Hammel v. Marsh USA Inc.

• Court: District Court, District of Columbia
• Decided: September 6, 2016
• Docket: Civil Action No. 2014-0943
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARNIE HAMMEL, Plaintiff,

v. Civil Action No. 14-943 (CKK) MARSH USA INC. and MARSH & MCLENNAN COMPANIES, INC. Defendants.

MEMORANDUM OPINION (September 6, 2016)

Plaintiff Marnie Hammel filed suit against Marsh USA Inc. (“Marsh”) and Marsh &

McLennan Companies, Inc. (“MMC”), alleging violations of the District of Columbia Human

Rights Act (“DCHRA”), D.C. Code Ann. §§ 2-1401.01 et seq., Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Pregnancy Discrimination Act 1, arising

out of Plaintiff’s employment as a FINPRO Claims Advocate in Washington, D.C. Plaintiff

alleges that her former employer, Defendant Marsh, discriminated against her on the basis of her

sex, sexual orientation, marital status, parental status, and pregnancy, and retaliated against her for

reporting harassment. Presently before the Court is Defendants’ [37] Motion for Summary

Judgment. Upon consideration of the pleadings,2 the relevant legal authorities, and the record as

1 The Pregnancy Discrimination Act was incorporated into Title VII in 1978.

2 The Court’s consideration has focused on the following documents and their attachments and/or exhibits: Defs.’ Motion for Summary Judgment, ECF No. [37]; Pl.’s Opposition to Defs.’ Motion for Summary Judgment, ECF No. [42]; Defs.’ Reply in Support of Motion for Summary Judgment, ECF No. [45]; Pl.’s Errata to Pl.’s Opp’n, ECF No. [46].

1 a whole, the Court shall GRANT-IN-PART and DENY-IN-PART Defendants’ [37] Motion for

Summary Judgment.

I. BACKGROUND

A. Factual Background 3

Plaintiff Marnie Hammel, an attorney licensed to practice law in Pennsylvania and the

District of Columbia, worked for Marsh 4 for approximately five years, from May 2007 to July

2012. See Defs.’ Stmt. ¶¶ 22, 111. For the entirety of her employment with Marsh, Plaintiff

worked as a Claims Advocate in Marsh’s Financial Products and Liability Practice (“FINPRO”)

group, which “advises client[s] on financial and professional exposures or management liability

exposures.” See id. ¶¶ 3, 19, 80, 111; see also Pl.’s Opp’n, ECF No. [42], at 2-3. Marsh’s

Claims Advocacy Practice is a division of FINPRO that analyzes a client’s exposures, assists

clients in policy drafting, interacts with insurance carriers on behalf of clients involved in

litigation, obtains insurance coverage and payments for clients, and consults with clients on

issues that arise in the course of a complex claim negotiation and/or settlement. See Defs.’ Stmt.

¶ 6; Pl.’s Resp. Stmt. ¶ 6. The Claims Advocacy Practice is a national practice, with employees

located in certain Marsh offices across the United States from New York to San Francisco,

which, during the time relevant to the claims in this suit, comprised approximately 12-14 full-

time employees. See Defs.’ Stmt. ¶ 7; Pl.’s Resp. Stmt. ¶ 7.

3The Court shall refer to Defendants’ Statement of Material Facts (“Defs.’ Stmt.”), ECF No. [57- 1], or directly to the record, unless a statement is contradicted by Plaintiff, in which case the Court may cite to Plaintiff’s Response to the Defendant's Statement of Material Facts (“Pl.’s Resp. Stmt.”), ECF No. [42–1].

4 Defendant Marsh USA Inc. (“Marsh”) is a wholly owned subsidiary of Marsh LLC, a Delaware limited liability company. See Defs.’ Stmt. ¶ 1. Marsh LLC is wholly owned by Defendant, Marsh & McLennan Companies, Inc. (“MMC”), a publicly traded company. Id. ¶ 2.

2 1. Plaintiff Works in Marsh’s Chicago Office from 2007 to 2009

In early 2007, Plaintiff interviewed with several Marsh Managing Directors 5 in Chicago

and New York, including: Andrea Lieberman, at the time, the only FINPRO Claims Advocate in

Chicago, David Nikolai, the Chicago FINPRO Practice Leader, and Lou Ann Layton, the head of

the national FINPRO Practice. See Defs.’ Stmt. ¶ 12. Plaintiff was subsequently offered a

position in the Claims Advocacy Practice in Marsh’s Chicago office as a Vice President (“VP”).

Defs.’ Stmt. ¶¶ 14, 19. On April 4, 2007, Plaintiff signed a written job offer from Marsh for a

Claims Advocate position, reporting to Ms. Lieberman. Id. ¶ 19. The offer letter specified that

Ms. Hammel would have the officer title of VP and confirmed her annual base salary of

$125,000, which was the amount that Ms. Hammel had negotiated with Marsh as part of the

interview process. Id. ¶¶ 14, 19; see also Pl.’s Offer Letter, Defs.’ Ex. 11, ECF No. [37-3]. The

offer letter also indicated that her compensation would be “considered for adjustment in

succeeding years as part of our normal performance appraisal process.” Pl.’s Offer Letter, Defs.’

Ex. 11, ECF No. [37-3].

Ms. Hammel worked in Marsh’s Chicago Office reporting to Managing Director Andrea

Lieberman from May 14, 2007 until March 30, 2009, when she officially transferred to Marsh’s

Washington, D.C. office. See Defs.’ Stmt. ¶ 22; Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3],

at 39:3-15. 6 During that time, Ms. Lieberman was a direct, outspoken, and demanding boss. See

5In the Marsh hierarchy, Managing Director is a senior position above Vice President and Senior Vice President. See Layton Dep. Tr., Defs.’ Ex. 5, ECF No. [37-3], at 26:4-5, Wallace Dep. Tr., Defs.’ Ex. 14, ECF No. [37-3], at 20:2-4.

6Defendants argue that certain statements relied upon by Plaintiff in Opposition to Defendants’ motion are hearsay. The Court has reviewed the statements and concludes that they are not hearsay. They are either statements of Plaintiff herself or constitute party admissions on behalf of Defendants. See Fed. R. Evid. 801.

3 Defs.’ Stmt. ¶ 23; Pl.’s Resp. Stmt. ¶ 23; Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at

62:22-67:21, 152:8-12. Plaintiff alleges, however, that Ms. Lieberman demanded more of

Plaintiff in particular and that Ms. Lieberman was respectful and caring towards her other

subordinates, but frequently disparaging of Ms. Hammel in public and in humiliating ways. See

Pl.’s Resp. Stmt. ¶ 23; Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 63:13-64:13. 7

Plaintiff cites several incidents in July 2007 and November 2007 where Ms. Lieberman

allegedly demanded that Ms. Hammel “suck it up and come into work” on days when Ms.

Hammel had been sick with various illnesses, including a foot infection and bronchitis. See

Hammel Diary (Nov. 12, 2007), Defs.’ Ex. 4B, ECF No. [37-3]. Plaintiff alleges that throughout

her illnesses, Ms. Lieberman would call her multiple times a day, leaving voice mails and

scheduling Ms. Hammel for client meetings and calls when she knew Ms. Hammel was too ill to

work. See Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 58:3-18. After these incidents,

Plaintiff informed David Nikolai, the Chicago FINPRO Practice Leader, who allegedly said that

Ms. Lieberman was a Managing Director and that there was nothing he could do. Id. at 58:19-

59:1. Upon learning that Plaintiff had brought the matter to Mr. Nikolai’s attention, Ms.

Lieberman allegedly called Plaintiff into her office, looked Plaintiff in the eye, and said that

Plaintiff had “some fucking nerve complaining about a managing director in this company,” and

that she put her hands on her desk, stood up, and yelled, “I’m your manager and I can be a bitch

if I want to.” See Pl.’s Resp. Stmt. ¶¶ 25, 27; see also Hammel Dep. Tr., Defs.’ Ex. 4, ECF No.

[37-3], at 82:20-83:13.

7 During the time in question, Ms. Lieberman supervised Ms. Hammel, as well as two other females in the office: Mary Meinart, who was a paralegal at the Vice President level, and Nicole Sapienza, who was a secretary. See Defs.’ Stmt. ¶ 24; Pl.’s Resp. Stmt. ¶ 24. 4 In addition, Plaintiff alleges that Ms. Lieberman told Ms. Hammel, in front of other

colleagues, that she was all “smoke and mirrors,” that Ms. Lieberman was “surprised at how

little” Ms. Hammel knew, and that it was Ms. Lieberman’s “job to put [Ms. Hammel] in her

place” and “cut her down to size.” Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 79:15-

80:05. Plaintiff also alleges that Ms. Lieberman expressed disbelief that Ms. Hammel had any

friends and that Ms. Lieberman chastised co-workers for befriending Ms. Hammel. Id. at 61:04-

22, 69:19-70:08. Plaintiff also alleges that throughout her time working under Ms. Lieberman,

Ms. Lieberman heavily scrutinized her work travel and required her to report to the office

unnecessarily before work trips. Id. at 59:8-61:3. Plaintiff contends that Ms. Lieberman did not

raise her voice, use foul language, or impose comparable expectations regarding leave and travel

with respect to other employees. See id. at 67:22-68:14; see also Hammel Decl., Pl.’s Ex. 2,

ECF No. [42-2].

Plaintiff alleges that Ms. Lieberman specifically targeted Plaintiff because she is a lesbian

and alleges that she did not fit within Ms. Lieberman’s conception of a female subordinate

employee. Plaintiff alleges that Ms. Lieberman made disparaging comments and belittling facial

gestures when Ms. Hammel discussed her same-sex partner and that Ms. Lieberman made

comments regarding Ms. Hammel’s status as a gay woman. Id. at 69:07-18. On one occasion,

Ms. Lieberman allegedly referenced Ms. Hammel’s sexual orientation by asking if a friend who

was visiting in the office was gay, and when Ms. Hammel responded that the individual was not

gay, Ms. Lieberman allegedly responded, “no offense, but why would she be friends with you

[Ms. Hammel] then.” Id. at 69:19-70:08. Plaintiff also alleges that Ms. Lieberman routinely

made fun of Ms. Hammel’s style and manner of dress and made comments regarding Ms.

Hammel’s athleticism, allegedly stating in front of clients and co-workers, “that’s how you are,

5 people like you”—which Ms. Hammel interpreted as a reference to her status as a lesbian. Id. at

78:02-79:07. Plaintiff also alleges that upon her nomination for a “superstar of the month”

award, Ms. Lieberman asked Plaintiff whether the person who had nominated her for the award

was gay. Id. at 70:09-18.

Over the course of her time in Marsh’s Chicago office, Plaintiff repeatedly complained of

Ms. Lieberman’s conduct to human resources, managers, and colleagues. Defs.’ Stmt. ¶¶ 27, 39;

Pl.’s Resp. Stmt. ¶ 27, 39. For example, Paul Denny, who in January 2008 took over for Mr.

Nikolai as Chicago FINPRO Office Head, testified that Ms. Hammel came to him on at least ten

occasions in 2008 with complaints about Ms. Lieberman. Denny Dep. Tr., Defs.’ Ex. 13, ECF

No. [37-3], at 14:7-25. Plaintiff alleges that upon her complaints to management, Ms. Hammel’s

supervisors frequently advised her that they were aware of the circumstances and that Ms.

Hammel should “let it go.” Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 113:12-14.

On December 15, 2008, Ms. Lieberman met with Ms. Hammel, informed Ms. Hammel

that she was aware of Ms. Hammel’s allegations, and questioned Ms. Hammel as to “why she

would make false allegations of illegal conduct to Marsh N.Y.” Pl.’s Resp. Stmt. ¶ 25h;

Lieberman’s 12/15/08 notes, Pl.’s Ex. 12, ECF No. [42-9]; Lieberman Dep. Tr., Defs.’ Ex. 2,

ECF No. [37-3], at 124:18-126:13. Ms. Lieberman also contacted Human Resources and

expressed her concern that “there was an employee who made allegations that were so grossly

unsupportable by fact.” Lieberman Dep. Tr., Defs.’ Ex. 2, ECF No. [37-3], at 131:3-132:1; Pl.’s

Resp. Stmt. ¶ 25h.

In late 2008, Ms. Hammel requested a transfer from Chicago to Washington, D.C with

the hope of getting a fresh start in a different office. See Defs.’ Stmt. ¶ 43; Pl.’s Resp. Stmt. ¶ 43;

see also Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 12:4-10. Plaintiff alleges that Ms.

6 Lieberman, after learning that Ms. Hammel had requested a transfer to the Washington, D.C.

office, called Ms. Hammel into her office and told her that “no one’s job at this company is

safe,” that “a lot of people were being fired,” that Ms. Hammel should “wait and see” as to

whether she would keep her job, and that Ms. Hammel “had some nerve” requesting a transfer to

a different office. See Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 94:12-95:06.

Ultimately, Ms. Hammel’s transfer request was approved by several of FINPRO’s seniors

managers who believed that Ms. Hammel and Ms. Lieberman would both benefit from working

in separate offices. See Defs.’ Stmt. ¶ 43; Pl.’s Resp. Stmt. ¶ 43; Brew Dep. Tr., Defs.’ Ex. 6,

ECF No. [37-3], at 76:25-77:6; Layton Def. Tr., Defs.’ Ex. 5, ECF No. [37-3], at 44:24-45:04.

Plaintiff’s transfer to the Washington, D.C. became effective March 30, 2009. Defs.’ Stmt. ¶ 47.

During her two years in Marsh’s Chicago office, Plaintiff received one “merit raise”—a

salary increase from $125,000 to $128,500 in 2008—but did not receive an end-of-year bonus or

a promotion in either 2008 or 2009. See Defs.’ Stmt. ¶¶ 76-79; Pl.’s Resp. Stmt. ¶¶ 76-79.

Plaintiff, however, did receive $10,000 in 2009 to cover her moving expenses to Washington,

D.C. See Defs.’ Stmt. ¶ 79; Pl.’s Resp. Stmt. ¶ 79.

2. Plaintiff Works in Marsh’s Washington, D.C. Office from 2009 to 2012

Although Plaintiff would have a new supervisor in the Washington, D.C. office, Plaintiff

continued to work with Ms. Lieberman on projects during Plaintiff’s time in the Washington,

D.C. office. See Pl.’s Resp. Stmt. ¶¶ 25, 47; see also Hammel Emails, Pl.’s Exs. 15, 16, 17, ECF

Nos. [44-3], [44-4], [44-5]. Plaintiff alleges that Ms. Lieberman would frequently reach out to

Ms. Hammel for assistance on Chicago accounts and then would purposefully undermine Ms.

Hammel’s relationships with clients on those accounts. See Pl.’s Resp. Stmt. ¶ 47; Hammel Dep.

Tr., Defs.’ Ex. 4, ECF No. [37-3], at 119:11-124:4. Plaintiff also alleges that Ms. Lieberman

attempted to undermine her career prospects at Marsh and that Plaintiff’s new supervisors told 7 her that Ms. Lieberman and Mr. Nikolai “had basically poisoned the well” and that it was “not

good to have an enemy in Dave Nikolai.” Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at

105:04-106:09.

Plaintiff also alleges that Ms. Lieberman attempted to ruin Ms. Hammel’s wedding and

related leave in September 2010 when Ms. Lieberman insisted that Ms. Hammel keep working

on a Chicago account despite a request by the client’s Managing Director to transfer the files

back to Ms. Lieberman. See Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 157:03-164:03;

Mann Emails, Pl.’s Ex. 23, ECF No. [44-7]. A few weeks later, Ms. Hammel got married to her

fiancée and took leave to go on her honeymoon. See Hammel Dep. Tr., Defs.’ Ex. 4, ECF No.

[37-3], at 157:03-164:03. Upon her return, Ms. Hammel received a written discipline for

insubordination and refusing to perform work assigned to her. See Defs.’ Stmt. ¶ 67, Pl.’s Resp.

Stmt. ¶ 79. Following Ms. Hammel’s receipt of the written warning in November 2010, Ms.

Hammel contacted Human Resources to dispute the written warning and to complain of Ms.

Lieberman’s treatment of her. See Pl.’s Resp. Stmt. ¶ 25j. See also Hammel Emails, Pl.’s Exs.

15, 16, 17, ECF Nos. [44-3], [44-4], [44-5].

In February 2011, Ms. Hammel became pregnant with twins. See Defs.’ Stmt. ¶ 94; Pl.’s

Resp. Stmt. ¶ 94. On April 25, 2011, Ms. Hammel notified Human Resources that she was

pregnant. Defs.’ Stmt. ¶ 93. During Ms. Hammel’s pregnancy, Marsh approved each of the

accommodations requested by Ms. Hammel, including working from home certain days during

her pregnancy and granting her request for 21 weeks of maternity leave. (October 10, 2011 –

February 27, 2012). See Defs.’ Stmt. ¶ 94; Pl.’s Resp. Stmt. ¶ 94.

While Ms. Hammel was on maternity leave, her supervisor, Damien Brew, lowered Ms.

Hammel’s prior performance rating of 4 to a rating of 3, or “Meets Expectations.” See Pl.’s

8 Resp. Stmt. ¶ 94; Hammel 2011 Performance Review, Pl.’s Ex. 25, ECF No. [44-8]. On January

13, 2012, while Ms. Hammel was still on maternity leave, she received an email from Ms.

Lieberman informing Ms. Hammel that “many people do work from home when they are out on

maternity leave” and that she expected the same from Ms. Hammel. Lieberman Emails, Pl.’s Ex.

26, ECF No. [42-17]. Ms. Hammel contacted Mr. Brew and Human Resources regarding the

email, and Mr. Brew clarified that Ms. Hammel was not required to work while on maternity

leave. Brew Emails, Def.’s Ex. 34, ECF No. [37-5]. Mr. Brew and another executive, Paul

Denny, were frustrated with Ms. Lieberman’s behavior and agreed that Ms. Lieberman and Ms.

Hammel should be separated. See Pl.’s Resp. Stmt. ¶ 97, Brew Emails, Def.’s Ex. 34, ECF No.

[37-5]. In an email from Mr. Brew to Mr. Denny, Mr. Denny commented, “[i]t is Ms.

Lieberman’s] one real weakness – Marnie. I have coached her, I have tried lecturing to her and

nothing gets through. I know it’s ridiculous but Andrea and Marnie should be kept apart as

nothing good comes from them interacting with each other.” Brew Emails, Def.’s Ex. 34, ECF

No. [37-5].

In late February 2012, Ms. Hammel returned from maternity leave. Mr. Brew informed

her that she had not received a promotion, and that she would not receive a raise or a bonus.

Hammel Decl., Pl.’s Ex. 2, ECF No. [42-2], at ¶ 14. Later that spring, Mr. Brew and another

executive, Ms. Layton, denied a request by Ms. Hammel to relocate to Tampa, Florida, stating

that she would be “out of the loop” if she insisted on moving to Tampa because there was no

FINPRO practice in Tampa. Defs.’ Stmt. ¶ 104. In June 2012, Ms. Hammel announced that she

was going to resign, and on July 11, 2012, Ms. Hammel worked her last day for Marsh. Defs.’

Stmt. ¶¶ 104-11; Pl.’s Stmt. ¶¶ 104-11.

9 During Ms. Hammel’s three years in Marsh’s Washington, D.C. office, Ms. Hammel did

not receive a promotion, a raise, or a bonus. See Hammel Compensation History Report, Pl.’s

Ex. 33, ECF No. [44-12]; see also Hammel Decl., Pl.’s Ex. 2, ECF No. [42-2], at ¶¶ 11-14; Pl.’s

Stmt. ¶¶ 106.

B. Procedural History

Six days after her resignation, on July 17, 2012, Ms. Hammel filed Charges of

Discrimination with both the U.S. Equal Employment Opportunity Commission (“EEOC”) and

the District of Columbia Office of Human Rights (“DCOHR”), alleging that she was constructively

discharged on June 26, 2012, and asserting discrimination on the basis of her sex, age,8 sexual

orientation, maternity, and retaliation. Def.’s Stmt. ¶ 112. Ms. Hammel filed suit on April 25,

2014, in the Superior Court for the District of Columbia, alleging twenty claims: 13 claims under

the DCHRA, 5 claims under Title VII, and 2 claims under the Pregnancy Discrimination Act. See

generally Compl., ECF No. [1-1]. Defendants removed the case to the United States District Court

for the District of Columbia on June 6, 2014.

On February 10, 2015, the Court issued a Memorandum Opinion and Order dismissing

Plaintiff’s Title VII claims against Defendant MMC for failure to exhaust administrative remedies

and dismissing Plaintiff’s constructive discharge claims to the extent that they are asserted as

independent bases for liability. See Mem. Opinion and Order (Feb. 10, 2015), ECF Nos. [13],

[14]. Accordingly, the following 18 claims are currently before the Court:

8 Ms. Hammel does not allege age discrimination in this suit.

10 (1) Sex Discrimination – Hostile Working Environment and Harassment – DCHRA; (2) Sex Discrimination – Disparate Treatment in Pay and Promotions – DCHRA; (3) Sexual Orientation Discrimination – Hostile Working Environment and Harassment – DCHRA; (4) Sexual Orientation – Disparate Treatment in Pay and Promotions – DCHRA; (5) Retaliation – Hostile Working Environment and Harassment – DCHRA; (6) Retaliation – Disparate Treatment in Pay and Promotions – DCHRA; (7) Pregnancy Discrimination – Hostile Working Environment and Harassment – DCHRA; (8) Pregnancy Discrimination – Disparate Treatment in Pay and Promotions – DCHRA; (9) Parental Status - Hostile Working Environment and Harassment – DCHRA; (10) Parental Status - Disparate Treatment in Pay and Promotions – DCHRA; (11) Marital Status - Hostile Working Environment and Harassment – DCHRA; (12) Marital Status – Disparate Treatment in Pay and Promotions – DCHRA; (13) Sex Discrimination – Hostile Working Environment and Harassment – Title VII; (14) Sex Discrimination – Disparate Treatment in Pay and Promotions – Title VII; (15) Retaliation – Hostile Working Environment and Harassment – Title VII; (16) Retaliation – Disparate Treatment in Pay and Promotions – Title VII; (17) Pregnancy – Hostile Working Environment and Harassment – Pregnancy Discrimination Act; and (18) Pregnancy – Disparate Treatment in Pay and Promotions – Pregnancy Discrimination Act.

See id.; see also Compl., ECF No. [1-1].

On December 4, 2015, Defendants filed a Motion for Summary Judgment on all 18

remaining claims. See Defs.’ Motion, ECF No. [37]. Plaintiff opposes Defendants’ motion. See

Pl.’s Opp’n, ECF No. [42]. The motion is now fully briefed and ripe for resolution.

II. LEGAL STANDARD

Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

11 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See

Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir.

2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly

address another party's assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in her favor.

Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“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.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

12 Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

In recognition of the difficulty in uncovering clear evidence of discriminatory or

retaliatory intent, the district court should approach summary judgment in an action for

employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116

F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)

(en banc). Be that as it may, the plaintiff is not relieved of her burden to support her allegations

with competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any

context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, then at

the summary judgment stage she bears the burden of production to designate specific facts

showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557

(2009). Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary

judgment device—namely, “to weed out those cases insufficiently meritorious to warrant . . .

trial”—simply by way of offering conclusory allegations, speculation, and argument. Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

III. DISCUSSION

Based on the Court’s prior order in this case, Plaintiff now alleges 18 claims of

discrimination and/or retaliation under the District of Columbia Human Rights Act (“DCHRA”)

and Title VII of the Civil Rights Act, as amended (“Title VII”). These 18 claims may properly be

considered to fall in three categories: (1) claims alleging disparate treatment in pay, (2) claims

alleging illegal failures to promote / denials of promotions, and (3) claims alleging a hostile work

13 environment. The court shall first address the parties’ arguments concerning whether or not

Plaintiff’s claims are barred by the applicable statutes of limitations.

A. Statute of Limitations

Defendants contend that (1) Plaintiff’s DCHRA claims pre-dating July 17, 2011—one year

prior to the filing of Ms. Hammel’s Charge of Discrimination on July 17, 2012—are time barred

under the DCHRA and that (2) Plaintiff’s Title VII claims pre-dating September 20, 2011—300

days prior to the filing of Ms. Hammel’s Charge of Discrimination on July 17, 2012—are time

barred under Title VII. See Defs.’ Mem., ECF No. [37-1], at 14 (citing D.C. Code § 2-1403.16(a);

Boulton v. Inst. of Int’l Educ., 808 A.2d 499, 503 (D.C. 2002); 42 U.S.C. § 2000e–5(e)(1); Dyson

v. D.C., 710 F.3d 415, 418 (D.C. Cir. 2013)).

In response, Plaintiff contends that her claims are not barred by the applicable statutes of

limitations because she has stated a continuing violation from 2007 until the date of her alleged

discharge in 2012. See Pl.’s Opp’n, ECF No. [42], at 17-18. Plaintiff also contends that

Defendants have untimely raised the statute of limitations arguments, and that they waived their

rights to raise a timeliness argument because they failed to do so in their 12(b)(6) motion. See

Pl.’s Opp’n, ECF No. [42], at 17-18.

As a preliminary matter, Plaintiff’s argument regarding waiver is unavailing and contrary

to the applicable Rules of Civil Procedure and controlling case law. First, Plaintiff’s reliance on

Federal Rule of Civil Procedure 12(g)(2) is misplaced—Rule 12(g)(2) is valid with respect to

multiple motions under Rule 12, not Rule 56. See Fed. R. Civ. Pro. 12(g)(2); see also Executive

Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 734 (D.C. 2000). Furthermore, even

if Rule 12(g)(2) were applicable to the instant case, Defendants would not have waived their right

to raise a statute of limitations defense because they have raised this defense in their Answer filed

14 with the Court on March 2, 2015, ECF No. [15], at 50. See Kim v. United States, 707 F.3d 335,

336 (D.C. Cir. 2013). Accordingly, the Court finds that Defendant have not waived their rights to

raise a statute of limitations defense as to Plaintiff’s claims.

The Court shall now address the validity of the parties’ arguments with respect to the

applicable statute of limitations regarding each of Plaintiff’s claims.

i. Disparate Pay Claims brought under Title VII (Claims 15, 17, and and 20) 9

Pursuant to Title VII, “in a case of an unlawful employment practice with respect to which

the person aggrieved has initially instituted proceedings with a State or local agency with authority

to grant or seek relief from such practice . . . such charge shall be filed by or on behalf of the person

aggrieved within three hundred days after the alleged unlawful employment practice occurred [.]”

42 U.S.C. § 2000e–5(e)(1) (emphasis added). However, the applicable statute of limitations period

for claims alleging “discrimination in compensation” under Title VII is determined specifically by

42 U.S.C. § 2000e–5(e), as amended by the Lilly Ledbetter Fair Pay Act of 2009,10 which provides

that:

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(B) . . . “[L]iability may accrue, and an aggrieved person may obtain relief . . . including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the

9 Plaintiff has brought Claim 20 pursuant to the Pregnancy Discrimination Act, which was incorporated into Title VII in 1978.

10See Lilly Ledbetter Fair Pay Act of 2009 (“Fair Pay Act”), Pub.L. No. 111–2, 123 Stat. 5 (Jan. 29, 2009).

15 charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

Id. § 3 (emphasis added). In other words, “each paycheck resulting from the original

‘discriminatory compensation decision or other practice’ triggers a new filing period, in effect

reviving a claim that otherwise would have been time-barred because of a failure to exhaust

administrative remedies within 180 days of the original discriminatory compensation decision or

practice.” Johnson v. D.C., 632 F. Supp. 2d 20, 21 (D.D.C. 2009); see also Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010) (discussing purpose of Lilly

Ledbetter Fair Pay Act of 2009 and the law’s effects on the analysis of the statute of limitations

under Title VII).

Here, the record evidence demonstrates that Plaintiff was continuously employed by Marsh

between 2007 and 2012. Accordingly, Plaintiff’s disparate pay claims under Title VII—which

concern “unlawful employment practices” allegedly occurring between 2007 and 2012—would

not be barred pursuant to 42 U.S.C. § 2000e–5(e)(3) because Plaintiff’s statute-of-limitations clock

effectively resets each time she received a paycheck from Marsh. See 42 U.S.C. § 2000e–5(e)(3);

Johnson, 632 F. Supp. 2d at 21. Accordingly, the Court finds that the disparate pay claims brought

by Plaintiff pursuant to Title VII—Claims 15, 17, and 20—are not barred by the applicable statute

of limitations set forth in U.S.C. § 2000e–5(e)(3). See id.

The Court notes in particular that Claim 17, which is described in the Complaint as a

“retaliation claim,” is not barred under 42 U.S.C. § 2000e–5(e). Section 2000e–5(e), which, on its

face, applies to “discrimination in compensation,” was amended by the Ledbetter Fair Pay Act of

2009 in response to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.,

550 U.S. 618, 632 (2007). In Ledbetter, the plaintiff’s claims of sex discrimination “turned

16 principally on the misconduct of a single Goodyear supervisor, who, [the plaintiff] testified,

retaliated against her when she rejected his sexual advances during the early 1980’s, and did so

again in the mid–1990’s when he falsified deficiency reports about her work.” 550 U.S. at 632 n.4

(emphasis added). Likewise, in this case, Plaintiff has alleged that Defendants have retaliated

against her on the basis of sex, claiming that they denied her meritorious bonuses and raises in

reprisal for reporting acts that she believed to constitute sexual harassment and discrimination.

Accordingly, the Court finds that the Ledbetter Fair Pay Act of 2009, which was expressly passed

to overturn the outcome in Ledbetter, is intended to cover the unique circumstances of this case,

where Plaintiff has alleged a retaliatory disparate pay claim under Title VII and her claim is based

on actions allegedly taken in response to the reporting of discrimination on the basis of sex. See

id.

ii. Disparate Pay Claims brought under DCHRA (Claims 2, 4, 6, 8, 10, and 12)

Pursuant to the DCHRA, “[a]ny complaint [under the DCHRA] shall be filed . . . within 1

year of the occurrence of the unlawful discriminatory practice, or the discovery thereof [.]” D.C.

Code § 2-1403.03. Unlike Title VII, the DCHRA contains no provision that specifically provides

for the triggering of new filing periods with each paycheck for the purpose of bringing a

discriminatory pay claim. See id. As such, the Court must examine whether Plaintiffs’ disparate

pay claims—to the extent that they rely on events allegedly occurring before July 17, 2011, one

year prior to the filing of Ms. Hammel’s Charge of Discrimination on July 17, 2012—can be

brought pursuant to the DCHRA under the alternative theory of “continuing violations.” See Pl.’s

Opp’n, ECF No. [42], at 17-18.

“[A] ‘continuing violation’ is one that could not reasonably have been expected to be made

the subject of a lawsuit when it first occurred because its character as a violation did not become

17 clear until it was repeated during the limitations period, typically because it is only its cumulative

impact (as in the case of a hostile work environment) that reveals its illegality.” Keohane v. United

States, 669 F.3d 325, 329 (D.C. Cir. 2012) (quoting Taylor v. F.D.I.C., 132 F.3d 753, 765 (D.C.

Cir. 1997)). As relevant to this case, the District of Columbia Court of Appeals (the “D.C. Court

of Appeals”) had held that disparate pay claims do not constitute “continuing violations” for the

purposes of determining whether these claims are barred by the applicable one-year statute of

limitations under the DCHRA. See Zuurbier v. MedStar Health, Inc., 895 A.2d 905, 913 (D.C.

2006). In that case, the D.C. Court of Appeals relied on the Supreme Court’s decision in Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), in which the Supreme Court expressly

limited the applicability of the “continuing violation” theory to restore claims that would otherwise

be untimely under the applicable statute of limitations. See Zuurbier, 895 A.2d at 912-13; Morgan,

536 U.S. at 113-14.

The Court further notes that in the pre-Ledbetter, Title VII context, the United States Court

of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) expressly held that disparate

pay claims not filed within the applicable statute of limitations cannot be saved under a “continuing

violation” theory because disparate pay claims involve “separate acts of discrimination.” Shea v.

Rice, 409 F.3d 448, 451 (D.C. Cir. 2005). The Court also notes that two years later, in Ledbetter,

the Supreme Court similarly rejected an argument that disparate pay claims not filed within the

applicable statute of limitations can be saved under a “continuing violation” theory. Ledbetter v.

Goodyear Tire & Rubber Co., 550 U.S. 618, 621-32 (2007). Those decisions are no longer

applicable to disparate pay claims in the Title VII context because the United States Congress has

amended Title VII to expressly toll the statute of limitations each pay period, thereby expanding

the time period allowed to bring disparate pay claims under Title VII. See 42 U.S.C. § 2000e–

18 5(e)(3); see also Lilly Ledbetter Fair Pay Act of 2009 (“Fair Pay Act”), Pub.L. No. 111–2, 123

Stat. 5 (Jan. 29, 2009).

The DCHRA, however, has not been similarly amended so as to expand the allowable time

period to bring disparate pay claims. See D.C. Code § 2-1403.03. Accordingly, the Court finds

that Plaintiff’s disparate pay claims do not constitute “continuing violations” for the purposes of

the DCHRA, and that Plaintiff is barred from raising any disparate pay claims pursuant to the

DCHRA (Claims 2, 4, 6, 8, 10, and 12), to the extent that the allegations underlying those claims

involve actions that allegedly took place before July 17, 2011—one year prior to the filing of Ms.

Hammel’s Charge of Discrimination on July 17, 2012. Plaintiff is not barred from asserting

disparate pay claims pursuant to DCHRA concerning events occurring after July 17, 2011.

iii. Failure-to-Promote Claims (Claims 2, 4, 6, 8, 10, 12, 15, 17, and 20)

According to the United States Supreme Court, discrete actions such as “termination ,

failure to promote, denial of transfer, or refusal to hire” are considered separate actionable

“unlawful employment practices” that cannot be viewed as “continuing violations.” Morgan, 536

U.S. at 114 (emphasis added). In addition, the D.C. Circuit has held that “the decision whether to

promote an employee to a higher paying position” is not a “discriminatory compensation decision

or other practice” under the Ledbetter Act. Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d

370, 374–75 (D.C. Cir. 2010) (emphasis added). Accordingly, Plaintiff’s failure-to-promote

claims brought pursuant to Title VII are barred to the extent that they are based on allegations

before September 20, 2011—300 days prior to the filing of Ms. Hammel’s Charge of

Discrimination on July 17, 2012—and Plaintiff’s failure-to-promote claims brought pursuant to

the DCHRA are barred to the extent that they are based on allegations before July 17, 2011—one

year prior to the filing of Ms. Hammel’s Charge of Discrimination on July 17, 2012. See D.C.

19 Code § 2-1403.16(a); Boulton v. Inst. of Int’l Educ., 808 A.2d 499, 503 (D.C. 2002); 42 U.S.C. §

2000e–5(e)(1); Dyson v. D.C., 710 F.3d 415, 418 (D.C. Cir. 2013).

iv. Hostile Work Environment Claims (Claims 1, 3, 5, 7, 9, 11, 14, 16, and 19)

Finally, both the D.C. Circuit and the Supreme Court have held that a hostile work

environment claim may constitute a single “unlawful employment practice” so long as “at least

one act”—even if it is not actionable on its own—falls within the charge filing period. Morgan,

536 U.S. at 122; Singletary v. D.C., 351 F.3d 519, 527 (D.C. Cir. 2003). As such, a hostile work

environment claim, unlike the “discrete acts” discussed above, may properly be viewed as a

“continuing violation” under both Title VII and the DCHRA. See Morgan, 536 U.S. at 122; Lively

v. Flexible Packaging Ass’n, 830 A.2d 874, 890 (D.C. 2003). Put another way, “if an act

contributing to the [hostile work environment] claim occurs within the filing period, the entire time

period of the hostile environment may be considered by the court for the purposes of determining

liability.” Lively, 830 A.2d at 890 (quoting Morgan, 536 U.S. at 117).

In this case, Ms. Hammel’s hostile work environment claims are essentially premised on

her allegations that Ms. Lieberman frequently directed disparaging comments at Ms. Hammel in

front of coworkers, that Ms. Lieberman demanded that Ms. Hammel work and respond while on

leave, and that Ms. Lieberman attempted to undermine Ms. Hammel’s reputation with her

coworkers and clients. The Court finds that at least one of the actions allegedly taken by Ms.

Lieberman occurred within the statutes of limitations provided under Title VII and the DCHRA.

Specifically, on January 13, 2012, while Ms. Hammel was still on maternity leave, she received

an email from Ms. Lieberman informing Ms. Hammel that “many people do work from home

when they are out on maternity leave” and that she expected the same from Ms. Hammel.

Lieberman Emails, Pl.’s Ex. 26, ECF No. [42-17]. Ms. Lieberman then followed up with Ms.

20 Hammel’s supervisor, Mr. Brew, asking “[w]hy can’t she do this from home? I did work while I

was out on maternity leave. You need to talk to her.” Lieberman Email to Brew, Pl.’s Ex. 38, ECF

No. [42-24]. When Ms. Hammel contacted Mr. Brew and Human Resources regarding Ms.

Lieberman’s email, Mr. Brew clarified that Ms. Hammel was not required to be working while on

maternity leave. Brew Emails, Def.’s Ex. 34, ECF No. [37-5]. When viewed in light of Plaintiff’s

other allegations, the emails in January 2012—while they may not be actionable on their own—

appear to be of a sufficiently similar nature as the events that allegedly occurred outside the

allowable time period, such that Ms. Hammel could assert a single “continuing violation” claim of

a hostile work environment. See Morgan, 536 U.S. at 122; Lively, 830 A.2d at 890. Accordingly,

the Court finds that Plaintiff’s hostile work environment claims are not barred by the applicable

statutes of limitations under both Title VII and the DCHRA. See Morgan, 536 U.S. at 122; Lively,

830 A.2d at 890.

Having examined whether or not Plaintiff’s claims are barred by the applicable statutes of

limitations, the Court shall now address the parties’ remaining arguments regarding Plaintiff’s

claims.

B. Disparate Pay (Claims 2, 4, 6, 8, 10, 12, 15, 17, and 20)

In claims 2, 4, 6, 8, 10, 12, 15, 17, and 20, Plaintiff claims that Marsh illegally denied

compensation based alternatively on her sex, pregnancy, marital status, parental status, sexual

orientation, and/or as retaliation for complaining about discrimination.

Defendants contend that Plaintiff has failed to establish a prima face case of disparate

treatment discrimination or retaliation under either Title VII or the DCHRA. See Defs.’ Mem.,

ECF No. [37-1], at 14-16.

21 To establish a prima facie case of disparate treatment discrimination on any protected status

alleged by Ms. Hammel, she must (1) be a member of the relevant protected group; (2) show that

she was entitled to or otherwise eligible for a higher salary or a raise or an annual bonus; and (3)

other similarly situated Marsh employees who are male and/or not a parent and/or not married

and/or not lesbian and/or not pregnant and/or did not complain of discrimination were granted pay

increases and/or annual bonuses. See, e.g., Gleklen v. Democratic Cong. Campaign Comm., Inc.,

199 F.3d 1365, 1368 (D.C. Cir. 2000) (pregnancy discrimination under Title VII and DCHRA);

Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (Title VII retaliation); Baird v. Gotbaum,

662 F.3d 1246, 1248 (D.C. Cir. 2011) (“Baird I”) (Title VII sex discrimination); Wallace v.

Skadden, Arps, Slate, Meagher & Flom LLP, 799 A.2d 381, 385 (D.C. 2002) (marital status);

Blocker-Burnette v. D.C., 842 F. Supp. 2d 329, 337 (D.D.C. 2012) (parental status); Vogel v. D.C.

Office of Planning, 944 A.2d 456, 463 (D.C. 2008) (DCHRA retaliation); Boulton v. Inst. of Int’l

Educ., 808 A.2d 499, 502 (D.C. 2002) (sexual orientation); McFarland v. George Washington

Univ., 935 A.2d 337, 346 (D.C. 2007) (DCHRA sex discrimination).

However, it is well-established that “it is no longer relevant” if Plaintiff established a prima

facie case once Defendants have proffered a non-discriminatory explanation for their conduct.

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). Because Defendants have

proffered allegedly non-discriminatory reasons for their failure to more fully compensate Ms.

Hammel, setting forth facts to establish a prima facie case would be “an unnecessary sideshow.”

Brady v. Sgt. at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Rather, this Court “need not- and should

not decide” whether the Plaintiff has made out a prima facie case. Id. (emphasis in original). This

Court need only determine whether Ms. Hammel has “produced sufficient evidence for a

reasonable jury to find the [Defendants’] non-discriminatory reason was not the actual reason and

22 that the employer intentionally discriminated against the employee on the basis of” a protected

status. Id.

Here, Defendants contend that Plaintiff “accepted” the salary offered upon hire and that

she did not receive any salary increases or bonuses because they were “discretionary,” and “it was

common that FINPRO employees, such as Ms. Hammel, did not receive salary increases or bonus

awards from year to year.” Defs.’ Mem., ECF No. [37-1], at 9. Defendant further assert that

employees across the company “typically do not receive raises or bonuses from year to year.” Id.

Defendants also note that Ms. Hammel’s salary increased from $125,000 to $128,500 in 2008

while reporting to Ms. Lieberman, and that Ms. Hammel received a “$10,000 bonus in 2009.” Id.

Defendants further argue that “there is no evidence whatsoever that any similarly situated

person outside of any of the protected categories Ms. Hammel asserts was treated more favorably

in terms of pay, pay increases, or annual bonus awards.” See id. at 15 (citing Wallace v. Skadden,

Arps, Slate, Meagher & Flom LLP, 799 A.2d 381, 386 (D.C. 2002) (“To sustain her burden, [a

plaintiff] must show that she was treated differently from a [fellow] employee, all of whose

relevant employment aspects were “nearly identical” to hers.”)).

Plaintiff, in response, contends that Defendants erroneously seek to compare Ms. Hammel

to “all FINPRO employees” and all “employees at Marsh.” Pl.’s Opp’n, ECF No. [42], at 20.

According to Plaintiff, the “employees who were similarly situated to Ms. Hammel were the other

FINPRO CAs,” and “[t]hese comparator employees generally received increases in compensation

from year to year.” Id. Plaintiff contends that in the time period relevant to her claims—2007 to

2012—Ms. Hammel was paid a “statistically significantly lower salary each year . . . relative to

the average salary of other comparable employees within the FINPRO claims advocacy group.”

Id. Plaintiff also argues that her annual performance ratings “were not significantly lower than

23 other employees with similar FINPRO CA work experience” and that in 2010 and 2011, she had

“annual performance ratings that were significantly higher than the average rating of comparable

employees, yet she received no bonus.” Id. at 21 (emphasis in original).

Plaintiff further argues that Defendants’ explanations are pretext. She contends that she

“was not paid commensurate with heterosexuals and those who had not engaged in protected EEO

activity” and that “[o]ther male CAs who were doing the same work as Ms. Hammel were also

paid considerably more than what Defendants paid Ms. Hammel.” Id. at 23 (citing Pl.’s Ex. 5).

Plaintiff further contends that Defendants’ compensation system was “so subjective and vague that

it permitted this kind of unfettered discretion that led to discriminatory and retaliatory decisions

about Ms. Hammel’s compensation.” Id. at 24.

Before going further, the Court stops to comment that the parties vigorously dispute many

of the following facts. It is true that Plaintiff relies very heavily on her own testimony as evidence

of pretext. The Court makes no determination as to the truth of these matters. In the end, this is a

case that, in large measure, will turn on credibility determinations and the drawing of inferences

that are the province of the jury.

That being said, upon review of the parties’ submissions and the record evidence as a

whole—which includes expert reports submitted by both sides—the Court finds that Plaintiff has

produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-

discriminatory reason was pretextual. See Brady, 520 F.3d at 494. As a preliminary matter, the

Court notes that Plaintiff has produced evidence to raise a triable question of fact as to whether

Ms. Hammel performed work comparable to other Claims Advocates in the FINPRO group who

were paid higher salaries and received more frequent bonuses or larger bonuses. For example,

Plaintiff—who for much of her time at Marsh was the only Claims Advocate at the Vice President

24 level in the FINPRO group—produced evidence suggesting that she met all of the “SVP goals” set

by Lou Ann Layton, the head of the national FINPRO Practice, in March 2010. See Emails re:

SVP Goals, Pls.’ Ex. 22, ECF No. [42-15]; Defs.’ Exs. 25-27, ECF No. [37-3]. Additiona lly,

Plaintiff testified that during the last three months of her employment with Marsh in 2012, she

handled the entire portfolio of a heterosexual female Senior Vice President who was on maternity

leave, as well a third of the portfolio of a male Senior Vice President who left Marsh’s New York

office in the spring of 2012. See Hammel Dep. Tr., Defs.’ Ex. 4, ECF No. [37-3], at 103:01-104 :09.

A reasonable jury could decide to draw an inference from such evidence that Plaintiff performed

work as a Claims Advocate at the Senior Vice President level, and thereby merited comparable

compensation with Senior Vice Presidents who are male and/or not a parent and/or not married

and/or not lesbian and/or not pregnant and/or did not complain of discrimination were granted pay

increases and/or annual bonuses. See id.

The Court also notes that Plaintiff has also produced evidence from which a jury could

conclude that decisions regarding Ms. Hammel’s compensation were made in temporal proximity

to Ms. Hammel’s complaints of harassment to her managers and to Human Resources—or that

such decisions constituted a “pattern of antagonism”—and could draw an inference from such

evidence that Defendants’ proffered explanations concerning Ms. Hammel’s compensation are

pretextual. See Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012); Taylor v. Solis, 571

F.3d 1313, 1323 (D.C. Cir. 2009). Obviously, the jury could also decide not to draw the inferences

supporting Plaintiff’s claims.

C. Failure to Promote (Claims 2, 4, 6, 8, 10, 12, 15, 17, and 20)

In claims 2, 4, 6, 8, 10, 12, 15, 17, and 20, Plaintiff claims that Marsh illegally failed to

promote her and/or illegally denied her promotion based alternatively on her sex, pregnancy,

25 marital status, parental status, sexual orientation, and/or as retaliation for complaining about

discrimination.

At the outset, the Court notes that Plaintiff’s failure-to-promote claims brought pursuant to

Title VII are barred to the extent that they are based on allegations before September 20, 2011—

300 days prior to the filing of Ms. Hammel’s Charge of Discrimination on July 17, 2012—and

Plaintiff’s failure-to-promote claims brought pursuant to the DCHRA are barred to the extent that

they are based on allegations before July 17, 2011—one year prior to the filing of Ms. Hammel’s

Charge of Discrimination on July 17, 2012. See Part.III.A.iii, supra. Accordingly, the Court shall

focus its analysis on this issue to Plaintiff’s allegations concerning her claim that Marsh failed to

promote her in the late 2011 / early 2012 promotion cycle. 11

Defendants argue that the Court should grant summary judgment on Plaintiff’s failure to

promote claim regarding her non-promotion in 2011-2012 because Ms. Hammel did not seek

promotion to Senior Vice President during that cycle. See Def.’s Mem., ECF No. [37-1], at 17.

Defendants further argue that there is “no direct evidence in the record to support an inference that

Marsh made any decision concerning Ms. Hammel’s promotion opportunities based on any

protected status alleged in this case.” Id. at 16.

In response, Plaintiff argues that she regularly was assigned and handled work at the Senior

Vice President level during the relevant 2010-2011 time period, and that it was not necessary for

her to “seek promotion” in order to be promoted to Senior Vice President. See Pl.’s Opp’n, ECF

No. [42], at 26-29. Plaintiff contends that the “promotion process was a free-for-all subjective and

mysterious morass” and that managers rarely, if ever, reviewed any criteria when making their

11 The court notes that because Plaintiff’s claims regarding non-promotion in 2009 and 2010 are time barred, the Court finds it unnecessary to address Plaintiff’s arguments regarding “spoliation of evidence” concerning those claims. See Pl.’s Opp’n, ECF No. [42], at 31-34.

26 decisions regarding VP-to-SVP promotions. Id. at 26 (citing Brew Dep. Tr., Defs.’ Ex. 6, ECF No.

[37-3], at 52-56; Wallace Dep. Tr., Defs. Ex. 14, ECF No. 37-3], at 21:20-22). Plaintiff also argues

that around the time that Ms. Hammel’s supervisor, Damien Brew, made the decision not to

nominate Ms. Hammel for a promotion, Mr. Brew also lowered Ms. Hammel’s prior performance

rating of a 4 to a rating of 3, or “Meets Expectations.” See Pl.’s Resp. Stmt. ¶ 94d; Hammel 2011

Performance Review, Pl.’s Ex. 25, ECF No. [44-8]. Plaintiff also cites evidence indicating that

the 2011-2012 promotion decision was made while she was on maternity leave, and that Mr. Brew

could not recall any specific reason why he lowered Ms. Hammel’s performance rating. See Brew

Dep. Tr., Defs.’ Ex. 6, ECF No. [37-3], at 108:09-111:24. In addition, Plaintiff cites deposition

testimony by Mr. Brew acknowledging that he had “concerns” about the need to “shuffle clients

around” while Ms. Hammel was on maternity leave. Id. at 113:08-13.

Upon review of the parties’ submissions and the record evidence as a whole, the Court

finds that Plaintiff has produced “sufficient evidence for a reasonable jury to find that the

employer’s asserted non-discriminatory reason was not the actual reason” for her non-promotion

in 2011-2012, and that the “employer intentionally discriminated against the employee” on the

basis of her sex, sexual orientation, parental status, and/or pregnancy. Brady, 520 F.3d at 494. The

evidence submitted by Plaintiff can be inferred in different ways, including to support a conclusion

that Defendant’s explanation is “unworthy of credence” and thus “probative of intentional

discrimination,” or to support Defendants’ explanations for their decisions. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 134 (2000). However, the Court also notes that the

evidence produced by Plaintiff specifically as to her non-promotion in 2011-2012 raises a question

only with respect to her sex, sexual orientation, parental status, and/or pregnancy. There is no

evidence in the record that Mr. Brew’s decision not to nominate her for promotion in 2011-2012

27 was based on her marital status and/or as retaliation for complaining about discrimination. In so

finding, the Court notes that Plaintiff has produced no evidence indicating that Mr. Brew

considered Plaintiff’s complaints of harassment by Ms. Lieberman when deciding not to nominate

her for promotion in 2011-2012. The Court further notes that Plaintiff’s complaint of harassment

by Ms. Lieberman with regard to Plaintiff’s obligations to work from home while on maternity

leave did not occur until January 2012, which would have been after Mr. Brew decided whether or

not to nominate Plaintiff for promotion in 2011-2012. See Brew Emails, Def.’s Ex. 34, ECF No.

[37-5].

Accordingly, the Court shall dismiss Claims 6 and 17 (retaliation) and Claim 12 (marital

status) to the extent that they allege discrimination with respect to Plaintiff’s non-promotion. The

Court notes, however, that Claims 6, 12, and 17 are not dismissed in their entirety, as these claims

also contain allegations regarding disparate pay. See Part III.B, supra.

D. Hostile Work Environment (Claims 1, 3, 5, 7, 9, 11, 14, 16, and 19)

Finally, in claims 1, 3, 5, 7, 9, 11, 14, 16, and 19, Plaintiff claims that she was harassed and

subjected to a “hostile work environment” at Marsh that was based alternatively on her sex,

pregnancy, marital status, parental status, sexual orientation, and/or as retaliation for complaining

about discrimination. 12

“To make out a claim under the DCHRA for creating a hostile work environment, a plaintiff

must prove (1) that [she] is a member of a protected class, (2) that [she] has been subjected to

unwelcome harassment, (3) that the harassment was based on membership in the protected class,

12The Court notes that Plaintiff’s hostile work environment claims shall be treated as “continuing violations,” pursuant to the Supreme Court’s decision in Morgan, and that they are therefore not barred by the applicable statutes of limitations under Title VII and the DCHRA. See Part III.A.iv, supra. 28 and (4) that the harassment is severe and pervasive enough to affect a term, condition, or privilege

of employment.” Cole v. Boeing Co., 845 F. Supp. 2d 277, 287 (D.D.C. 2012) (citing Barrett v.

Covington & Burling LLP, 979 A.2d 1239, 1245 (D.C. 2009)) (internal quotation marks omitted).

“A work environment is actionably hostile when the workplace is permeated with discriminatory

intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions

of the victim's employment and create an abusive working environment . . . .” Id. (citing Barrett,

979 A.2d at 1245) (internal quotation marks omitted). The same elements are required for Plaintiff

to bring a hostile work environment claim under Title VII. See, e.g., Davis v. Coastal Int’l Sec.,

Inc., 275 F.3d 1119, 1122-23 (D.C. Cir. 2002).

A claim of retaliation based on harassment and hostile environment consists of several

individual acts that “may not be actionable on [their] own” but become actionable due to their

“cumulative effect.” Morgan, 536 U.S. at 115; see also Hussain v. Nicholson, 435 F.3d 359, 366

(D.C. Cir. 2006). The acts must be “adequately linked” such that they form “a coherent hostile

environment claim.” Baird I, 662 F.3d at 1251. For example, the acts may “involve the same type

of employment actions, occur relatively frequently, and [be] perpetrated by the same managers.”

Id. (alterations omitted). In addition, the acts must be “of such severity or pervasiveness as to alter

the conditions of . . . employment and create an abusive working environment.” Hussain, 435 F.3d

at 366 (quotation marks and alterations omitted). In examining these factors, a court should 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.” Harris v. Forklift Sys., Inc., 510

U.S. 17, 23 (1993).

29 Here, Defendants argue that “[a]t most, Ms. Lieberman was a demanding, unreasonable

and at time, rude and inconsiderate boss,” but that “there is no evidence that she acted in such a

manner because of any of Ms. Hammel’s protected statuses.” Defs.’ Mem., ECF No. [37-1], at

19. Defendants concede that Ms. Hammel complained to various managers and Marsh Human

Resources and that Marsh management counseled Ms. Lieberman about her style. See id.

Defendant contend, however, that “there is no evidence whatsoever that Ms. Lieberman or anyone

harassed or imposed a hostile work environment on Ms. Hammel because of her sex, sexual

orientation, marital status, parental status, pregnancy, or in retaliation for making complaints.”

Id. at 20 (emphasis added).

In response, Plaintiff contends that Ms. Lieberman’s conduct went beyond mere “rude and

inconsiderate” behavior and instead amounted to a “campaign to undermine” Ms. Hammel’s

“integrity, work ethic and intelligence…the central aspects of Ms. Hammel’s professional

identity.” Pl.’s Opp’n, ECF No. [42], at 35. Plaintiff contends that the harassment is sufficiently

“severe and pervasive” on the grounds that the alleged conduct “touched nearly every aspect of

Ms. Hammel’s employment.” Id. at 36. Plaintiff contends that such behavior included, inter alia,

(1) threats allegedly made by Ms. Lieberman to Ms. Hammel after Ms. Hammel complained of

Ms. Lieberman’s behavior; (2) attempts allegedly made by Ms. Lieberman to “belittle Ms.

Hammel’s intelligence and smear Ms. Hammel’s reputation to Mr. Brew, Mr. Nikolai, and others;”

(3) “snide and openly derogatory comments regarding Ms. Hammel’s sexual orientation.” Id. at

35-39.

Plaintiff further contends that the nexus to each of her asserted protected grounds is

established “because of the temporal proximity of materially adverse actions to [Ms.] Hammel’s

protected acts.” Id. at 40. Plaintiff contends that the record evidence demonstrates that Ms.

30 Lieberman and other managers made threatening statements and took retaliatory actions in

response to her complaints, and that “the timing of Defendants’ retaliatory adverse actions to Ms.

Hammel’s protected activity further supports Ms. Hammel’s claim she was subjected to ongoing

reprisal because of her complaints of sex and sexual orientation harassment.” Id. at 41. Plaintiff

also argues that Ms. Lieberman and Mr. Nikolai made overtly derogatory references to Ms.

Hammel’s and other Marsh employees’ sexual orientation, and that Ms. Lieberman “could not get

past the idea that Ms. Hammel’s performance could be rewarded by someone, or that someone

could be her friend, unless that person was also gay.” Id. at 44 (citing Pl.’s Resp. Stmt. ¶ 28a-f).

Plaintiff also cites Ms. Hammel’s testimony that Ms. Lieberman routinely referenced Ms.

Hammel’s cufflinks, style of dress, and athleticism in a derogatory and stereotypical manner,

stating “that’s who you people are”—an alleged reference to lesbians. See id. Plaintiff also

contends that the record evidence raises an inference that Ms. Hammel’s pregnancy status and

maternity status “played a role in Defendants’ low performance appraisal of Ms. Hammel in

December 2011 and denial of her promotion and transfer request in early 2012 after complaining

about Ms. Lieberman’s harassment during Ms. Hammel’s maternity leave.” Id. at 45.

Upon review of the parties’ submissions and the record a whole, the Court finds that

Plaintiff has produced sufficient evidence for a reasonable jury to find that Plaintiff was subjected

to a “hostile work environment” at Marsh based on her sex, sexual orientation, and/or as retaliation

for complaining about discrimination. See Brady, 520 F.3d at 494. The record evidence raises a

triable questions of fact as to whether Ms. Lieberman has been subjected to unwelcome harassment

and whether any such harassment was based on her sex, sexual orientation, and/or as retaliation

for complaining about discrimination. See id. However, Plaintiff has produced no evidence that

any hostile actions allegedly taken by Ms. Lieberman were made because Plaintiff was pregnant

31 or parenting or because Plaintiff was married. Accordingly, the Court shall dismiss Plaintiff’s

hostile work environment claims based on pregnancy (Claims 7 and 19), parental status (Claim 9),

and marital status (Claim 11).

IV. CONCLUSION

For the reasons discussed above, the Court shall GRANT-IN-PART and DENY-IN-PART

Defendant’s [37] Motion for Summary Judgment. Specifically, the Court finds the following:

• Plaintiff’s disparate pay claims brought under Title VII (Claims 15, 17, and 20) are not barred by the applicable statute of limitations.

• Plaintiff’s disparate pay claims brought under the DCHRA (Claims 2, 4, 6, 8, 10, and 12) are barred by the applicable statute of limitations to the extent that the allegations underlying those claims involve actions that allegedly took place before July 17, 2011; however, Plaintiff is not barred on statute of limitations grounds from asserting disparate pay claims pursuant to the DCHRA concerning events after July 17, 2011.

• Plaintiff is barred from asserting non-promotion claims pursuant to Title VII (Claims 15, 17, 20) that are based on allegations before September 20, 2011, and Plaintiff is barred from asserting non-promotion claims pursuant to the DCHRA (Claims 2, 4, 6, 8, 10, 12) that are based on allegations before July 17, 2011; however, Plaintiff is not barred on statute of limitations grounds from asserting non-promotion claims after those respective dates.

• Plaintiff has produced sufficient evidence for a reasonable jury to find that Plaintiff was illegally denied compensation based on her sex, pregnancy, marital status, parental status, sexual orientation, and/or as retaliation for complaining about discrimination (Claims 2, 4, 6, 8, 10, 12, 15, 17, and 20).

• Plaintiff has produced sufficient evidence for a reasonable jury to find that Plaintiff was not promoted in late 2011 / early 2012 on the basis of her sex (Claims 2 and 15), sexual orientation (Claim 4), parental status (Claim 10), and/or pregnancy (Claims 8 and 20). However, Plaintiff has not produced sufficient evidence for a reasonable jury to find that Plaintiff was not promoted in late 2011 / early 2012 on the basis of her marital status (Claim 12) or as retaliation (Claims 6 and 17).

• Plaintiff has produced sufficient evidence for a reasonable jury to find that Plaintiff was subjected to a “hostile work environment” at Marsh based on her sex (Claims 1 and 14), sexual orientation (Claim 3), and/or as retaliation for complaining about discrimination (Claims 5 and 16). However, Plaintiff has not produced sufficient evidence for a reasonable jury to find that Plaintiff was subjected to a “hostile work

32 environment” based on pregnancy (Claims 7 and 19), parental status (Claim 9), and marital status (Claim 11).

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge