Taylor v. Chao

• Decision Date: 19 October 2007
• Docket Number: No. 05-810.,No. 03-1761 (RMC).,03-1761 (RMC).,05-810.
• Citation: 516 F.Supp.2d 128
• Parties: Ruby TAYLOR, Plaintiff, v. Elaine L. CHAO, Secretary of Labor, et al., Defendants.
• Court: U.S. District Court — District of Columbia

516 F.Supp.2d 128

Ruby TAYLOR, Plaintiff, v. Elaine L. CHAO, Secretary of Labor, et al., Defendants.

No. 03-1761 (RMC).

No. 05-810.

United States District Court, District of Columbia.

October 19, 2007.

COPYRIGHT MATERIAL OMITTED

David H. Shapiro, Swick & Shapiro, P.C., Washington, DC, for Plaintiff.

Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, Robin M. Earnest, Riverdale, MD, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Can an employer be held liable for sexual harassment when a plaintiff was offended by some managers' comments but did not complain for months, and when she did complain the employer investigated quickly and the alleged harassment ceased? The answer is no. Plaintiff Ruby Taylor¹ brought this action against her employer, the Pension Benefit Guaranty Corporation ("PBGC"), alleging race and gender discrimination due to sexual harassment by managers. See 42 U.S.C. § 2000(e) et seq. PBGC is not liable because Ms. Taylor failed to report the alleged harassment for a substantial period of time. When she finally did report it, PBGC promptly investigated and there were no further incidents. Ms. Taylor also alleges retaliation, but this claim lacks merit because the alleged retaliatory actions either (1) were too long after her complaint of discrimination to be causally related; (2) were not materially adverse to cause a reasonable employee to forego filing a discrimination charge; or (3) the employer has presented a non-discriminatory reason for its actions and Ms. Taylor has failed to present evidence of pretext. Thus, summary judgment will be granted to PBGC,

I. FACTS

Ms. Taylor is an African American woman who is employed currently, and at the times relevant to her complaints, as an auditor by PBGC. Compl. in Case No. 03-1761 ("1st Compl.") ¶ 4; Compl. in Case No. 05-810 ("2d Compl.") ¶ 4.² She is an auditor with PBGC's Division of Insurance Supervision and Compliance, formerly known as the Pre-Termination Processing Division ("PPD").2d Compl. ¶ 4. PPD was divided into two sections, auditors and financial analysts. Pl.'s Ex. 3, Joy Dep. at 32. Jonathan Henkel supervised the auditors, including Ms. Taylor. Pl.'s Ex. 4, Bacon Aff. at 3. The head of PPD was Robert Joy, Pl.'s Ex. 3, Joy Dep. at 7, and Mr. Joy's supervisor was Bernie Hagans, Director of the Insurance Operations Department. Id. at 67. Ms. Taylor's supervisors — Mr. Hagans, Mr. Joy, and Mr. Henkel — were all Caucasian men. Ms. Taylor was a "very good employee." Id. at 64.

Robert Bacon, an African American, supervised the analysts. Pl.'s Ex. 4, Bacon Aff. at 3. Ms. Taylor alleges that she was sexually harassed by Mr. Bacon in a work atmosphere that was "permeated with sexual discussion and innuendo." Pl.'s Opp. at 3. She contends that the supervisors "fed into" the atmosphere, that PPD head Mr. Joy called her "sweetie" and stared at her. Pl.'s Ex. 7, Taylor 2007 Dep. at 8 & 12. She also claims that once when she asked him a work-related question, he flirtatiously responded that he would do anything she wanted. Id. at 8. In addition, on more than one occasion, Mr. Hagans complimented Ms. Taylor on her appearance. Pl.'s Ex. 9, Hagans Dep. at 59-60,

Ms. Taylor further complains that a team building exercise that took place in Rock Creek Park in the summer of 2001 became "sexually charged." Pl.'s Opp. at 5. Employees formed two teams for a seavenger hunt for items on a list Mr. Henkel created. Pl.'s Ex. 14, Henkel Dep. at 47 & 52. The list included "plastic toy (adult)" and "4 strands of hair." Pl.'s Ex. 15. Ms. Taylor produced a strand of her red hair for her team. Pl.'s Ex. 12, Logan Dep. at 72-74. Another auditor on her team, Michael Logan, then asked Ms. Taylor whether her hair was "red all over" and people laughed. Id. at 74. Mr. Bacon and Mr. Henkel gave Ms. Taylor's team 150 points due to the "embarrassing moment." Pl.'s Ex. 14, Henkel Dep. at 120.

Specifically with regard to Mr. Bacon, she alleges that he harassed her from some time in 2001 until April of 2002.³ Pl's Opp. at 7-14. First, Mr. Bacon began to tell Ms. Taylor that he wanted to be her "close friend." Pl.'s Ex. 6, Taylor 2005 Dep. (Day 2) at 20. Mr. Bacon told Mr. Joy that Ms. Taylor "would do anything to move ahead." Id. In October of 2001, Mr. Bacon assured Ms. Taylor that he would make sure she received an outstanding performance evaluation. Pl.'s Ex. 2, Taylor First Aff. at 7. When Ms. Taylor then did receive an outstanding evaluation, Mr. Bacon asked, "what are you going to do for me?" Pl.'s Ex. 2, Taylor First Aff. at 10.

Mr. Bacon allegedly made `other comments as well. In 2001, Mr. Bacon told Ms. Taylor that she did not love her fiancé because if she did, she already would have married him. Def.'s Ex. 11, First EEO Compl. Att. at 1-2. Mr. Bacon told Ms. Taylor that he could beat up her fiancé. Id. at 2. Also sometime in 2001, Mr. Bacon flirted with Ms. Taylor and she asked him to stop. Id. When she told him to stop sexually harassing her, Mr. Bacon told her that no one would believe her and that they would think she was coming on to him. Id. Mr. Bacon allegedly bragged that he did not need to pursue women because they flocked to him, and that despite this, he had never cheated on his wife. Id. at 3-6.

In April of 2002, Ms. Taylor asserts that she had a number of confrontations with Mr. Bacon resulting in her complaint to PBGC's Human Resources Department ("HRD"). On April 3 of 2002, Ms. Taylor was wearing a suit jacket with a short-sleeved blouse underneath. Id. at 5. She took off her jacket because she was hot, and Mr. Bacon said, "I see you flaunting that black." Id. On April 4, 2002, Mr. Bacon stopped by Ms. Taylor's office. Id. She refused to turn around to say hello, since she was busy working and had already said hello to him that day. She felt that he bullied her by insisting that she turn around to talk to him. Id. The next day, Friday April 5, when Ms. Taylor was in the copy room, Mr. Bacon came in to speak to her. Id. at 6. She tried to ignore him, but he followed her around the room calling her "baby" and saying, "You know you see me. You'd better turn around." Id. He approached her with his hands toward her neck as if to choke her. Id. She told him not to touch her, and he replied that he would if he wanted to. Id. She told him to stop harassing her and that she would complain to management if he continued. Id. Mr. Bacon responded that management would not do anything because he was well liked and that she should appreciate the outstanding evaluation she received. Id.

On April 9, 2002, Ms. Taylor contacted HRD, and she was referred to Janice Mackey, the Equal Employment Opportunity ("EEO") manager.⁴ Def.'s Ex. 11, First EEO Compl. at 8. Under PBGC's policy for the prevention of sexual harassment,⁵ Ms. Taylor had the option to go to an EEO counselor or to follow the "sexual harassment exception" to the individual complaint procedures under which an employee can request an investigation. Pl.'s Ex. 21, Mackey Aff. at 3; see Def.'s Ex. 18, Policy 30-4. Ms. Taylor elected to proceed under this exception and requested that PBGC launch an investigation. Id. at 4. Attorney-Advisor Tim Callaghan of the Office of the General Counsel started investigating on April 12, 2002, and on April 23, Mr. Callaghan issued a Report of Inquiry. Def.'s Ex. 17, Report of Inquiry. The Report indicated that Ms. Taylor alleged sexual harassment, Mr. Bacon denied the allegations, and the remaining PBGC personnel interviewed by Mr. Callaghan expressed surprise and disbelief that Mr. Bacon would sexually harass someone. Id. at 2. There were no witnesses to the alleged incidents of harassment, other than Ms. Taylor and Mr. Bacon. Id. The Report did not find sufficient evidence that Mr. Bacon had sexually harassed Ms. Taylor and thus no discipline was taken against Mr. Bacon. Def.'s Ex. 34, Mackey Aff. at 16.

Ms. Taylor contends that after she filed her EEO complaint her supervisors retaliated against her. Pl.'s Opp. at 15. Ms Taylor's performance evaluation was downgraded from "outstanding" in 2001, to "excellent" in 2002, to "fully effective" in 2003. Pl.'s Ex. 11, Taylor Second Aff. at 6. In June of 2002, Mr. Hagans told Ms. Taylor that she needed to improve her "negative behaviors." Pl.'s Ex. 2, Taylor Aff. at 79. Ms. Taylor also alleges that her supervisors started withholding work, Pl.'s Opp at 18, and that in fall of 2003 she was required to submit work plans to her supervisor twice per month instead of once per month as she had previously done. Pl.'s Ex. 7, Taylor 2007 Dep. at 67; Def.'s Ex. 32, Second EEO Compl. In early 2004, Mr. Joy told another supervisor, Michelle Gray, that he would not recommend Ms. Taylor for a position that PBGC might create because he did not trust her. Pl.'s Ex. 3, Joy Dep. at 82-83. The position was never created. Id. at 84.

Ms. Taylor also claims that she was improperly charged absent without leave ("AWOL") in October of 2003, when she in fact had submitted a leave slip. Id. at 97. Later, PBGC rescinded the AWOL charge, and Ms. Taylor was paid for her time off. Id. at 104.

Ms. Taylor sought EEO counseling on May 7, 2002 and filed an EEO complaint on August 28, 2002, concerning the 2001 and 2002 behaviors summarized above. See Def.'s Ex. 11. On August 19, 2003, she filed suit against PBGC⁶ alleging race and gender discrimination, harassment, and retaliation. See Civil Case No. 03-1761. On October 17, 2003, she sought EEO counseling based on her claims of further retaliation. She then filed another EEO complaint on February 5, 2004, see Def.'s Ex. 32, and another court complaint on April 22, 2005, alleging continuing discrimination, harassment, and retaliation. See Civil Case No. 05-810. The cases were consolidated, and now PBGC has moved for summary judgment. The matter is ripe and ready for decision.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure,...