Swann v. Office of the Architect of the Capitol

• Decision Date: 10 November 2014
• Docket Number: Case No. 1:12–cv–01320 CRC
• Parties: Audrey Swann, Plaintiff, v. Office of the Architect of the Capitol, Defendant.
• Court: U.S. District Court — District of Columbia

73 F.Supp.3d 20

Audrey Swann, Plaintiff

v.Office of the Architect of the Capitol, Defendant.

Case No. 1:12–cv–01320 CRC

United States District Court, District of Columbia.

Signed November 10, 2014

Jeffrey Howard Leib, Washington, DC, for Plaintiff.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Plaintiff Audrey Swann's career as an electrician in the House Office Buildings was short-circuited in 2012 when she was terminated by her employer—the Office of the Architect of the Capitol (“OAC”)—based on an Inspector General report that concluded she had falsified her employment application. Swann responded with two lawsuits against the OAC for gender discrimination and retaliation. In this, the first of the two, she alleges that the OAC discriminated and retaliated against her for having filed two prior discrimination suits against it.¹ The OAC has moved to dismiss Swann's Complaint, or, in the alternative, for summary judgment. While sparks certainly flew during Swann's tenure at the OAC, the Court discerns little fire in her allegations. It therefore will dismiss or grant summary judgment for the OAC on all 22 counts of the Complaint.

I. Background

This marks Swann's third lawsuit against the OAC. In the first, 09–cv–1568 (“Swann I ”), she alleged that the OAC discriminated based on her gender by denying her a promotion, unfairly applying work rules, and failing to provide her separate female locker room facilities in the electrical shop of the House Office Buildings (“HOB”). In the second, 11–cv–0419 (“Swann II ”), she alleged that the OAC discriminated and retaliated against her after she had a confrontation with a supervisor. The court granted summary judgment in favor of the OAC in both cases, which are now on appeal.

After Swann II was filed, the OAC's Office of Inspector General (“OIG”) received an anonymous letter alleging that Swann had falsified her qualifications when she originally applied for her position in 2006. Swann IV Compl. ¶ 16. The OIG initiated an investigation and in March 2012 issued a report corroborating the allegations. The OAC terminated Swann on the basis of the OIG's findings. Id. ¶¶ 30–32. Swann now brings 22 separate counts of gender discrimination or retaliation based on the following seven alleged workplace incidents or policies:

• First, Swann alleges that during her interview in the OIG investigation, the investigator showed her a photograph of herself wearing a bathing suit (Count 1);

• Second, Swann claims that during his deposition in Swann I and Swann II, the Superintendent of the OAC “threatened” her by stating that she would be discharged based on the findings of the OIG's interim investigation (Count 2);• Third, she alleges that certain of her male colleagues made sexually-related comments in her presence despite being admonished not to do so by OAC management (Counts 5, 11, and 17);

• Fourth, she claims that she was not given the opportunity to work overtime during the biennial Congressional changeover in the winter of 2010–2011 (Counts 7, 13, and 19);

• Fifth, echoing an allegation in Swann I, she contends that the OAC declined her request to build a separate female locker room when it remodeled the House electrical division in November 2011 (Counts 6, 12, and 18);

• Sixth, she maintains that the OAC stopped giving her the benefit of a 7 1/2 minute grace period in determining whether she arrived late for work (Counts 8, 14, and 20); and

•Seventh, she asserts that an OAC policy requiring employees to wear civilian clothes while decorating the House and Capitol Office Buildings for the holidays was applied to her but not to her male colleagues (Counts 9, 15, and 21).

Swann also contends that, taken together, these alleged incidents created a hostile work environment for her as a woman (Counts 3, 4, 10, 16, and 22).

The OAC moves to dismiss a number of these counts under Federal Rule of Civil Procedure 12(b), arguing either that the alleged conduct does not constitute an “adverse employment action” under Title VII and the Congressional Accountability Act (“CAA”), or that the count otherwise fails to state a valid claim as a matter of law. It seeks summary judgment on the remaining counts, arguing that the allegations, assessed in light of declarations and other evidence submitted by the OAC, do not give rise to a reasonable inference that the OAC discriminated or retaliated against Swann. No discovery has taken place in this case. The Court held a hearing on this motion and OAC's analogous motion in Swann IV on August 4, 2014.

II. Legal Standards

A. Standards of Review

The OAC's motion to dismiss must be granted if the allegations in Swann's Complaint do not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In order to survive the motion to dismiss, Swann must have alleged facts that would establish the defendant's liability. See Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.Cir.2003). Although the Court must accept the facts pled as true, legal allegations devoid of factual support are not entitled to this assumption. See Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

The Court will grant the OAC's alternative motion for summary judgment if the OAC has demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must draw all reasonable inferences in Swann's favor, accept all competent evidence presented by her as true, and may not make credibility determinations, weigh evidence, or draw inferences from the facts. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; George v. Leavitt, 407 F.3d 405, 413 (D.C.Cir.2005). The existence of a factual dispute, however, will not defeat a motion for summary judgment if the dispute, when resolved, would not materially influence a reasonable jury evaluating the elements of the case under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“[T]here will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory.”).

B. Statutory Standards

At the outset, Swann urges the Court to apply what she views as broader legal standards for discrimination and retaliation under the CAA, rather than the standards of Title VII. The Court declines this invitation; it will follow the well-worn path in this court and apply Title VII case law to Swann's CAA claims.² To make out a plausible claim of discrimination under Title VII, Swann must allege that she has suffered an adverse employment action because of race, color, religion, sex, or national origin. See 2 U.S.C. § 1311(a) ; Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008). An “adverse employer action” for purposes of discrimination is one which results in “ ‘materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment such that a reasonable trier of fact could find objectively tangible harm.’ ” Newton v. Office of Architect of the Capitol, 839 F.Supp.2d 112, 115–16 (D.D.C.2012) (quoting Nurriddin v. Bolden, 674 F.Supp.2d 64, 89 (D.D.C.2009) ). Once the plaintiff has established a prima facie case, the burden shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ). If an employer asserts a legitimate, non-discriminatory reason, the question then becomes whether the plaintiff has offered sufficient evidence for a reasonable jury to infer that the employer's asserted reason was not the actual reason for the action. See Brady, 520 F.3d at 494.

To prove her retaliation claims, Swann must establish that she engaged in statutorily protected activity; the OAC took a materially adverse action; and the OAC took the action because she opposed an unlawful practice. McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012) ; Newton, 839 F.Supp.2d at 115. A materially adverse action for the purposes of retaliation “is one that could conceivably dissuade a reasonable worker from making or supporting a charge of discrimination.” Newton, 839 F.Supp.2d at 116. The same burden-shifting framework applies. Ga u jacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010). The Supreme Court has instructed that the universe of cognizable retaliatory actions is broader than that of discriminatory actions, as a reasonable worker could be discouraged from reporting abuse by actions than might not themselves be considered abusive. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70–71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). At the same time, the Supreme Court has cautioned that retaliation actions should not be a means to micromanage supervisor decisions or sanction trivial harms. Id. at 67–78, 126 S.Ct. 2405.

Swann's hostile work environment claim, whether based on discrimination or retaliation, requires its own unique proof. A hostile work environment is one that subjects an employee to “ ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment.’ ” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir.2008). The work environment...