Cunningham v. Ramjay Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LAFONDA CUNNINGHAM,

Plaintiff,
Civil Action No. 22-931(BAH)
v.
Judge Beryl A. Howell
RAMJAY INC.,
SHASTHRA USA INC.,

Defendants.

MEMORANDUM OPINION

Plaintiff Lafonda Cunningham filed this action against defendants Ramjay, Inc.

(“Ramjay”) and Shasthra USA Inc. (“Shasthra”), alleging that she was subject to a hostile work

environment and retaliation based on her sex, in violation of the District of Columbia Human

Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq. Second Am. Compl. ¶¶ 25–30, ECF No.

35. Defendants have moved for summary judgment. See Defs.’ Mot. Summ. J., ECF No. 27;

Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’ Mem.”), ECF No. 28; Pl.’s Opp’n Defs.’ Mot.

Summ. J. (“Pl.’s Opp’n”), ECF No. 29; Defs.’ Reply Supp. Mot. Summ. J. (“Defs.’ Reply”),

ECF No. 30. For the reasons set forth below, defendants’ motion is GRANTED.

I. BACKGROUND

The factual background and procedural history of the instant matter are summarized

below.1

1
Certain names and citations require clarification at the outset. First, while plaintiff refers to Mathew
McMullen interchangeably as “Mathew McMullen” and “Mathew Mullen,” he will be referred to herein as
“McMullen,” which appears to be his correct surname. See, e.g., Defs.’ Mem., Ex. 4 at 5–6 (“Shasthra Interrogs. &
Producs.”), ECF No. 28-4; Pl.’s Opp’n at 2 n.1.
Second, both parties include their statement of material facts in their summary judgment briefing, rather
than as a standalone exhibit. See Defs.’ Mem. at 2–4; Pl.’s Opp’n at 1–8. Citations to the parties’ statements of
material facts will thus be to their briefing.

1
 A. Factual Background

Defendant Ramjay, which has its principal place of business in Virginia, is a

transportation company providing transportation and security services to the Washington D.C.

metro area. Second Am. Compl. ¶¶ 2, 7. Ramjay provides its security services, including for

residential and commercial properties, events and venues, and personal protection, through

Shasthra, which also has its principal place of business in Virginia. Id. ¶¶ 3, 7; Defs.’ Mem., Ex.

1 (“Cunningham Dep.”) at 12:20–14:20, ECF No. 28-1. Ramjay and Shasthra have the same

owner, though their precise corporate relationship, if any, remains unclear. Defs.’ Mem. at 1.2

In September 2021, plaintiff, a female Maryland resident, was hired as a security officer

and assigned to the Blackbird Apartments in Washington, D.C., where she reported to Terrell

Farmer, Aisha Tunstall, and Mathew McMullen. See Defs.’ Mem. at 2; Pl.’s Opp’n at 1–2; see

also Cunningham Dep. at 12:11–19, 15:13–22; Defs.’ Mem., Ex. 4 (“Shasthra Interrogs. &

Producs.”) at 1, 3–4, ECF No. 28-4; Second Am. Compl. ¶¶ 1, 9–11.3 In her role as a security

officer, she patrolled the residential apartment complex, made reports, followed up on leads

about what was happening in the building, and presented a “command presence” for the

Third and finally, plaintiff filed, with her opposition, six exhibits: the deposition transcripts for plaintiff
(Exhibit 1), McMullen (Exhibit 2), and Farmer (Exhibit 3); a declaration signed by plaintiff (Exhibit 4); and an
email (Exhibit 5) and text message exchange (Exhibit 6) between plaintiff and McMullen. See Pl.’s Opp’n, Ex. at
1–26 (Ex. 1), 27–47 (Ex. 2), 48–64 (Ex. 3), 65–68 (Ex. 4), 69–72 (Ex. 5), 73–74 (Ex. 6), ECF No. 29-1. Defendants
also filed identical copies of the deposition transcripts for plaintiff, McMullen, and Farmer. See Defs.’ Mem., Ex. 1
(“Cunningham Dep.”), ECF No. 28-1; Defs.’ Mem., Ex. 2 (“Farmer Dep.”), ECF No. 28-2; Defs.’ Mem., Ex. 3
(“McMullen Dep.”), ECF No. 28-3. For ease of reference, citations to the transcripts will be to defendants’ copies,
which are filed as standalone exhibits rather than, as plaintiff’s exhibits, combined into one document with
continuous pagination. See Standing Order ¶ 5(c) (“Each attachment to a filing (e.g., . . . each exhibit . . . ) must be
filed as a separate PDF . . . .”).
2
See Second Am. Compl. ¶ 8 (“Shasthra is an entity or affiliate of Ramjay.”); Farmer Dep. at 8:3–7
(explaining that Ramjay and Shasthra are “all one and the same”); McMullen Dep. at 14:5–18:21 (explaining that
Ramjay and Shasthra are part of the same larger company), 68:4–8 (explaining that Ramjay is “the primary
company that, generally, controls everything”); Cunningham Dep. at 29:16–31:18 (reflecting lack of clarity
regarding relationship); see also Min. Order (Nov. 11, 2022) (recognizing uncertainty).
3
Shasthra had a contract to provide security services at the Blackbird Apartments. See Cunningham Dep. at
24:13–17.

2
property. See Pl.’s Opp’n at 2; Cunningham Dep. at 15:4–12; Shasthra Interrogs. & Producs. at

3.

Plaintiff alleges that she was sexually harassed by Farmer from September to October

2021. Specifically, she alleges that, on September 27, 2021, plaintiff’s first day of work, Farmer

pressed the front side of his body onto plaintiff’s vehicle, made a sexualized gesture, and asked

plaintiff for a hug. See Defs.’ Mem. at 2; Pl.’s Opp’n at 1, 3; Cunningham Dep. at 32:1–37:12,

43:13–44:16; Defs.’ Mem., Ex. 2 (“Farmer Dep.”) at 34:3–36:21, ECF No. 28-2. Plaintiff took

several short videos of the interaction and sent them to her boyfriend at the time, remarking that

her supervisor was “unprofessional” and made her feel “uncomfortable.” Cunningham Dep. at

39:1–9, 40:14–41:14, 42:21–47:8.

Then, between September and October 2021, Farmer allegedly made a comment about

plaintiff’s breasts, telling her to “get [her] titty” off him, and asked her if she was gay. Pl.’s

Opp’n, Ex. 4 (“Cunningham Decl.”) ¶ 3, ECF No. 29-1; see also Farmer Dep. at 29:9–30:11

(recalling his statements as: “Excuse me. Back up. You have your breasts on me. . . . You don’t

need to be that close”). On October 9, 2021, Farmer told plaintiff that he had a “dirty mind.”

Cunningham Decl. ¶ 4; see also Farmer Dep. at 49:21–50:20 (acknowledging similar statements,

but positing that he was not speaking to plaintiff).

On October 20, 2021, Farmer said to plaintiff “don’t act like you ain’t miss me,” which

plaintiff found “unnecessary,” “unprofessional,” and to “creat[e] an unfavorable and . . . start of a

hostile work environment.” Cunningham Dep. at 59:1–18; Defs.’ Mem. at 2; Pl.’s Opp’n at 1, 3;

see also Farmer Dep. at 38:11–17. On October 21, 2021, Farmer called plaintiff in the early

morning. Plaintiff did not pick up the phone and thought the call was “unnecessary,”

“unprofessional,” and “unwarranted” because she was “not at work” in the “early hours of the

3
morning.” Cunningham Dep. at 61:2–21; Defs.’ Mem. at 2; Pl.’s Opp’n at 1, 3; see also Farmer

Dep. at 25:10–26:21 (contending that he called her to tell her about an “open post”).

On October 23, 2021, Farmer allegedly forced plaintiff to pull down her mask so that he

could see her face. Plaintiff repeatedly refused, but when Farmer threatened to pull her “off the

schedule,” she relented. Cunningham Dep. at 61:22– 63:4; Defs.’ Mem. at 2; Pl.’s Opp’n at 1, 4.

When plaintiff revealed her face, Farmer called plaintiff “cute,” his “type,” and “thick.”

Cunningham Decl. ¶¶ 7–8. But see Farmer Dep. at 48:17–19 (denying allegations). When

plaintiff refused his advances, Farmer allegedly said “don’t be surprised when you off the

schedule.” See Defs.’ Mem. at 2; Pl.’s Opp’n at 1–2.

Plaintiff alleges that she first reported Farmer’s conduct to Tunstall on October 25, 2021,

then again on October 31, 2021. See Pl.’s Opp’n at 4; see also Second Am. Compl. ¶ 20.

Tunstall, in response, told plaintiff to speak to McMullen because Farmer outranked her. See

Cunningham Dep. at 63:14–65:3 (explaining that Tunstall said that “Farmer was over top of her”

and thus plaintiff had to “talk to the chief”).

On November 6, 2021, plaintiff attended an in-person meeting with McMullen, Tunstall,

and two other supervisors to discuss her allegations against Farmer and her feelings that Farmer

was making her “work environment hostile,” even after only “2 months” of work. Second Am.

Compl. ¶¶ 22–23; see Defs.’ Mem. at 3; Pl.’s Opp’n at 2; Cunningham Dep. at 65:17–66:5.4

Plaintiff followed up, on the same day, with an email to McMullen delineating her allegations.

See Cunningham Dep. at 66:8–67:17; Pl.’s Opp’n, Ex. 5, ECF No. 29-1. McMullen, in response,

4
Plaintiff alleges that this meeting occurred on November 5, 2021, see Pl.’s Opp’n at 5, but the follow-up
email sent by plaintiff after this meeting, which plaintiff attaches as an exhibit to her opposition, makes clear that the
meeting occurred on November 6, 2021, see Pl.’s Opp’n, Ex. 5, ECF No. 29-1 (explaining, in an email dated
November 6, 2021, that “[t]he following is the requested reports of past events discussed in the meeting this
morning”).

4
instructed plaintiff to report to Tunstall instead of Farmer, and opened an investigation into

Farmer on the same day. Cunningham Dep. at 70:3–22.5

While the investigation was pending, plaintiff had “limited contact” with Farmer and

“was reporting to Tunstall for very much everything.” Id. at 72:10–13. When asked whether

Farmer did anything “unprofessional” to her “while the investigation was going on,”

Cunningham answered: “Not that I can readily recall, no.” Id. at 72:17–20. She explained that

the “damage was already done,” and that it didn’t “matter if he did anything more” since she was

“already scared” and “already worried about [her] job.” Id. at 73:21–74:8.

In late November or early December, while the investigation into Farmer was still

ongoing, plaintiff tested positive for COVID and was instructed by Tunstall to quarantine for 14

days before “coming back to regular scheduled programming . . . , back to the shift that [she] had

been working.” Id. at 76:9–77:19. When plaintiff called to “report to duty,” Tunstall allegedly

told plaintiff “to be on standby” for further instruction from the “chief.” Neither Tunstall nor the

chief “reached back out to [plaintiff] at any period after that,” and “the chief . . . kept giving

excuses on why [she] wasn’t working” and “why [she] couldn’t go back to work,” though

plaintiff, when asked, could not remember examples of the excuses offered. Id. at 78:1–22.

5
The investigation revealed that two other female employees “may have experienced” harassment by
Farmer: one alleged “inappropriate touching,” and the other alleged “a suggestion of a possible sexual advance.”
McMullen Dep. at 7:20–9:21. The investigation found that “inappropriate contact was more likely than not,”
leading to Farmer’s termination. Id. at 24:1–6. Plaintiff does not raise the other two female employees’ allegations
as part of her hostile work environment claim.

Approximately two months later, after the investigation was complete, Farmer was allegedly rehired. See
Farmer Dep. at 18:1–8; Pl.’s Opp’n at 6. Farmer stated that he returned to his role as a “lieutenant” and that plaintiff
worked below him in the organizational structure. See Farmer Dep. at 18:1–8. Farmer’s retelling is inconsistent
with documentary evidence demonstrating that plaintiff was terminated before Farmer was rehired and plaintiff’s
testimony suggesting the same. See Pl.’s Opp’n, Ex. 6 at 74, ECF No. 29-1 (showing text from plaintiff to
McMullen stating: “I’ve also been made aware recently that [F]armer was never fired and has returned to dc sites in
my absence as[ ]well.”); Shasthra Interrogs. & Producs. at 1–2, 6. In any case, neither Farmer nor plaintiff recall
interacting after the investigation into Farmer began, and plaintiff makes no allegations about Farmer’s conduct after
November 6, 2021. See Farmer Dep. at 44:14–21; Cunningham Dep. at 72:6–20.

5
Plaintiff never received a formal termination letter and was simply not “given work,” which she

alleges effectively constituted her termination. Id. at 81:22–82:5. Defendants contend that

plaintiff was terminated because their contract with the Blackbird Apartments had ended, and

plaintiff was hired for the Blackbird Apartments contract. See Defs.’ Mem. at 4; Shasthra

Interrogs. & Producs. at 2; McMullen Dep. at 48:4–7; see also Cunningham Dep. at 79:1–6

(stating that she “guess [she] did hear that” defendants “lost the contract at Blackbird”). Plaintiff

was formally terminated on December 24, 2021. Shasthra Interrogs. & Producs. at 1; see Second

Am. Compl. ¶ 24.

B. Procedural Background

Plaintiff filed, on April 5, 2022, the complaint initiating this action against Ramjay,

alleging one count each of hostile work environment and retaliation under DCHRA. See

generally Compl., ECF No. 1. Plaintiff moved, on October 12, 2022, to join Shasthra as a

defendant and to file an amended complaint, which motion was granted over Ramjay’s

objections. See Min. Order (Nov. 11, 2022). Plaintiff filed, on November 14, 2022, her first

amended complaint, which differed from her case-initiating complaint only insofar as Shasthra

was added as an additional defendant and slightly modified factual allegations were included to

explain the relationship between Ramjay and Shasthra. See generally First Am. Compl., ECF

No. 17. After the parties requested and were granted over seven months of discovery, defendants

moved for summary judgment.

On September 21, 2023, the Court directed plaintiff to show cause why the first amended

complaint, which alleges neither a federal cause of action nor an amount in controversy, should

not be dismissed for lack of subject matter jurisdiction. See Min. Order (Sept. 21, 2023); see

also Bronner on Behalf of Am. Studies Ass’n v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020)

6
(explaining that questions of subject matter jurisdiction “must be policed by the courts on their

own initiative” and that “the party claiming subject matter jurisdiction . . . has the burden to

demonstrate that it exists” (citation omitted)). Plaintiff moved for leave to file a second amended

complaint, which was identical to her first amended complaint but with the addition of an

allegation that the amount in controversy exceeds $75,000. See Pl.’s Mot. for Leave to File

Second Am. Compl., ECF No. 33. Plaintiff’s motion was granted over defendants’ objection.

See Min. Order (Nov. 2, 2023). At the Court’s direction, the parties filed, on November 16,

2023, a joint status report, informing the Court that no supplementation was necessary to

defendants’ pending motion for summary judgment and the related legal memoranda in support

and in opposition. See Joint Status Report, ECF No. 37.6 Defendants’ motion is now ripe for

consideration.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly

granted against a party who, “after adequate time for discovery and upon motion, . . . fails to

make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The moving party bears the burden to demonstrate the “absence of a genuine

issue of material fact” in dispute, id. at 323, while the nonmoving party must present specific

facts supported by materials in the record that would be admissible at trial and that could enable

6
On December 7, 2023, plaintiff filed a notice of supplemental authority to draw attention to the Human
Rights Enhancement Act of 2022, D.C. Law 24-172, which was passed by the Council of the District of Columbia
on July 25, 2022. See Pl.’s Supp. Memo., ECF No. 38; Pl.’s Supp. Memo., Ex. 1, ECF No. 38-1.

7
reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment,

the appropriate inquiry is “whether, on the evidence so viewed, a reasonable jury could return a

verdict for the nonmoving party” (citation omitted)); see also Greer v. Paulson, 505 F.3d 1306,

1315 (D.C. Cir. 2007) (“[S]heer hearsay . . . counts for nothing on summary judgment.” (citation

omitted)); Fed. R. Civ. P. 56(c), (e)(2)–(3).

“Evaluating whether evidence offered at summary judgment is sufficient to send a case to

the jury is as much art as science.” Est. of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.

Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve

genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 572

U.S. 650, 656 (2014), and “[t]he evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor,” id. at 651 (quoting Liberty Lobby, 477 U.S. at 255).

Courts must avoid making “credibility determinations or weigh[ing] the evidence,” since

“[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted); see also Burley v. Nat’l

Passenger Rail Corp., 801 F.3d 290, 295–96 (D.C. Cir. 2015).

In addition, for a factual dispute to be “genuine,” the nonmoving party must establish

more than “[t]he mere existence of a scintilla of evidence in support of [its] position,” Liberty

Lobby, 477 U.S. at 252, and cannot rely on “mere allegations” or conclusory statements, Equal

Rts. Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (citation omitted); Fed. R. Civ.

P. 56(e). If “opposing parties tell two different stories, one of which is blatantly contradicted by

the record, so that no reasonable jury could believe it, a court should not adopt that version of the

8
facts for purposes of ruling on a motion for summary judgment.” Lash v. Lemke, 786 F.3d 1, 6

(D.C. Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The Court is required to

consider only the materials explicitly cited by the parties but may on its own accord consider

“other materials in the record.” Fed. R. Civ. P. 56(c)(3).

III. DISCUSSION

The DCHRA prohibits employers from “discharg[ing]” or otherwise “discriminat[ing]

against any individual, with respect to his or her compensation, terms, conditions, or privileges

of employment . . . in any way which would deprive or tend to deprive any individual of

employment opportunities, or otherwise adversely affect his or her status as an employee”

“wholly or partially for a discriminatory reason based upon the actual or perceived” sex of that

employee. D.C. Code § 2-1402.11(a)(1)(A). Discrimination claims under DCHRA are analyzed

“the same way” as those brought under the federal anti-discrimination laws. Vatel v. All. of Auto.

Mfrs., 627 F.3d 1245, 1246 (D.C. Cir. 2011); see also Lively v. Flexible Packaging Ass’n, 830

A.2d 874, 887–88 (D.C. 2003).

A. Hostile Work Environment

To state a claim of hostile work environment under the DCHRA, a plaintiff must

demonstrate that (1) she is a member of a protected class; (2) she has been subjected to

unwelcome harassment; (3) the harassment was based on membership in a protected class; and

(4) the harassment was “severe and pervasive enough to affect a term, condition, or privilege of

employment.” Lively, 830 A.2d at 888 (citation omitted); Baloch v. Kempthorne, 550 F.3d 1191,

1201 (D.C. Cir. 2008) (“To prevail on [a hostile work environment] claim, a plaintiff must show

that his employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

9
abusive working environment.’” (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))).

“Under this standard, a plaintiff must demonstrate both an objectively hostile or abusive

environment, i.e., one that a reasonable person would find hostile or abusive, and a subjective

perception by the plaintiff that the environment is abusive.” Lively, 830 A.2d at 889 (quoting

Daka, Inc. v. Breiner, 711 A.2d 86, 93 (D.C. 1998)).

To determine whether a work environment is objectively hostile, a court “looks to the

totality of the circumstances, including the frequency of the discriminatory conduct, its severity,

its offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 550

F.3d at 1201 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)). “[O]rdinary

tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes,

and occasional teasing” and “simple teasing, offhand comments, and isolated incidents (unless

extremely serious,” do not “amount to discriminatory changes in the terms and conditions of

employment.” Faragher, 524 U.S. at 788 (citations omitted). Rather, the “conduct must be

extreme to amount to a change in the terms and conditions of employment.” Id.

In advancing her hostile-work-environment claim, plaintiff points to several instances of

alleged sexual harassment between September and October 2021: Farmer (1) pressing the side of

his body onto plaintiff’s vehicle; (2) telling plaintiff to “get her titty” off him; (3) telling plaintiff

he has a “dirty mind”; (4) saying to plaintiff “don’t act like you ain’t miss me”; (5) calling

plaintiff by phone in the early morning; and (6) asking plaintiff to remove her mask so that he

could see her face, saying that she would be removed from the schedule if she didn’t do so, and,

when plaintiff complied, calling her his “type,” “thick” and “cute.” Pl.’s Opp’n at 10–11; see

also Cunningham Decl. ¶¶ 1–8.

10
 These acts of alleged harassment are unquestionably inappropriate workplace conduct,

but inappropriate conduct, without more, is insufficient to establish a hostile work environment

claim. In this Circuit, “even multiple instances of physical contact and sexual advances may not

be sufficient” to sustain a hostile work environment claim, and “incidents involving verbal

comments,” unless particularly charged, “must generally be quite pervasive or severe to be

actionable.” Bergbauer v. Mabus, 934 F. Supp. 2d 55, 77–78 & nn. 18–22 (D.D.C. 2013)

(cataloguing cases, and concluding that allegations including colleagues propositioning plaintiff

for sex, inviting her to get drunk so that she and a colleague could “have a good time,” making

crass jokes about oral sex, and engaging in unwanted physical contact did not raise a hostile

work environment claim). For this reason, courts have found that similar conduct as plaintiff

alleges here, including offensive comments, lewd gestures, and unwanted touching, does not

meet the standard of severe or pervasive necessary to establish a hostile work environment claim.

See, e.g., Akonji v. Unity Healthcare, Inc., 517 F. Supp. 2d 83, 98–99 (D.D.C. 2007)

(cataloguing cases, and concluding that allegations of sexual harassment, including touching

plaintiff’s buttocks and thigh, trying to kiss her, calling her beautiful, and asking her to

accompany him on a weekend trip, was not severe or pervasive); Carter v. Greenspan, 304 F.

Supp. 2d 13, 25 (D.D.C. 2004) (cataloguing cases, and concluding that allegations that co-

worker caressed plaintiff on knee, placed her breast on his arm, and placed her fingers on his

buttocks were “not sufficiently severe in quantity or quality to unreasonably interfere with

plaintiff’s work performance or create a hostile work environment”); Tucker v. Johnson, 211 F.

Supp. 3d 95, 100–01 (D.D.C. 2016) (cataloguing cases, and concluding that allegations that

colleague engaged in numerous incidents of inappropriate behavior, including making comments

about plaintiff’s clothes and perfume, such as that her necklace would “hit right along her breast

11
line,” and sneaking up behind her and looking down her shirt, was not actionable). To be sure,

the alleged conduct occurred in the span of two months. Even setting aside the fact that

defendants attempted to take remedial action, see Vance v. Ball State Univ., 570 U.S. 421, 427

(2013), however, Farmer’s conduct, as alleged by plaintiff, while unseemly and by no means

ideal workplace conduct, amounts to “a few isolated incidents of offensive conduct” and is thus

neither so severe nor so pervasive to give rise to an actionable hostile work environment, Stewart

v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002); see also Harris, 510 U.S. at 21–23.

Discrimination laws, the Supreme Court has explained, are not intended to create a “general

civility code” in the workplace. Faragher, 524 U.S. at 788.

Plaintiff, in addition, has failed to establish that Farmer’s conduct affected a “term,

condition, or privilege” of her employment. Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119,

1122 (D.C. Cir. 2002) (citation omitted); see also Baloch, 550 F.3d at 1201 (explaining that

harassing conduct must “alter the conditions of the victim’s employment and create an abusive

working environment”). Plaintiff repeatedly testified that Farmer’s behavior was

“unprofessional,” “unwarranted,” and “unwelcome” and made her feel “uncomfortable.” See,

e.g., Cunningham Dep. at 38:18–22, 40:18–22, 41:10–14, 44:4–7, 45:18–46:18, 59:10–18,

61:12–21. In her declaration in support of her opposition, plaintiff states: “Farmers [sic]

comments made her feel very uncomfortable during my short tenure with Ramjay.”

Cunningham Decl. ¶ 9; see also Pl.’s Opp’n at 4 (“Cunningham testified that Farmer’s comments

made her feel uncomfortable.”), 10 (“Defendants use of the term ‘unprofessional’ does not gloss

over the fact that Farmer’s conduct was ‘unwelcome.’”).7 “General feelings of workplace

7
In fact, plaintiff suggested in her deposition that she did not subjectively believe her workplace was hostile
until Farmer’s comment, on October 20, 2021, stating, “don’t act like you ain’t miss me.” See Cunningham Dep. at
59:1–18 (stating that Farmer’s comment “creat[ed] an unfavorable and . . . start of a hostile work environment”). If
plaintiff is taken at her word, her hostile work environment claim is further weakened.

12
discomfort or unease—even those resulting from inappropriate workplace conduct of a sexual

nature—are simply not enough to support a claim for a hostile work environment.” Tucker, 211

F. Supp. 3d at 101–02; see also Henthorn v. Capitol Commc’ns, Inc., 359 F.3d 1021, 1027 (8th

Cir. 2004) (“To overcome summary judgment on [a] hostile work environment claim, [plaintiff]

must present evidence from which a reasonable jury could find that [defendant’s] conduct

towards her was more than merely offensive, immature or unprofessional, for conduct that does

not exceed that threshold of severity is insufficient to constitute a prima facie case of sexual

harassment.”). While the interactions between plaintiff and Farmer may have reasonably made

plaintiff uncomfortable, they were not so overt, constant, and aggressive as to amount to severe

or chronic abuse. Indeed, none of plaintiff’s interactions with Farmer were of sufficient

seriousness to prompt her to report the incidents until almost a month after they allegedly started

occurring. See, e.g., Kennedy v. Nat’l R.R. Passenger Corp., 139 F. Supp. 3d 48, 61 (D.D.C.

2015) (cataloguing cases, and considering the promptness with which plaintiff reported the

allegedly discriminatory conduct).

In sum, sexual harassment, to be actionable, must be “sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working environment.”

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (alterations in original accepted and

citation omitted). Even with all facts and assumed inferences drawn in her favor, plaintiff cannot

meet this requisite standard. Taken together, the events plaintiff describes may have been

offensive and unprofessional but do not demonstrate an abusive workplace “permeated with

discriminatory intimidation, ridicule, and insult.” Harris, 510 U.S. at 21 (citation omitted).

13
Defendants’ motion for summary judgment on plaintiff’s hostile work environment claim is thus

granted.8

B. Retaliation

“The DCHRA prohibits an employer from retaliating against an employee who

complains about discrimination in the workplace.” Holbrook v. District of Columbia, 259 A.3d

78, 86 (D.C. 2021) (citing D.C. Code §§ 2-1402.11(a)(1)(A), 2-1402.61(a)). DCHRA retaliation

claims, like those brought under Title VII, trigger the familiar McDonnell-Douglas burden-

shifting framework. See Bryant v. District of Columbia, 102 A.3d 264, 267–68 (D.C. 2014)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under this framework, a

plaintiff must first establish a prima facie case of retaliation by showing that: (1) she engaged in

statutorily protected activity; (2) her employer took a materially adverse action; and (3) a causal

link connects the two. Id. at 268. “Evidence of retaliation may be direct or circumstantial,” but

“[b]efore a factfinder can infer causation, there must be evidence that the employer was aware of

the protected activity.” Id.

If a plaintiff establishes her prima facie case, the burden shifts to the employer to produce

a “legitimate, nondiscriminatory reason” for its actions. Jones v. Bernanke, 557 F.3d 670, 677

8
The parties dispute whether defendants had knowledge of Farmer’s problematic behavior before plaintiff
was fired. Relying on McMullen’s deposition testimony, plaintiff contends that other employees had previously
complained about Farmer’s behavior. See Pl.’s Opp’n at 2 (citing McMullen Dep. at 34:1–36:7), 11–12.
Defendants, in response, argue that the deposition testimony, read in its full context, showed that an employee had
made a complaint but “chose not to provide details about it” or “pursue it further,” and thus defendants did not have
“knowledge of Farmer engaging in behavior that would be considered harassment.” Defs.’ Reply at 1–2. While the
question of defendants’ knowledge is a dispute of fact, this is not material because Farmer was undisputedly
plaintiff’s supervisor. In general, “[a]n employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the
employee.” Faragher, 524 U.S. at 807. The existence of respondeat superior in the context of harassment by a
supervisor, however, is an affirmative defense for which the employer has the burden of proof—not, as framed here,
part of plaintiff’s case. See Jones v. Dep’t of Corr., 429 F.3d 276, 279 (D.C. Cir. 2005). In contrast, “[a]n employer
may be held liable for the harassment of one employee by a fellow employee (a non-supervisor) if the employer
knew or should have known of the harassment and failed to implement prompt and corrective action.” Curry v.
District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999).

14
(D.C. Cir. 2009) (citation omitted). If the employer does so, “the burden-shifting framework

disappears, and a court reviewing summary judgment looks to whether a reasonable jury could

infer retaliation from all the evidence, which includes not only the prima facie case but also the

evidence the plaintiff offers to attack the employer’s proffered explanation for its action and

other evidence of retaliation.” Id. (alteration in original accepted and citation omitted). At this

final stage, “the only question is whether the employee’s evidence creates a material dispute on

the ultimate issue of retaliation either directly by showing that a discriminatory reason more

likely motivated the employer or indirectly by showing that the employer’s proffered explanation

is unworthy of credence.” Id. at 678 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460

U.S. 711, 716 (1983)); see also Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016)

(explaining that plaintiff survives summary judgment “by providing enough evidence for a

reasonable jury to find that the employer’s proffered explanation was a pretext for retaliation or

discrimination”).

Defendants do not argue that plaintiff failed to establish a prima facie case of retaliation.

Rather, they contend that a legitimate nondiscriminatory reason for plaintiff’s termination

existed: “[t]he contract for the Blackbird Apartments, where [plaintiff] had been working, was

terminated, and she was laid off as a result.” Defs.’ Mem. at 8. The “central question” is thus

whether plaintiff has produced sufficient evidence for a reasonable jury to find that defendant’s

asserted non-discriminatory reason was not the actual reason for terminating plaintiff’s

employment. Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also

Hernandez v. Pritzker, 741 F.3d 129, 133 (D.C. Cir. 2013). Whereas defendants have met their

burden of producing a legitimate nondiscriminatory reason, plaintiff has not met her subsequent

burden of persuading that the reason was pretext for discrimination.

15
 Rather than bolstering her affirmative case, plaintiff attempts “indirectly . . . [to] show[]

that the employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affs. v.

Burdine, 450 U.S. 248, 256 (1981). Specifically, she argues that “McMullen testified that the

‘contract did not end’ and Cunningham was not terminated for this reason.” Pl.’s Opp’n at 13

(emphasis omitted). Plaintiff, however, oversimplifies the record. McMullen first testified that

he “do[es] not recall with specificity” why plaintiff was terminated but “believe[d] there was an

allegation from a manager that she was sleeping on post,” McMullen Dep. at 24:12–14, but he

later “correct[ed] [his] previous answer and state[d] that, yes, Ms. Cunningham was, in fact, laid-

off when we lost the contract in Southwest DC,” id. at 48:4–7. He then explained his confusion:

“To the best of my knowledge and recollection, this is how I got confused earlier. There was an

allegation that Ms. Cunningham was found asleep at the post in the back loading dock that was

witnessed by a property manager, which led to the contract’s termination.” Id. at 55:8–13; see

also id. at 56:4–5 (“To the best of my knowledge and recollection, the contract did end.”).

To be clear, the conclusion that defendants have met their burden of production does not

turn on any credibility determination for McMullen, which is outside the Court’s prerogative.

Rather, it turns on the employer’s low burden at this stage of the McDonnell-Douglas

framework, which is one of production, not persuasion. See Burdine, 450 U.S. at 257–58

(explaining that “limiting the defendant’s evidentiary obligation to a burden of production,” i.e.,

an obligation only to “articulate—not prove—a legitimate, nondiscriminatory reason,” will not

“unduly hinder the plaintiff”).

McMullen’s deposition is further supported by the following interrogatory response:

Question: Describe in detail each legitimate non-discriminatory reason for why
Plaintiff was terminated by Defendant.

16
 Answer: Defendant’s supervisor at the time advised us that Plaintiff was laid off
due to contract ending. She was hired for a contract and when that contract ended,
her job also ended.”

Shasthra Interrogs. & Producs. at 2; see also Fed. R. Civ P. 33(c) (“An answer to an

interrogatory may be used to the extent allowed by the Federal Rules of Evidence.”); Dews-

Miller v. Clinton, 707 F. Supp. 2d 28, 54 (D.D.C. 2010) (explaining that affidavits from

supervisors “attesting to the proffered legitimate, nondiscriminatory reasons” is sufficient to shift

the burden back to plaintiff); Budik v. Howard Univ. Hosp., No. 12-cv-1191, 2014 WL

12942710, at *2 (D.D.C. July 17, 2014) (similar). Defendants’ justification is also supported by

an email from McMullen to senior executives at Ramjay stating: “Cunningham was laid off

when we lost blackbird, and not re-employed.” Defs.’ Mem., Ex. 5, ECF No. 28-5. Although

plaintiff concedes, in her deposition, that she “did hear” that the Blackbird Apartments contract

was lost, Cunningham Dep. at 79:5–6, she speculates, in opposition, that “McMullen created the

termination reason for this lawsuit,” Pl.’s Opp’n at 13. Whether plaintiff is correct that the loss

of the Blackbird Apartments contract was not the real reason for her termination and that the

timing of both events was merely coincidence, an employer “need not persuade the court that it

was actually motivated by the proffered reason”; “[i]t is sufficient if the defendant’s evidence

raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Burdine, 450

U.S. at 254. Whereas defendants’ evidence does just that, plaintiff makes no real attempt and

thus fails to satisfy her subsequent burden of demonstrating that defendants’ proffered reason is

pretext of discrimination.

Accordingly, defendants’ motion for summary judgment on the retaliation claim is

granted.

17
IV. CONCLUSION

For the foregoing reasons, even with all facts and assumed inferences drawn in her favor,

plaintiff can neither show that Farmer’s conduct, though unprofessional, was sufficiently severe

or pervasive to alter the terms, conditions, or privileges of her employment, nor satisfy her

burden, at the third step of the McDonnell-Douglas framework, to illustrate that defendants’

legitimate, nondiscriminatory reason for terminating plaintiff—the loss of their contract with the

Blackbird Apartments, where plaintiff was staffed—was pretext for discrimination.

Accordingly, defendants’ Motion for Summary Judgment, ECF No. 27, is GRANTED.

An Order consistent with this Memorandum Opinion will be filed contemporaneously.

Date: December 20, 2023

__________________________
BERYL A. HOWELL
United States District Judge

18