Bland v. Fairfax County Virginia
Filing
34
MEMORANDUM OPINION Re: 18 MOTION for Summary Judgment by Fairfax County Virginia and 22 MOTION in Limine by Fairfax County Virginia. Signed by District Judge James C. Cacheris on 5/3/2011. (stas)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MARY GETTS BLAND,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
FAIRFAX COUNTY, VIRGINIA,
Defendant.
1:10cv1030 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant Fairfax
County, Virginia’s (the “Defendant” or the “County”), Motion for
Summary Judgment [Dkt. 18] (the “Motion”).
For the following
reasons, the Court will grant in part and deny in part
Defendant’s Motion.
I.
Background
This case arises out of alleged incidents of sexual
harassment by a male Fairfax County firefighter against a female
Fairfax County firefighter.
Plaintiff Mary Getts Bland (“Plaintiff” or “Bland”)
alleges that by allowing Lieutenant Timothy Young (“Young”) to
harass her, the County “denied her the equal protection of the
laws in violation of Title VII [of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e to e17 (“Title VII”)] and the
Equal Protection Clause of the Fourteenth Amendment to the
1
Constitution.”
(Complaint [Dkt. 1] (“Compl.”) ¶ 9.)
Bland also
alleges that after she complained of Young’s alleged conduct,
the County violated Title VII and the Equal Protection Clause by
retaliating against her in impeding her transfer to a different
shift.
(Compl. ¶¶ 11-12.)
A.
Defendant’s Evidentiary Arguments
Before turning to the facts of this case, the Court
will address the various evidentiary issues raised by Defendant
in its Reply.
[Dkt. 28.]
Defendant argues that this Court should not consider
certain exhibits to Plaintiff’s Opposition to Defendant’s Motion
because Bland did not identify certain witnesses and documents
in her Federal Rule of Civil Procedure 26(a)(1)(A) disclosures
or her responses to Defendant’s discovery requests.
(Reply
[Dkt. 28] at 2.)
i.
Undisclosed Witnesses
Federal Rule of Civil Procedure 37(c)(1) “provides
that a party who fails to [provide information or] identify a
witness as required by Rule 26(a) or (e) is not allowed to use
that [information or] witness to supply evidence on a motion.”
Hoyle v. Freightliner, LLC, --- F.3d ----, No. 09–2024, 2011 WL
1206658, at *4 (4th Cir. Apr. 1, 2011).
Despite this failure to
disclose the identity of a witness, a party may “[e]scape from
the [Rule 37] sanction” if it shows “that the failure to
2
disclose is substantially justified or harmless.
P. 37(c)(1).
Id.
Fed. R. Civ.
In determining whether nondisclosure of a
witness is substantially justified or harmless, courts should
consider:
(1) the surprise to the party against whom the witness was
to have testified; (2) the ability of the party to cure
that surprise; (3) the extent to which allowing the
testimony would disrupt the trial; (4) the explanation for
the party's failure to name the witness before trial; and
(5) the importance of the testimony.
Id. (quoting Southern States Rack & Fixture v. Sherwin–Williams
Co., 318 F.3d 592, 596 (4th Cir. 2003)).
The same factors guide
the Court’s consideration with respect to evidence.
Southern States, 318 F.3d at 597.
See
“A district court has ‘wide
latitude in controlling discovery and . . . its rulings will not
be overturned absent a showing of clear abuse of discretion.’”
Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 196 (4th Cir.
2003) (quoting Ardrey v. United Parcel Serv., 798 F.2d 679, 682
(4th Cir. 1986)).
Defendant argues that, pursuant to Rule 37(c)(1), the
Court should not consider the following exhibits offered by
Plaintiff because Bland did not identify the witnesses: (1) the
deposition testimony of Hugh Caldwell Clarke, (Plaintiff’s
Opposition [Dkt. 26] (“Opp.”) Exhibit (“Ex.”) 28); (2) the
deposition testimony of Kendall Thompson, (Opp. Ex. 29); (3) the
deposition testimony of Daniel Thompson, (Opp. Ex. 32); (4) the
deposition testimony of Catherine Riley-Hall, (Opp. Ex. 35); (5)
3
the deposition testimony of Mark Nash, (Opp. Ex. 44); (6) the
transcript of an August 26, 2010 interview with Daniel Thompson,
(Opp. Ex. 42); (7) the declaration of Seo He Chae, (Opp. Ex. 3);
(8) the declaration of Stacey Bailey, (Opp. Ex. 5); (9) the
declaration of Alessandra Hurtado, (Opp. Ex. 20); and (10) the
declaration of Alyssa Slotkin Vance, (Opp. Ex. 21).
Plaintiff did not identify: Hugh Caldwell Clarke,
(Opp. Ex. 28); Kendall Thompson, (Opp. Ex. 29); Mark Nash, (Opp.
Ex. 44); and Seo He Chae, (Opp. Ex. 3), in Plaintiff’s Rule
26(a)(3) Pre-Trial Disclosure [Dkt. 13] (“Plaintiff’s Pre-Trial
Disclosure”).
Plaintiff did identify: Daniel Thompson, (Opp. Exs. 32
and 42); Catherine Riley-Hall, (Opp. Ex. 35); Stacey Bailey,
(Opp. Ex. 5); Alessandra Hurtado, (Opp. Ex. 20); and Alyssa
Slotkin Vance, (Opp. Ex. 21), in Plaintiff’s Pre-Trial
Disclosure.
For those witnesses that Bland identified in
Plaintiff’s Pre-Trial Disclosure, the Court finds no reason to
disregard their testimony under the Southern States standard,
even assuming Plaintiff’s Pre-Trial Disclosure fell short of
Rule 26 because Defendant cannot be surprised to see their
testimony referenced here.
318 F.3d at 596.
For those witnessed not identified in Plaintiff’s PreTrial Disclosure, the Court will not permit Plaintiff to use
4
those witnesses to supply evidence in opposition to the motion.
Hoyle, 2011 WL 1206658, at *4.
This does not mean, however,
that evidence properly presented that concerns those witnesses
will be disregarded.
ii.
Defendant’s Objection to Bailey Declaration
Defendant argues that although Plaintiff identified
Stacey Bailey in her pre-trial disclosures, “Bland neither
produced [Bailey’s declaration], nor indicated[] that she
intended to rely on Bailey’s declaration in support” of her
case.
(Reply at 3.)
Rule 37(c)(1).
That is not the situation addressed by
Rather, Rule 37(c)(1) provides that a party who
fails to identify a witness as required by Rule 26 cannot use
that witness to supply evidence on a motion.
Bland identified
Bailey as a witness, as the County concedes, so Rule 37(c)(1)
does not bar her from using Bailey to supply evidence.1
Defendant, however, argues that Bailey’s declaration
was prepared to support Bailey’s own claim against the County
for sexual harassment and that if the Court considers Bailey’s
declaration, “[the Court] would place the County in the position
of litigating Bailey’s allegations” in both this and Bailey’s
own case.
(Reply at 3, n.4.)
The Court will consider Bailey’s
1
The County also argues that the Court should exclude the Bailey Declaration
under Federal Rule of Evidence 403. (Supplemental Memorandum [Dkt. 31]
(“Supp. Mem.”) at 14.) “[W]hile it is not unheard of to exclude evidence
under Rule 403 at the summary judgment stage . . . normally the balancing
process contemplated by that rule is best undertaken at the trial itself.”
Adams v. Ameritech Serv., Inc., 231 F.3d 414, 428 (7th Cir. 2000). The Court
sees no reason to alter that normal balancing process here.
5
declaration insofar as it provides proper evidence in opposition
to summary judgment pursuant to Rule 56.
The Court makes no
finding as to Bailey’s own claim against the County, and its
consideration of Bailey’s declaration here will have no
preclusive or other effect on Bailey’s own claim against the
County.
Defendant also argues that “much of what is stated in
the declarations of Chae, Hurtado, Vance, and Bailey is not
based on personal knowledge or it is the declarant’s opinion or
belief.”
(Reply at 4.)
An affidavit or declaration used to
support or oppose a motion for summary judgment must be made on
personal knowledge and must set out facts that would be
admissible in evidence.
Fed. R. Civ. P. 56(c)(4).
Lay opinion
testimony, however, may appropriately be admitted if it is
rationally based on the perception of the witness.
Evid. 701.
See Fed. R.
Accordingly, a wholesale exclusion of these
declarations would be inappropriate; the Court will consider
these declarations to the extent they contain relevant and
otherwise proper evidence in opposition to summary judgment
pursuant to Rule 56.
iii.
Undisclosed Memoranda
Defendant argues that Plaintiff may not rely on
certain documentary evidence: (1) a memorandum dated October 27,
2006, concerning Stacey Bailey’s sexual harassment complaints
6
against Captain James Iacone and others, (Opp. Ex. 15); (2) a
memorandum dated January 5, 2007, concerning Stacey Bailey’s
sexual harassment complaints, (Opp. Ex. 16); (3) a memorandum
dated April 18, 2007, concerning Stacey Bailey’s sexual
harassment complaints, (Opp. Ex. 17); (4) a memorandum dated May
15, 2007, concerning complaints of two subordinate employees
against Captain Iacone, (Opp. Ex. 19); and (5) a memorandum
dated September 4, 1998, concerning a complaint against Captain
Iacone, (Opp. Ex. 24).
Defendant argues that these memoranda “were neither
identified, nor produced, in Bland’s disclosures or her response
to the County’s document request,” so the Court should not
consider them.
(Reply at 4.)
The Court finds any such
nondisclosure harmless for purposes of Rule 37(c)(1) exclusion
because Defendant was well aware that these memoranda might be
offered.
Bland did identify these documents.
In Plaintiff’s
Pre-Trial Disclosure, she indicates that she may proffer
“[i]nternal EEO [f]iles re: other cases of sexual harassment” as
exhibits.
Though this is a broad statement, the County would
know what “EEO [f]iles” Bland had in her possession because,
significantly, they are the County’s own documents, presumably
produced by the County during discovery.
Thus, the County’s
argument that Bland did not “produce” the memoranda overstates
7
the point.
And, given the elements necessary to support Bland’s
sexual harassment claims, the County should not be surprised to
see the documents it produced used as support for a “custom” of
sexual harassment.
Accordingly, the Court will not strike these
memoranda.
iv.
Bland’s Claim that She Notified Captain
Eshelman
As discussed more fully below, Bland asserts that she
notified Captain Edith Eshelman (“Eshelman”) in March of 2006
about Young’s sexual harassment during recruiting.
13.)
(Opp. at 7,
In its Supplemental Memorandum, the County argues that
because Bland neither disclosed Eshelman as a witness in her
Rule 26(a) disclosures nor disclosed prior to Bland’s late
interrogatory responses the fact that she notified Eshelman,
Bland should not be permitted to use that fact in support of
this Motion.
(Supp. Mem. at 13-14.)
The Court disagrees.
First, the Court first notes
that Bland is the witness testifying that she told Eshelman in
March 2006, so non-disclosure of Eshelman as a witness is not
dispositive.
Second, the County should not be surprised by
Bland’s testimony.
Though produced late, Bland disclosed this
fact in her interrogatory responses, which the County received
on February 14, 2011, (Reply at 13 n.7), some six weeks before
it filed this Motion.
The County had notice of this fact by
that time, so there is no last minute sandbagging or
8
gamesmanship.
Though discovery had closed by February 14, 2011,
the County could have moved to depose Eshelman or to re-depose
Bland with respect to this issue.
The case docket reflects no
discovery motions on the part of the County as to this or other
discovery issues.
The Court also notes that though the County
addresses Bland’s telling Eshelman in its Reply, it did not
include any evidentiary objection to the Court’s considering
this fact among the myriad evidentiary issues raised there;
instead, the County waited until its Supplemental Memorandum to
do so, after oral argument regarding the Motion and after the
Court’s oral order at that argument as to Bland’s Title VII
claim for sexual harassment.
v.
Hearsay
Defendant argues that much of Bland’s evidence is
“based on inadmissible evidence that was not properly disclosed
or identified and, therefore, must be stricken, and/or
evidentiary materials that are nothing more than inadmissible
gossip and opinion.”
(Reply at 18.)
In support of this
contention, Defendant cites Greensboro Professional Firefighters
Association v. Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
As
to whether Plaintiff’s evidence in opposition was properly
disclosed or identified, the Court has addressed that argument
above.
With respect to Defendant’s hearsay argument, the Court
will consider statements only for their non-hearsay purposes.
9
A party opposing summary judgment must put forth
material that would be admissible in evidence.
P. 56(c)(2).
See Fed. R. Civ.
Thus, among other considerations, witnesses’
statements offered in opposition to summary judgment cannot be
considered if they are hearsay.
See Md. Highways Contractors
Ass'n v. Md., 933 F.2d 1246, 1251 (4th Cir. 1999).
Hearsay is defined as “a statement, other than one
made by the declarant while testifying at trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
Fed. R. Evid. 801(c).
“‘[E]vidence is not hearsay when it is
used only to prove that a prior statement was made and not to
prove the truth of the statement.’”
United States v. Ayala, 601
F.3d 256, 272 (4th Cir. 2010) (quoting Anderson v. United
States, 417 U.S. 211, 220 n.8 (1974)).
Thus, a statement is not
hearsay when the statement is offered to show that the County
was on notice of the statement.
See Green v. Adm'rs of the
Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir. 2002) (holding
that testimony of three other complaints of sexual harassment
was not hearsay because it was offered to prove that the
employer was on notice rather than for the truth of the matter
asserted), abrogation on other grounds recognized by McCoy v.
City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007); see also
Southerland v. Sycamore Cmty Sch. Dist. Bd. of Educ., 125 F.
App'x 14, 22 (6th Cir. 2004) (holding that rumor testimony and
10
notes were admissible as non-hearsay because they were not
offered to prove the truth of the matters they asserted, but
instead were used to show that government officials had
knowledge of the problem); Dixon v. Int’l Fed’n of Accountants,
No. 09cv2839, 2010 WL 1424007, at *2 n.4, (S.D.N.Y. Apr. 9,
2010) (holding that evidence of complaints by other employees
against the plaintiff was non-hearsay because it was not offered
for the truth of the matter asserted--that the plaintiff
actually did the things complained of--but offered to show that
plaintiff’s employer was on notice of the complaints).
The
Court, then, will consider statements for their non-hearsay
purposes if such purposes are otherwise relevant and proper.
B.
Factual Background
The facts are as follows.
i.
The Parties
Bland worked as a firefighter in the Fairfax County
Fire and Rescue Department (the “Department”) from January 2002
to June 2010, when she retired.
(Memorandum in Support [Dkt.
19] of the Motion (“Mem.”) at 2.)
During the time period
relevant here, Young also worked as a firefighter in the
Department.
Id.
Bland initially met Young in the summer of 2001 during
her recruitment process with the Department.
Id.
At that time,
Young worked in recruiting, and he scheduled Bland’s interview,
11
physical exam, and other recruiting-related appointments.
Id.
Prior to her initial appointments, Bland took and passed a
written exam and a physical abilities test, referred to as the
“CPAT.”
Id.
Bland and Young met for a second time when she
accepted his invitation to tour the building that housed the
Department’s administrative offices.
(Mem. at 3.)
During this
second meeting, Bland thought Young was friendly, and he did not
do or say anything that Bland found offensive.
(Mem. at 3;
Bland Deposition Transcript (“Dep. Tr.”) 25:11-13, at Mem. Ex.
1.)
ii.
August 2001 Incident
Bland next met with Young on August 22, 2001, for a
personal interview.
Id.
In this interview, Young administered,
and Bland completed a form containing, a series of prepared
questions.
Id.
According to Bland, while she was completing
the form, Young asked her a number of additional questions:
“does your husband approve of this profession,” “do you enjoy
having sex with more than one partner,” and “do you like to be
watched while you masturbate.”
Id.
Young also told Bland that
he “knew things about [her]” and asked her to accompany him to
an adult sex-toy shop.
Id.
Bland did not tell Young that these questions offended
her and even answered his questions, (Bland Dep. Tr. 37:2-5),
12
but she believes he should have seen from her demeanor that she
was offended, (Bland Dep. Tr. 36:11-19).
Young told Bland that, if she passed the written
examination and the CPAT, she “would certainly get the job” and
that she “was exactly what the County was looking for.”
Dep. Tr. 56:20-21, 57:3-4.)
(Bland
Bland, however, thought Young had a
“very big role to play” in the section process, (Bland Dep. Tr.
55:21-22), and although Young did not make the final hiring
decision, he made recommendations to his captain regarding
hiring, (Young Dep. Tr. 9:3-11, at Opp. Ex. 25).
During the recruitment process, Bland did not report
Young’s conduct to anyone in the Department.
Dep. Tr. 57:18-22.)
(Mem. at 4; Bland
Bland did not do so because she “felt [she]
would not get hired,” though Young did not say anything to her
that led Bland to believe she would not be hired if she
complained about his behavior.
iii.
(Bland Dep. Tr. 58:1-5.)
Bland Offered a Position with the Department
On August 17, 2001--prior to her interview with
Young--Bland had received from the Department a conditional
offer of employment.
(Mem. at 4.)
After the interview, the
Department appointed Bland as a recruit firefighter.
4; Bland Dep. Tr. 59:18.)
13
(Mem. at
iv.
January 2002 to July 2002
At recruit-firefighter orientation, on January 14,
2002, Bland saw Young but had no contact with him.
(Mem. at 4.)
Young smiled at Bland “from across the room,” which she found
offensive.
(Bland Dep. Tr. 61:5-8.)
Bland attended recruit
school from January 2002 to July 2002.
(Mem. at 4.)
While attending recruit school at the Department
academy, Bland received “two or three” telephone calls from
Young.
Id.
During these conversations, Young asked Bland to go
with him to an adult sex-toy shop, asked her about her family,
husband, and marriage, and told her he “[knew] things about
[her].”
(Mem. at 5.)
this period.
Bland did not see Young in person during
Id.
v.
July 2002 to June 2003
Bland worked at Fire Station 1 from July 2002 to June
2003.
Id.
During this time period, Bland received “three or
four” telephone calls from Young, the content of which was
“[s]imilar to identical” to the telephone calls she received
while at recruit school.
at 5.)
(Bland Dep. Tr. 72:17-20, 73:4-6; Mem.
Bland did not ask Young to stop calling her.
Dep. Tr. 73:22-23; Mem. at 5.)
vi.
June 2003 through October 2007
14
(Bland
From June 2003 until November 2007, Bland had contact
with Young on two occasions.
(Mem. at 5.)
Bland had no
complaints as to Young’s behavior on these occasions.
vii.
Id.
November 9, 2007 Incident
On November 9, 2007, Bland was working as an engine
driver for Fire Station 17 on the B-shift.
(Mem. at 6.)
On
that day, Young, who normally worked a C-shift at Fire Station
40, worked overtime in the field, referred to as a “call back,”
for Fire Station 17 on the B-shift as officer in charge of the
engine on which Bland served.
Id.
When Young arrived to work
the call back at Fire Station 17 in the morning of November 9,
2007, he attempted to speak with Bland.
Id.
Young told Bland
he “[knew] all about [her],” but when he saw her reaction he
said he would “stop right there.”
Id.
Throughout the day,
Young and others in the crew engaged in “continual banter laced
with sexual innuendos,” though not directed at Bland.
(Bland
Dep. Tr. 80:15-21; Mem. at 6.)
At a certain point on November 9, Young asked Bland to
drive the engine and crew across the street to get ice cream at
Dairy Queen.
(Bland Dep. Tr. 82:9-12; Mem. at 6.)
Bland was
irritated and responded that she would “drive [Young’s] fat a**
across the street to Dairy Queen.”
Mem. at 6.)
(Bland Dep. Tr. 82:9-12;
Young responded by asking Bland if she was
“checking out [his] a**,” to which she responded “no.”
15
(Bland
Dep. Tr. 82:9-12; Mem. at 6.)
Though that was “the end of it”
on that day, Bland admits that “absolutely everything [Young]
does is offensive” to her.
(Bland Dep. Tr. 82:19-23; Mem. at 6-
7.)
viii.
November 25, 2007 Incident
On November 25, 2007, Bland and Young’s units were
dispatched to the same fire scene.
(Mem. at 7.)
At some point
while the units were on the scene, Bland was standing next to a
fire engine with volunteer firefighter, and friend, Nancy
Sanfacon (“Sanfacon”), when Young passed by.
Id.
As he passed,
Young was carrying a “pike pole,” a tool used to pull down
ceilings, and he glanced at Bland, “smiled his grin” and said
“this looks like it would hurt” and “kind of made that gesture
with it.”
(Bland Dep. Tr. 82:19-23; Mem. at 6-7.)
Bland took this as a threat that he “would like to”
physically hurt Bland, “not at that moment, but that he would
like to.”
(Bland Dep. Tr. 90:23, 91:5-8; Mem. at 7.)
Bland
interpreted Young’s conduct as “[s]exual in nature and a step
further into sexual assault.”
(Bland Dep. Tr. 92:5-6.)
Bland makes a second complaint about Young’s conduct
on November 25, 2007.
(Mem. at 7.)
Young was standing on the
tail board of the fire engine and was handing a fire hose to
Bland.
Id.
Each time Bland pulled on the hose, Young “would
16
smile at [Bland], wink or whatever, and say ‘you are squeezing
me.’”
(Bland Dep. Tr. 96:22-97:1.)
ix.
Bland Reports Young’s Conduct
The parties dispute when Bland first reported Young’s
conduct.
Plaintiff asserts that she notified Captain Edith
Eshelman in March of 2006 about Young’s sexual harassment during
recruiting.
(Opp. at 7, 13; Opp. Ex. 1 at 2; Bland Declaration
(“Decl.”), at Opp. Ex. 45 ¶ 2.2)
Bland asserts she told Captain
Eshelman about Young’s comments during Bland’s interview,
including asking whether Bland liked to be watched when she
masturbated and whether she liked to have sex with more than one
person at a time.
(Opp. at 13.)
Bland asserts that Captain
Eshelman took no action on Bland’s complaint.
Id.
Defendant asserts that Bland did not report the sexual
harassment until after the November 25, 2007, incidents, when
Bland reported her complaints to Captain Cheryl Hemingway, who
is an equal Employment Opportunity (“EEO”) counselor for the
Department.
(Mem. at 8.)
Captain Hemingway also was part of
the battalion management for Bland’s battalion.
Id.
Captain
Hemingway advised Bland that Bland could pursue a formal or
informal complaint, that she could contact Captain Felicia
Edwards, the Department’s EEO officer, that she could contact
2
Defendant argues in its Reply that Bland cannot rely on her response to
Defendant’s Request for Admission because her response was untimely. (Reply
at 13, n.7.) The Court looks to Bland’s Declaration, submitted with her
Opposition, for this fact.
17
Nan Butler Roberts and Kathy Smith, investigators from the
County’s Office of Human Rights and Equity Programs (“Equity
Programs”), or contact the U.S. Equal Employment Opportunity
Commission.
(Mem. at 8-9.)
Captain Hemingway also gave Bland
an EEO intake form and told her to make a written account of her
complaints against Young.
Id.
Captain Hemingway encouraged
Bland to pursue her complaint.
Id.
On December 9, 2007, Bland met with Captain Edwards
and Captain Hemingway.
Id.
After that meeting, Captain Edwards
conducted an investigation into Bland’s complaints, which
included a February 26, 2008 interview with Bland.
Id.
Captain Edwards performed the investigation, including
interviewing Bland, Young, and individuals Bland identified as
having information regarding her complaints, including
individuals present on November 9, 2007.
(Mem. at 10.)
Captain
Edwards also contacted other women in the Department whom had
contact with Young during the recruiting process.
Id.
The
women Captain Edwards contacted reported that they had no
problems with Young.
Id.
Captain Edwards also found that at
the time of Bland’s complaint, no person had complained of
sexual harassment by Young.
x.
Id.
The County’s Response
Though Plaintiff disputes the effectiveness of the
Department’s response, (Opp. at 15), the parties agree that at
18
the conclusion of Captain Edwards’s investigation, she prepared
a written report detailing her investigation and conclusions.
(Mem. at 10.)
As a result of the investigation, Young received
a written reprimand and was ordered to attend EEO training.
Id.
Young was directed to stay away from Bland, a direction in place
beginning at the time of Bland’s initial complaint, and Bland
was directed to report to her Battalion Chief if she encountered
Young while at work.
(Mem. at 11.)
If Bland encountered Young
at work, the Battalion Chief was to reassign him.
Id.
In a
further precaution, for a period of six months in 2008, Young
was assigned to a fire station at the opposite end of the County
from Bland’s station.
Id.
Plaintiff asserts that though Young received a
reprimand, it was “meaningless” because it did not affect his
pay, his eligibility to work overtime shifts, his rank, or his
duties.
(Opp. at 15-16.)
Because Young had no prospect for
promotion, due to having scored too low on the captain’s exam,
and because Young made more money as a lieutenant due to
additional pay for overtime shifts not available to captains,
the reprimand “had no effect on him other than as a piece of
paper that went into his file.”
Id.
Bland had no contact with Young after the November 25,
2007 incident until she retired in June 2010.
19
(Mem. at 11.)
Plaintiff asserts that in two instance, Young was staffed on the
shift following Bland’s, so there could have been a possibility
that Bland would run into Young.
(Opp. at 18.)
Plaintiff also
asserts that Young once responded to a call that Bland’s unit
responded to, but Bland was told to stay in the fire truck.
(Opp. at 18.)
There is no dispute, however, that Bland had no
contact with Young after November 25.
(Bland Dep. Tr. 122:18-
20.)
xi.
Bland Requests a Transfer
On April 1, 2008, Bland requested a transfer from
B-Shift to A-Shift.
(Mem. at 11.)
Bland’s reasons for wanting
to transfer to A-Shift were “hardships.”
13.)
(Bland Dep. Tr. 136:1-
Bland’s then-fiancée also was on A-Shift.
136:1-10.)
(Bland Dep. Tr.
Plaintiff asserts that Deputy Chief Dodwell impeded
her transfer to A-Shift.
(Opp. at 21.)
Plaintiff asserts that the “County routinely
accommodates requests by couples to be put on the same shift.”
(Opp. at 19.)
The support Plaintiff provides for that
assertion, however, states that “deput[y fire chiefs] do try and
make that accommodation wherever possible” and that “[i]n
general, deputies accommodate, try and accommodate requests for
those types of situations.”
at Opp. Ex. 54.)
(Graling Dep. Tr. 34:8-10, 20-22,
Plaintiff offers one example of a firefighter
20
who was transferred one month after he put in his request, July
2008.
(Opp. at 20.)
Bland’s transfer had to be coordinated between B-
Shift’s Deputy Chief Duane Dodwell and A-Shift’s Deputy Chief
David McKernan, because Bland’s move could be accommodated only
if another technician who wanted to transfer to her B-Shift.
(Mem. at 11-12; Graling Dep. Tr. 14:17-21.)
Bland testified that Deputy Chief McKernan told her
there was an opening in A-Shift and that she could have it if
she wanted it.
(Opp. at 20.)
McKernan, however, testified that
“[t]here was a whole process for [coordinating transfers].
It’s
almost a dance that goes through with all of these promotions
and transfers . . . [a]nd it’s very difficult to place everybody
exactly where they want to go.”
22, at Reply Ex. 14.)
(McKernan Dep. Tr. 18:5-7, 21-
Plaintiff states that Thomas Graling
testified that “McKernan agreed to the exchange.”
(Opp. at 20.)
Graling testified that McKernan and Dodwell agreed to the
exchange.
(Graling Dep. Tr. 14:20-15:1.)
Plaintiff states that, in a contradiction, Deputy
Chief Dodwell testified that McKernan held up the transfer but
previously sent an e-mail saying McKernan approved it.
20.)
The e-mail, however, states only that “it appears that
Chief McKernan will accommodate” Bland’s transfer.
19.)
(Opp. at
(Mem. Ex.
Dodwell, moreover, testified that another firefighter,
21
Rudy Iturrino, whom had previously agreed to a transfer with
Bland, “shut down the transfer request, which would have opened
up the move for [Bland] to go to A-shift.”
(Dodwell Dep. Tr.
79:19-22, at Opp. Ex. 53.)
McKernan testified that:
it was like a four-way switch between drivers and
between three shifts. So we had it all set up.
One of those people in position [McKernan did not
recall that person’s name] said at the last
minute--after we had it all worked out, everybody
was going to move, said I don’t really want to
go. I want to stay where I am. And it just shut
everything down.
(McKernan Dep. Tr. 21:4-11, 21-22.)
Plaintiff asserts that Iturrino declined to change
shifts because Dodwell would not honor Iturrino’s vacation days.
(Opp. at 21.)
But, “if you switch shifts voluntarily, then [the
Department] will not honor your leave . . . [except for
extenuating circumstances.
In this case, it wasn’t extenuating
circumstances for Rudy [Iturrino].”
(Graling Dep. Tr. 16:3-8.)
Dodwell testified that Rudy Iturrino “had a transfer request to
get to B-shift for years, I think.”
(Dodwell Dep. Tr. 81:8-12.)
The County asserts that Deputy Chief Dodwell approved
Bland’s transfer request and advised Department management that
if an opening became available, Bland was to receive “first
consideration.”
(Mem. at 12.)
Bland, however, states that
Frank Erwin, a technician A-Shift, retired in June 2008, and
Dodwell does not recall making a request for Bland to move to
22
the spot opened by Erwin’s retirement.
16.)
(Dodwell Dep. Tr. 84:13-
The County also asserts that Bland was also given the
option of having her then-fiancé transfer to her B-Shift, but
Bland’s testimony is merely that she knew that the Department
said it would try to move her fiancé to her shift.
(Bland Dep.
Tr. 142:19-143:2; Mem. at 12.)
The parties agree that effective January 17, 2009,
Bland was reassigned from B-Shift to A-Shift.
xii.
(Mem. at 13.)
Young Harasses Another Female Firefighter
According to Plaintiff, beginning in March or April of
2008 until May of 2010, Young harassed another female
firefighter, Stacey Bailey.
(Opp. at 16-17; Bailey Decl. ¶¶ 46,
47, 58, 62-65, 68-70, 74-76, 78-80, 83, at Opp. Ex. 5.)
In May
2008, Young, in Bailey’s presence, allegedly told another
firefighter that the reason “they didn’t like her” at her former
fire station was “because she didn’t put out.”
46.)
(Bailey Decl. ¶
Bailey was subjected to comments about whether she would
“engage in ‘tea bagging’ with [male firefighters] or watch [male
firefighters]” do so.
(Bailey Decl. ¶ 47.)
slang term for oral sex.
“Tea bagging” is a
(Bailey Decl. ¶ 47.)
Young made further comments to Bailey, including
telling her that he “[would] give [her] a shot of protein, girl!
Some yum protein pow!,” while gesturing toward his genital area.
(Bailey Decl. ¶ 62.)
Young also told Bailey they could have a
23
“nice three way” and asked Bailey if she had any sex toys.
(Bailey Decl. ¶¶ 65, 68.)
xiii.
Other Incidents of Inappropriate Conduct
Plaintiff, in Opposition, asserts that sex-based
harassment in the Department is widespread.
(Opp. at 1-4.)
Taking into consideration the evidentiary issues raised by
Defendant in its Reply, which the Court addressed above, and
having reviewed the record, the following are items presented by
Plaintiff that the Court finds are properly before it pursuant
to the relevant evidentiary standards.
The record contains some evidence that certain
firefighters believe sexual comments are common in the
department.
For example, one firefighter testified that it is
“common with a lot of guys” in the Department to use “crude
terms about women.”
30.)
(O’Connor Dep. Tr. 65:6-11, at Opp. Ex.
Sexual joking happens “every day at the firehouse”
according to Susan Tomczak.
Ex. 31.)
(Tomczak Dep. Tr. 15:20-22, at Opp.
Sexual bantering is a regular part of the culture
within the Department, according to Young.
22:22-23:3.)
(Young Dep. Tr.
Bland testified that “[t]here is always a certain
level” of inappropriate sexual comments, describing one incident
in which one firefighter told her, in front of “several
individuals,” that he would like to see her “in a pair of chaps
without anything on underneath.”
24
(Bland Dep. Tr. 66:7, 18-23,
at Opp. Ex. 48.)
And, firefighter Danny Thompson testified that
he “knows” that comments such as “tea bagging” and “protein
shake,” a slang term for ejaculation, happen “everyday” both at
his fire station and others and “that is how [the Department]
is[, and] it has always been like that since as far as I have
know [sic].”
(D. Thompson Interview 48:3-9, 43:6-8, at Opp. Ex.
42.)
The record also reflects that certain firefighters
have experienced inappropriate, if not harassing, conduct.
Captain Pete Pullen made inappropriate advances on thenLieutenant Felicia Edwards.
Opp. Ex. 27.)
(Edwards Dep. Tr. 103:17-104:5, at
Daniel Kwiatkowski referred to a female
firefighter as “fatty” and “fat-pill” and referred to another’s
“wide ass.”
(Opp. Exs. 6-7.)
Lieutenant Jackson refers to a
female firefighter as “naughty girl” and a “blonde thing.”
(Opp. Ex. 8.)
Mitch Lake made a sexual joke in front of a
female firefighter with his pants unzipped and his coat-sleeve
in his pants.
(Hemingway Dep. Tr. 48:9-22, at Opp. Ex. 55.)
Male firefighters participated in, and observed without
stopping, other firefighters forcing a female firefighter into a
chair and binding her with duct tape.
(Op. Ex. 13.)
Captain
Iacone referred to a female firefighter as a “lesbian” in a
“derogatory manner” after an altercation.
25
(Op. Ex. 24.)
According to her Declaration, Stacey Bailey
experienced similarly inappropriate conduct.
Caldwell Clarke
asked Bailey if she “only f**ked black dudes,” if she “g[o]t
[her] period and boobies when [she was] 12,” and if she
“f**k[ed] when [she was] 12.” (Bailey Decl. ¶¶ 4, 6-7.)
While
watching celebrity chef Rachel Ray on television, Clarke told
Bailey he would “like to f**k [Rachel Ray] with some extra
virgin olive oil big time.”
(Bailey Decl. ¶ 10.)
Clarke also
Bailey, while she prepared dinner, if she would “bend over the
table a little more[, and he] could do you from behind right
here!”
(Bailey Decl. ¶ 19.)
“great boobs.”
Mike Nelson told Bailey she had
(Bailey Decl. ¶ 14.)
Bailey how “[her] knees [were] doing?
in your other profession?”
Captain Iacone asked
Do they hurt as much as
(Bailey Decl. ¶ 17.)
In front of
Bailey, Cliff Berner looked at “a woman dipping her nipples into
two beer glasses on the internet.”
C.
(Bailey Decl. ¶ 23.)
Procedural Background
Plaintiff filed suit against the County on September
15, 2010.
[Dkt 1.]
summary judgment.
On March 24, 2011, the County moved for
[Dkt. 18.]
Plaintiff opposed the Motion on
April 5, 2011, [Dkt 26], and the County replied in support on
April 8, 2011, [Dkt. 28].
Both parties submitted supplemental
briefs in support and opposition.
Motion is before the Court.
26
[Dkts. 31-32.]
Defendant’s
II.
Standard of Review
Summary judgment is appropriate only if the record
shows that “there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law.”
Fed. R. Civ. P. 56(c); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps.
& Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996) (citations
omitted).
The party seeking summary judgment has the initial
burden of showing the absence of a material fact.
v. Catrett, 477 U.S. 317, 325 (1986).
Celotex Corp.
A genuine issue of
material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248.
Once a motion for summary judgment is properly made
and supported, the opposing party has the burden of showing that
a genuine dispute exists.
See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
The party
opposing summary judgment may not rest upon mere allegations or
denials.
Rather, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248 (quotation omitted).
Unsupported speculation is not enough to withstand a
motion for summary judgment.
See Ash v. United Parcel Serv.,
Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).
27
Summary judgment is
appropriate when, after discovery, a party has failed to make a
“showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
In reviewing the record on summary judgment, “the court must
draw any inferences in the light most favorable to the nonmovant” and “determine whether the record taken as a whole could
lead a reasonable trier of fact to find for the non-movant.”
Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th
Cir. 1991) (citations omitted).
III.
Analysis
Plaintiff asserts three claims against the County.
Plaintiff alleges that, by allowing Young to sexually harass
her, the County (1) “denied her the equal protection of the laws
in violation of Title VII,” (2) violated the Fourteenth
Amendment’s Equal Protection Clause, and (3) violated Title VII
and the Equal Protection Clause by retaliating against her after
she complained about Young’s conduct.
(Compl. ¶¶ 9, 11-12).
The Court will address each in turn.
A.
Title VII Sexual Harassment Claim
Title VII states that “[i]t shall be an unlawful
employment practice for any employer . . . to discriminate
against any individual with respect to [her] . . . conditions,
or privileges of employment, because of . . . sex.”
28
42 U.S.C. §
2000e-2(a)(1).
A hostile work environment due to sexual
harassment is one such unlawful employment practice actionable
under Title VII.
Briggs v. Waters, 484 F. Supp. 2d 466, 476
(E.D. Va. 2007).
To establish a claim against an employer under Title
VII for creating a hostile work environment because of sexual
harassment, “a plaintiff must show ‘that the offending conduct
(1) was unwelcome, (2) was based on her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4) was
imputable to her employer.’”
Ziskie v. Mineta, 547 F.3d 220,
224 (4th Cir. 2008) (citing Ocheltree v. Scollon Prod., Inc.,
335 F.3d 325, 331 (4th Cir. 2003)).
The County contests only
the third and fourth elements, severity or pervasiveness and
imputability to the County.
i.
Severity or Pervasiveness
As to the third element, “whether the conduct was
‘severe or pervasive’ enough to create an abusive work
environment[,] [t]here are ‘both subjective3 and objective
components’ to this element.”
Ocheltree, 335 F.3d at 333).
Ziskie, 547 F.3d at 227 (quoting
Thus, “[t]he environment must be
perceived by the victim as hostile or abusive,” the subjective
portion, “and that perception must be reasonable[,]” the
3
The parties do not contest whether Bland found Young’s conduct to be
subjectively severe or pervasive.
29
objective portion of the test.
Id. (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 22 (1993)). “The objective severity of
harassment should be judged from the perspective of a reasonable
person in the plaintiff’s position, considering all the
circumstances.”
Id. (citing Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998)).
“[H]arassment is
considered sufficiently severe or pervasive to alter the terms
or conditions of the employment if a workplace is ‘permeated
with discriminatory intimidation, ridicule, and insult.’”
Pueschel v. Peters, 577 F.3d 558, 565 (4th Cir. 2009) (quoting
Harris, 510 U.S. at 21).
Whether harassment is severe or pervasive
discrimination “depends on a constellation of surrounding
circumstances, expectations, and relationships.”
Jennings v.
Univ. of N. Carolina, 482 F.3d 686, 696 (4th Cir. 2007) (citing
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999)).
“All the circumstances are examined, including the positions and
ages of the harasser and victim, whether the harassment was
frequent, severe, humiliating, or physically threatening.”
(citing Davis, 526 U.S. at 650-51).
Id.
Significantly, “[e]vidence
of a general atmosphere of hostility toward those of the
plaintiff’s gender is considered in the examination of all the
circumstances.”
Id. (citing Harris, 510 U.S. at 19).
30
The “[severe or pervasive] standard is designed to
‘filter out complaints attacking the ordinary tribulations of
the workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing.’”
Ocheltree, 335
F.3d at 333 (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)).
“At the same time, the standard ‘protect[s]
working women from the kind of male attentions that can make the
workplace hellish for women.’”
Id. (quoting Baskerville v.
Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.1995) (alteration
in original)).
Ultimately, “[t]he question of whether
harassment was sufficiently severe or pervasive is
quintessentially a question of fact.”
Hoyle v. Freightliner,
LLC, --- F.3d ----, No. 09–2024, 2011 WL 1206658, at *7 (4th
Cir. Apr. 1, 2011) (internal quotation and citation omitted).
Defendant argues that Bland cannot establish that
Young’s conduct was either severe or pervasive because the
complained-of conduct “would not lead a reasonable person to
believe that [Bland] was subjected to unwelcome conduct that was
sever, pervasive, repeated, and continuous.”
(Mem. at 18.)
Defendant also argues that “‘pervasiveness’ is not present where
the complaints consist of isolated incidents involving different
persons.”
(Mem. at 18.)
For her part, Plaintiff argues that
taking into account the context of all of Young’s conduct and
taking into account the workplace environment as a whole, a
31
reasonable juror could find that the complained-of conduct was
severe or pervasive.
(Opp. at 23-24.)
Here, examining all of the circumstances and taking
the evidence in the light most favorable to the non-movant,
Defendant has not established that no reasonable juror could
find that Young’s harassment was sufficiently severe or
pervasive to alter the terms or conditions of Bland’s
employment.
Though the complained-of incidents, three in-person
meetings and six telephone conversations, were spread over a
six-year period, when viewed in context a reasonable juror could
find that Young’s conduct crossed the line from “the ordinary
tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing”
into “the kind of male attentions that can make the workplace
hellish for women.”
Ocheltree, 335 F.3d at 333.
Viewing the
evidence in the light most favorable to Bland, a reasonable
juror could “conclude that the multiple incidents . . . here
were far from mildly inappropriate.”
Hoyle, 2011 WL 1206658, at
*8.
In the August 22, 2001, interview incident, Young
asked Bland a number of harassing questions: “does your husband
approve of this profession,” “do you enjoy having sex with more
than one partner,” and “do you like to be watched while you
masturbate.”
(Mem. at 3.)
Young also told Bland that he “knew
32
things about [her]” and asked her to accompany him to a sex-toy
shop.
Id.
These comments are more than mere gender-related
joking or sexual innuendo.
Young’s “knew things about [Bland]”
comment is particularly severe, as he testified that he had
access to applicant’s personnel files.
72:4.)
(Young Dep. Tr. 71:17-
Also contextually significant is Young’s position
relative to Bland as a more-senior firefighter and recruitment
interviewer, which increases the severity of the conduct.
From January 2002 to July 2002, while attending
recruit school, Bland received “two or three” telephone calls
from Young.
(Mem. at 4.)
During these conversations, Young
asked Bland to go with him to the sex-toy shop, asked her about
her family, husband, and marriage, and told her he “[knew]
things about [her].”
(Mem. at 5.)
A reasonable juror could
likewise find these comments to be more than merely sporadic
abusive language, gender-related jokes, and occasional teasing.
From July 2002 to June 2003 Bland received “three or
four” telephone calls from Young, the content of which was
“[s]imilar to identical” to the telephone calls she received
while at recruit school.
at 5.)
(Bland Dep. Tr. 72:17-20, 73:4-6; Mem.
Again, in isolation these “three or four” calls might be
merely vulgar and inappropriate, but in context a reasonable
juror could find them severe.
33
On November 9, 2007, Young again told Bland he “[knew]
all about [her].”
(Mem. at 6.)
Throughout the day, Young and
others in the crew engaged in “continual banter laced with
sexual innuendos,” though not directed at Bland.
(Bland Dep.
Tr. 80:15-21; Mem. at 6.)
The November 25, 2007 incidents likewise were more
than mere innuendo and jest.
Young’s comment, as he passed by
Bland carrying a “pike pole,” a six- to ten-foot tool topped
with a hook used to pull down ceilings, that “this looks like it
would hurt” and “kind of made that gesture” that Bland describes
as “jabbing,”4 (Opp. at 14.), could be found by a reasonable
juror to be a physical threat, sexual or otherwise or at least
more than workplace banter.
Defendant’s argument, (Reply at
17), that the sole witness to the event, Nancy Sanfacon, thought
Young was joking, is probative of what she thought, but does not
in itself illustrate that all reasonable people would agree with
her.
Young’s second comment on that day, that he “would smile
at [Bland], wink or whatever, and say ‘you are squeezing me,’”
(Bland Dep. Tr. 96:22-97:1), while handing a fire hose to Bland,
taken by itself might be mere sexual banter, but taken in the
larger context could be found to be severe harassment.
4
Defendant argues that prior to Bland’s tardy interrogatory responses, she
never described Young’s gesture as “jabbing.” (Reply at 16 n.10.) The Court
notes that a reasonable juror, when considering the fact of Young holding a
six- to ten-foot pole and saying “this looks like it would hurt” could find
this physically threatening whether Young was “jabbing” with the pike pole or
not.
34
Also instructive is the “[e]vidence of a general
atmosphere of hostility toward those of the plaintiff’s gender,”
which may be “considered in the examination of all the
circumstances” when determining the severity or pervasiveness of
Young’s conduct.
U.S. at 19).
Jennings, 482 F.3d at 696 (citing Harris, 510
As set forth above, Plaintiff has presented
evidence of various incidents of sexual harassment or at least
sexually inappropriate conduct that a reasonable juror could
find as evidence of an atmosphere of hostility toward female
firefighters.
This atmosphere is further context that could
support a finding that Young’s conduct was sufficiently severe
or pervasive.
Another circumstance that makes this case different
from others is that Bland and Young worked as firefighters.
Firefighters depend on their coworkers for protection and
safety.
Thus, an atmosphere of hostility, whether due to sexual
harassment or other inappropriate conduct, is inherently more
severe than in a work environment where a coworker’s disrespect
and disregard will not put one’s safety in danger.
As Young
himself puts it, “you don’t want to go into a burning building
or in any type of scene where somebody is not gonna look out for
your best interest . . . “[y]our best interest is staying
alive.”
(Young Dep. Tr. 20:8-13.)
35
The Fourth Circuit’s recent decision in Hoyle v.
Freightliner, LLC, --- F.3d ----, No. 09–2024, 2011 WL 1206658
(4th Cir. Apr. 1, 2011), is instructive.
There, the Court
reversed the district court’s grant of summary judgment in favor
of the defendant as to plaintiff’s Title VII sexual harassment
claim.
Hoyle, 2011 WL 1206658, at *9.
The Court found that a
the district court erred in finding that no reasonable juror
could find the alleged sexual harassment was severe or pervasive
on facts far less offensive than here.
Id.
In Hoyle, the
plaintiff, who worked at her employer’s truck assembly plant,
was subjected to: (1) a tampon tied to a key ring on a truck in
her work area; (2) photos of scantily-clad women in G-strings
taped to the lid of a company-issued toolbox; (3) a comment that
she was “taping up [her] pant legs now so [other employees]
can’t see up under [her] pants;” (4) sexually provocative
calendars brought in by a coworker to share with others, showing
revealing photos of women in in bathing suits, wet, and lying in
water in different positions; (5) other photos that male
coworkers kept taped to their company toolboxes, including one
of a coworker’s wife “in a G-string kind of like bent over;”
and (6) a nude photo of a woman as the company computer’s
screensaver.
Hoyle, 2011 WL 1206658, at *1-3.
Although the Hoyle incidents occurred from late May or
early June 2005 to November 2005, id., a shorter time frame than
36
in this case, the alleged incidents are far less severe than
those in this case.
As the Hoyle court stated, “[t]he question
at the summary judgment stage is not whether a jury is sure to
find a verdict for the plaintiff; the question is whether a
reasonable jury could rationally so find.”
1206658, at *9 (emphasis in original).
Hoyle, 2011 WL
The Court bears Hoyle in
mind here.
Thus, looking at the totality of the circumstances and
taking the evidence in the light most favorable to the nonmovant, Defendant has not shown that no reasonable juror could
find that Young’s conduct was severe or pervasive enough to
create an abusive work environment.
ii.
Imputable to the County
As to the fourth element, imputing Young’s conduct to
the County, “[i]n a case where an employee is sexually harassed
by a coworker5 . . . the employer may be liable only ‘if it knew
or should have known about the harassment and failed to take
effective action to stop it.’”
Howard v. Winter, 446 F.3d 559,
565 (4th Cir. 2006) (quoting Ocheltree, 335 F.3d at 334).
5
The parties appear to agree that Young was not Bland’s supervisor, which
would subject Defendant to a higher standard for culpability than the
standard for coworker harassment. See Howard, 446 F.3d at 565 (stating that
in a case of harassment by a supervisor ‘with immediate (or successively
higher) authority over the employee,’ an employer is vicariously liable for
the harassment, subject to limited affirmative defenses” (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998))). Regardless of whether
Young was Bland’s supervisor, Defendant has not shown that summary judgment
is appropriate with respect to whether Young’s offending conduct is imputable
to the County under either standard.
37
In this case, a reasonable juror could find that
Defendant knew or should have known about the harassment and
failed to take effective action to stop it.
The County argues
that “[b]ecause the Department had no notice of the August 22,
2001 interview and the six telephone calls between January 2002
and June 2003, it had no opportunity to investigate or take
corrective action . . . and it cannot therefore, be held
liable.”
(Mem. at 23.)
And, once Bland reported the November
2007 incident, the Department “promptly investigated and
remedial action was taken.”
(Mem. at 23.)
Defendant emphasizes
that Young’s conduct stopped after Bland reported him.
(Mem. at
22.)
Plaintiff, however, asserts that Bland first notified
her captain of Young’s sexual harassment in March of 2006, well
before the November 2007 incidents, and asserts that Bland’s
then-captain took no corrective or protective action.
7; Bland Decl. ¶ 2.)
(Opp. at
Because of Plaintiff’s having told a
Department captain in March 2006, a reasonable juror could find
that Defendant knew or should have known about the harassment
and failed to take effective action to stop it.
Moreover,
Captain Mohler acknowledged in his deposition that he had
received a complaint that Young had harassed a woman in “either
2004 or 2006” at a convention.
Opp. Ex. 34.)
(Mohler Dep. Tr. 7:13-8:19, at
As the Fourth Circuit has stated, “[a]n
38
employer’s knowledge that a male worker has previously harassed
female employees other than the plaintiff will often prove
highly relevant in deciding whether the employer should have
anticipated that the plaintiff too would become a victim of the
male employee’s harassing conduct.”
Paroline v. Unisys Corp.,
879 F.2d 100, 107 (4th Cir. 1989), vacated and remanded on other
grounds, 900 F.2d 27 (4th Cir. 1990).
Also significant is that,
though Defendant is correct in arguing that Young ceased
harassing Bland after she reported him, Young allegedly harassed
another female firefighter in various incidents from April 2008
to January 2010.
76, 78-80, 83.)
(Bailey Decl. ¶¶ 46, 47, 58, 62-65, 68-70, 74Taking the record in the light most favorable
to the non-movant, a reasonable juror could find that Defendant
knew or should have known about the harassment and failed to
take effective action to stop it, because despite the County’s
written reprimand Young continued to sexual harass at least one
other female firefighter.
Defendant asserts that the County and the Department
have written policies that prohibit sexual harassment and
procedures in place for employees to report and for the
Department to address any complaints of sexual harassment.
That
is surely correct, but will not, in itself, defeat imputability
here.
As the Fourth Circuit has recently noted, a reasonable
“juror could find, as we have observed in analogous
39
circumstances, that the problem with the . . . policy lies not
in theory but in practice” in a particular situation.
2011 WL 1206658, at *10.
Hoyle,
“A reasonable juror could reasonably
conclude on this record that [the Department] had actual or
constructive notice of [Young’s] sexually harassing incidents
and displays and failed to follow its own policies calling for a
firm response designed to end [Young’s] harassment.”
Id.
Accordingly, taking the evidence in the light most favorable to
Bland, summary judgment is not appropriate as to the
imputability element, and, thus, the Court will deny summary
judgment as to the Bland’s Title VII sexual harassment claim.
B.
Equal Protection Claim
The Court turns to Bland’s next claim, that the County
violated the Fourteenth Amendment’s Equal Protection Clause.
(Compl. ¶ 9.)
Bland argues that the County is liable under 42
U.S.C. § 1983 because Young’s constitutionally offensive sexual
harassment was taken in furtherance of some municipal “custom.”
(Opp. at 26.)
“[I]ntentional sexual harassment of employees by
persons acting under color of state law violates the Fourteenth
Amendment and is actionable under § 1983.”
Mikkelsen v. DeWitt,
141 F. App’x 88, 90 (4th Cir. 2005) (quoting Beardsley v. Webb,
30 F.3d 524, 529 (4th Cir. 1994)).
A municipality’s liability
under § 1983, however, “may not be predicated solely upon a
40
respondeat superior theory.
Liability arises only where the
constitutionally offensive acts of city employees are taken in
furtherance of some municipal ‘policy or custom.’”
Milligan v.
City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citing
Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978)).
A municipality’s policy “may be found in written
ordinances and regulations, in certain affirmative decisions of
individual policymaking officials, or in certain omissions on
the part of policymaking officials that manifest deliberate
indifference to the rights of citizens.”
Carter v. Morris, 164
F.3d 215, 218 (4th Cir. 1999) (internal citations omitted).
Municipal liability under § 1983 also may be predicated on a
municipal “custom or usage.”
Id.
“[T]he existence of such a ‘custom or usage’ may be
found in ‘persistent and widespread . . . practices of
[municipal] officials [which] [a]lthough not authorized by
written law, [are] so permanent and well-settled as to [have]
the force of law.’”
Spell v. McDaniel, 824 F.2d 1380, 1386 (4th
Cir. 1987), cert. denied, 484 U.S. 1027 (1988) (quoting Monell,
436 U.S. at 691) (alteration in original).
Municipal liability
based on “‘[c]ustom and usage,’ in the sense of ‘persistent and
widespread . . . practices’ by municipal agents and employees,
may be attributed to a municipality when the duration and
frequency of the practices warrants a finding of either actual
41
or constructive knowledge by the municipal governing body that
the practices have become customary among its employees.”
Id.
at 1387 (quoting Bennett v. Slidell, 728 F.2d 762, 768 (5th Cir.
1984)).
“Constructive knowledge may be evidenced by the fact
that the practices have been so widespread or flagrant that in
the proper exercise of its official responsibilities the
governing body should have known of them.”
Id.
Municipal liability attaches “only when the
municipality itself can be directly charged with fault for a
constitutional violation.”
Id. at 1387-88.
Thus, “even where
such a ‘policy’ of municipal inaction might be inferred, it must
still be shown to have been the ‘moving force of the
constitutional violation’ specifically charged in order to
create municipal liability.”
Milligan, 743 F.2d at 230 (quoting
Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)).
Moreover,
“[w]here a plaintiff claims that the municipality has not
directly inflicted an injury, but nonetheless has caused an
employee to do so,” through, for example, a custom, “rigorous
standards of culpability and causation must be applied to ensure
that the municipality is not held liable solely for the actions
of its employee.”
Carter, 164 F.3d at 218 (internal quotations
and citations omitted).
Bland argues that the County is liable under § 1983
because Young’s constitutionally offensive sexual harassment was
42
taken in furtherance of some municipal “custom.”
(Opp. at 26.)
Specifically, Bland argues that the “the County knew that sexual
harassment, sexual innuendo and joking is the custom” in the
Department, that the Department had a custom of tolerating this
conduct by “failing to take adequate remedial measures” and
conducting inadequate investigations, and that the Department
failed to train its employees.
(Opp. at 27.)
The County argues
that the undisputed facts are insufficient to prove such a
custom.6
(Mem. at 27.)
i.
“Custom” of Sexual Harassment
With respect to Bland’s argument that the sexual
harassment, innuendo and joking is a “custom” within the
Department, Bland has proffered evidence that certain
firefighters--five, including Bland herself--believe that crude,
sexual bantering or joking happens “every day” at their and
other firehouses.
See supra at I.B.xiii.
Bland proffered
evidence illustrates certain inappropriate comments and acts by
other firefighters, including numerous allegations from Stacey
Bailey.
See id.
Though this evidence is disconcerting and all
6
Defendant states that “the undisputed facts show that since 2000 there have
been fourteen complaints of gender discrimination, sexual harassment, or
hostile work environment . . . all of which were investigated” and
disciplined when warranted. (Mem. at 27.) Of those fourteen complaints, ten
occurred prior to Bland’s November 2007 complaint. (Mem. at 27.) Defendant
argues this evidence is insufficient to find persistent and widespread abuse.
(Mem. at 27.) The Court notes that this evidence offers more instances of
harassment than does that offered by Bland. Even using the County’s
evidence--and of course Plaintiff bears the ultimate evidentiary burden--this
evidence, without context and standing alone, would not be sufficient to show
practices so permanent and well-settled as to [have] the force of law.
43
of it reflects inappropriate behavior, not all of it rises to
the level of sexual harassment.
Even if it did, a scattershot
litany of isolated incidents, presented without temporal and
other context, and much of it apparently directed at one
particular firefighter, will not suffice to prove a custom of
sexual harassment so permanent and well-settled as to have the
force of law.
Spell, 824 F.2d at 1386.
A reasonable juror
could very well find that the Department has a custom of boorish
and inappropriate behavior, but “there is a line between what
can justifiably be called sexual harassment and what is merely
crude behavior.”
Ziskie v. Mineta, 547 F.3d 220, 228 (4th Cir.
2008) (Wilkinson, J.).
No reasonable juror could find that
custom was one of sexual harassment so pervasive as to have the
de facto force of law attributable to the County.
Bland also argues that the “custom at the [Department]
is to treat women who complain about sexually harassing comments
or behavior as ‘ratting’ on the men and to ‘make the situation
worse’ for the victim.”
(Opp. at 4.)
The testimony Bland cites
for this proposition, however, is one firefighter’s statement
that he did not tell Stacey Bailey’s captain about Bailey’s
alleged harassment because he did not want to make it worse for
Bailey because she may be seen as “ratting” on her alleged
harasser, (O’Connor Dep. Tr. 26:8-21), and another’s own opinion
44
why other firefighters do not report sexual comments, (D.
Thompson Dep. Tr. 93:5-15, at Opp. Ex. 32).
Bland also claims that Edwards, the Department’s EEO
officer “believes that sexual harassment is only a problem if
the woman is a ‘shrinking violet and [does not] want to stand up
for [her]self.’”
(Opp. at 5.)
Edwards, when asked about women
more hesitant to be assertive in the face of sexual joking
stated that “[she does not] think anybody is a shrinking violet
that comes in the fire service . . . [a]nd . . we have in our
policy that says [the employee] can go to a supervisor” or other
options, like the EEO and Equity Programs, “[s]o there are
options available for all employees [] if [they are] not
comfortable.”
(Edwards Dep. Tr. 85:17-86:10.)
Viewed in context, this evidence of three fire
fighters’ own opinions likewise does not suffice to prove a
custom of sexual harassment so permanent and well-settled as to
have the force of law.
ii.
“Custom” of Inadequate Remedies and
Investigations
Bland also argues that the County should be held
liable under § 1983 because the Department had a custom of
failing to take adequate remedial measures and conducting
inadequate investigations.
(Opp. at 27.)
Bland’s support for
this claim, however, illustrates that the Department does
discipline individuals, including, for example, placing
45
reprimand letters in files, transferring employees, and
requiring diversity training.
(Opp. at 7-9.)
Bland points to
two instances in which a firefighter received no discipline.
In
one case, Daniel Kwiatkowski referred to a female firefighter as
“fatty” and “fat-pill” and referred to another’s “wide a**,” and
apparently received no discipline.
(Opp. at 8.)
In the other,
Dominick Ianelli received no discipline for, while naked,
squatting over another firefighter.
(Opp. at 8.)
incident was in the “mid to late 80s.”
The Ianelli
(Mohler Dep. Tr. 7:6-7.)
Bland also argues that the Department fails to take
adequate remedial measures because it has no set-in-stone
punishment for sexual harassment, and that a first or second
offense “could result in no discipline,” citing Chief Mastin’s
deposition testimony.
(Opp. at 7.)
Chief Mastin, however,
testified that “[t]he punishment obviously would be determined
again based on an investigation of circumstantial facts and past
history.”
(Mastin Dep. Tr. 48:19-22, at Opp. Ex. 33.)
Chief
Mastin testified that a first or second offense could receive a
range of discipline, “from nothing to termination,” but that he
could not imagine a that a “sustained” finding “would have zero
impact” on a first, second, or third offense.
(Mastin Dep. Tr.
49:3-18.)
Taking this evidence in the light most favorable to
Bland, no reasonable juror could find that it is sufficient to
46
prove a custom of sexual harassment so permanent and wellsettled as to have the force of law.
Spell, 824 F.2d at 1386.
Although Bland may view these sanctions as insufficient, they
demonstrate that the County does not have a widespread practice
of condoning sexual harassment.
F.3d 670, 685 (7th Cir. 2006).
See Valentine v. Chicago, 452
The evidence illustrates that
the Department investigates allegations of harassment and
disciplines when appropriate.
Though Bland has provided two
instances where firefighters were not disciplined, these are two
isolated incidents, one of which was over 20 years ago, and are
insufficient to prove a custom of sexual harassment so permanent
and well-settled as to have the force of law.
iii.
Failure to Train
Bland also argues that the County may be liable under
§ 1983 on a theory of failure to train its employees.
27-28.)
(Opp. at
Bland’s argument rests on evidence that certain
officers do not understand the Department’s sexual harassment
policies and on evidence that certain employees have not
received training “in years, sometimes decades.”
(Opp. at 10.)
A municipality may be held liable under § 1983 for
constitutional violations resulting from its failure to train
municipal employees, but “only when such failure reflects
‘deliberate indifference’ to the rights of its citizens.”
Doe
v. Broderick, 225 F.3d 440, 456 (4th Cir. 2000) (citing Canton
47
v. Harris, 489 U.S. 378, 388 (1989)).
Thus, a municipality may
be liable for a failure to train under § 1983 “[o]nly where a
failure to train reflects a ‘deliberate’ or ‘conscious' choice
by a municipality.”
Harris, 489 U.S. at 289.
“Deliberate
indifference is a very high standard--a showing of mere
negligence will not meet it.”
695 (4th Cir. 1999).
Grayson v. Peed, 195 F.3d 692,
As the Supreme Court has recently stated,
“[a] municipality’s culpability for a deprivation of rights is
at its most tenuous where a claim turns on a failure to train.”
Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011).
Here, no reasonable juror could find that the alleged
failure to train reflects a deliberate or conscious choice by
the County.
As to her inadequate training argument, Bland
argues that despite any training they may receive, the
Department’s employees do not understand that sexual comments
and joking are not permitted.
(Opp. at 9.)
In support, Bland
points to three firefighters who state that certain statements
do not violate the Department’s policy.
Id.
For example, Bland
argues that Chief Mastin “testified that it does not violate the
policy for an officer to say to a firefighter [that] ‘you have a
nice a**.’”
Id.
Chief Mastin, however, testified that whether
such a comment violated the Department’s policy “depends on all
the circumstances.”
(Mastin Dep. Tr. 51:1-6, at Opp. Ex. 33.)
Bland also argues that EEO counselors’ understanding of the
48
Department’s policy is deficient.
(Opp. at 10.)
As to Bland’s
argument that the Department does not train at all, her support
for this does not illustrate a deliberate indifference on the
part of the County.
Bland offers four firefighters who state
that they have not received training since recruit school, but
they have received training.
(Opp. at 10.)
Taking this evidence in the light most favorable to
Bland, no reasonable juror could find that these failures to
train reflect a deliberate or conscious choice by the County
such that it can be municipally liable under § 1983.
489 U.S. at 289.
Harris,
These examples may illustrate some negligence
on the part of the Department in executing its training program.
The Department, however, undisputedly provides training, and the
evidence put forth by Plaintiff, that a few firefighters have
not received recent training or misunderstand the Department’s
policy, is not enough to satisfy the high standard, Grayson, 195
F.3d at 695, required to show that the County was deliberately
indifferent to the rights of its citizens.
C.
Title VII Retaliation Claim
The Court turns to Bland’s third claim, that after she
complained of Young’s alleged conduct, the County violated Title
VII and the Equal Protection Clause by retaliating against her.
(Compl. ¶¶ 11-12.)
49
To succeed on her retaliation claim, Bland “must prove
that (1) she engaged in a protected activity,7 (2) the employer
acted adversely against her, and (3) there was a causal
connection between the protected activity and the asserted
adverse action.”
Hoyle, 2011 WL 1206658, at *11 (citing Holland
v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)).
“If a plaintiff ‘puts forth sufficient evidence to establish a
prima facie case of retaliation’ and a defendant ‘offers a nondiscriminatory explanation’ for his termination, the plaintiff
‘bears the burden of establishing that the employer's proffered
explanation is pretext.’”
Hoyle, 2011 WL 1206658, at *11
(quoting Yashenko v. Harrah's Casino, 446 F.3d 541, 551 (4th
Cir. 2006)).
i.
Bland’s Prima Facie Case
Bland argues that the adverse employment action on the
part of the County was a delayed transfer, which Deputy Chief
Dodwell delayed in retaliation for her complaint against Young.
(Opp. at 29.)
The County argues that Bland cannot show that
there was any adverse employment action because she was in fact
transferred in January of 2009, nine and one-half months after
her request, that Bland cannot show that any such action was
taken against her because of her complaint, and that any delay
7
Defendant does not contest that Plaintiff engaged in a protected activity,
so the Court will not address this element.
50
was due to having to find an employee to move to Bland’s shift.
(Mem. at 12, 29.)
Here, even assuming the County acted adversely, Bland
must still prove the causal connection between her complaint
against Young and her allegedly delayed transfer.
As to this
third element of her retaliation claim, no reasonable juror
could find that she has set forth a prima facie case of
retaliation.
According to Bland, the causal connection is Deputy
Chief Dodwell.
Specifically, Bland argues that “Dodwell delayed
her transfer in retaliation for her complaint against Young.
When Dodwell learned of her complaint, he blamed her by
intimating that she was intimidated by Young because he is
black[,] and then denied what he said.”
(Opp. at 29.)
This argument is unavailing because the evidence in
the record does not support it.
Plaintiff for her complaint.
Nowhere does Dodwell “blame”
A review of the relevant support
is helpful.
Bland explains the basis of her assertion that Dodwell
“intimat[ed] that she was intimidated by Young because [Young]
is black,” (Opp. at 29), in her deposition.
According to Bland,
Sheryl Hemingway, the EEO counselor to whom Bland reported her
complaint against Young, “told [Bland] that [Dodwell] had given
[Hemingway] two [EEO personnel] business cards with Nan Butler’s
51
name on it, and that Nan Butler’s name had been crossed off [of
one card].
Kathy Smith’s name had been put on it.”
is African-American and Kathy Smith is Caucasian.
Tr. 109:5-8, at Mem. Ex. 1.)
Nan Butler
(Bland Dep.
Bland states8 that “[Dodwell]
instructed [Hemingway] to give me these two business cards[,]”
one with Nan Butler’s name and one with Nan Butler’s name
crossed off and replaced with Cathy Smith’s name, and Dodwell
“told [Hemingway] to advise me that I should make an appointment
with Kathy Smith,” the Caucasian woman, “because I may be
intimidated by tall black people.”
(Bland Dep. Tr. 109:10-15
(emphasis added).)
According to Hemingway’s deposition testimony, after
Hemingway told Dodwell she had given Bland Nan Butler’s name,
“Chief Dodwell said just . . . [g]ood job.
job and everything.
there to speak with.
people.”
Okay.
Great.
Good
Just remember there are several people over
That Nan [Butler] is only one of many
(Hemingway Dep. Tr. 114:8-11, at Reply Ex. 11.)
Hemingway further testified that “I think [Dodwell’s] concern-and this is only what I’m thinking--is that Tim Young is
African-American and Nan Butler is African-American.
That
[Bland] may be comfortable with choosing somebody who she might
be comfortable with.
So it was an alternative if [Bland] wishes
8
Bland’s interrogatory responses, which the County argues the Court should
not consider because Bland provided them after the close of discovery, state
that “Captain Hemingway told Bland that Dodwell stated that [Bland] should
make an appointment with Kathy Smith rather than Nan Butler because [Bland]
may be intimidated by tall[,] black people.” (Opp. Ex. 1, at 4.)
52
to speak with anyone else.”
(emphasis added).)
(Hemingway Dep. Tr. 114:14-19
The following exchange from Hemingway’s
deposition is instructive:
Q: So [Dodwell] didn’t say anything about Nan
Butler or Cathy Smith’s race?
A: I mean, I know what Nan Butler’s [and Cathy
Smith’s] race is.
Q: Right. I guess what I’m asking you is: Did
[Dodwell] say anything to you to the effect of
tell [Bland] to see Cathy because she may be
intimidated by black people?
A: No. [Seeing Cathy Smith] was an option. No.
It was more of an option that [Butler] is not the
only person over there to talk with.
(Hemingway Dep. Tr. 115:4-13 (emphasis added).)
Thus, the only
evidence in the record that Dodwell said Bland was “intimidated
by tall, black people” is Bland’s own testimony that Hemingway
told Bland that Dodwell said so.
Hemingway, however, testified
that Dodwell did not say anything to her to this effect and,
moreover, that Nan Butler’s and Cathy Smith’s race came into
play only because Hemingway knew their skin-color.
Hemingway,
moreover, testified that this “intimidation” is only what
Hemingway was thinking.
Even assuming Dodwell told Hemingway to tell Bland to
see a white EEO counselor because he though Bland was
“intimidated by tall, black people,” that does not support
Bland’s contention that this means Dodwell “blamed” Bland for
her complaint against Young.
There is nothing in the record
support Bland’s assertion that Dodwell “blamed” her for her
complaint against Young.
Hemingway’s testimony does not support
53
this, nor does anything except Bland’s own assertion that
Hemingway told Bland that Dodwell said so.
Because there is no
support in the record for this assertion, any connection between
Dodwell’s alleged “intimidated” statement and the allegedly
delayed transfer is tenuous.
Bland argues, in effect, that a reasonable juror could
find a causal connection between her complaint and her delayed
transfer based solely on a Dodwell’s “intimating” that Bland was
“intimidated by tall, black people” because Dodwell told
Hemingway to give Bland, in addition to two business cards of
African-American EEO counselors, the business card of a
Caucasian EEO counselor.
This, according to Bland, can
reasonably be found to have constituted Dodwell’s “blaming”
Bland for her complaint against Young, presumably because Young,
like two of the three Dodwell-suggested EEO counselors, was
African-American.
No reasonable juror would make this leap.
The record
is devoid of any evidence that Dodwell blamed Bland for
anything.
Thus, the only offered causal connection between
Bland’s complaint against Young is unsupported conjecture.
Accordingly, Bland has failed to put forth a prima facie case of
retaliation.
54
a.
Dodwell Denied Knowing of Bland’s
Complaint
For support of her claim that Deputy Chief Dodwell was
the cause of her delayed transfer, Plaintiff argues that at his
deposition, Dodwell “denied that he even knew about Bland’s
complaint” against Young and that “a jury can consider Dodwell’s
dishonesty as affirmative evidence of his guilt,” citing to
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146
(2000), for support.
(Opp. at 29.)
Even assuming that Dodwell
indeed denied knowing about Bland’s complaint, this argument is
fatally flawed because the falsity of Dodwell’s testimony would
only be relevant after Bland put forth a prima facie case and,
even then, only if Dodwell’s dishonesty was material to her
claim.
The Reeves court stated was that “[i]n appropriate
circumstances, the trier of fact can reasonably infer from the
falsity of [an] explanation that the employer is dissembling to
cover up a discriminatory purpose.
Such an inference is
consistent with the general principle of evidence law that the
fact finder is entitled to consider a party’s dishonesty about a
material fact as affirmative evidence of guilt.”
530 U.S. at
147 (internal quotations and citations omitted).
The Reeves court held that “a plaintiff’s prima facie
case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier
55
of fact to conclude that the employer unlawfully discriminated.”
Id. at 148 (emphasis added).
The Court noted, moreover, that
“‘[i]t is not enough . . . to disbelieve the employer; the
factfinder must believe the plaintiff’s explanation of
intentional discrimination.’”
Id. at 147 (quoting St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993)) (emphasis in
original).
According to the Fourth Circuit, in Reeves “[t]he
Supreme Court . . . clarified the plaintiff's burden at the
pretext stage.”
E.E.O.C. v. Sears Roebuck and Co., 243 F.3d
846, 852 (4th Cir. 2001) (emphasis added).
Thus, Bland must still put forth a prima facie case of
retaliation, including, significantly, evidence of the causal
connection between her complaint and her allegedly delayed
transfer.
After doing so, the burden would shift to the County
to put forth a legitimate reason for the delayed transfer, and
then, and only then, would the Court reach the falsity of
Defendant’s asserted justification, and, thereby, any
“dishonesty” on Dodwell’s part about whether he knew about
Bland’s complaint.
As set forth above, the Court finds Bland
has failed to put forth her prima facie case.
Even assuming, arguendo, that Bland put forth her
prima facie case, Dodwell’s “dishonesty” about when or whether
he knew about Bland’s complaint is immaterial.
The general
principle of evidence law is that a fact finder is entitled to
56
consider a party’s dishonesty about a material fact as
affirmative evidence of guilt.
Plaintiff argues it is.
It is not evidence of what
Bland would have the factfinder
consider Dodwell’s “dishonesty” regarding when or whether he
knew about Bland’s complaint as affirmative evidence that he
delayed her transfer.
This conclusion does not follow from Dodwell’s alleged
“dishonesty.”
Neither the County nor Dodwell argue that any
delay was legitimate because Dodwell was unaware of Bland’s
complaint, such that he could not have had a discriminatory
intent in not transferring Bland because he was unaware of her
allegations against Young.
Rather, the County argues that any
delay in Bland’s transfer was the result of not being able to
accommodate Bland’s transfer with the necessary corresponding
transfer.
(Mem. at 12.)
Thus, when and whether Dodwell knew of
Bland’s complaint is immaterial as affirmative evidence for
Bland’s prima facie case of proving her retaliation claim.
b.
The County Offered Different
Justifications at Different Times
Bland argues that the County’s evidence regarding the
reasons for the delay is inconsistent, and that “[i]t is wellsettled that a reasonable jury can find that an employer who
offers ‘different justifications at different times’ for an
adverse decision has acted unlawfully,” citing to Sears Roebuck,
243 F.3d at 852.
(Opp. at 29.)
57
Again, Bland makes this argument in support of her
prima facie case, but the Sears Roebuck “different
justifications at different times” reasoning addresses whether
an employer’s non-discriminatory explanation for an adverse act
is pretext.
See Sears Roebuck, 243 F.3d at 852-53 (“[T]he fact
that [the employer] has offered different justifications at
different times for its failure to hire [the plaintiff] is, in
and of itself, probative of pretext.”).
But regardless of whether Bland uses this argument in
support of her prima facie case or to show that the County’s
non-discriminatory explanation was merely pretext, it must fail.
According to Bland, the first inconsistency in
justification is that “Graling testified that McKernan agreed to
the exchange . . . [y]et Dodwell testified that it was McKernan
who held up the transfer.”
(Opp. at 20.)
Graling’s testimony
to which Bland refers concerns the possible transfer of Rudy
Iturrino to B-Shift in exchange for Bland.
13:18-20.)
(Graling Dep. Tr.
Dodwell’s testimony to which Bland refers concerns a
different attempt to transfer Brian Chinn, and Dodwell testified
that as to the Chinn transfer, McKernan said “no.”
(Dodwell
Dep. Tr. 81:15-82:3.)
Bland next argues that Chief Mastin offered different
justifications for transfers falling through, as in his memo to
the director of Equity Programs he stated that McKernan did not
58
agree to the transfer, but in his deposition Mastin stated that
he had no reason to believe that McKernan agreed or disagreed
with the transfer.
(Opp. at 21.)
Though it is unclear from the
record which transfer Chief Mastin is referring to in these
comments, McKernan acknowledges in his deposition that
“[McKernan] think[s] [he] was responsible for two of those
times” when transfers fell through.
22, at Reply Ex. 14.)
(McKernan Dep. Tr. 21:21-
It is far from clear that this
illustrates any inconsistency.
Bland then argues that the County offers different
justifications because Graling and Captain Gavin Bourjaily
testified that Rudy Iturrino’s transfer fell through because
Dodwell would not accommodate all of Iturrino’s leave dates, but
Dodwell testified that the Department was going to accommodate
those leave dates.
(Opp. at 21.)
The parties agree, and the
record reflects, that Rudy Iturrino himself decided to withdraw
his transfer request. Regardless of whether Iturrino’s leave
dates would be accommodated, this is immaterial.
Not
accommodating transfer leave was consistent with Department
policy.
Graling testified that “if you switch shifts
voluntarily, then [the Department] will not honor your leave . .
. except for extenuating circumstances.
In this case, it wasn’t
extenuating circumstances for Rudy [Iturrino].”
59
(Graling Dep.
Tr. 16:3-8, at Opp. Ex. 54.)
Moreover, Bland’s own transfer
request form contains a printed acknowledgement that “[the
signer] acknowledges that if my request for a transfer is to
another shift and this request is granted, any previously
approved leave may be revoked if it exceeds the authorized leave
slots for that shift.”
(Mem. Ex. 17.)
Department policy was
that leave may not be accommodated when one transfers shifts, so
whether Iturrino’s leave would be accommodated is immaterial.
The most significant flaw in Bland’s argument,
however, is that the above evidence does not show that the
County offered different justifications at different times.
Even viewed in the light most favorable to Bland, a reasonable
juror would find that evidence to show that the County has
offered consistent justifications.
Namely, that the Department
tried to accommodate Bland’s transfer, but the transfers fell
through, because here and in other instances, coordinating
transfers is difficult.
As Deputy Chief McKernan testified,
“[t]here was a whole process for [coordinating transfers].
It’s
almost a dance that goes through with all of these promotions
and transfers . . . [a]nd it’s very difficult to place everybody
exactly where they want to go.”
(McKernan Dep. Tr. 18:5-7, 21-
22.)
What the Sears Roebuck court meant by “different
justifications at different times” is illustrated by its review
60
of the employer in that case’s justifications.
“In [Sears
Roebuck], Sears has, over time, proffered several reasons for
its failure to hire [the plaintiff], including the selection of
someone else, a lack of available hours in the loss prevention
department, and the belief that [the plaintiff] had been
investigated for sexual harassment in the past.”
852.
243 F.3d at
Here, the County has offered not different justifications,
but examples of how the same justification played out in
practice on different occasions.
Thus, even assuming Bland has
put forth a prima facie case for retaliation, no reasonable
juror could find that the legitimate reason offered by the
County was pretext.
IV.
Conclusion
For these reasons, the Court will grant in part and
deny in part Defendant’s Motion.
An appropriate Order will issue.
May 3, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
61
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?