Burns v. Johnson

• Decision Date: 09 May 2014
• Docket Number: Civil Action No. 13–12155–JLT.
• Citation: Burns v. Johnson, 18 F.Supp.3d 67 (D. Mass. 2014)
• Parties: Kathleen BURNS, Plaintiff, v. Jeh JOHNSON and David Johnson, Defendants.
• Court: U.S. District Court — District of Massachusetts

18 F.Supp.3d 67

Kathleen BURNS, Plaintiff

v.Jeh JOHNSON and David Johnson, Defendants.

Civil Action No. 13–12155–JLT.

United States District Court, D. Massachusetts.

Signed May 9, 2014.

Jared S. Burke, Timothy M. Burke, Law Offices of Timothy M. Burke, Needham, MA, for Plaintiffs.

Christine J. Wichers, United States Attorney's Office, Boston, MA, for Defendants.

MEMORANDUM

YOUNG, District Judge.

I. Introduction

The plaintiff Kathleen Burns (“Burns”) brings this suit against the defendants Jeh Johnson, the Secretary of Homeland Security (the “Secretary”), who is sued in his official capacity only; and David Johnson (“Johnson”), who is sued in his official and individual capacities, for alleged gender discrimination, gender harassment, and other related claims (collectively “the Defendants”).

Presently at issue is the Defendants' Motion to Dismiss All Claims Except Count 1 Against the Secretary [# 18]. For the following reasons, the Motion is ALLOWED IN PART and DENIED IN PART.

II. Background¹

Burns worked in the Boston Field Office of the Federal Air Marshal Service (“FAMS”).² FAMS is part of the Transportation Security Administration, which falls within the Department of Homeland Security.³ Most of the employees in the FAMS Boston office are law enforcement officers.⁴

Burns, a civilian employee,⁵ worked part time⁶ as a Program Assistant in the operations division.⁷ As part of her job, Burns was responsible for “the scheduling and assignment of Air Marshals to security missions on international flights throughout the world.”⁸ In performing this work, Burns coordinated with the international branch of FAMS.⁹

The head of the Boston office is the Supervisory Agent in Charge (“SAC”).¹⁰ On May 7, 2012, Johnson joined the Boston office as the new SAC.¹¹ Soon thereafter, Johnson began asking other employees about Burns' job duties and her part-time schedule.¹² After speaking with the international branch of FAMs, Johnson complimented Burns, saying that “everyone there spoke very highly” of her and her job performance.¹³ Nevertheless, because the international planning staff told Johnson that they preferred to deal directly with Burns, and she worked only four nights per week, Johnson asked Burns how she handled international issues that arose on her days off.¹⁴ Burns responded that she handled such issues by phone or email, in both cases using her work-issued Blackberry.¹⁵ Johnson responded that he was “not paying [Burns] to work from home.”¹⁶ Johnson also questioned whether it was fair that Burns received extra pay in the form of a night-shift differential and Sunday pay.¹⁷

Supervisory Federal Air Marshal (“FAM”) James Ouellette and another FAM felt that Johnson did not approve of a civilian employee being responsible for assigning and scheduling international missions.¹⁸ Johnson called the Boston office's scheduling model “stupid” and proposed that the responsibility of scheduling missions on international flights go to Supervisory FAMs.¹⁹ On or about May 31, 2012, Johnson officially implemented this change, taking away Burns' responsibility for scheduling security missions on international flights and dividing the task among nine male Supervisory FAMs.²⁰ This change left Burns with clerical tasks and other “menial tasks that everyone else assigned to Operations also performed.”²¹

In addition to the change in her job duties, Burns has three other grievances against Johnson. First, he once said, “so you do still work here,” which she interpreted to suggest that she was not performing her job duties.²² Second, Johnson discredited Burns' work ethic, used a “sharp and irritated tone” with her, and on one occasion turned his back to her.²³ Third, Johnson often walked around the office carrying a baseball bat, which he allegedly used to intimidate Burns.²⁴

On June 25, 2012, Burns left work on medical leave for anxiety resulting from Johnson's conduct.²⁵ The next day, based “upon the intimidation and hostile working environment created and maintained” by Johnson, Burns “reluctantly” applied for early retirement effective July 31, 2012.²⁶ Burns alleges that she was constructively discharged.²⁷

Burns asserts seven counts against the Defendants: (1) gender-based discrimination; (2) retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) sexual harassment, in violation of Title VII; (6) creation of a hostile work environment; and (7) a violation of Article X of the Massachusetts Declaration of Rights.²⁸ The Secretary has moved to dismiss all claims against him except the first; Johnson has moved to dismiss all claims against him.²⁹

III. Discussion

1. Title VII Claims Against Defendant Johnson

Title VII requires that “all claims be brought against the ‘head of the [federal] department, agency, or unit, as appropriate.’ ”³⁰ Here, Burns has asserted her Title VII claims—Counts 1, 2, 5, and 6—against both defendants. Because Johnson is not the head of the department, agency, or unit at issue, Counts 1, 2, 5, and 6 are dismissed against him. Indeed, Burns assents to this relief.³¹

2. Gender Discrimination

In Count 1, Plaintiff alleges gender discrimination in violation of Title VII.³² Gender discrimination in violation of Title VII can mean one of two things. It can mean that the defendant took a discrete, adverse employment action against the plaintiff because of his or her gender.³³ Such adverse employment action can include failure to promote or termination, including constructive termination.³⁴ Regardless of its form, an “adverse employment action” must “ ‘affect [ ] employment or alter[ ] the conditions of the workplace,’ ”³⁵ and such an action “typically involves discrete changes in the terms of employment, such as ‘hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’ ”³⁶ Gender discrimination in violation of Title VII can also mean that the defendant harassed the plaintiff based on his or her gender and thereby created a gender-based hostile work environment.³⁷

Here, Burns does not identify which type of gender discrimination she is alleging in Count 1. Because Burns alleges a gender-based hostile work environment in Counts 5 and 6, however, this Court assumes that Count 1 alleges the first type of gender discrimination, that is, an adverse employment action based on gender. Although she does not identify an allegedly discriminatory act,³⁸ she appears to allege that her job duties were reduced because of her gender, and, as a result, she was constructively discharged.

As the Defendants concede,³⁹ such a claim survives a Rule 12(b)(6) motion, to the extent that the claim is asserted against the Secretary.⁴⁰

3. Retaliation

Burns alleges in Count 2 that the Defendants retaliated against her in violation of Title VII. Specifically, she alleges that, within one week of when she “voiced her concerns to multiple supervisors about Johnson's conduct and the threatening and intimidating brandishing of a baseball bat,” Johnson retaliated against her by taking away the job duty of scheduling international missions.⁴¹ This alleged retaliation, in turn, resulted in Burns' alleged constructive discharge.⁴²

To prove retaliation in violation of Title VII, a plaintiff must establish that (1) she engaged in an activity protected by Title VII; (2) she suffered an adverse employment action; and (3) a causal connection existed between the two events.⁴³ With regard to the first element, although a plaintiff need not prove the underlying Title VII violation, she “must at the very least have a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ”⁴⁴ Further, a complaint of general misconduct by a supervisor, unrelated to the complainant's race, color, gender, religion, or national origin, is not activity protected by Title VII.⁴⁵

Here, Burns has failed to allege that she engaged in an activity protected by Title VII. Burns' alleged protected activity was her complaint about Johnson's behavior.⁴⁶ She does not allege, however, that when she complained, she said that she believed that Johnson's behavior was based on her gender.⁴⁷ Thus her complaints about Johnson constitute only “mere complaining in general terms”⁴⁸ about “general bad acts”⁴⁹ rather than activity protected by Title VII.

Burns argues that her Complaint is “littered with allegations that the sole motive for taking away Plaintiff's duties and subsequent discharge was based upon her gender.”⁵⁰ Regardless of what Burns now alleges was Johnson's motivation, she does not allege that when she initially complained about Johnson she identified her gender as Johnson's motivation. Her initial complaint did not constitute protected activity under Title VII.

Because Burns fails to allege sufficient facts with regard to a Title VII retaliation claim, Count 2 is dismissed in its entirety.⁵¹

4. Sexual Harassment/Hostile Work Environment

In Count 5 of the complaint, Burns alleges that Johnson sexually harassed her in violation of Title VII.⁵² In Count 6, Burns alleges that she was subjected to a hostile work environment based on her gender in violation of Title VII.⁵³

There are two types of Title VII sexual harassment claims: hostile work environment and “quid pro quo” harassment.⁵⁴ Quid pro quo harassment occurs if “a supervisor uses his superior position to extract sexual favors from a subordinate and, if rebuffed, retaliates by taking action that adversely impacts the subordinate's employment.”⁵⁵ Nothing in the complaint states directly or implies that Burns is alleging quid pro quo harassment, despite her passing reference to this type of harassment in her opposition to the Defendants' motion.⁵⁶ This Court therefore dismisses Count 5 in its entirety, and the following analysis of hostile work environment pertains to Count 6.

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