Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
TAMMY BERGBAUER )
)
Plaintiff, )
)
v. ) Civil No. 09-1032 (RCL) )
RAY MABUS, )
SECRETARY OF THE NAVY )
)
Defendant. )
)
MEMORANDUM OPINION
Defendant Secretary of the Navy (“Navy”) renews its Motion [57] for Summary Judgment as to plaintiff Tammy Bergbauer’s claim of hostile work environment based on sexual harassment and retaliation.
Bergbauer sued Navy and Rear Admiral (“RDML”) Charles H. Goddard in June 2009, alleging sexual harassment and hostile work environment claims under Title VII (Counts I and II) and the D.C. Human Rights Act (Counts III and IV), as well as battery against Goddard and intentional infliction of emotional distress against Goddard and Navy. The Court granted Goddard’s motion [18] to dismiss and granted in part Navy’s motion [7] to dismiss, [1] see Order, *2 ECF No. 38; only one count remains against Navy alleging a hostile work environment based on sexual harassment and retaliation.
Upon consideration of Navy’s renewed motion for summary judgment, Bergbauer’s Opposition [60], Navy’s Reply [64], the entire record in this case, and the applicable law, the Court will GRANT the motion for summary judgment and dismiss the case. Bergbauer has not shown conduct sufficiently severe or pervasive to make a case of hostile work environment based on sexual harassment. While her retaliatory hostile work environment claim presents a closer case, she has not shown that the alleged conduct was sufficiently severe or pervasive or that it was causally connected to her protected activity.
I. BACKGROUND
Plaintiff Tammy Bergbauer was hired as a civilian program analyst, subject to a one-year probationary period, by the Naval Sea Systems Command (NAVSEA) Headquarters of the Department of the Navy in July 2007. Def.’s Stmt. Mat. Facts Not in Dispute ¶¶ 1–2, ECF No. 57-1 [hereinafter Def.’s SMF]; Pl.’s Resp. to Def.’s SMF ¶¶ 1–2, ECF No. 60 [hereinafter Pl.’s SMF]. Bergbauer became Director of Corporate Operations two months later and had human resources responsibilities. Bergbauer’s direct supervisor was then Alan Weyman; Weyman and Bergbauer reported to RDML James McManamon. Def.’s SMF ¶¶ 3–4; Pl.’s SMF ¶¶ 3–4. Bergbauer also reported to RDML Goddard. Pl.’s SMF ¶ 4.
A. Alleged Hostile Work Environment Based On Sexual Harassment *3 Bergbauer’s sexual harassment hostile work environment claim stems from events occurring from fall 2007 through April 2008. Specifically, Bergbauer alleges that her co-worker Cameron Towner made unspecified compliments regarding her appearance, “several inappropriate suggestive comments,” and one sexually explicit remark. Def.’s SMF ¶ 6, Pl.’s SMF ¶ 6. Towner allegedly told Bergbauer that his ideal way to spend a day of bad weather would be with “Disco lights, White Russians, tomatoe [sic] soup, grilled cheese, you & me.” Def.’s MSJ, Ex. 5, ECF No. 57 (including Towner’s acknowledgement that he discussed soup and sandwiches but not that he added “you and me”). Towner also allegedly said, “I’ve always wanted to be like Mr. Weyman . . . and have you in this office behind closed doors, all alone, all by myself.” Id. On another occasion, Towner encouraged Bergbauer to attend a work tailgate, stating that she “would have a good time” and that he had “special liquor” for the two of them to “get liquored up before the game.” Id. Finally, on April 22, 2008, when Bergbauer stated that she needed gum to freshen her breath after eating tuna, Towner told a story about why he had stopped eating tuna that involved a crass joke about oral sex.
Bergbauer also alleges that, during official travel to San Diego, CA, on February 8, 2008, RDML Goddard inappropriately touched and kissed her. Def.’s SMF ¶ 5, Pl.’s SMF ¶ 5. Specifically, Bergbauer, Goddard, and two other individuals employed by Navy, went out for dinner, drinks, and dancing after a work event. The group drank heavily, with each person consuming five shots of tequila along with multiple beers and/or margaritas. Def.’s MSJ, Ex. 4; see also Pl.’s Opp’n, Ex. P, at 2, ECF No. 60. During the evening, Bergbauer alleges that Goddard inappropriately touched her by sliding his hand around her back; giving her waist “a slight squeeze . . . as if to emphasize certain points and/or to assure he had [her] attention . . . ”; pushing his socked foot between her legs during dinner; trying to grab her hand or arm while the *4 two walked; putting his hand below her shirt to touch her back; putting his hand along her waist and moving upward toward her breast; and finally kissing her “on the mouth for a split second before he pushed his tongue into [her] mouth.” Def.’s MSJ, Ex. 4 at 3–7. The other individuals present did not recall seeing any inappropriate touching or kissing and Goddard said he could not recall whether he had touched her. Pl.’s Opp’n, Ex. P at 8–11, 36. At this stage, the Court assumes the truth of Bergbauer’s evidence regarding the evening.
On February 10, 2008, Bergbauer reported Goddard’s conduct to her mentor, Sam Samimi, a supervisor with the Department. Pl.’s Opp’n, Ex. C, ¶¶ 4–5, 7. Samimi then reported it to Bergbauer’s supervisor, Alan Weyman, though the content or extent of that conversation is not in the record. Id. ¶ 6. Bergbauer has made conflicting statements regarding whether she intended to pursue corrective action or invoke the EEOC process when she reported Goddard’s conduct to Samimi. Because this is not ultimately relevant to the Court’s reasoning or decision, the Court does not consider it futher.
After Towner’s sexually explicit remark to Bergbauer on April 22, 2008, she complained to Weyman and asked him to speak with Towner. Def.’s SMF ¶ 7, Pl.’s SMF ¶ 7. When Towner was not immediately disciplined, Bergbauer asked Weyman to speak to RDML Goddard, who was Towner’s direct supervisor. Bergbauer asked that Towner be removed from employment in light of the Navy’s “zero tolerance” policy on sexual harassment.
Within three days, Navy had directed an investigation into the allegations against Towner and he was subsequently removed from employment. Def.’s SMF ¶¶ 8, 10; Pl.’s SMF ¶¶ 8, 10.
In mid-May 2008, Bergbauer was questioned by the Naval Inspector General (NAVINSGEN) after an anonymous third-party complained about Goddard’s conduct on the San *5 Diego trip. Def.’s SMF ¶ 11; Def.’s MSJ, Ex. 6. As a result, Bergbauer personally reported Goddard’s conduct to Weyman for the first time. Def.’s MSJ, Ex. 6. The NAVINSGEN investigation concluded that, on several occasions, Goddard had been publicly intoxicated in the presence of subordinates and that the “instance of inappropriate touching of Ms. Bergbauer while intoxicated constituted being drunk and disorderly and was conduct unbecoming an officer and gentleman, in violation of Article 133, UCMJ.” Pl.’s Opp’n, Ex. P, at 38. Goddard was relieved of his position on July 3, 2008. Def.’s SMF ¶ 13; Pl.’s SMF ¶ 13.
B. Alleged Retaliatory Hostile Work Environment On July 1, 2008, upon Weyman’s retirement, RDML McManamon met with Bergbauer and informed her that Mark Deskins would be her new supervisor. Def.’s SMF ¶ 18; Pl.’s SMF ¶ 18. The Admiral told Bergbauer, “you’re going to make me happy . . . you’re not going to do to me what you did to the other admiral . . . your supervisor is going to put in your appraisal what I tell him to put in your appraisal.” Bergbauer “begged” McManamon not to assign her to Deskins because Deskins had previously “made it clear that he didn’t like [her]” and spoke down to her staff. Def.’s MSJ, Ex. 3, at 29–30; see also Pl.’s Opp’n, Ex. L, at 4 (in sworn testimony to NAVINSGEN on July 8, 2008, Bergbauer stated, “Everyone knew that . . . [we] . . . just don’t get along at all.”). Bergbauer later made a presentation to McManamon, Weyman, and two others to provide examples of Deskins’ interference with “the processes and duties and responsibilities that [fell] under [her] rein, and how it had been detrimental.” Def.’s MSJ, Ex. 2, at 114–115. Bergbauer was nevertheless assigned to Deskins.
*6 On July 3, 2008, the day Goddard was relieved of his position, Goddard met with a number of employees. According to the parties’ statements of material facts, Goddard announced he was being removed because Bergbauer had “gone after him.” Def.’s SMF ¶ 20; Pl.’s SMF ¶ 20. Prior to that time, only a small group of people knew that Bergbauer had complained about Goddard.
While Bergbauer was working under Deskins, she alleges that he engaged in a number of actions in retaliation for her complaint against Goddard. On July 17, 2008, the last day of Bergbauer’s one-year probationary period, Deskins spoke with RDML McManamon about terminating her, as he had done “on a daily basis throughout her probationary period.” Def.’s SMF ¶ 21; Pl.’s SMF ¶ 21. Deskins gave Bergbauer at least one assignment to complete in a short period of time and told her to “figure it out” when she said she would have to work over the weekend. Def.’s SMF ¶ 22; Pl.’s SMF ¶ 22. He told her to post certain information on the wall of a conference room and when an admiral complained that the information should have been shared with him first, Deskins did not come to Bergbauer’s defense. Def.’s SMF ¶ 23; Pl.’s SMF ¶ 23. Deskins requested cancellation of the selection certificate for two executive assistants and put a stop on a recruitment action without informing Bergbauer. Def.’s SMF ¶ 24; Pl.’s SMF ¶ 24. He also sent emails about work-related matters for which Bergbauer had responsibility without copying her, and went to meetings without telling her. Def.’s SMF ¶ 28; Pl.’s SMF ¶ 28. Deskins’ comment. Second, even if the cited witness were to testify, the comment would remain hearsay unless it falls under the opposing party statement exception to the hearsay rule. See Fed. R. Evid. 801(d)(2). However, the Court lacks evidence with which to make this determination and thus will not consider the statement now. As to Bergbauer’s allegation about RDML McManamon’s comments (i.e. that “you’re doing to make me happy . . . your supervisor is going to put in your appraisal what I tell him to put in your appraisal”) and Goddard’s comment that Bergbauer had “gone after him,” the Court need not determine whether these statements are reducible to admissible evidence because Navy has conceded them. Def.’s SMF ¶¶ 18, 20. A NAVINSGEN investigation into Goddard’s remarks revealed conflicting reports of the meeting. NAVINSGEN
called the comments “unfortunate” but found they did not rise to the level of misconduct. Pl.’s Opp’n, Ex. Q. For purposes of summary judgment, the Court assumes that Goddard said Bergbauer had “gone after him.” *7 He asked her to complete redundant tasks and complained to senior leadership that she failed to timely finish tasks. Def.’s SMF ¶¶ 26–27; Pl.’s SMF ¶¶ 26–27. Deskins cancelled, at the last minute, a work trip Bergbauer had planned. Def.’s SMF ¶ 29; Pl.’s SMF ¶ 29. He once asked, outside of Bergbauer’s presence, that she be “fired and arrested” [6] because he believed she had harassed another employee. Def.’s SMF ¶ 30; Pl.’s SMF ¶ 30. During a staff meeting he compared her to coarse grit sandpaper. Def.’s SMF ¶ 32; Pl.’s SMF ¶ 32. He once told her that she did a lot of complaining and that she’d “already gotten rid of two people.” Def.’s SMF ¶ 33; Pl.’s SMF ¶ 33. Finally, in January 2009, before he left for another job, Deskins gave Bergbauer a letter of reprimand and a poor performance review which included a rating of three out of five. [7] Def.’s SMF ¶ 31; Pl.’s SMF ¶ 31. Although it is unclear from the parties’ submissions, it appears that Navy employees’ performance ratings are tied to financial rewards such that, if Bergbauer’s rating had been higher, she would have received a slightly higher salary increase or bonus possibly on the order of an additional 1–2% of her salary. See Def.’s MSJ, Ex. 10, at 2 (assigning Bergbauer two “shares” and an apparently corresponding “performance payout” salary increase); id. , Ex. 12, at 2 (assigning Bergbauer three “shares” and a “performance payout” distributed as a salary increase and bonus); id. , Ex. 10, at 13 (corresponding “rating of record” with number of available “shares”).
*8 After Deskins left in January 2009, her new supervisor wanted to give her a performance rating of four for the period ending in September 2009, but senior leaders decided she deserved a three. Def.’s SMF ¶ 34; Pl.’s SMF ¶ 34. Bergbauer’s performance rating increased to a four for the period ending September 2010.
Bergbauer also alleges that she was unfairly assigned to a GS-14 pay level rather than a GS-15 when civilian employees in the Navy were transferred to the General Schedule pay system in February 2011, while this suit was pending. See Pl.’s Opp’n 24.
Finally, Bergbauer alleges for the first time that she was stripped of several important aspects of her job, including authority over IT and security. Pl.’s Mem. P. & A. 8.
Bergbauer first contacted an EEO Specialist in NAVSEA on July 11, 2008, to lodge an informal complaint of discrimination against Goddard and Towner. Def.’s MSJ, Ex. 7 ¶¶ 1, 5. She filed a formal complaint on September 15, 2008 for discrimination based on sex, reprisal, and hostile work environment. Def.’s MSJ, Ex. 9. According to her Amended Complaint, she was issued a “right to sue” letter on September 16, 2008. Am. Compl.¶ 44. Bergbauer filed the instant suit on June 3, 2009.
C. Renewed Motion for Summary Judgment
Navy now renews its motion for summary judgment. With respect to Bergbauer’s sexual harassment hostile work environment claim, Navy argues that Bergbauer failed to timely exhaust *9 her claim of harassment by Towner and that her claim of sexual harassment by Goddard is not part of the same unlawful practice as that by Towner and thus should not be considered further.
With respect to Bergbauer’s retaliatory hostile work environment claim, Navy argues that the facts alleged do not establish a pattern of “severe” or “pervasive” conduct that altered the conditions of Bergbauer’s work environment and that Bergbauer has failed to show a causal link between her protected activity and the alleged retaliation.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment should be granted when “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) (emphasis added);
see also Anderson v. Liberty Lobby, Inc.
,
B. Title VII Generally
Title VII makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of *10 employment, because of . . . sex.” 42 U.S.C. § 2000e-2(a). Title VII separately makes it “an unlawful employment practice for an employer to discriminate against any [employee] . . . because he has opposed any practice made an unlawful employment practice . . . or because he has made a charge” under the subchapter. 42 U.S.C. § 2000e-3(a). Thus, retaliation is also prohibited.
Section 2000e-16(a) makes Title VII applicable to federal agencies, and although the
language of that provision differs slightly from sections 2000e-2(a) and 2000e-3(a), the D.C.
Circuit has held that Title VII “‘places the same restrictions on federal . . . agencies as it does on
private employers’” and that courts may “‘construe the latter provision in terms of the former.’”
Singletary v. Dist. of Columbia
,
C. Method of Analysis for Hostile Work Environment Claims Based on Both Sexual Harassment and Retaliation
Bergbauer’s Amended Complaint alleges a single hostile work environment claim based on sexual harassment and retaliation; however, it is not obvious they may be analyzed as a single count. In moving for summary judgment, Navy has addressed them as distinct claims and Bergbauer, in responding to the motion, does not appear to dispute this characterization.
Courts in our circuit have taken differing approaches to hostile work environment claims grounded in both retaliation and substantive discrimination. Compare Baloch v. Kempthorne , *11 550 F.3d 1191, 1201 (D.C. Cir. 2008) (appearing to analyze hostile work environment claim based on discrimination and retaliation as a single claim), and Nurriddin v. Bolden , 674 F. Supp. 2d 64, 93 (D.D.C. 2009) (dismissing hostile work environment claim based on discriminatory and retaliatory motives), with Whorton v. Wash. Metro. Area Transit Auth. , 11-cv-1291-RC, 2013 WL 633046 (D.D.C. Feb. 21, 2013) (separately analyzing claims of hostile work environment based on race, gender, and retaliation).
The Court holds, at least in this case, that it is more appropriate to address Bergbauer’s hostile work environment claim as two distinct claims. Retaliation and sex discrimination are made unlawful employment practices in separate sections of Title VII and appear to be distinct unlawful practices despite both being actionable as hostile work environment claims. 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 2000e-3(a). In this case, with the exception of the single comment by Goddard that plaintiff had “gone after him,” the alleged retaliation was committed by different actors than the alleged sexual harassment and seems to have been motivated by a different animus.
The Supreme Court’s language and holding in Morgan support this conclusion. There, the court noted that a “hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’ . . . A court’s task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice” Morgan , 536 U.S. at 117, 120 (emphasis added). This *12 suggests the possibility for distinct hostile work environment practices and the Morgan court noted that a single hostile work environment claim must be supported by incidents involving the “‘same type of employment actions.’” Id. at 120 (affirming circuit court’s analysis on this point). In Morgan , all of those incidents were racially discriminatory. Id .
While retaliation is necessarily linked to possible or actual prior discriminatory conduct, the Court finds that any retaliatory harassment in this case is not part of the same employment practice as that based on sexual harassment and the two should be considered separately.
D. Required Exhaustion of Administrative Remedies
An employee who believes her employer discriminated or retaliated against her in
violation of Title VII must seek administrative adjudication before suing in federal court.
Payne
v. Salazar
,
A discrete claim is time barred if it fell outside of the 45-day period prior to contact with
an EEO counselor or the 180- or 300-day period prior to filing of the administrative charge.
However, a hostile work environment claim will not be time barred if all of the acts composing
the claim are part of the
same
unlawful employment practice, and at least one of these acts falls
within the time period.
Morgan
,
III. DISCUSSION
A. Title VII Hostile Work Environment Based on Sexual Harassment
As already mentioned, Title VII prohibits employers from discriminating against an
individual based on gender with respect to the “compensation, terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e-2(a). However, the Act bars not only discrete or tangible
employment decisions, but also a “hostile or abusive work environment,” for which economic or
tangible impact need not be shown.
Meritor Sav. Bank, FSB v. Vinson
,
To prove a hostile environment based on sexual harassment, the plaintiff must show: (1) [she] was a member of a protected class; (2) [she] was subjected to unwelcome[ ] sexual harassment . . . ; (3) the harassment complained of was based upon sex; (4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff’s work performance and creating an intimidating, *14 hostile, or offensive working environment . . . ; and (5) the existence of respondeat superior liability.
Davis v. Coastal Int’l Sec., Inc. , 275 F.3d 1119, 1123 (D.C. Cir. 2002) (internal citation omitted)).
The first three elements of this claim are generally easily satisfied when based on sexual harassment of a female employee by a male co-worker or supervisor. See id. (“[W]hen ‘the challenged conduct . . . involves explicit or implicit proposals of sexual activity’ between members of the opposite sex ‘it is reasonable to assume those proposals would not have been made to someone of the same sex . . . .’” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75 (1998)). However, sexually crude remarks, as opposed to advances, are not necessarily actionable if they were not made because of the plaintiff’s sex.
It is more difficult for plaintiffs to demonstrate that harassment rose to the level of an
actionable hostile environment. Plaintiffs must show harassing or retaliatory behavior that was
“sufficiently
severe or pervasive
to
alter the conditions
of the victim’s employment and create an
abusive working environment.”
Meritor
, 477 U.S. at 67 (emphasis added) (internal quotation
marks omitted). The plaintiff need not show tangible or economic employment action, nor need
she demonstrate “tangible psychological injury.”
Harris v. Forklift Sys., Inc.
, 510 U.S. 17, 21
(1993). However, the alleged conduct must be more than “merely offensive” It must be
severe or pervasive enough to “constructive[ly] alter[] . . . the terms or conditions of
employment.”
Burlington Indus., Inc. v. Ellerth
,
To determine whether an environment is “hostile,” courts look to “‘all the circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Morgan , 536 U.S . at 116 (quoting Harris , 510 U.S. at 23). In considering the totality of the circumstances, however, courts should be mindful that:
Everyone can be characterized by sex . . . ; and many bosses are harsh, unjust and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage of correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.
Bryant v. Brownlee, 265 F. Supp. 2d. 52, 63 (D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)).
Finally, plaintiffs must ultimately show that the employer is vicariously liable for the
unlawful conduct.
Faragher,
1. Bergbauer Timely Exhausted Her Claim of Harassment By Towner Navy asserts that Plaintiff did not contact its EEO office about the alleged harassment by Towner until more than a month after the 45-day deadline for initiating administrative remedies. Def.’s Mem. P. & A. 8. Bergbauer asserts that she timely exhausted because she reported the harassment to her supervisor on the same day as the last act of alleged harassment.
Navy has previously raised the same argument and the Court decided the issue in its September 2011 Memorandum Opinion. Although that Opinion responded to Navy’s argument in a motion to dismiss context, the Court finds no reason to change its reasoning or decision. In its earlier Opinion, the Court stated:
While the Secretary is correct that EEOC regulations require Title VII complainants to make EEO-counselor contact within 45 days of any allegedly discriminatory or retaliatory act, the purpose served by EEO contact is also served where a complainant brings such acts to the attention of a supervisor. Lloyd v. *17 Chao , 240 F. Supp. 2d 1, 3–4 (D.D.C. 2002). Ms. Bergbauer brought Mr. Towner’s inappropriate comments to the attention of her supervisor (Alan Weyman) on April 22, 2008, Am. Compl. [34-1] ¶¶27, 28, and so her complaint as to that alleged misconduct was timely. Furthermore, under the Supreme Court’s decision in Morgan , since that act was timely exhausted, the Secretary faces potential liability as to all other acts, even outside the filing period, so long as they constitute the same unlawful employment practice. 536 U.S. at 122. Therefore, while the incident in San Diego in February 2008 took place well outside the 45-day limit for EEO counselor contact, so long as that event is part of the same unlawful employment practice as subsequent acts of sexual harassment, the Secretary may be liable.
Mem. Op. 11.
While Navy does not formally move for reconsideration, it accurately states that the Court may modify interlocutory orders “as justice requires.” Def.’s Reply 5 (quoting Ficken v. Golden , 696 F. Supp. 2d 21, 34–35 (D.D.C. 2010)). Factors the court may consider under the “as justice requires” standard include whether the court “has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]ourt by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.” Ficken , 696 F. Supp. 2d at 34–35 (internal quotation marks and citation omitted). “These considerations leave a great deal of room for the court’s discretion and, accordingly, the ‘as justice requires’ standard amounts to determining ‘whether [relief upon] reconsideration is necessary under the relevant circumstances.’” Id. at 35.
Navy argues that
Lloyd v. Chao
, cited by the Court in its earlier Opinion, has been
“clarified and distinguished” by the EEOC.
See
Def.’s MSJ 10–11 (citing
Arnold v. Donahoe
,
EEOC Request No. 0520110207 (June 23, 2011)). However, this does not amount to a
controlling or significant change in the law since submission of the issue to court. The EEOC
*18
decision occurred prior to the Court issuing its Memorandum Opinion. Further, although courts
give “great deference” to the EEOC in construing Title VII,
McDonald v. Santa Fe Trail Transp.
Co.
,
The Court finds no other reason to reconsider. The 45-day Title VII time limit is not jurisdictional and courts can permit equitable tolling under extraordinary circumstances. See Killingsworth v. Potter , 307 F. App’x 685, 688 (3d Cir. 2009) (not selected for publication) (citing examples such as where a plaintiff timely asserted her rights in the wrong forum). Moreover, reconsideration at this late stage, after Navy failed to move for reconsideration of the Court’s earlier Opinion, would be inequitable in a case that is now over three years old. Thus, the Court finds that plaintiff timely exhausted her claim to the extent it was based on actions by Towner. In its earlier Opinion, the Court left open for consideration whether Towner’s harassment was part of the “same unlawful employment practice” as Goddard’s and thus whether a claim based on Goddard’s conduct would be time barred. The Court now considers this question.
2. Goddard Incident Part of Same Unlawful Employment Practice as Towner Comments
The Goddard incident occurred over 45 days prior to Bergbauer initiating contact with
her supervisor. Thus, it would be time-barred if not part of the “same unlawful employment
practice” as at least one of the acts by Towner that fell within the 45-day period before April 22,
2008 (i.e. on or after about March 8, 2008).
See Morgan
,
Bergbauer argues that the acts by Goddard and Towner were part of the same unlawful practice, essentially because the alleged incidents were all of a sexual or romantic nature, Goddard and Towner worked in the same division of NAVSEA, and Goddard and Towner acted *19 in concert and were aware of one another’s conduct. Pl.’s Mem. P. & A. at 36. The Court will not consider this last allegation further because Bergbauer provides no support for it.
Navy responds that the “mere fact that Towner and Goddard worked in the same office and both allegedly engaged in sexually harassing behavior does not, without more, demonstrate a discriminatory policy or practice such that their alleged acts should be viewed as sufficiently related for purposes of administrative exhaustion.” Def.’s Mem. P. & A. 14. Navy suggests that Goddard’s acts occurred during a discrete period of time, during a social outing away from the workplace, and were never repeated. Id. at 15–16. In contrast, Towner’s remarks occurred in the workplace over approximately five months. Id. at 16. Navy asserts that there is no evidence that Goddard and Towner acted in concert or that either knew of the other’s behavior. Id. Navy also points to Bergbauer’s failure to pursue corrective action against Goddard when the Navy began to investigate the comments by Towner.
There is little caselaw in our circuit to elucidate what constitutes the “same unlawful
employment practice.” In
Morgan
, the Supreme Court affirmed the Ninth Circuit’s finding that
incidents constituted the same actionable hostile environment claim because they involved “‘the
same type of employment actions, occurred relatively frequently, and were perpetrated by the
same managers.’”
Morgan
,
The D.C. Circuit recently acknowledged that many of the formulations for determining
whether incidents constitute the same actionable hostile environment claim “are at best only
rather general, but neither the Supreme Court nor any circuit seems yet to have offered anything
more illuminating.”
Baird
,
[The] allegations were [not] so different in kind that, as a matter of law, we can conclude that they were not part of the same hostile work environment. The line between [one supervisor] creating a hostile environment through sexual conduct and his deputy-turned successor . . . perpetuating the environment by condoning the same is not so well-defined to say that the [supervisors’] acts have ‘no relation’ as required in Morgan . at 199. The Circuit held this despite the fact that the conduct was perpetrated by different
supervisors, was of different types (sexual and non-sexual), and occurred over a span of eight years prior to the timely reported events.
Were it not for the D.C. Circuit’s decision in Vickers , this Court would conclude that the Goddard incident was not part of the same unlawful practice as Towner’s comments. While the events were sexual in nature or may have had romantic undertones, the acts were perpetrated by different individuals at different levels of the organization—one a supervisor, the other a co- worker. Moreover, the incidents took place in entirely different settings—one at a social gathering during an out-of-town work trip and the other at work during business hours. The Goddard incident took place once and was never repeated whereas the comments by Towner occurred several times over an approximately five month period.
In light of Vickers , however, the Court cannot, as a matter of law, conclude that they are not part of the same unlawful employment practice. Thus, the Court cannot conclude that the Goddard incident is time-barred. However, as explained below, even with the inclusion of the Goddard incident, Bergbauer has not shown that the alleged harassment is actionable.
3. Plaintiff Has Not Shown Severe or Pervasive Sexual Harassment Sufficient to Create Hostile Work Environment Although Navy argues for summary judgment on the basis of Bergbauer’s supposed failure to exhaust, it fails to address whether the alleged conduct rises to the level of a hostile work environment. Nevertheless, the Court holds that, as a matter of law, the plaintiff has not demonstrated severe or pervasive conduct sufficient to constitute a hostile work environment. See Fed. R. Civ. P. 56(f) (“After giving notice and a reasonable time to respond, the court may . . . grant [a summary judgment] motion on grounds not raised by a party.”).
Again, to be actionable under a hostile work environment theory, harassment must so be
severe or pervasive as to “constructive[ly] alter[] . . . the terms or conditions of employment.”
*22
Burlington Indus., Inc. v. Ellerth
,
Although the standard for a hostile work environment requires that conduct be severe or pervasive, courts generally find actionable claims only where the conduct is both quite severe and pervasive. [18] Isolated incidents, if extraordinarily severe, may be sufficient to constitute actionable harassment. However, the cases supporting this view are not uniform or from our circuit. [19] In our circuit, even multiple instances of physical contact and sexual advances may not be sufficient to meet the demanding legal standard for a hostile work environment. [20] *23 Furthermore, incidents involving only verbal comments, particularly by co-workers, must generally be quite pervasive and severe to be actionable. [21] Finally, although not explicitly part of the analysis, some courts consider remedial action taken by the employer in determining whether a hostile work environment existed. [22]
Bergbauer’s claim simply does not meet the demanding standard for a hostile work environment claim; the conduct is not sufficiently “severe or pervasive” to alter the conditions of her employment. The allegations against Towner amount to unspecified compliments about her looks, comments that could be seen as romantically or sexually suggestive, and a crass, sexually explicit joke. [23] The allegations against Goddard, while much more serious, involve an isolated incident, outside of the workplace, that was never repeated. Although Bergbauer may have subjectively perceived the environment to be abusive, she has not shown that it was objectively abusive or hostile. The conduct appears less severe and less pervasive than the conduct alleged in cases where courts have granted summary judgment for the defendant employer. See supra (quoting Harris , 510 U.S. at 21)); Carter v. Greenspan , 304 F. Supp. 2d 13, 25 (D.D.C. 2004) (“Assuming that plaintiff’s allegations that [co-worker] ‘caressed [him] on his knee,’ ‘placed her breast on [his] arm,’ and ‘placed her fingers on [his] buttocks’ are true . . . these three isolated incidents are not sufficiently severe in quantity or quality to unreasonably interfere with plaintiff's work performance or create a hostile work environment.”).
[21]
See Clark Cnty. School Dist. v. Breeden
,
corrective action, it will not have ratified the conduct. In such circumstances, it becomes difficult to say that a
reasonable victim would feel that the terms and conditions of her employment have changed as a result of the
misconduct.”);
Webb-Edwards v. Orange Cnty. Sheriff’s Office
,
directed at Bergbauer because of her sex. However, this is not self-evident. For example, Towner encouraged Bergbauer to attend a tailgate and said he had “special liquor” for them. This could be a romantic overture but could just as easily be interpreted as a friendly effort to encourage a coworker to attend a work-related event. Moreover, although Towner told a crass and extremely inappropriate joke, the sexual nature of the joke does not automatically suggest that it was directed at Bergbauer because of her sex.
n.18. The conduct involved only one incident of physical touching and that incident, as already stated, took place outside of the workplace, outside of work hours, in a social situation in which all present were drinking heavily. Towner’s conduct involved only a handful of verbal comments made by a non-supervisory co-worker and these were less severe and pervasive than the comments made even in cases where summary judgment has been entered for the employer. Compare Simms , supra n.18; Shinseki , supra n. 18, with McKenzie, supra n.19; Breeden , supra n.21; Baskerville , supra n.21.
Finally, of relevance to whether the workplace could reasonably continue to be perceived as hostile, Navy promptly took corrective action once plaintiff reported the conduct of Towner to her supervisor. Moreover, the Naval Inspector General proactively contacted Bergbauer in response to an anonymous third-party complaint about Goddard’s conduct and Navy quickly relieved him of his position.
B. Retaliatory Hostile Work Environment
1.
Legal Standard
Again, separate Title VII provisions bar discrimination based on protected status and that
based on protected activity.
See
42 U.S.C. § 2000e-2(a) (antidiscrimination provision);
id.
§
2000e-3(a) (antiretaliation provision). As with discrimination based on protected class, a hostile
work environment may constitute retaliation under Title VII and most federal circuits now
recognize a retaliatory hostile work environment claim.
Gowski v. Peake
,
Logically, the elements of a retaliatory hostile work environment claim are similar to those of a discriminatory hostile work environment claim. A plaintiff must show that she engaged in activity protected by Title VII; she suffered actionable retaliatory harassment; the defendant knew of plaintiff’s protected activity and there was a causal connection between the harassment and that activity; and the existence of respondeat superior liability. See Morris , 201 F.3d at 792 (outlining standard for retaliatory hostile work environment).
a. Legal standard for actionable retaliatory harassment after Burlington Northern
Courts in our circuit typically apply the same legal standard as that used in the
discriminatory harassment context to determine whether retaliatory harassment is actionable.
Specifically, plaintiffs must show retaliatory harassment that is “sufficiently severe or pervasive
to alter the conditions of the victim’s employment
.”
Baird v. Gotbaum
, 662 F.3d 1246, 1250
(D.C. Cir. 2011) (emphasis added);
Hussain v. Nicholson
,
The Court will apply this standard to Bergbauer’s claim. However, it is unclear whether applying the same standard to discriminatory and retaliatory hostile work environment claims remains appropriate after Burlington Northern . Because our Circuit does not appear to have addressed this question, the Court outlines its view of the matter in some detail below.
In
Burlington Northern
, the Court made clear that the standards for retaliation and
discrimination are not “coterminous” and that the protections provided for victims of retaliation
may be broader than those for victims of discrimination.
Burlington N.
, 548 U.S. at 60. In
traditional discrimination cases, plaintiffs must show that they suffered an “adverse employment
action” which amounted to a change in “compensation, terms, conditions, or privileges of
employment.”
See Brady v. Office of Sergeant of Arms
,
In reaching its conclusion, the Court focused on differences in the language and purposes
of the antiretaliation and antidiscrimination provisions. With respect to the antidiscrimination
provision, the Court stated that the words “‘hire,’ ‘discharge,’ ‘compensation, terms, conditions,
or privileges of employment,’ . . . explicitly limit the scope of that provision to actions
that affect
employment or alter conditions of the workplace
. No such limiting words appear in the
*27
antiretaliation provision.”
Burlington N.
,
The Supreme Court’s reading calls into question how courts have since analyzed
retaliatory hostile work environment claims. The hostile work environment standard was
initially developed and applied, prior to
Burlington Northern
, in the context of
substantive
discrimination.
See Meritor
,
[N]ot all workplace conduct that may be described as “harassment” affects a “ term, condition, or privilege ” of employment within the meaning of Title VII. . . . For sexual harassment to be actionable, it must be sufficiently severe or pervasive “ to alter the conditions of [the victim’s] employment and create an abusive working environment.”
Id.
at 67 (1986) (emphasis added) (quoting
Henson v. City of Dundee
,
Other cases have likewise emphasized the linkage between the language of § 2000e-2 and
the hostile work environment standard.
See Oncale v. Sundowner Offshore Servs., Inc.
, 523 U.S.
75, 80 (1998) (“The prohibition of harassment on the basis of sex . . . forbids only behavior so
objectively offensive as to alter the ‘
conditions’ of the victim’s employment
.’” (emphasis
added));
id.
(“‘The critical issue,
Title VII’s text indicates
, is whether members of one sex are
exposed to disadvantageous
terms or conditions of employment
. . . .’” (emphasis added));
Faragher
,
By the time the Supreme Court decided
Burlington Northern
in 2006, the majority of
federal circuits had recognized that “a hostile work environment can amount to retaliation.”
Hussain
,
Since 2006, at least three Circuits have applied a standard more consistent with
Burlington Northern
in retaliatory hostile work environment cases. The Eighth Circuit read
Burlington
itself as “expressly [holding] that retaliation claims under Title VII could be based on
a hostile work environment” and as “establish[ing] a standard to define the concept of a hostile
work environment for the purpose of retaliation claims under Title VII.”
Stewart v. Indep.
School Dist. No. 196
,
Courts in our Circuit do not appear to have reconsidered the retaliatory harassment standard in light of Burlington Northern . A good argument can be made that courts should now do so. Rather than asking whether retaliatory harassment was so severe or pervasive as to alter the terms and conditions of employment, courts would ask whether the harassment would deter a reasonable employee from engaging in protected activity.
Nevertheless, at least three contrary arguments convince this Court that it must apply the more stringent standard to the case at hand. First, the D.C. Circuit describes retaliatory hostile work environment claims in terms of the discrimination standard and this is the consistent practice among district judges in our circuit. The Court cannot ignore this precedent. *30 Second, the Court does not read Burlington Northern to require a more lenient hostile work environment theory. Although the Supreme Court’s reasoning and reading of the Title VII statute logically suggest that its holding should extend to hostile work environment claims, the holding was actually applied in the context of two discrete retaliation claims. The Court went on to analyze each claim separately and did not apply a hostile work environment theory. Thus, it does not appear that Burlington requires that the Court disregard binding D.C. Circuit precedent.
Finally, aligning the retaliatory hostile work environment with the broader retaliation
standard could result in consequences not intended by Congress or the courts. Apart from the
difference in legal standards, a hostile work environment claim differs from a discrete retaliation
claim in at least two important ways. First, the hostile environment claim allows a plaintiff to
aggregate otherwise minor and lawful conduct into a single actionable claim. Second, the hostile
environment exhaustion requirement is more permissive than that for discrete retaliation. A
claim is timely as long as just one of the alleged acts comprising the hostile work environment
falls within the statutory time period and the acts are part of the same unlawful employment
practice.
Morgan
, 536 U.S. at 122. This allows plaintiffs to combine acts committed over a
period of many years, including acts by different supervisors, into a single actionable claim.
See
Vickers v. Powell
,
In short, although the Court believes that
Burlington Northern
logically suggests that
courts apply a different standard to retaliatory hostile work environment claims, the Court will
continue to apply the standard articulated by the D.C. Circuit. The Court declines to speculate
whether it would reach a different conclusion on Bergbauer’s claim under a standard aligned
*31
with
Burlington Northern
. Thus, to succeed on her claim today, Bergbauer must show that she
suffered retaliatory harassment that was “sufficiently severe or pervasive
to alter the conditions
of [her] employment
.”
Baird
,
b. Demonstrating causal connection Whereas it can often be inferred that sexual harassment was “based on” the victim’s sex, it is harder to show that harassment was in retaliation for a victim’s protected activity.
In the context of discrete retaliation cases, a plaintiff may satisfy her prima facie burden
to show a causal connection by showing that “the employer had knowledge of the employee’s
protected activity, and . . . the adverse personnel action took place shortly after that activity.”
Mitchell v. Baldrige
,
Courts appear to have applied the “knowledge plus temporal proximity” standard to
hostile work environment claims as well.
See Na’im v. Clinton
,
However, the causation determination in the hostile work environment context is
somewhat more complex than that for discrete retaliation claims. Logically, only the actions that
have a causal link to protected activity may be considered part of a hostile work environment
claim.
See Noviello
, 398 F.3d at 93 (“It is only those actions, directed at a complainant, that
stem from a retaliatory animus which may be factored into the hostile work environment
calculus.”);
Alvarado
,
Although the D.C. Circuit has suggested that “close temporal relationship
may alone
establish the required causal connection,”
Singletary
,
The Court assumes, as other courts have done, that a close temporal relationship may
support an inference of causation in a hostile work environment claim and may assist courts in
determining which actions are part of the alleged hostile work environment. However, in some
instances, temporal proximity alone may not sufficiently show causation for purposes of
summary judgment or trial. Hostile work environment cases do not typically apply the
McDonnell-Douglas
burden shifting framework. Instead, the question is whether the plaintiff,
based on a totality of the circumstances, has demonstrated causation sufficient to survive
summary judgment or to succeed at trial. In contrast, the question at the prima facie stage of a
pure retaliation claim is whether the plaintiff has demonstrated causation sufficient to merely
make out a prima facie showing, to which the defendant will have a chance to respond.
See
Hamilton
, 666 F.3d at 1359 (“Considering the ‘minimal burden’ imposed at the prima facie
stage, we find the evidence sufficient to establish a prima facie case of retaliation.”). Once a
prima facie showing is made and a proferred non-discriminatory explanation offered, “positive
evidence beyond mere proximity is required to defeat the presumption that the proffered
explanations are genuine.”
Woodruff v. Peters
,
2. Bergbauer Cannot Succeed on Her Retaliatory Hostile Work Environment Claim
Navy argues that, “[e]ven assuming that all of the alleged acts were motivated by retaliation, the totality of the incidents . . . does not establish a pattern of ‘severe’ or ‘pervasive’ conduct that altered the conditions of [Bergbauer’s] working environment.” Def.’s Mem. P. & A. 18. It further asserts that Bergbauer has not put forth evidence, other than her own testimony, to show a nexus between her protected activity and any allegedly retaliatory action. The Court agrees with Navy.
a. Alleged Retaliatory Conduct that May Not be Included in the Hostile Work Environment Claim
For various reasons, the Court will not consider as part of the analysis of Bergbauer’s hostile work environment claim, any loss in pay based on poor performance reviews or the removal of certain job duties from Bergbauer’s purview. First, these allegations really concern allegedly concrete or tangible employment actions that are not appropriately brought as part of a hostile work environment claim. The essence of a hostile work environment claim is that a serious of acts, which might not individually alter the terms or conditions of employment, has collectively altered such terms. The claim is typically used for harassment, not for actions with a tangible impact on pay or duties. For example, in the context of sexual harassment claims, the Supreme Court has noted the distinction:
When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.
*35
Burlington Indus., Inc. v. Ellerth
,
It is true that tangible employment actions may inform whether an employer should be held vicariously liable for a hostile work environment. However, this is because employers are strictly liable for harassment culminating in a tangible employment action. See Faragher v. City of Boca Raton , 524 U.S. 775, 808 (1998). This is a different aspect of the hostile work environment analysis that is relevant only if the plaintiff successfully shows harassing conduct that was sufficiently severe or pervasive as to alter the terms or conditions of her employment.
Moreover, the allegations above are the sorts of discrete retaliatory acts that courts in our Circuit frown on including in a broader hostile work environment claim. Baloch v. Norton , 517 F. Supp. 2d 345, 364 (D.D.C. 2007). If Bergbauer wishes to challenge these actions directly, she should bring distinct retaliation claims, assuming she can show that they have been exhausted. *36 Even if the Court were to include these allegations in Bergbauer’s hostile work environment claim, she has failed to sufficiently show a causal connection with respect to these incidents. Again, causation may be inferred based on a showing that the employer knew of the employee’s protected activity and the alleged retaliation occurred within three months or less of the activity. Before July 3, 2008, at most only a small group of people, including RDML McManamon knew that Bergbauer had complained about Goddard’s conduct. Def.’s SMF ¶ 20; Pl’s SMF ¶ 20. There is no evidence in the record that Deskins knew of Bergbauer’s complaint prior to early- to mid-July; making all reasonable inferences in favor of Bergbauer, Deskins appears to have learned of her complaint around July 3 or in the weeks following. See Pl.’s Opp’n, Ex. R, at 38, 56 (stating that Goddard did not mention Bergbauer’s name to him and that Deskins did not speak with her about the situation until weeks after Goddard announced that she had “gone after him”). Bergbauer has presented no evidence that Deskins knew she made a formal complaint on September 15, 2008 or that she filed suit in June 2009. Bergbauer has also provided no evidence that her subsequent supervisor, Craig McKay, or “senior leadership” above him were aware of any of her original protected activity, much less any protected activity in which she engaged around the time of her second performance review in January 2010.
Thus, the combination of knowledge and temporal proximity do not support a causal connection between Bergbauer’s protected activity and any of the actions listed above. Deskins’ “unwarranted” performance review of Bergbauer was given in January 2009, four months after the filing of her formal charge. Thus, even if he knew of that charge, the temporal delay defeats a causal inference. Bergbauer received her next “poor” performance review based on a decision (D.C. Cir. 2011) (describing a hostile work environment claim based on “inflammatory, defamatory, libelous, and intimidating emails,” “unfounded, harmful allegations about Plaintiff,” as well as verbal assault, physical intimidation, and harassment). Finally, the Court here does not dismiss the plaintiff’s claim merely because it includes discrete acts, rather the Court simply excludes from the analysis of the hostile work environment claim these discrete acts and provides additional reasons for doing so.
by “senior leadership” in January 2010, at least six months after she filed this suit. Again, it is not clear that leadership knew of her activity and there is a large temporal gap. [28] Finally, Bergbauer lost responsibility over IT and security in early 2011, long after any of her protected activity.
Bergbauer has also failed to present sufficient additional evidence to show that these events were causally related to her protected activity. With respect to the removal of duties over IT and security, the record suggests that this decision was made solely by Craig McKay in early 2011. Pl.’s Opp’n, Ex. M, at 25–26. [29] Although Sam Samimi speculated that these responsibilities were removed from Bergbauer’s purview because of her protected activity, he provides no factual basis for this assertion. Pl.’s Opp’n, Ex. N, at 51. Moreover, McKay stated that the basis for his decision was the growth and complexity of the organization. There is also no indication in the record that McKay knew of Bergbauer’s protected activity. Finally, McKay had previously recommended a high performance rating for Bergbauer, thus further undercutting any indication of retaliatory intent on his part.
With respect to the performance review by Deskins, Bergbauer now asserts that her “poor” rating was retaliatory. However, she explicitly disclaimed any retaliatory intent when she administratively appealed that rating. See Pl.’s Opp’n, Ex. E, at 8 (“I am not alleging that prohibited discrimination or reprisal occurred in relation to the challenged rating of record or job *38 objective rating . . . .”). Moreover, the performance review itself provides a number of justifications for the rating, including conflicts Bergbauer had with some of her staff and other Navy employees, and her failure to complete certain tasks. Def.’s MSJ, Ex. 10, at 10, 16. Bergbauer disputed some justifications for the review, see Pl.’s Opp’n, Ex. E, at 3–6 (suggesting two of the employees who complained had a history of low performance and complaints against supervisors, and suggesting that certain delays were attributable to failures by others); however, she also agreed with the assessment of her “poor communication with SEA 10” and stated that the SEA 10 HR Specialist obviously didn’t like her, see id. at 5–6 (suggesting that she should not blamed for this). The record suggests that Bergbauer’s first request for reconsideration of her rating was denied by the Pay Pool Manager, which further weakens the inference of retaliatory motive on Deskins’ part. See Pl.’s Opp’n, Ex. E (appealing decision on request for reconsideration of rating); Def.’s MSJ, Ex. 10 (listing Wilmot Summerall as the “Pay Pool Manager” on the associated review form).
The Court is troubled by RDML McManamon’s statement, in July 2008, that he could influence Bergbauer’s performance reviews if she did not keep him happy. Despite Navy’s recent assertion that Bergbauer has “failed to present any evidence that McManamon knew that she had alleged harassment by Goddard,” Def.’s Reply 12, ECF No. 64, Navy has essentially conceded this point by stipulating that McManamon said, “you’re not going to do to me what you did to the other admiral.” Def.’s SMF ¶ 18. Making all reasonable inferences in favor of the nonmoving party at this stage, the Court infers that McManamon was aware of Bergbaeuer’s complaint by early July 2008. Nevertheless, Bergbauer has presented no evidence that McManamon ever followed through on his threat. The conversation between Bergbauer and McManamon was private and took place behind closed doors in McManamon’s office. *39 Bergbauer nowhere asserts, much less provides evidence, that McManamon communicated this to Deskins or her other supervisors or acted on it in any way.
The Court also does not believe that Bergbauer has satisfied her burden to show a causal connection between Deskins’ request that she be “fired and arrested” for allegedly harassing another employee. The record suggests that this request occurred around the end of June, when the NAVINSGEN report was released, before Deskins became Bergbauer’s supervisor and before he knew of her protected activity. See Pl.’s Opp’n, Ex. D, at 105–08. However, given the Court’s uncertainty about the facts surrounding this event, the Court will nevertheless include it in the analysis below.
b. Remaining alleged harassment not actionable
With respect to the other alleged retaliatory events, the Court finds that Bergbauer has met the minimal burden of showing that they were committed by actors who knew of her protected activity and that they were temporally close to that activity. [30] The remaining allegations include: McManamon’s comment regarding Bergbauer’s performance reviews (assuming that this should be considered as a separate retaliatory act and not solely as evidence of McManamon’s retaliatory intent); McManamon’s reassignment of Bergbauer to work with Deskins, despite knowing that the two did not get along; Goddard’s announcement to various staff that Bergbauer had “gone after him”; and various acts by Deskins.
Based on the standard used in this Circuit, Bergbauer has failed to show that she was
subjected to a hostile work environment. “The key terms . . . are ‘severe,’ ‘pervasive,’ and
‘abusive,’ as not just any offensive or discriminatory conduct rises to an actionable hostile work
*40
environment.”
Bell v. Gonzales
,
It seems that all of the remaining conduct took place over just three to six months, from July 2008 to September 2008 or January 2009, and does not appear to have continued beyond that period. See supra n.31; Pl.’s Opp’n, Ex. D, at 151; Def.’s MSJ, Ex. 11. While this strengthens an inference that the conduct was frequent, it also undercuts the argument that it was particularly severe.
Only some of the incidents come close to being threatening, humiliating, or insulting.
First, the statement by McManamon regarding Bergbauer’s performance reviews appears to be at
least somewhat threatening. However, Bergbauer has presented no evidence that McManamon
ever communicated his threat to her supervisors or tried to intimidate her further. Deskins’
comparison of Bergbauer to sandpaper does not appear particularly insulting, especially since he
compared himself with sandpaper as well. Further, Deskins request that Bergbauer be fired and
arrested was not made in her presence and she only learned of it from another employee. See
Jones v. Billington
,
Most of the remaining incidents are the types of work-related disputes not actionable as a
hostile work environment claim. For example, McManamon reassigned Bergbauer to work for a
supervisor with whom she did not get along. However, Bergbauer has presented no evidence,
other than her own speculation, to suggest this was retaliatory. Moreover, the reassignment was
made upon the retirement of her previous supervisor. This is the sort of personnel decision that
employers routinely make. The other incidents complained of include that: Deskins gave
Bergbauer short time periods in which to complete assignments; he did not stand up for her when
an admiral complained about something she had done at Deskins’ direction; he did not keep her
informed about work-related matters; he canceled at least one work trip at the last minute. These
simply do not rise to the level of “severe or pervasive” as defined in our Circuit. Even if the
Court were to consider the “poor” performance review by Deskins in this analysis, the review is
exclusively concerned with actual work performance. It contains no abusive language and
presents, in a fairly detached fashion, the areas in which Deskins believes that Bergbauer’s work
performance was not up to par. Occasional instances of less favorable treatment involving
ordinary daily workplace decisions are not sufficient to establish a hostile work environment.
[32]
*42
Moreover, although Bergbauer met the minimal burden of showing temporal proximity
with respect to Deskins’ actions, the record suggests a lack of causal connection between the
actions and Bergbauer’s protected activity. First, there is evidence of a personality conflict
between Deskins and Bergbauer even prior to her protected activity and prior to her being
assigned to work under Deskins.
See
Pl.’s Opp’n, Ex. D, at 72 (“Our operating methods never
were cohesive; they were always in direct conflict with each other.”). Bergbauer herself alleges
that Deskins had poor communications skills and could not lead, which would suggest that the
complained-of conduct was less a response to Bergbauer’s protected activity and more a function
of Deskins’ management style. Pl.’s Mem. P. & A. at 17 (citing Pl.’s Opp’n, Ex. I, at 4.).
Deskins also appears to have had conflicts with a number of other employees, not just
Bergbauer.
See
Stmt. of Tammy Bergbauer, Pl.’s Opp’n, Ex. D, at 30 (“[Deskins] didn’t like
2006));
Nurriddin v. Bolden
, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (finding insufficient to state a hostile work
environment claim plaintiff’s allegations that “management passed him over for performance awards, lowered his
performance evaluations, unfairly reprimanded and criticized him, made disparaging remarks about his EEO
complaints, closely scrutinized his work, refused him a window cubicle, removed some of his duties, . . . denied his
requests to travel or otherwise failed to provide support for his work with staffing and funding[, . . . ] den[ied] a
noncompetitive promotion, den[ied] a within-grade increase, and oppos[ed] his transfer to another office or detail
assignment”);
Rattigan v. Gonzales
,
contractors and more than half of my staff at that time was contractors. He spoke down to them constantly.”). Additionally, Bergbauer’s own statements suggest that Deskins’ actions may have represented an attempt to gain power for himself rather than to retaliate against her. See Pl.’s Opp’n, Ex. D, at 70 (“Mark Deskins wanted control of Corporate Ops, had ever[] since he came on board—in my opinion because he had no job and so he was looking for one . . . [and] positioning himself to realign himself as a supervisor of Corporate Ops . . . .”).
With respect to the letter of reprimand, the record suggests a legitimate basis for the action. The letter was issued in response to an email from Bergbauer to Deskins. In that email, she wrote, “I fail to recognize what part of my original reply you are unable to comprehend . . . . The fact that, yet again, you have taken it upon yourself to interject yourself into a situation regarding a member of my staff which you know little about . . . remains inconceivable in my mind.” Def.’s MSJ, Ex. 11, at 1–5. Surely, a reasonable supervisor could perceive such comments from a subordinate to be sufficiently “insolent” and “disrespectful” to merit a letter of reprimand. Further, Bergbauer presents no evidence to suggest that others behaving similarly were able to avoid reprimands.
To the extent that Bergbauer attempts to point to the deposition testimony of others to show a general “atmosphere of retribution,” including “rumors” and “audible expletives” from co-workers, this would not support her claim. See Pl.’s Opp’n 10–11, 19–22 (quoting fact witnesses discussing a generally negative “atmosphere” and comments made outside of Bergbauer’s presence). Comments made outside of the employee’s presence are generally not actionable as the basis for a hostile work environment claim. See Mason v. Southern Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir. 2000) (holding no hostile environment where co- worker told plaintiff that other employees had used racial epithets and that ‘through the *44 grapevine’ or ‘second-hand’ conduct is not sufficiently severe or pervasive); Billington, 12 F. Supp. 2d at 12.
Although Bergbauer cites this Court’s prior Memorandum Opinion in support of her claim, she misconstrues the decision. It is true that the Court stated, that “[Bergbauer] paints a picture of hostile supervisors isolating her from coworkers and, ultimately, causing her to receive a pay reduction by means of warrantless reprimand letters and retaliatory performance reviews.” However, this sentence was housed between two sentences which made clear that (1) the Court was examining Bergbauer’s claims in the context of a motion to dismiss; and (2) the Court was reciting only what Bergbauer had alleged , not its own conclusions. See Mem. Op. 12–13 (“Bergbauer has said enough . . . to survive a motion to dismiss. . . . Whether this pattern of conduct is as severe and pervasive as she makes it out to be will be determined through discovery.”). With discovery now complete, the Court holds that the conduct is not severe or pervasive to make out an actionable hostile work environment claim.
Finally, Bergbauer argues that that whether conduct was sufficiently severe or pervasive
is a question for the jury. Pl.’s Mem. P. & A. 40. While she cites two cases to support this
assertion,
Armstrong v. Reno
,
IV. CONCLUSION
For the reasons above, the Court will GRANT Navy’s motion for summary judgment. Although Bergbauer sufficiently exhausted her hostile work environment claim based on sexual harassment, she cannot show that the harassment was sufficiently severe or pervasive to rise to the level of a hostile work environment. Similarly, Bergbauer has not shown conduct sufficiently severe or pervasive, or with the required causal nexus, to make out a claim of retaliatory hostile work environment.
A separate Order consistent with this Memorandum Opinion shall issue this date. Signed by Royce C. Lamberth, Chief Judge, on March 27, 2013.
Notes
[1] The Court dismissed all counts against Goddard and all but one against Navy. Bergbauer’s Human Rights Act
claims were dismissed as preempted. Mem. Op. at 9–10 (quoting
Brown v. Gen. Servs. Admin.
,
[2] Throughout the Opposition, Bergbauer improperly cites to her Amended Complaint, rather than the record, to
support her allegations. “Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own
affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’”
Celotex Corp. v. Catrett
,
[3] Bergbauer now states that “[a]t least three men routinely sexually harassed” her at work. Pl.’s Mem. P. & A. in Support of Pl.’s Opp’n 1 [hereinafter Pl.’s Mem. P. & A.]. However, she never provides additional detail about the third man and so the Court will not consider that allegation further.
[4] Bergbauer testified that, at some point around this time, Deskins was overheard by a witness willing to testify as
saying that “what was being done to the Admiral was wrong, and [Bergbauer] needs to pay for this.” Pl.’s Opp’n,
Ex. D at 13. However, the Court will not consider this evidence for purposes of summary judgment. Although a
nonmoving party need not produce evidence “in a form that would be admissible at trial in order to avoid summary
judgment,”
Celotex Corp. v. Catrett
, 477 U.S. 317, 325 (1986), the evidence must be “reducible to admissible
evidence,”
Catrett v. Johns-Manville Sales Corp.
,
[6] Although Navy states that Deskins asked that Bergbauer be arrested, it is unclear whether this actually occurred or when it may have happened. The exhibit to which Navy points in support states only that he asked that she be fired and escorted from the building, not that she be arrested. A separate statement by Bergbauer suggests that Deskins asked that she be arrested, though the statement is hearsay within hearsay and was not corroborated by the party who allegedly provided the information to Bergbauer. See Pl.’s Opp’n, Ex. D, at 105–08. It also appears that the incident may have occurred in late June 2008, before Deskins became Bergbauer’s supervisor. For purposes of this motion, the Court will assume that Deskins asked that she be arrested since both parties have agreed to this version of the facts.
[7] The performance review Navy attaches as an exhibit to its Motion is not signed by Deskins and nowhere lists his name. Because both parties have stipulated that Deskins wrote the review and determined Bergbauer’s rating, the Court will assume the review was written by Deskins. Def.’s MSJ, Ex. 10.
[8] It is unclear whether Bergbauer timely filed this action but Navy has waived any defense based on this point. By
statute, Bergbauer was required to file her civil action within ninety days of receipt of the right to sue letter.
See
42
U.S.C. § 2000e-5(f)(1). However, the D.C. Circuit has also held that “Title VII complainants must wait 180 days
after filing charges with the EEOC before they may sue in federal court.”
Martini v. Fed. Nat. Mortg. Ass'n
, 178
F.3d 1336, 1347 (D.C. Cir. 1999).
Martini
did not address how this 180-day waiting period would interact with the
90-day time limit for filing suit when plaintiff’s immediately receive a right to sue letter. Regardless, the 90-day
time limit is not jurisdictional and is subject to waiver.
See Zipes v. Trans World Airlines, Inc.
,
[9] Although the Supreme Court has not explicitly held that federal employees may bring retaliation claims under Title
VII, its precedent suggests that it would.
Compare Gomez-Perez v. Potter
,
[10] Other circuits have discussed this distinction.
See Noviello v. City of Boston
, 398 F.3d 76, 87 (1st Cir. 2005)
(“Even when retaliation is derivative of a particular act of harassment, it normally does not stem from the same
animus. Most often, retaliation is a distinct and independent act of discrimination . . . .”);
Morris v. Oldham Cnty.
Fiscal Court
, 201 F.3d 784 790–91 (2000) (excluding retaliatory conduct from a sexual harassment hostile work
environment analysis because the plaintiff did not claim that the supervisor retaliated “because of sex” and thus, the
retaliatory harassing conduct, “which was in no way sexual, is not actionable as sexual harassment under Title VII”);
cf. Noviello,
[11] Morgan dealt with the 180-day statutory deadline for filing an EEOC charge and not the 45-day regulatory requirement for contact with an EEO counselor.536 U.S. at 104 . Nevertheless, courts have applied Morgan to the 45-day regulatory time limit. See , e.g. , Greer v. Paulson , 505 F.3d 1306, 1313 (D.C. Cir. 2007) (implicitly suggesting that the Morgan standard applies to the 45-day period); Lyons v. England ,307 F.3d 1092 , 1106 n.6 (9th Cir. 2002) (“Although the circumstances in which [the 45-day limit] may be equitably tolled are no doubt broader than the tolling opportunities under [42 U.S.C. § 2000e–5(e)], . . . the mandatory nature of the federal regulation is sufficient to warrant full application of the Morgan rule.”).
[12] Although the existence of respondeat superior has been framed as part of the plaintiff’s case, at least in the context
of harassment by a supervisor it is an affirmative defense which must be raised initially in the employer’s answer
and for which the employer has the burden of proof.
See Jones v. Dist. of Columbia Dept. of Corr.
,
[13] Courts generally apply the McDonnell Douglas burden-shifting framework to analyze traditional Title VII disparate treatment claims and retaliation claims. See Taylor v. Solis , 571 F.3d 1313, 1320 (D.C. Cir. 2009); Holbrook v. Reno , 196 F.3d 255, 263 (D.C. Cir. 1999) (“Claims of retaliation are governed by the McDonnell Douglas burden-shifting framework.”). This framework requires that the plaintiff first establish a prima facie case of discrimination by a preponderance of the evidence; second the employer must present a legitimate, nondiscriminatory reason for its actions; and third, the plaintiff must establish that the employer’s nondiscriminatory reason is a pretext to mask unlawful discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802–04 (1973); see also Texas Dep’t of Cmty. Affairs v. Burdine ,450 U.S. 248 , 252–53 (1981); St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 506 (1993). The burden of persuasion is always with the plaintiff; only the burden of production shifts. Reeves v. Sanderson Plumbing Prods., Inc. ,530 U.S. 133 , 153 (2000). Although the D.C. Circuit appears to have, on occasion, endorsed application of the McDonnell Douglas framework to hostile work environment claims, see Duren v. Wash. Metro. Area Transit Auth. ,2004 WL 2857273 , *1 (D.C. Cir. 2004) (per curiam); Stewart v. Evans ,275 F.3d 1126 , 1134 (D.C. Cir. 2002)), Judge Urbina has pointed to authority suggesting that the framework does not apply to hostile work environment claims. See Baloch v. Norton ,355 F. Supp. 2d 246 , 259 (D.D.C. 2005) (citing cases suggesting that, on a motion for summary judgment of a hostile work environment claim, courts simply assess the totality of the circumstances). This Court’s review of cases in our circuit likewise suggests that the McDonnell Douglas framework does not apply to hostile work environment claims. See, e.g. , Baloch v. Kempthorne ,550 F.3d 1191 , 1201 (D.C. Cir. 2008) (applying McDonnell Douglas standard to substantive Title VII claim but totality of the circumstances standard to hostile work environment claim); Akonji v. Unity Healthcare, Inc. , 517 F. Supp. 2d 83, 97 (D.D.C. 2007) (applying McDonnell Douglas framework to disparate treatment and retaliation claims but not to hostile work environment claim). Given the foregoing, this Court will not engage in a McDonnell Douglas type analysis but will instead evaluate whether Bergbauer has made out hostile work environment claims based on the totality of the circumstances.
[14] District courts may reconsider interlocutory decisions “at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Fed. R. Civ. P. 54(b). A party need not move for reconsideration.
[15] Two interactions between Towner and Bergbauer occurred beyond the 45-day time period but Navy does not dispute that these would be part of the same employment practice.
[16] She bases her assertion on Towner’s statement that he was going to bring a “special kind of liquor” to a tailgate for her, which she interpreted to be a reference to the tequila she drank with Goddard in San Diego. However, Towner stated that he was referring to White Russians because he had seen Bergbauer drinking them at an office Christmas Party. Pl.’s Opp’n, Ex. O, encl. 16. Thus, there is insufficient evidence, even making all “justifiable inferences” in favor of plaintiff, to infer that Towner and Goddard knew of one another’s conduct, much less that they acted in concert.
[17] Although the Court has not given notice of its intention to grant summary judgment on this ground, there is no prejudice to Bergbauer because this is a key element of her case and she is aware that she must show harassment sufficiently severe or pervasive as to affect her employment.
[18]
See Faragher
,
[19]
Compare, e.g.
,
Quantock v. Shared Mktg. Servs.
, 312 F.3d 899, 904 (7th Cir. 2002) (during one encounter,
company president requested sex three times from plaintiff with whom he worked in close quarters, thus reasonable
jury could find conduct sufficiently severe),
Worth v. Tyer
,
[20] See Akonji v. Unity Healthcare, Inc. , 517 F. Supp. 2d 83, 97–99 (D.D.C. 2007) (acts of sexual harassment by supervisor, including touching plaintiff’s buttocks and thigh, trying to kiss her, calling her beautiful, and asking her to accompany him on weekend trip, “although by no means ideal workplace conduct, [were] not ‘sufficiently severe or pervasive to alter the conditions of [Akonji's] employment and create an abusive working environment.’”
[24]
See Meritor Sav. Bank, FSB v. Vinson
,
[25] The Tenth Circuit may likewise apply the more lenient material adversity standard to retaliatory hostile work
environment claims, though this is unclear.
See Allstate Sweeping, LLC v. Black
,
[26] It is unclear if Bergbauer considers her shift to a GS-14, rather than a GS-15, pay level to be a retaliatory act. As the Court reads the record, this shift was the result of the transition of Naval civilian employees to the General Schedule pay system. Bergbauer’s salary remained the same when this shift occurred, Def.’s MSJ, Ex. 1, at 3, and it is possible that her assignment to GS-14 was in fact based on the amount of her salary at the time. In any case, Bergbauer has not provided any evidence, beyond speculation by herself and Sam Samimi, to suggest that this action either reduced her pay or was retaliatory.
[27] The Court is aware of the D.C. Circuit’s statement that it “find[s] no authority for the idea that particular acts
cannot as a matter of law simultaneously support different types of Title VII claims . . . ,”
Baird
,
[28] Assuming the individuals comprising “senior leadership” knew of Bergbauer’s protected activity, perhaps a court
could find temporal proximity based on the ongoing litigation that began in June 2009. However, this would subject
employers to continuous risk of retaliation suits once litigation commences. Moreover, the D.C. Circuit does not
appear to require such an expansive temporal proximity standard.
See Taylor v. Solis
,
[29] Sam Samimi’s testimony on this point differs slightly, but may ultimately be consistent. In response to a question about when IT and security were taken from Bergbauer, Sam Samimi testified “It pretty much started when Mr. Deskins came into the position . . . that’s when it slowly started . . . and then they broke up the position.” Pl.’s Opp’n, Ex. N, at 51 (emphasis added). This testimony is not specific enough to suggest that the change in her responsibilities occurred earlier than the date reported by McKay.
[30] Although Bergbauer does not provide exact dates for the alleged retaliatory actions by Deskins, the actions largely track those she complained of in her September 2008 EEO complaint. See Def.’s MSJ, Ex. 9. Thus, the actions had to have occurred between July 2008 when Deskins became her supervisor and learned of her protected activity and September 2008. This is sufficient to show a temporal connection.
[31] Moreover, Goddard had been relieved of his position at the time he made this announcement and was not acting in a supervisory capacity, thus, vicarious liability would depend on whether Navy knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action. Given that this was a one-time comment and that Navy promptly investigated Goddard’s comment, Pl.’s Opp’n, Ex. Q, it appears unlikely that Navy could be held liable based on this comment.
[32]
See Brooks v. Grundmann
,