UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) MICHELLE ROGERS, ) ) Plaintiff, ) ) v. ) Civil Action No. 00-2452 (EGS) ) RAY MABUS,1 ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION
Plaintiff Michelle Rogers (“plaintiff” or “Rogers”), a
former employee of the Department of the Navy, brings this Title
VII sexual harassment action against the Secretary of the Navy,
(“defendant”). On March 30, 2005, the Court denied defendant’s
motion to dismiss or, in the alternative, for summary judgment.
Defendant has filed a motion for reconsideration of this
decision. Upon consideration of the motion, the response and
reply thereto, the applicable law, and the entire record, the
Court DENIES defendant’s motion for reconsideration.
I. Background
A. Factual Background
Plaintiff, a former employee of the Department of the Navy,
Engineering Field Activity Chesapeake (“EFACHES”), Construction
Division, Washington Navy Yard, brings this Title VII action
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Mabus, in his official capacity as the Secretary of the Navy, is automatically substituted as the named defendant. against defendant, claiming that she was the victim of sexual
harassment and rape by her former immediate supervisor, Jasper
Garner (“Garner”). Plaintiff is an African American female who
is hearing and speech impaired. Pl.’s SOF at 13.2 Plaintiff
began working for the Department of the Navy in November 1987.
Def.’s Statement of Material Facts Not in Dispute (“Def.’s SOF”)
¶ 1. Garner was plaintiff’s supervisor from 1994 to September
1998, at which time Garner was transferred to another division
and Robert Silver (“Silver”) became plaintiff’s supervisor.
Pl.’s Supp. SOF ¶ 1; Def.’s SOF ¶¶ 2-3.
Plaintiff alleges that Garner forced her to have sex with
him or otherwise engaged in sexually offensive conduct beginning
in April 1996 and continuing throughout the remainder of her
tenure at the Navy. Pl.’s SOF at 13-14. Plaintiff contends that
she reported the initial alleged assault to Cecilia Muhammad
(“Muhammad”), her team leader,3 and to Ellis Herndon (“Herndon”),
2 In responding to defendant’s motion for summary judgment, plaintiff filed her own statement of material facts in dispute, but did not respond to/dispute defendant’s statements of fact pursuant to Local Civil Rule 7(h). Due to plaintiff’s failure to properly respond to defendant’s statement of facts, the Court gave plaintiff an opportunity to file a supplemental statement of material facts in dispute. Therefore, the citations herein refer to the respective statements of fact as “Pl.’s SOF” and “Pl.’s Supp. SOF.” The Court has noted where facts continue to be in dispute. 3 The parties dispute whether Ms. Muhammad was plaintiff’s supervisor; however, it is clear that Ms. Muhammad had some leadership role. Compare Def.’s Mem. Supp. Mot. for Recons. (“Def.’s Mot. Recons.”) at 6, with Pl.’s Opp’n to Def.’s Mot.
2 a supervisor in a different division, within weeks of the first
alleged incident in April 1996. Pl.’s Supp. SOF ¶ 9. On March
5, 1999, plaintiff notified Silver of her sexual harassment
charges against Garner. Def.’s SOF ¶ 14. Plaintiff alleges that
Garner placed a call to her cell phone on approximately March 19,
1999 and that this call continued his harassment of her. Pl.’s
SOF at 15. She sought formal EEO counseling on March 24, 1999.
Def.’s SOF ¶ 14.
B. Procedural Background
On March 30, 2005, the Court denied defendant’s motion for
summary judgment, finding that there were material issues of fact
regarding whether plaintiff unreasonably failed to comply with
defendant’s sexual harassment policy.4 On July 17, 2009,
defendant filed a motion for reconsideration based on a new case
from the D.C. Circuit, Taylor v. Solis, 571 F.3d 1313 (D.C. Cir.
2009)).5 This motion for reconsideration is now ripe for
resolution by the Court.
Recons. at 3. 4 The Court also found that there were material issues of fact regarding whether plaintiff timely filed her EEO complaint; however, defendant is not requesting that the Court reconsider that portion of its decision. 5 On February 23, 2006, the Court denied a previous motion to reconsider, finding that newly discovered evidence did not eliminate the material issue of fact.
3 II. Legal Framework
A. Standard of Review
1. Motion for Reconsideration
Due to the interlocutory nature of the Court’s order denying
the motion for summary judgment, defendant’s motion for
reconsideration is governed by Federal Rule of Civil Procedure
54(b), which “differs from the standards applied to final
judgments under Federal Rules of Civil Procedure 59(e) and
60(b).” Williams v. Savage, 569 F. Supp. 2d 99, 108 (D.D.C.
2008) (citations omitted); Judicial Watch v. Dep’t of Army, 466
F. Supp. 2d 112, 123 (D.D.C. 2006) (“A ruling that denies a
dispositive motion . . . is an interlocutory judgment.”
(citations omitted)). “In particular, reconsideration of an
interlocutory decision is available under the standard ‘as
justice requires.’” Judicial Watch, 466 F. Supp. 2d at 123
(citations omitted).
“‘As justice requires’ indicates concrete considerations” by
the court, Williams, 569 F. Supp. 2d at 108, such as “whether the
court patently misunderstood the parties, made a decision beyond
the adversarial issues presented, made an error in failing to
consider controlling decisions or data, or whether a controlling
or significant change in the law has occurred.” In Def. of
Animals v. Nat'l Inst. of Health, 543 F. Supp. 2d 70, 75 (D.D.C.
2008) (internal citation and quotation marks omitted).
4 “Furthermore, the party moving to reconsider carries the burden
of proving that some harm would accompany a denial of the motion
to reconsider.” In Def. of Animals, 543 F. Supp. 2d at 76.
“These considerations leave a great deal of room for the court’s
discretion and, accordingly, the ‘as justice requires’ standard
amounts to determining ‘whether reconsideration is necessary
under the relevant circumstances.’” Judicial Watch, 466 F. Supp.
2d at 123 (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.
2004)). Defendant’s motion to reconsider is based on new
authority; therefore, the Court considers “whether a controlling
Animals, 543 F. Supp. 2d at 75.
2. Motion for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). In determining whether a genuine issue of material fact
exists, the court must view all facts in the light most favorable
to the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
5 B. Analysis
The basis for defendant’s motion to reconsider is a recent
decision from the D.C. Circuit, Taylor v. Solis, 571 F.3d 1313.
Defendant argues that Taylor narrows the rule outlined in
Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998) and
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998),
and that a material issue of fact no longer exists regarding
whether plaintiff unreasonably failed to take advantage of
corrective opportunities. See generally Def.’s Mot. Recons. As
explained below, the Court finds that material issues of fact
still remain and, therefore, DENIES defendant’s motion to
reconsider.6
Title VII provides: “All personnel actions affecting
employees . . . in executive agencies . . . shall be made free
from any discrimination based on . . . sex.” 42 U.S.C. § 2000e-
16(a). An actionable harm for sexual harassment that has created
6 The parties dispute whether plaintiff abandoned her retaliation claim by not responding to defendant’s arguments in its motion for summary judgment filed on July 1, 2004, Docket No. 86. After multiple additional filings, which failed to resolve this issue, at a hearing on July 21, 2009, the Court directed plaintiff to file a response to defendant’s motion to reconsider, which would not only address the Taylor decision, but which would also clearly set forth her retaliation claims, including specific support and citations to the record. Tr. of July 21, 2009 Status Hr’g 2:12-19, 6:10-8:3. Plaintiff’s response to defendant’s motion to reconsider and defendant’s reply therefore address plaintiff’s retaliation claims in addition to the motion for reconsideration currently pending before the Court. In an effort to minimize confusion going forward, the Court will address plaintiff’s retaliation claims in a separate opinion.
6 a “hostile work environment” is caused by “harassment . . .
sufficiently severe or pervasive to alter the conditions of [the
victim’s] employment and create an abusive working environment.”
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986); Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); see also Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (“whether an
environment is ‘hostile’ or ‘abusive’ can be determined only be
looking at all the circumstances”). An affirmative defense to a
hostile work environment claim exists for employers if they can
prove: “(a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior; and
(b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided
by the employer . . ..” Faragher, 524 U.S. at 807-08; accord
Burlington Indus., Inc., 524 U.S. at 764-65.
In its motion for summary judgment, defendant claimed that
it was entitled to the Faragher defense because defendant
employees were not made aware of plaintiff’s allegations until
March 1999 when she filed a formal EEO complaint, at which time
they made every reasonable effort to fully investigate
plaintiff’s claims and prevent further harassment. Def.’s Mot.
Summ. J. (“Def.’s Mot.”) at 20. Defendant also contended that
plaintiff unreasonably failed to comply with the Division’s
sexual harassment policy by failing to promptly report any
7 offending behavior to a supervisor or an EEO officer. Def.’s
Mot. Summ. J. at 23.
In its opinion denying summary judgment, the Court found
that there were disputed issues of material fact because the
record “contains references to conversations between plaintiff
and her supervisory staff [Herndon and Muhammad] in April or May
of 1996 suggesting that she made an effort to report Mr. Garner’s
conduct.” Rogers v. Gordon, 362 F. Supp. 2d 269, 272 (D.D.C.
2005) (citing Pl’s. Supp. SOF, Ex. 8 at 191-92 (Herndon Aff.);
Ex. 10 at 27-29, 62 (Muhammad Dep.)).
1. Taylor v. Solis
Defendant asks the Court to reconsider its decision in
light of Taylor, which addresses the issue of whether a plaintiff
properly reported allegations of sexual harassment by informing a
supervisor. 571 F.3d 1313. In Taylor, the plaintiff sued her
employer, the Pension Benefit Guaranty Corporation, under Title
VII alleging sexual harassment by her supervisors that created a
hostile work environment. Id. at 1316. The sexual harassment
policy in Taylor directed employees who believed they were
sexually harassed to immediately contact an EEO Counselor or the
EEO manager, who was to then investigate the charge and, if
warranted, implement an appropriate remedy. Id. The plaintiff
told a friend who was a team leader that she felt harassed; he
did not advise her to go to the EEO counselor or do so himself.
8 Id. at 1316. After further incidents of alleged harassment,
plaintiff eventually reported the conduct to the EEO office. Id.
The court affirmed the district court’s finding that the
employer had an affirmative defense under Faragher because the
plaintiff’s action of informing her friend of the alleged
harassment was an unreasonable failure to use her employer’s
complaint procedure. Id. at 1318 (citing Ellerth, 524 U.S. at
765 (“any unreasonable failure to use any complaint procedure
provided by the employer . . . will normally suffice to satisfy
the employer’s burden”)). The D.C. Circuit noted that “[a]
reasonable employee who believes and tells others she is being
sexually harassed would report it if she knows - as [plaintiff]
should have and apparently did know - a complaint procedure has
been established for the purpose.” Id. The Taylor court
rejected plaintiff’s argument that she effectively notified
management of her complaint by informing her friend who was a
team leader, finding that she “could not reasonably have believed
talking to [him] was a substitute for using the agency’s
complaint procedure,” because her employer’s policy explicitly
required her to report such conduct to an EEO officer or EEO
manager. Id. at 1319. Thus, the Taylor court found that
plaintiff’s claim failed not because telling a team leader or
supervisor is necessarily insufficient, but because the specific
policy in place made telling a team leader or supervisor
9 insufficient, and plaintiff could not have reasonably believed
that informing her friend of the alleged harassment complied with
that policy.
2. The Sexual Harassment Policy
In contrast to Taylor, in the instant case, there was no
written policy establishing a specific procedure for complaining
about sexual harassment when the events in this case allegedly
occurred.7 The only evidence of a policy for reporting sexual
harassment is the training given to employees at that time. This
training included “an explanation that each act of discrimination
or harassment should be reported either to a supervisor or
directly to an EEO counselor.” Def’s Mot. Summ. J., Ex. 8; Decl.
of Cynthia Sybert (“Sybert Decl.”) at 2 (stating that between
1995 and 1999 she conducted annual training courses on EEO
7 The sexual harassment policy in place at the time of the alleged harassment provided, inter alia:
No individual shall - - . . . . . . [W]hile in a supervisory or command position, condone or ignore sexual harassment of which he or she has knowledge or has reason to have knowledge. . . . The prevention of sexual harassment exemplifies the Department of the Navy’s goal to uphold the highest standards of leadership and personal conduct. Each leader/manager/supervisor is responsible and accountable for providing training and guidance to his/her personnel and taking prompt, appropriate corrective action upon encountering evidence of inappropriate conduct. . . .”
Def.’s Mot. Summ. J., Ex. 8, August 10, 1995 EFA Cheseapeake Policy on Sexual Harassment.
10 policies and procedures).
The record reveals a significant discrepancy within
defendant’s own pleadings as to whether plaintiff was required to
report the conduct to “a” supervisor or “her” supervisor.
Compare Mot. for Recons. at 2 (“Plaintiff knew that she needed to
report it to her supervisor or to an EEO Specialist.”) with
Def.’s Mot. Summ. J. at 19 (the policy “instructed employees to
report any offending behavior either to a supervisor or an EEO
officer.”); see also Def.’s Mot. Summ. J. at 6 (stating that the
policy required an employee to report harassment to “the”
supervisor). The parties have also provided conflicting
information as to whether employees were supposed to report
allegations of sexual harassment to both a supervisor and the EEO
office, or if they could choose to report it to either one. The
pleadings and exhibits of both parties at times use the “and”
language, but in other places use the word “or,” and contradict
themselves regarding which is correct.8
Thus, the policy itself does not contain any guidance on how
to report allegations of sexual harassment or to whom such
8 Compare Mot. for Recons. at 2 (“Plaintiff knew that she needed to report it to her supervisor or to an EEO Specialist.”); Id. at 3 n.1 (“[A] victim of sexual harassment was required to report any offending incidents to his or her supervisor or an EEO officer.”), with Def.’s Mot. Summ. J. at 6 (“The policy on sexual harassment required a victim of such to ‘report’ any offending incidents ‘to the supervisor and the EEO specialist.”) (quoting Pl.’s Mar. 30, 2000 Admin. Dep. (“Rogers Mar. 30, 2000 Dep.”)).
11 allegations should be made and the training allows employees to
report complaints to either “a” supervisor or the EEO office.
Accordingly, the Court finds that there are material issues of
fact regarding the requirements of the sexual harassment policy
in place at the time of the alleged conduct.
3. Plaintiff’s Actions of Telling People in Management About the Alleged Harassment
Assuming, as the Court must at this stage of litigation,
that the policy allowed an employee to report to a supervisor,
regardless of whether that person was plaintiff’s direct
supervisor, the Court must now determine whether plaintiff’s
actions were reasonable. As discussed below, a material fact
still exists regarding whether plaintiff reasonably believed her
actions of telling two people in management roles constituted
compliance with the sexual harassment policy in place.
Plaintiff asserts that, soon after the first alleged
incident of rape, she contacted her team leader, Cecilia
Muhammad, to report the incident. Pl.’s Opp’n to Def.’s Mot.
Summ. J. (“Pl.’s Opp’n Summ. J.”) at 6. Muhammad admits that
plaintiff had a discussion with her about the situation between
herself and Garner, but states that plaintiff said she was
“involved” with Garner. Muhammad Dep. at 28-29. Muhammad stated
in her deposition that she told plaintiff that it “was between
them” and that she had nothing to do with it. Id. at 28.
Muhammad also stated that she “felt like [plaintiff] wanted to
12 get a response from [her].” Id. Muhammad did not report the
conversation or do anything further regarding the conversation
with plaintiff. The Court finds that, while it is possible a
juror could conclude that this was not a report of harassment,
but rather was just someone talking about her intimate
relationship, a reasonable juror could also conclude that this
“attempt” to report the conduct was sufficient and that
Muhammad’s actions of telling plaintiff that “that was between
them” while admitting that plaintiff wanted to get a response
from her lacked the reasonable care necessary for a Faragher
defense.
Plaintiff also went to Herndon, a supervisor in another
department, to inform him of Garner’s alleged conduct. Pl.’s
Opp’n at 6. Herndon confirmed in an affidavit during the Navy’s
investigation that plaintiff told him of unwanted sexual advances
by Garner and that he did not report the conduct or investigate
further. Pl.’s Supp. SOF, ex. 8, Herndon Aff. at 191:5-194:2.
Herndon also acknowledged in his affidavit that under the
procedure in place, a supervisor who receives a report of sexual
harassment is required to initiate an investigation. Id. at
196:8-16.
Pursuant to Taylor, plaintiff must act as a reasonable
employee would act if she believed she was being sexually
harassed. Compliance with the agency’s sexual harassment
13 policies is required, as well as prompt reporting of the
incident(s). 571 F.3d at 1319. Defendant argues that plaintiff
knew the sexual harassment policy required her to report alleged
harassment to her supervisor and admitted that she did not follow
it. Def.’s Mot. Recons. at 2. Is support of its argument,
defendant cites Plaintiff’s response to defendant’s Requests for
Admission, in which defendant claims she admits that the policy
was to report sexual harassment “to a supervisor and an EEO
counselor.” Def.’s Mot. Summ. J., Ex.9, Resp. to Requests for
Admission #9. Defendant also cites plaintiff’s deposition for
support that she was aware of, but did not follow, the policy.
Def.’s Mot. Recons. at 7.
The Court disagrees with defendant’s characterization of the
evidence. In fact, plaintiff’s deposition further supports the
Court’s finding that there are material issues of fact regarding
the policy in place and plaintiff’s understanding of that policy.
For example, in her deposition plaintiff said that she was
supposed to report any instance of sexual harassment to “the”
supervisor and the EEO Specialist. Def.’s Mot. Summ. J., Ex. 2;
Rogers Mar. 30, 2000 Dep. at 345:19 (emphasis added). Defense
counsel followed that statement by asking: “to your supervisor
and the EEO specialist?” to which plaintiff responded yes, and
14 then agreed that she did not do so.9 Id. at 345:20-346:1. Later
in the deposition, plaintiff was asked “you were told to report
any incidents of sexual harassment to supervisors or to the EEO
office. Is that correct?” Id. at 370:15-18 (emphasis added).
She responded “yes.” Id. at 351:15-21. Thus, there is
conflicting information within the deposition regarding
plaintiff’s understanding of the policy.
These excerpts (and the deposition contains several others
like them) reveal nothing more than profound confusion about the
complaint-reporting policy in place at the time the alleged
events occurred. Accordingly, the Court finds that, given the
absence of a written policy regarding how allegations of sexual
harassment were to be reported and the conflicting information
presented by the parties regarding what that policy actually was,
there is a material issue of fact as to the substance of the
policy and whether plaintiff’s actions of telling a supervisor in
a different division and her team leader were reasonable. The
Court finds this case is easily distinguishable from the
situation in Taylor because there, plaintiff’s actions of telling
her friend clearly did not meet the explicitly stated policy of
9 Plaintiff was also asked whether she thought that by telling Mr. Herndon that she was notifying management; she responded “I guess, I mean, I guess I would think that he would notify management.” Id. at 350:17-20. A reasonable jury could find this statement indicates a reasonable belief that telling Herndon did comply with the sexual harassment policy requiring her to inform a supervisor.
15 the defendant.
The Eighth Circuit’s finding in Ogden v. Wax Works, Inc.,
further supports the Court’s conclusion. 214 F.3d 999 (8th Cir.
2000). The court in Ogden found that a reasonable jury could
have concluded that plaintiff “took advantage of the
‘opportunities’ afforded by Wax Works and/or attempted to ‘avoid
harm otherwise’” because she complained to a member of
defendant’s management “arguably in accordance with the company’s
sexual harassment policy.” Id. at 1007. Similar to the present
case, the policy in Ogden stated that an employee was
“encouraged” to report any alleged violations to “a member of
management or directly to the Director of Human Resources.” Id.
at 1005. Here too, plaintiff “arguably” followed the sexual
harassment policy in place.
Taking all facts in the light most favorable to plaintiff,
as the Court must at this stage, the Court finds that material
issues of fact still exist regarding what the policy was and
whether plaintiff reasonably believed that her actions complied
with the policy.
16 III. CONCLUSION
Accordingly, for the reasons stated, the Court DENIES
defendant’s motion for reconsideration.
SO ORDERED.
Signed: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE MARCH 29, 2010