Osburn v. Panetta et al

Filing 191

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

SHARON OSBURN,
Plaintiff,
v.
CHUCK HAGEL, Secretary,
Department of Defense,
(Defense Information
Systems Agency),
Defendant.

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CIVIL ACTION NO.
2:12cv349-MHT
(WO)

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.

Subject-matter

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.
in part.

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.

The court

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.”
Fed.

R.

Civ.

P.

56(a).

The

court

must

view

the

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).

II. BACKGROUND
Osburn alleges that, while she worked at the Defense
Information

Systems

Agency

(“DISA”),

her

first-line

supervisor, Tim Tarver, subjected her to an array of
sexual

harassment,

including

2

raping

her

on

five

occasions.

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.
Tarver

dialed-up the harassment.

By late 2007,

He began touching

Osburn, patting her buttocks and touching her breasts.
He

told

her

he

would

help

her

with

her

career

immediately followed-up with sexual comments to her.

and
He

also told her that if she said anything he would ruin her
career.
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.

3

She was

Another night, he

again stayed late, apparently hoping to corner her, but,
at her request, a co-worker stayed late as well.

Tarver

would drive by Osburn’s house when she was home alone,
and one night he came to her door uninvited.

He also

continued to touch her and make sexual comments at work.
At the end of January 2008, Tarver raped Osburn.

He

called her into his office, locked the door, forcibly
performed oral sex on her, and then had intercourse with
her.

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
harassing her.

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
Stafford,
specialist.

an

Equal

Employment

Opportunity

(“EEO”)

Osburn tried to contact Stafford several

4

times

but

could

not

reach

her

and

did

not

leave

a

message.
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.

Raney

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
Raney’s office.
Osburn decided to report everything.

She contacted

EEO Specialist Stafford and told her that Tarver had

5

raped her.

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
7, 2010.

At that time, she was reassigned to a non-

supervisory position.

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
isolated location.
instead

or

for

She asked for Tarver to be moved

DISA

to

allow

her

to

transfer

Huntsville, Alabama, but the agency refused.

to

She moved

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
stress disorder.

Her doctor determined that she would be

1. Osburn states in her brief that Tarver was
convicted of harassing communications arising out of this
conduct.
However, her citations to the record do not
support that assertion.
6

unable to return to work because of her symptoms.

She

submitted an application to the Department of Labor for
worker’s

compensation

benefits.

DISA

opposed

the

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
terminated Osburn.

Osburn brought this lawsuit against

the Secretary of Defense.

III. DISCUSSION
Title
against

VII
an

U.S.C.2000e–2
sex-based

bars

an

employee

employer
“because

(a)(1).

discrimination

This
that

conditions of employment.”

from
of

discriminating
...

provision
alters

the

sex.”

42

“prohibits
terms

and

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

7

harassment and retaliation, and the Defense Secretary
seeks summary judgment in his favor on each claim.

A.
An

employee

Sex Discrimination

can

establish

a

sex-based

violation

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
terms

and

conditions

of

the

work.”

Nurse

“BE”

v.

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
A

tangible-employment

action

is

“‘a

significant

change in employment status, such as hiring, firing,

8

failing

to

different

promote,

reassignment

responsibilities,

or

a

significant change in benefits.’”

with

significantly

decision

causing

a

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
Osburn.

The court agrees.

9

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.
See,

e.g.,

Tarver

Polygraph

(Doc.

No.

138-2)

at

15

(stating he “had pages of documentation” and “was gonna
do something formal” when Osburn reported the instant
allegations).

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
unfulfilled

threats,

it

should

be

categorized

as

a

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,
such

as

discharge,

demotion,

reassignment.”) (emphasis added).

10

or

undesirable

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.

This conduct,

if true, certainly constitutes sexual harassment.
does

not

fall

within

employment action.

the

definition

of

But it

tangible-

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
tangible-employment
criticism

could

action).

lead

to

While,

economic

harm

conceivably,
under

some

circumstances, there has been no showing that it did so
in this case.
Finally,

Osburn

argues

that

she

received

lower

bonuses when compared to those of other supervisors who

11

worked

under

Tarver.

However,

she

has

establish that was actually the case.
exchange

at

her

deposition

failed

to

The following

provides

the

strongest

support:
“Q. And what types of payouts did you
yourself receive?
“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.
only

basis

supervisors

for

comparison,

told

her,

is

namely

hearsay,

what
and

Osburn’s
the

she

other

has

not

explained how it can be reduced to admissible form.

See

Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir.
2005).

She has not introduced, for example, testimony

from those other supervisors or documentary evidence

12

indicating that she was given lower bonus amounts.

On

this record, Osburn has simply failed to establish any
tangible-employment action.

2.

Hostile-Work Environment

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
based

on

her

sex;

(4)

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

13

was ‘unwelcome.’

He also argues that, even if Tarver

harassed Osburn, Osburn has failed to establish the fifth
element, vicarious liability, for two reasons: (a) Tarver
was

not

Osburn’s

supervisor

and

(b)

the

agency

is

entitled to the Faragher/Ellerth affirmative defense.

a.

Unwelcome Conduct

The Defense Secretary first argues that Osburn’s
harassment claim fails because she did not establish that
Tarver’s conduct was ‘unwelcome.’
at 1244.

See Hulsey, 367 F.3d

He argues that the sexual contact between

Osburn and Tarver was entirely consensual.

He states

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)).

14

However, in reality, Osburn has offered significantly
more than bare assertions to corroborate her version of
events.

Souther, 523 F. App’x at 355 (internal quotation
Indeed, unlike Souther, in this case

marks omitted).

Osburn has submitted, in addition to her sworn testimony,
corroborating evidence that she complained to others
during the course of the alleged harassment.

See, e.g.,

Garrison

(co-worker

Affidavit

describing

both

(Doc.

his

own

No.

138-10)

observations

and

statements

Osburn made to him about Tarver); Lewis Affidavit (Doc.
No. 138-11) (same); Padgett Affidavit (Doc. No. 138-12)
(same).

For example, one co-worker indicated in a sworn

statement that he observed Tarver making “inappropriate”
comments
clearly

about

Osburn’s

“bothered

her”

appearance,
and

left

uncomfortable after his visits.”
(Doc. No. 138-10) at 3.

her

comments

which

looking

“very

Garrison Affidavit

The co-worker stated that Osburn

also repeatedly told him that Tarver commented on her
appearance and body, and touched her inappropriately.

15

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
favorable

to

Osburn,

do

not

suggest

a

welcomed

and

consensual sexual relationship.
Certainly, there is also evidence that tends to
undermine Osburn’s version of events.

Tarver himself

stated that all of the sexual conduct was consensual even
though he admitted that on at least one occasion she said
“no.”2

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
consensual.
He states that what he meant by coercion is that she
(continued...)
16

sincere or playful, is for the jury to decide. Moreover,
that

she

also

did

not

say

“yes”

is

a

fact

to

be

considered by the jury in deciding whether the sex was
coerced. Cf. Nicholas J. Little, Note, From No Means No
to

Only

Yes

Means

Yes:

The

Rational

Results

of

an

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
Rape,

100

Yale

L.J.

2687,

2703

(1991)(arguing

that

2(...continued)
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
left.”
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
“no.”
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.
17

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 t

A 1 6 ,

a v a i l a b l e

a t

http://www.nytimes.com/2014/09/11/us/california-bill-se
ts-sights-on-curbing-campus-sex-assaults.html (reporting
on California bill requiring that universities receiving
state

funds

mandate

verbal

or

nonverbal

affirmative

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

a t

www.mit.edu/activities/safe/data/other/antioch-code (old
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

18

of

undisputed

‘welcomed.’
inviting

fact,

that

the

sexual

conduct

was

On the contrary, it appears the Secretary is

the

court

to

discount

Osburn’s

versions

of

events, which is at least in part corroborated by other
witnesses, based on a suggested negative determination
regarding

her

inappropriate

credibility.
at

summary

To

do

judgment.

so

would

be

Frederick

v.

Sprint/United Mgmt. Co., 246 F.3d 1305, 1316 (11th Cir.
2001).3

The

court

finds

that,

with

the

evidence

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.
19

b.

Vicarious Liability

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:
“Under
Title
VII,
an
employer’s
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,
different
rules
apply.
If
the
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
the
preventive
or
corrective
opportunities
that
the
employer
provided.”
Vance, 133 S. Ct. at 2439.

20

As set forth in Vance, Osburn may establish the
Defense

Secretary’s

vicarious

conduct in either of two ways.

liability

for

Tarver’s

Both require the court to

find that Tarver was Osburn’s ‘supervisor,’ as that term
was interpreted in Vance.
a

First, if Osburn can establish

tangible-employment-action

Secretary is strictly liable.

violation,

then

the

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.
establish

any

basis

for

vicarious

If Osburn cannot
liability,

the

Secretary could still be held liable on a negligence
theory based on co-worker harassment. Vance, 133 S. Ct.
at 2451.

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

21

supervisor; and, second, that he has established the
affirmative defense.4

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
unreasonably
interferes
with
the
employee’s
job
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
favorable
to
Osburn,
Tarver’s
conduct,
including
“fondling and sexual assault,” is “sufficient to create
a sexually hostile and abusive work environment that
altered
the
terms
and
conditions
of
[Osburn’s]
employment.” Id.
22

i.

Supervisor

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

term

Vance, 133

The Court rejected an understanding of

‘supervisor’

that

would

require

only

“the

ability to exercise significant direction over another’s
daily work,” and instead held that an employee is a

23

supervisor “when the employer has empowered that employee
to take tangible employment actions against the victim,
i.e.,

to

status,

effect
such

reassignment

as

a

‘significant

change

hiring,

firing,

with

in

failing

employment
to

significantly

promote,

different

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
third-line

supervisors

were

‘supervisors’

for

the

purposes of Title VII.
In Vance, the Supreme Court emphasized the need for
a simple and administrable definition of ‘supervisor.’

24

But

the

Court’s

without nuance.

understanding

of

that

term

was

not

The Court did not, for example, hold

that only an individual in whom the official, formal
authority

to

hire,

fire,

and

take

other

tangible

employment actions would qualify as a supervisor.
contrary,

the

Court

repeatedly

emphasized

On the

that

the

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
individuals

will

have

a

limited

ability

to

exercise

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.

The

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

25

victim],

[the

harassers]

necessarily

must

have

had

substantial input into those decisions, as they would
have

been

the

people

most

familiar

with

her

work--

certainly more familiar with it than the off-site ...
Id. (quoting Rhodes v. Illinois Dept. of

Manager.’”

Transp., 359 F.3d 498, 509 (7th Cir. 2004) (Rovner, J.,
concurring
(internal

in

part

quotation

circumstances,

the

and

concurring

marks

omitted)).

employer

effectively

delegated

employment

actions

the

judgment)

“Under

those

may

be

held

to

power

the
to

in

to

take

tangible

the

recommendations it relies.”

employees

Id.

on

have

whose

In other words, the

Court expressly anticipated that individuals who did not
have formal authority would wield effective power to take
tangible-employment actions.

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
adopted

definition

squared

26

with

the

Court’s

prior

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
cases

would

supervisors.

(or,

in

one

case,

might)

qualify

as

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
his

supervisor,

who

merely

Vance, 133 S.Ct. at 2446.

signed

the

paperwork).”

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

27

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).
As

to

the

other

harasser

in

that

case,

the

Court

indicated that he “might” qualify as a supervisor based
on his “disciplinary decisions and ... input on ...
evaluations”
consequences.”

if

those

actions

Id. at 2447 n.9.

had

“economic

Similarly, if his

assignment of different responsibilities had “economic
consequences,”

for

example

by

“foreclosing

...

eligibility for a promotion,” then, again, he “might”
qualify as a supervisor.
Taken

together,

the

Court’s

point

is

clear:

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

28

her subordinates and who has the power to recommend or
otherwise

substantially

influence

tangible

employment

actions, and who can thus indirectly effectuate them,
also

qualifies

as

a

‘supervisor’

under

Title

VII.”

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.
of

his

motion

for

summary

judgment,

the

In support
Secretary

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.”

Tarver Affidavit

(Doc. No. 131-14) at 2-3; see also Richert Affidavit
(Doc. No. 131-15) at 2-3 (Tarver did not have authority

29

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
“unilaterally”

take

action

against

Affidavit (Doc. No. 131-15) at 2.

Osburn.

Richert

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,”

Kramer,

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.

Tarver’s

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.
30

job description, for example, provides that among his
“major duties” was “supervising employees,” and, among
other

things,

his

job

involved

“evaluat[ing]

work

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

his

that,

statements

and

Osburn’s

of

Osburn’s

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

31

conclude that Tarver was a “manager who work[ed] closely
with [Osburn] and who ha[d] the power to recommend or
otherwise
actions,

substantially
and

who

influence

c[ould]

thus

tangible

employment

indirectly

effectuate

Kramer, 743 F.3d at 738.

them.”

therefore,

not

entitled

to

The Secretary is,

summary

judgment

on

this

basis.

ii.
The

Faragher/Ellerth affirmative defense
Defense

Faragher/Ellerth

Secretary

affirmative

next

invokes

defense.

“An

the

employer

avoids liability under this defense if: 1) it ‘exercised
reasonable
sexually

care

to

harassing

‘unreasonably

prevent

and

behavior’;

failed

to

take

correct
and

2)

promptly
the

advantage

any

employee
of

any

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

32

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
“BE”,

490

omitted).

F.3d

at

1308

(internal

quotation

marks

This prong really has two parts: reasonable

care to prevent harassment, and reasonable care promptly
to correct harassment once it has been identified.

See

Frederick, 246 F.3d at 1313.
The

Defense

Secretary

argues

that

DISA

took

reasonable care to prevent harassment by promulgating a
series of sexual-harassment policies.6
his

burden,

he

must

show

that

In order to carry
the

polices

were

“effectively published, that [they] contained reasonable

6. Osburn moved to strike or disregard most of the
policies based on alleged discovery violations.
In a
separate opinion and order, the court has denied that
motion.
33

complaint procedures, and that [they] contained no other
fatal defect.”
The

Id. at 1314.

Secretary

argues

effectively published.
the

policies,

see

that

the

polices

were

In support, he offers copies of

Policies

(doc.

no.

131-12),

and

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.
the

Secretary

has

Osburn’s

testimony

judgment

standard

offered

evidence

is

true;

not

require[s]”

[Osburn’s] testimony.”8

to

but

this

Certainly,

suggest

“[t]he

court

See

to

that

summary
“credit

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.
8.
The Secretary introduced evidence that Osburn
attended a training in February 2009, at which the
harassment policy was discussed. See Stafford Affidavit
(continued...)
34

(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.
Genuine

disputes

also

prevent

the

court

from

concluding that DISA promptly took reasonable care to
correct harassment once it had been identified.

The

8(...continued)
(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.
35

Secretary’s

burden

is

to

establish

that

DISA

“acted

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.”
Those

policies

harassment

indicate

within

their

that
own

employees
chain

of

could
command

report
as

an

alternative to reporting harassment to the EEO or human
See Policies (Doc. No. 131-12) at 4

resources offices.
(“the

individual

should

report

the

incident

to

the

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
for

assistance”);

id.

at

10

(same).

The

policies

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
office.”

Id.

at

5.

“With

th[ese]

polic[ies],

[DISA]

itself answered the question of when it would be deemed
to have notice of the harassment sufficient to obligate

36

it or its agents to take prompt and appropriate remedial
measures.”

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
action themselves.

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.
37

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
therefore

failed

to

establish

DISA

acted

reasonably

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.
38

exercised reasonable care to prevent and correct the
behavior, the court need not reach the second prong, that
Osburn

failed

measures.

to

take

advantage

of

such

corrective

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
DISA

failed

harassment,

to

take

summary

reasonable
judgment

care
on

to

prevent

Osburn’s

sex

discrimination claim will be denied.

B. Retaliation
“Title VII prohibits not only discrimination, but
retaliation against an employee because she ‘has opposed
any practice made an unlawful employment practice by
Title VII.’”

Kidd v. Mando Am. Corp., 731 F.3d 1196,

1211 (11th Cir. 2013) (quoting Crawford v. Carroll, 529

39

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
articulating

a

legitimate,

non-retaliatory

and

non-

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.”

Id.

After

the defendant makes this showing, the plaintiff has a
full

and

fair

opportunity

to

demonstrate

that

the

defendant’s proffered reason was merely a pretext to
cover up a retaliatory or discriminatory action.

Id. at

1181-82.
In this case, Osburn has pointed to the following
allegedly retaliatory conduct: (1) her transfer to a non-

40

supervisory position in isolated conditions; (2) her
constructive discharge; and (3) DISA’s opposition to her
application for worker’s compensation benefits.12

The

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
retaliatory events.
41

failed

to

show

that

his

non-retaliatory

reasons

are

pretextual.

1. Transfer
Osburn first argues that her transfer to a nonsupervisory position in isolated conditions was unlawful
retaliation.
“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)).
The

Defense

Secretary

does

not

dispute

that

Osburn

satisfied the first prong by filing her EEO complaint.
An action is materially adverse if it “well might
have

dissuaded

a

reasonable

worker

supporting a charge of discrimination.”

42

from

making

or

Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

This

standard is “decidedly more relaxed” than the previous
requirement for “a serious and material change in the
terms,

conditions,
529

Crawford,

or

F.3d

at

privileges
970-71;

of
973

employment.”
(emphasis

in

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
of

her

supervisory

coworkers,
Secretary

unable
contends

duties

to

and

access

certain

that

this

was

isolated
work

transfer

and

areas.

from
The

isolation

allegation does not meet the prima-facie standard for a
retaliation case.
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.

43

Judgmt.

(Doc.

No.

144)(“the

employee

must

present

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
might

dissuade

a

reasonable

worker

from

alleging

discrimination.
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)).
44

made

allegations

of

harassment

...

the

Agency’s

EEO

office immediately initiated actions ... including moving
... the Plaintiff.”).
that

the

reasons

Of course, the Secretary contends

for

Osburn’s

transfer

were

not

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.”
1211.

Thus, on either side’s version of events, there is

a clear causal connection between the EEO filing and
Osburn’s

transfer.

established

a

The

court

prima-facie

case

concludes
with

Osburn

regard

to

has
her

transfer.
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
genuine

issue

of

fact

as

to

whether

[retaliated] against the employee.”

the

employer

Hall v. Alabama

Ass’n of Sch. Boards, 326 F.3d 1157, 1166 (11th Cir.
2003) (incorporating opinion of Thompson, J.).

45

“This may

be

done

by

the

employer

articulating

a

legitimate,

non-[retaliatory] reason for the employment decision,
which

is

clear,

credence.”
plaintiff:
production,

reasonably

specific,

and

worthy

of

The burden then shifts back to the

Id.

“Once the employer satisfies this burden of
the

employee

then

has

the

burden

of

persuading the court that the proffered reason for the
employment decision is a pretext for [retaliation].

The

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.

By so

persuading the court, the employee satisfies his ultimate
burden

of

evidence

demonstrating
that

[retaliation].”

he

has

by

been

a

preponderance

the

victim

of

of

the

unlawful

Id.

As to Osburn’s transfer, which allegedly involved
stripping her of supervisory authority and isolating her

46

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).

Brasfield states

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

Id.

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
could

“[feel]

safe

and

could

function.”

Dingler

Affidavit (Doc. No. 131-17) at 3.
However, Osburn has established genuine disputes of
material

fact

regarding

the

Secretary’s

account.

According to Osburn, she did not request a transfer;

47

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.
I was.”).

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.
undisputed
building.

that

Tarver

was

Id.

Furthermore, it is

transferred

to

another

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
to me.

I requested that he no longer supervise.”).

Similarly, Osburn has introduced evidence to rebut
the Secretary’s suggestion that she was isolated in order

48

to protect her and give her a sense of safety.

First,

Osburn denies that she asked to be placed in a safe
environment.

Id.

But, furthermore, there is evidence

based on which a jury could discount even the perceived
need to move Osburn out of safety concerns.

Tarver had

been transferred to another building, directed not to
enter his prior building, and required to surrender his
office keys.
4.

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.

Id.

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
(continued...)
49

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
those reasons.

“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
fact

to

conclude

[retaliated].”

that

the

employer

unlawfully

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,
reasonably

conclude

that

the

Secretary’s

proffered

explanations for the transfer were pretextual and that in
reality

DISA

supervisory

transferred

duties,

and

Osburn,
isolated

took
her

in

retaliate against her for her EEO complaint.

away
order

her
to

Therefore,

14(...continued)
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.
50

summary

judgment

will

be

denied

as

to

Osburn’s

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.
brief.
argument.

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
deemed abandoned”).

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

51

issue and, instead, will discuss this issue further with
the parties.
***
Accordingly,

it

is

ORDERED

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.
ruling

at

this

time

on

this

The court reserves

claim

of

retaliatory

opposition to plaintiff Osburn’s request for worker’s
compensation.
It

is

further

ORDERED

that

the

retaliatory

constructive-discharge claim is dismissed as abandoned.
DONE, this the 15th day of September, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE