to Ms. Richardson's testimony, yelled at her that she asked her a question and Ms. Richardson again did not respond. See id. at 322:8-12. Ms. Richardson testified that Ms. Grandval then "lunged in my face, and her breath was on my breath," yelling at her, "When I ask you something, you need to tell me." Id. at 322:13-323:8. Ms. Richardson claims that shortly after this incident, Mr. Petasis removed her access to the calendar on Microsoft Outlook but that he did not remove Ms. Grandval's access, which impeded her ability to perform her work. See Defs.' SOF ¶ 28.
A week later, on February 29, 2012, Mr. Petasis wrote a memorandum to Ms. Richardson in response to her memorandum dated January 26, 2012 and in advance of a meeting that the two had with Ms. Hines that same day. See Pl.'s Ex. 22, ECF No. 42-23. Mr. Petasis disputed the factual account that Ms. Richardson provided in her memorandum, writing: "It was shocking to see things twisted around and styled in a way where you appear to be the victim; discussions taken out of context, and comments often distorted, in order to present me in the worst possible way." Id. at JHU00235. He stated that he had been trying to accommodate Ms. Richardson's "hostile attitude, body language and behavior at meetings, as well as emails, these past ten months," and that he had attempted to address issues that she brought to him and "reassure you that
Mr. Petasis also addressed what he characterized as Ms. Richardson's unprofessional behavior and need for improvement, writing, in part: "[T]hings need to change going forward and beyond your body language, the tone in your voice, and the way you deal with your peers, you need to also address the manner in which your [sic] write some of your emails where at times you make me feel that I'm the one working for you and not the other way around...." Id. at JHU00238. He encouraged Ms. Richardson to "come see me if you're not getting the kind of response you are expecting" and told her that she should "stop feeling insecure about [her] job." Id. He stated that he would discuss these issues during their upcoming meeting with Human Resources. See id. Ms. Hines submits an affidavit characterizing Mr. Petasis's memorandum as "counseling [Ms. Richardson] on ways she needed to improve her work performance." Hines Aff. ¶ 3. See also Petasis Dep. Tr. at 36:21-37:3 (testifying that this portion of the memorandum "was guidance that, in my mind, was — was prescribing the course of action she had to take, corrective action she had to take").
Ms. Richardson met with Mr. Petasis and Ms. Hines on the same day as Mr. Petasis's memorandum. Ms. Hines states that she met with the two of them "to try to help them resolve their conflict" and that during this meeting, Ms. Richardson "cited as a source of conflict the fact that Petasis had yelled at her in May 2011." Hines Aff. ¶ 4. Ms. Richardson also discussed her encounter with Ms. Grandval on February 22. In an e-mail that Ms. Richardson sent to Ms. Hines on March 1, 2012 following up on their meeting, she summarized the incident with Ms. Grandval, referring to her "advanc[ing] toward my face" and stating that she "felt this behavior was unacceptable in the work environment, unprofessional more importantly, threatening." Defs.' Ex. 11, ECF No. 40-13 (emphasis omitted). Ms. Richardson's account does not indicate that she raised any concerns regarding race discrimination by either Mr. Petasis or Ms. Grandval to Ms. Hines or Mr. Petasis.
According to Ms. Richardson, she had another, more serious encounter with Ms. Grandval on May 9, 2012. Ms. Richardson testified during her deposition that on that day Ms. Grandval came into her office following a meeting with Mr. Petasis, closed the door, leaned over, and said to her, "I know exactly where you park your car, and I am going to hurt you, and I will get your job.... And nobody will believe you." Richardson Dep. Tr. at 336:3-9. See also id. at 334:8-341:3 (discussing the incident). In a contemporaneous e-mail that Ms. Richardson sent to Mr. Petasis and Ms. Hines the same day, she provided another description. See Defs.' Ex. 12, ECF No. 40-14. She wrote:
Id. (ellipses in original). Ms. Richardson requested that Mr. Petasis "advise Debbie Grandval to confront me as a professional colleague with respect" and informed him that she was leaving work early because she did not feel well and could not "successfully function" "[d]ue to the stress and hostile environment today." Id. Ms. Richardson made no mention of any threats of physical violence or racial animus.
Ms. Richardson met with Mr. Petasis the next day, May 10, 2012, to discuss the incident with Ms. Grandval, and Ms. Richardson created a "Memorandum For Record" purporting to summarize her account of their conversation. See Defs.' Ex. 13, ECF No. 40-15. According to this memorandum, Ms. Richardson informed Ms. Petasis that Ms. Grandval "badger[ed]" her, repeatedly asking "why did you send the email?" and was "antagonistic and threatening me." Id. at SDR000214. She stated that she "felt uncomfortable, harassed, and insulted." Id. She also wrote: "Debbie turns around and does what she feels like doing to Sharon. Debbie can shoot Sharon.... She can hurt Sharon. She can do whatever she wants to Sharon and there's no recourse, no consequences." Id. She also stated that she would be locking her door after hours and that she did not "feel safe or comfortable." Id. She also wrote that she told Mr. Petasis that she "know[s] what to do the next time" and that when Mr. Petasis asked her what she would do, she responded by stating, "It will be a surprise. I know how to handle it," and "You'll see." Id. at SDR000215. While the memorandum states that Ms. Grandval was "threatening" Ms. Richardson during the encounter, it does not state or otherwise indicate that Ms. Grandval explicitly threatened physical violence. The memorandum also contains no mention of potential racial animus.
On June 4, 2012, according to Ms. Richardson, Mr. Petasis excluded her from a meeting with SAIS's campus in Bologna, Italy regarding IT Operations but allowed Ms. Grandval to attend. See Richardson Aff. ¶¶ 50-52; Defs.' SOF ¶ 29. Ms. Richardson states that, on the same day, Mr. Petasis "yelled and screamed" at her in his office.
Documents indicate that Ms. Richardson was out of the office for at least a short period following the incident on June 4, 2012.
According to Ms. Hines, on or about June 22, 2012, Mr. Petasis asked her for advice "on how to discipline Richardson given the ongoing work performance and insubordination problems," and, on June 26, 2012, Ms. Hines advised Mr. Petasis to prepare a Final Written Warning.
Documents reflect that Ms. Richardson's relationship with Mr. Petasis and Ms. Grandval continued to deteriorate following her return from medical leave and her filing with the EEOC. For example, on the day she returned, Ms. Richardson wrote to Mr. Petasis and Ms. Grandval regarding a binder that she said was in her office prior to her medical leave but could not find upon her return: "My `shredding' information is missing!!!! That would have been helpful in writing procedures.... Oh well....It walked away!!!!!!" Defs.' Ex. 27 at JHU00385 (ellipses in original). Mr. Petasis responded by writing to Ms. Richardson
On September 11, 2012, according to Ms. Richardson, Ms. Grandval announced during a meeting with the IT Operations staff that Mr. Petasis "granted her decision making authority in IT Operations" and that, though Ms. Richardson maintained her title as Director of Operations, she was "demoted with no authority." Richardson Aff. ¶¶ 67-68. She states that, as a result of this announcement, she was "forced to ask permission from Grandval when utilizing my staff." Id. ¶ 71. See also Richardson Dep. Tr. 343:7-11 ("[S]he held a meeting with my staff and myself and indicated that she would be making decisions on behalf of the director of IT operations."). Ms. Richardson also testified that, during the meeting, Ms. Grandval "removed" a member of her staff. Richardson Dep. Tr. at 343:12-17. Ms. Richardson e-mailed a summary of this meeting to herself on October 1, 2012. See Defs.' Ex. 19.
On September 13, 2012, Mr. Petasis issued Ms. Richardson a formal Final Written Warning regarding her "[u]nacceptable behavior." Defs.' Ex. 27. The Final Written Warning stated that since Mr. Petasis's February 29, 2012 memorandum and their meeting with Human Resources on that day, Ms. Richardson's behavior had "deteriorated to the point that formal action is once again required." Id. at JHU00374. The memorandum then provided Mr. Petasis's descriptions of a variety of specific incidents and behavior that he believed were unacceptable and unprofessional, including: (1) raising her voice in the office or in meetings; (2) glaring at others in an intimidating or threatening manner; (3) walking out of meetings that had not officially ended; (4) sending harshly worded and unprofessional e-mails to Mr. Petasis and others; (6) making unfounded accusations that others had taken things from her office; (7) refusing to meet to discuss IT Operations matters; and (8) publicly undermining Mr. Petasis and questioning his decisions. See id. at JHU00374-75. Mr. Petasis also attached documentation to support his statements. See id. at JHU00378-405. He provided Ms. Richardson with a list of eight actions or performance improvements that were required and informed her that her "continued employment in the position of Director of IT Operations (classified title is IT Manager) is in jeopardy" and that "[f]ailure to correct immediately and sustain an acceptable level of work performance and appropriate, professional and courteous behavior to all clients (internal and external to SAIS), including your manager and colleagues, will lead to your termination." Id. at JHU00375-76.
Around this time, though it is unclear whether it occurred before, after, or at the same time as the Final Written Warning, Mr. Petasis also assigned Ms. Richardson to work at the Service Desk. Ms. Richardson claims that she was "permanently reassigned" to work there, which effectively constituted a demotion. See Richardson Aff. ¶ 80 (alleging that Mr. Petasis "permanently placed my [sic] at the help desk"); id. ¶ 161 ("I was working at the help desk as directed by Mr. Petasis and Ms. Grandval, not as a supervisor, but, a help desk associate, because I was demoted to the help desk."). She further claims that she was forced to work at the Service
On October 9, 2012, Ms. Richardson appealed the Final Written Warning in accordance with JHU's internal procedures to Mr. Kunka. See Defs.' Ex. 29. In her appeal letter to Mr. Kunka, Ms. Richardson asserted that "Management knew" that her supervisor "habitually shouted at employees" and "habitually intimidated, abused and discriminated against employees." Id. at JHU00155. See also Defs.' SOF ¶ 72. Ms. Richardson also responded to the various incidents described by Mr. Petasis in the Final Written Warning one-by-one, and, by her own admission in response to Defendants' motion for summary judgment, the only allegations she specifically denied were that she refused to meet with Mr. Petasis and that she walked out of a meeting before it had ended.
On October 17, 2012, before Mr. Kunka's decision to uphold the Final Written Warning, Ms. Richardson filed a retaliation charge with the EEOC. See Richardson Aff. ¶ 110.
From December 2012 to February 2013, an African-American man named Roger Daniel worked in SAIS's Office of Information Technology and reported to Ms. Richardson. See Aff. Roger Daniel ¶¶ 1, 2, 8 ("Daniel Aff."), Pl.'s Ex. 8, ECF No. 42-11. Ms. Richardson, among others, interviewed Mr. Daniel for his position, and Mr. Petasis, in part based on her recommendation, as well as his own interview and others' recommendations, hired him. See Richardson Aff. ¶¶ 114-15. In her affidavit submitted in opposition to Defendants' motion for summary judgment, Ms. Richardson claims that Mr. Petasis continued to refer to staff members as "boy," specifically citing the example of Mr. Daniel. She states that "[o]n several occasions Mr. Roger Daniel who is African-American complained to me regarding Defendant Petasis referring to him as a `boy.'"
On December 21, 2012, JHU placed Ms. Richardson on "paid administrative leave" (which can also be appropriately referred to as a suspension) through January 29, 2013 with full salary and benefits.
The letter stated that "[a]s a condition" of Ms. Richardson's return, she was required to complete two tasks for Mr. Petasis: first, an assignment that Mr. Petasis had given her previously but found to be insufficiently completed; and second, a memorandum explaining how she would meet the expectations described in the Final Written Warning, along with a "plan for fulfilling" all of her listed job duties. See id. at JHU00582. The letter stated that these tasks were "part of your return to work and without them you will not have met the criteria to return to work" and that "[f]ailure by you to meet expectations will result in termination." Id. The letter also stated, however, that during her administrative leave, Ms. Richardson "should not report to work, nor perform any managerial, supervisory or operational work duties." Id. It also stated that she should set up an auto reply message on her e-mail account indicating that she was on leave and directing individuals to contact Mr. Petasis or her designee regarding work-related matters. See id. Finally, the letter stated that Ms. Richardson would "need to obtain permission to be on the JHU/SAIS campus unless you have prearranged meetings with the SAIS or Homewood Human Resources Office, JHU Faculty and Staff Assistance Program and/or medical appointments." Id.
Ms. Richardson did not complete either of the tasks required as a condition for her return. See Defs.' SOF ¶ 78; Pl.'s Stmt. Facts ¶ 78. Ms. Richardson states that she attempted to complete the first task but could not do so because, without access to certain SAIS systems, she was unable to obtain necessary data and other information. See Richardson Aff. ¶¶ 139-40. According to Ms. Richardson, she asked Mr. Elahi about her lack of access, and he responded that "the staff was directed not to help you." Id. ¶ 139. She states that she then contacted another staff member, Pedro Matias, and asked him to run and e-mail her a report that she needed to complete the assignment since she did not have access, and Mr. Matias told her that "George told us not to help you" and "you know what George would do if he found out."
On January 22, 2013, Ms. Richardson submitted a letter of resignation. See Hines Aff. Ex. E, ECF No. 40-5. In her letter, Ms. Richardson stated that her
Ms. Richardson also appealed Mr. Kunka's decision to uphold the Final Written Warning in accordance with JHU's internal procedures and denied additional factual allegations. See Defs.' SOF ¶ 77. On March 8, 2013, after Ms. Richardson had resigned, JHU's Vice President for Human Resources accepted the recommendation of JHU's Appeal Panel and amended the Final Written Warning to delete the reference to it being a "Final" Written Warning. See Defs.' Ex. 31, ECF No. 40-32. The Appeal Panel found that Mr. Petasis's February 2012 memorandum made "no reference to it being a discipline" and that, therefore, the Final Written Warning was "the first discipline she received." Id. at SDR001058. As a result, the Appeal Panel stated that the written warning "should not have been elevated to a final warning." Id. The Appeal Panel also found, however, that based upon its review of the documents provided in the Final Written Warning, Ms. Richardson "failed to meet expectations stated in the February 29, 2012, memorandum" and was "accountable for her communication." Id.
On June 3, 2013, Ms. Richardson commenced the present action.
Defendants argue that they are entitled to summary judgment on all counts of the Amended Complaint. See Mem. Supp. Defs.' Mot. Summ. J. at 1, ECF No. 40-1. The Court begins its analysis by setting forth the legal standard for resolving motions for summary judgment. The Court then addresses whether JHU is entitled to summary judgment on Ms. Richardson's various claims of discrimination and retaliation before turning to Ms. Richardson's claims against each of the Individual Defendants for aiding and abetting the alleged discrimination and retaliation.
Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary judgment 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). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The inquiry under Rule 56 is essentially "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions
Ms. Richardson brings claims against JHU for discrete racially discriminatory employment actions on the basis of disparate treatment through Counts I, II, and III of her Amended Complaint.
If a Title VII plaintiff proffers only indirect evidence of discrimination at summary judgment, courts apply the three-part burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Taylor v. Small, 350 F.3d 1286, 1292 (D.C.Cir.2003). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination by showing that: "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Czekalski, 475 F.3d at 364 (internal quotation omitted). "The burden of establishing a prima facie case of disparate treatment is not onerous." Texas Dep't Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (describing the requirements for establishing a prima facie case as "minimal"); Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir.2005) ("A minimal evidentiary showing will satisfy this burden of production.").
Once the plaintiff establishes a prima facie case, then the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for its action; and finally, if the employer meets that burden, then the plaintiff must show
Here, Ms. Richardson claims that she suffered three separate tangible adverse employment actions:
Ms. Richardson claims that she suffered her first discriminatory adverse employment action when Ms. Grandval announced during a meeting with the IT Operations staff on September 11, 2012 that Mr. Petasis "granted her decision making authority in IT Operations," Richardson Aff. ¶ 67, and that, as a result, she was forced to seek Ms. Grandval's permission when utilizing her staff members. See Richardson Aff. ¶¶ 67-71. Because Defendants do not proffer any legitimate, non-discriminatory reasons for the alleged action, the Court considers only whether Ms. Richardson has made the minimal evidentiary showing to establish a prima facie case of disparate treatment discrimination.
Defendants challenge Ms. Richardson's claim that her supervisory duties were removed
First, the Court finds that Defendants fail to establish the absence of a genuine dispute as to whether Ms. Grandval assumed Ms. Richardson's supervisory duties on September 11, 2012 with Mr. Petasis's authorization. Defendants argue that Ms. Richardson's factual claim is undermined by an e-mail that Mr. Petasis sent to Ms. Richardson and Ms. Grandval on the same day in which he referred to Ms. Richardson having a "management responsibility" to oversee the Service Desk. See Defs.' Ex. 33, ECF No. 46-2. But this e-mail does not put Ms. Richardson's claim beyond dispute. The e-mail primarily concerns Ms. Richardson's second alleged adverse action, her purported permanent reassignment to the Service Desk, and does not appear to directly concern Ms. Grandval's alleged announcement or Mr. Petasis's alleged authorization. Defendants do not provide any other evidence in their effort to disprove Ms. Richardson's factual claim. They do not, for example, provide the Court with any testimony from Mr. Petasis or Ms. Grandval on this issue. Nor do they provide testimony from any of Ms. Richardson's staff members who were allegedly present at the meeting, were the audience of the announcement, and worked with Ms. Richardson and Ms. Grandval following the alleged announcement. Defendants do, however, provide the Court with Ms. Richardson's testimony on this issue, as well as an e-mail that she sent to herself summarizing this meeting, which support her claim. See Richardson Dep. Tr. 343:7-20; Defs.' Ex. 19. Viewing the evidence in the light most favorable to Ms. Richardson, the Court concludes that a reasonable juror could find that Ms. Grandval assumed Ms. Richardson's supervisory duties in September 2012 with the authorization of Mr. Petasis.
The Court next considers whether, if true, Ms. Grandval's assumption of Ms. Richardson's supervisory duties with Mr. Petasis's authorization would constitute an adverse employment action, the second prong of the prima facie analysis. "An `adverse employment action' is `a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.'" Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009) (quoting Taylor, 350 F.3d at 1293)). The employee must "experience[ ] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). The D.C. Circuit has stated that, among other things, "withdrawing an employee's supervisory duties constitutes an adverse employment action." Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C.Cir.2003) (citing Burke v. Gould, 286 F.3d 513, 522 (D.C.Cir. 2002)).
Defendants argue that Ms. Grandval's announcement cannot serve as an adverse employment action because Ms. Grandval was Ms. Richardson's co-worker and "did not have supervisory authority over or the authority to hire, fire, promote or demote Richardson." Defs.' Reply at 16. Defendants misconstrue Ms. Richardson's claim. Ms. Richardson alleges that Mr. Petasis, who indisputably had supervisory authority over Ms. Richardson, authorized Ms. Grandval's assumption of her supervisory duties. See Richardson Aff. ¶¶ 67-71; id. ¶ 161; Am. Compl. ¶¶ 82-84; Defs.' SOF
Turning to the final prong of the prima facie analysis, the Court considers whether Ms. Richardson has established that the alleged removal of her supervisory duties gives rise to an inference of discrimination. In her opposition to Defendants' motion for summary judgment, Ms. Richardson offers a myriad of evidence in an effort to satisfy this burden. The Court finds that, although most of this evidence is ineffective, Ms. Richardson presents evidence sufficient to create an inference of discrimination.
Ms. Richardson opens the "Statement of Facts" section of her opposition with the following statement: "Defendant George Petasis does not like strong Black women." Pl.'s Opp. at 3 (citing Pl.'s Ex. 6, ECF No. 42-9). Her sole citation for this dramatic statement is what appears to be an incomplete and undated photocopied printout of an unidentified website (with the URL partially obscured) containing an anonymous post providing an opinion regarding employment at a company called "Advanced Technology Associates."
Ms. Richardson next points to Mr. Petasis's use of the term "boys" to refer to male staff members as "independent evidence of discriminatory statements or attitudes on the part of the employer." Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998). The Supreme Court has stated that "[a]lthough it is true that the [word `boy'] will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage." Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006). To show context, Ms. Richardson cites Mr. Daniel's statements that,
Ms. Richardson's own account, however, provides further context that cuts against her position. She testified that Mr. Petasis referred to an employee of Filipino origin and an employee of Iranian origin as "his boys" or asked her, "How is your boy?" Richardson Dep. Tr. at 263:14-18; id. at 270:14-18; id. at 272:8-274:18. This usage of the term is common and innocuous, and, given that Mr. Petasis appears to have used the term primarily to refer to non-African-Americans, he does not appear to have used it with any racial connotation.
Ms. Richardson similarly points to Mr. Petasis's alleged battery of Mr. Daniel as independent evidence of a discriminatory attitude. Specifically, Mr. Daniel states that he never witnessed Mr. Petasis strike any Caucasians "with the same force or frequency" that he struck him.
Ms. Richardson's evidence of Mr. Petasis's disparate treatment of Ms. Grandval, who is outside Ms. Richardson's protected class, is much more effective at creating an inference of discrimination. See Pl.'s Opp. at 13. "A plaintiff can establish an inference of discrimination `by demonstrating that she was treated differently from similarly situated employees who are not part of the protected class.'" Augustus v. Locke, 934 F.Supp.2d 220, 232 (D.D.C. 2013) (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C.Cir.2005)). "`[T]o be deemed `similarly-situated,' the individuals with whom the plaintiff seeks to compare his/ her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'" Phillips v. Holladay Prop. Servs., Inc., 937 F.Supp. 32, 37 (D.D.C.1996) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)).
Ms. Richardson's attempt in her opposition brief to establish that she and Ms. Grandval were similarly situated employees is admittedly limited: "Plaintiff and Defendant Grandval both were supervised by Defendant Petasis. Since hired around the same time [sic] they both served under the same standards. They were on the same level." Pl.'s Opp. at 12. Her only citation to the record is to an exhibit containing excerpted portions of Ms. Hines's deposition testimony. See id. (citing Pl.'s Ex. 5, ECF No. 42-8). Nothing in the excerpted portions of Ms. Hines's testimony, however, indicates that Ms. Richardson and Ms. Hines were similarly situated employees. See Pl.'s Ex. 5. Despite Ms. Richardson's weak effort to demonstrate that she and Ms. Grandval were similarly situated, however, Defendants, for their part, wholly fail to address the argument. The Court therefore finds that, analyzing all underlying facts and inferences in the light most favorable to Ms. Richardson, Ms. Richardson and Ms. Grandval were similarly
It is also clear from the record — and Defendants do not argue otherwise — that Mr. Petasis treated Ms. Grandval more favorably than he treated Ms. Richardson. As discussed, supra, a reasonable juror could find, based on the record before the Court, that Mr. Petasis authorized Ms. Grandval to assume Ms. Richardson's supervisory duties. Many of Ms. Richardson's other allegations of disparate treatment are unchallenged and unexplained. For example, Ms. Richardson alleges that, a few months before shifting her supervisory duties to Ms. Grandval, Mr. Petasis removed her access to the shared Microsoft Outlook calendar while maintaining Ms. Grandval's access. See Richardson Aff. ¶ 153. Similarly, she alleges that Mr. Petasis frequently excluded her from meetings that were important to her job function but included Ms. Grandval. See, e.g., Richardson Aff. ¶¶ 45-52; Defs.' SOF ¶ 29. Ms. Richardson also alleges that when she brought complaints about Ms. Grandval's conduct to Mr. Petasis, he did not take action but that when Ms. Grandval brought him complaints about her, he did take action. See Richardson Aff. ¶¶ 37-40; id. ¶¶ 57-59.
Ordinarily, this type of uncontroverted evidence would unquestionably give rise to an inference of discrimination. In this case, the inquiry is somewhat muddied by the undisputed fact that Mr. Petasis originally selected Ms. Richardson over Ms. Grandval for her position, which potentially implicates the so-called "same actor inference." In an employment discrimination case in which a plaintiff challenges her termination and "`the person who made the decision to fire [the plaintiff] was the same person who made the decision to hire'" — a type of case not too dissimilar from Ms. Richardson's claims in this case — the D.C. Circuit has recognized that "`it is difficult to impute to [that person] an invidious motivation that would be inconsistent with the decision to hire,' especially `when the firing has occurred only a short time after the hiring.'" Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C.Cir. 2011) (quoting Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C.Cir. 2002) (alteration in original)).
For several reasons, however, the Court is unable to find that JHU is entitled to summary judgment on the basis of the same actor inference. First and foremost, Defendants do not even reference the same actor inference in their motion for summary judgment, let alone rely upon it.
The Court's role at summary judgment is not to weigh evidence or make credibility determinations. See Czekalski, 475 F.3d at 363. Instead, the Court must analyze all underlying facts and inferences in the light most favorable to Ms. Richardson. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. While the evidence may ultimately show that race played no factor in Mr. Petasis's alleged decision to permit Ms. Grandval to assume Ms. Richardson's supervisory duties, the evidence presented regarding the disparate treatment of Ms. Grandval is sufficient to meet the minimum threshold to establish an inference of discrimination at the prima facie stage, particularly in light of Defendants' failure to address that argument. Accordingly, JHU is not entitled to summary judgment on this aspect of Ms. Richardson's discrimination claims.
Ms. Richardson alleges that she suffered her second discriminatory adverse employment action when Mr. Petasis permanently reassigned or demoted her to the Service Desk in September 2012. See Pl.'s Opp. at 20-21; Richardson Aff. ¶ 80 (alleging that Mr. Petasis "permanently placed my [sic] at the help desk"); id. ¶ 161 ("I was working at the help desk as directed by Mr. Petasis and Ms. Grandval, not as a supervisor, but, a help desk associate, because I was demoted to the help desk."). Ms. Richardson does not claim that she suffered any reduction in pay or diminution in benefits as a result of this reassignment. Because Defendants do not proffer any legitimate, non-discriminatory reasons for the alleged action, the Court considers only whether Ms. Richardson has made the minimal evidentiary showing to establish a prima facie case of disparate treatment discrimination.
Defendants challenge Ms. Richardson's factual claim that she was permanently reassigned to the Service Desk in September 2012 and argue that she cannot show that she suffered an adverse employment action.
First, the Court finds that Defendants fail to establish the absence of a genuine dispute as to whether Ms. Richardson was reassigned or demoted when she was assigned to work at the Service Desk. Defendants argue that Mr. Petasis
Defs.' Ex. 33 (emphasis added). When Ms. Richardson responded by suggesting that Mr. Petasis assign someone else, he responded, in part, that "our SD manual calls for supervisory oversight of that function and until we change it we should be following it." Id.
While this exchange is probative of whether Ms. Richardson's assignment to the Service Desk fell within her normal job responsibilities and whether that assignment could be considered a demotion, it is insufficient to put the issue beyond dispute. As a preliminary matter, Defendants do not make clear whether this e-mail exchange occurred before or after Ms. Richardson's alleged reassignment. If it was sent before, then it is of limited, if any, value. Moreover, Defendants offer no evidence to counter the variety of other factual allegations that Ms. Richardson makes concerning her reassignment. For example, they do not challenge her claim, for which she provides specific dates and times, that she was forced to work at the Service Desk for full days and long periods "alone or with minimal assistance" and that Mr. Petasis removed staff members that would normally assist her. See Richardson Aff. ¶ 81. Nor do they challenge her claim that her work at the Service Desk was located in another building and "impacted [her] job" in several specific ways. See id. ¶¶ 82-106. Given this failure to address key factual allegations, the Court finds that a genuine dispute exists as to whether Ms. Richardson was permanently reassigned to the Service Desk in September 2012.
Whether the reassignment, assuming that it occurred, constitutes an adverse employment action, turns on the resolution of those factual allegations. The Supreme Court stated in Burlington Industries v. Ellerth that a "reassignment with significantly different responsibilities" generally constitutes an adverse employment action. 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). "A drastic reduction in responsibilities is an `objectively tangible harm' even where a plaintiff does not suffer a reduction in grade, pay, or benefits." Thomas v. Vilsack, 718 F.Supp.2d 106, 122 (D.D.C.2010) (quoting Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006)). By contrast, "[p]urely subjective injuries, such as dissatisfaction with a reassignment," do not constitute adverse employment actions. Forkkio, 306 F.3d at 1130-31. "Mere idiosyncrasies are not sufficient to state an injury." Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003) (quoting Brown v. Brady, 199 F.3d 446, 457 (D.C.Cir.1999)). Given the open factual questions, the Court is unable to determine whether the assignment to the Service Desk left Ms. Richardson with "significantly different responsibilities" or whether it was simply a staffing decision that she did not like, which does not constitute an adverse employment action for purposes of a discrimination claim.
JHU, therefore, is only entitled to summary judgment with respect to the alleged reassignment if Ms. Richardson cannot meet the minimal threshold for establishing an inference of discrimination.
The evidence that Ms. Richardson offers in support of the inference of discrimination is largely the same that she offers with respect to the alleged removal of her supervisory duties. As discussed, supra, the Court has found the evidence of Mr. Petasis's disparate treatment of Ms. Grandval to be sufficient to create an inference of discrimination with respect to the removal of Ms. Richardson's supervisory duties. While that evidence does not directly concern his alleged decision to reassign Ms. Richardson to the Service Desk with diminished responsibilities, the Court finds that it is also sufficient to raise an inference of discrimination here. Although Ms. Richardson claims that the reassignment constituted a separate discriminatory action, the Court finds it difficult, on the record before it on summary judgment, to separate evidence concerning the motivation for one action from the motivation for the other. The record is clear that Mr. Petasis made both decisions, and he appears to have made these decisions within the same mid-September time period, if not simultaneously. Without any proffered legitimate, non-discriminatory reasons for the purported reassignment, this evidence is sufficient.
Accordingly, JHU is not entitled to summary judgment on this aspect of Ms. Richardson's discrimination claims.
Ms. Richardson alleges that she suffered a third and final discriminatory adverse employment action when she was placed on paid administrative leave, which can also be considered a suspension, from December 21, 2012 to January 29, 2013. See Pl.'s Opp. at 21-22. Defendants present two arguments at summary judgment. First, they argue that Ms. Richardson's suspension did not constitute an adverse employment action as a matter of law. Second, they argue that, even assuming that it did constitute an adverse employment action, Defendants have asserted legitimate, non-discriminatory reasons for it and that Ms. Richardson cannot demonstrate those were not the actual reasons or that Defendants intentionally discriminated against Ms. Richardson on the basis of race. See Defs.' Mem. Supp. at 23-25; id. at 28-29. The Court addresses these issues in turn.
In support of their argument that Ms. Richardson's suspension did not constitute an adverse employment action as a matter of law, Defendants cite a line of cases in this District that have held or opined in dicta that certain suspensions with pay did not constitute adverse employment actions. Defs.' Mem. Supp. at 24 (citing Brown v. Georgetown Univ. Hosp. Medstar Health, 828 F.Supp.2d 1, 9 (D.D.C.2011); Roberson v. Snow, 404 F.Supp.2d 79, 93 (D.D.C. 2005); Dickerson v. SecTek, Inc., 238 F.Supp.2d 66, 79 (D.D.C. 2002); Boykin v. England, Civ. No. 02-960 (JDB), 2003 WL 21788953, at *4 n. 5 (D.D.C. July 16, 2003)). Many of these courts appear to have reached their conclusions, at least in part, by considering the duration of the
The Court finds that Ms. Richardson's suspension constituted an adverse employment action. The Court reaches this conclusion upon its consideration of not only the unusually long duration of the suspension but also its conditions. Unlike a typical suspension, Ms. Richardson's continued employment was explicitly conditioned upon her completion of certain tasks that was satisfactory to Mr. Petasis, see Defs.' Ex. 32 at JHU00582, and, as discussed, infra, Ms. Richardson has presented uncontroverted evidence that Mr. Petasis prevented her from completing one of those necessary tasks. The lengthy suspension and the unusual nature of Ms. Richardson's continued employment sufficiently "affect[ed] the terms, conditions, or privileges of [her] employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio, 306 F.3d at 1131. The Court therefore turns to the motivations for the suspension.
Defendants present two legitimate, non-discriminatory reasons for the suspension: Ms. Richardson's "insubordination" and her "unsatisfactory performance." Defs.' Mem. Supp. at 28-29. These are commonly asserted legitimate, non-discriminatory reasons for taking an adverse employment action. See, e.g., Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.Cir.2005) (affirming that an employee's "negligence and insubordination (including discourteous treatment of her supervisor)" were legitimate, non-discriminatory reasons for discipline); Drewrey v. Clinton, 763 F.Supp.2d 54, 63 (D.D.C.2011) ("An employee's insubordination and his failure to perform his duties are legitimate, nondiscriminatory reasons for adverse employment actions."); Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 95 (D.D.C. 2007) ("Insubordination and violation of company rules are widely accepted non-discriminatory reasons for termination."); Nichols v. Billington, 402 F.Supp.2d 48, 73 (D.D.C.2005) (finding that an employee's failure to attend meetings, poor job performance, refusal to complete critical projects, and "persistently uncooperative attitude, insubordination, and misconduct" were legitimate, non-discriminatory reasons to seek the employee's removal).
In support of these justifications, Defendants cite Ms. Hines's letter to Ms. Richardson informing her of her suspension. See Defs.' Ex. 32. The letter stated that Ms. Richardson had failed to make progress in each of the four key areas of improvement described in her Final Written Warning in September 2012, which included
Given that Defendants have asserted legitimate, non-discriminatory reasons for suspending Ms. Richardson, the Court must determine whether Ms. Richardson has produced sufficient evidence for a reasonable jury to find that Defendants' asserted reasons were not the actual reasons for her suspension and that Defendants instead suspended her on the basis of her race. See Brady, 520 F.3d at 494. "There are multiple ways in which circumstantial evidence may support an inference that an employer's stated reason for a challenged employment action was not the actual reason, and that the real reason was prohibited discrimination or retaliation." Allen v. Johnson, 795 F.3d 34, 40 (D.C.Cir.2015). Ms. Richardson presents a variety of evidence in her attempt to support the requisite inference.
Ms. Richardson cites the way in which Mr. Petasis treated Ms. Grandval as evidence of pretext. See Walker v. Johnson, 798 F.3d 1085, 1092 (D.C.Cir.2015) ("A plaintiff may support an inference that the employer's stated reasons were pretextual, and the real reasons were prohibited discrimination ... by citing the employer's better treatment of similarly situated employees outside the plaintiff's protected group...."); Allen, 795 F.3d at 40 (stating that a plaintiff may point to disparate treatment of similarly situated employees to support an inference of pretext). This comparison is less helpful here than in the context of the removal of her supervisory duties in September 2012. Ms. Richardson does not put forward any evidence showing that Ms. Grandval "engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'" Phillips, 937 F.Supp. at 37 (internal quotation omitted). While she claims that Ms. Grandval "was responsible for a complete shutdown of Astra whereas no one on campus could schedule a meeting or a classroom," Pl.'s Opp. at 12, she does not provide the Court with any context to understand what that means.
On the other hand, JHU cites its disciplinary policy as stated in its Staff Handbook. See Defs.' Ex. 5 at JHU00466-67, ECF No. 40-7. The policy makes no mention of a "final" written warning and speaks in permissive terms as to its progressive counseling and disciplinary action policy. See id. ("If the problem has not been corrected after counseling, your supervisor can give you a written warning.... In cases where deemed appropriate, the university can suspend or terminate a staff member immediately without proceeding through progressive discipline."). The fact that JHU enjoyed wide discretion under its internal policy is insufficient; instead, JHU "must articulate the reasons underlying the exercise of its discretion." Ibrahim v. N.Y. State Dep't of Health, Office of Health Sys. Mgmt., 904 F.2d 161, 166 (2d Cir.1990). Defendants do not specifically articulate the reasons in their briefing, but they offer evidence suggesting that both Mr. Petasis and Ms. Hines genuinely believed that Mr. Petasis's February 2012 memorandum constituted a first written warning, contrary to JHU's
Ms. Richardson also attacks some of Defendants' factual claims underlying her Final Written Warning and suspension. See Allen, 795 F.3d at 40 (stating that a plaintiff may raise an inference of pretext by showing that the employer is "lying about the underlying facts" (quoting Brady, 520 F.3d at 495). She points to justifications that Mr. Petasis provided during JHU's internal appeals process as supposed "mistruths." For example, the record indicates that during Ms. Richardson's appeal of the Final Written Warning to Mr. Kunka, "Mr. Petasis alleged that Ms. Richardson had `redlines', such as: not working after 5:00 p.m....." Pl.'s Ex. 9 at JHU00519. Ms. Richardson, however, provides extensive and unchallenged documentation in the form of calendar entries for the year of 2012 indicating that she frequently worked past 5:00 p.m. See Pl.'s Ex. 29, ECF No. 42-29. Defendants do not address this evidence in their motion for summary judgment, and, to the extent that they have abandoned the "red line" justification, that only further supports an inference of pretext. See Allen, 795 F.3d at 40 (stating that "`changes and inconsistencies' in the employer's given reasons for the decision" support an inference of pretext (quoting Brady, 520 F.3d at 495)). Ms. Richardson also challenges Defendants' factual claim that she walked out of meetings. See Richardson Aff. ¶ 146 ("September 2012 or any other month, I never stomped or walked out of any meeting during my employment with JHU SAIS.").
Conversely, a closer inspection of the record indicates that several of Ms. Richardson's other accusations of "mistruths" during JHU's internal appeals process are unfounded. For example, Ms. Richardson claims that Mr. Petasis somehow lied about whether she and Mr. Daniel knew each other by sensationally stating that "[a]ll African Americans do not know each other." Pl.'s Opp. at 16. The cited evidence indicates that Mr. Petasis in no way stated or implied that Ms. Richardson and Mr. Daniel must have known each other because they are both African-American. See Pl.'s Ex. 9 at JHU00520-21.
The upshot of the Court's review of the record before it, eschewing credibility determinations and viewing the evidence in the light most favorable to Ms. Richardson, is that the evidence is not "so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. A reasonable juror could conclude, based upon this evidence, that Defendants' proffered reasons for suspending Ms. Richardson in December 2012 were pretextual. "Typically, successful rebuttal of an employer's stated reason counts as evidence of the invidious motive that is a required element of a disparate treatment or retaliation claim." Allen, 795 F.3d at 40. The Supreme Court has recognized an exception for cases in which "the plaintiff's evidence calling the employer's proffered reason into doubt is weak, and the record also contains `abundant and uncontroverted independent evidence that no discrimination has occurred.'" Id. (quoting Reeves v. Sanderson Plumbing Products,
Accordingly, the Court finds that Ms. Richardson has successfully satisfied her burden of producing "sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race." Brady, 520 F.3d at 494. JHU is not entitled to summary judgment on this aspect of Ms. Richardson's discrimination claims.
In addition to the three discrete discriminatory actions discussed, supra, Ms. Richardson also alleges that JHU discriminated against her on the basis of her race in two similar, yet distinct, ways that are less tangible: first, she claims that JHU, through the conduct of the Individual Defendants, created a hostile work environment; and second, she claims that, as a culmination of the hostile work environment and the terms of her suspension, her resignation constituted a constructive discharge.
Count VI of Ms. Richardson's Amended Complaint is a claim against JHU for creating a hostile work environment through discrimination brought under Section 1981, Title VII, and the DCHRA.
To establish a prima facie hostile work environment claim, Ms. Richardson must show that: (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment occurred because of her race; and (4) the harassment affected a term, condition, or privilege of her employment. See Nurriddin v. Goldin, 382 F.Supp.2d 79, 107 (D.D.C.2005); Kelley v. Billington, 370 F.Supp.2d 151, 156 (D.D.C.2005); see also Elam v. Bd. of Trs. of Univ. of D.C., 530 F.Supp.2d 4, 21 n. 7 (D.D.C.2007) ("The elements of a hostile work environment claim under the DCHRA mirror the federal requirements." (citing Lively v. Flexible Packaging Ass'n., 830 A.2d 874, 889 (D.C. 2003))). Defendants argue that Ms. Richardson cannot establish that the unwelcome harassment she alleges occurred because of her race or that it affected a term, condition, or privilege of her employment. See Defs.' Mem. Supp. at 15-22. The Court first summarizes the alleged unwelcome
Defendants do not challenge whether Ms. Richardson was subject to unwelcome harassment. Nevertheless, it is helpful for the Court to briefly summarize the conduct that Ms. Richardson alleges constituted harassment. In addition to the discrete discriminatory actions of removing her supervisory duties, reassigning her to the Service Desk, and suspending her, Ms. Richardson describes the following "[i]ncidents of abusive behavior" that are not independently actionable. See Pl.'s Opp. at 28-29.
Ms. Richardson alleges that the harassment began almost immediately when Mr. Petasis "yelled and screamed at [her] in a physically hostile manner" on May 5, 2011. Richardson Aff. ¶ 11. See also Defs.' Ex. 7 (handwritten note dated May 11, 2011 describing the incident). She alleges that the harassment continued in September 2011 when Mr. Petasis touched her shoulder in a way that made her feel uncomfortable.
Ms. Richardson alleges that the harassment became more serious when Ms. Grandval threatened her with physical violence and Mr. Petasis and Ms. Hines did nothing about it. Ms. Richardson claims that Ms. Grandval first engaged in threatening behavior on February 22, 2012 when she entered her office and lunged in her face while yelling at her. Ms. Richardson discussed this incident with Mr. Petasis and Ms. Hines during a meeting soon thereafter, and Ms. Richardson claims that Ms. Hines observed Mr. Petasis yell at her during the meeting. See Defs.' Ex. 11; Pl.'s Ex. 50, ECF No. 43-5 (undated memorandum authored by Ms. Richardson characterizing this meeting as "just heated yelling and misrepresentation of facts"). According to Ms. Richardson's deposition testimony, Ms. Grandval's behavior escalated when, on May 9, 2012, Ms. Grandval came into her office following a meeting with Mr. Petasis and threatened to hurt her and take her job. See Richardson Dep. Tr. at 334:14-336:9. She alleges that she reported this threat to Mr. Petasis and told him that she did not feel safe or comfortable around Ms. Grandval and that Mr. Petasis did nothing about it. See Defs.' Ex. 13.
Ms. Richardson claims that the harassment continued when, on June 4, 2012, Mr. Petasis "yelled and screamed" at her again and "invited Defendant Grandval to join in his interrogation of [her] and she did."
Ms. Richardson alleges that the harassment continued until the end of her employment, as Mr. Petasis gave her supervisory duties to Ms. Grandval, reassigned her to the Service Desk, issued her a Final Written Warning, and ultimately suspended her. Ms. Richardson also states that Mr. Petasis's "battery" of Roger Daniel shortly before her suspension was abusive towards her, because she witnessed it. See Pl.'s Opp. at 29.
In order to survive summary judgment on her hostile work environment claim, Ms. Richardson must offer evidence from which a reasonable jury could find that "the hostile work environment was the result of discrimination based on a protected status." Kilby-Robb v. Spellings, 522 F.Supp.2d 148, 163 (D.D.C.2007).
Inexplicably, in the section of her opposition to Defendants' motion for summary judgment concerning her hostile work environment claim, Ms. Richardson focuses exclusively on Mr. Petasis's use of the term "boy" to refer to male staff members, coupled with his alleged battery of Mr. Daniel, to support this element of her hostile work environment claim. See Pl.'s Opp. at 30. The Court has already discussed the insufficiency of this evidence with respect to Ms. Richardson's claims for discrete discriminatory actions, finding that it does not raise an inference of discrimination. That evidence is also insufficient here, particularly because it bears no linkage or correlation to the other alleged harassing actions. Cf. Bryant v. Brownlee, 265 F.Supp.2d 52, 64 (D.D.C.2003) ("[W]ith the exception of [two incidents], none of the events described in plaintiff's 21-page complaint have any racial or age-related overtones. They are completely neutral with regard to these protected classifications."). In fact, Ms. Richardson admits that no JHU employee ever made any racially derogatory marks to her during her employment at JHU. See Defs.' SOF ¶ 46; Pl.'s Stmt. Facts ¶ 46.
Nevertheless, the Court must also consider here the evidence that it considered in connection with Ms. Richardson's claims of discrete discriminatory actions, because Ms. Richardson's hostile work environment claim encompasses those discrete discriminatory actions, and the remainder of her hostile work environment claim primarily concerns Mr. Petasis's conduct. The Court considered evidence that Mr. Petasis treated Ms. Grandval, who was similarly situated to Ms. Richardson, different from how he treated Ms. Richardson without any proffered justification by, among other things, inviting Ms. Grandval to certain meetings and excluding Ms. Richardson from them, removing Ms. Richardson's access to a shared calendar but maintaining Ms. Grandval's access, and giving Ms. Richardson's supervisory duties to Ms. Grandval. The Court also considered evidence that, among other things, Ms. Richardson was not disciplined in accordance with JHU's normal procedures and that Mr. Petasis previously provided at least one false justification for Ms. Richardson's Final Written Warning. Based upon all of this evidence, the Court held that that Ms. Richardson has presented sufficient evidence to raise an inference of race discrimination and to support a finding that the
The Court therefore turns to the final element of Ms. Richardson's hostile work environment claim: whether the alleged harassment affected a term, condition, or privilege of her employment.
The Supreme Court has held that, in order to satisfy this element, the alleged harassment must be so "severe or pervasive" as to "alter the conditions of [the plaintiff's] employment and create an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation omitted). "In order to be actionable under [Title VII], a[n] .... objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Id. at 787, 118 S.Ct. 2275 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). To determine whether an environment is objectively abusive, courts consider the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. 367. See also Baloch, 550 F.3d at 1201. "[I]solated incidents ... will not amount to discriminatory changes in the `terms and conditions of employment.'" Faragher, 524 U.S. at 788, 118 S.Ct. 2275.
There is no doubt here that the harassment that Ms. Richardson alleges was subjectively abusive, as it is uncontested that, even before the actionable discrete discriminatory actions, the alleged harassment caused her to seek urgent medical attention and, for medical reasons, take a leave of absence. Though the issue of whether the harassment was objectively abusive is less clear, the Court's consideration of the totality of the circumstances leads it to conclude that, viewing the evidence in the light most favorable to Ms. Richardson and without making any credibility determinations, a reasonable juror could conclude that it was. This is not a case that involves isolated, infrequent instances of harassment. Rather, Ms. Richardson alleges that she suffered repeated and frequent harassment throughout the duration of her employment. The severity and physical nature of the alleged harassment is also highly relevant. Beyond simply screaming and invading her personal space, she also alleges that she was the victim of threats of physical violence and that Mr. Petasis and the other Individual Defendants did nothing in response to ensure her safety or assuage her fears. Assuming the veracity of these allegations, a reasonable person in Ms. Richardson's position would find that conduct, particularly in combination with the removal of her supervisory duties, reassignment, Final Written Warning, and suspension — all of which took place within the span of a few months — to be abusive.
The Court is not persuaded by Defendants' arguments to the contrary. In their motion for summary judgment, Defendants largely rely on Clemmons v. Academy for Educational Development, 70 F.Supp.3d 282 (D.D.C.2014), in which the court held that the plaintiff's claims that she received rude e-mails and that her co-workers rolled their eyes at her and
Accordingly, JHU is not entitled to summary judgment on Ms. Richardson's hostile work environment claim.
Ms. Richardson's Amended Complaint also claims that, though she resigned from JHU in January 2013, she was constructively discharged "due to discriminatory harassment by Mr. Petasis." Am. Compl. ¶ 116. See also id. ¶ 119. The Amended Complaint does not plead constructive discharge as a separate count, and, therefore, the Court construes this claim as falling within Counts I, II, and III brought under Section 1981, Title VII, and the DCHRA, respectively, alleging discrimination.
In order to prevail on her claim of discriminatory constructive discharge in this Circuit, Ms. Richardson must show that intentional discrimination existed, her employer deliberately made working conditions intolerable, and aggravating factors justified her conclusion that she had no option but to end her employment. See Hendrix v. Napolitano, 77 F.Supp.3d 188, 193 (D.D.C.2015) (quoting Carter v. George Wash. Univ., 180 F.Supp.2d 97, 111 (D.D.C.2001)). "`Aggravating factors' are those aspects of a discriminatory work environment that, by making the workplace so disagreeable, prevent the reasonable employee from seeking remediation on the job." Veitch v. England, 471 F.3d 124, 130 (D.C.Cir.2006) (citing Mungin, 116 F.3d at 1558).
The Court has already found that, with respect to her hostile work environment claim, Ms. Richardson has demonstrated, at least for purposes of opposing a motion for summary judgment, that she was subjected to intentional discriminatory harassment and that the harassment affected the terms and conditions of her employment. Ms. Richardson's constructive discharge claim, therefore, turns on "whether a reasonable
Defendants rely heavily on Kalinoski v. Gutierrez, 435 F.Supp.2d 55 (D.D.C.2006). In that case, the court observed that "absent some indication that an employer was trying to drive the employee from the workplace entirely or that the employee `quit just ahead of the fall of the axe,' the law will not permit a resignation to be transformed into a discharge." Kalinoski, 435 F.Supp.2d at 78 (quoting Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir.1998)). The plaintiff in that case argued that her employer's denial of her medical leave requests following a reassignment and an accompanying decision to place her on leave without pay constituted a constructive discharge. See id. at 79. The court disagreed, finding that "[t]he personnel decisions, even if found to be unlawful under Title VII, may have been career-harming, but there has been no evidence offered to show that they were essentially career-ending." Id. at 79 (emphasis in original). The court based its conclusion on several facts. The court observed that there was no evidence that "the adverse actions would be interpreted by a reasonable person as a sign of imminent termination or even as an indication that defendant no longer wanted plaintiff to continue working at the agency." Id. at 80. On the contrary, in that case, "all the evidence indicate[d] that defendant wanted plaintiff to remain as an employee." Id. The court also found that, though the plaintiff had been placed on leave without pay, she "had the option of resuming work in her new position or staying out on leave without pay until such time as she was terminated." Id. Defendants here argue that, similar to Kalinoski, "[t]he paid administrative leave was not a sign of imminent termination, but an opportunity for Richardson to improve and do her job satisfactorily." Defs.' Mem. Supp. at 28.
The Court does not share Defendants' view of the record. The Court has already found, supra, that a reasonable juror could conclude that, among other things, Mr. Petasis removed Ms. Richardson's supervisory duties and reassigned her to a lesser position while preventing her from succeeding at that position by forcing her to work without the necessary assistance of other staff members. More importantly, Ms. Richardson was suspended and informed that she would only be permitted to continue her employment if she satisfactorily completed two tasks by a certain date. Even assuming that those actions alone would be insufficient to support a constructive discharge claim, Ms. Richardson presents uncontroverted evidence that Mr. Petasis prevented her from completing one of the two tasks by removing her access to necessary systems and by instructing staff members not to provide her with necessary information. See Richardson Aff. ¶¶ 139-41. Defendants do not challenge these factual allegations. They do not, for example, provide any testimony from Mr. Petasis disputing Ms. Richardson's claim that he instructed staff members not to provide her with necessary information. Nor do Defendants provide any testimony from Mr. Elahi, whom Ms. Richardson quotes as stating that "the staff was directed not to help you," Richardson Aff. ¶ 139, though they provide an affidavit from him concerning other issues. See Elahi Aff. Instead, Defendants simply argue that whether Mr. Petasis prevented Ms. Richardson from completing one of the two tasks is immaterial, because "she does not assert that she ever attempted to comply with the second condition of her return to work." Defs.' Reply at 20. This argument is illogical. Even if Ms. Richardson had completed the second condition in
Unlike the plaintiff in Kalinoski, a reasonable employee in Ms. Richardson's position could interpret her employer's actions as "a sign of imminent termination" and as an indication that Defendants no longer wanted her to remain an employee of JHU. Also unlike the plaintiff in Kalinoski, Ms. Richardson did not have the option of returning to work. Instead, her unchallenged evidence indicates that the terms of her suspension and Mr. Petasis's actions left her with no means of returning to work at JHU. These facts, if found by a jury, would constitute the necessary aggravating factors for a constructive discharge claim. See Clark v. Marsh, 665 F.2d 1168, 1174 (D.C.Cir.1981) (holding that aggravating factors were present because the plaintiff was "essentially locked into a position from which she could apparently obtain no relief"). Cf. Harris, 590 F.Supp.2d at 81 (granting summary judgment in favor of defendant in part because the plaintiff had "presented no evidence that even suggests that the defendant was seeking to end his career by transferring him to a position his supervisors knew he could not perform and was therefore predestined to fail").
Accordingly, JHU is not entitled to summary judgment on the constructive discharge aspect of Ms. Richardson's discrimination claims.
Count V of the Amended Complaint is a claim for retaliation brought under Section 1981, Title VII, and the DCHRA. See Am. Compl. ¶¶ 141-44.
Retaliation claims brought under these statutes are subject to the same burden-shifting framework under McDonnell Douglas as claims for discrimination. See Allen, 795 F.3d at 39. A plaintiff bringing a retaliation claim under Title VII based on circumstantial evidence establishes a prima facie case by showing: "(1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two." Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir. 2009) (citing Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir.2007)). A materially adverse action for purposes of a retaliation claim is one that a reasonable employee would find to be materially adverse, meaning that it "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotation omitted).
As with discrimination claims, once the employer proffers a legitimate, non-retaliatory reason for the challenged employment action, "the burden-shifting framework falls away, and the `central question' becomes whether `the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory or non-retaliatory reason was not the actual reason and that the employer intentionally discriminated or retaliated against the employee.'" Allen, 795 F.3d at 39 (quoting Brady, 520 F.3d at 494) (alterations omitted). The Supreme Court has ruled that Title VII retaliation claims, unlike status-based discrimination claims, "require proof that the desire to retaliate was the but-for cause of the challenged employment action," rather than merely a "motivating factor." Univ. of
Here, Ms. Richardson claims that she suffered several distinct materially adverse employment actions in retaliation for several protected activities. She claims: (1) Mr. Petasis yelled at her on January 24, 2012 in retaliation for requesting a meeting with Human Resources to discuss his conduct earlier that month; (2) Mr. Petasis excluded her from at least one meeting in June 2012 in retaliation for complaining to him about Ms. Grandval's threatening conduct the previous month; (3) Mr. Petasis authorized Ms. Grandval to assume Ms. Richardson's supervisory duties in September 2012 in retaliation for her first EEOC complaint in August 2012; (4) the Final Written Warning, together with her reassignment to the Service Desk, in September 2012 was also in retaliation for her first EEOC complaint; and (5) she was suspended in December 2012 in retaliation for complaining about Mr. Petasis's battery of Mr. Daniel three days prior and for her other protected activity. See Pl.'s Opp. at 24-27.
Defendants argue that, of these activities, only Ms. Richardson's complaints to the EEOC were statutorily protected activity and that, even assuming that Ms. Richardson suffered materially adverse actions, she cannot establish the requisite causal link between those actions and her protected activity. See Defs.' Mem. Supp. at 29-31. The Court addresses each of Ms. Richardson's claims of retaliation in turn.
Ms. Richardson claims that on January 24, 2012, Mr. Petasis yelled at her in retaliation for requesting a meeting with Human Resources. See Pl.'s Opp. at 24-25; Richardson Aff. ¶ 28. Defendants do not proffer a legitimate, non-retaliatory reason for Mr. Petasis's conduct, and, therefore, Ms. Richardson must establish a prima facie case of retaliation under the McDonnell Douglas framework.
Ms. Richardson must first show that her request for a meeting with Human Resources was a statutorily protected activity. "An activity is protected for the purposes of a retaliation claim if it involves opposing alleged discriminatory treatment by the employer or participating in legal efforts against the alleged treatment." Lemmons, 431 F.Supp.2d at 91 (internal quotation omitted). The "alleged discriminatory treatment" cannot be "generic; rather, the plaintiff must be opposing an employment practice made unlawful by the statute under which she has filed her claim of retaliation." Id. at 91-92 (citing Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006) (stating that the complaint "must in some way allege unlawful discrimination")). Therefore, Ms. Richardson only engaged in protected activity for purposes of her retaliation claim if, in her request to meet with Human Resources, she alleged harassment or discrimination on the basis of race in violation of Section 1981, Title VII, or the DCHRA.
Ms. Richardson provides no evidence to support a finding that her request to meet with Human Resources in mid-January 2012 was to discuss harassment or discrimination on the basis of race. Though Ms. Richardson states in her opposition to Defendants' motion for summary judgment that she requested this meeting in order to "discuss [Mr. Petasis's] continued reference to minority men of color as `boy,'" no citation is provided for that factual assertion. Pl.'s Opp. at 24-25. The limited evidence that the Court can locate in the record concerning Ms. Richardson's mid-January 2012 request does not indicate that it was to discuss Mr. Petasis's use of the term "boy" or any other allegations of
Id. at JHU00246 (emphasis added).
Ms. Richardson provides no evidence to establish that Mr. Petasis yelled at her on January 24, 2012 in retaliation for engaging in protected activity, and therefore, JHU is entitled to summary judgment as to this aspect of Ms. Richardson's retaliation claims.
Ms. Richardson claims that on June 4, 2012, Mr. Petasis excluded her from an important meeting in retaliation for reporting Ms. Grandval's alleged threat of physical violence on May 9, 2012.
Ms. Richardson fails to establish that her complaint to Mr. Petasis and Human Resources regarding Ms. Grandval was a statutorily protected activity. She provides no evidence whatsoever indicating that she raised issues concerning race discrimination in her complaint. On the contrary, the record before the court, including an e-mail from Ms. Richardson to Mr. Petasis and Ms. Hines informing them of the incident and a memorandum summarizing her subsequent conversation about the incident with Mr. Petasis and Ms. Hines, indicates that, while she complained about Ms. Grandval being threatening and indicated that she feared for her safety, she made no mention of any potential racial issue. See Defs.' Ex. 12 (e-mail to Ms. Hines and Mr. Petasis informing them of the incident); Defs.' Ex. 13 (memorandum summarizing discussion with Mr. Hines and Mr. Petasis regarding the incident). Ms. Richardson provides no evidence to establish that Mr. Petasis excluded her from the meeting on June 4, 2012 in retaliation for engaging in protected activity, and therefore, Defendants are entitled to summary judgment on this claim of retaliation.
Ms. Richardson claims that on September 11, 2012, Mr. Petasis authorized Ms. Grandval to assume her supervisory duties
There is no dispute that Ms. Richardson's filing of a formal EEOC complaint was a statutorily protected activity, the first prong of the prima facie analysis. The Court also found, supra, that there is a genuine dispute as to whether Mr. Petasis authorized the removal of her supervisory duties and that this action, if true, would constitute an adverse employment action for purposes of a discrimination claim. This analysis holds true with respect to whether the action would constitute a materially adverse action for purposes of a retaliation claim, the second prong of the prima facie analysis, which encompasses a broader range of actions than the anti-discrimination provision of Title VII. The alleged removal of Ms. Richardson's supervisory duties "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405 (internal quotation omitted).
Ms. Richardson's claim, therefore, turns on whether she can establish, for purposes of satisfying the third prong of the prima facie analysis, a causal link between her filing of the EEOC complaint on August 13, 2012 and the removal of her supervisory duties on September 11, 2012. For purposes of making a prima facie case of retaliation, a plaintiff need not provide any direct evidence of a causal connection. Rather, a plaintiff may establish the requisite causation by "showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C.Cir.1985). See also Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C.Cir.2003) ("[T]his circuit has held that a close temporal relationship may alone establish the required causal connection.").
Here, the very close temporal proximity between Ms. Richardson's protected activity and the materially adverse action is quite plain. Ms. Richardson filed her EEOC complaint on August 13, 2012, and, at or around the same time, she filed a complaint with JHU's Office of Institutional Equity. See Defs.' SOF ¶ 67; Richardson Aff. ¶ 66. Ms. Richardson alleges that Mr. Petasis removed her supervisory duties on September 11, 2012, less than one month later. See Richardson Aff. ¶¶ 67-68. This falls within the generally accepted range for establishing a causal connection. See Brodetski v. Duffey, 141 F.Supp.2d 35, 43 (D.D.C.2001) ("[C]ourts generally have accepted time periods of a few days up to a few months ...."). None of the Individual Defendants claim that they were unaware of Ms. Richardson's EEOC filing and her internal complaint at the time that the alleged removal of her supervisory duties occurred.
Accordingly, JHU is not entitled to summary judgment as to this aspect of Ms. Richardson's retaliation claims.
Ms. Richardson claims that the combined actions of issuing her a Final Written Warning on September 13, 2012 and reassigning her to the Service Desk was in retaliation for filing her first EEOC complaint on August 13, 2012.
Though Defendants argue that the Final Written Warning was not an adverse employment action for purposes of Ms. Richardson's discrimination claim, it is unclear from their briefing whether they also challenge whether the Final Written Warning was a materially adverse action for purposes of a retaliation claim, the definition of which encompasses a broader range of actions. See Defs.' Mem. Supp. at 30 (arguing that "the alleged actions of retaliation against Richardson are limited to the Final Written Warning" and the suspension and arguing that "[e]ven assuming that the Final Written Warning" and the suspension were "adverse employment actions," Ms. Richardson cannot establish the requisite causation). Nevertheless, the Court addresses this issue for clarity.
The D.C. Circuit addressed whether letters of reprimand and negative performance reviews may constitute materially adverse actions for retaliation purposes in Baloch. See 550 F.3d at 1199. The court held that the letters and negative performance reviews in that case did not constitute materially adverse actions because the letters "contained no abusive language, but rather job-related constructive criticism, which `can prompt an employee to improve her performance'" and the plaintiff did not produce evidence demonstrating that the negative performance reviews "could affect his position, grade level, salary, or promotion opportunities." Id. (quoting Whittaker v. N. Ill. University, 424 F.3d 640, 648 (7th Cir.2005)). The court also cited with approval a Seventh Circuit decision holding that certain evaluations and written warnings were not adverse actions because "none had tangible job consequences." See id. (quoting Whittaker, 424 F.3d at 648). Summarizing the precedent in this Circuit, one court has stated that "[a] letter of counseling, written reprimand, or unsatisfactory performance review, if not abusive in tone or language or a predicate for a more tangible form of adverse action, will rarely constitute materially adverse action under Title VII." Hyson v. Architect of the Capitol, 802 F.Supp.2d 84, 102 (D.D.C.2011). Courts have also recognized that there is no rule that letters of reprimand are per se non-actionable, but, rather, "the case law is clear that the `material adversity' inquiry is necessarily context-specific and `is simply not reducible to a comprehensive set of clear rules.'" Herbert v. Architect of the Capitol, 766 F.Supp.2d 59, 75 n. 16 (D.D.C. 2011) (quoting Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011)).
The Court finds that Ms. Richardson's Final Written Warning was an actionable, materially adverse action. Though the Final Written Warning contained no abusive language, the record is clear that it was used as a predicate for Ms. Richardson's suspension, which had a tangible impact on the terms of Ms. Richardson's employment. Context also compels the Court's conclusion. Ms. Richardson received
Defendants proffer the same legitimate, non-retaliatory reasons for issuing Ms. Richardson the Final Written Warning that they offer to justify her suspension: her insubordination and poor performance. See Defs.' Mem. Supp. at 28-29. The question, therefore, is whether Ms. Richardson has produced sufficient evidence for a reasonable jury to find that those reasons were not the actual reasons for the Final Written Warning and that JHU retaliated against her. The D.C. Circuit has stated that "[t]he temporal proximity of an adverse action close on the heels of protected activity is a common and highly probative type of circumstantial evidence of retaliation." Allen, 795 F.3d at 40 (citing Hamilton v. Geithner, 666 F.3d 1344, 1357-59 (D.C.Cir.2012)). Here, the Final Written Warning came approximately one month after Ms. Richardson filed her EEOC claim.
Defendants argue that Ms. Richardson cannot establish the requisite causation, because "she cannot dispute that Petasis first disciplined her informally in February 2012, or that Petasis and Hines started discussing the need for the Final Written Warning in June 2012, six months and six weeks prior to Richardson filing the Charge, respectively." Defs.' Mem. Supp. at 30. Defendants' argument alludes to the Supreme Court's statement in an arguably analogous context that "[e]mployers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).
Defendants' argument, however, is undercut by JHU's own internal finding that Ms. Richardson's Final Written Warning was the "first discipline she received." Defs.' Ex. 31 at SDR001058. Moreover, the only evidence submitted in support of the claim that Ms. Hines and Mr. Petasis began contemplating a Final Written Warning in June 2012 is Ms. Hines's self-serving affidavit in which she states that she advised Mr. Petasis to prepare one. See Hines Aff. ¶ 5. Defendants do not provide any testimony from Mr. Petasis or any contemporaneous evidence on this issue. Nor do Defendants offer any details as to whether Mr. Petasis or Ms. Hines took any action to prepare the Final Written Warning or whether they had any further discussions about it until after Ms. Richardson filed her EEOC complaint.
In any case, even to the extent that the value of the temporal proximity between Ms. Richardson's protected activity and the Final Written Warning is diminished for purposes of a causation analysis, Ms. Richardson has presented other evidence sufficient to support an inference of pretext and retaliation. The Court has already held that Ms. Richardson has presented sufficient evidence for a reasonable jury to find that Defendants' justifications for her suspension were pretextual, based largely on evidence indicating that JHU did not follow its normal procedures in issuing the Final Written Warning and indicating that
JHU is not entitled to summary judgment on this aspect of Ms. Richardson's retaliation claims.
Ms. Richardson claims that her suspension on December 17, 2012 was also an act of unlawful retaliation. The Court has already found that the suspension was an adverse employment action for purposes of Ms. Richardson's discrimination claim, and that analysis also suffices for finding that the suspension was a materially adverse action for purposes of a retaliation claim. The remaining issue, therefore, is causation.
In her opposition to Defendants' motion for summary judgment, Ms. Richardson claims that she was suspended in retaliation for complaining to Mr. Petasis about his alleged battery of Mr. Daniel three days prior. She does not, however, establish that her complaint to Mr. Petasis was statutorily protected activity. The sole evidentiary support that Ms. Richardson provides for her claim that she complained to Mr. Petasis about his alleged battery of Mr. Daniel at all is one sentence from her affidavit in which she stated only: "December 18, 2012, I spoke to Defendant Petasis regarding hitting Mr. Daniel." Richardson Aff. ¶ 124. Ms. Richardson does not provide any evidence whatsoever that her purported complaint to Mr. Petasis alleged that he struck Mr. Daniel with a racially discriminatory motive. Her claim of retaliation on this basis, therefore, is without merit.
More compelling, however, is the proposition that Ms. Richardson was suspended in retaliation for her EEOC filings. On October 17, 2012, Ms. Richardson filed a second EEOC charge, this time alleging retaliation. See Richardson Aff. ¶ 110. She was suspended just over two months later. Defendants argue that Ms. Richardson cannot establish the necessary causation between her EEOC filing and her suspension, because the temporal proximity is not close enough. See Defs.' Mem. Supp. at 30-31. As support, Defendants rely upon the Supreme Court's approval in Clark of circuit cases that rejected temporal proximities of three and fourth months as evidence of causation, see Clark Cnty. Sch. Dist., 532 U.S. at 273, 121 S.Ct. 1508, as well as the D.C. Circuit's subsequent rejection of a two-and-one-half month time period as sufficient to infer a retaliatory motive
Defendants' argument misses the mark. First, of course, the temporal proximity here of two months is shorter than the temporal proximity in those cases. In addition, the D.C. Circuit has since clarified that there is no bright-line rule with respect to temporal proximity. See Hamilton, 666 F.3d at 1357-58 ("Although the Supreme Court has cited circuit decisions suggesting that in some instances a three-month period between the protected activity and the adverse employment action may, standing alone, be too lengthy to raise an inference of causation, neither the Supreme Court nor this court has established a bright-line three-month rule."). Indeed, the D.C. Circuit has explicitly interpreted its decision in Taylor as standing for the proposition that it "evaluate[s] the specific facts of each case to determine whether inferring causation is appropriate." Id. at 1358 (citing Taylor, 571 F.3d at 1322).
Most importantly, Defendants' argument is premised on the false assumption that there is no other evidence supporting causation. See Defs.' Mem. Supp. at 31 (arguing that Ms. Richardson cannot establish causation "[i]n the absence of any other evidence of causation"). The Court has already found, with respect to Ms. Richardson's claim that the suspension was discriminatory, that she has presented sufficient evidence for a reasonable jury to conclude that Defendants' proffered reasons for the suspension were pretextual. Here, that analysis is only bolstered by the close temporal proximity between Ms. Richardson's second EEOC filing and the suspension, as well as the other alleged materially adverse actions. It is also clear that Mr. Petasis, Ms. Hines, and Mr. Kunka were well aware of Ms. Richardson's protected activity before the suspension. See Defs.' Ex. 30 at SDR000996; Pl.'s Ex. 9 at JHU00514. For all these reasons, the Court finds that a reasonable jury could conclude that JHU suspended Ms. Richardson in retaliation for her protected activity.
Accordingly, JHU is not entitled to summary judgment as to this aspect of Ms. Richardson's retaliation claims.
Finally, the Court interprets Ms. Richardson's allegation of a constructive discharge as also falling within her retaliation claim under Count V of her Amended Complaint. Though Defendants do not appear to treat it as so, "[r]etaliation can be the basis for a constructive discharge claim." Robinson v. Ergo Solutions, LLC, 85 F.Supp.3d 275, 283 (D.D.C. 2015) (citing Carter v. George Washington University, 387 F.3d 872, 883 (D.C.Cir. 2004)). The analysis for a constructive discharge claim on the basis of retaliation mirrors the analysis in the discrimination context. See id.
The Court has already held, with respect to Ms. Richardson's discrimination claim, that Ms. Richardson has presented sufficient evidence for a reasonable jury to find that she was constructively discharged. The Court has also held that she has presented sufficient evidence for a reasonable jury to conclude that Defendants removed her supervisory duties, reassigned her, gave her a Final Written Warning, and suspended her in retaliation for her protected activity. The same analysis applies here, as those actions form the foundation for her constructive discharge claim. Accordingly, JHU is not entitled to summary judgment as to this aspect of Ms. Richardson's retaliation claims.
The Court has held that JHU is not entitled to summary judgment on the majority
Under the DCHRA, it is "an unlawful discriminatory practice for any person to aid, abet, invite, compel, or coerce the doing of any of the acts forbidden under the provisions of [the DCHRA] or to attempt to do so." D.C. Code § 2-1402.62. The case law concerning this provision of the DCHRA is underdeveloped, and the Court's application of the provision to this case is frustrated by the parties' failure to adequately address the issues. Nevertheless, the Court is guided by a limited set of decisions by the District of Columbia Court of Appeals and interpretations of the provision by courts of this District.
The leading case concerning the aiding and abetting provision is Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873 (D.C.1998). In Wallace, the D.C. Court of Appeals held that partners of a law firm could be held individually liable under the DCHRA for both direct violations of the statute as "employers" and for aiding and abetting the law firm's discrimination by "carr[ying] out the allegedly discriminatory acts." Id. at 888. Looking to the standards for aiding and abetting in the criminal context, the Court stated that "[a]n aider and abettor is one who `in some sort associates himself with the venture, participates in it as something he wishes to bring about, and seeks by his action to make it succeed.'" Id. at 888 (quoting Roy v. United States, 652 A.2d 1098, 1104 (D.C. 1995) (internal punctuation omitted)). The Court explained that even if "the individual partners are not employers, and thus not principals in the alleged discrimination," they could be liable under the aiding and abetting provision if they "participated in the discrimination and sought to make it succeed." Id.
Most importantly with respect to this case, the Court in Wallace also cited with approval the Third Circuit's holding that, under an analogous Pennsylvania statute, a supervisor is liable for aiding and abetting sexual harassment if he knew or should have known about the harassment and refused to take prompt action to end it. See id. (citing Dici v. Pennsylvania, 91 F.3d 542, 553 (3d Cir.1996)). Since Wallace, courts in this District have recognized that supervisors may be liable under the DCHRA for aiding and abetting if they knew or should have known about the discriminatory or retaliatory conduct and failed to stop it. See Martin v. District of Columbia, 968 F.Supp.2d 159, 165 (D.D.C. 2013) (quoting King v. Triser Salons, LLC, 815 F.Supp.2d 328, 332 (D.D.C.2011)). As discussed in greater detail, infra, with respect to Ms. Richardson's claim against Ms. Grandval, the standard, if any, to be applied to a non-supervising co-worker is unclear.
Finally, of course, an individual cannot be liable under the aiding and abetting provision absent an underlying direct violation of the DCHRA. See Gaujacq v. EDF, Inc., 601 F.3d 565, 576 (D.C.Cir. 2010) (holding that because the employer did not discriminate against the plaintiff, it was clear that an individual defendant "did not aid and abet any unlawful discrimination"). Accordingly, the Individual Defendants are entitled to summary judgment with respect to the two alleged retaliatory
All of Ms. Richardson's surviving claims of discrimination and retaliation against JHU concern actions taken directly by Mr. Petasis: his authorization of the removal of her supervisory duties, his decision to reassign her to the Service Desk, the issuance of her Final Written Warning, her suspension, and her constructive discharge. Thus, on the record before the Court, a reasonable jury could conclude that Mr. Petasis "carried out the allegedly discriminatory acts" and therefore "aided and abetted the employer's discrimination" in violation of the DCHRA. Wallace, 715 A.2d at 888.
Defendants' arguments to the contrary are limited. They argue only that Mr. Petasis is entitled to summary judgment, because Ms. Richardson "has offered no evidence that his conduct was discriminatory." Defs.' Mem. Supp. at 34. As support, they cite Ms. Richardson's testimony during her deposition that she did not know Mr. Petasis's motivations for yelling at her for the first time in May 2011, her testimony in which she did not attribute Mr. Petasis's touching of her in September 2011 as racially motivated, and her testimony that Mr. Petasis never made a racially derogatory mark towards her. See id. at 34-35. This evidence, while certainly probative of whether Mr. Petasis's conduct was racially motivated, is inconclusive. The Court has already found that there is sufficient evidence in the record, including evidence of disparate treatment and evidence suggesting pretext, for a reasonable jury to conclude that Mr. Petasis's conduct was motivated by race. Moreover, Defendants entirely fail to address whether Mr. Petasis was motivated by retaliation.
Accordingly, Mr. Petasis is not entitled to summary judgment for aiding and abetting any of the surviving claims against JHU.
As a preliminary matter, the Court must determine the legal standard to apply to Ms. Richardson's claims against Ms. Hines. Though Ms. Hines, as the Human Resources Manager, was not Ms. Richardson's direct supervisor, the Court finds, based upon the context of this case, that it is appropriate to apply the supervisory aiding and abetting standard to Ms. Hines, and Defendants do not argue otherwise. The Court's analysis is grounded in the record, which shows that Ms. Hines held a managerial function and was responsible for, in many respects, supervising Ms. Richardson's relationship with Mr. Petasis and that she counseled Mr. Petasis on disciplinary action against Ms. Richardson. The Court therefore considers whether a reasonable jury could find that Ms. Hines knew or should have known about discrimination or retaliation against Ms. Richardson and failed to stop it.
The record indicates that Ms. Hines was actively involved in Ms. Richardson's Final Written Warning and her suspension.
Defendants' arguments with respect to Ms. Hines are also limited and focus exclusively on discrimination, ignoring retaliation. In their brief filed in support of their motion, Defendants argue only that Ms. Hines is entitled to summary judgment because Ms. Richardson testified during her deposition that Ms. Hines never made a racially derogatory remark and that she did not know why Ms. Hines allegedly failed to schedule a meeting in response to a complaint that Ms. Richardson made. See Defs.' Mem. Supp. at 33. As with respect to Mr. Petasis, this evidence, while probative, does not entitle Ms. Hines to summary judgment and does not address the issue of whether Ms. Hines had knowledge of the alleged discrimination and retaliation and whether she attempted to stop it.
The supervisory aiding and abetting standard is also applicable to Mr. Kunka, who was responsible for overseeing both the Office of Information Technology and Human Resources, and Defendants do not argue otherwise.
The record indicates that Mr. Kunka's involvement in or awareness of the alleged discriminatory and retaliatory conduct was more limited than the other Individual Defendants. Mr. Kunka participated in the meeting with Ms. Hines and Ms. Richardson on September 29, 2011, in which they discussed Ms. Richardson's general complaints about Mr. Petasis's behavior and his use of the term "boys" to refer to male staff members. See Defs.' SOF ¶ 22; Defs.' Ex. 8. The Court has found, however, that neither Ms. Richardson's statements during that meeting nor Mr. Petasis's use of the word "boys" support her claims of discrimination or retaliation.
It is unclear what further involvement, if any, Mr. Kunka had prior to the issuance of Ms. Richardson's Final Written Warning in September 2012. The record indicates that Ms. Hines stated during the internal appeals process that she recommended to Mr. Kunka that "Mr. Petasis get an Executive Coach or attend the Leadership Development program" but that "Mr. Kunka was resistant to her guidance and that he spoke to Mr. Petasis about his style." Pl.'s Ex. 9 at JHU00510. See also Richardson Aff. ¶ 26 (stating that Ms. Hines told her that "she is tired of getting complaints about George, Myron's not doing anything"). It is unclear, however, when this occurred.
In his letter upholding the Final Written Warning on October 24, 2012, Mr. Kunka stated that he was involved in the preparation of the Final Written Warning. See Defs.' Ex. 30 at SDR000996 ("The final written warning was prepared after thoughtful consideration, deliberation and in consultation with the Office of the General Counsel, Human Resources, and me."). He also stated in the letter that he was "fully aware of the formal complaints you have filed with Johns Hopkins University's (JHU) Office of Institutional Equity (OIE) and the U.S. Equal Employment Opportunity Commission (EEOC) against JHU Paul H. Nitze School of Advanced International Studies (SAIS) alleging harassment, discrimination based on gender and race and retaliation." Id. The Court is unable to locate evidence in the record concerning Mr. Kunka's involvement in Ms. Richardson's suspension, but, given his self-described level of involvement in Ms. Richardson's Final Written Warning, it would be reasonable to infer that he should have known about it. There is no evidence that he knew about or should have known about the alleged removal of Ms. Richardson's supervisory duties or her reassignment to the Service Desk.
This evidence provides sufficient grounds for a reasonable jury to find that, with respect to the Final Written Warning, suspension, alleged hostile work environment, and constructive discharge, Mr.
Accordingly, Mr. Kunka is not entitled to summary judgment with respect to his alleged aiding and abetting of the Final Written Warning, suspension, hostile work environment, and constructive discharge. He is, however, entitled to summary judgment with respect to the removal of Ms. Richardson's supervisory duties and Ms. Richardson's reassignment to the Service Desk.
It is clear that Ms. Grandval was not responsible for supervising Ms. Richardson or Mr. Petasis. Indeed, Ms. Richardson explicitly argues that "Defendant Grandval was not Plaintiff's supervisor," Pl.'s Opp. at 5, and a significant piece of evidence in support of Ms. Richardson's discrimination claims — Mr. Petasis's disparate treatment of Ms. Grandval — hinges on Ms. Richardson's factual claim that she and Ms. Grandval were similarly situated employees. It is therefore improper to apply the aiding and abetting standard for supervisors, which imposes a duty to end any known discriminatory or retaliatory practices, on Ms. Grandval, as Ms. Richardson appears to suggest. See Pl.'s Opp. at 34 ("Defendants Hines, Kunka, and Grandval were all aware of what was happening and did nothing to intervene."). After all, under this theory, it would seem that virtually any employee of SAIS familiar with the relationship between Mr. Petasis and Ms. Richardson who failed to act could be liable for aiding and abetting in this case. But the statute does not seem to reach such co-worker liability.
Although the parties do not address the issue, it is not entirely clear whether Ms. Grandval, as a non-supervisory co-worker, may be liable at all for aiding and abetting under the DCHRA. Though the statute prohibits "any person" from aiding and abetting unlawful discrimination or retaliation, the Court observes that, to the Court's knowledge, the provision has never been applied to any individual employees except for supervisors and upper management. See, e.g., Purcell v. Thomas, 928 A.2d 699, 714-16 (D.C.2007) (applying the DCHRA as a whole to the president, chief operating officer, controlling shareholder, and director of the employing entity); Wallace, 715 A.2d at 888-89 (applying the statute to partners of a law firm); Martin, 968 F.Supp.2d at 164-65 (applying the aiding and abetting provision to the chairman of the board responsible for overseeing the employing regulatory agency). The Court
The Court thus considers whether Ms. Richardson has presented sufficient evidence for a reasonable jury to find that Ms. Grandval associated herself with JHU's allegedly discriminatory and retaliatory practices, participated in those practices as something that she wished to bring about, and sought by her actions to make them succeed. See Wallace, 715 A.2d at 888. Though Ms. Grandval plays an important role in Ms. Richardson's factual claims, there is little evidence in the record to suggest that she intentionally acted to effect or further JHU's alleged discrimination and retaliation. For example, Ms. Richardson alleges that Ms. Grandval yelled at her, threatened to hurt her, threatened to take her job, and then assumed her supervisory duties at the direction of Mr. Petasis, but she does not provide any evidence showing that Ms. Grandval was motivated by discrimination in taking any of these actions. Indeed, Ms. Richardson makes no such argument based on the record in her brief opposing summary judgment, and, when asked during her deposition what facts she relied upon to form her belief that Ms. Grandval was motivated by racial animus, she discussed Ms. Grandval's time living in Europe and that she "didn't have any black friends, and yet she wanted [me] to move in with her because she thought we would get along." Richardson Dep. Tr. at 327:10-18. No reasonable jury could find based on this evidence that Ms. Grandval was motivated by racial animus.
In her brief opposing summary judgment, Ms. Richardson takes the alternate position that Ms. Grandval is not entitled to summary judgment for aiding and abetting, because she was "simply the cat's paw or the conduit of Defendant Petasis's prejudice." Pl.'s Opp. at 34. But there is no legal authority suggesting that any employee who serves merely as a passive "conduit" of her supervisor's discrimination — while having no discriminatory animus herself — is liable for aiding and abetting. Ms. Richardson's reference to the "cat's paw" theory and her unexplained citation to the Supreme Court's discussion of that theory of liability in Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011), is also misguided. See Pl.'s Opp. at 34. First, the Court notes that although several federal courts of appeal have applied Staub to Title VII actions, the D.C. Court of Appeals has not yet applied the theory to the DCHRA. See Bryant v. District of Columbia, 102 A.3d 264, 268 n. 3 (D.C.2014). Even assuming the theory is applicable here, it is wholly inapplicable to Ms. Grandval. If the cat's paw theory was applied to the DCHRA, under the Supreme Court's definition in Staub, it would be as follows: "if a supervisor performs an act motivated by [discriminatory or retaliatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under the [DCHRA]." 562 U.S. at 422, 131 S.Ct. 1186
Finally, Ms. Richardson has not presented any evidence indicating that Ms. Grandval had any role in issuing Ms. Richardson's Final Written Warning, reassigning her to the Service Desk, suspending her, or constructively discharging her. Nor has Ms. Richardson presented any evidence that Ms. Grandval harbored any retaliatory animus, let alone that she knew of Ms. Richardson's protected activity.
Ms. Grandval, therefore, is entitled to summary judgment on the entirety of Count IV.
For the foregoing reasons, the Court will
Ms. Richardson's claims regarding Ms. Hines provide another apt example. Ms. Richardson claims that Ms. Hines had "selective memory" regarding "violence on the JHU-SAIS campus." See Pl.'s Opp. at 15. Ms. Richardson claims that Ms. Hines testified during her deposition that she could recall only one instance of violence on campus, which was Ms. Richardson's apparent statement to Ms. Grandval on one occasion that they should "take it outside," and could not recall Ms. Richardson's complaint regarding Ms. Grandval threatening her life. See id. As support, Ms. Richardson inexplicably provides the Court with only a very brief excerpt of Ms. Hines's deposition transcript that does not contain Ms. Hines's full testimony on this issue. See Pl.'s Ex. 5 at 64:2-22, ECF No. 42-8. In the excerpt, Ms. Hines testified that she had received "allegations of workplace violence," and that, when asked who made those allegations, her first response was "I had one from Deborah Grandval." See id. at 64:10-16. In this excerpt, she did not state that Ms. Grandval's complaint was the only complaint she received or that she could not recall any complaint by Ms. Richardson.
