Jones v. District of Columbia Department of Corrections, 04-7181.

• Decision Date: 15 November 2005
• Docket Number: No. 04-7181.,04-7181.
• Citation: 429 F.3d 276
• Parties: Angela R. JONES, Appellant v. DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, et al., a/k/a District of Columbia Department of Corrections, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 276

429 F.3d 276

Angela R. JONES, Appellant v. DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, et al., a/k/a District of Columbia Department of Corrections, Appellees.

No. 04-7181.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2005.

Decided November 15, 2005.

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.

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 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 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 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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (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, 118 S.Ct. 2257—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, 118 S.Ct. 2257; Faragher, 524 U.S. at 790-91, 118 S.Ct. 2275. 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, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275 (citation omitted).

Here, Jones has not demonstrated a tangible employment 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, 118 S.Ct. 2257. 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, 118 S.Ct. 2257, 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, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275. 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:

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