Hernandez v. Fairfax County Fire and Rescue Department
MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 1/30/2017. (rban, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Civil Action No. 1:16cv0502 (AJT/MSN)
This employment discrimination case is before the Court on Defendant’s Motion
for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 [Doc. No. 32]
(the “Motion”). In her three count Amended Complaint [Doc. No. 8] (“AC”), Plaintiff
Magaly Hernandez (“Hernandez”) alleges that her employer, Fairfax County (the
“County”), engaged in sexual harassment and retaliation when she complained of that
harassment, all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 2000e–e-17 (1964). The Court held a hearing on Defendant’s Motion on
December 9, 2016, following which it took the matter under advisement.1 For the
reasons stated below, the Motion is GRANTED, and this action will be DISMISSED.
Unless otherwise indicated, the following facts are either undisputed or, where disputed,
stated in the light most favorable to the Plaintiff.
Following the hearing and without leave of the Court, Plaintiff filed an additional affidavit that purported to answer
certain questions which the Court had asked of Plaintiff’s counsel during the hearing. [See Doc. No. 58.] Defendant
then filed a motion to strike the supplemental filing. [Doc. No. 59.] Plaintiff has not opposed that motion. The
Court has granted Defendants’ motion to strike Plaintiff’s supplemental affidavit. Nevertheless, nothing in
Plaintiff’s affidavit would materially affect either the Court’s analysis or its ruling on the Motion.
Hernandez has been employed as a firefighter with the Fairfax County Fire and Rescue
Department (the “FRD”) since December 11, 2006. Defendant’s Memorandum in Support of its
Motion for Summary Judgment [Doc. No. 33] (“Def.’s Mem. Supp.”) ¶ 1. On October 1, 2013,
Hernandez voluntarily transferred to the C-Shift at Fire Station 42 (“FS 42-C-shift”), at which
Jon Bruley (“Bruley”) was the Station Captain at that time. Id. ¶ 2. FS 42-C is within FRD’s
second battalion and, at all relevant times, Cheri Zosh (“Zosh”) was the Battalion Chief for Cshift of the second battalion.
Hernandez first felt harassed in October 2013, within hours of her first working together
with Bruley, when Bruley blocked her path in the hallway. Plaintiff’s Memorandum in
Opposition to Defendant’s Motion for Summary Judgment [Doc. No. 53] (“Pl.’s Mem. Opp’n”)
3; id., Ex. 1 (“Hernandez Declaration” or “Hernandez Decl.”) ¶1.
In November or December 2013, Bruley walked up behind Hernandez and placed his
chin on her shoulder while she was engaged in a conversation with colleagues. Def.’s Mem.
Supp. ¶ 3. Hernandez said, “Captain, I don’t like people that close to me. It makes me feel
uncomfortable. I don’t like it.” Id. Bruley acted like he was leaving but then propped his hand
up against the door of the room and positioned his body “right up against” Hernandez.
Hernandez ducked under his arm and stepped out of the room. Id.
In early 2014, Bruley asked Hernandez for a hug, and when she did not comply, Bruley
placed his arm on her.2 Pl.’s Mem. Opp’n 3. Around that same time, in early 2014, Bruley
placed his chin on Hernandez’s shoulder again, this time in the kitchen of the fire station. Def.’s
Mem. Supp. ¶ 4. Hernandez again told Bruley she didn’t like it when people get that close to her
and walked out of the room. Id.
Defendant claims this incident, as well as the October, 2013 incident, never happened and that Hernandez’
reference to these incidents contradicts her deposition testimony. See Defendant’s Memorandum in Reply [Doc. No.
55] (“Def.’s Reply”) 3 n.2.
On three separate occasions prior to April 2014, Bruley invited the entire FS 42-C-shift
over to his house for a pool party. Id. ¶ 9. On one of those occasions, Hernandez indicated an
interest in coming but said she would just watch because she does not wear bathing suits and
does not enjoy swimming. On two of those occasions, Bruley responded that he wanted to see
her in a bathing suit. Pl.’s Mem. Opp’n 4. He repeated his desire to see her in a bathing suit,
even after she said his remarks made her feel uncomfortable. Id.
On a separate occasion prior to April 2014, a number of firefighters were discussing
emergency scenarios in the kitchen of the fire station. Bruley told Hernandez that if they had to
respond to a fire, the two of them would have to work together as a team. Hernandez said she
was fine with that arrangement. Bruley responded, “But you are not going to be able to handle
that big hose now, are you?”3 Id. Hernandez interpreted Bruley’s comment to have a sexual
innuendo and told Bruley that the remark was inappropriate, but Bruley did not apologize. Id.
On April 29, 2014, an incident occurred between Bruley and Hernandez while she was
standing over a colleague at a computer viewing vacation photos with her colleagues. Def.’s
Mem. Supp. ¶ 5. Hernadez recalls that while looking at the pictures, she felt a “nudge on [her]
heel. [She] turned around to find Capt. Bruley had again snuck up behind [her]. [She] asked
him to back up and told him again that [she doesn’t] like [her] personal space invaded like that.”
Hernandez Decl. ¶ 8. Hernandez also recalls that during that incident, Bruley put his chin on her
shoulder, and Hernandez said “what the hell,” and walked away. Pl.’s Mem. Opp’n 4.
Also in April 2014, Bruley got into a basketball-like defensive stance to block
Hernandez’s movement down a hallway of the fire station. Def.’s Mem. Supp. ¶ 4 n.4. Bruley
eventually walked by Hernandez without touching her. Id.
Defendant claims Bruley worded his response differently, saying “Maggie, you can’t handle that big hose,” and
that he made this comment while putting his arm around her shoulder and while laughing. Pl.’s Mem. Opp’n 4.
In response to the April 29 incident in paragraph seven above, Hernandez asked Zosh to
speak with Bruley but requested that Zosh handle the issue at the station level because she feared
retaliation. Id. ¶ 7. Zosh addressed the issue with Bruley the same day.
The next day, Zosh raised the issue again in a meeting with Hernandez, Bruley, and
Captain Cunningham. Zosh directed Bruley not to invade Hernandez’s personal space or touch
her, to stay two arms lengths away at all times, and not to say inappropriate things to her. She
also directed that physical contact should not be made without prior consent. Id. Hernandez
considered Zosh’s actions “appropriate.” Id. ¶ 8; see also Hernandez Deposition Transcript
(“Hernandez Dep. Tr.”) 155:3-5. Zosh also recommended a fitness for duty examination for
Bruley based on what she believed might be psychological issues. Pl.’s Mem. Opp’n 10. Dr.
Donald Steward, the Director of the Occupational Health Center, concurred with Zosh’s
judgment and further recommended to the FRD leadership that Bruley be temporarily relieved
from duty pending the results of that exam. Id. The Equal Employment Opportunity (“EEO”)
officer investigating Hernandez’s complaint canceled any such examination, however, because
of the pending complaint against Bruley. Id. Bruley eventually underwent this examination on a
later date, though the results of that examination do not appear in the record.
Following the April meetings with Bruley concerning Hernandez, Bruley’s conduct took
on a different aspect. Although he no longer physically touched her or made sexual remarks,
Bruley began to “ostracize” Hernandez around the station, though he continued to discuss
business-related issues with her. Hernandez Decl. ¶ 12.4 In reaction to Bruley, Hernandez did
not read, but rather deleted without reading, at least some email correspondences from Bruley.
As Hernandez detailed in her affidavit, “[Bruley] would walk away if I came into a room and he only talked to me
about administrative matters like my time slips. Otherwise, he would ignore me.” Hernandez Decl. ¶ 12.
Id.; see also Hernandez Dep. Tr. 156:4-20 (Hernandez acknowledges she “may have deleted”
email from Bruley “[b]efore reading it.”).
In late June or early July 2014, Bruley made an unsubstantiated complaint to Deputy
Chief Richard Roatch (“Roatch”) about an inappropriate and possibly sexual relationship
between Zosh and Hernandez. Def.’s Mem. Supp. ¶18.
On July 15, 2014, Zosh met with Bruley and directed him to make immediate changes at
FS 42-C-shift, including the implementation of a daily physical training regimen. Def.’s Mem.
Supp. ¶ 13. Bruley did this on July 17, 2014 and designated 9 a.m. for daily physical training
(“PT”). On July 19, 2014, Bruley directed Hernandez to PT with the rest of the shift, but
Hernandez claimed that she was not required to attend because she had already done PT earlier
that morning. Hernandez admits that she failed to comply with Bruley’s direct order. Hernandez
Dep. Tr. 194:15–195:18.
At some point after the July 15, 2014 meeting with Zosh, Bruley began documenting
Hernandez’s activities around the station, including to whom she was talking, to whom she gave
hugs, and what she did on certain occasions. Id. ¶ 15. Hernandez has never seen the notes,
although Bruley “freely showed [his notes] to Chief Zosh.” Hernandez Dep. Tr. 406:13-21,
407:11-12. She only knew Bruley was engaged in this tracking of her activities from her
discussions with Zosh and never personally observed any documentation activities. Def.’s Mem.
Supp. ¶ 15. Zosh also told Hernandez that Bruley told Zosh that he wanted to know when
Hernandez used the bathroom, although he never so informed Hernandez. Hernandez Dep. Tr.
Bruley claims that he tracked Hernandez because he perceived any physical contact at FRD—not just physical
contact between him and Hernandez—to be a violation of Zosh’s April 2014 order, Def.’s Mem. Supp. ¶ 16, and
that he also documented improprieties by male FRD employees, id. ¶17.
On July 17, 2014, Bruley complained to Zosh that there were issues pertaining to
Hernandez that were not adequately being addressed and that these issues had begun to affect the
day-to-day activities of the station. Def.’s Mem. Supp. ¶ 19.
On July 24, 2014, Hernandez and Bruley had a dispute over the meaning of a Standard
Operating Procedure (“SOP”) regarding the use of personal electronic devices. Bruley claimed
the SOP prohibited the use of cellphones during lineup, whereas Hernandez claimed Bruley
misunderstood the SOP and that she merely corrected his misunderstanding. Id. ¶ 21; Pl.’s Mem.
Following the July 24, 2014 incident, Bruley filed a hostile work environment complaint,
claiming that Hernandez inappropriately directed her superiors to complete tasks, was regularly
late for lineups and drills, inappropriately used her cell phone during lineup, and was
insubordinate on multiple specific occasions. Def.’s Mem. Supp. ¶ 22. Bruley wrote,
“Hernandez is challenging everything I say and has become a liability. . . . She has no respect for
her officers as she is willing to openly argue and contradict lawful orders in front of other
employees. . . . [She] has been a disruptive force . . . I don’t feel, based on the relationship
between Zosh and FF Hernandez, that this can be resolved within the battalion.”6 Id.; see also
id., Ex. 12.
On July 28, 2014, in immediate response to Bruley’s complaint, Hernandez was
transferred from FS 42-C to Fire Station 2 (“FS 2”) for a temporary assignment. Id., Ex. 2 ¶ 1011. She was then sent to Fire Station 1(“FS 1”) for seven work days and then in late September
2014, back to FS 2 for twenty work days, through October 17, 2014. Def.’s Mem. Supp. ¶ 22.
Hernandez claims that she “never refused an order from Captain Bruley although he spread rumors to other
officers that she was insubordinate and made numerous disciplinary complaints against her.” Pl.’s Mem. Opp’n. 4.
After her July 24, 2014 transfer, Hernandez never again worked under Bruley’s
supervision. Id. ¶ 56. Nevertheless, Bruley, without Hernandez’s contemporaneous knowledge,
continued to monitor her from his separate location. See Pl.’s Mem. Opp’n 5. Hernandez later
found out about this monitoring from a colleague. In total, Bruley compiled three binders of
notes and also apparently used electronic resources to make further records. Id.
Sometime in July 2014, Bruley had audio and visual recording equipment installed at the
fire station. Id. The equipment was installed with the County’s prior consent and was only
placed in public areas around the station. The record is unclear as to when Hernandez became
aware of this equipment.
On August 2, 2014, Deputy Chief Roatch met with Hernandez at FS 1 to discuss the July
24 incident, at which time Hernandez said she wanted to return to FS 42-C-shift if that could be
accomplished without Bruley’s also being there. Def.’s Mem. Supp. ¶ 25.
On August 18, 2014, Hernandez filed a sexual harassment and retaliation complaint with
the Fairfax County Office of Human Rights and Equity Programs (“OHREP”). Def.’s Mem.
Supp. ¶ 26. Justin Wharton (“Wharton”), the Equity Programs Manager for OHREP,
investigated Hernandez’s complaint and, in a twenty-one-page memorandum report dated
October 1, 2014, determined that her allegations were unsubstantiated. Id. ¶ 28. However,
Hernandez claims that Wharton’s investigation suffered from serious flaws including failures to
interview Hernandez and to inspect Bruley’s tracking notes. Pl.’s Mem. Opp’n 10.
On August 29, 2014, Assistant Chief John Caussin (“Assistant Chief Caussin”) met with
Bruley to discuss the various issues at FS 42. Assistant Chief Caussin told Bruley not to discuss
the Hernandez situation and that he should, instead, focus on his own personal duties as a shift
leader. Def.’s Mem. Supp. ¶ 31.
In late October 2014, Bruley was transferred from FS 42-C-shift (Hernandez’s previous
shift) to FS 23-B-shift, and at about the same time, Hernandez was returned to FS 42-C-shift. Id.
¶¶ 32, 35. Bruley formally contested this transfer in a grievance.7
On November 15, 2014, Bruley was issued a broad directive to “cease all investigation of
matters related to your prior assignment [at FS 42-C-shift] that negatively impact or distract your
focus on your assignment and duties at [FS 2].” Id. ¶ 37; see also id., Ex. 23.
On February 11, 2015, an incident occurred between Hernandez and Firefighter
Merneptah Funn (“Funn”) during a FS 42-C-shift basketball game. See id. ¶¶ 38-50. The two
had a dispute on the basketball court which ended with a verbal confrontation between
Hernandez and Funn.8 Zosh stepped between the two firefighters, and Funn walked away. Id.
Funn later asked Zosh to address Hernandez about the incident, and in response, Zosh asked
Lieutenant Mark Davidson (“Davidson”) to investigate the incident. Id. ¶ 39. Hernandez spoke
with Davidson and took full responsibility for her actions and offered a full apology to Funn,
who interpreted her apology as being disingenuous. Id. ¶¶ 40-41. Funn therefore discussed the
incident with Captain Charles Cunningham (“Captain Cunningham”), who suggested that Funn
report the entire incident to Guy Morgan (“Morgan”) in the FRD’s Professional Standards
Office. Id. ¶ 42.
On February 12, 2015, Funn reported the incident to Morgan. Id. ¶ 43. Morgan
proceeded to investigate the incident and to interview Hernandez, Captain Steve Clark (the shift
captain at FS 2), Captain Francis Mensah, and Tech Jacob Quirke. Id. ¶¶ 45-46. He did not
speak with Carol Laymon, however, who Plaintiff claims was an eyewitness to the alleged
The record inconsistently reflects that Bruley was transferred on October 28, 2013 and filed his grievance realted
to that transfer on October 23, 2014. See Def.’s Mem. Supp. ¶¶ 32, 34.
Funn had previously been absent from work because of an injury, and the situation escalated when Hernandez
asked Funn, “[W]hy don’t you go back on light duty?” Hernandez Dep. Tr. 291:5-13.
workplace violence. Pl.’s Mem. Opp’n 14. As part of Morgan’s investigation into Hernandez,
he discovered other information about past misconduct with which Hernandez had been involved
On March 27, 2013, Hernandez was involved in an altercation with Tech. Quirke,
according to Captain Mensah and Tech. Quirke. Def.’s Mem. Supp. ¶ 46. At the
time of this incident, Captain Mensah “advised [Hernandez and Quirke] of the
possibility of progressive discipline should this continue to be a workplace issue.”
In 2014, Hernandez was arrested and charged with domestic violence and
attended a six-month court-ordered anger management program. Id. ¶ 47.
In September 2014, Hernandez was involved in an altercation with firefighters at
FS 2, according to Captain Clark. Id. ¶ 45.
In October 2014, Hernandez was involved in an altercation with firefighters at FS
2, according to Captain Clark. Id.
In a memorandum report, Morgan sustained findings against Hernandez for workplace violence
and unbecoming conduct.9 Id. ¶ 48.
On June 8, 2015, based on that report, the County issued a written reprimand to
Hernandez for workplace violence and unbecoming conduct. Id. ¶ 49; see id., Ex. 31. Such a
reprimand prevents an employee from being promoted for at least one year and remains in an
employee’s personnel file for at least three years. Pl.’s Mem. Opp’n 15-16. On July 19, 2015, as
a result of her reprimand, Hernandez was also transferred out of FS 42-C-shift. Def.’s Mem.
Supp. ¶ 50.
In February 2015, Morgan also investigated the numerous complaints that Bruley had
made regarding Hernandez and Zosh and met with Bruley as part of that investigation at the
direction of Jason Jenkins, the administrative aid to Fire Chief Richard Bowers (“Fire Chief
Bowers”). Id. ¶ 51. In mid-February 2015, Morgan notified Fire Chief Bowers that Bruley was,
in fact, using Telestaff computer software to document the whereabouts of Zosh and
Hernandez claims that Morgan failed to adequately consider Funn’s credibility in light of what she claims is a
history of reprimands for false reporting. Pl. Mem. Opp’n. 13.
Hernandez.10 In response, Fire Chief Bowers told Bruley to cease this conduct and directed
Morgan to investigate Bruley’s behavior to determine whether he violated the November 15,
2014 directive to terminate all investigations. Id. Morgan conducted a more thorough
investigation and concluded that Bruley had violated the November 15 directive by continuing to
use Telestaff to determine Hernandez’s work assignments. Id.
Upon determining that Bruley had violated the November 15, 2014 directive, Battalion
Chief Daniel Shaw issued Bruley a written reprimand on March 3, 2015 for insubordination and
violating FRD’s electronic communications and information technology systems SOP. Id. Fire
Chief Bowers also issued Bruley a direct order to cease tracking Zosh and Hernandez
immediately and informed Bruley that his failure to do so would result in his termination. Id. As
part of Morgan’s investigation into Bruley, Morgan discovered other information about past
misconduct on the part of Bruley, including that Bruley had:
intimidated women at his wife’s job in an attempt to coerce them to provide
proprietary information regarding his wife’s salary;
was arrested for stalking his girlfriend and frightening her children after she broke
up with him;
had harassed and tracked the husband of a woman he was dating; and
was charged with a criminal violation and convicted of phone harassment.
Pl.’s Mem. Opp’n 8-9.
There are no further instances in the record of inappropriate conduct by Bruley after
March 3, 2015.
Bruley grieved the March 3, 2015 written reprimand and direct order, claiming they were
issued in retaliation for his complaints of discrimination. Def.’s Mem. Supp. ¶ 53. He then filed
a discrimination complaint with OHREP alleging sex-based discrimination and claiming that
Telestaff is FRD’s staff management software. All FRD employees have access to Telestaff and are able to view
the full roster of employees and assignments. Def.’s Mem. Supp. ¶ 29. Telestaff’s records are therefore not private
or confidential and in fact are open to inspection and copying by any Virginia citizen who follows the proper legal
procedures to obtain such information. Id. ¶ 30.
Hernandez and Zosh were not disciplined for violating FRD rules, whereas he was. Id. ¶ 54. He
also alleged that the written reprimand was retaliatory. Id.
On July 30, 2015, the County received further notice that Bruley had filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”) for race and
sex-based discrimination and retaliation in violation of Title VII. Id. ¶ 55.
On October 14, 2015, Hernandez filed her first and only Charge of Discrimination with
the EEOC, alleging sex-based discrimination and retaliation. Id. ¶ 58; see also id., Ex. 51.
Sometime around March 2016, approximately five months after Hernandez filed her
Charge of Discrimination, Hernandez first discovered that Bruley had been using Telestaff
computer software to ascertain Hernandez’s work assignments, including specifically the station
and apparatus to which she was assigned and overtime/callback assignments. Id. ¶¶ 28, 57.
Bruley claims he did this tracking in order to document what he perceived to be improprieties
concerning Hernandez’s relationship with Zosh. Id. ¶ 28. Hernandez claims Bruley’s tracking
of her, even though unknown to her at the time, was a form of stalking and harassment. Pl.’s
Mem. Opp’n 5.
Bruley retired from the FRD on September 11, 2016. Def.’s Mem. Supp. ¶ 56.
Fairfax County has a broad set of policies that prohibit discrimination and sexual
harassment and mandate EEO training for all employees. Id. ¶ 59.
FRD also has policies that prohibit discrimination, harassment, and retaliation,
and provides a procedure for reporting suspected harassment. FRD provides EEO
training to all recruits in recruit school. FRD also has EEO counselors who are
available to employees who have what they believe are EEO complaints. The
EEO counselors are there to answer questions, perform intake functions, and
forward the complaints to FRD’s EEO officer. FRD’s policy concerning
discrimination, including its policy prohibiting sexual harassment, is posted in all
of its fire stations.
Id. Plaintiff does not contest the sufficiency of the policies that the County and FRD have in
place, but maintains that they do not adequately enforce those policies. Pl.’s Mem. Opp’n 8.
Under Federal Rule of Civil Procedure 56, 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, 95859 (4th Cir. 1996).
The party seeking summary judgment has the initial burden to show the absence of a
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material
fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
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.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To defeat a
properly supported motion for summary judgment, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 247-48 (“[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.”). Whether a fact is considered “material” is determined by the
substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.” Id. at 248. The facts
shall be viewed, and all reasonable inferences drawn, in the light most favorable to the nonmoving party. Id. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007).
Defendant claims that Bruley subjected her to sexual harassment which Defendant
Fairfax County could have and should have done more to stop and that when she complained of
this treatment, she was subsequently subjected to a hostile work environment because of her
Hernandez’s complaints fall into three different categories:11 First, she complains of
Bruley’s sexual advances toward her from October 2013 through April 2014, which she claims
the County did not adequately stop.12 Second, she complains of Bruley’s tracking activities and
avoidance of her in the workplace, which she claims the County did not adequately stop.13
Third, she complains of affirmative employment actions that the County took against her.14
Claims I and II: Sex-Based Hostile Work Environment15
Plaintiff first alleges that Fairfax County subjected her to unlawful harassment because of
her sex. See AC ¶¶ 16-17.
Title VII makes it illegal for an employer “to discriminate against any individual with
respect to [her] . . . terms, conditions, or privileges of employment, because of such individual’s .
. . sex.” 42 U.S.C. § 2000e-2(a)(1). Work environment is considered to be a term or condition
These categories are for descriptive purposes only and have not limited the Court’s overall analysis, which it has
based on all of the circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
This category includes placing his chin on Hernandez’s shoulder multiple times, asking Hernandez for a hug,
telling Hernandez he wanted to see her in a bathing suit at his pool party on multiple occasions, referring to
Hernandez’s inability to “handle that big hose,” and blocking Hernandez’s movement down hallways on multiple
This category includes Bruley’s documentation of Hernandez’s activities around the station, use of Telestaff
software to monitor Hernandez’s work assignments and locations, installation of audio and video recording
equipment at the station, and attempts to avoid or ostracize Hernandez around the station.
This category includes temporarily transferring Hernandez to other shifts for a period of three months, issuing
Hernandez a written reprimand for the Funn incident, and permanently transferring her to a different station
following the Funn incident.
In her Amended Complaint, Plaintiff styles this claim “Claim I – Sexual Harassment.” See AC ¶¶ 16-17. She
also lists a second claim, which she styles “Claim II – Hostile Work Environment.” See AC ¶¶ 18-19. In substance,
however, her “Sexual Harassment” claim is a hostile work environment claim based on sexual discrimination. In
her memorandum in opposition, Plaintiff abandoned this distinction and treated the two claims as one in the same
and stated during the hearing on December 9, 2016 that the two claims are actually one in the same, Hearing
Transcript (“Hr’g Tr.”) 44:4-15.
of employment so sexual harassment can be actionable based on a hostile working environment
under Title VII. EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001). To establish a
hostile working environment based on sexual harassment, a plaintiff must present evidence to
“prove that (1) the conduct was unwelcome; (2) it was based on the plaintiff’s sex; (3) it was
sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an
abusive work environment; and (4) it was imputable on some factual basis to the employer.”
Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (citing Spicer v. Va. Dep’t of
Corr., 66 F.2d 705, 709-10 (4th Cir. 1995)). There is no dispute that Hernandez did not
welcome the conduct of which she complains. Therefore, the Court must consider only the
remaining three factors.
The conduct was based on plaintiff’s sex.
“The critical issue [in the ‘because of sex’ inquiry] is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to which members of the other
sex are not exposed.” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en
banc) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80) (internal quotation
marks omitted). On the one hand, “workplace harassment, even harassment between men and
women,” is not “automatically discrimination because of sex merely because the words used
have sexual content or connotations.” Oncale, 523 U.S. at 80. On the other hand, when “the
challenged conduct . . . involves explicit or implicit proposals of sexual activity it is reasonable
to assume those proposals would not have been made to someone of the same sex.” Id. Here,
the evidence is clearly sufficient for a reasonable fact finder to conclude that Bruley’s challenged
comments and conduct were based on Hernandez’s sex.
The conduct was not sufficiently severe or pervasive.
A plaintiff must demonstrate that the harassment was “sufficiently severe or perverse to
alter the conditions of [the victim’s] employment and create an abusive working environment.”
Ocheltree, 335 F.3d at 333. “[W]hether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances.” Harris, 510 U.S. at 23. Among the factors
a court should consider are “the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id. The “severe or pervasive”
standard is both objective and subjective. Ocheltree, 335 F.3d at 333 (citing Harris, 510 U.S. at
21-22). The objective portion of that standard is designed to “filter out complaints attacking ‘the
ordinary tribulations of the workplace, such as the sporadic use of abusive language, genderrelated jokes, and occasional teasing.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)). For example, the “[m]ere utterance of an epithet which engenders offensive
feelings in a female employee [does] not affect the conditions of employment to a sufficiently
significant degree to violate Title VII.” Pagana-Fay v. Wash. Suburban Sanitary Comm’n, 797
F. Supp. 462, 468 (D. Md. 1993), aff’d 64 F.3d 658 (4th Cir. 1995) (citing Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)).
The conduct that Hernandez complains of occurred frequently for a period of
approximately one year spanning October 2013 to July 2014, with individual incidents of
harassment occurring thereafter. These incidents no doubt would allow a fact finder to conclude,
as Hernandez claims, that she felt humiliated going to work every day. And as a relatively
young female employee wanting to advance in the department, Hernandez no doubt felt added
pressure not to complain about these unwelcome acts from her significantly older direct
supervisor for the nearly six months leading up to her first complaint in April 2014. See
Jennings v. Univ. of N.C., 482 F.3d 686, 696 (4th Cir. 2007) (finding that “positions and ages of
the harasser and victim” are relevant factors in determining severity of harassment). Moreover,
the record establishes that Hernandez was fearful of Bruley. For these reasons, a reasonable jury
could conclude that the conduct was subjectively “severe or pervasive” to Hernandez.
However, based on Fourth Circuit precedent, as a matter of law, Bruley’s inappropriate,
boorish, insensitive, and demeaning incidents between October, 2013 and April 29, 2014, either
individually or collectively, are not sufficiently “severe” or “pervasive” under an objective
standard for the purposes of imposing liability under a sexual harassment claim. Nor do Bruley’s
tracking activities after April, 2014, some of which Hernandez’ did not learn about until after she
filed her EEOC complaint, add the necessary factual basis for such a claim. In that regard,
Courts of Appeal throughout the country, including the Fourth Circuit, have rejected as
sufficiently severe or pervasive comparable or more egregious conduct.16 As one Court of
Appeals summarized the law, “[a]ll of the sexual hostile environment cases decided by the
Supreme Court have involved patterns or allegations of extensive, longlasting, unredressed, and
uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.” Indest v.
Freeman Decorating, Inc., 164 F.3d 258, 263 (5th Cir.1999). For these reasons, no reasonable
jury could find that Plaintiff has presented facts that satisfy the objective standard for “severe or
See, e.g., Lacy v. Amtrak, 2000 WL 223335, at *3-4 (4th Cir. Feb. 28, 2000); Mendoza v. Borden, Inc., 195 F.3d
1238, 1247 (11th Cir. 1999) (en banc); Shepherd v. Comptroller of Public Accounts of Tex., 168 F.3d 871, 872-75
(5th Cir. 1999); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998); Adusumilli v. City of
Chicago, 164 F.3d 353, 357 (7th Cir. 1998); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1365-66 (10th Cir.
1997); Black v. Zaring Homes, Inc., 104 F.3d 822, 823-24 (6th Cir. 1997); Hopkins v. Baltimore Gas and Elec. Co.,
77 F.3d 745 (4th Cir. 1996); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993); Hosey
v. McDonald’s Corp., No. AW-95-196, 1996 WL 414057 (D. Md. May 17, 1996), aff’d, 113 F.3d 1232 (4th Cir.
1997). At the December 9, 2016 hearing, in response to the Court’s question, Plaintiff’s counsel was unable to
identify any case where facts comparable in impact on an employee to those in this case were deemed sufficiently
severe or pervasive, and the Court has found none. See Hr’g Tr. 46:1-17.
pervasive” conduct. The Plaintiff has, therefore, failed to demonstrate the third element of a
hostile work environment claim.
The conduct is not imputable to Fairfax County.
Plaintiff has also failed to present evident sufficient for a reasonable fact finder to
conclude that Bruley’s harassing conduct is imputable to his employer, Fairfax County. Where
an employee complains of sexual harassment by a coworker, “the employer may be liable in
negligence if it knew or should have known about the harassment and failed to take effective
action to stop it.” Ocheltree, 335 F.3d at 333-34 (citing Spicer v. Va. Dep’t of Corr., 66 F.2d
705, 710 (4th Cir. 1995)). “Once the employer has notice, then it must respond with remedial
action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d
306, 319 (4th Cir. 2008). Instituting and maintaining an anti-harassment policy, combined with
maintaining a complaint procedure, help the employer to establish that it has exercised
reasonable care but will not suffice when the employer administers the policy in bad faith or
renders in ineffectual by acting unreasonably. Spriggs v. Diamond Auto Glass, 242 F.3d 179,
187 (4th Cir. 2014).17
The County’s anti-harassment policies clearly prohibit the type of conduct Hernandez
complains of here and make available various grievance mechanisms. The issue is whether the
County’s “responses to the complaints made under its policies were not reasonably calculated to
end the harassment and, therefore, that liability for the harassment may be imputed to it.” EEOC
v. Xeres Corp., 639 F.3d 658, 669 (4th Cir. 2011). In deciding that issue, courts have considered
“the promptness of the employer’s investigation when the complaints are made, whether
The more demanding vicarious liability standard that applies in cases of alleged harassment by a supervisor of an
inferior does not apply to a case like this where the supervisor was not “empowered by the employer to take tangible
employment actions against the victim.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 278 (4th Cir. 2015)
(quoting Vance v. Ball State Uni., 133 S.Ct. 2434, 2439 (2013)) (internal quotation marks omitted).
offending employees were counseled or disciplined for their actions, and whether the employer’s
response was actually effective.” Id. “[R]esponses 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.” Id. (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir.
1998)) (internal quotation marks omitted). A significant consideration is whether the employer
“progressively stiffens its discipline,” but “an employer is not required to terminate a [particular]
perpetrator except where termination is the only response that would be reasonably calculated to
end the harassment.”18 Id. (quoting Adler, 144 F.3d at 676) (internal quotation marks omitted).
Here, although the evidence shows that Bruley had harassed Hernandez as early as
October, 2013, Hernandez did not complain about the harassment until April 29, 2014. When
she first complained about it to Zosh, she asked Zosh not to initiate any action beyond the station
level. Zosh spoke with Bruley about the incident the very same day that Hernandez complained
about it and then met the following day with her superiors to report what had occurred. Zosh and
Dr. Steward recommended that Bruley undergo a fitness for duty examination and be temporarily
relieved from duty in the meantime. Bruley was never temporarily relieved from duty and only
underwent a fitness for duty examination significantly later, but Hernandez concedes that Zosh’s
response was “appropriate” at that time. Hernandez Dep. Tr. 155:3-5. Fairfax County was faced
with a situation in which it had to consider a variety of factors, and the County made a
reasonable decision at the time, as even Plaintiff concedes.
The Adler court went on to say, “Unfortunately, some harassers may simply never change. Just as unfortunate, a
victim may have to suffer repeated harassment while an employer progressively disciplines the perpetrator to
determine whether he or she is just such a ‘hard head’ case.” 144 F.3d at 676.
After the County’s first response, Bruley never again made any sexual advances toward
Hernandez, an indication of the effectiveness of that response, but Bruley did begin his tracking
activities and other harassing conduct such as ignoring Hernandez. The County was not made
aware of this conduct until August 18, 2014, however, when Hernandez filed a complaint with
OHREP. The very next day, Assistant Chief Caussin met with Bruley and ordered him to stop
focusing on Hernandez. On October 1, 2014, the County concluded its formal investigation into
Hernandez’s OHREP complaint and found her allegations unsubstantiated. A fact finder might
reasonably find that investigation deficient, as Plaintiff claims, in that Hernandez was not
interviewed. Nevertheless, after Bruley continued his tracking activities, this time utilizing the
Telestaff system, he was transferred to a different battalion on October 28, 2014 and issued a
broad directive on November 15, 2014. Once it was determined that he failed to follow the
November 15 directive, he was issued a formal written reprimand and threatened with
termination on March 3, 2015. That discipline appears to have been effective, as the record
contains no additional instances of harassing behavior by Bruley after March 3, 2015.
Overall, while the County’s response was not perfect, it acted reasonably and effectively
to investigate and remedy Bruley’s offensive actions toward Hernandez. For the above reasons,
Plaintiff has failed to present evidence sufficient to impute Bruley’s conduct to his employer,
Fairfax County. Because the evidence in insufficient as a matter of law for a reasonable fact
finder to impute Bruley’s actions to Fairfax County or to find his conduct sufficiently severe or
pervasive, Defendant is entitled to judgment as a matter of law on Counts I and II.
Claim III: Retaliation
Plaintiff also claims that Fairfax County subjected her to a hostile work environment in
violation of Title VII because of her sex and also because of her protected activity See AC
Under Title VII, it is illegal for an employer “to discriminate against any of his
employees . . . because he has opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e3(a). To establish a prima facie case of retaliation, an employee must demonstrate “(1)
engagement in a protected activity; (2) adverse employment action; and (3) a causal link between
the protected activity and the employment action.” Coleman v. Md. Ct. of Appeals, 626 F.3d
187, 190 (4th Cir. 2010). If the plaintiff succeeds, then “the burden shifts to the defendant to
demonstrate a legitimate non-retaliatory reason for its action.” Bush v. Hagel, No. 1:12-cv01483 (AJT/IDD), 2014 WL 345650, at *5 (E.D. Va. Jan. 30, 2014) (Trenga, J.).
Plaintiff engaged in protected activity.
As the text of Title VII makes clear, opposition to any practice made an unlawful
employment practice by Title VII or making a charge, testifying, assisting, or participating in any
manner in an investigation, proceeding, or hearing under Title VII are all protected activities.
Generally speaking, “the employer [may not] take adverse employment action against an
employee for opposing discriminatory practices in the workplace.” Laughlin v. Metro. Wash.
Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). At a minimum, her official reports of
discrimination to her supervisor, Zosh, in April 2014 and her filing of a complaint with the
Fairfax County OHREP on August 18, 2014 constitute such protected activity. Accordingly,
Plaintiff has satisfied the first element to demonstrate retaliation.
Plaintiff suffered an adverse employment action.
“[T]he antiretaliation provision, unlike the substantive provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.” Burlington
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). Rather, the plaintiff must show
“that a reasonable employee would have found the challenged action materially adverse, which
in this context means it well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Id. at 68 (quoting Rochon v. Gonzales, 438 F. 3d 1211,
1219 (D.C. Cir. 2006)).
Here, as adverse retaliatory employment actions, Hernandez cites her temporary transfers
to other shifts from July to October 2014, her written reprimand that she received for workplace
violence and unbecoming conduct in February 2015, and her permanent transfer to a different
fire station in February 2015. See Pl.’s Mem. Opp’n 22-26. The transfers, however, are not
adverse employment actions because there is no evidence that they had any effect on her future
employment, position, opportunities, or wages. Moreover, these transfers separated her from
Bruley, in the case of the temporary transfers, and from coworkers such as Funn, with whom she
had been involved in a dispute, in the case of the permanent transfer. A reasonable employee
would not find these consequences “materially adverse” because they did not affect the
conditions or terms of Hernandez’s employment and because they separated her from the hostile
environment of which she complained.
Plaintiff also claims that she suffered an adverse employment action in retaliation for
protected activity when Fire Chief Bowers failed to warn her, but not Zosh, about the possibility
that Bruley might respond physically after the County issued Bruley’s directive on November 15,
2014. In that regard, Hernandez points to Bowers’ statement to Zosh that he did not give such a
warning directly to Hernandez because Hernandez had “lawyered up.” See Pl.’s Mem. Opp’n
26. Plaintiff further emphasizes that this occurred approximately one week after Plaintiff’s
counsel sent the County a letter and that approximately one month after Fire Chief Bowers made
his “lawyered up” statement, the Professional Standards Investigator found that Bruley had
expended significant time and effort tracking Zosh and Hernandez. Putting these facts together,
Plaintiff appears to argue that Fire Chief Bowers or the County retaliated against her, and she
suffered an adverse employment action as a result, by not acting to protect her from a significant
possibility of physical violence from Bruley, or at least condoning or tolerating Bruley’s
harassment, because she had “lawyered up” as part of her protected activity. The evidence is
insufficient, however, for any reasonable fact finder to reach those conclusions, particularly since
Bowers’ warning to Zosh was likely intended to be passed on to Hernandez, and Zosh did, in
fact, pass on that warning. Hernandez Decl. ¶ 18.
However, the written reprimand issued on June 8, 2015 affected Hernandez’ future
prospects and potentially increased any future discipline, and a reasonable worker might well be
dissuaded from making a charge of discrimination if subjected to those consequences.
Defendant argues that no collateral consequence resulted from the written reprimand, but at a
minimum, the written reprimand prevented Hernandez from being eligible for a promotion for at
least one year, and will remain on her permanent employment record for at least three years,
which could conceivably heighten any further discipline to which she might be subjected in the
future. While it is true that Hernandez has already served as a firefighter for approximately eight
years without promotion, she nevertheless became ineligible for the promotion as a result of her
discipline; to hold otherwise would require the Court to speculate as to an employee’s chances of
promotion.19 Under the Supreme Court’s lowered adverse action standard in Burlington, the
evidence is sufficient for a reasonable jury to find that such a written reprimand might well
dissuade a reasonable firefighter from complaining, and the written reprimand therefore satisfies
the second element to establish retaliation.
There is no causal link between the protected activity and the adverse
“Title VII retaliation claims must be proved according to traditional principles of but-for
causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer.” Univ. of Tex. S.W. Med. Cent. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
“[E]vidence that the alleged adverse action occurred shortly after the employer became aware of
the protected activity is sufficient to satisfy the less onerous burden of making a prima facie case
of causation.” Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th
For the reasons described above, Hernandez’s written reprimand was the only adverse
employment action she suffered. The County issued that reprimand on June 8, 2015, which was
nearly ten months after Hernandez complained to the Fairfax County OHREP and fourteen
months after she complained to Zosh.20 No reasonable inference of but-for causation can
therefore be drawn based on temporal proximity. See King v. Rumsfeld, 328 F.3d 145, 151 & n.5
(4th Cir. 2003) (finding that a gap of “two months and two weeks . . . gives rise to a sufficient
Defendant also argues that Hernandez was ineligible for a promotion to the position of EMS technician which she
had coveted. See Def.’s Reply 19. Even assuming Defendant is correct, Hernandez was affected by the reprimand
with respect to a promotion to any other position for which she might have been eligible or later become eligible,
even if she did not specifically desire the position at that time.
During the hearing on December 9, 2016, Plaintiff also claimed that she suffered retaliation for “pursuing her
claim with the EEOC,” see Hr’g Tr. 36:3–37:6, but Hernandez did not file her claim with the EEOC until October
14, 2015, four months after the allegedly retaliatory action took place.
inference of causation” but was “sufficiently long so as to weaken significantly the inference of
causation between the two events”); see also Pascual v. Lowe’s Home Ctrs., Inc., 193 F.App’x
229, 233 (4th Cir. 2006) (per curiam) (finding that a gap of three to four months between the
complaint and adverse employment action was “too long to establish a causal connection by
temporal proximity alone.”). Hernandez presents no affirmative evidence that but for her
protected activity, she would not have been disciplined over the basketball incident.
Second, the County has presented legitimate, non-retaliatory reasons for disciplining
Hernandez. See Lacy v. Amtrak, 2000 WL 223335, at *3 (4th Cir. Feb. 28, 2000) (“Title VII . . .
does not give a woman immunity from being reprimanded in the presence of her co-workers if
her supervisor believes she has violated work rules or has been negligent in performing her job.”
(quoting Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1545-46) (10th Cir. 1995) (internal
quotation marks omitted)). The most immediate cause of the reprimand was her basketball court
dispute with Funn, but that discipline was imposed with knowledge of Hernandez’s three
previous work-related altercations with firefighters other than Bruley as well as a charge of
domestic violence which resulted in Hernandez attending six months of court-ordered anger
management classes.21 In response to an incident that occurred on March 27, 2013, the County
even warned Hernandez that she might be subject to increasingly severe discipline if she
misbehaved in the future. In any event, it is not the County’s burden to prove that its decision to
issue the reprimand was the best decision or even a reasonable one. Rather, Plaintiff must
adduce evidence that allows a reasonable fact finder to conclude that there was the necessary
causal connection between her protected activity and her written reprimand. Here, because there
In support of her claim of retaliation because of protected activity, Plaintiff claims Defendant did not actually rely
on the assertion that Hernandez ridiculed Funn for his disability until this litigation. Pl.’s Mem. Opp’n 27. The
written reprimand explicitly stated that Hernandez “challenged the firefighter verbally, violating his body space with
aggressive head and arm gestures.” Def.’s Mem. Supp., Ex. 31. Moreover, Hernandez explicitly stated in her
deposition that she “told him to go back on light duty.” Hernandez Dep. Tr. 291:5-13. In any event, the County’s
justification for the written reprimand did not necessarily depend entirely on the facts of the basketball incident.
is no temporal or other demonstrable connection between her reprimand and her protected
activity ten months earlier, Plaintiff has failed to make a prima facie case for retaliation.
Plaintiff's claim on Count III must therefore be dismissed.
For all of the aforementioned reasons, the Court finds and concludes that there are no
genuine issues of material fact, and Defendant is entitled to judgment as a matter of law as to all
claims. The Defendant's motion for summary judgment on Plaintiff's Amended Complaint is
therefore GRANTED, and this action is DISMISSED. 22
The Court will issue an appropriate order.
Anthony J. Tre a
United States istrict Judge
January 30, 2017
22 The Court also grants Defendant's Motion to Strike [Doc. No. 59] for the reasons stated above and denies
Plaintiffs Motion to Exclude Character and Propensity Evidence [Doc. No. 36] and Defendant's Motion in Limine
[Doc. No. 40) as moot.
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