Bergbauer v. Mabus

• Decision Date: 27 March 2013
• Docket Number: Civil No. 09–1032 (RCL).
• Citation: 934 F.Supp.2d 55
• Parties: Tammy BERGBAUER, Plaintiff, v. Ray MABUS, Secretary of the Navy, Defendant.
• Court: U.S. District Court — District of Columbia

934 F.Supp.2d 55

Tammy BERGBAUER, Plaintiff,

v.Ray MABUS, Secretary of the Navy, Defendant.

Civil No. 09–1032 (RCL).

United States District Court, District of Columbia.

March 27, 2013.

R. Mark Dare, Mark Edward Papadopoulos, Isler Dare Ray Radcliffe & Connolly, PC, Vienna, VA, Wyneva Johnson, U.S. Attorney's Office for DC, for Defendants.

Patrick M. Regan, Paul J. Cornoni, Regan Zambri & Long, PLLC, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Defendant Secretary of the Navy (“Navy”) renews its Motion [57] for Summary Judgment as to plaintiff Tammy Bergbauer's claim of hostile work environment based on sexual harassment and retaliation.

Bergbauer sued Navy and Rear Admiral (“RDML”) Charles H. Goddard in June 2009, alleging sexual harassment and hostile work environment claims under Title VII (Counts I and II) and the D.C. Human Rights Act (Counts III and IV), as well as battery against Goddard and intentional infliction of emotional distress against Goddard and Navy. The Court granted Goddard's motion [18] to dismiss and granted in part Navy's motion [7] to dismiss,¹see Order, ECF No. 38; only one count remains against Navy alleging a hostile work environment based on sexual harassment and retaliation.

Upon consideration of Navy's renewed motion for summary judgment, Bergbauer's Opposition [60], Navy's Reply [64], the entire record in this case, and the applicable law, the Court will GRANT the motion for summary judgment and dismiss the case. Bergbauer has not shown conductsufficiently severe or pervasive to make a case of hostile work environment based on sexual harassment. While her retaliatory hostile work environment claim presents a closer case, she has not shown that the alleged conduct was sufficiently severe or pervasive or that it was causally connected to her protected activity.

I. BACKGROUND

Plaintiff Tammy Bergbauer was hired as a civilian program analyst, subject to a one-year probationary period, by the Naval Sea Systems Command (NAVSEA) Headquarters of the Department of the Navy in July 2007. Def.'s Stmt. Mat. Facts Not in Dispute ¶¶ 1–2, ECF No. 57–1 [hereinafter Def.'s SMF]; Pl.'s Resp. to Def.'s SMF ¶¶ 1–2, ECF No. 60 [hereinafter Pl.'s SMF]. Bergbauer became Director of Corporate Operations two months later and had human resources responsibilities. Id. Bergbauer's direct supervisor was then Alan Weyman; Weyman and Bergbauer reported to RDML James McManamon. Def.'s SMF ¶¶ 3–4; Pl.'s SMF ¶¶ 3–4. Bergbauer also reported to RDML Goddard. Pl.'s SMF ¶ 4.

A. Alleged Hostile Work Environment Based On Sexual Harassment²

Bergbauer's sexual harassment hostile work environment claim stems from events occurring from fall 2007 through April 2008. Specifically, Bergbauer alleges that her co-worker Cameron Towner made unspecified compliments regarding her appearance, “several inappropriate suggestive comments,” and one sexually explicit remark. Def.'s SMF ¶ 6, Pl.'s SMF ¶ 6. Towner allegedly told Bergbauer that his ideal way to spend a day of bad weather would be with “Disco lights, White Russians, tomatoe [sic] soup, grilled cheese, you & me.” Def.'s MSJ, Ex. 5, ECF No. 57 (including Towner's acknowledgement that he discussed soup and sandwiches but not that he added “you and me”). Towner also allegedly said, “I've always wanted to be like Mr. Weyman ... and have you in this office behind closed doors, all alone, all by myself.” Id. On another occasion, Towner encouraged Bergbauer to attend a work tailgate, stating that she “would have a good time” and that he had “special liquor” for the two of them to “get liquored up before the game.” Id. Finally, on April 22, 2008, when Bergbauer stated that she needed gum to freshen her breath after eating tuna, Towner told a story about why he had stopped eating tuna that involved a crass joke about oral sex. Id.

Bergbauer also alleges that, during official travel to San Diego, CA, on February 8, 2008, RDML Goddard inappropriately touched and kissed her. Def.'s SMF ¶ 5, Pl.'s SMF ¶ 5. Specifically, Bergbauer, Goddard, and two other individuals employed by Navy, went out for dinner, drinks, and dancing after a work event. The group drank heavily, with each person consuming five shots of tequila along with multiple beers and/or margaritas. Def.'s MSJ, Ex. 4; see also Pl.'s Opp'n, Ex. P, at 2, ECF No. 60. During the evening, Bergbauer alleges that Goddard inappropriately touched her by sliding his hand around her back; giving her waist “a slight squeeze ... as if to emphasize certain points and/or to assure he had [her] attention ...”; pushing his socked foot between her legs during dinner; trying to grab her hand or arm while the two walked; putting his hand below her shirt to touch her back; putting his hand along her waist and moving upward toward her breast; and finally kissing her “on the mouth for a split second before he pushed his tongue into [her] mouth.” Def.'s MSJ, Ex. 4 at 3–7. The other individuals present did not recall seeing any inappropriate touching or kissing and Goddard said he could not recall whether he had touched her. Pl.'s Opp'n, Ex. P at 8–11, 36. At this stage, the Court assumes the truth of Bergbauer's evidence regarding the evening.³

On February 10, 2008, Bergbauer reported Goddard's conduct to her mentor, Sam Samimi, a supervisor with the Department. Pl.'s Opp'n, Ex. C, ¶¶ 4–5, 7. Samimi then reported it to Bergbauer's supervisor, Alan Weyman, though the content or extent of that conversation is not in the record. Id. ¶ 6. Bergbauer has made conflicting statements regarding whether she intended to pursue corrective action or invoke the EEOC process when she reported Goddard's conduct to Samimi. Because this is not ultimately relevant to the Court's reasoning or decision, the Court does not consider it further.

After Towner's sexually explicit remark to Bergbauer on April 22, 2008, she complained to Weyman and asked him to speak with Towner. Def.'s SMF ¶ 7, Pl.'s SMF ¶ 7. When Towner was not immediately disciplined, Bergbauer asked Weyman to speak to RDML Goddard, who was Towner's direct supervisor. Id. Bergbauer asked that Towner be removed from employment in light of the Navy's “zero tolerance” policy on sexual harassment.

Within three days, Navy had directed an investigation into the allegations against Towner and he was subsequently removed from employment. Def.'s SMF ¶¶ 8, 10; Pl.'s SMF ¶¶ 8, 10.

In mid-May 2008, Bergbauer was questioned by the Naval Inspector General (NAVINSGEN) after an anonymous third-party complained about Goddard's conduct on the San Diego trip. Def.'s SMF ¶ 11; Def.'s MSJ, Ex. 6. As a result, Bergbauer personally reported Goddard's conduct to Weyman for the first time. Def.'s MSJ, Ex. 6. The NAVINSGEN investigation concluded that, on several occasions, Goddard had been publicly intoxicated in the presence of subordinates and that the “instance of inappropriate touching of Ms. Bergbauer while intoxicated constituted being drunk and disorderly and was conduct unbecoming an officer and gentleman, in violation of Article 133, UCMJ.” Pl.'s Opp'n, Ex. P, at 38. Goddard was relieved of his position on July 3, 2008. Def.'s SMF ¶ 13; Pl.'s SMF ¶ 13.

B. Alleged Retaliatory Hostile Work Environment

On July 1, 2008, upon Weyman's retirement, RDML McManamon met with Bergbauer and informed her that Mark Deskins would be her new supervisor. Def.'s SMF ¶ 18; Pl.'s SMF ¶ 18. The Admiral told Bergbauer, “you're going to make me happy ... you're not going to do to me what you did to the other admiral ... your supervisor is going to put in your appraisal what I tell him to put in your appraisal.” Id. Bergbauer “begged” McManamon not to assign her to Deskins because Deskins had previously “made it clear that he didn't like [her]” and spoke down to her staff. Def.'s MSJ, Ex. 3, at 29–30; see also Pl.'s Opp'n, Ex. L, at 4 (in sworn testimony to NAVINSGEN on July 8, 2008, Bergbauer stated, “Everyone knew that ... [we] ... just don't get along at all.”). Bergbauer later made a presentation to McManamon, Weyman, and two others to provide examples of Deskins' interference with “the processes and duties and responsibilities that [fell] under [her] rein, and how it had been detrimental.” Def.'s MSJ, Ex. 2, at 114–115.⁴ Bergbauer was nevertheless assigned to Deskins.

On July 3, 2008, the day Goddard was relieved of his position, Goddard met with a number of employees. According to the parties' statements of material facts, Goddard announced he was being removed because Bergbauer had “gone after him.” Def.'s SMF ¶ 20; Pl.'s SMF ¶ 20.⁵ Prior to that time, only a small group of people knew that Bergbauer had complained about Goddard. Id.

While Bergbauer was working under Deskins, she alleges that he engaged in a number of actions in retaliation for her complaint against Goddard. On July 17, 2008, the last day of Bergbauer's one-year probationary period, Deskins spoke with RDML McManamon about terminating her, as he had done “on a daily basis throughout her probationary period.” Def.'s SMF ¶ 21; Pl.'s SMF ¶ 21. Deskins gave Bergbauer at least one assignment to complete in a short period of time and told her to “figure it out” when she said she would have to work over the weekend. Def.'s SMF ¶ 22; Pl.'s SMF ¶ 22. He told her to post certain information on the wall of a conference room and when an admiral complained that the information should have been shared with him first, Deskins did not come to Bergbauer's defense. Def.'s SMF ¶ 23; Pl.'s SMF ¶ 23. Deskins requested cancellation of the selection certificate for two executive assistants and put a stop on a recruitment action without informing Bergbauer. Def.'s SMF ¶ 24; Pl.'s SMF ¶ 24. He also sent emails about work-related matters for which Bergbauer had responsibility without copying her, and went to meetings without telling her. Def.'s SMF ¶ 28; Pl.'s SMF ¶ 28. He asked her to complete redundant tasks and complained to senior leadership...