UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) PAMELA DOZIER-NIX, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-593 (RWR) ) THE DISTRICT OF COLUMBIA, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Pamela Dozier-Nix brings this action against her

employer, the District of Columbia, alleging employment

discrimination based on sex and retaliation, in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq. The District of Columbia has moved for summary judgment.

Because the District has not shown that it is entitled to

judgment as a matter of law on either count of Dozier-Nix’s

complaint, the motion for summary judgment will be denied.

BACKGROUND

Dozier-Nix and her husband are employed by the District of

Columbia’s Department of Public Works (“DPW”). (Am. Compl. ¶ 3;

Def.’s Stmt. of Mat. Facts Not in Dispute (“Def.’s Stmt.”) ¶ 1;

Pl.’s Opp’n at 7.) Dozier-Nix alleges that in October 2007, a

DPW General Foreman named Tyrone Bailey, who was in charge of the

yard where Dozier-Nix was working, subjected her to sexually

suggestive looks and gestures, touched parts of her body, made -2-

offensive comments regarding her private parts, solicited her for

oral sex, and said he would not give her husband the permanent

work assignment she asked about unless she accommodated Bailey’s

sexual proposition. Dozier-Nix further alleges that in

January 2008, Bailey tried to force her legs apart and made a

sexually explicit statement. (Am. Compl. ¶¶ 6-7; Pl.’s Opp’n at

1; Pl.’s Resp. to Def.’s Stmt. (“Pl.’s Resp.”) ¶ 5.) Dozier-Nix

rebuffed Bailey’s advances. (Am. Compl. ¶ 7.) She reported them

to two people, union officials Angie Pringle and James Ivy,

neither of whom was her supervisor or a DPW manager. (Def.’s

Stmt. ¶¶ 20-22.) She alleges that she also told her Supervisor,

Eric Armstrong, in October 2007 that Bailey was harassing her

with sexual comments. (Pl.’s Opp’n Ex. 2 (“Dozier-Nix Decl.”)

¶ 3; see also Def.’s Mem. of P. and A. in Supp. of Mot. for Summ.

J. (“Def.’s Mem.”) Ex. 3.) However, the District disputes that

she said the harassment was sexual. (Def.’s Mem. at 9.) In

February 2008, Dozier-Nix tape-recorded a conversation with

Bailey, during which Bailey made sexually explicit statements.

(Def.’s Stmt. ¶ 2.) Dozier-Nix presented the tape recording of

Bailey’s comments to Armstrong, who reported the incident to the

Administrator of the DPW’s Sanitation Division, Peter Mitchell.

(Id. ¶¶ 3-4.) Bailey’s harassment stopped after Dozier-Nix

presented the tape recording to Armstrong. (Id. ¶ 7.) The DPW

investigated the incident, and terminated Bailey’s employment -3-

approximately four months after Dozier-Nix provided the recording

to Armstrong. (Id. ¶¶ 5-6.)

According to the District, the DPW has a policy that is

provided to all new employees within 90 days after they are

hired, that prohibits sexual harassment and identifies the

individuals to whom victims of harassment should direct their

reports. (Def.’s Stmt. ¶¶ 14-18.) Dozier-Nix disputes that

the DPW effectively distributed its harassment policy, and states

that she did not participate in a training program that included

sexual harassment training until after February 2008. (Pl.’s

Resp. ¶¶ 14-16.)

In June 2008, Dozier-Nix filed a sexual harassment and

retaliation charge with the Equal Employment Opportunity

Commission. Dozier-Nix’s charge of discrimination alleged that

her General Foreman had subjected her to sexual harassment and

pressed her for sex in exchange for giving her husband a

permanent assignment. (Def.’s Stmt. ¶ 8; Def.’s Mem. Ex. 1.) In

September 2009, Dozier-Nix filed the amended complaint in this

case against the District of Columbia, alleging one count of sex

discrimination based on hostile work environment (Count 1), and

one count of retaliation based on the defendant’s refusal to give

her husband a permanent assignment (Count 2), in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et

seq. (Am. Compl. ¶¶ 14-17.) -4-

The District of Columbia has moved for summary judgment on

both counts. It seeks judgment on Count 1, arguing that

Dozier-Nix failed to take advantage of the preventative and

corrective opportunities, and because the evidence showed that

the DPW took prompt action to protect Dozier-Nix when it was

notified about the harassment. It seeks judgment on Count 2

arguing that rebuffing sexual advances is not protected activity

that can form the basis of a retaliation claim, that Dozier-Nix

herself was not subjected to any unlawful retaliation, and that

Dozier-Nix failed to exhaust her administrative remedies for that

claim. Dozier-Nix opposes.

DISCUSSION

“‘Summary judgment may be appropriately granted when the

moving party demonstrates that there is no genuine issue as to

any material fact and that moving party is entitled to judgment

as a matter of law.’” Pueschel v. Nat’l Air Traffic Controllers

Ass’n,

(D.D.C. 2011) (quoting Bonaccorsy

v. Dist. of Columbia,

(D.D.C. 2010)

(citing Fed. R. Civ. P. 56(c)). “‘In considering a motion for

summary judgment, [a court is to draw] all ‘justifiable

inferences’ from the evidence . . . in favor of the nonmovant.’”

Pueschel,

(quoting Cruz-Packer v. Dist. of

Columbia,

(D.D.C. 2008) (quoting

Anderson v. Liberty Lobby, Inc.,

(1986)); -5-

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)). “The relevant inquiry ‘is the threshold inquiry of

determining whether there is a need for a trial - - whether, in

other words, there are any genuine factual issues that properly

can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.’” Single Stick,

Inc. v. Johanns,

(D.D.C. 2009) (quoting

Anderson,

) (overruled on other grounds by Prime

Time Int’l Co. v. Vilsack,

(D.C. Cir. 2010)).

A genuine issue is present in a case where the “evidence is such

that a reasonable jury could return a verdict for the non-moving

party,” a situation separate and distinct from a case where the

evidence is “so one-sided that one party must prevail as a matter

of law.” Anderson,

.

I. HOSTILE WORK ENVIRONMENT

“A claim of sexual harassment is cognizable under [Title

VII] if the alleged harassment alters, either expressly or

constructively, the terms or conditions of an individual’s

employment.” Curry v. Dist. of Columbia,

(D.C.

Cir. 1999). “Courts describe a constructive alteration as

‘hostile work environment’ harassment.”

(quoting Burlington

Indus., Inc. v. Ellerth,

(1998)). To advance a

viable hostile work environment claim, Dozier-Nix must show that

she suffered harassment because of her sex, that her employer -6-

knew or should have known of the alleged harassment and failed to

take remedial action, and that the hostile environment interfered

with her work. See Winston v. Clough,

(D.D.C. 2010) (internal citations omitted). “Not all things that

make an employee unhappy create a hostile work environment.”

Graham, 657 F. Supp. 2d at 216. “To determine whether a hostile

work environment exists, the court looks to the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.” Graham, 657 F.

Supp. 2d at 216 (citing Faragher v. City of Boca Raton,

(1998)). “The conduct complained of ‘must be extreme

to amount to a change in the terms and conditions of

employment.’” Franklin, 600 F. Supp. 2d at 77 (quoting Faragher,

).

An “employer has an affirmative defense to a hostile

environment claim if (1) the employer ‘exercised reasonable care

to prevent and correct promptly any sexually harassing behavior’

and (2) ‘the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided

by the employer or to avoid harm otherwise.’” Taylor v. Solis,

(D.C. Cir. 2009) (quoting Faragher,

, and citing Ellerth,

). If the employer

has implemented an adequate corporate procedure for handling -7-

sexual harassment, the employer can avoid liability by showing

that a reasonable person in the plaintiff’s shoes would have come

forward early enough to prevent the harassment from becoming

severe or pervasive. Greene v. Dalton,

, 675 (D.C.

Cir. 1999). “[A]ny unreasonable failure to use any complaint

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

satisfy the employer’s burden[.]” Taylor,

(quoting Ellerth,

).

The District argues that the DPW exercised reasonable care

to prevent sexually harassing behavior by having a policy that

prohibited sexual harassment, establishing a chain of reporting

for victims of sexual harassment, and distributing the sexual

harassment policy to new employees within 90 days of their first

day of employment. (Def.’s Mem. at 8-10.) The District asserts

that Dozier-Nix failed to take advantage of the corrective

opportunities provided by the DPW because, when Dozier-Nix was

first accosted by Bailey in October 2007, she initially reported

the harassment to Pringle and Ivy, who were not managers within

the DPW. The District further argues that Dozier-Nix did not

report Bailey’s harassment to Armstrong, her supervisor, in a

manner that caused him to know that she was being sexually

harassed, until she presented the recording to him. (Def.’s Mem.

at 10-11.) -8-

However, Dozier-Nix has shown that material facts regarding

those issues are in dispute. Dozier-Nix disputes that the DPW

provided the policy to new employees within 90 days of the day

they were hired. She attaches her declaration and the transcript

of Armstrong’s deposition, reflecting that neither received

sexual harassment training before Bailey’s harassment occurred.

(Pl.’s Opp’n Ex. 1 (“Armstrong Dep.”);

Dozier-Nix Decl.

¶ 7.) Dozier-Nix further disputes any failure to report promptly

to her supervisor, and asserts that she told Armstrong in

October 2007 that Bailey was sexually harassing her. (Dozier-Nix

Decl. ¶¶ 3-4.) Genuine issues of material fact exist as to

whether the defendant exercised reasonable care to prevent and

correct promptly any sexually harassing behavior, and as to

whether Dozier-Nix unreasonably failed to take advantage of any

preventive or corrective opportunities before providing the

recording to Armstrong. The defendant’s motion for judgment on

Count 1 will be denied.

II. RETALIATION

“The elements of a claim of retaliation are that the

plaintiff engaged in a statutorily protected activity, the

employer treated the plaintiff adversely, and a causal connection

existed between the two.” Winston,

(citing

Wiley v. Glassman,

(D.C. Cir. 2007) and Rochon

v. Gonzales,

(D.C. Cir. 2007)). -9-

Statutorily protected activities include rebuffing unwanted

sexual advances. See Ogden v. Wax Works,

(8th

Cir. 2000) (holding that the plaintiff engaged in most “basic

form of protected conduct” when she rebuffed her supervisor’s

advances); Williams v. Verizon Wash. D.C.,

(D.D.C. 2003) (stating that the plaintiff engaged in

protected activity by rejecting her supervisor’s advances);

Frentz v. City of Elizabethtown, Civil Action No. 08-621,

at *5 (W.D. Ky. November 4, 2010) (holding that the

plaintiff engaged in a protected activity when she rejected her

supervisor’s sexual advances)1; see also McCain v. CCA of Tenn.,

(D.D.C. 2003) (holding that a plaintiff

alleging retaliation under the D.C. Human Rights Act engaged in a

protected activity when she rejected her supervisor’s sexual

advances); Miller v. Washington Metro. Area Transit Auth., Civil

Action No. 05-2342 (RMC),

at *6 (D.D.C. June 11,

2007) (stating that the plaintiff engaged in a protected activity

by rejecting her supervisor’s advances and filing a formal EEOC

complaint). Before suing under Title VII, an aggrieved

non-federal employee must first file a charge of discrimination

1 But see LeMarie v. Louisiana Dep’t of Transp. & Dev.,

(5th Cir. 2007) (contra); Roberts v. County of Cook, No. 01-C-9373,

at *4-5 (N.D. Ill. May 12, 2004) (collecting cases reflecting split view, and holding that refusing sexual advances is protected activity under Title VII). -10-

with the EEOC. Carson v. Sim,

(D.D.C.

2011). If the EEOC dismisses the charge or does not resolve it

timely, the employee may bring a civil action herself. Carson,

. The scope of a Title VII lawsuit

following an administrative charge of discrimination is limited

to the claims that were included in the EEOC charge, or claims

that necessarily could have been expected to come within the

scope of any investigation into the charge of discrimination.

See Hairston v. Tapella,

(D.D.C. 2009);

Iweala v. Operational Techs. Servs.,

(D.D.C. 2009).

Here, Dozier-Nix engaged in a protected activity by

rebuffing Bailey’s harassing sexual advances. His quid pro quo

harassment also would clearly have fallen within the scope of any

investigation into the allegations in Dozier-Nix’s charge of

discrimination. Further, “a retaliatory action need not be

directed at the party who engaged in the protected conduct that

prompted it in order to be materially adverse.” Ali v. Dist. of

Columbia,

(D.D.C. 2011) (citing Thompson

v. N. Am. Stainless, LP,

, 868 (2011) (stating

that “[w]e think it obvious that a reasonable worker might be

dissuaded from engaging in protected activity if she knew that

her fiancé would be fired”) and DeMedina v. Reinhardt,

(D.D.C. 1978) (holding that “tolerance of -11-

third-party reprisals would, no less than the tolerance of direct

reprisals, deter persons from exercising their protected rights

under Title VII”)).

CONCLUSION AND ORDER

Dozier-Nix has demonstrated the presence of disputed issues

of material fact that, if resolved in her favor, could support a

reasonable jury finding for her on Count 1 of her complaint.

Further, Dozier-Nix exhausted her administrative remedies

regarding a cognizable claim of retaliation in Count 2.

Therefore, it is hereby

ORDERED that the defendant’s motion [25] for summary

judgment be, and hereby is, DENIED.

SIGNED this 31st day of March, 2012.

/s/ RICHARD W. ROBERTS United States District Judge