UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BERNADINE JOHNSON,
Plaintiff,
v. Civil Action No.: 08-1103 (JDB)
ERIK K. SHINSEKI 1
Secretary, U.S. Department of Veterans
Affairs,
Defendant.
MEMORANDUM OPINION
Plaintiff Bernadine Johnson ("Johnson" or "plaintiff") brings this action against the
Secretary of the Department of Veterans Affairs (“Secretary” or “Department”) pursuant to Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(3), based on alleged
sexual harassment by a fellow employee at the Department. Currently before the Court is the
Secretary's motion for summary judgment. For the reasons discussed below, the motion will be
denied.
BACKGROUND
Johnson began work at the Washington, D.C. Veterans Affairs Medical Center in the
Mental Health Service, Substance Abuse Rehabilitation Program ("SARP"), in 1987 as a unit
clerk and, in 1996 or 1997, became a resource manager at SARP. Pl.’s Dep. 6:20-21, 8:13-
1
The complaint originally named as defendant James B. Peake in his capacity as Secretary of the
United States Department of Veterans Affairs. Pursuant to Fed. R. Civ. P. 25(d), the current
Secretary Eric K. Shinseki is automatically substituted as defendant.
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10:12. As a resource manager, Johnson's duties included keeping the office supplies well
stocked and interacting with patients, which involved tasks such as setting appointments and
obtaining information related to visits. See Pl.’s Dep. 12:23-13:24, 16:4-16; Clarke-Stone Dep.
196:16-197:9. As required by the sexual harassment policy in place at the Department, Johnson
was required to attend -- and did attend, by watching video tapes -- prevention of sexual
harassment training every two years. See Pl.'s Resp. to Def.'s Statement of Mat. Facts (“Pl.’s
Stmt.”) at 17-21. At all times relevant to this action, Johnson's first-line supervisor Karen Clark-
Stone was the program coordinator for SARP and her second-line supervisor Linda Jordan was
the chief nurse at SARP. Pl.'s Stmt. at 2. As an employee within SARP, Johnson had regular
contact with Isaiah Pearson, a SARP counselor and supervisor for other counselors. See Pearson
Dep. 127:18-128:7. While Pearson did occasionally complain about Johnson's work and
Johnson told her managers that Pearson was "bossy," it is undisputed that Pearson was not a
supervisor in Johnson's chain of command. See Clark-Stone Dep. 102:14-16, 110:11-17 &
152:18-21; Pl.'s Stmt. at 3.
The exact nature of Johnson's relationship with Pearson is unclear, as several of Johnson's
co-workers claim that they were part of a clique of friends that had a family-style relationship.
See Givens Dep. at 201:20 ("We were a family"); McCray Dep. at 81:8-13 ("We was all like a
family. We did everything, we talked about everything . . . . If one was in trouble, we all helped
out."); Pearson Dep. at 148:16-22 ("The work culture was that we had a family, close
relationship. We were very casual. We were about our business of doing the work we was
getting paid to do, but during free time or time that we, you know, it was very casual,
informal."). Johnson disputes this "family" description. See Pl.’s Dep. 80:13-14. Regardless of
the exact nature of the relationship between Johnson, Pearson, and other co-workers, it is
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undisputed that the SARP "office culture" included banter, both of a sexual and non-sexual
nature, see, e.g., McCray Dep. 226:17-19 ("There is always something said with SARP.
Someone always said something sexual, I don't care what the matter was."), sexual jokes, see,
e.g., McCray Dep. 92:17-93:3 ("[W]e would joke in that manner about how the [diabetes]
medication, how it affect men [sexually]."), conversations about sexual relationships, see, e.g.,
Taylor Dep. at 92:10-18 (The group would make jokes like, "'Well, look at your butt. Look at
your behind. I can ride that.'"), sexual gestures, see, e.g., Givens Dep. 121:16-122:2 (answering
affirmatively that Johnson "would lift up her skirt kind of flirty or humorously"), and physical
contact among group members, see, e.g., Taylor Dep. 93:17-21 (explaining that as part of the
joking they would "grab each other, hug them, kiss them"). Johnson does not dispute this co-
worker testimony, though she does argue that "there is no suggestion that [she] engaged in sex-
based conduct that was unwelcome to others or that interfered in any way with any employee's
employment." See Pl.'s Opp’n to Def.'s Mot. for Summ. J. at 4. The SARP employees refrained
from engaging in sexual banter if a supervisor was present. See McCray Dep. at 97:11-14 ("[I]f
Ms. Clark-Stone would come in the room, they would say, 'phone off the hook,' and that's
somebody who wasn't in our circle that we wouldn't talk around . . . . We wouldn't talk that way
if they would come in."); Taylor Dep. 92:5-6 ("[We would] kind of curb the words that we are
saying a little bit" in front of Clark-Stone.).
The timing of this office banter is not entirely clear, though Johnson claims with respect
to Pearson that he has engaged in sexually-charged behavior since the 1990s, and that such
behavior changed over time from verbal comments to physical harassment, with Pearson most
recently harassing her by touching her inappropriately on July 18, 2005. Report of Investigation
("ROI") Tab B-1, Johnson Decl. ¶¶ 8, 26 (May 22, 2006) (“ROI Tab B-1”). Johnson claims that
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Pearson made inappropriate comments to her beginning in the 1990s, Pl.’s Dep. 108:19-2, but
that "[she] thought [she] could handle the talking," so she did not tell her supervisors about it.
See Pl.’s Dep 109:11. The Secretary claims that the first alleged physical contact between
Johnson and Pearson could not have been any earlier than June 2005 and consisted of a slap on
the behind. See Reply in Supp. of Def.'s Mot. for Summ. J. at 6. Johnson disagrees with this
time estimate, instead placing the complained-of touching in or around January 2005, and
claiming that she told her first line supervisor, Clark-Stone, about Pearson’s conduct several
times prior to August 2005. See ROI B-1 ¶ 8, 14; Pl.’s Decl. ¶ 3 ("When he first touched me in
2005 I reported him to my supervisor, Karen Clark-Stone. I believe I talked with Karen Clark-
Stone in January/February 2005."). According to Johnson, Pearson's behavior became more
aggressive in the 2000s, and became worse in early 2005, when John Uqdah -- her workplace
friend and co-worker – retired, as Pearson accused Johnson of having a sexual relationship with
Uqdah, sexually propositioned her, and "tried to kiss her, grabbed and pinched her breast, and
grabbed and spanked her buttocks." Pl.'s Opp’n to Def.'s Mot. for Summ. J. at 1-2. Johnson also
claims that Pearson came into her office uninvited, “walked around [Johnson’s] desk, towered
over [Johnson], [and] tried to kiss [Johnson], and then ridiculed her when [she] refused to
participate." Pl.'s Opp’n to Def.'s Mot. for Summ. J. at 2, n. 1 (citing Guinta Dep. 57:4-58:15).
Moreover, following Uqdah's departure, Johnson claims that Pearson told her that with Uqdah's
retirement, she would “have no one in the workforce to protect her," Pl.'s Stmt. at 10.
Clark-Stone denies that Johnson ever informed her of any sexual misconduct by Pearson,
see Clark-Stone Dep. 152:2-9, although Johnson claims that she informed Clark-Stone a number
of times about Pearson’s misconduct in 2005. It is undisputed that Johnson did meet with her
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second-line supervisor, Linda Jordan, in July or August 2005 to complain of Pearson's alleged
touching of her backside. See Jordan Dep. 27:1-3 ("It was summer, July, August."). At this
meeting, Jordan claims that she immediately offered to "move [Johnson] off the unit," Jordan
Dep. 29:1-4, but Johnson denies that any such offer was made, ROI Tab B-1 ¶ 4, and claims that
-- despite repeated meetings with her supervisors concerning Pearson's behavior before August
2005 -- they "did nothing," Pl.'s Opp.’n to Def.'s Mot. for Summ. J. at 2.
Johnson visited the Department of Veterans Affairs Equal Employment Opportunity
("EEO") office on August 9 and 10, 2005 to formally pursue her complaints about Pearson's
alleged misconduct. Pl.'s Opp.’n to Def.'s Mot. for Summ. J. at 2. During these meetings,
Johnson reported to the EEO staff that Pearson made inappropriate sexual comments and had
inappropriately "tapped her on the butt", which took place "months ago." See Def.'s Mot. for
Summ. J. at 3; George Dep. 110:6-12, 155:3-6. On August 11, 2005, managers at the
Department of Veterans Affairs met with Pearson and escorted him to the EEO office, where he
was questioned and informed that these sexual harassment allegations were serious and that such
behavior would be punished. See ROI Tab B-4 at 11. Pearson was placed on two days of paid
administrative leave "[t]o ensure that no other incident occurred in the immediate aftermath of
the allegation." ROI Tab B-5 ¶ 16; Pearson Dep. 210:7-11. The Department commenced a
formal investigation into Johnson's allegations on or shortly after Johnson's meetings with the
EEO office, Pl.'s Stmt. at 17, although this investigation "did not lead to a reprimand for
Pearson." Def.'s Mot. for Summ. J. at 26. The Department also conducted additional sexual
harassment training for Pearson, Johnson's supervisors, and Johnson's co-workers. Pl.’s Stmt. at
17 ("Plaintiff does not dispute Defendant's assertion that it provided sexual harassment training
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to its employees in the SARP unit after Plaintiff complained of Mr. Person's [sic] sexual
harassment.").
Following her formal complaint to the EEO office, the Department also arranged for
Johnson to be given paid administrative leave and, it contends, offered to give Johnson a new
position in an area of the Department separated from Pearson. See Pl.’s Stmt. at 15-16.
However, Johnson disputes whether any alternative positions were actually offered, claiming that
such positions were merely "discussed." Id. at 16. Regardless, Johnson left her position in the
Mental Health Service SARP after August 10, 2005 and did not return to work at the Department
until 2008, when "[she] was released by her doctor to return to work at a location other than the
Mental Health Service . . . on a part-time basis." Id. Johnson states that, in making the
determination to come back to work at the Department, her doctor asked her how she felt, and
she "told him [she] was fearful," that she "didn't know what reaction [she] was going to have,"
and that "if [she] ran into Mr. Pearson or if he ran into me, I didn't know, I didn't know what to
expect, I didn't know." Pl.’s Dep 165:13-17. Johnson's doctor responded by mandating that
Johnson could only return to work part-time and that "[s]he is not able to work at Mental Health
at the VA in Washington, DC. She needs to work in a different area at the VA." Pl.'s Exh. 2.
On June 25, 2008, Johnson filed a complaint in this Court, alleging that Pearson
"subjected Plaintiff to a course of sex-based misconduct that included sexual banter, solicitations
for sexual activities, inquiries regarding Plaintiff's private sexual activities, physical contacts
with private parts of Plaintiff's body, and . . . accusations that Plaintiff was having sex with a
former co-worker." Compl. ¶ 7. Johnson claims that this misconduct created a hostile work
environment that "constitutes unlawful sex discrimination and harassment within the meaning of
Title VII." Id. ¶¶ 8, 13. On October 15, 2008, the Secretary filed a motion to dismiss or, in the
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alternative, for summary judgment, on the ground that Johnson failed to exhaust her
administrative remedies before bringing her claim to this Court. The Court treated the motion as
a motion for summary judgment and denied it. See Johnson v. Peake, 634 F. Supp. 2d 27, 33
(D.D.C. 2009). Now, post-discovery, the Secretary has filed a second motion for summary
judgment, on the basis that because Pearson was Johnson’s co-worker, the Department should
not be held liable for any harassment by him because it “neither knew nor should have known of
the alleged harassment” and because it “took prompt and appropriate corrective action.” Def.'s
Mot. for Summ. J. at 1.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears
the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support
its motion by "informing the district court of the basis for its motion, and identifying those
portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue
of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude
summary judgment, the Court must regard the non-movant's statements as true and accept all
evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). As part of this deference to the non-movant, the Court "may not
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make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). A non-moving party, however, must establish more than the
"mere existence of a scintilla of evidence" in support of its position. Id. at 252. In order to
prevail, the non-movant's opposition must contain more than "unsupported allegations or denials
and must be supported by affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial." Carter v. Greenspan, 304 F. Supp. 2d 13, 21
(D.D.C. 2004). By pointing to the absence of evidence proffered by the non-moving party, a
moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if
the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-
movant]." Id. at 252.
ANALYSIS
As a preliminary matter, the Secretary contends that this Court should disregard
Johnson's post-discovery declaration filed in conjunction with his opposition to the motion for
summary judgment on the basis of the "sham-affidavit rule." Reply in Supp. of Def.'s Mot. for
Summ. J. (“Def.’s Reply”) at 6-8. The Secretary claims that this declaration should not be part
of the record because it contradicts Johnson’s earlier testimony regarding the timing of her first
alleged physical contact with Pearson and her first report to management of this alleged
misconduct. Id. at 7. In addition, the Secretary argues that the co-worker liability standard --
rather than the supervisor liability standard -- should be applied to this case. The Court
addresses these arguments in turn.
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I. Johnson's Post-Discovery Declaration
As has been noted by the D.C. Circuit, "[v]irtually every circuit has adopted a form of the
so-called 'sham-affidavit rule,' which precludes a party from creating an issue of material fact by
contradicting prior sworn testimony unless the "shifting party can offer persuasive reasons for
believing the supposed correction' is more accurate than the prior testimony. Galvin v. Eli Lilly
& Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (quoting Pyramid Sec. Ltd. v. IB Resolution, Inc.,
924 F.2d 1114, 1123 (D.C. Cir. 1991)). However, "[i]f the supplemental affidavit [or
declaration] does not contradict but instead clarifies the prior sworn statement, then it is usually
considered admissible." Galvin, 488 F.3d at 1030. Taking these two legal principles together,
courts in this district have applied the sham-affidavit rule when "'the affidavit [or declaration] . . .
clearly contradict[s] prior sworn testimony, rather than clarif[ies] confusing or ambiguous
testimony, and the contradiction lacks credible explanation.'" St. Paul Mercury Ins. Co. v.
Capitol Sprinkler Inspection, Inc., 573 F. Supp. 2d 152, 160 (D.D.C. 2008) (quoting Hinch v.
Lucy Webb Hayes Nat'l Training Sch., 814 A.2d 926, 930 (D.C. 2003)) (emphasis added); see
also Barrett v. Chreky, 634 F. Supp. 2d 33, 37 (D.D.C. 2009) (finding no violation of the sham-
affidavit rule because the plaintiff did not "directly contradict herself" in her supplemental
affidavit).
Here, the Department contends that the Court should refuse to consider Johnson's
supplemental declaration on the basis of the sham-affidavit rule because her post-discovery
declaration states that Johnson first spoke with her supervisors in January or February of 2005,
which purportedly contradicts her testimony from her 2006 declaration and 2010 deposition that
her first report to management "occurred no earlier than June 2005." Def.’s Reply at 7. But a
close reading of Johnson's earlier testimony and statements, including her 2006 declaration, 2010
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deposition, and 2010 post-discovery declaration, fails to show that Johnson’s declaration
“clearly” contradicted her prior testimony. Indeed, far from definitively pointing to June 2005 as
the timeframe for Johnson's first report of sexual harassment to her supervisors, Johnson’s prior
statements on the subject are ambiguous. The best that can be said for this testimony is that one
could infer that Johnson may have first reported instances of sexual harassment in June or July
2005, but Johnson’s previous testimony does not clearly commit to that timeframe.
For example, the Secretary points to Johnson's statement in her 2006 declaration that
"on/about July 11, 2005, Mr. Pearson touched my buttocks" to argue that Johnson previously
testified that the first touching incident, which prompted her first report to management, occurred
on July 11, 2005. See Def.’s Reply at 7-8 (quoting ROI Tab B-1 ¶ 26). But the Secretary
overstates the clarity of this testimony, as Johnson's 2006 declaration was a specific response to
Question 26 of an investigatory questionnaire, asking:
Since the date of the incident (July 11, 2005), have any other sexual harassment incidents
taken place? If yes, when and what took place, who did you report it to and what action,
if any, was taken?
Pl. Exh. 24 ¶ 26. The question does not ask whether this was the first incident of touching or
whether Johnson spoke to her supervisors about sexual harassment at any point before July 11,
2005, and hence Johnson did not definitively place the timeframe for her first report to
management in the June or July 2005 -- rather than the January or February 2005 -- timeframe.
The Secretary suggests that any reasonable person would have mentioned such prior incidents
and reports in response to this and other questions in the questionnaire, see Def.'s Resp. to Pl.’s
Surreply at 2-3, n. 1 ("By her lack of response, one could conclude from the 2006 Declaration
that there were no other incidents of alleged physical contact . . ."), but this argument simply
goes to the weight that should be given to the 2006 and 2010 declarations and does not make the
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post-discovery declaration a clearly contradictory "sham" that should be disregarded by the
Court.
Similarly, the Secretary’s claim that Johnson's 2010 deposition testimony unequivocally
places the first touching incident and subsequent report to management in the June or July 2005
timeframe is overstated. Again, while Johnson's testimony may suggest a June or July meeting
with supervisors regarding an alleged sexual harassment incident, it does not clearly commit to
that period of time. Relevant excerpts from Johnson's deposition include the following:
Q: Now, when did this alleged harassment begin?
A: The things that he was saying started in the '90s.
Q: Did his behavior change over time?
A: Yes.
Q: Can you explain that?
A: He was more aggressive.
Q: In the 2000s, what did it consist of? . . .
A: Him touching on my body, trying to kiss me, hitting me a number of times on my
behind, touching my breasts, trying to kiss me.
...
Q: Did you ever tell anyone about these events?
A: Yes.
Q: Did you ever tell them at the time that they occurred?
A: Ms. Clark Stone.
...
A: I don't remember the date.
Q: The first time Mr. Pearson put his hands on you, did you go to Ms. Clark Stone?
A: I remember I went to Ms. Clark Stone.
Q: And did you tell her that Mr. Pearson had touched you?
A: Yes.
Q: And what time frame was this?
A: This was in the 2000s.
...
Q: What time of year was it?
A: I don't remember the time of the year.
Q: Was this before you left the V.A.?
A: Yeah, it happened before I left V.A.
Q: Do you remember what month you left V.A.?
A: August.
Q: Okay. So how close from the slap on the behind to August of 2005 did this happen?
A: Within a couple months.
...
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Q: When it came time – when it came to the physical touching, that went across the line
and you went to Ms. Clark Stone. Is that correct?
A: Yes.
Q: And that was the first smack on the behind?
A: (No response.)
Pl.’s Dep. 101:19-112:6.
Johnson's deposition testimony is that the alleged physical harassment occurred in the
"2000s" but that she could not "remember the time of the year." The most definitive statement
regarding the timeframe of the first touching and subsequent report to management is that it
occurred "[w]ithin a couple months" of Johnson's August 2005 departure from the Department of
Veterans Affairs, but what Johnson meant by "a couple months" is uncertain. Moreover, Johnson
suggests that there were several different incidents where Pearson allegedly touched her behind,
making it possible that she confused the timeframe for when the first touching occurred and
when she first reported this contact to her supervisors. Accordingly, the Court "cannot find
within the deposition testimony any unambiguous assertion that is directly contradicted by the
later [declaration]," and the Court therefore "must conclude that a 'sham' would be too expansive
a characterization of the testimony and the later [declaration]." Hinch v. Lucy Webb Hayes Nat'l
Training Sch., 814 A.2d 926, 931 (D.C. 2003).
But even if Johnson's 2010 declaration that she "believe[s] [she] talked with Karen
Clarke-Stone [sic] in January/February 2005" is considered contradictory to her prior 2006
declaration and her 2010 deposition, Johnson has offered an explanation for why her testimony
has changed. See Galvin, 488 F.3d at 1030; St. Paul Mercury Ins. Co., 573 F. Supp. 2d at 160.
Johnson states that she:
has determined that her work friend, John Uqdah, although scheduled to retire in March,
[sic] 2005 left the workplace in/about January 2005 using his accumulated leave. That
circumstance serves to refresh Plaintiff's memory regarding Pearson's sex-based
misconduct in 2005. Pearson stated to Plaintiff that with Mr. Uqdah's retirement,
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Plaintiff would have no one in the workforce to protect her. Plaintiff believes that
Pearson started his offensive physical conduct in/about January 2005 and that she first
complained to Ms. Karen Clark-Stone within the month thereafter.
Pl.’s Stmt. at 10-11 (internal citations omitted). The Secretary responds to this explanation with
skepticism, arguing that "[p]laintiff had specifically noted the connection between Uqdah's
retirement and the alleged harassment in her 2006 Declaration but did not allege in her 2006
Declaration that there were any incidents of touching in January or February 2005." Def.'s Resp.
to Pl.’s Surreply at 6. However, other courts in this jurisdiction have accepted seemingly
contradictory testimony based on an even lesser showing than was provided here. See Barrett,
634 F. Supp. 2d at 37 (accepting contradicting affidavit even though plaintiff's only explanation
for the contradictory testimony is that "she had simply forgotten, [at the time of the deposition],
the most recent incident" of sexual harassment). While the ambiguity and lack of clarity
attributed to Johnson’s statements and testimony could certainly cause a reasonable juror to
question Johnson’s credibility, her post-discovery declaration does not trigger the applicability of
the sham-affidavit rule, as the declaration does not clearly contradict prior testimony and,
instead, appears to "clarify confusing or ambiguous testimony." St. Paul Mercury Ins. Co., 573 F.
Supp. 2d at 160. Moreover, Uqdah has also confirmed the timeframe for his retirement as
January 2005. See Uqdah Decl. ¶ 6 (Oct. 8, 2010). Accordingly, the Court will consider
Johnson’s post-discovery declaration as part of the relevant record.
II. Hostile Work Environment Claim
The Court now turns to the merits of the summary judgment motion. Johnson's
complaint asserts that Pearson "subjected Plaintiff to a course of sex-based misconduct . . . [that]
was sufficiently severe or pervasive as to render Plaintiff's work environment hostile." Compl. at
¶¶ 7-8. Title VII of the 1964 Civil Rights Act makes it unlawful for an employer "to
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discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a).
The Supreme Court has recognized sexual harassment as a form of sex-based discrimination.
See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) ("Without question, when a
supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor
'discriminate[s]' on the basis of sex.") (citation omitted). A sexual harassment claim states a
violation of Title VII if the alleged conduct "alters, either expressly or constructively, the terms
or conditions of an individual's employment." Curry v. Dist. of Columbia, 195 F.3d 654, 659
(D.C. Cir. 1999) (per curium). Courts describe an express alteration as "quid pro quo"
harassment and a constructive alteration as "hostile work environment" harassment. Burlington
Indus., Inc. v. Elerth, 524 U.S. 742, 752 (1998); Curry, 195 F.3d at 659. Johnson has not alleged
any kind of "quid pro quo" harassment and, based on the record, there is no indication that “quid
pro quo” harassment is at issue in this case. Accordingly, the Court proceeds with considering
Johnson’s hostile work environment harassment claim.
The workplace environment becomes "hostile" for purposes of Title VII and legal relief
only when the offensive conduct "permeate[s] [the workplace] with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998) (quotation omitted). To establish a prima facie hostile work
environment claim based on sexual harassment, Johnson must allege facts demonstrating that:
(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the
harassment occurred because of her gender; (4) the harassment affected a term, condition, or
privilege of employment; and (5) there is a basis for holding the employer liable for the creation
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of the hostile work environment. See Burton v. Batista, 339 F. Supp. 2d 97, 106-07 (D.D.C.
2004) (citing Jones v. Billington, 12 F. Supp 2d 1, 11 (D.D.C. 1997), aff'd, 1998 WL 389101
(D.C. Cir. June 30, 1998)). Although a plaintiff is not required to plead a prima facie case of
hostile work environment, the alleged facts must nevertheless support such a claim. See Matta v.
Snow, Civ. A. No. 02-862, 2005 WL 3454334, at *29 (D.D.C. Dec. 16, 2005) (citing Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000)). In order for a hostile work setting
to be actionable, the environment must be both objectively and subjectively hostile, which means
that a reasonable person would find the environment hostile or abusive and that the victim
perceived it to be so. See Faragher v. Boca Raton, 524 U.S. 775, 787 (1998). The totality of the
circumstances must be examined in making this determination. Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993). Although no single factor is determinative, these circumstances may include
"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.
Johnson claims that (1) she is female, (2) Pearson harassed her and this harassment was
"unwelcome and [she] let him know [it was] unwelcome," and (3) she "believe[s] Mr. Pearson
did what he did because [she is] a female." See ROI Tab B-1, 1-4; see also Akonji v. Unity
Healthcare, Inc., 517 F. Supp. 2d 83, 97 (D.D.C. 2007) (noting that when alleged sexual
harassment is committed by a man against a woman, courts "may infer that the third element of a
prima facie case is satisfied")." Johnson also alleges that she was a victim of sex-based
misconduct that "was sufficiently severe or pervasive as to render Plaintiff's work environment
hostile," and that such "misconduct constitutes unlawful sex discrimination and harassment
within the meaning of Title VII." See Compl. ¶¶ 8, 14. She further claims that "Mr. Pearson's
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behavior degraded me, humiliated me, made me angry and sick to my stomach. I felt helpless,
frightened and depressed." See ROI Tab B-1, 1-4.
Although the first three elements of the prima facie case are easily satisfied, it is less
clear from the parties’ pleadings whether the alleged sexual harassment was so "'severe or
pervasive' that it 'altered the conditions of [Johnson's] employment and create[d] an abusive
working environment.'" Akonji, 517 F. Supp. 2d at 97 (quoting Harris, 510 U.S. at 21). The
Secretary does not address the severity or pervasiveness of Pearson’s conduct, nor does he
address the effect it had on the terms and conditions of Johnson’s employment and Johnson
herself. Indeed, the Secretary does not consider at all whether Pearson’s conduct constituted
harassment; instead, he contends that the Department is not liable even if the harassment
occurred. See Def.'s Mot. for Summ. J. at 12 ("The Defendant does not discuss in this motion
whether the alleged misconduct constitutes harassment. Even if the acts of alleged misconduct
occurred and assuming, arguendo, they constitute harassment, the Defendant would not be liable
for the alleged harassment.").
Johnson, however, has pointed to specific evidence from depositions, declarations,
medical records, and other testimony in the record before this Court that raise a genuine factual
dispute as to whether she experienced a hostile work environment. Johnson alleges that --
beginning in 1997 -- Pearson made inappropriate comments to her, Pl.’s Dep. 108:3-22, and that
this behavior became more aggressive over time, and escalated during the timeframe of John
Uqdah’s retirement. At that point, Johnson claims that Pearson threatened her, Pl.’s Stmt. at 10
("Plaintiff would have no one in the workforce to protect her"), and began a course of physical
intimidation and contact with Johnson that included attempts to kiss her, uninvited visits to her
office, solicitations for sex, grabbing and pinching of her breast, and grabbing and spanking of
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her behind. See Pl.'s Opp.’n to Def.'s Mot. for Summ. J. at 1-2; Guinta Dep. at 57:4-58:15; Pl.’s
Dep. 105:11, 24 & 107:2-3. In response to this behavior, Johnson complained to her supervisors
and eventually left the workforce and sought medical treatment "for the job stress created by the
sexual harassment." See Pl.'s Opp.’n to Def.'s Mot. for Summ. J. at 2 n. 2. Johnson did not return
to the Department of Veterans Affairs until almost three years later -- and only then on a part-
time basis. Id.; see also Pl.’s Ex. 2. This conduct is certainly inappropriate for the workplace,
and a jury could find that the escalating nature of Pearson's harassment is evidence of a hostile
work environment. See Baker v. Library of Congress, 260 F. Supp. 2d 59, 67 (D.C. Cir. 2003)
(finding that sex-based comments that increased in frequency and severity over time were
evidence of a hostile work environment); Simms v. Ctr. for Corr. Health & Policy Studies, Civ.
No. 06-2178 (RCL), 2011 WL 2621325, *14 (D.D.C. July 5, 2011) (finding that harassment that
escalated over time could constitute a hostile work environment). Moreover, "evidence of
[Johnson's] mental state during this period provides further proof upon which a jury could find
the existence of a hostile work environment." Simms, 2011 WL 2621325, at *15. Johnson has
alleged that Pearson verbally harassed her and that this harassment eventually escalated to
physical harassment in 2005. Johnson has also presented evidence that this harassment caused
her to leave the workplace in 2005 and seek medical help from mental counselors, which delayed
her return to the workplace until 2008. See Pl.’s Exs. 2-4. "Taken together, these allegations are
all evidence upon which a jury could conclude that a reasonable person in [Johnson's] position
would have felt trapped in a hostile work environment." See id. at *16.
Hence, in considering the evidence in the record as described above, and drawing all
inferences in the light most favorable to the non-movant (especially in the absence of arguments
by the Secretary to the contrary), the Court concludes that Johnson has sufficiently established
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elements (1) through (4) of the hostile work environment prima facie case and focuses its
analysis on the only real point of contention between the parties -- whether the Department of
Veterans Affairs can be held liable for the alleged harassment by Pearson.
A. "Supervisor" or "Co-Worker Liability"
To determine whether an employer is liable for a hostile work environment claim
premised on sexual harassment, courts must first consider the threshold question whether the
alleged harasser is the victim's supervisor or a co-worker. See Faragher, 524 U.S. at 805; Curry,
195 F.3d at 559 (explaining that courts have applied different standards depending on whether
alleged harassment was committed by co-worker or supervisor).
If the harasser is the victim's supervisor, courts have made it easier to hold the employer
liable on a vicarious liability theory. See, e.g., Burlington Indus. Inc. v. Ellerth, 524 U.S. 742,
765 (1998); Jones v. Dist. of Columbia, 346 F. Supp. 2d 25, 43 (D.D.C. 2004), rev’d in part on
other grounds, Jones v. D.C. Dep't of Corr., 429 F.3d 276 (D.C. Cir. 2005) ("The Supreme Court
has made it easier for employees to establish sexual harassment claims when the alleged harasser
is a supervisor than when the alleged harasser is a co-worker."). When the alleged harasser is a
co-worker, an employer may be held liable only “if the employer knew or should have known of
the harassment and failed to implement prompt and appropriate corrective action." Curry, 195
F.3d at 660. "While the reasonableness of an employer's response to sexual harassment is at
issue under both standards, the plaintiff must clear a higher hurdle under the [co-worker]
negligence standard, where she bears the burden of establishing her employer's negligence, than
under the [supervisor] vicarious liability standard, where the burden shifts to the employer to
prove its own reasonableness and the plaintiff's negligence." Id. at 660 (citing Shaw v.
AutoZone, Inc., 180 F.3d 806, 812 n. 2 (7th Cir. 1999) ("[T]he reasonableness of the employer's
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actions in preventing and responding to sexual harassment is relevant under both standards, the
difference being who bears the burden of proof.").
Nowhere in Title VII is the term "supervisor" defined. However, other courts have
considered whether the alleged harasser had the authority "to affect the terms and conditions of
the victim's employment . . . [which] primarily consists of the power to hire, fire, demote,
promote, transfer, or discipline an employee." See Jones, 346 F. Supp. 2d at 45 (citing Parkins v.
Civil Constructors of Ill., Inc., 163 F.3d 1027, 1033 (7th Cir. 1998). Based on the record before
it, the Court concludes that Pearson was Johnson's co-worker and not Johnson's supervisor.
Although Pearson was a "supervisor" in the Department of Veterans Affairs Substance Abuse
Response Program, see Pl.’s Stmt. at 3 ("[a]t the time of his deposition in 2010, Pearson's title
was Health Systems Specialist, Supervisor . . . ."); see also Def.'s Mot. for Summ. J. at 2 ("Isaiah
Pearson supervised drug rehabilitation counselors at SARP"), and did occasionally appear
"bossy" to Johnson, see Clark-Stone Dep. 110:11-17, 152:18-21, Johnson concedes that Pearson
was not a supervisor in her chain of command, Pl.’s Stmt. at 3, and does not allege that Pearson
had the power to “hire, fire, demote, promote, transfer, or discipline” her.
In order to hold an employer liable for a hostile work environment caused by co-worker
harassment, Johnson must present evidence that the Secretary knew or should have known of the
accused's harassing conduct and that the Secretary failed to take prompt and appropriate action to
correct this inappropriate behavior. See Jones, 346 F. Supp. 2d at 45. 2 The Court will consider
these two inquiries by examining the factual record in the light most favorable to the plaintiff.
2
Because the Court concludes that Pearson was Johnson’s co-worker, it need not consider the
parties’ arguments made with respect to the Secretary’s invocation of a defense under Faragher
v. City of Boca Raton, 524 U.S. 775 (1998). The so-called “Faragher defense” is an affirmative
defense that allows an employer to avoid liability where it can demonstrate (1) that the employer
exercised reasonable care in promptly preventing and correcting the harassing behavior and (2)
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B. Knew or Should Have Known
There are two relevant time periods for the Court’s inquiry whether a reasonable jury
could find that the Department of Veterans Affairs either knew or should have known of the
alleged harassment. The first occurred between 1997 and 2005, which marks the period between
the alleged start of Pearson's inappropriate and unwelcome sexual remarks to Johnson and
Pearson's alleged first physical touching of Johnson. See ROI B-1, ¶ 8; Compl. ¶ 7. The record
shows that Johnson's workplace during this time period was filled with sexual banter -- banter
that co-workers and Pearson considered part of the joking, humorous atmosphere of the
workplace, see, e.g., Givens Dep. 114:9-11 ("We used to tease each other about things that
weren't true and make sexual jokes and call each other out."); Taylor Dep. 88:12-14 ("We made a
joke about something that you was wearing that day, we might have joked about something
sexual."); Pearson Dep. 166:18-19 ("We were just, you know, end of the day we were just
having fun talking trash, you know."), but that Johnson now alleges included unwelcome
"solicitations for sexual activities, [and] inquiries regarding Plaintiff's private sexual activities,"
Compl. ¶ 7. However, Johnson does not allege that anyone in management ever witnessed this
alleged verbal harassment or was notified of the harassment until 2005, when Johnson first
approached her supervisors regarding Pearson’s conduct. Id. Until 2005, Johnson states that she
did not tell her supervisors about the accused's alleged inappropriate comments, because she
"tried to ignore" the comments, and she "thought [she] could handle the talking." Pl.’s Dep.
109:11, 111:21. Moreover, Johnson's co-workers have testified that the group would refrain
that the employee unreasonably failed to take advantage of the corrective or preventive
procedures provided by the employer. See id. at 807-08. However, because the Court has
applied the co-worker negligence standard to this case and not the supervisor standard of care,
the Faragher defense is inapplicable. See Curry, 195 F.3d at 659-60 (making a distinction
between standards of liability “depending on who does the harassing” and noting that plaintiff's
negligence, as considered under Faragher, is only relevant if the alleged harasser is a supervisor).
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from engaging in sexual banter if a supervisor was present. See McCray Dep. 97:11-14; Taylor
Dep. 92:5-6.
Not only were Department supervisors therefore unaware of the alleged pre-2005 verbal
harassment, but courts in this jurisdiction have found that supervisors are under no affirmative
duty to discover such harassment when they "had in place a policy against harassment, [they]
had made [their] policy known and [they] had established an effective complaint procedure." See
Curry, 195 F.3d at 661. It is undisputed that defendant had an established policy in place
designed to prevent sexual harassment in the workplace, Pl.'s Stmt. at 17-18 ("Plaintiff does not
dispute that Defendant had a prevention of sexual harassment policy in place."), and that Johnson
had attended mandatory sexual harassment training during her time at the Department, Pl.’s Dep.
128:2-3. Because the Department had a prevention of sexual harassment policy in place, it "was
entitled to rely on its employees to bring problems with their co-workers to its attention." Curry,
195 F.3d at 661. When considered in conjunction with the active effort on the part of Department
employees to hide their sexual banter from their supervisors, there is no genuine factual dispute
that defendant did not know and should not have known about any sexual harassment allegations
during the period from 1997 to 2005. 3
3
Although Johnson discusses the escalating nature of Pearson’s conduct from 1997 to 2005, her
pleadings focus on 2005 as the timeframe for her sexual harassment hostile work environment
claim. Moreover, Johnson does seem to concede that any hostile work environment claim
premised on the pre-2005 period would not be successful. See Pl's Opp.’n to Def.'s Mot. at 8-9
("Defendant . . . has not produced any evidence that before 2005 there existed sex-based
misconduct sufficient to implicate Title VII's prohibition against sexual harassment.").
Admittedly, Johnson’s interest in disregarding the time period between 1997 and 2005 relates to
her response to the Secretary’s assertion of the “Faragher defense.” See Pl.’s Opp.’n to Def.’s
Mot. at 9-10. However, as previously stated, because the Court has applied the co-worker
negligence standard to this case and not the supervisor standard of care, the Faragher defense is
inapplicable. See Curry, 195 F.3d at 659-60. Johnson does not contend that the Secretary knew,
or should have known, of any misconduct that took place prior to 2005, and accordingly the
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The second time period -- and the period that is the focus of the summary judgment
motion and the parties’ dispute -- is the period in 2005 after Johnson first reported to her
supervisors at the Department that Pearson had inappropriately touched her. See Pl.’s Dep. at
102:1-112:10. Clearly, the Secretary can be considered on notice of the sexual harassment
claims following Johnson's first report to her supervisors, but the exact date of this pivotal first
report is in dispute. The Secretary, relying on ambiguous deposition testimony and on Johnson's
response to a 2006 questionnaire, contends that Johnson "did not inform management of
Pearson's alleged behavior until after he allegedly first placed 'his hands' on her on July 11, 2005,
once [sic] month prior to her leaving work for a period of years." Def.'s Mot. for Summ. J. at 19.
Moreover, the record indicates that Clark-Stone disputes that Johnson informed her of the
alleged misconduct at all. See Clark-Stone Dep. 152:2-9. Johnson disputes this, and claims that
she "believes that Pearson started his offensive physical conduct in/about January 2005 and that
she first complained to Ms. Karen Clark-Stone within the month thereafter." Pl.’s Stmt. at 10-11;
see also Pl.’s Decl. ¶ 3 (Oct. 12, 2010). Johnson testified that she recalled that the alleged
misconduct escalated, and the touching began, at or around the time of the retirement of Mr.
Uqdah, who stated that he was officially scheduled to retire in March, but actually left the
workplace in January 2005 using his accumulated leave. Uqdah Decl. ¶ 6 (Oct. 8, 2010); see also
Pl.’s Decl. ¶ 3 (Oct. 12, 2010). Johnson also claims that she spoke to Clark-Stone in the
timeframe of the “2000s” about Pearson’s conduct, and that she spoke to her supervisors, Clark-
Stone and Jordan, at least five times prior to alerting the EEO office in August 2005, but that no
action was taken with respect to her complaints. Pl.’s Dep. 103:10-107:24; Pl.’s Decl. ¶ 3.
Court does not construe her complaint as raising a hostile work environment claim relating to
any misconduct by Pearson that took place prior to 2005.
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Hence, there is a genuine issue of material fact regarding when, exactly, the Department
of Veterans Affairs knew or should have known of the alleged harassment, and whether in light
of that knowledge, its response to the complained-of harassment was reasonably prompt and
appropriate. See, e.g., Wade v. Wash. Metro. Transit Auth., Civ. Nos. 01-0334, 01-2385, 2005
WL 1513137, at * 3 (D.D.C. June 27, 2005) (finding that the plaintiff presented evidence that
employer “knew or should have known of the abuse” since plaintiff reported each incident to a
supervisor, who, under the employer’s policies, had a duty to report further allegations to the
employer’s Office of Civil Rights).
C. Prompt and Appropriate Action
A determination whether the Department of Veterans Affairs responded promptly and
appropriately to the alleged harassment of Johnson depends on the resolution of the factual
dispute (discussed above) regarding whether Johnson first reported the alleged unwelcome
physical contact to her supervisors in June or July 2005 -- as argued by defendant -- or in January
or February 2005 -- as argued by Johnson. "To assess whether an employer's response is
adequate, courts should look to 'the amount of time that elapsed between the notice and remedial
action, the options available to the employer, possibly including employee training sessions,
transferring the harassers, written warnings, reprimands in personnel files, or termination, and
whether or not the measures ended the harassment.'" Matta, 2005 WL 3454334, at *32 (citing
Curry, 195 F.3d at 662 n.17).
While certain details of the Department’s response to Johnson's allegations are in
contention, it is undisputed that the Department took several steps to respond to and correct the
alleged harassment problems in August 2005. The Department’s responses to Johnson’s
allegations included the following: (1) discussions and/or plans to move Johnson to a different
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unit within the Department; (2) reprimands of the accused and placement of the accused on
administrative leave; (3) completion of a formal investigation into Johnson's allegations; and (4)
reiteration of sexual harassment training for employees and supervisors in Johnson's section.
Other courts in this district have found similar responses to sexual harassment allegations
adequate under the co-worker negligence standard. See, e.g., Curry, 195 F.3d at 661 (finding the
conduct of an investigation and admonishment of the accused to be "appropriate" and "effective"
responses to allegations of sexual harassment, even though the defendant "took no formal
disciplinary action"); Roof v. Howard Univ., 501 F. Supp. 2d 108, 115-16 (D.D.C. 2007)
(finding that training is a reasonable response to notice of alleged harassment).
Whether these actions can be considered "prompt" or "appropriate," however, depends in
part on the "amount of time that elapsed between the notice and remedial action.” Curry, 195
F.3d at 662 n.17. If the Department was only notified of the alleged harassment in June or July
2005, these August 2005 personnel actions might very well be sufficiently prompt and
appropriate to satisfy the employer's standard of care. However, if Johnson’s account is credited,
and she informed her supervisors of the alleged harassment in January or February 2005, the
record then reflects a significant period of inaction on the part of Johnson's supervisors in the
face of serious sexual harassment allegations, and it is less likely that a reasonable jury would
find the Department's responses to be prompt and appropriate in light of such a delay. This
timing question is properly resolved by a jury. See Hunt v. Cromartie, 526 U.S. 541, 552 (1999)
(holding that "[s]ummary judgment . . . is inappropriate when the evidence is susceptible to
different interpretations or inferences by the trier of fact"). Because this issue turns on a disputed
issue of material fact, the Court cannot conclude based on the record before it that the
Department satisfied its duty to respond. Hence, summary judgment must be denied.
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CONCLUSION
For the foregoing reasons, the Court will deny defendant's motion for summary
judgment. A separate order accompanies this memorandum opinion.
/s/ p
JOHN D. BATES
United States District Judge
Dated: September 19, 2011
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