Masse v. Holder

Filing 37

ORDER granting 20 Motion for Summary Judgment. Case dismissed with prejudice. By Judge Christine M. Arguello on 6/28/12.(cmacd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-01144-CMA-CBS
BARI RAE MASSE,
Plaintiff,
v.
ERIC H. HOLDER, JR., Attorney General,
U.S. Department of Justice, Federal Bureau of Prisons,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

In this hostile work environment sexual harassment case, Plaintiff Bari Rae
Masse brings a claim under Title VII of the Civil Rights Act of 1964, alleging that
Defendant, the Attorney General of the United States, in his supervisory authority of the
Bureau of Prisons (ABOP@),1 failed to take proper actions following incidents of sexual
harassment perpetrated on Plaintiff by a fellow BOP employee. (Doc. # 1 at 5.)
Currently before the Court is Defendant=s AMotion for Summary Judgment and
Supporting Brief, and Partial Motion to Dismiss.@ (Doc. # 20.) The motion is ripe.2
Jurisdiction is proper pursuant to 28 U.S.C. ' 1331 (federal question). For the reasons

1 BOP is a branch of the Department of Justice (ADOJ@).
2 Plaintiff responded on February 24, 2012 (Doc. # 23), and Defendant replied on March 16,
2012 (Doc. # 27).

stated below, the Court grants Defendant's summary judgment motion and denies as
moot his partial motion to dismiss.
I. BACKGROUND
A.

FACTS3
Plaintiff began her employment with BOP in October 2007 as a Correctional

Officer (ACO@) at the United States Prison in Florence, Colorado. (Doc. # 1 at 2.) On
March 24, 2008, she started her shift in one of the guard towers by relieving a fellow
Officer, William Williams (AWilliams@). (Id.) Williams was senior to Plaintiff, but he did
not function in a supervisory capacity over her. (Doc. ## 20 at 4;4 20-25 at 2.) That
night, Williams sexually harassed Plaintiff by making multiple unwanted sexual
comments and advances during his shift change while he was alone with Plaintiff in the
guard tower. (Doc. # 1 at 2.) After Williams left the tower, Plaintiff mentioned to fellow
Officer Jeff Madison that Williams made sexually explicit comments to her, but she did
not provide specifics. (Doc. ## 20 at 4; 20-2 at 14-15, 17.)

3 When addressing a motion for summary judgment, the Court views the facts in the light most
favorable to the non-moving party. Allen v. Minnstar, Inc., 8 F.3d 1470, 1476 (10th Cir. 1993).
Thus, in the instant case, reasonable inferences are drawn and factual ambiguities are resolved
in Plaintiff=s favor.
4 The record cites from Defendant’s motion for summary judgment (Doc. # 20) have been
admitted by Plaintiff.
5 Transcript of Plaintiff’s interview with the Equal Employment Opportunity Investigator on

October 23, 2008.

2

A similar incident occurred on March 31, 2008, and Plaintiff mentioned it to
Officer Steven Reinart but did not provide details other than indicating the conversation
was sexual in nature and was upsetting. (Doc. # 20 at 4-6.) Officer Reinart informed
Lieutenant Robert Cordova. (Id. at 5-6.) Neither CO Madison, nor CO Reinart, nor
Lieutenant Cordova was a supervisor.6 (See Doc. ## 20 at 4-5; 20-17 at 5-6; 20-88 at 4.)
Lieutenant Cordova informed Special Investigative Agent (ASIA@) Johnny Chavez, and
on April 1, 2008, SIA Chavez called Plaintiff to verify the report and to meet with her in
person later that day. (Doc. # 20 at 6.) At their meeting, Plaintiff communicated the
details of the incidents to BOP personnel for the first time. (Id. at 5-6.) SIA Chavez
told Plaintiff that Williams would be transferred. (Id. at 6.) Plaintiff left work after the
meeting for regularly scheduled time off and did not return to work until April 4, 2008.
(Id.) On April 2 or 3, 2008, Williams was reassigned to the Administrative Maximum
Institution (AADX@) part of the prison, and an investigation was initiated by the BOP
Office of Internal Affairs (AOIA@) following SIA Chavez=s initial report. (Doc. ## 20 at 6-8;
23 at 3.)
Meanwhile, Williams sent Plaintiff an email on both April 1 and April 2, 2008.
(Doc. # 20 at 7.) Plaintiff received the two emails when she returned to work on April 4,
6 Lieutenant Cordova was a CO at the time of the harassment incidents and did not function
in a supervisory role over Plaintiff; he was promoted to Lieutenant subsequent to the events
discussed here. (Doc. # 20-8 at 4.)
7 Plaintiff’s December 8, 2011 deposition.
8 Lieutenant Robert Cordova’s affidavit.

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2008.9 (Id.) Plaintiff, upset by the emails, reported them to her superiors, and they
extended her three days of administrative leave. (Id.)
Following Williams=s transfer, Plaintiff did not have any physical, verbal, or
electronic interactions with him, though she did see him on a few subsequent
occasions.10 At a meeting on July 13, 2008, Plaintiff informed her superiors that she
had observed Williams when she went to the Human Resources Office; they requested
that, in the future, she call ahead before going to the office so that they could ensure
Williams was not in the vicinity. (Id. at 8.) At this meeting Plaintiff also orally requested
a transfer to another BOP institution. (Id.) Her request was denied because, according
to BOP, she was within the one-year probationary period during which transfers are
prohibited. (Doc. ## 20 at 8-9; 20-511 at 9.)

9 The April 1 email stated: AHow are you? Nice talking to you. I really enjoy your company.
I hope this my relief for tower 4. Lol let me know. Have a great night, don=t work to hard . . .
see you next Monday night . . . .@ (Doc. # 20 at 7.) The April 2, 2008 email stated: AHe is your
lesson for this week . . . lol I hope you like it and not offended. sorry if you are. Love Wild Bill.@
The second e-mail also contained some ”jokes” called a A5 minute management course,@ which
Plaintiff did not read. (Id.) Williams also sent the A5 minute management course@ email to
Warden Sara Revell and Lieutenant Kenneth Lincoln. (Id.)
10 One occasion was during a prison riot to which all COs were summoned but at which

Plaintiff had no interaction with Williams. (Doc. # 20-1 at 8.) The other Atwo or three@ (Doc. # 20
at 8) or Athree or four@ (Doc. # 23 at 4) occasions were monthly visits Plaintiff made to the BOP
Human Resources Office. Viewing the facts in the light most favorable to Plaintiff, the Court
accepts as true her allegation that she saw Williams on an additional Athree or four occasions.@
11 Assistant Warden Denese Heuett’s affidavit.

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On April 13 and June 30, 2008, Williams made threats regarding Plaintiff to other
BOP employees, though he did not mention her by name. (Doc. # 20 at 9.) Williams
resigned on November 5, 2008, after receiving a notice of proposed termination.12
(Id. at 10.)
B.

PROCEDURAL HISTORY
Plaintiff filed an Equal Employment Opportunity (AEEO@) complaint on June 30,

2008, in which she alleged having been subject to sexual harassment on March 24 and
31, 2008, when Williams made the inappropriate statements to her in the guard tower.
(Id.) DOJ issued its Final Agency Decision on March 17, 2011, finding that Plaintiff was
subjected to sexual harassment by a co-worker but that she had not been subjected to
a hostile work environment.13 (Doc. # 20-19 at 10.)
Plaintiff filed a Complaint in this Court on April 29, 2011. (Doc. # 1.) She argues
that she was sexually harassed in violation of Title VII. (Id. at 5.) Defendant asserts
that Plaintiff=s claim fails because A[1] the alleged harassment was not sufficiently
severe or pervasive to create a hostile work environment [and] . . . [2] BOP took prompt
and appropriate remedial action designed to prevent further harassment upon being
12 The termination letter mentioned three separate instances of misconduct: (1) misuse of a

government computer (for sending the inappropriate emails to Plaintiff, Warden Revell, and
Lieutenant Lincoln on April 2, 2008); (2) unprofessional conduct (for the threatening statements
he made about Plaintiff to other staff members on April 13 and June 30, 2008); and (3) being
absent without leave for a certain period of time. (Doc. # 20 at 10.)
13 This finding is not binding on the Court. See, e.g., Timmons v. White, 314 F.3d 1229, 1232-

37 (10th Cir. 2003).

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informed of Plaintiff=s allegations, which included physically separating Williams from
Plaintiff by removing him to another institution, the ADX, investigating her allegations,
and ultimately proposing Williams=s termination from BOP . . . .@ (Doc. # 20 at 2.)
II. STANDARD OF REVIEW
The purpose of a summary judgment motion is to assess whether trial is
necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Federal Rule of
Civil Procedure 56(a) provides that A[t]he 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.@ A fact is “material@ if it pertains to an element
of a claim or defense; a factual dispute is “genuine@ if the evidence is so contradictory
that if the matter went to trial, a reasonable jury could return a verdict for either party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All facts and
reasonable inferences, as well as any factual ambiguities, must be construed in the light
most favorable to the nonmoving party. Allen v. Minnstar, Inc., 8 F.3d 1470, 1476 (10th
Cir. 1993); Houston v. Nat'l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
The moving party bears the initial burden of demonstrating the lack of an issue
of material fact. See Celotex Corp., 477 U.S. at 323. After the movant has met this
burden, the burden shifts to the nonmovant to put forth sufficient evidence for each
essential element of her claim such that a reasonable jury could find in her favor. See
Anderson, 277 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance

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Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go beyond
the allegations and denials of her pleadings and provide admissible evidence. Adickes
v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A.,
60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex Corp., 477 U.S. at 324). However,
“generalized, conclusory, unsubstantiated, non-personal affidavits are insufficient to
successfully oppose a motion for summary judgment.@ Stevens v. Barnard, 512 F.2d
876, 879 (10th Cir. 1975) (citation omitted); see also Garrett v. Hewlett-Packard Co.,
305 F.3d 1210, 1213 (10th Cir. 2002) (“We do not consider conclusory and self-serving
affidavits.@); 11 James Wm. Moore et al., Moore’s Federal Practice ' 56.41[1][c] (3d ed.
2011) (similar).
Finally, the Court notes that summary judgment is not a disfavored procedural
shortcut; rather it is an important procedure “designed >to secure the just, speedy, and
inexpensive determination of every action.=@ Celotex Corp., 477 U.S. at 327 (quoting
Fed. R. Civ. P. 1).
III. ANALYSIS
A.

SEXUAL HARASSMENT CLAIMS UNDER TITLE VII
Plaintiff alleges that “Defendant intentionally engaged in illegal employment

practices and policies and discriminated against plaintiff in the terms and conditions of
her employment, on the basis of sex, including but not limited to its failure and refusal to
remedy illegal sexual harassment, in violation of Title VII.@ (Doc. # 1 at 5.) Courts have

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interpreted Title VII to “prohibit two types of sexual harassment: quid pro quo sexual
harassment and hostile work environment sexual harassment.@ Hirschfeld v. New
Mexico Corrections Dep't, 916 F.2d 572, 577 (10th Cir. 1990). Quid pro quo sexual
harassment “involves the conditioning of tangible employment benefits upon the
submission to sexual conduct,@ whereas, hostile work environment sexual harassment
“occurs where sexual conduct has the purpose or effect of unreasonably interfering
with an individual=s work performance or creating an intimidating, hostile, or offensive
working environment.@ Id. (internal quotation marks, citations, and alterations omitted).
Plaintiff has neither asserted quid pro quo sexual harassment nor alleged facts to
support that claim, so the Court analyzes her complaint as a hostile work environment
claim.
For sexual harassment to be actionable under Title VII, “it must be sufficiently
severe or pervasive to alter the conditions of [the victim=s] employment and create an
abusive working environment.@ Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986) (internal quotation marks and citation omitted). Further, to constitute hostile
work environment sexual harassment, the sexually objectionable environment must be
both objectively and subjectively perceived as hostile or abusive, based on the totality of
the circumstances. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993). Courts
may consider the “frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it

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unreasonably interferes with an employee's work performance.@ Id. at 23. See also
Meritor, 477 U.S. at 65 (giving examples of such conduct, including “[u]nwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct of
a sexual nature@).
Although Defendant asserts that Williams=s conduct was not sufficiently severe
because no physical contact took place (see Doc. # 27 at 9), construing the factual
allegations in the light most favorable to Plaintiff, Williams=s conduct in the guard tower
on March 24 and 31, 2008, as well as his subsequent emails, though not pervasive,
may have been severe enough to constitute hostile work environment sexual
harassment. However, the Court need not decide this issue because, as discussed
below, even if Williams=s conduct constituted sexual harassment under Title VII,
judgment as a matter of law in Defendant=s favor is appropriate because Defendant=s
response was reasonably calculated to end such harassment. See, e.g., Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998) (disposing of a hostile work
environment sexual harassment claim Abased on the absence of employer liability,
rendering the issue of the presence of a hostile work environment immaterial@).
B.

EMPLOYER LIABILITY
The scope of an employer=s liability for a sexual harassment claim by an

employee depends on the relationship between the victim and the perpetrator. See
Hirschfeld, 916 F.2d at 576-77; see also 29 C.F.R. ' 1604.11(d). The Tenth Circuit

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has identified three bases for holding an employer liable for a hostile work environment
based on sexual harassment by a supervisor: (1) where the conduct occurred within the
transgressor's scope of employment; (2) where the employer knew, or should have
known, about the violation and failed to respond in a reasonable manner; or (3) where
the transgressor acted with apparent authority or was aided by the agency relation.
Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1269 (10th Cir. 1998).
Though Williams was senior both in rank and experience to Plaintiff, it is
undisputed that no supervisory relationship existed between them and that he was not
in Plaintiff=s chain of command. (Doc. ## 20 at 4; 20-2 at 2). Accordingly, the Court
finds that the co-worker liability standard governs.14
14 Plaintiff asserts that the other two grounds for supervisor liability “may very well apply@ to

Defendant because (1) “the acts of Mr. Williams were indisputably committed within the scope
of his employment@ and (2) Williams “may have been aided by his agency relationship with the
Bureau of Prisons . . . .@ (Doc. # 23 at 15.) However, Plaintiff=s argument suffers from at least
the following two errors. First, Plaintiff appears to understand “within the transgressor's scope
of employment@ to mean “while on the job,@ but that is not what the term signifies. Rather,
acting “within the scope of employment@ includes only that conduct which takes place as part
of the job. See Hirschfeld, 916 F.2d at 576-77 (Liability for acting “within the scope of
employment@ is “largely inapposite in sexual harassment cases because sexual harassment
simply is not within the job description of any supervisor or any other worker in any reputable
business.@ (internal quotation marks, citations, and alterations omitted)); see also Hicks v. Gates
Rubber Co., 833 F.2d 1406, 1418 (10th Cir. 1987) (Confining liability to situations in which the
transgressor “acted within the scope of his authority conceivably could lead to the ludicrous
result that employers would become accountable only if they explicitly require or consciously
allow their [workers] to molest women employees.@ (internal quotation marks and citation
omitted)). No evidence in this case indicates, nor has Plaintiff alleged, that a CO=s job
description includes molesting female employees. Second, liability for a transgressor who
“acted with apparent authority or [who] was aided by the agency relation@ requires the
transgressor to have functioned in a supervisory capacity over the plaintiff and to have
purported to act on behalf of the employer during the instances of harassment. Here, Plaintiff
has offered no evidence to meet either requirement.

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Because Plaintiff=s claim is that her co-worker sexually harassed her, BOP can
be held liable only on the second basis, i.e., for negligence in “failing to remedy or
prevent a hostile or offensive work environment of which management-level employees
knew, or in the exercise of reasonable care should have known.@ Hirschfeld, 916 F.2d
at 577; see also 29 C.F.R. ' 1604.11(d) (“With respect to conduct between fellow
employees, an employer is responsible for acts of sexual harassment in the workplace
where the employer (or its agents or supervisory employees) knows or should have
known of the conduct, unless it can show that it took immediate and appropriate
corrective action.@). Thus, a co-worker sexual harassment claim requires two inquiries:
“first, into the employer's actual or constructive knowledge of the harassment, and
second, into the adequacy of the employer's remedial and preventive responses to any
actually or constructively known harassment.@ Adler, 144 F.3d at 673.
C.

BOP’S RESPONSE TO THE HARASSMENT CLAIM
1.

Knowledge of the Harassment

In evaluating the first prong of the Adler test, the reporting of harassment to
management-level employees is sufficient to establish an employer's actual knowledge
of such harassment. Adler, 144 F.3d at 673. Although Plaintiff spoke with two
co-workers on March 24 and 31, 2008, and told them that Williams had made sexually
explicit remarks to her, those conversations did not constitute “employer knowledge@
because the co-workers were not management-level employees. The first time Plaintiff

11

made a sexual harassment allegation against Williams or provided any details of the
two March 2008 incidents to management-level employees was when she met with SIA
Chavez on April 1, 2008. This date marked the beginning of BOP=s knowledge of the
harassment.
2.

Reasonableness of the Response
a)

Tower incidents, emails, and human resources office visits

In addressing the second question, the Tenth Circuit has stated that courts must
ask “whether the remedial and preventative action was >reasonably calculated to end
the harassment.=@ Adler, 144 F.3d at 676 (quoting Ellison v. Brady, 924 F.2d 872, 882
(9th Cir. 1991)). “Plaintiff bears the burden of presenting evidence establishing a
genuine issue of fact that the employer's response was unreasonable.@ Ford v. West,
222 F.3d 767, 776 (10th Cir. 2000) (citing Wilson v. Tulsa Junior College, 164 F.3d 534,
541 n. 4 (10th Cir. 1998). The test is “whether the employer's response to each incident
of harassment is proportional to the incident and reasonably calculated to end the
harassment and prevent future harassing behavior.@ Scarberry v. Exxonmobil Oil Corp.,
328 F.3d 1255, 1259-60 (10th Cir. 2003) (citation omitted).
In Adler, the Tenth Circuit elaborated further:
A stoppage of harassment shows effectiveness, which in turn
evidences such reasonable calculation. However, this is not the sole
factor to be considered. Because there is no strict liability and an
employer must only respond reasonably, a response may be so calculated even though the perpetrator might persist.

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In cases where effectiveness is not readily evidenced by a
stoppage, we consider the timeliness of the plaintiff's complaint, whether
the employer unduly delayed, and whether the response was proportional
to the seriousness and frequency of the harassment . . . . By way of
example, responses that have been held reasonable have often included
prompt investigation of the allegations, proactive solicitation of complaints,
scheduling changes and transfers, oral or written warnings to refrain from
harassing conduct, reprimands, and warnings that future misconduct could
result in progressive discipline, including suspension and termination.
The employer is, of course, obliged to respond to any repeat
conduct; and whether the next employer response is reasonable may
very well depend upon whether the employer progressively stiffens its
discipline, or vainly hopes that no response, or the same response as
before, will be effective. Repeat conduct may show the unreasonableness
of prior responses. On the other hand, an employer is not liable, although
a perpetrator persists, so long as each response was reasonable.
It follows that an employer is not required to terminate a perpetrator
except where termination is the only response that would be reasonably
calculated to end the harassment.
144 F.3d at 676 (citations omitted).
At their meeting on April 1, 2008, SIA Chavez informed Plaintiff that Williams
would be transferred and, in fact, he was reassigned to the ADX facility before Plaintiff
returned to work on April 4, 2008. SIA Chavez also reported the allegations to Warden
Revell and sent a referral of misconduct to the BOP=s OIA on April 4, 2008. (Doc. # 20
at 8.) Although Plaintiff received the two previously sent emails from Williams when she
checked her email on April 4, 2008, she had no direct communications with Williams,
electronically or otherwise, during the remainder of his employment. As the Tenth
Circuit stated in Adler, “[a] stoppage of harassment shows effectiveness, which in turn

13

evidences@ measures reasonably calculated to end the harassment. 144 F.3d at 676;
see also MacKenzie v. City & County of Denver, 414 F.3d 1266, 1281 (10th Cir. 2005).
Additionally, the Tenth Circuit has found such prompt investigation and scheduling of
changes and transfers to be reasonable. Adler, 144 F.3d at 676. Thus, the Court finds
that BOP=s response was legally adequate. BOP was under no obligation to take
further action, including granting Plaintiff=s request to be transferred to another prison.
Further, the fact that Plaintiff saw, but did not have any interaction with, Williams
on a handful of subsequent occasions does not render BOP=s response unreasonable.
Plaintiff has neither alleged nor presented any evidence that she notified, or complained
to, her superiors about having seen Williams during the prison riot. When she informed
her superiors of the Human Resources Office sightings, Assistant Warden Denese
Heuett directed Plaintiff to call ahead so they could make sure that Williams was not
present when Plaintiff was. (Doc. # 20 at 8.) Essentially, as soon as Plaintiff=s
superiors were made aware of her concerns, they took appropriate remedial action.15
Similarly, BOP=s response was not inadequate because Williams “remained free
to email [Plaintiff] through the official email system [after he sent the April 1 and April 2
emails].@ (Doc. # 23 at 16-17.) Although Williams presumably “remained free@ to email
Plaintiff, he did not do so and, as stated previously, “[a] stoppage of harassment shows
15 In any event, Plaintiff cites no authority indicating that Plaintiff=s being in the same vicinity

as Williams B absent communication or physical contact by him B constitutes harassment, nor
is the Court inclined to so find.

14

effectiveness [of an employer=s actions], which in turn evidences@ that the response was
reasonably calculated to end the harassment. Adler, 144 F.3d at 676.
Finally, the Court rejects Plaintiff=s assertion that BOP=s response was
inadequate because the notice of termination sent to Williams did not reference the
sexual harassment incidents of March 24 and 31, 2008. BOP was under no obligation
to terminate Williams for the harassment incidents. See id. at 677 (“[A]n employer is not
required to terminate a perpetrator except where termination is the only response that
would be reasonably calculated to the end the harassment.@). That BOP later elected to
terminate Williams for the reasons stated in his termination letter, which did not mention
Asexual harassment,@ does not render inadequate its previous responses to Plaintiff=s
complaints.
Accordingly, the Court finds that BOP=s decision to transfer Williams, report the
harassment allegation to BOP=s OIA, and begin an investigation were adequate and
reasonably calculated to prevent further harassment.
b)

Threats by Williams

Plaintiff further alleges that BOP=s response was inadequate following the threats
Williams uttered about her. According to the Complaint, and corroborated by BOP=s
investigation, Williams made threats regarding Plaintiff to other BOP employees on April
13 and June 30, 2008, though he did not mention her by name.

15

In her February 24, 2012, affidavit, appended to her Response to this Motion,
Plaintiff asserts that Williams made additional threats about her to several members of
her family, as well as to some of her co-workers who informed her of the threats around
the time of the prison riot. (Doc. # 23-1 at 2.) In her affidavit, Plaintiff avers that she
was aware of the additional workplace threats against her because Lieutenant Anthony
warned her of them around the time of the prison riot on April 20, 2008. (Id.) She
further avers, with respect to the family threats, that “Williams lived next door to relatives
of mine, and he made threatening comments to them as well, which they told me
about.@ (Id.)
Plaintiff did not mention or disclose these additional workplace and family threats
in her Complaint, her deposition, or her EEO affidavit. (See Doc. ## 1; 20-1 at 5-11;
20-1 at 21-23;16 27 at 4.) Nor did she mention them during her interview with the EEO
investigator on October 23, 2008. (See Doc. ## 27 at 8; 20-2.) In fact, from the record,
it appears that the only time Plaintiff has mentioned the existence of these threats is in
her February 24, 2012 response to Defendant=s motion for summary judgment, which
she filed almost four years after the initial incident of harassment. The absence of any
prior mention of these alleged instances undercuts the credibility of Plaintiff=s affidavit.
See Garret v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002) (“We do not

16 Plaintiff’s EEO Complaint.

16

consider conclusory and self-serving affidavits.@) Regardless, even if true, these
additional instances would not affect the reasonableness of BOP=s response.
To the extent that Plaintiff lacked knowledge of the threats during 2008, they
cannot constitute harassment. Mason v. Southern Illinois University, 233 F.3d 1036,
1046 (7th Cir. 2000) (“Mean-spirited or derogatory behavior of which a plaintiff is
unaware, and thus never experiences, is not >harassment= of the plaintiff (severe,
pervasive, or other).@); see Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir. 2000)
(actions of which plaintiff was unaware were irrelevant to her hostile work environment
claim). Moreover, upon learning of the workplace threats,17 BOP initiated an
investigation, interviewed Williams and the officers to whom he spoke and, after
conducting its review, recommended his termination. (Doc. # 20 at 9-10.) Such
responses are legally adequate. See Adler, 144 F.3d at 676. Thus, the Court finds that
Defendant=s responses to the workplace threats were also adequate and reasonably
calculated to prevent future harassment.
D.

DEFENDANT’S PARTIAL MOTION TO DISMISS
Defendant includes a Partial Motion to Dismiss within the Motion for Summary

Judgment. (Doc. # 20.) Because the Court has determined that Defendant is entitled to

17 Plaintiff has offered no evidence that Defendant was informed of Williams=s alleged threats

to her family. Accordingly, under the first prong of the Adler test, Defendant cannot be subject
to liability for a failure to have adequately addressed them.

17

summary judgment, Defendant=s partial motion to dismiss is moot, and the Court denies
it as such.
V. CONCLUSION
IT IS ORDERED that Defendant=s Motion for Summary Judgment (Doc. # 20)
is GRANTED as to the request for summary judgment.
IT IS FURTHER ORDERED that Defendant=s Partial Motion to Dismiss (Doc.
# 20) is DENIED AS MOOT.
ACCORDINGLY, this case is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Final Trial Preparation Conference set for
June 29, 2012, and the five-day Jury Trial set for July 9, 2012, are VACATED.
IT IS FURTHER ORDERED that Defendant shall have its costs by the filing of
a Bill of Costs with the Clerk of the Court within ten days of the entry of judgment.
However, each party shall bear its own attorneys= fees.
DATED: June

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, 2012
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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