UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) MICHELLE ROGERS, ) ) Plaintiff, ) ) v. ) Civil Action No. 00-2452 (EGS) ) RAY MABUS,1 ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Michelle Rogers (“plaintiff” or “Rogers”), a

former employee of the Department of the Navy, brings this Title

VII sexual harassment action against the Secretary of the Navy,

(“defendant”). On March 30, 2005, the Court denied defendant’s

motion to dismiss or, in the alternative, for summary judgment.

Defendant has filed a motion for reconsideration of this

decision. Upon consideration of the motion, the response and

reply thereto, the applicable law, and the entire record, the

Court DENIES defendant’s motion for reconsideration.

I. Background

A. Factual Background

Plaintiff, a former employee of the Department of the Navy,

Engineering Field Activity Chesapeake (“EFACHES”), Construction

Division, Washington Navy Yard, brings this Title VII action

1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Mabus, in his official capacity as the Secretary of the Navy, is automatically substituted as the named defendant. against defendant, claiming that she was the victim of sexual

harassment and rape by her former immediate supervisor, Jasper

Garner (“Garner”). Plaintiff is an African American female who

is hearing and speech impaired. Pl.’s SOF at 13.2 Plaintiff

began working for the Department of the Navy in November 1987.

Def.’s Statement of Material Facts Not in Dispute (“Def.’s SOF”)

¶ 1. Garner was plaintiff’s supervisor from 1994 to September

1998, at which time Garner was transferred to another division

and Robert Silver (“Silver”) became plaintiff’s supervisor.

Pl.’s Supp. SOF ¶ 1; Def.’s SOF ¶¶ 2-3.

Plaintiff alleges that Garner forced her to have sex with

him or otherwise engaged in sexually offensive conduct beginning

in April 1996 and continuing throughout the remainder of her

tenure at the Navy. Pl.’s SOF at 13-14. Plaintiff contends that

she reported the initial alleged assault to Cecilia Muhammad

(“Muhammad”), her team leader,3 and to Ellis Herndon (“Herndon”),

2 In responding to defendant’s motion for summary judgment, plaintiff filed her own statement of material facts in dispute, but did not respond to/dispute defendant’s statements of fact pursuant to Local Civil Rule 7(h). Due to plaintiff’s failure to properly respond to defendant’s statement of facts, the Court gave plaintiff an opportunity to file a supplemental statement of material facts in dispute. Therefore, the citations herein refer to the respective statements of fact as “Pl.’s SOF” and “Pl.’s Supp. SOF.” The Court has noted where facts continue to be in dispute. 3 The parties dispute whether Ms. Muhammad was plaintiff’s supervisor; however, it is clear that Ms. Muhammad had some leadership role. Compare Def.’s Mem. Supp. Mot. for Recons. (“Def.’s Mot. Recons.”) at 6, with Pl.’s Opp’n to Def.’s Mot.

2 a supervisor in a different division, within weeks of the first

alleged incident in April 1996. Pl.’s Supp. SOF ¶ 9. On March

5, 1999, plaintiff notified Silver of her sexual harassment

charges against Garner. Def.’s SOF ¶ 14. Plaintiff alleges that

Garner placed a call to her cell phone on approximately March 19,

1999 and that this call continued his harassment of her. Pl.’s

SOF at 15. She sought formal EEO counseling on March 24, 1999.

Def.’s SOF ¶ 14.

B. Procedural Background

On March 30, 2005, the Court denied defendant’s motion for

summary judgment, finding that there were material issues of fact

regarding whether plaintiff unreasonably failed to comply with

defendant’s sexual harassment policy.4 On July 17, 2009,

defendant filed a motion for reconsideration based on a new case

from the D.C. Circuit, Taylor v. Solis,

(D.C. Cir.

2009)).5 This motion for reconsideration is now ripe for

resolution by the Court.

Recons. at 3. 4 The Court also found that there were material issues of fact regarding whether plaintiff timely filed her EEO complaint; however, defendant is not requesting that the Court reconsider that portion of its decision. 5 On February 23, 2006, the Court denied a previous motion to reconsider, finding that newly discovered evidence did not eliminate the material issue of fact.

3 II. Legal Framework

A. Standard of Review

1. Motion for Reconsideration

Due to the interlocutory nature of the Court’s order denying

the motion for summary judgment, defendant’s motion for

reconsideration is governed by Federal Rule of Civil Procedure

54(b), which “differs from the standards applied to final

judgments under Federal Rules of Civil Procedure 59(e) and

60(b).” Williams v. Savage,

(D.D.C.

2008) (citations omitted); Judicial Watch v. Dep’t of Army,

(D.D.C. 2006) (“A ruling that denies a

dispositive motion . . . is an interlocutory judgment.”

(citations omitted)). “In particular, reconsideration of an

interlocutory decision is available under the standard ‘as

justice requires.’” Judicial Watch,

(citations omitted).

“‘As justice requires’ indicates concrete considerations” by

the court, Williams,

, such as “whether the

court patently misunderstood the parties, made a decision beyond

the adversarial issues presented, made an error in failing to

consider controlling decisions or data, or whether a controlling

or significant change in the law has occurred.” In Def. of

Animals v. Nat'l Inst. of Health,

(D.D.C.

2008) (internal citation and quotation marks omitted).

4 “Furthermore, the party moving to reconsider carries the burden

of proving that some harm would accompany a denial of the motion

to reconsider.” In Def. of Animals,

.

“These considerations leave a great deal of room for the court’s

discretion and, accordingly, the ‘as justice requires’ standard

amounts to determining ‘whether reconsideration is necessary

under the relevant circumstances.’” Judicial Watch,

(quoting Cobell v. Norton,

(D.D.C.

2004)). Defendant’s motion to reconsider is based on new

authority; therefore, the Court considers “whether a controlling

or significant change in the law has occurred.” In Def. of

Animals,

.

2. Motion for Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett,

(1986);

Waterhouse v. District of Columbia,

(D.C. Cir.

2002). In determining whether a genuine issue of material fact

exists, the court must view all facts in the light most favorable

to the non-moving party. See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.,

(1986).

5 B. Analysis

The basis for defendant’s motion to reconsider is a recent

decision from the D.C. Circuit, Taylor v. Solis,

.

Defendant argues that Taylor narrows the rule outlined in

Faragher v. City of Boca Raton,

(1998) and

Burlington Indus., Inc. v. Ellerth,

(1998),

and that a material issue of fact no longer exists regarding

whether plaintiff unreasonably failed to take advantage of

corrective opportunities. See generally Def.’s Mot. Recons. As

explained below, the Court finds that material issues of fact

still remain and, therefore, DENIES defendant’s motion to

reconsider.6

Title VII provides: “All personnel actions affecting

employees . . . in executive agencies . . . shall be made free

from any discrimination based on . . . sex.” 42 U.S.C. § 2000e-

16(a). An actionable harm for sexual harassment that has created

6 The parties dispute whether plaintiff abandoned her retaliation claim by not responding to defendant’s arguments in its motion for summary judgment filed on July 1, 2004, Docket No. 86. After multiple additional filings, which failed to resolve this issue, at a hearing on July 21, 2009, the Court directed plaintiff to file a response to defendant’s motion to reconsider, which would not only address the Taylor decision, but which would also clearly set forth her retaliation claims, including specific support and citations to the record. Tr. of July 21, 2009 Status Hr’g 2:12-19, 6:10-8:3. Plaintiff’s response to defendant’s motion to reconsider and defendant’s reply therefore address plaintiff’s retaliation claims in addition to the motion for reconsideration currently pending before the Court. In an effort to minimize confusion going forward, the Court will address plaintiff’s retaliation claims in a separate opinion.

6 a “hostile work environment” is caused by “harassment . . .

sufficiently severe or pervasive to alter the conditions of [the

victim’s] employment and create an abusive working environment.”

Meritor Sav. Bank v. Vinson,

(1986); Greene v.

Dalton,

, 675 (D.C. Cir. 1999); see also Harris v.

Forklift Sys., Inc.,

(1993) (“whether an

environment is ‘hostile’ or ‘abusive’ can be determined only be

looking at all the circumstances”). An affirmative defense to a

hostile work environment claim exists for employers if they can

prove: “(a) that the employer exercised reasonable care to

prevent and correct promptly any sexually harassing behavior; and

(b) that the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided

by the employer . . ..” Faragher,

; accord

Burlington Indus., Inc., 524 U.S. at 764-65.

In its motion for summary judgment, defendant claimed that

it was entitled to the Faragher defense because defendant

employees were not made aware of plaintiff’s allegations until

March 1999 when she filed a formal EEO complaint, at which time

they made every reasonable effort to fully investigate

plaintiff’s claims and prevent further harassment. Def.’s Mot.

Summ. J. (“Def.’s Mot.”) at 20. Defendant also contended that

plaintiff unreasonably failed to comply with the Division’s

sexual harassment policy by failing to promptly report any

7 offending behavior to a supervisor or an EEO officer. Def.’s

Mot. Summ. J. at 23.

In its opinion denying summary judgment, the Court found

that there were disputed issues of material fact because the

record “contains references to conversations between plaintiff

and her supervisory staff [Herndon and Muhammad] in April or May

of 1996 suggesting that she made an effort to report Mr. Garner’s

conduct.” Rogers v. Gordon,

(D.D.C.

2005) (citing Pl’s. Supp. SOF, Ex. 8 at 191-92 (Herndon Aff.);

Ex. 10 at 27-29, 62 (Muhammad Dep.)).

1. Taylor v. Solis

Defendant asks the Court to reconsider its decision in

light of Taylor, which addresses the issue of whether a plaintiff

properly reported allegations of sexual harassment by informing a

supervisor.

. In Taylor, the plaintiff sued her

employer, the Pension Benefit Guaranty Corporation, under Title

VII alleging sexual harassment by her supervisors that created a

hostile work environment.

. The sexual harassment

policy in Taylor directed employees who believed they were

sexually harassed to immediately contact an EEO Counselor or the

EEO manager, who was to then investigate the charge and, if

warranted, implement an appropriate remedy.

The plaintiff

told a friend who was a team leader that she felt harassed; he

did not advise her to go to the EEO counselor or do so himself.

8

. After further incidents of alleged harassment,

plaintiff eventually reported the conduct to the EEO office.

The court affirmed the district court’s finding that the

employer had an affirmative defense under Faragher because the

plaintiff’s action of informing her friend of the alleged

harassment was an unreasonable failure to use her employer’s

complaint procedure.

at 1318 (citing Ellerth,

(“any unreasonable failure to use any complaint procedure

provided by the employer . . . will normally suffice to satisfy

the employer’s burden”)). The D.C. Circuit noted that “[a]

reasonable employee who believes and tells others she is being

sexually harassed would report it if she knows - as [plaintiff]

should have and apparently did know - a complaint procedure has

been established for the purpose.”

The Taylor court

rejected plaintiff’s argument that she effectively notified

management of her complaint by informing her friend who was a

team leader, finding that she “could not reasonably have believed

talking to [him] was a substitute for using the agency’s

complaint procedure,” because her employer’s policy explicitly

required her to report such conduct to an EEO officer or EEO

manager. Id. at 1319. Thus, the Taylor court found that

plaintiff’s claim failed not because telling a team leader or

supervisor is necessarily insufficient, but because the specific

policy in place made telling a team leader or supervisor

9 insufficient, and plaintiff could not have reasonably believed

that informing her friend of the alleged harassment complied with

that policy.

2. The Sexual Harassment Policy

In contrast to Taylor, in the instant case, there was no

written policy establishing a specific procedure for complaining

about sexual harassment when the events in this case allegedly

occurred.7 The only evidence of a policy for reporting sexual

harassment is the training given to employees at that time. This

training included “an explanation that each act of discrimination

or harassment should be reported either to a supervisor or

directly to an EEO counselor.” Def’s Mot. Summ. J., Ex. 8; Decl.

of Cynthia Sybert (“Sybert Decl.”) at 2 (stating that between

1995 and 1999 she conducted annual training courses on EEO

7 The sexual harassment policy in place at the time of the alleged harassment provided, inter alia:

No individual shall - - . . . . . . [W]hile in a supervisory or command position, condone or ignore sexual harassment of which he or she has knowledge or has reason to have knowledge. . . . The prevention of sexual harassment exemplifies the Department of the Navy’s goal to uphold the highest standards of leadership and personal conduct. Each leader/manager/supervisor is responsible and accountable for providing training and guidance to his/her personnel and taking prompt, appropriate corrective action upon encountering evidence of inappropriate conduct. . . .”

Def.’s Mot. Summ. J., Ex. 8, August 10, 1995 EFA Cheseapeake Policy on Sexual Harassment.

10 policies and procedures).

The record reveals a significant discrepancy within

defendant’s own pleadings as to whether plaintiff was required to

report the conduct to “a” supervisor or “her” supervisor.

Compare Mot. for Recons. at 2 (“Plaintiff knew that she needed to

report it to her supervisor or to an EEO Specialist.”) with

Def.’s Mot. Summ. J. at 19 (the policy “instructed employees to

report any offending behavior either to a supervisor or an EEO

officer.”); see also Def.’s Mot. Summ. J. at 6 (stating that the

policy required an employee to report harassment to “the”

supervisor). The parties have also provided conflicting

information as to whether employees were supposed to report

allegations of sexual harassment to both a supervisor and the EEO

office, or if they could choose to report it to either one. The

pleadings and exhibits of both parties at times use the “and”

language, but in other places use the word “or,” and contradict

themselves regarding which is correct.8

Thus, the policy itself does not contain any guidance on how

to report allegations of sexual harassment or to whom such

8 Compare Mot. for Recons. at 2 (“Plaintiff knew that she needed to report it to her supervisor or to an EEO Specialist.”); Id. at 3 n.1 (“[A] victim of sexual harassment was required to report any offending incidents to his or her supervisor or an EEO officer.”), with Def.’s Mot. Summ. J. at 6 (“The policy on sexual harassment required a victim of such to ‘report’ any offending incidents ‘to the supervisor and the EEO specialist.”) (quoting Pl.’s Mar. 30, 2000 Admin. Dep. (“Rogers Mar. 30, 2000 Dep.”)).

11 allegations should be made and the training allows employees to

report complaints to either “a” supervisor or the EEO office.

Accordingly, the Court finds that there are material issues of

fact regarding the requirements of the sexual harassment policy

in place at the time of the alleged conduct.

3. Plaintiff’s Actions of Telling People in Management About the Alleged Harassment

Assuming, as the Court must at this stage of litigation,

that the policy allowed an employee to report to a supervisor,

regardless of whether that person was plaintiff’s direct

supervisor, the Court must now determine whether plaintiff’s

actions were reasonable. As discussed below, a material fact

still exists regarding whether plaintiff reasonably believed her

actions of telling two people in management roles constituted

compliance with the sexual harassment policy in place.

Plaintiff asserts that, soon after the first alleged

incident of rape, she contacted her team leader, Cecilia

Muhammad, to report the incident. Pl.’s Opp’n to Def.’s Mot.

Summ. J. (“Pl.’s Opp’n Summ. J.”) at 6. Muhammad admits that

plaintiff had a discussion with her about the situation between

herself and Garner, but states that plaintiff said she was

“involved” with Garner. Muhammad Dep. at 28-29. Muhammad stated

in her deposition that she told plaintiff that it “was between

them” and that she had nothing to do with it. Id. at 28.

Muhammad also stated that she “felt like [plaintiff] wanted to

12 get a response from [her].” Id. Muhammad did not report the

conversation or do anything further regarding the conversation

with plaintiff. The Court finds that, while it is possible a

juror could conclude that this was not a report of harassment,

but rather was just someone talking about her intimate

relationship, a reasonable juror could also conclude that this

“attempt” to report the conduct was sufficient and that

Muhammad’s actions of telling plaintiff that “that was between

them” while admitting that plaintiff wanted to get a response

from her lacked the reasonable care necessary for a Faragher

defense.

Plaintiff also went to Herndon, a supervisor in another

department, to inform him of Garner’s alleged conduct. Pl.’s

Opp’n at 6. Herndon confirmed in an affidavit during the Navy’s

investigation that plaintiff told him of unwanted sexual advances

by Garner and that he did not report the conduct or investigate

further. Pl.’s Supp. SOF, ex. 8, Herndon Aff. at 191:5-194:2.

Herndon also acknowledged in his affidavit that under the

procedure in place, a supervisor who receives a report of sexual

harassment is required to initiate an investigation. Id. at

196:8-16.

Pursuant to Taylor, plaintiff must act as a reasonable

employee would act if she believed she was being sexually

harassed. Compliance with the agency’s sexual harassment

13 policies is required, as well as prompt reporting of the

incident(s).

. Defendant argues that plaintiff

knew the sexual harassment policy required her to report alleged

harassment to her supervisor and admitted that she did not follow

it. Def.’s Mot. Recons. at 2. Is support of its argument,

defendant cites Plaintiff’s response to defendant’s Requests for

Admission, in which defendant claims she admits that the policy

was to report sexual harassment “to a supervisor and an EEO

counselor.” Def.’s Mot. Summ. J., Ex.9, Resp. to Requests for

Admission #9. Defendant also cites plaintiff’s deposition for

support that she was aware of, but did not follow, the policy.

Def.’s Mot. Recons. at 7.

The Court disagrees with defendant’s characterization of the

evidence. In fact, plaintiff’s deposition further supports the

Court’s finding that there are material issues of fact regarding

the policy in place and plaintiff’s understanding of that policy.

For example, in her deposition plaintiff said that she was

supposed to report any instance of sexual harassment to “the”

supervisor and the EEO Specialist. Def.’s Mot. Summ. J., Ex. 2;

Rogers Mar. 30, 2000 Dep. at 345:19 (emphasis added). Defense

counsel followed that statement by asking: “to your supervisor

and the EEO specialist?” to which plaintiff responded yes, and

14 then agreed that she did not do so.9 Id. at 345:20-346:1. Later

in the deposition, plaintiff was asked “you were told to report

any incidents of sexual harassment to supervisors or to the EEO

office. Is that correct?” Id. at 370:15-18 (emphasis added).

She responded “yes.” Id. at 351:15-21. Thus, there is

conflicting information within the deposition regarding

plaintiff’s understanding of the policy.

These excerpts (and the deposition contains several others

like them) reveal nothing more than profound confusion about the

complaint-reporting policy in place at the time the alleged

events occurred. Accordingly, the Court finds that, given the

absence of a written policy regarding how allegations of sexual

harassment were to be reported and the conflicting information

presented by the parties regarding what that policy actually was,

there is a material issue of fact as to the substance of the

policy and whether plaintiff’s actions of telling a supervisor in

a different division and her team leader were reasonable. The

Court finds this case is easily distinguishable from the

situation in Taylor because there, plaintiff’s actions of telling

her friend clearly did not meet the explicitly stated policy of

9 Plaintiff was also asked whether she thought that by telling Mr. Herndon that she was notifying management; she responded “I guess, I mean, I guess I would think that he would notify management.” Id. at 350:17-20. A reasonable jury could find this statement indicates a reasonable belief that telling Herndon did comply with the sexual harassment policy requiring her to inform a supervisor.

15 the defendant.

The Eighth Circuit’s finding in Ogden v. Wax Works, Inc.,

further supports the Court’s conclusion.

(8th Cir.

2000). The court in Ogden found that a reasonable jury could

have concluded that plaintiff “took advantage of the

‘opportunities’ afforded by Wax Works and/or attempted to ‘avoid

harm otherwise’” because she complained to a member of

defendant’s management “arguably in accordance with the company’s

sexual harassment policy.”

. Similar to the present

case, the policy in Ogden stated that an employee was

“encouraged” to report any alleged violations to “a member of

management or directly to the Director of Human Resources.”

. Here too, plaintiff “arguably” followed the sexual

harassment policy in place.

Taking all facts in the light most favorable to plaintiff,

as the Court must at this stage, the Court finds that material

issues of fact still exist regarding what the policy was and

whether plaintiff reasonably believed that her actions complied

with the policy.

16 III. CONCLUSION

Accordingly, for the reasons stated, the Court DENIES

defendant’s motion for reconsideration.

SO ORDERED.

Signed: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE MARCH 29, 2010

17