Brink v. General Eric K. Shinseki, USA (Ret.) et al
Filing
52
OPINION AND ORDER granting 35 Motion in Limine; denying 24 Motion for Summary Judgment. Signed by District Judge Mark S. Davis on 4/14/2015. (bgra)
FILED
UNITED
STATES
DISTRICT
EASTERN DISTRICT
OF
COURT
VIRGINIA
APR 1 4 2015
Newport News Division
CLERK, US DISTRICT COURT
MICHELE
NORFOLK, VA
BRINK,
Plaintiff,
Civil
v.
Robert a.
Action No.:
4:14cv24
Mcdonald,
Secretary of Veterans
Affairs,
Defendant.
OPINION
This
judgment,
limine,
Yvonne
is
ECF No.
ECF
McDonald
seeks
matter
a
No.
before
24,
and
Def.'s
Mot.
on
on
ruling
In
his
that
motion
2015,
24,
motion
in
the
Ms.
1,
Robert
supervisory
status
a
36.
. . . for all purposes related to this matter."
GRANTS
Defendant's
motion
in
ECF No.
limine
43.
and
be
Therefore,
holds
that
of
Mem.
response,
co-worker
in Limine at 1,
should
In
A.
coworker,
("Plaintiff").
No.
Solomon
was
in
Defendant
has
to Mot.
"Yvonne
ECF
by
limine,
Solomon
summary
Plaintiff
Resp.
that
at
for
and a motion
2015,
of Michele Brink
Limine
conceded
March
regarding
contends
in
a
on March 2,
rather than a supervisor,
Supp.
Court
filed
("Defendant").1
Solomon
the
ORDER
filed
35,
pre-trial
AND
deemed
a
Pi.'s
the Court
Ms.
Solomon
1 Also pending before the Court are two other motions in limine
filed by Defendant.
ECF Nos. 38, 40.
The Court will resolve such
motions by separate order.
must
be
considered
Plaintiff's
coworker,
rather
than
her
Court
need
supervisor, for all purposes in this matter.
Thus,
only
in
light
consider,
of
in
Plaintiff's
detail,
concession,
Defendant's
the
motion
for
summary
judgment.
After examining the briefs and the record,
the Court
determines
that
the
oral
argument
is
unnecessary
because
facts
and legal contentions are adequately presented and oral argument
would not aid in the decisional process.
E.D.
Va.
Loc.
R.
Fed. R.
Civ. P.
78(b);
7(J).
I. FACTUAL AND PROCEDURAL HISTORY2
On September 5,
a
position
Veterans
Def.'s
as
a
Affairs
First
Req.
nurse
Center
for Admis.
Plaintiff
Unit
("Telecare")
2009,
Plaintiff
registered
Medical
2008,
medical
2006,
was
detailed
as
limitations.
Plaintiff was
at
a
to
at
at
the
Hampton,
("HVAMC").
4,
ECF No.
HVAMCs
temporary
Id.
accepted an appointment
5.
Virginia,
PL's
25-1.
Telecare
accommodation
Thereafter,
on
to
Resp.
to
In December
Nurse
for
Group
certain
February
13,
formally assigned to the Telecare position.
Id.
From
the
beginning
of
it was apparent to Plaintiff
Plaintiff's
substantive
to
Telecare,
that her colleagues in Telecare did
In his motion for summary judgment,
Plaintiff's
assignment
allegations
of
Defendant does not contest
harassment.
Thus,
the
Court
only sets forth the facts relevant to the issues raised in Defendant's
motion for summary judgment.
not
want
Plaintiff
Telecare
informed
and,
Telecare
long
Id.
unit,
period
of
the
local
Telecare
did
union
not
want
The Telecare workspace was kept
did
not
colleagues
time
opening
before
have
a
key
to
the
would
the
sometimes
door
to
let
wait
a
Plaintiff
Id.
Spring
Plaintiff's race.
or
early
Summer
2009,
Dianne
McQueen,
began overtly harassing Plaintiff based on
Id. *j 8.
and Monica Brandon,
Two other coworkers,
then joined in harassing
to a lesser degree.
daily)
f 3.
in
Michele
Despite her knocks on the door to the
Plaintiff's coworker,
"'intense,'
ladies
position.
"upon being placed in
president
Plaintiff's
of
late
Telecare
Moreover,
Plaintiff
t 5.
into the workspace.
By
the
Id.
initially,
workspace.
the
the
"that
there."
in
28-1.
position,"
Plaintiff
[Plaintiff]
locked
work
^ 4, ECF No.
Brink Decl.
the
to
\
Id.
9.
'deeply offensive'
and routinely."
Yvonne Solomon
Plaintiff,
though
The overt racial harassment was
and occurred
Def.'s Mem.
Supp.
frequently
Mot.
(if not
for Summ. J. at 3
(quoting Compl. 1 12-14, 28, ECF No. 1); accord PL's Mem. Opp'n
Mot.
for
Summ.
harassment
Plaintiff
and
to
was
talked
J.
which
at
(admitting
McQueen,
"so severe
almost
3
that,
every
Solomon,
from
night
such
and
assertion).
Brandon
subjected
the beginning she went home
with
her
husband,
who
recommended that she report the issues to a supervisor."
Mem.
Supp.
Mot.
for
Summ.
J. at
3
The
often
Def.'s
(citing Kevin Brink Dep.
at
30-31,
for
35,
40,
Summ.
43,
J.
Plaintiff
at
ECF No.
3
"sought
Mem.
Supp.
31-33,
at
3
say
ECF No.
anything
Mot.
such
to
a
harassment
for Summ.
25-2);
Program"
25-3);
J.
accord
at
such
J. at
through
assertion).
3
In
the
addition,
Hampton
Opp'n Mot.
However,
or
over
Mem.
Opp'n Mot.
the harassment.
manager
VA's
Def.'s
two years."
Opp'n
Mot.
"did
the
Def.'s
to
J.
not
purported
Mem.
Interrog.
for
at
for Summ.
Plaintiff
about
(citing PL's Resp.
PL's
Mem.
3 (citing Michele Brink Dep.
accord PL's Mem.
well
PL's
assertion) .
because of
supervisor
for
accord
counselling
for Summ.
(admitting
racial
No.
Mot.
(admitting
out
Employee Assistance
25-4);
Summ.
Supp.
7,
J.
ECF
at
3
(admitting such assertion).
In
October
2011,
Plaintiff made
the alleged harassment
making
various
attempts
her
first
to a supervisor,
to
meet
with
complaint
about
Pamela Orie.3
Ms.
Orie
in
After
early
fall
Defendant has presented evidence to contradict Plaintiff's
that she complained to Ms.
Orie in October 2011.
For
example, Defendant offers a declaration from Ms. Orie in which Ms.
Orie denies meeting with Plaintiff about supposed racial issues in
evidence
October 2011 or any time prior to March 2, 2012.
Orie Decl. f 14, ECF
No. 25-8.
Contrary to Defendant's assertion that Plaintiff has failed
to "offer some hard evidence showing that [her] version of the events
is not wholly fanciful," Def.'s Reply Supp. Mot. for Summ. J. at 3,
ECF
No.
33
(internal
quotation
marks
and
citation
omitted),
Plaintiff's sworn declaration directly disputes Defendant's evidence
about the first report of alleged harassment, and therefore creates a
genuine dispuce as to when Plaintiff
first met with Ms.
Orie regarding
her allegations of racial harassment.
In resolving the instant
motion,
the Court cannot weigh the evidence or make credibility
determinations.
F.3d
2015).
Jacobs
, No.
Thus,
v.
13-2212,
N.C.
Administrative
2015 WL 1062673,
Office
of
the
at *4 (4th Cir.
Courts,
Mar.
12,
the Court has described any genuinely disputed facts in
a light most favorable to Plaintiff,
4
the non-moving party.
Id.
2011,
Ms.
Orie and
Plaintiff met
what Plaintiff believes
Decl.
*;*i 17-18,
Plaintiff
"lynchings,
the
conversations
her
KKK,
the
end of
October
to have been October 28,
ECF No.
informed
at
about
regarding
M.
Brink
Orie,
workplace
oppression
black
men
2011.
discussions
of
blacks,
dating
respectively,
2011 and November 3,
to
Dr.
Anthony
2011,
Bradford
white
women"
Brink Decl. ^ 22.
relayed the same
the
email
r\ 18.
and
Dr.
Sheila
Elliott
See ECF Nos.
28-9.
Plaintiff next complained to Ms.
in
Id.
and
Plaintiff sent emails,
that referenced Plaintiff's meeting with Ms. Orie.
28-8,
involving
inappropriate
"complained to her about being called 'white girl.'"
On October 31,
on
In her meeting with Ms.
28-1.
the
2011,
October
from
M.
During her meeting with Ms. Orie, Plaintiff
information that
2011
meeting.
Plaintiff
second-level
Orie on March 2, 2012.
to
Id.
Ms.
supervisor-and
she had provided to Ms. Orie
Orie,
Dr.
Also,
in
Lewis
Elliott,
a
March
2,
2012
Frazier—Plaintiff's
Plaintiff
indicated
that "tension and hostility has been present for a long time"
Plaintiff's
motivated
workplace,
by
factors
that
that
she
are
believed
protected
that
by
"it
EEOC
is
in
partially
regulations,"
and that she was "making a final attempt to resolve this tension
by
requesting mediation
11.
blank
In
response
"report
of
to
through your assistance."
Plaintiff's
contact"
forms
complaint,
to
Plaintiff
Ms.
ECF No.
Orie
sent
28-
out
and her coworkers
in
an
attempt
allegations.
5,
2012
to
Orie Dep.
email
indicating
document
conduct
from
that
any
Thereafter,
fact-finding
15,
Ms.
ECF No.
Orie
"attached
concerns
to
is
regarding
28-15;
ECF No.
Plaintiff
the
or
(past
Report
and
of
present)
Plaintiff's
28-16
her
coworkers
Contact
you
(March
may
form
to
have.").
Plaintiff's supervisors had additional meetings with
Plaintiff and engaged in additional email correspondence.4
On
April
of
20,
2012,
discrimination.
Plaintiff
ECF No.
filed
28-27.
a
formal
In August
2012,
charge
Plaintiff
reassigned to a position as a Nurse Navigator at HVAMC,
her current position at HVAMC.
On
February
28,
2014,
asserted
harassment
based
race;
on
and
(III)
February
prejudice
her
6,
causes
Plaintiff
on
of
race;
retaliation.
2015,
disparate
which is
See Brink Decl. fl 29.
employment discrimination action.
initially
was
Compl.,
action
(II)
this
ECF No. 1.
under
disparate
See id.
Plaintiff
filed
Title
VII
treatment
HH 27,
31, 34.
voluntarily
Title
VII
Plaintiff
for:
(I)
based
on
However,
dismissed
with
treatment and retaliation claims.
ECF
* Plaintiff challenges the sufficiency of
following her March 2, 2012 complaint to Ms. Orie.
the investigation
Both parties have
submitted substantial evidence regarding events following Plaintiff's
March 2, 2012 complaint.
However, the Court does not set forth any
further details of such investigation because they are not relevant to
Defendant's laches defense—the only remaining defense asserted in
See Notice, ECF No. 48.
For the
Defendant's summary judgment motion.
same reason,
the Court does not set forth any facts relating to
harassment that occurred subsequent to Plaintiff's March 2,
2012
complaint.
No.
21.
Thus,
only
Plaintiff's
harassment
claim
remains
at
issue in this matter.
On
February
deposition.
deposition,
the
allegations
of
her
recall
at
ECF
No.
took
Plaintiff's
25-3.
During
racial
harassment
conversations
allegations,
what
98,
176,
185,
prompted
185.
the
about
including
O.J.
Simpson,
African-American men dating Caucasian women,
Id. at 98,
Id.
Defendant
counsel questioned Plaintiff concerning
concerning
lynchings,
not
Dep.,
Defendant's
specifics
KKK.
2015,
Brink
M.
17,
195.
the
Similarly,
In response,
conversation
Plaintiff
Plaintiff
about
could
number of times in which conversations about
and the
O.J.
not
could
Simpson.
quantify
the
lynchings occurred,
but could "say when it was worse" and that "it was persistent."
Id.
at
176.
frequency
Caucasian
ago,-"
Id.
In
of
women
195.
because
about
"that
was
could
not
establish
African-American
two
and
a
half,
men
the
dating
three
years
Plaintiff stated that "it occurred throughout."
Regarding
could not provide
conversations
and a half years ago,"
in
about
the
KKK,
Plaintiff
a quantitative number as to the frequency of
such conversations because
"consistent
Plaintiff
conversations
however,
at
addition,
terms
"that was almost
three years ago,
two
but stated that such conversations were
of
their
constantly
talking
about
and
barraging me with these things ... at times it was worse than
others,
but
it
was
always
there."
Id.
at
199.
Finally,
although Plaintiff has alleged that her coworkers left "stories
about racial occurrences" at her work station, Compl.
her deposition,
H 13,
in
Plaintiff could only identify one article that a
coworker left on her desk and that she considered to be racially
hostile or harassing, M. Brink Dep. at 214.
On
March
2,
2015,
summary judgment.
Defendant
ECF No.
regardless
of
environment
allegations,
based
by
on
two
Faragher
the
Therein,
validity
he
affirmative
v.
24.
City
of
is
Boca
Inc. v.
for Summ.
response
2015,
in
summary
defense.
at
13.
opposition
Defendant
Summ. J.,
J.
(1)
Raton,
filed his
ECF No. 33.
Defendant's
with
ECF No.
hostile
defense
U.S.
775
524 U.S.
for
742
work
judgment
established
(1998)
(1998)
Def.'s Mem.
2015,
and
(the
Supp.
Plaintiff filed her
motion.
Def.'s
On
Reply
March
24,
Mot.
for
Supp.
2015, Defendant withdrew his
respect
48.
motion
summary
laches.
On April 10,
judgment motion
Notice,
524
Ellerth,
reply.
to
the
On March 19,
to
instant
Defendant asserts that,
entitled
"Faragher/Ellerth defense"); and (2)
Mot.
the
Plaintiff's
defenses:
of
Burlington Industries,
filed
to
the
Accordingly,
Faragher/Ellerth
the
matter
is
now
ripe for disposition.
II.
The
Federal
Rules
STANDARD OF
of
Civil
REVIEW
Procedure
provide
that
a
district court shall grant summary judgment in favor of a movant
if such party "shows that there is no genuine dispute as to any
8
material fact and the movant is entitled to judgment as a matter
of
law."
Fed.
R.
Civ.
P.
56(a).
" [T]he mere existence of some
alleged factual dispute between the parties
otherwise
properly
supported
motion
for
will
not
summary
defeat
judgment;
an
the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby Inc.,
fact is
and
a
"material"
dispute
if
is
it
477 U.S.
242,
247-48
(1986).
A
"might affect the outcome of the suit,"
"genuine"
if
"the
evidence
is
such
that
a
reasonable jury could return a verdict for the nonmoving party."
Id.
at
248.
If a movant has properly advanced evidence supporting entry
of summary judgment,
the non-moving party may not rest upon the
mere
the pleadings,
allegations
of
specific facts in the form of
other
materials
that
but
instead must
exhibits,
illustrate
a
genuine
issue
Catrett,
477 U.S. 317, 322-24
Civ.
At
point,
himself
matter
trial."
56(c).
to weigh
but
to
that
the
evidence
determine
Anderson,
and
whether
477 U.S.
"the
judge's
determine
there
at 249.
forth
sworn statements,
Celotex Corp. v.
P.
set
is
a
for
(1986);
function
the
truth
genuine
In doing so,
or
trial.
Fed.
R.
is not
of
the
issue
for
the judge must
construe the facts and all "justifiable inferences" in the light
most
favorable
to
the
non-moving party,
make credibility determinations.
Id.
and
the
judge may not
at 255; T-Mobile Ne. LLC
v. City Council, 674 F.3d 380, 385 (4th Cir. 2012).
III.
Defendant
originally
DISCUSSION
asserted
that
summary judgment based on two defenses:
defense;
and
(2)
laches.
concession
that
this
Defendant
However,
subsequently
Faragher/Ellerth
case
need
only
consider
(1)
in
withdrew
his
whether
Plaintiff's
coworker
harassment,
to
48.
Defendant
to
of
motion
applicable
ECF No.
entitled
the Faragher/Ellerth
involves
Notice,
is
light
only
defense
supervisory actions.
he
is
as
claims
to
the
involving
Therefore,
entitled
the Court
to
summary
judgment on the issue of laches.
A defendant
defense of
in a Title VII action may assert
laches as
the equitable
a bar to a plaintiff's claim.
The defense
of laches "'requires proof of (1) lack of diligence by the party
against whom the defense is asserted,
party
asserting
the
defense.'"
Nat'l
Morgan, 536 U.S. 101, 121-22 (2002)
514 U.S.
673,
of diligence,
687
(1995)).
and (2)
"The
R.R.
prejudice to the
Passenger Corp.
v.
(quoting Kansas v. Colorado,
first element of
laches,
lack
is satisfied where a plaintiff has unreasonably
delayed in pursuing his claim." EEOC v. Navy Fed. Credit Union,
424 F.3d 397, 409
F.2d
99,
102
(4th
(4th Cir.
Cir.
2005)
1990)).
(citing White v.
Regarding
lack of
Daniel,
909
diligence,
there is no per se rule establishing when a plaintiff's delay in
pursuing her claim becomes unreasonable.
Logistics,
Inc.,
884
F.
Supp.
10
2d
433,
See
441
EEOC v.
Propak
(W.D.N.C.
2012)
(citation
omitted);
Telecomm.,
Inc.,
U.S.
514
(citations
(7th
F.
omitted);
925,
928
delay,
difficult
assessment
general
the
sliding
scale:
claim,
the
defend
on
734
(7th
the
less
many
to apply
longer
laches."
Cir.
the
Smith
2003)
v.
v.
cases
the
City
of
is
.
C.J.)
too
.
asserting
or establishing a claimed right,
caused
by
detrimental
Lockheed,
514
F.
102).
"'Classic
reliance
Supp.
2d
at
803
elements
of
unavailability of witnesses,
pertinent records.'"
668
F.2d
1199,
1203
on
Id.
the
may
in
be
a
"in
filing
338
F.3d
to
the
her
730,
second
a
disadvantage
or
some other harm
plaintiff's
(citing
F.3d
show in order to
As
by
472
However,
Inc.,
"[p]rejudice
2007)
laches lies on a
must
element,
Md.
much'
delays
omitted).
Global
(observing,
.") .
Caterpillar,
demonstrated
(D.
Chicago,
doctrine of
defendant
Martin
801
plaintiff
(citations
is
797,
much
the
prejudice
Lockheed
(Easterbrook,
"'[h]ow
in
decision
2d
Pruitt
2006)
that
v.
Supp.
cf.
Cir.
regarding
EEOC
Daniel,
undue
conduct."
909
prejudice
changed personnel,
in
F.2
at
include
and the loss of
(quoting EEOC v. Dresser Indus., Inc.,
(11th
Cir.
1982)).
In
addition,
in
assessing prejudice, courts will consider whether key witnesses'
memories
Propak,
have
884
F.
faded.
Supp.
See
Smith,
2d at 444
338
F.3d
734-35
(citations omitted);
514 F. Supp. 2d at 805 (citations omitted).
11
at
&
n.5;
Lockheed,
As
an
Defendant's
initial
matter,
laches
before
defense,
the
turning
Court
will
to
the
assess
merits
of
Plaintiff's
contention that Defendant has waived such defense by failing to
include it
provide
in his
that
answer.
"[i]n
responding
affirmatively state any
Fed.
R.
Civ.
P.
The Federal Rules
to
avoidance
(8)(c).
a
of Civil Procedure
pleading,
a
or affirmative
party
defense
must
.
However,
[a]lthough it is indisputably the general rule that a
party's failure to raise an affirmative defense in the
appropriate pleading results in waiver, there is ample
authority in this Circuit for the proposition that
absent unfair surprise or prejudice to the plaintiff,
a
defendant's
affirmative
defense
is
not
waived
when
it is first raised in a pre-trial dispositive motion .
Brinkley v. Harbour Recreation Club,
1999)
(internal
citations
an affirmative defense
motion,
a
court
will
180 F.3d 598, 612
omitted).
first
not
Therefore,
in
considering
in a pre-trial
raised
find
dispositive
waiver
"unless
the
plead resulted in unfair surprise or prejudice."
Edwards
&
Sons,
(4th Cir. 2003)
5
Charles
Alan
Inc.
v.
Cincinnati
(citing Brinkley,
Wright
&
Practice & Procedure § 1278
Having
Defendant has
in
his
carefully
the
Ins.
Co.,
failure
See S. Wallace
353
F.3d
180 F.3d at 612-13);
R.
Miller,
to
et
al.,
367,
373
see also
Federal
(3d ed. 2004 & Supp. 2014).
considered
waived his
answer,
Arthur
(4th Cir.
Plaintiff's
contention
that
laches defense by failing to assert
Court
rejects
Plaintiff's
argument
it
because
such failure did not result in any unfair surprise or prejudice
12
to Plaintiff.
prejudice
Plaintiff
because
has suffered no unfair surprise
Defendant
specifically
defense in his summary judgment motion,
asserted
his
or
laches
and Plaintiff has had a
full opportunity to brief and argue the merits of such defense.
See
Brinkley,
Raap,
386
3land v.
2011)
180
F.
F.3d
at
App'x 455,
459
Fairfax County,
(Cacheris,
J.)
a
612-13;
Grunley
(4th Cir.
799
F.
2010)
Supp.
first
U.S.,
LLC
(unpublished);
2d 609,
(finding waiver due
defendant
Walsh
612-13
v.
cf.
(E.D. Va.
to unfair surprise and
prejudice
where
Moreover,
although Plaintiff argues that it was caught off guard
by Defendant's laches defense,
the
Faragher/Ellerth
the way
[Defendant]
for Summ.
J.
defense,
actions
take
a
at
Plaintiff
affirmative
Under one
defendant
must
of a supervisor,
of
any
defense
the
that,
the plaintiff
or
based
of
establish
defense
at
at 745.
upon
Opp'n Mot.
Faragher/Ellerth
with
respect
to
"unreasonably failed
corrective
As part of such inquiry,
to
opportunities
provided by the employer or to avoid harm otherwise."
524 U.S.
trial).
primarily
Pi.'s Mem.
element
preventive
a
"admittedly anticipated
conducted discovery."
18.
advantage
raised
Ellerth,
courts consider the
plaintiff's delay in attempting to take advantage of corrective
opportunities
Head
Island
Therefore,
inquiry
provided by
Mgmt. ,
given
into
a
Inc.,
the
the
employer.
259
F.3d
similarities
plaintiff's
261,
between
delay
13
in
E.g.,
270
the
Matvia v.
(4th
Cir.
Bald
2001).
Faragher/Ellerth
taking
advantage
of
corrective opportunities provided by an employer and the laches
inquiry
into
whether
asserting her
that
on
claim,
the
plaintiff
Court
finds
she anticipated Defendant's
his
unfair
discovery
strategy
surprise
or
asserting
his
Accordingly,
asserted
Court
defense.
Plaintiff's
in
admission
Faragher/Ellerth defense based
also
suggests
defense
via
finds
delayed
his
that
that
from
suffered
Defendant
summary
Defendant
she
first
judgment
has
not
no
motion.
waived his
defense.
will
laches
now
because
racial harassment.
specifically,
turn
to
asserts
approximately
unreasonable
that
prejudice
Court
Defendant
element of
waiting
the
unreasonably
unfair
laches
laches
The
More
the
the
the
that
Supp.
waited
of
Defendant's
established
laches
the
first
unreasonably delayed
before
Defendant's
she
has
Plaintiff
Def.'s Mem.
because
he
three years
in
merits
reporting
Mot.
view,
almost
the
for Summ.
three
alleged
J.
Plaintiff's
in
at
22.
delay was
years
to
first
inform a supervisor of the alleged racial harassment despite the
following
undisputed
facts:
(1)
the
almost immediately when Plaintiff was
she
allegedly
suffered
extreme
abuse
alleged
harassment
assigned to Telecare,
for
years,
(3)
aware of the HVAMC policies on workplace harassment,
received training on such policies.
prejudice,
Defendant
argues
him in the following manner:
See
id.
that Plaintiff's
(1)
14
began
at
she
was
and (4)
she
19-22.
delay
(2)
As
to
prejudiced
Defendant must defend against
"an expansive period of escalating harassment"
that he would not
otherwise have had to defend against if Plaintiff had complained
of the alleged harassment when it began;
of
the
details
frequency
of
Plaintiff
on
the
inception
In
See id.
in
prejudice,
of
no
work
report
of
an
the
(3)
environment,
harassment
opportunity
lack
of
if
even
its
correct
to
at
the
diligence,
one
racial
After
weighing
Defendant
.
is
was
"trying
[to]
and
Plaintiff
avoid
and
.
and
argues
.
"the
will
the
nature
Plaintiff
remember
exact
harassment occur."
equities
not
Id.
considering
in
entitled
this
to
15
suffered
is not an "inordinate
allegations
exact
at
summary
coworkers
no
used
case,
her
her
As
these
the
through
Defendant
the
language
work
for Summ. J. at 23.
that
of
to
angering
two and one-half years
carefully
the
she
PI.'s Resp. Opp'n Mot.
time"
circumstances
of
hostile
regarding
Telecare
prejudice because
acts
and
22-25.
because
by complaining."
that
at
faded;
the
damages will be assessed based
to
Defendant
has
including
that her delay in reporting the alleged harassment was
unreasonable
amount
the
failure
response,
difficulties
to
of
Plaintiff's memory
harassment,
conversations,
period
deprived
situation.
not
alleged
establishes liability,
Plaintiff's
contends
the
certain
entire
though
of
(2)
dates,
when
is
the
these
such
exact
types
of
24.
parties'
the
Court
judgment
submissions
concludes
on
his
and
that
laches
defense
because
of
genuine
prejudice element of
laches.
this case from the onset of
than
two
and
one-half
of
fact
years—compared
Caterpillar,
the
subsequent
to
her
"sliding scale"
prejudice
to
two
genuine
and
the
initial
warrant
of
laches,
of
laches
730,
734
well as
years
complaint,
in
(7th
continuous
even
indicates
Cir.
the fact that
was
and
cases,
occurred
that
on
the
make a fairly strong showing of
dismissal
disputes
F.3d
harassment
one-half
Defendant must
under the doctrine
are
that
338
other
(eight and one-half year delay) , as
throughout
Inc.,
to
2003)
alleged
the
the alleged harassment—a little more
Smith
has
regarding
The comparatively short delay
e.g.,
Plaintiff
v.
disputes
of
Plaintiff's
see id.
material
entire
at
However,
fact
733-34.
as
to
the
action
there
degree
of
prejudice Defendant has suffered from Plaintiff's faded memory.
Likewise,
the
there are genuine disputes of material fact
extent
to
which
the alleged racial
Plaintiff's
harassment
failure
to
more
caused prejudice
regarding
timely
report
to Defendant
by
subjecting him to liability for harassment that was more severe,
or over a longer period,
than what might otherwise have occurred
if Plaintiff reported such alleged harassment at its inception.
In short, genuine disputes of material fact regarding the extent
of prejudice
Defendant
suffered from
Plaintiff's
alleged delay
preclude summary judgment in Defendant's favor and dismissal of
16
Plaintiff's
Jeffries
1985)
entire
v.
Chi.
Transit
(noting that
subject
to
if
facts
the
action
the
Auth.,
770
doctrine
F.2d
of
676,
laches.5
679
See
(7th
Cir.
"[1]aches is generally a factual question not
summary
at
under
judgment"
trial
(citations
establish
omitted)) .
that
Plaintiff
That
said,
unreasonably
delayed in complaining of the alleged harassment and such delay
prejudiced
will
Defendant,
craft
the
under
the
appropriate
doctrine
remedy
of
to
laches,
the
achieve
Court
equity.
••
To the
extent
that genuine issues of material
fact exist
regarding the prejudice element of laches, the Court need not assess
the sufficiency of Defendant's showing with respect to the diligence
element.
Cf., e.g., Pruitt, 472 F.3d at 929 (in dicta, stating: "There
remains the final question posed by Morgan: 'what consequences follow
if laches is established? The district court assumed that the upshot
of laches must be outright dismissal. Yet that's not the only possible
consequence. A less severe consequence would be to carve off the
aspects of the plaintiffs'
claim that are no longer subject to
meaningful adversarial testing." (internal citations omitted) (quoting
Morgan, 536 U.S. at 122)) .
In this case, Defendant did not seek
summary judgment on laches with respect to any particular subset of
instead seeking dismissal of Plaintiff's
the alleged harassment,
Defendant's generalized evidence of
entire action.
In addition,
prejudice
through Plaintiff's
lapsed memory does not
present
a
sufficient
any
factual
particular
basis
subset
for
of
the
the
Court
to
conclude
allegations
in
that
laches
Plaintiff's
bars
claim.
Furthermore, the Court notes that in his summary judgment motion,
Defendant
did
not
contest
whether
Plaintiff
has
adequately
demonstrated
that
any
harassment
by
Plaintiff's
coworkers
is
attributable
to
Defendant.
Neither
did
Defendant
seek
summary
judgment on any claims of harassment alleged to have occurred prior to
the point at which a reasonable juror could conclude Defendant was on
actual or constructive notice of the alleged harassment.
See Howard
v. Winter, 446 F.3d 559, 568-69 (4th Cir. 2006)
(affirming summary
judgment for alleged harassment occurring prior to point at which the
defendant was on notice of the alleged harassment).
And Defendant has
not sought to file a second summary judgment motion in accordance with
Local Rule
56(C)
and now,
seven days prior to
trial,
any such motion
likely would be denied.
While it is possible that the jury might be
asked to decide by
interrogatory when Defendant had actual or
17
Accordingly,
the
Court
DENIES
Defendant's
motion
for
summary
judgment based on the defense of laches.
IV.
For
Motion
the
in
reasons
Limine
CONCLUSION
stated above,
No.
1,
ECF
the
No.
Defendant's Motion for Summary Judgment,
The Clerk is REQUESTED to
Order
to
IT
all
IS
SO
counsel
of
Court
35.
GRANTS
The
ECF No.
send a copy of
Defendant's
Court
DENIES
24.
this Opinion and
record.
ORDERED
M
Mark S. Davis
United States District Judge
Mark S.
Davis
United States District Judge
Norfolk, Virginia
April 14, 2015
constructive notice of any harassment and instructed that Plaintiff's
damages are limited to harm sustained after such notice, that issue
presently is not before the Court.
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