Bess v. Dist. of Columbia
| Decision Date | 15 October 2021 |
| Docket Number | Civil Action 19-3152 (JEB) |
| Parties | LAVERN BESS, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff LaVern Bess works at the Correctional Treatment Facility for the District of Columbia Department of Corrections. She brings this suit against the District alleging that DOC treated her shabbily in retaliation for her efforts to expose discriminatory behavior and separately failed to accommodate a disability. This retaliation, according to Bess, has taken the form of denials of overtime opportunities, delayed promotion, and a hostile work environment, all in violation of Title VII and the D.C. Human Rights Act. Bess also alleges that the District violated the Rehabilitation Act when it denied her reasonable request not to be assigned to work around inmates who might have COVID-19 because her diabetes puts her at increased risk of severe symptoms. The District now moves for summary judgment on all four of Bess's claims, and Plaintiff cross-moves for summary judgment on the Rehabilitation Act count. Concluding that Bess's evidence is insufficient to create a genuine dispute of fact on the delayed-promotion and hostile-work-environment retaliation claims, the Court will grant summary judgment to the District on those counts. The remaining two - the denial-of-overtime and Rehabilitation Act claims - may proceed to trial.
As the relevant facts are discussed in detail in the forthcoming Analysis section, the Court here broadly outlines the background to the suit. Bess works as a correctional officer for the D.C. Department of Corrections at the Correctional Treatment Facility. See ECF No. 23 (Amended Compl.) ¶¶ 16, 30, 34; ECF No. 28-1 (Def. Statement of Material Facts), ¶ 1; ECF No. 29-3, Exh. 1 (Pl Interrogatories Responses) at 3. She previously worked for the District from 1992 until 1999. See Am. Compl., ¶ 29; Def. SMF, ¶¶ 2-3. During that time, she was “a class member and active participant” in a lawsuit that “involved claims of systematic sex discrimination within the DOC.” Am. Compl., ¶¶ 18-19; see Neal v. Director, D.C. Department of Corrections, No. 93-2420, 1995 WL 517248 (D.D.C. Aug. 9, 1995). The parties in that case ultimately settled and entered into a consent decree. See Am. Compl., ¶¶ 21-22.
In early 2016, Bess was hired by Correctional Corporation of America, which operated D.C. facilities under a contract with DOC. Id., ¶¶ 30-31. The District ended its relationship with CCA in mid-2016 but offered direct employment to CCA's employees. Id., ¶ 32. Bess alleges that she was initially informed by DOC Human Resources officers that she was not eligible for reemployment, and she asked whether that was due to her participation in the Neal case. See Def. SMF, ¶¶ 5-6. Bess was ultimately given an offer, however, which she and at least four others accepted. See Am. Compl., ¶ 33. Since her rehiring as a correctional officer at CTF, she alleges that she has been subject to retaliation for her participation in the Neal suit, as well as for the filing of an internal EEO complaint in 2017, an EEOC charge in 2019, and this lawsuit in October 2019. Id., ¶¶ 29-73; ECF No. 29 (Pl. Opposition/Cross-Motion for Summary Judgment) at 3. According to Bess, this retaliation has taken the form of, among other things, unfavorable job assignments, denial of overtime opportunities, rude and disrespectful treatment by her supervisors, and a delayed promotion timeline. See Am. Compl., ¶¶ 37, 41, 45-73.
Plaintiff thus filed this action in October 2019, alleging three counts: 1) “failure to assign overtime because of protected activity, ” 2) lower salary because of the same, and 3) “retaliatory hostile work environment, ” all in violation of Title VII and the DCHRA. See ECF No. 1 (Complaint), ¶¶ 62-74. In July 2020, Bess successfully amended her Complaint to add a failure-to-accommodate claim under the Rehabilitation Act. See Am. Compl., ¶¶ 107-20. According to Bess, who has diabetes, the District improperly denied her request to minimize her exposure to inmates likely to be COVID-positive. Id., ¶¶ 74-93.
The District now moves for summary judgment on all four counts. See ECF No. 28 (Def. Motion for Summary Judgment). Bess filed an Opposition on the retaliation counts and a Cross-Motion for Summary Judgment on the failure-to-accommodate claim. See Pl. Opp./Cross-MSJ.
Summary judgment must 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in her favor. Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant's evidence is “merely colorable or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted).
When both parties move for summary judgment, the court shifts the beneficiary of the factual inferences. Once it “determines that one party is not entitled to summary judgment, it changes tack on the cross motion and gives the unsuccessful movant all of the favorable factual inferences that it has just given to the movant's opponent.” Clark v. Vilsack, No. 19-394, 2021 WL 2156500, at *2 (internal quotation marks omitted). It is of course “possible for a court to deny summary judgment to both sides.” Id. The Court will reach that result here on the Rehabilitation Act count.
Bess brings two types of claims. Counts I-III of the Amended Complaint allege that she was retaliated against for her protected activity, in violation of Title VII and the DCHRA. See Am. Compl., ¶¶ 94-106. Count IV alleges a failure to accommodate her diabetes and the increased risk of severe illness from COVID-19 in violation of the Rehabilitation Act. Id., ¶¶ 107-14. The Court considers these two issues separately.
As claims under the DCHRA are analyzed under the same framework as those under Title VII, the Court will conduct the analysis for both simultaneously. See Burley v. National Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015) (plaintiff's Title VII and DCHRA claims “rise and fall together”); Bowie v. Gonzales, 433 F.Supp.2d 24, 34 (D.D.C. 2006).
Title VII prohibits an employer from retaliating against an employee “because [the employee] has opposed any practice made an unlawful employment practice” under the statute. See 42 U.S.C. § 2000e-3(a). In cases like this one, in which there is no direct evidence of retaliation, the Court must begin with the familiar three-part burden-shifting framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012). Under this framework, the plaintiff has the initial burden of establishing by a preponderance of the evidence a prima facie case of retaliation.
To do so, “a plaintiff must show: (1) that he opposed a practice made unlawful by [statute]; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action because the employee opposed the practice.” Id. at 1380 (internal quotation marks omitted). In cases where the defendant offers a legitimate, non-retaliatory reason for its decision, the court “need not - and should not - decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, it simply looks at whether the employee has produced sufficient evidence for a reasonable jury to conclude that the asserted non-retaliatory justification for the action is a pretext for retaliation. Guajacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010). In this case, however, Defendant does not offer a reason for any action or decision; instead, it relies on Plaint...
To continue reading
Request your trial