United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2005 Decided November 15, 2005
No. 04-7181
ANGELA R. JONES,
APPELLANT
v.
DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, ET
AL., A/K/A DISTRICT OF COLUMBIA DEPARTMENT OF
CORRECTIONS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02140)
John F. Karl, Jr. argued the cause for appellant. With him
on the briefs was Jonathan Halperin.
David A. Hyden, Assistant Attorney General, argued the
cause for appellees. With him on the brief were Robert J.
Spagnoletti, Attorney General for the District of Columbia, and
Edward E. Schwab, Deputy Attorney General.
Before: GINSBURG, Chief Judge, and TATEL and BROWN,
Circuit Judges.
2
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Appellant Angela R. Jones brought
this action against her employer, the District of Columbia
Department of Corrections (“Department”), and various
individuals, alleging sexual harassment, retaliation, and several
common law claims. The district court granted summary
judgment against Jones as to all causes of action and denied
Jones’s motion for leave to amend her complaint. We reverse
the judgment of the district court as to Jones’s sexual harassment
cause of action. We also reverse the order of the district court
denying Jones leave to amend her complaint.
I
In September 1997, Jones began work as a correctional
officer at the Department’s Occoquan prison facility. Sergeant
Darryl Ellison supervised one of the zones in which Jones
worked. Jones claims Ellison’s statements and conduct gave
rise to a hostile work environment and the Department retaliated
against her after she submitted harassment complaints against
Ellison. Jones’s allegations focus on three primary incidents.
First, in December 1997 or January 1998, Jones sought to
retrieve an umbrella she had left in a gymnasium at the prison
facility. Ellison allegedly went into the gym with Jones, shut the
door, and told Jones, “I want to kiss you.” He also allegedly
grabbed her, pulled her toward him, and held her face, telling
her she was “sexy” and commenting about her lips. Second, in
early 1998, Ellison allegedly called Jones into his office for a
work evaluation and told her he wanted to kiss her. He also
commented about her breasts and panty line. Third, in early
1998, Ellison allegedly approached Jones in the mess hall,
commented about Jones’s breasts and panty line, and brushed
himself up against Jones “[w]ith his whole body.” Jones also
alleges Ellison made several other inappropriate comments
3
including bragging about his sexual prowess, publicizing his
desire to have sex with her, telling colleagues that she was gay,
threatening to give her a poor evaluation or to begin disciplinary
action against her, and calling her a “red bitch.” Jones further
alleges Ellison and several other male employees at the
Department had a bet as to which of them would be the first to
have sex with Jones.
Jones asserts that, after the gym incident, she reported
Ellison’s behavior to a Sergeant Armstrong, who said he would
talk to Ellison, but the harassment continued nonetheless. On
April 9, 1998, Jones filed an internal harassment complaint
against Ellison with senior-level officers at the Department.
Jones’s written complaint discussed only the gym incident in
specific detail. The warden immediately issued cease-and-desist
orders to both Jones and Ellison, instructing them to “avoid
unnecessary contact.” Department personnel then conducted an
investigation, taking recorded statements from fourteen
witnesses and issuing a thirty-one-page investigation report.
The report’s summary noted that several witnesses had denied
or contradicted Jones’s allegations and concluded there was
“insufficient evidence to support a finding of Probable Cause.”
Jones, however, alleges the investigation was perfunctory and
biased.
In support of her retaliation claim, Jones asserts that she
was transferred to the night shift “[a]lmost immediately” after
filing her internal harassment complaint. According to the
Department’s investigatory report, however, this shift change
applied to all probationary officers on Jones’s shift, and the
“shift change roster” was completed and approved seventeen
days before Jones’s harassment complaint. Also, Jones had
been informed she would have to work all three shifts during her
probationary period. In further support of her claim, Jones states
she asked, in August 1998, to return to the day shift, and though
4
the Department eventually granted her request, it changed her
duty location and days off over the course of the subsequent six
weeks. Then, on October 15, 1998, the Department assigned
Jones to the “tower” and barred her from entering the main
prison institution. This new assignment came two-and-a-half
months after Jones filed a harassment complaint with the Equal
Employment Opportunity Commission (“EEOC”). Jones asserts
she was initially assigned to Ellison’s zone in the tower. She
also states the tower was cold in the winter, hot in the summer,
“infested with bugs and had inadequate bathroom facilities.”
Colleagues told Jones she was being “punished.” She worked
in the tower for ten months, at which point the Occoquan prison
facility was closed. She concedes, however, that the tower
assignment was one of the three normal assignments for an
officer in Jones’s position and that she worked the day shift in
the tower, as she had requested. Jones further states that, on
December 19, 1998, when she asked to take time off after the
murder of her cousin, the Department sought verification of her
claim that her cousin had been murdered. As a result, she
became so emotionally upset that she did not attend the funeral.
Jones received a notice of right to sue on June 8, 2000, and
brought this action in the district court on September 6, 2000.
Her amended complaint alleges causes of action under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the
District of Columbia Human Rights Act, D.C. CODE § 2-1401 et
seq. (2001); and the common law. After close of discovery, the
Department and the individual defendants moved for summary
judgment on all causes of action. Jones opposed the motion, in
part, and also moved to amend her complaint to include claims
under 42 U.S.C. § 1983. On September 30, 2004, the trial court
denied leave to amend and granted summary judgment. Among
other things, the trial court found the Department had satisfied
the requirements of the Faragher-Ellerth defense to Jones’s
Title VII sexual harassment claim and Jones had failed to make
5
a sufficient showing to defeat summary judgment on her
retaliation claim. Jones now appeals the trial court’s summary
judgment order with regard to her Title VII sexual harassment
and retaliation claims against the Department, along with the
trial court’s denial of her motion for leave to amend her
complaint.
II
In Faragher v. Boca Raton, 524 U.S. 775 (1998), and
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the
Supreme Court delineated the circumstances in which an
employer may be held vicariously liable for a supervisor’s
harassment of a subordinate. If the harassment takes the form
of a tangible employment action—that is, a “significant change
in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits,” Ellerth, 524
U.S. at 761—then the supervisor has unquestionably exercised
authority on behalf of the employing enterprise in furtherance of
the harassment, and the employer is therefore liable. See id. at
760-62; Faragher, 524 U.S. at 790-91. Vicarious liability is less
certain, however, where the harassment does not result in a
change in status amounting to a tangible employment action. In
such cases, “a defending employer may raise an affirmative
defense to liability or damages, subject to proof by a
preponderance of the evidence. The defense comprises two
necessary elements: (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Ellerth,
524 U.S. at 765; Faragher, 524 U.S. at 807 (citation omitted).
Here, Jones has not demonstrated a tangible employment
6
action. Because the tangible employment action establishes the
requisite link between a supervisor’s injurious conduct in the
workplace and the employing enterprise, it must be an action
done by the supervisor whose conduct has generated the
employee’s claim. Ellerth, 524 U.S. at 760-63. Jones cites the
changes in her work schedule, her assignment to the tower, and
the Department’s efforts to verify the murder of her cousin, but
even assuming such actions constituted a “significant change in
[her] employment status,” id. at 761, Jones has presented no
evidence that Ellison was responsible for any of these actions.
Accordingly, we conclude that the Faragher-Ellerth defense is
available to the Department.
However, the Faragher-Ellerth defense is explicitly an
“affirmative defense” as to which the employer has the burden
of proof. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
Federal Rule of Civil Procedure 8(c) states: “In pleading to a
preceding pleading, a party shall set forth affirmatively . . . any
. . . matter constituting an . . . affirmative defense.” In Harris v.
Secretary, United States Department of Veterans Affairs, 126
F.3d 339 (D.C. Cir. 1997), we construed Rule 8(c) strictly:
In order to preserve the notice purpose of Rule 8(c) and the
discretionary structure of Rule 15(a), we hold that Rule 8(c)
means what it says: a party must first raise its affirmative
defenses in a responsive pleading before it can raise them
in a dispositive motion. . . .
There is no reason to fear that procedural formalism
will displace substantive justice here, because a party may
request, and the District Court shall freely give, leave to
amend the pleadings under Rule 15(a) when justice
requires.
Id. at 345.
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Here, the Department concedes that it failed to raise the
Faragher-Ellerth defense in its answer to the amended
complaint, and it presents this court with no argument as to why
our holding in Harris should not apply, arguing instead that
Jones suffered no prejudice from its failure to plead the defense.
However, in Harris, we were very clear that lack of prejudice is
not determinative: “On its face and on its logic, Rule 8(c)
requires that a party actually plead its affirmative defenses, not
that it plead them only in those cases where failure to plead
would result in prejudice to the opposing party.” Id. At oral
argument, counsel for the Department asserted Jones had
forfeited any objection to the Department’s failure to plead the
Faragher-Ellerth defense by not having raised this objection in
the district court, but the Department was equally dilatory for
waiting until oral argument to raise the forfeiture argument. If
the Department had raised the forfeiture argument in its brief on
appeal, Jones might have been able to show that her Rule 8(c)
objection was in fact raised in the district court, perhaps during
oral proceedings. Accordingly, we cannot credit the
Department’s belated argument that Jones forfeited this
objection. We conclude the district court erred in granting
summary judgment based on the Faragher-Ellerth defense in a
case in which the defense had not been raised in the pleadings.
As described in Harris, the Department may move to amend its
answer on remand. If the trial court permits the amendment,
then the Department may renew its motion for summary
judgment or attempt to prove the elements of its Faragher-
Ellerth defense at trial.
III
The district court also granted summary judgment in favor
of the Department on Jones’s retaliation claim. In support of her
retaliation claim, Jones asserts that, after she complained of
sexual harassment, Ellison verbally harassed her and the
8
Department changed her work shift, transferred her to the
assignment in the tower, and refused to allow her time off to
attend her cousin’s funeral. Having engaged in virtually no
discovery, however, Jones relies only on her own affidavit to
support these allegations.
Jones is not specific about the verbal harassment she
suffered after complaining of sexual harassment. She may be
referring to Ellison’s alleged reference to her as a “red bitch.”
The evidence on this point is conflicting. The Department’s
investigation report relates Jones’s statement that Ellison made
this comment shortly after Jones submitted her internal sexual
harassment complaint. However, Jones’s sworn response to
interrogatories places this incident in March 1998, a month
before she submitted her harassment complaint, and in her
deposition, Jones described hearing the comment immediately
before she submitted her harassment complaint. This conflict in
the evidence does not affect our conclusion, however. Even if
the comment came after Jones submitted her complaint, it was
an isolated insult that does not constitute the sort of adverse
action that can support a retaliation claim. See Faragher, 524
U.S. at 787-88; Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.
2000); see also Washington v. Ill. Dep’t of Revenue, 420 F.3d
658, 661 (7th Cir. 2005) (stating that the adverse employment
action supporting a retaliation claim must be material).
Jones also claims retaliation based on the changes in her
work shift. She focuses in particular on her transfer from the
second shift to the third shift shortly after she submitted her
harassment complaint. However, the Department’s investigation
report indicates this transfer applied to all probationary officers
on the second shift, and the shift change roster was completed
and approved seventeen days before Jones submitted her
harassment complaint. Moreover, Jones had earlier been
informed she would have to work all three shifts during her
9
probationary period. Jones does not contradict these assertions,
arguing only that the Department has not produced the shift
change roster. We find the Department’s showing on this point
sufficient to require Jones to present some evidence that she was
singled out for adverse treatment. As for other alleged shift
changes, Jones’s claim is not specific. Jones admitted in her
declaration that one of these shift changes was at her request;
she sought to return to the day shift in August 1998, and the
Department granted her request. Jones, however, complains the
Department changed her duty locations and days off over the
subsequent six weeks. Jones claims these unspecified changes
caused her some temporary inconvenience, but she gives us no
basis for concluding that these changes were retaliatory, rather
than merely a consequence of the Department’s effort to
accommodate her request to return to the day shift. Her
allegations in this regard are simply too vague to support her
retaliation claim.
Jones next argues her transfer to the tower was retaliatory,
coming as it did just two-and-a-half months after she filed her
complaint with the EEOC. A lateral transfer, without more,
does not constitute an adverse employment action sufficient to
establish a prima facie case of retaliation. As we have
previously explained:
The clear trend of authority . . . is to hold that a purely
lateral transfer, that is, a transfer that does not involve a
demotion in form or substance, cannot rise to the level of a
materially adverse employment action. A survey of the
relevant case law shows that the authority requiring a clear
showing of adversity in employee transfer decisions is both
wide and deep.
Brown v. Brody, 199 F.3d 446, 455-56 (D.C. Cir. 1999) (internal
quotation marks and citations omitted). Accordingly, we have
10
held:
[A] plaintiff who is made to undertake . . . a lateral
transfer—that is, one in which she suffers no diminution in
pay or benefits—does not suffer an actionable injury unless
there are some other materially adverse consequences
affecting the terms, conditions, or privileges of her
employment or her future employment opportunities such
that a reasonable trier of fact could conclude that the
plaintiff has suffered objectively tangible harm. Mere
idiosyncracies of personal preference are not sufficient to
state an injury.
Id. at 457 (emphases added). In short, there are few
circumstances in which a mere lateral transfer can rise to the
level of an adverse employment action, and we have expressly
rejected a subjective test in this context. See, e.g., Stewart v.
Ashcroft, 352 F.3d 422 (D.C. Cir. 2003) (employee was passed
over for position as section chief); Freedman v. MCI
Telecomms. Corp., 255 F.3d 840 (D.C. Cir. 2001) (employee
was transferred from day shift to night shift, interfering with his
education).
Jones’s evidence, viewed in the light most favorable to her,
establishes several reasons the tower assignment was
undesirable. Though other assignments at the Occoquan facility
may have had their own idiosyncratic disadvantages, a jury
could reasonably infer from Jones’s evidence that the tower
assignment was generally less favorable than other assignments.
But that fact, if true, does not make the assignment an adverse
employment action. Jones readily concedes the tower was one
of the three possible assignments that might arise in the ordinary
course of her employment, and therefore there was no “material”
change in “the terms, conditions, or privileges of her
employment” when she was assigned to the tower. Brown, 199
11
F.3d at 457. Neither a routine shift change nor a routine
reassignment that was part of a probationary employee’s
ordinary training can be deemed an adverse employment action.
Although it is conceivable that an employee might allege
specific facts demonstrating that a seemingly routine
reassignment was in fact retaliatory, Jones does not allege such
facts in the present case, and therefore we need not consider the
issue.
Jones argues the retaliatory nature of the tower assignment
is evident from the permanency of that assignment, which lasted
ten months and ended only after the District of Columbia closed
the prison facility. But we have no way of determining the
relevance of the duration of her tower assignment without
information about the typical duration of assignments for
probationary officers. Jones offers no evidence on this matter
nor even alleges she spent an unusually long time on tower duty
as compared to other officers, and as such, her retaliation claim
must fail. Moreover, even if the eventual duration of her tower
duty significantly exceeded the norm, it could only be
considered retaliatory at that point, if ever, because Jones does
not allege that the duration of the assignment was fixed at the
outset. Therefore, she cannot rely on the temporal proximity
between the initial assignment and the filing of her EEOC
complaint to establish a prima facie case of retaliatory motive.
See, e.g., Cones, 199 F.3d at 521; Mitchell v. Baldrige, 759 F.2d
80, 86 (D.C. Cir. 1985).
Finally, Jones argues the Department retaliated against her
when it made efforts to verify her claim that her cousin had been
murdered. However, Jones does not allege this procedure was
contrary to standard Department practice under the
circumstances, and in any case, we do not think it rises to the
level of an adverse employment action that can support a claim
of retaliation. Jones’s evidence does not indicate that the
12
Department actually refused to give her time off, but only that
it sought verification. An effort to verify an employee’s
statements, without more, is not an adverse employment action.
Jones alleges she became so “stressed” as a result of the
Department’s actions that she was unable to attend her cousin’s
funeral, but her subjective response is not relevant. See Brown,
199 F.3d at 457; see also Fairbrother v. Morrison, 412 F.3d 39,
56 (2d Cir. 2005).
In conclusion, we are not persuaded the district court erred
in granting summary judgment on Jones’s retaliation claim.
IV
The district court denied Jones’s motion for leave to amend
her complaint. Doing so without stating reasons was an abuse
of discretion. See Firestone v. Firestone, 76 F.3d 1205, 1209
(D.C. Cir. 1996). Accordingly, the district court should
reconsider the motion on remand.
V
We affirm the judgment of the district court except as to
Jones’s cause of action against the Department for sexual
harassment in violation of Title VII. As to that cause of action,
we reverse the judgment of the district court and remand the
case for further proceedings consistent with this opinion. We
also reverse the district court’s order denying Jones’s motion for
leave to amend her complaint.
So ordered.