Osburn v. Panetta et al
OPINION AND ORDER directing that the motion for summary judgment (Doc. No. 131 ) filed by defendant Chuck Hagel, in his capacity of Secretary of the Department of Defense, is denied in all respects except as to plaintiff Sharon Osburn's claim of retaliatory opposition to her request for worker's compensation; the court reserves ruling at this time on this claim of retaliatory opposition to plaintiff Osburn's request for worker's compensation; further ORDERED that the retaliatory constructive-discharge claim is dismissed as abandoned. Signed by Honorable Judge Myron H. Thompson on 9/15/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CHUCK HAGEL, Secretary,
Department of Defense,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Sharon Osburn brought this lawsuit against
defendant Secretary of the Department of Defense claiming
sex discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 1981a & 2000e through 2000e–17.
jurisdiction is proper under 42 U.S.C. § 2000e–5(f)(3).
The cause is before the court on the Defense Secretary’s
motion for summary judgment.
The motion will be denied
I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Osburn alleges that, while she worked at the Defense
supervisor, Tim Tarver, subjected her to an array of
The facts that follow are drawn from the
evidence taken in the light most favorable to Osburn.
Osburn began at DISA as a contract employee in 2005.
She was formally hired by the agency as an Information
Technology Specialist in February 2007.
Tarver’s harassment of Osburn started several months
after her employment by DISA.
comments to her.
He would make sexual
He frequently visited her desk and
called her into his office.
Coworkers observed this
behavior and expressed concern to Osburn.
dialed-up the harassment.
By late 2007,
He began touching
Osburn, patting her buttocks and touching her breasts.
immediately followed-up with sexual comments to her.
also told her that if she said anything he would ruin her
On one occasion, when Osburn stayed late, Tarver
stayed at work and cornered her in the office.
able to convince him to let her leave.
Another night, he
again stayed late, apparently hoping to corner her, but,
at her request, a co-worker stayed late as well.
would drive by Osburn’s house when she was home alone,
and one night he came to her door uninvited.
continued to touch her and make sexual comments at work.
At the end of January 2008, Tarver raped Osburn.
called her into his office, locked the door, forcibly
performed oral sex on her, and then had intercourse with
He apologized and promised not to do it again.
However, he raped her in his office three more times in
the months that followed.
In July 2009, he raped her for
the fifth and final time while they were on a work trip.
In October 2009, Osburn approached her second-line
supervisor, Bib Richert, and told him Tarver was sexually
She did not tell him about the rapes
because she felt too embarrassed.
Because Richart was
planning to retire soon, he told her to contact Allison
Osburn tried to contact Stafford several
In November 2009, Osburn complained to Dan Raney, who
was assuming Richart’s position. She told him that Tarver
had made sexual advances and mistreated her.
advised Osburn to go to human resources.
A short time
later, Osburn again complained to Raney about Tarver.
Raney did not take any other steps.
Tarver continued to grope Osburn and make sexual
comments to her.
He also continued to try to arrange for
work trips with her, but Raney would cancel those trips.
Tarver criticized Osburn in front of co-workers, tried to
move her out of her supervisory position, and required
her to write a useless report.
On April 16, 2010, after
Osburn had complained to Raney, Tarver yelled at Osburn
in front of her co-workers and ordered her to stay out of
Osburn decided to report everything.
EEO Specialist Stafford and told her that Tarver had
Stafford told her not to come into work, but
set up a time to meet her off site.
Tarver called her
numerous times in the days that followed, asking her not
to proceed with her complaint.1
Osburn was placed on administrative leave until May
At that time, she was reassigned to a non-
She was given two options: work
from home three days a week and work the other two in the
same building as Tarver; or work five days a week in an
She asked for Tarver to be moved
Huntsville, Alabama, but the agency refused.
to the fourth floor of the building where her previous
office was located.
She was not allowed access to areas
that her co-workers could access.
Osburn was evaluated and diagnosed with posttraumatic
Her doctor determined that she would be
1. Osburn states in her brief that Tarver was
convicted of harassing communications arising out of this
However, her citations to the record do not
support that assertion.
unable to return to work because of her symptoms.
submitted an application to the Department of Labor for
application, and the Department of Labor denied benefits.
Osburn did not return to work at DISA.
On August 15,
2011, citing her extended and indefinite absence, DISA
Osburn brought this lawsuit against
the Secretary of Defense.
conditions of employment.”
Baldwin v. Blue Cross/Blue
Shield of Alabama, 480 F.3d 1287, 1300 (11th Cir. 2007).
Title VII also prohibits retaliation against an employee
because she opposed “an unlawful employment practice.”
42 U.S.C. § 2000e–3(a).
Osburn alleges both sexual
harassment and retaliation, and the Defense Secretary
seeks summary judgment in his favor on each claim.
against an employer in either of two ways: (1) “through
tangible employment action” or (2) “through creation of
a hostile work environment caused by sexual harassment
that is sufficiently severe or pervasive to alter the
Columbia Palms W. Hosp. Ltd. P’ship, 490 F.3d 1302, 1308
(11th Cir. 2007).
Osburn has sought to establish a violation through
both theories, tangible-employment action and hostilework environment.
1. Tangible-Employment Action
change in employment status, such as hiring, firing,
significant change in benefits.’”
Vance v. Ball State
Univ., 133 S. Ct. 2434, 2442 (2013) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). As a
general rule, “[t]angible employment actions fall within
the special province of the supervisor,” and, as such,
there is rarely a question of vicarious liability for the
company. Ellerth, 524 U.S. at 762. A company has no
affirmative defense where there has been a tangibleemployment action. Id. at 765.
To establish the Defense Secretary’s liability under
a tangible-employment-action theory, Osburn must first
prove that there was a tangible-employment action. Minix
v. Jeld-Wen, Inc., 2006 WL 2971654, at *3 (M.D. Ala.
2006)(Thompson, J.) aff'd, 237 F. App'x 578 (11th Cir.
2007). The Secretary argues that Osburn has failed to
establish that Tarver ever took any such action against
The court agrees.
Osburn first points to testimony indicating that
Tarver was compiling a record of Osburn’s alleged job
performance problems at the time she made her complaint.
(stating he “had pages of documentation” and “was gonna
do something formal” when Osburn reported the instant
But the fact that Tarver may have been
planning to take a tangible-employment action does not
establish that he actually did so.
See Ellerth, 524 U.S.
at 754 (1998) (“Because Ellerth’s claim involves only
hostile work environment claim which requires a showing
of severe or pervasive conduct.”); cf. Faragher v. City
of Boca Raton, 524 U.S. 775, 808 (1998) (“No affirmative
defense is available, however, when the supervisor’s
harassment culminates in a tangible employment action,
reassignment.”) (emphasis added).
The record indicates
that no action was taken against Osburn based on the
documentation Tarver had gathered.
Next, Osburn points out that Tarver would criticize
her to other employees, allegedly because he was angry
that she had rejected his sexual advances.
if true, certainly constitutes sexual harassment.
See Ellerth, 524 U.S. at 761 (“a
‘bruised ego’ is not enough”) (citation omitted); id. at
762 (“A tangible employment action in most cases inflicts
direct economic harm.”); Arnold v. Tuskegee Univ., 212 F.
App’x 803, 808 (11th Cir. 2006) (supervisor “yelling at
[plaintiff and] telling her to find another job” was not
circumstances, there has been no showing that it did so
in this case.
bonuses when compared to those of other supervisors who
establish that was actually the case.
“Q. And what types of payouts did you
“A. The lowest you can get, 60
percent raise, 40 percent bonus but
tax –- tax bonus.
“Q. And how much do you believe the
other supervisors were getting?
“A. Some of them got 80 percent raises
with 20 percent payout bonus.
“Q. And how do you know that?
“A. Because they told me.”
Osburn Dep. Vol. II (Doc. No. 131-7) at 15.
explained how it can be reduced to admissible form.
Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir.
She has not introduced, for example, testimony
from those other supervisors or documentary evidence
indicating that she was given lower bonus amounts.
this record, Osburn has simply failed to establish any
Even where there is no tangible-employment action, an
employer can still be held liable for its employees’
actions. To establish a prima-facie case of hostile-work
environment “a plaintiff must show: (1) that she belongs
to a protected group; (2) that she has been subject to
unwelcome sexual harassment; (3) that the harassment was
sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily
abusive working environment; and (5) that a basis for
holding the employer liable exists.” See Hulsey v. Pride
Rest., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004).
The Defense Secretary argues that Osburn has failed
to establish the second element, that Tarver’s conduct
He also argues that, even if Tarver
harassed Osburn, Osburn has failed to establish the fifth
element, vicarious liability, for two reasons: (a) Tarver
entitled to the Faragher/Ellerth affirmative defense.
The Defense Secretary first argues that Osburn’s
harassment claim fails because she did not establish that
Tarver’s conduct was ‘unwelcome.’
See Hulsey, 367 F.3d
He argues that the sexual contact between
Osburn and Tarver was entirely consensual.
that Osburn “has provided no evidence, beyond her bare
and often contradictory assertions, to support her claim
that Tarver’s behavior was unwelcomed,” and argues that
her “‘after-the-fact’” statements alone are insufficient
to survive summary judgment.
Dft. Br. Summ. Judgt. (Doc.
No. 134) at 27 (quoting Souther v. Posen Const., Inc.,
523 F. App’x 352, 355 (6th Cir. 2013)).
However, in reality, Osburn has offered significantly
more than bare assertions to corroborate her version of
Souther, 523 F. App’x at 355 (internal quotation
Indeed, unlike Souther, in this case
Osburn has submitted, in addition to her sworn testimony,
corroborating evidence that she complained to others
during the course of the alleged harassment.
Osburn made to him about Tarver); Lewis Affidavit (Doc.
No. 138-11) (same); Padgett Affidavit (Doc. No. 138-12)
For example, one co-worker indicated in a sworn
statement that he observed Tarver making “inappropriate”
uncomfortable after his visits.”
(Doc. No. 138-10) at 3.
The co-worker stated that Osburn
also repeatedly told him that Tarver commented on her
appearance and body, and touched her inappropriately.
Id. at 4.
The co-worker observed that Osburn was “down,
depressed, emotionally stressed and overall troubled,”
and that “[n]ot once did she seem pleased, happy, or
relieved after visiting [Tarver’s] office.”
Id. at 4.
To say the least, these accounts, taken in the light most
consensual sexual relationship.
Certainly, there is also evidence that tends to
undermine Osburn’s version of events.
stated that all of the sexual conduct was consensual even
though he admitted that on at least one occasion she said
What Osburn meant by “no,” and whether it was
2. In her brief, Osburn states that Tarver admitted,
during the course of a polygraph examination, that he
“coerced Osburn to have sex with him.”
Pf. Opp. Br.
Summ. Judgt. (Doc. No. 139) at 16.
It is true that
Tarver said that he coerced sex during the trip in Ohio.
See Polygraph transcript (Doc. No. 138-2) at 233 (“Has
there been times where she said no we shouldn’t be doing
this, but you still coerced her into engaging in sex?
Tarver: Yes.”). Tarver, however, argues that this
statement is taken out of context and that the sex was
He states that what he meant by coercion is that she
sincere or playful, is for the jury to decide. Moreover,
considered by the jury in deciding whether the sex was
coerced. Cf. Nicholas J. Little, Note, From No Means No
Affirmative Consent Standard in Rape Law, 58 Vand. L.
Rev. 1321, 1323 (2005) (arguing that rape law should
assume no consent unless it is affirmatively given); Dana
Berliner, Rethinking the Reasonable Belief Defense to
told him “no, we don’t need to be doing this,” and he
insisted. Id. at 234. He contends that this was said
playfully, and she then actively and voluntarily
participated in the sexual contact. He stated: “I never
forced her to do it.
She could have told me no, not
tonight, I’m not gonna do this anymore and I would have
Id. at 239-240. His argument is that Osburn’s
initial “no” and his rejoinder were merely playful banter
and that he would have stopped had she subsequently said
Of course, Tarver may not have been truthful in his
polygraph examination; indeed, for the purposes of
summary judgment, the court must assume he was not
because his account of these events is so dramatically
different from Osburn’s.
requiring affirmative consent would lead to negative
consequences); Ian Lovett, California Bill Sets Sights on
Curbing Campus Sexual Assaults, N.Y. Times, Sept. 11,
2 0 1 4 ,
A 1 6 ,
a v a i l a b l e
on California bill requiring that universities receiving
consent for sexual activity as part of their sexual
assault policies); The Antioch College Sexual Offense
P o l i c y ,
a v a i l a b l e
sexual assault policy from Antioch college that required
affirmative consent at all stages of sexual conduct and
sparked a nationwide debate on consent).
The Secretary cites other testimony and evidence that
casts doubt on Osburn’s account, including testimony that
Osburn flirted with Tarver in public.
But the existence
of conflicting evidence does not establish, as a matter
On the contrary, it appears the Secretary is
events, which is at least in part corroborated by other
witnesses, based on a suggested negative determination
Sprint/United Mgmt. Co., 246 F.3d 1305, 1316 (11th Cir.
considered in the light most favorable to Osburn, she has
established unwelcome sexual harassment.
3. The court notes that the dark history of the
treatment of victims of sexual assault in court
proceedings lurks behind cases such as this one. There
was a time not long ago when courts and legal scholars
viewed allegations of rape with automatic suspicion, and
judges instructed juries accordingly. See Tera Jckowski
Peterson, Distrust and Discovery: The Impending Debacle
in Discovery of Rape Victims’ Counseling Records in Utah,
2001 Utah L. Rev. 695 (2001). By and large those days
are now past, but courts must be vigilant to ensure that
such prejudices do not infect cases like this one.
The remaining issue is whether the Secretary, as head of
the Department of Defense, of which DISA is a component,
is liable for Tarver’s harassment.
The Supreme Court
recently reviewed the range of possibilities for employer
liability in harassment cases:
liability for such harassment may depend
on the status of the harasser. If the
harassing employee is the victim’s
co-worker, the employer is liable only
if it was negligent in controlling
working conditions. In cases in which
the harasser is a ‘supervisor,’ however,
supervisor’s harassment culminates in a
tangible employment action, the employer
is strictly liable. But if no tangible
employment action is taken, the employer
may escape liability by establishing, as
an affirmative defense, that (1) the
employer exercised reasonable care to
prevent and correct any harassing
behavior and (2) that the plaintiff
unreasonably failed to take advantage of
Vance, 133 S. Ct. at 2439.
As set forth in Vance, Osburn may establish the
conduct in either of two ways.
Both require the court to
find that Tarver was Osburn’s ‘supervisor,’ as that term
was interpreted in Vance.
First, if Osburn can establish
Secretary is strictly liable.
Second, if Osburn can
establish a hostile-work-environment violation, then he
is vicariously liable unless he can show he is entitled
to the applicable affirmative defense.
If Osburn cannot
Secretary could still be held liable on a negligence
theory based on co-worker harassment. Vance, 133 S. Ct.
However, Osburn has not sought to establish
negligence in this case.
The Defense Secretary makes two arguments against
vicarious liability: first, that Tarver was not Osburn’s
supervisor; and, second, that he has established the
4. The Defense Secretary has made no argument that,
if Osburn’s account of events is true, Tarver did not
alter the terms or conditions of employment by creating
a hostile-work environment. In addressing that claim,
courts look to four factors: “‘(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a
mere offensive utterance; and (4) whether the conduct
performance.’” Walton v. Johnson & Johnson Servs., Inc.,
347 F.3d 1272, 1285 n.12 (11th Cir. 2003) (quoting
Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999) (en banc)). The court “must then decide, looking
at the totality of the circumstances, ‘whether the
harassing conduct is sufficiently severe or pervasive to
alter the terms or conditions of the plaintiff’s
employment and create a hostile or abusive working
environment.’” Walton, 347 F.3d at 1285 n.12 (quoting
Mendoza, 195 F.3d at 1246).
This court “can think of few incidents, isolated or
not, that are more serious than those alleged to have
occurred in this case.”
Walton, 347 F.3d at 1285 n.12.
Therefore, with the evidence viewed in the light most
“fondling and sexual assault,” is “sufficient to create
a sexually hostile and abusive work environment that
The Defense Secretary first argues that Tarver did
not qualify as Osburn’s ‘supervisor’ as that term was
recently defined in Vance.
If the court were to accept
that argument, he could not be held vicariously liable
for Tarver’s conduct on either theory discussed above.
However, the court finds that there is a genuine dispute
of material fact on this issue.
The Supreme Court established the current regime for
determining employer’s vicarious liability under Title
VII in a pair of 1998 cases: Faragher and Ellerth.
However, just last year, the Court resolved “a question
left open” in Faragher and Ellerth: “who qualifies as a
‘supervisor’ in a case in which an employee asserts a
Title VII claim for workplace harassment?”
S.Ct. at 2439.
The Court rejected an understanding of
ability to exercise significant direction over another’s
daily work,” and instead held that an employee is a
supervisor “when the employer has empowered that employee
to take tangible employment actions against the victim,
responsibilities, or a decision causing a significant
change in benefits.’”
Id. at 2443 (quoting Ellerth, 524
U.S. at 761).
The Defense Secretary argues that, although Tarver’s
title and job description both indicated he was Osburn’s
supervisor, Tarver does not qualify as one under Vance.
Specifically, he has offered evidence that first-line
supervisor Tarver did not have the authority to take any
of the actions specified in Vance.
In the Secretary’s
view, this evidence establishes that only the second- and
purposes of Title VII.
In Vance, the Supreme Court emphasized the need for
a simple and administrable definition of ‘supervisor.’
The Court did not, for example, hold
that only an individual in whom the official, formal
employment actions would qualify as a supervisor.
important questions were practical ones.
For example, in considering the implications of the
definition it adopted, the Court found that, “even if an
employer concentrates all decisionmaking authority in a
few individuals, it likely will not isolate itself from
[vicarious] liability” because, in that instance, “those
independent discretion when making decisions and will
likely rely on other workers who actually interact with
the affected employee.”
Vance, 133 S.Ct. at 2452.
Court then approvingly drew upon a concurring opinion in
a Seventh Circuit case: “‘Although they did not have the
power to take formal employment actions vis-à-vis [the
substantial input into those decisions, as they would
certainly more familiar with it than the off-site ...
Id. (quoting Rhodes v. Illinois Dept. of
Transp., 359 F.3d 498, 509 (7th Cir. 2004) (Rovner, J.,
recommendations it relies.”
In other words, the
Court expressly anticipated that individuals who did not
have formal authority would wield effective power to take
It also strongly suggested
that even substantial input into such decisions might
well qualify an individual as a supervisor.
The Court struck a similar tone in discussing how the
holdings in Faragher and Ellerth.
The Court had treated
the harassers in those cases as supervisors, and the
plaintiff in Vance argued that they would not qualify as
such under the Court’s new definition.
In response to
this argument, the Court noted that the issue of whether
the harassers were supervisors had not been raised in
either prior case but found that the harassers in those
In considering Ellerth, the Court noted
that the harasser had hired the victim, and that “he
promoted her (subject only to the ministerial approval of
Vance, 133 S.Ct. at 2446.
This indicates, at least, that
the fact of formal authority vesting in one person does
not preclude another from qualifying as a supervisor.
But the Court’s discussion of Faragher was starker:
the Court found it was “clear” that one harasser,“had
authority to take tangible employment actions affecting
the victim” based on the fact that “no one ... was hired
without his recommendation”; that he “initiated firing
and suspending personnel”; that his “evaluations ...
translated into salary increases”; and that he “made
recommendations regarding promotions.” Id. at 2446, 2446
n.8 (emphasis added, internal quotation marks omitted).
indicated that he “might” qualify as a supervisor based
on his “disciplinary decisions and ... input on ...
Id. at 2447 n.9.
Similarly, if his
assignment of different responsibilities had “economic
eligibility for a promotion,” then, again, he “might”
qualify as a supervisor.
supervisors are not limited to those who have a formal,
‘on the books’ power to take tangible-employment actions.
Rather, what the Court sketched in Vance is an approach
under which “[a] manager who works closely with his or
her subordinates and who has the power to recommend or
actions, and who can thus indirectly effectuate them,
Kramer v. Wasatch Cnty. Sheriff’s Office, 743 F.3d 726,
738 (10th Cir. 2014) (emphasis omitted).
In light of this understanding, the evidence to which
the Defense Secretary points is unpersuasive.
introduced a series of affidavits that each state, nearly
word-for-word, that Tarver “did not have the authority to
take tangible employment actions against Ms. Osburn, that
is, [he] did not have the authority to make significant
changes in her employment status, such as hiring, firing,
failing to promote, reassigning her to significantly
different responsibilities, or making a decision causing
a significant change in her benefits.”
(Doc. No. 131-14) at 2-3; see also Richert Affidavit
(Doc. No. 131-15) at 2-3 (Tarver did not have authority
to “unilaterally” make such changes); Raney Affidavit
(Doc. No. 131-16) at 2-3 (same); Dingler Affidavit (Doc.
No. 131-17) at 2-3 (same). As explained above, the mere
fact that Tarver could not take these actions is not
dispositive. The affidavits also purport to establish
that the authority to take the specified actions was
vested with Tarver’s superiors and that he could not
Affidavit (Doc. No. 131-15) at 2.
But these affidavits
do not establish that Tarver had no “power to recommend
or otherwise substantially influence tangible employment
actions [and] thus indirectly effectuate them,”
743 F.3d at 738, as contemplated by Vance.5
The Secretary argues, though, that Osburn has not
come forward with any evidence that Tarver does qualify
as a supervisor.
The court finds otherwise.
5. The Secretary also points to deposition testimony
in which Osburn acknowledged that Tarver did not have the
authority to reassign her. See Osburn Dep. Vol. I (Doc.
No. 131-1) at 55.
Obviously, this bears on only
transfers and does not address what other authority
Tarver might have.
job description, for example, provides that among his
“major duties” was “supervising employees,” and, among
performance of subordinates” and “mak[ing] selections for
promotions and reassignments.” DISA Position Description
(Doc. No. 138-13) at 3-4.
Furthermore, Tarver described
his own involvement in overseeing Osburn in terms that
echo the conduct that the Supreme Court indicated did or
might qualify as ‘supervisory’: Tarver was responsible
for Osburn’s performance evaluations, see Tarver Dep.
(Doc. No. 138-1) at 14, 37-38, Tarver Affidavit (Doc. No.
131-14) at 3; and he was empowered to recommend both
discipline, see Tarver Dep. (Doc. No. 138-1) at 16, as
well as salary increases, awards, and bonuses, see Tarver
Affidavit (Doc. No. 131-14) at 3.
It is clear from both
supervisors, it was Tarver who worked with Osburn most
closely on a day-to-day basis.
Considering this evidence
in the light most favorable to Osburn, a jury could
conclude that Tarver was a “manager who work[ed] closely
with [Osburn] and who ha[d] the power to recommend or
Kramer, 743 F.3d at 738.
The Secretary is,
Faragher/Ellerth affirmative defense
avoids liability under this defense if: 1) it ‘exercised
preventative or corrective opportunities [it] provided.’”
Nurse “BE” v. Columbia Palms W. Hosp. Ltd. P’ship, 490
F.3d 1302, 1308-09 (11th Cir. 2007) (quoting Faragher,
524 U.S. at 807; Ellerth, 524 U.S. at 765). “As an
affirmative defense, the defendant bears the burden of
Nurse “BE”, 490
establishing both of these elements.”
F.3d at 1309.
The first prong of the affirmative defense is that
the employer “exercised reasonable care to prevent and
correct promptly any sexually harassing behavior.” Nurse
This prong really has two parts: reasonable
care to prevent harassment, and reasonable care promptly
to correct harassment once it has been identified.
Frederick, 246 F.3d at 1313.
reasonable care to prevent harassment by promulgating a
series of sexual-harassment policies.6
In order to carry
“effectively published, that [they] contained reasonable
6. Osburn moved to strike or disregard most of the
policies based on alleged discovery violations.
separate opinion and order, the court has denied that
complaint procedures, and that [they] contained no other
Id. at 1314.
In support, he offers copies of
affidavits indicating that the policies were published on
a bulletin board outside of Osburn’s office, as well as
on the agency’s internal network and external website.7
Osburn, however, denies seeing any such policy.
Osburn Dep. Vol. I (Doc. No. 131-1) at 11.
Frederick, 246 F.3d at 1315
7. The Secretary also introduced evidence that the
EEO process was addressed at a new employee orientation
which Osburn attended. In a separate opinion and order,
the court found that the evidence regarding what topics
were discussed at the orientation should be disregarded.
The Secretary introduced evidence that Osburn
attended a training in February 2009, at which the
harassment policy was discussed. See Stafford Affidavit
(reversing district court’s grant of summary judgment to
the employer based on the Faragher/Ellerth affirmative
defense, in part based on the district court’s failure to
credit the plaintiff’s testimony that she did not receive
harassment policy); see also id. at 1316 (“assessments of
witness credibility ... by definition cannot be resolved
at summary judgment”).
He has not offered a sufficient
basis to conclude, when considering the evidence in the
light most favorable to Osburn, that these policies were
effectively published. Therefore, the court finds there
is a genuine dispute of material fact on this issue.
concluding that DISA promptly took reasonable care to
correct harassment once it had been identified.
(Doc. No. 131-13); Sign-in Sheet (Doc. No. 144-6).
Osburn objects to this evidence on evidentiary grounds.
However, even if the evidence is reducible to admissible
form and establishes that Osburn attended the training,
it remains true that the Secretary has failed to show the
policies were effectively published. After all, Osburn
claims Tarver was harassing her by mid-2007, nearly two
years before the disputed training.
reasonably promptly on [Osburn’s] complaint when it was
given proper notice of her allegations as required under
Frederick, 246 F.3d at 1314.
its complaint procedures.”
alternative to reporting harassment to the EEO or human
See Policies (Doc. No. 131-12) at 4
appropriate supervisor and via internal chain of command
and/or to their local servicing EEO office”); id. at 6
(“you may contact any member of the DISA Management Team
elaborated that “[o]nce a supervisor is informed of an
incident of alleged sexual harassment, the supervisor
will immediately inform and consult with the DISA EEO
itself answered the question of when it would be deemed
to have notice of the harassment sufficient to obligate
it or its agents to take prompt and appropriate remedial
Coates v. Sundor Brands, Inc., 164 F.3d 1361,
1364 (11th Cir. 1999).
According to Osburn’s testimony, when she reported to
her second-line supervisors that Tarver was sexually
harassing her, they referred her elsewhere and took no
See Osburn Dep. Vol. I (Doc. No. 131-
1) at 19 (Osburn reported sexual harassment to Richert in
October 2009, and Richert told her that she “need[ed] to
watch [her] back” and that she should “contact [EEO
Specialist] Allison [Stafford]”); id. (Osburn reported
sexual harassment to Raney in November 2009, and he told
her that if she “felt [she] had been harassed or worse,
[she needed] to ... document [her] actions and go to
[Human Resources]”).9 They not only failed immediately to
inform an EEO specialist, as required by the policies,
but also never informed an EEO specialist at all. Not
9. The fact that the supervisors deny that Osburn
reported sexual harassment, see Richert Affidavit (Doc.
No. 131-15); Raney Affidavit (Doc. No. 131-16), simply
means there is a genuine dispute on that issue.
until six months later, when Osburn contacted an EEO
specialist, did DISA take any action.10
This tardy action
well after Osburn informed the supervisors clearly does
not meet DISA’s own policy. Taking the evidence in the
light most favorable to Osburn, the Defense Secretary has
promptly upon receiving Osburn’s complaint.11
Because the court has concluded that genuine disputes
of material fact preclude a finding for the Secretary on
the first prong of the affirmative defense, that DISA
10. The Secretary argues that Richert and Raney did
take action: they told Osburn to talk to someone else.
Once again, the court may look to DISA’s own policies for
guidance, see Coates, 164 F.3d at 1364, and the policies
required immediate notification of an EEO specialist,
Policies (Doc. No. 131-12) at 5. According to Osburn’s
version of events, her supervisors did not do so. Thus,
their advice to Osburn to talk to someone else is
insufficient to establish that DISA took reasonable care
to promptly correct the harassment.
11. Osburn contends that DISA’s response was also
inadequate because its remedy–-namely her transfer--left
her in a worse position. This transfer will be discussed
in the retaliation section below. Given the material
disputes already identified for the sex discrimination
claim, the court need not resolve the adequacy of DISA’s
remedial measures here.
exercised reasonable care to prevent and correct the
behavior, the court need not reach the second prong, that
See Nurse “BE”, 490 F.3d at 1309 (“As an
affirmative defense, the defendant bears the burden of
establishing both ... elements.”).
In summary, because a jury could conclude that Tarver
was Osburn’s supervisor, as defined in Vance; that Osburn
was subjected to a hostile-work environment; and that
discrimination claim will be denied.
“Title VII prohibits not only discrimination, but
retaliation against an employee because she ‘has opposed
any practice made an unlawful employment practice by
Kidd v. Mando Am. Corp., 731 F.3d 1196,
1211 (11th Cir. 2013) (quoting Crawford v. Carroll, 529
F.3d 961, 970 (11th Cir. 2008)).
The parties agree that
the McDonnell Douglas burden-shifting framework applies
to this case.
See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–05 (1973).
Once a plaintiff establishes a
prima-facie case of retaliation, the burden of production
shifts to the defendant to rebut the presumption by
discriminatory reason for the adverse employment action.
Brown v. Alabama Dep't of Transp., 597 F.3d 1160, 1181
(11th Cir. 2010).
“If the defendant carries this burden
of production, the presumption raised by the prima facie
case is rebutted and drops from the case.”
the defendant makes this showing, the plaintiff has a
defendant’s proffered reason was merely a pretext to
cover up a retaliatory or discriminatory action.
In this case, Osburn has pointed to the following
allegedly retaliatory conduct: (1) her transfer to a non-
supervisory position in isolated conditions; (2) her
constructive discharge; and (3) DISA’s opposition to her
application for worker’s compensation benefits.12
Secretary argues that Osburn has failed to establish a
prima-facie case as to each and that in any event she has
12. In her brief, Osburn also points to a narrative
she submitted as an exhibit to her opposition to the
Secretary’s motion for summary judgment, claiming it
contains “a detailed timeline of events which constitute
retaliatory harassment.” Pf. Opp. Br. Summ. Judgt. (Doc.
No. 139) at 60. The statement, which is 15 pages long
and single spaced, discusses the events following her
report to EEO Specialist Stafford in great detail,
including events that could not possibly constitute
retaliation. See, e.g., Osburn Statement (Doc. No. 13826) at 5 (“Mike took Rocky to doggie day care.”). Osburn
fails to explain which of those events she considers to
be retaliation. See Fed. R. Civ. P. 56(c)(1) (“A party
asserting that a fact cannot be or is genuinely disputed
must support the assertion by ... citing to particular
parts of materials in the record”) (emphasis added).
Furthermore, the statement appears not to be sworn or
made under penalty of perjury. See Carr v. Tatangelo,
338 F.3d 1259, 1273 n.26 (11th Cir. 2003) (document
submitted “without attestation” had “no probative value”
and was properly disregarded at summary judgment). The
court has therefore considered only the specific
retaliatory actions Osburn alleged, as described above,
and not the nonspecific timeline of purportedly
Osburn first argues that her transfer to a nonsupervisory position in isolated conditions was unlawful
“To make out a prima facie case of retaliation, a
plaintiff must show: (1) that she engaged in an activity
protected under Title VII; (2) she suffered a materially
adverse action; and (3) there was a causal connection
between the protected activity and the adverse action.”
Kidd, 731 F.3d at 1211 (citing Chapter 7 Tr. v. Gate
Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012)).
satisfied the first prong by filing her EEO complaint.
An action is materially adverse if it “well might
supporting a charge of discrimination.”
Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
standard is “decidedly more relaxed” than the previous
requirement for “a serious and material change in the
original)(internal quotation marks omitted).
As to Osburn’s transfer following her EEO complaint,
it is undisputed that she did not suffer any loss of pay
or benefits. However, Osburn argues that she was stripped
allegation does not meet the prima-facie standard for a
It is open to question whether the Secretary is
applying Burlington or the old standard. Compare Def. Br.
in Supp. of Summ. Judgt. (Doc. No. 134 at 56)(quoting
Burlington) with id. at 57 (“the conduct must meet some
threshold level of substantiality”); Dft. Reply Br. Summ.
evidence of an objectively serious and material change”).
To the extent that he relies on the old substantiality
standard, the Burlington Court “effectively rejected” it,
and his arguments are thus inapplicable. Crawford, 529
F.3d at 973-74. To the extent he relies the on the
Burlington standard, the court finds a genuine dispute of
material fact on whether Osburn’s transfer and isolation
The Secretary also argues that Osburn has failed to
establish the causation prong of the prima-facie case
with regard to her transfer.13 This argument is meritless.
It is undisputed that Osburn was transferred as a result
of her complaint.
See Dft. Br. Summ. Judgt. (Doc. No.
134) at 55 (“When the plaintiff first contacted EEO and
13. “The Supreme Court recently held that a plaintiff
must demonstrate that his protected activity was the
‘but-for’ cause of the adverse employment decision.”
Mealing v. Georgia Dep't of Juvenile Justice, 564 Fed.
App’x. 421, 426 (11th Cir. 2014) (quoting Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013)).
office immediately initiated actions ... including moving
... the Plaintiff.”).
Of course, the Secretary contends
retaliatory; but he does not, and cannot, deny that
“there was a causal connection between the protected
Kidd, 731 F.3d at
activity and the adverse action.”
Thus, on either side’s version of events, there is
a clear causal connection between the EEO filing and
Because Osburn has established a prima-facie case,
the burden shifts to the Defense Secretary “to rebut the
presumption by producing sufficient evidence to raise a
[retaliated] against the employee.”
Hall v. Alabama
Ass’n of Sch. Boards, 326 F.3d 1157, 1166 (11th Cir.
2003) (incorporating opinion of Thompson, J.).
non-[retaliatory] reason for the employment decision,
The burden then shifts back to the
“Once the employer satisfies this burden of
persuading the court that the proffered reason for the
employment decision is a pretext for [retaliation].
employee may satisfy this burden either directly, by
persuading the court that a [retaliatory] reason more
than likely motivated the employer, or indirectly, by
persuading the court that the proffered reason for the
employment decision is not worthy of belief.
persuading the court, the employee satisfies his ultimate
As to Osburn’s transfer, which allegedly involved
stripping her of supervisory authority and isolating her
from other employees and work areas, the Secretary has
carried his “exceedingly light” burden of production.
Perryman v. Johnson Products Co., Inc., 698 F.2d 1138,
1142 (11th Cir. 1983).
He submitted an affidavit from
Margaret Brasfield, a Human Resources Field Advisor,
indicating that Osburn herself requested a transfer.
Brasfield Affidavit (Doc. No. 131-75).
that Osburn requested that she be placed under particular
supervisors and that Osburn knew such placement would
mean that she would no longer have supervisory duties.
As for her isolation, the Secretary submitted an
affidavit from Dan Dingler, who was Osburn’s third-line
supervisor, stating that Osburn was placed on a different
floor, to which access was restricted, in order that she
Affidavit (Doc. No. 131-17) at 3.
However, Osburn has established genuine disputes of
According to Osburn, she did not request a transfer;
rather, she asked only that Tarver be transferred away.
See Osburn Dep. Vol. II (Doc. No. 131-7) at 11 (“I
requested Tarver be moved.
That case, I could stay where
Osburn says she requested a transfer, and
specifically a transfer to a particular supervisor, only
if Tarver could not be moved.
Furthermore, it is
See Dingler Affidavit (Doc. No. 131-17) at 4.
Thus, on Osburn’s version of events, and given that
Tarver would be gone, she did not request a transfer.
And, if a jury were to believe her, that would be a basis
to discredit the Secretary’s evidence that the reason for
her transfer, and the accompanying loss of supervisory
duties, was that she requested it.
See Osburn Dep. Vol.
II (Doc. No. 131-7) at 11 (“I didn’t think they would
take ... me away from my team because of something he did
I requested that he no longer supervise.”).
Similarly, Osburn has introduced evidence to rebut
the Secretary’s suggestion that she was isolated in order
to protect her and give her a sense of safety.
Osburn denies that she asked to be placed in a safe
But, furthermore, there is evidence
based on which a jury could discount even the perceived
need to move Osburn out of safety concerns.
been transferred to another building, directed not to
enter his prior building, and required to surrender his
See Dingler Affidavit (Doc. No. 131-17) at
This certainly suggests that Osburn would have been,
and would have felt, safe even if she had stayed at her
prior office as she wanted to.
The Secretary introduced
evidence, though, that the fourth floor, to which Osburn
was moved, was more secure: it was restricted, and Tarver
did not have access.
But, again, Osburn contests
this reasoning: according to her testimony, “The whole
building was locked.”
Osburn Dep. Vol. II (Doc. No. 131-
7) at 11.14
14. In his brief, the Secretary states that the
transfers were undertaken while official investigations
were pending, apparently suggesting that this justified
Taken together, Osburn’s evidence has cast sufficient
doubt on the Defense Secretary’s proffered explanations
for the transfer that a reasonable jury could disbelieve
“A plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of
Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 147 (2000).
In this case, the court
concludes that a reasonable jury could, on this record,
explanations for the transfer were pretextual and that in
retaliate against her for her EEO complaint.
Osburn’s isolation. See Dingler Affidavit (Doc. No. 13117) at 4.
Osburn has denied the investigations were
ongoing at the time. Osburn Dep. Vol. II (Doc. No. 1317) at 11.
retaliation claim based on the transfer.
2. Constructive Discharge
In her complaint, Osburn also alleged that DISA
constructively discharged her in retaliation for filing
her EEO complaint.
She makes no such argument in her
The court finds that she has abandoned this
See Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995) (“grounds alleged in the
complaint but not relied upon in summary judgment are
3. Worker’s Compensation
Osburn’s last allegation is that DISA retaliated
against her by opposing her worker’s compensation claim.
Because the parties did not fully address this issue in
their briefing, the court makes no determination on the
issue and, instead, will discuss this issue further with
summary judgment (Doc. No. 131) filed by defendant Chuck
Hagel, in his capacity of Secretary of the Department of
Defense, is denied in all respects except as to plaintiff
Sharon Osburn’s claim of retaliatory opposition to her
request for worker’s compensation.
The court reserves
opposition to plaintiff Osburn’s request for worker’s
constructive-discharge claim is dismissed as abandoned.
DONE, this the 15th day of September, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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