Moret v. Harvey, No. CIV.A. AW-04-3043.
| Decision Date | 02 August 2005 |
| Docket Number | No. CIV.A. AW-04-3043. |
| Citation | 381 F.Supp.2d 458 |
| Parties | Adriana MORET (n'ee Valbuena), Plaintiff, v. Francis J. HARVEY, Secretary of the Army, Defendant. |
| Court | U.S. District Court — District of Maryland |
R. Scott Oswald, Employment Law Group PLLC, Washington, DC, for Adriana Moret n'ee Valbuena, Plaintiff.
John Walter Sippel, Jr, Office of the United States Attorney, Baltimore, for Walter Reed Army Medical Center, Les BrownLee Acting Secretary of the Army, Defendants.
Plaintiff Adriana Moret, n'ee Valbuena, ("Plaintiff" or "Moret") brings this employment discrimination action against her employer alleging claims discrimination on the basis of sex and retaliation for having engaged in a protected activity, in violation of 42 U.S.C. § 2000(e), et seq., ("Title VII"). Currently before the Court are Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment [17] and Plaintiff's Motion to Stay or, in the alternative, Motion for Summary Judgment and to Permit Discovery Pursuant to Rule 56(f) [20]. The Court has reviewed the pleadings and applicable law and has determined that a hearing is unnecessary. See Local Rule 105(6) (D.Md.2004). For the following reasons, Defendant's Motion for Summary Judgment is granted-in-part, and denied-in-part, and Plaintiff's Motion to Stay is denied-as-moot.
The following facts are taken in the light most favorable to the nonmovant. In September 1999, Moret interviewed with Lieutenant Colonel Olin Ohrt ("Ohrt"). Because Ohrt was unable to offer Moret a paid position, she offered to volunteer her services without remuneration until a paid position became available. Upon receiving Moret's offer of services, Ohrt sent Moret to Dr. Ho Chung ("Dr.Chung"), Chief of the Department of Pharmacology at the Walter Reed Army Institute of Research ("WRAIR"), to discuss volunteer positions. Instead of accepting her offer of voluntary service without remuneration, Dr. Chung hired Moret for a paid Research Assistant position and offered to pay her out of his own contract money.
From September 1999 until May 2000, Moret performed her job functions without incident or discipline. On May 11, 2000, Moret received a message at home from Dr. Chung requesting her to come in to his office the next day to discuss the renewal of her new permanent contract. On May 12, 2000, Moret went to Dr. Chung's office to discuss her pay and benefits. Dr. Chung was alone in his office and he shut the door behind Moret. Dr. Chung sat down at his desk and asked Moret how much money she would like to make. Moret responded by asking what was customary for a person with her experience. Dr. Chung explained that it was irrelevant what others made because he had the power to pay her whatever she wanted. Dr. Chung further explained that he had a lot of connections within the Walter Reed supervisory command chain and would be able to give Moret full benefits. During the same meeting, Dr. Chung asked Moret if she had ever seen a picture of his children, whereupon he produced a photograph of his wife and two adult children. Dr. Chung then explained that he could envision Moret and his oldest son dating. Dr. Chung then picked up the phone and called his son, and he forced Moret to talk to his son on the telephone. While she was still on the telephone, Dr. Chung whispered to Moret not to tell anyone he had done this.
Also, during the May 12, 2000, meeting Dr. Chung asked Moret if she had "strong fingers." Dr. Chung explained to her that he needed to relieve some back pain and that he wanted to teach Moret acupressure techniques. Dr. Chung told her that he would bring in a book so she could look at it and learn about acupressure and massage. Dr. Chung then asked Moret if she would come over to his house and massage him. Dr. Chung told Moret not to say anything to anyone, especially anyone "American" because they would think of it as sexual harassment. Dr. Chung said that since Moret is not American that she would be "OK" doing what he asked. As he suggestively pointed to his buttocks, Dr. Chung told Moret that he especially needed a massage there. Dr. Chung alternated discussing Moret's salary and benefits with asking Moret if she had "strong fingers," and Dr. Chung especially emphasized to Moret that he could "make things happen for her." Moret walked out of Dr. Chung's office without saying a word.
Shortly after this incident, in August 2000, coincident with the time to finalize Moret's second year contract, Dr. Chung offered Moret less than he had originally offered, which was even less than what she was making at the time. Dr. Chung also informed Moret that he would not provide her with benefits.
On October 17, 2000, Dr. Chung came into Moret's office and started talking to her about his personal domestic issues. Dr. Chung asked Moret again if she had "strong fingers." This time Moret told him "no." Moret offered to get Dr. Chung a number from a friend who goes to a professional for acupressure. Dr. Chung responded that he did not want to pay for professional services, but instead he wanted Moret to perform the massage and acupressure services. In the same conversation, Dr. Chung again told Moret that he would deliver his acupressure book to her so that she could acquire the necessary skills to enable her to administer his nude massage. Dr. Chung reminded Moret that he had the power to appoint her to a civil service position that would accord her full health benefits. Dr. Chung directly implied that he would only appoint her to such a civil service position if she would comply with his requests. Moret responded to Dr. Chung's entreaty that he might consider instructing his wife on massage therapy.
After these interactions, Moret was forced to work with Dr. Chung on a daily basis. Dr. Chung continuously gawked at Moret, making her feel very uncomfortable and nervous. Specifically, Moret gained weight, was frightened for her safety, vomited on a weekly basis thinking of Dr. Chung, developed cystic acne, and had a strained relationship with her fiancé.
After several months of enduring Dr. Chung's continuous and unseemly conduct, on January 9, 2001, Moret reported Dr. Chung to Colonel Wilbur Milhous ("Milhous"), the Director of the Division of Experimental Therapeutics at WRAIR. Upon learning of Moret's allegations, Milhous blamed Moret for Dr. Chung's conduct, and dismissively stated that if one of his daughters had been subject to Dr. Chung's advances, his daughters would have handled Dr. Chung's entreaties more deftly. Milhous went on to "test" Moret on whether she knew the difference between sexual harassment and playful banter by telling Moret a fable about how monkeys interact.
Moret complained about Milhous to Col. John Brown ("Brown"), Executive Officer at WRAIR, who assured her that he would take affirmative steps to resolve the situation. Thereafter, Brown told Moret that he had ordered Milhous on January 26, 2001, to remove Dr. Chung from Moret's worksite so that Dr. Chung would have no further contact with Moret while an investigation was conducted. Brown explained that the purpose of the move was to allow Moret to move freely in and out of the General Pharmacology Department without being harassed by Dr. Chung. However, between January 30, 2001 and February 9, 2001, Moret discovered that Dr. Chung was still working in her building. On February 9, 2001, Moret filed an informal complaint with the EEO office at the WRAIR.
On February 20, 2001, Moret realized that Dr. Chung was never removed from his office. Brown called the Division of Experimental Therapeutics and talked to Ohrt, who informed him that Dr. Chung was not moved to another office as directed.
After speaking with Ohrt, Brown called Milhous at home and asked him who modified the directive to have Dr. Chung moved to another office. Milhous stated that he modified the directive. On February 21, 2001, Milhous stopped Moret while she was on her way into work and asked to "have a word with her." Milhous informed Moret, in the middle of public hallway, that he was placing Dr. Chung on "office arrest," meaning Dr. Chung could not leave his office during business hours, instead of moving Dr. Chung to another building as Brown had directed. Milhous also announced that he was moving Moret's inbox to a different part of the office, and Moret was to process vouchers and place orders with a different person.
WRAIR initiated a three part "military investigation" on February 21, 2001. The purpose of this investigation was to determine: (1) whether Dr. Chung, in his capacity as Chief of the Department of Pharmacology, sexually harassed two female contract employees by either creating a hostile work environment, or engaging in quid pro quo sexual harassment; (2) whether WRAIR management properly addressed the sexual harassment allegations when the female contract employees documented the allegations; and (3) whether there existed a need for additional training for managers, federal government employees, and contract employees regarding how to report and respond to sexual harassment allegations. On March 21, 2001, the first part of the investigation was concluded and the investigator found that the preponderance of evidence indicated that Dr. Chung sexually harassed Moret. The investigator also declared that Moret was a credible witness who described the incidents in detail.
On April 17, 2001, WRAIR initiated the second part of this military investigation to determine whether or not Milhous properly handled Moret's complaint and instituted proper prophylactic measures. The next day, Moret met with EEO officer Mark Loberg ("Loberg") to discuss the findings of the first investigation phase. At this meeting, Loberg presented Moret with a "Notice of Right to File a Formal Complaint" for her to sign, and he affirmatively stated...
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