UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) PAMELA CARTER-FROST, ) ) Plaintiff, ) v. ) ) DISTRICT OF COLUMBIA, ) Civil Action No. 15-930 (EGS) ) Defendant. ) )

MEMORANDUM OPINION

I. Introduction

Plaintiff Pamela Carter-Frost (“Ms. Carter-Frost”) brings

three claims against Defendant District of Columbia (“District”)

for events arising from her employment with the District of

Columbia Metropolitan Police Department (“MPD”). Her complaint

alleges (1) gender discrimination; (2) retaliation; and (3) a

hostile work environment—all in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), as amended,

(e), et seq.; the District of Columbia Human Rights Act

(“DCHRA”),

, et seq.; and the Civil Rights

Act of 1991,

(a) (“Section 1981”). Ms. Carter-Frost

requests compensatory damages and expenses, in addition to other

equitable relief, including ordering the District to institute

policies against discrimination and imposing supervisory

training. Pending before the Court is the District’s motion for

summary judgment. See Def.’s Mot., ECF No. 19. The Court has

1 carefully considered the motion, the response and reply thereto,

the applicable law, and the entire record herein. For the

reasons set forth below, the Court GRANTS IN PART and DENIES IN

PART the defendant’s motion for summary judgment. Ms. Carter-

Frost’s gender discrimination claim may proceed, but the

District is entitled to summary judgment on her retaliation and

hostile work environment claims.

II. Background

Except where indicated, the following facts are not in

dispute. Ms. Carter-Frost was an officer employed with the MPD

for over twenty-five years before she retired in 2015. Pl.’s

Dep., ECF No. 24-2 at 9:24-25; Retirement Order, ECF No. 24-4.

She started her MPD career in 1990 as a patrol officer in the

Sixth District.

. However, for the vast majority

of her employment, from 1992 to 2012, Ms. Carter-Frost worked as

a time and attendance (“T&A”) clerk within the Criminal

Investigation Division (“CID”). Pl.’s Dep., ECF No. 24-2 at

11:6-20:3. As a T&A clerk, Ms. Carter-Frost was responsible for

preparing the payroll by inputting time entries from the

logbook, which documented each officer’s shift.

at 16:3-

17:1. She served as a T&A clerk in various MPD CID offices, but

she last worked in CID Headquarters.

. While Ms.

Carter-Frost moved offices at least five times over those twenty

2 years, each detail as a T&A clerk was voluntary upon application

or request.

.

A. Investigation and “Involuntary” Lateral Details

In 2013, while serving as a T&A clerk at CID Headquarters,

the Investigative Services Bureau (“Bureau”) investigated Ms.

Carter-Frost for misconduct. See Investigative Report, ECF No.

24-6. According to the Bureau’s Report, Ms. Carter-Frost and

another male officer referred to as “Officer J.Y.,” were found

to have violated MPD T&A policy from November 2012 through

January 2013.

Officer J.Y. also performed administrative

work at CID Headquarters.

. Unlike Ms. Carter-Frost,

Officer J.Y. was not a T&A clerk by title, but he had T&A login

credentials, and he periodically entered T&A information.

. According to the Bureau’s findings, Officer J.Y. allowed

Ms. Carter-Frost to enter her own time using his unique T&A

login code.

. This violated MPD policy and exposed both

officers to criminal liability because T&A clerks were not

allowed to enter their own hours “due to conflict of interest.”

. While Ms. Carter-Frost admitted that she used Officer

J.Y.’s code to enter her own time, she claims that she was

unaware that doing so was prohibited by MPD rules.

.

This finding was referred to the Office of the U.S.

Attorney for the District of Columbia, which declined to

prosecute the case, leaving the violation for administrative

3 resolution. USAO-DC Letter, ECF No. 24-10. At that point, the

MPD upheld the charge against both officers and recommended

“adverse action” ranging from reprimand to removal for both.

Recommendation Letter, ECF No. 24-8; Notice of Proposed Action,

ECF No. 24-9. Officer J.Y. was originally suspended for five

days, Final Notice, ECF No. 24-5, but the suspension was

rescinded on appeal. Appeal, ECF No. 24-11. Neither party

submitted formal proof of Ms. Carter-Frost’s punishment. See

generally Def.’s Mot., ECF No. 19; Pl.’s Opp’n, ECF No. 24.

However, it is undisputed that Ms. Carter-Frost was

“involuntarily” transferred twice from her T&A work. Def.’s

Reply, ECF No. 28 at 8, ¶ 22; 11, ¶ 32.

In November or December 2012, Ms. Carter-Frost was

transferred to the Forensics Unit, where she “was assigned to

sit in a workspace with no windows, no telephone, and no desk.”

Pl.’s Opp’n, ECF No. 24 at 5, ¶ 4. There, she was tasked with

filing the police reports from every district.

. In

February 2013, she was “involuntarily detailed” a second time to

a patrol position in the Fifth District.

. This post

became permanent in May 2013, as “corrective action” for her T&A

policy violation. Pl.’s Dep., ECF No. 24-2 at 52:24-53:19. Ms.

Carter-Frost alleges that she felt threatened when faced with

this corrective action: her choices, as she saw them, were to

accept this transfer or be terminated.

. As a

4 result of the transfer, Ms. Carter-Frost worked as a patrol

officer for the first time in twenty-two years.

.

She remained on patrol until she retired in 2015.

B. Denied Requests and Complaints

Ms. Carter-Frost alleges that she submitted several

personnel requests, which were all denied. These requests

included a request for leave in June 2011,

; a

request to have her schedule changed at some point in 2012,

; and “two or three” requests to be transferred

back to T&A work at the CID,

. Ms. Carter-Frost

also alleges that, beginning in November 2012, she was denied

the opportunity to accrue overtime or compensatory time.

. According to Ms. Carter-Frost, her male colleagues

had their “basic work requests granted,” such as leave requests

and work preferences. Pl.’s Opp’n, ECF No. 24 at 23-24.

Ms. Carter-Frost also alleges that she made several

complaints regarding this perceived unfair treatment. She

alleges that she first filed a complaint with MPD’s Equal

Employment Opportunity (“EEO”) Branch in 2002, alleging a

hostile work environment. Pl.’s Dep., ECF No. 24-2 at 26:25-

27:19. According to Ms. Carter-Frost, she next complained in the

spring of 2012 to a Commander about her supervisor’s

preferential treatment of male officers.

. She

allegedly made this complaint by sticking a post-it note on the

5 Commander’s office door.

. Next, Ms. Carter-Frost

alleges that she filed a second EEO complaint on November 26,

2012, concerning the MPD’s perceived “differential treatment,

retaliation, and hostile work environment.” Pl.’s Stmt. of

Disputed Facts (“Pl.’s Stmt.”), ECF No. 24-14 ¶ 19. However,

according to a MPD Investigator who searched the MPD’s EEO

archives for 2002 and 2012, there is no record of either

complaint. See Tapp Aff., ECF No. 19-2 ¶¶ 2-4.

Ultimately, on August 12, 2013, Ms. Carter-Frost filed a

complaint with the Equal Employment Opportunity Commission

(“EEOC”) and the District of Columbia Office of Human Rights

(DCOHR) alleging retaliation, gender discrimination, and a

hostile work environment. EEOC Charge, ECF No. 24-3 (amended).

She received her right to sue notice on March 17, 2015, ECF No.

24-7, and timely filed this lawsuit on June 16, 2015.

III. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted only “if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Waterhouse v. District of Columbia,

(D.C. Cir. 2002). The moving party must identify “those portions

of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

6 it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986) (internal quotation marks omitted). On the other hand, to

defeat summary judgment, the nonmoving party must demonstrate

that there is a genuine issue of material fact.

. A

material fact is one that is capable of affecting the outcome of

the litigation. Anderson v. Liberty Lobby, Inc.,

(1986), while a genuine dispute is one in which “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.”

Further, in the summary judgment

analysis “[t]he evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his

favor.”

.

IV. Analysis

A. Ms. Carter-Frost’s DCHRA Claims Are Not Time-Barred

As an initial matter, the District alleges that Ms. Carter-

Frost’s DCHRA claims for gender discrimination and retaliation

are time-barred because: (1) the DCHRA statute of limitations is

one year; (2) the last incident of discrimination/retaliation

allegedly occurred in February 2013; and (3) Ms. Carter-Frost

did not file her claim until June 16, 2015, over two years

later. Def.’s Mot., ECF No. 19 at 7. The DCHRA requires that a

“private cause of action . . . shall be filed . . . within one

year of the unlawful discriminatory act, or the discovery

7 thereof.”

. But the statute of limitations

is tolled upon filing a complaint with the EEOC, which also

automatically cross-files a complaint with the DCOHR. See, e.g.,

Craig v. District of Columbia,

(D.D.C.

2012); Ibrahim v. Unisys Corp.,

(D.D.C. 2008) (citing Esteños v. PAHO/WHO Federal Credit

Union,

(D.C. 2008)). Ms. Carter-Frost filed

her amended EEOC claim, which was cross-filed with the DCOHR, on

August 12, 2013. EEOC Charge, ECF No. 24-3. On March 17, 2015,

the EEOC denied her claim and Ms. Carter-Frost received her

right-to-sue notice. Notice Right-to-Sue, ECF No. 24-7. She

filed this lawsuit on June 16, 2015. Therefore, the statute of

limitations was tolled from August 12, 2013—the date she filed

the EEOC complaint—through March 17, 2015—the date she received

the right-to-sue notice. Ms. Carter-Frost alleges

discrimination, retaliation, and a hostile work environment

through at least February 2013. See generally Compl., ECF No. 1.

Thus, excluding the time that was tolled while the EEOC

complaint was pending, only eight to nine months elapsed between

the date of last incident and the filing of the complaint. See

Ibrahim,

(finding that the plaintiff’s

DCHRA and Title VII claims were timely because the statute of

limitations was tolled while his claim was pending with the

EEOC). Because less than one year passed, Ms. Carter-Frost’s

8 DCHRA claims are not time-barred by the applicable one year

statute of limitations.

B. A Reasonable Jury Could Conclude That Ms. Carter-Frost Was Subject to Gender Discrimination To establish a viable claim under Title VII, Section 1981,

and the DCHRA, Ms. Carter-Frost must provide sufficient evidence

to establish that she was subject to an adverse action motivated

by gender discrimination. Under Title VII, it is unlawful for an

employer to “discriminate against any individual with respect to

his . . . employment, because of such individual's race, color,

religion, sex, or national origin.”

(e-2)(a)(1).

For her discrimination claims pursuant to all three statutes, 1

Ms. Carter-Frost must establish “two essential elements”: “(i)

the plaintiff suffered an adverse employment action (ii) because

of the plaintiff's race, color, religion, sex, national origin,

age, or disability.” Baloch v. Kempthorne,

(D.C. Cir. 2008).

If the plaintiff succeeds in proving this prima facie case

by the preponderance of the evidence, “the burden shifts to the

1 See Carpenter v. Fed. Nat’l Mortg. Ass’n,

(D.C. Cir. 1999) (“In interpreting [the DCHRA] the District of Columbia also follows [the Title VII] formula . . . .” (citing Arthur Young & Co. v. Sutherland,

(D.C. 1993)); see also Lemmons v. Georgetown Univ. Hosp.,

(D.D.C. 2006) (“[D]iscrimination claims under both the DCHRA and Section 1981 are evaluated using the same framework as claims arising under Title VII . . . .”)(citing Mungin v. Katten Muchin & Zavis,

(D.C. Cir. 1997))(emphasis added). 9 defendant to articulate some legitimate, nondiscriminatory

reason for the [adverse action].” Texas Dept. of Cmty. Affairs

v. Burdine,

(1981) (internal citations and

quotations omitted). The employer’s burden is therefore

satisfied if it “simply ‘explains what [it] has done’ or

‘produc[es] evidence of legitimate nondiscriminatory reasons.’”

at 256 (quoting Bd. of Trs. of Keene State Coll. v. Sweeney,

, 25 n. 2 (1978)).

Once the defendant employer presents a “legitimate, non-

discriminatory” reason for the adverse action, the prima facie

case “drops out of the picture,” and the burden shifts again.

Brady v. Office of Sergeant at Arms,

(D.C.

Cir. 2008)(quoting St. Mary's Honor Ctr. v. Hicks,

(1993)). The plaintiff must then “prove by a

preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but were a

pretext for discrimination.” Burdine,

. The

plaintiff may prove pretext, for example, by showing “the

employer's better treatment of similarly situated employees

outside the plaintiff's protected group, its inconsistent or

dishonest explanations, its deviation from established

procedures . . . , the employer's pattern of poor treatment of

other employees in the same protected group . . ., or other

relevant evidence that a jury could reasonably conclude evinces

10 an illicit motive.” Toomer v. Mathis, Civ. No. 11-2216,

at *7 (D.D.C. July 19, 2017) (quoting Walker v. Johnson,

(D.C. Cir. 2015)). The employee’s prima

facie case is “part of the evidence” the Court “must consider in

addressing [the] question of whether she has created a genuine

issue of gender discrimination.” Czekalski v. Peters,

(D.C. Cir. 2007)(internal citations and quotations

omitted).

1. A Reasonable Jury Could Find That Ms. Carter-Frost Was Subject to Adverse Action

It is undisputed that Ms. Carter-Frost is a woman and

therefore a member of a protected class under the statutes.

Def.’s Reply, ECF No. 28 at 5, ¶ 1. At issue, then, is whether

Ms. Carter-Frost suffered an “adverse action.” See Def.’s Mot.,

ECF No. 19 at 7-12. Ms. Carter-Frost argues that she was subject

to adverse action when she was “unjustly investigated . . . and

audited” and “involuntarily detailed to [the] Forensics Unit and

Fifth District.” Compl., ECF No. 1 ¶¶ 38-54. The District argues

that neither are adverse actions as a matter of law. Def.’s

Mot., ECF No. 19 at 7-12.

An “adverse employment action” is “a significant change in

employment status such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing significant change in benefits.” Douglas v.

11 Donovan,

(D.C. Cir. 2009)(internal citations

and quotations omitted). The employee must have “experience[d]

materially adverse consequences affecting the terms, conditions,

or privileges of employment or future employment opportunities

such that a reasonable trier of fact could find objectively

tangible harm.” Forkkio v. Powell,

(D.C.

Cir. 2002). Therefore, “[m]ere idiosyncrasies of personal

preference are not sufficient” nor are “[p]urely subjective

injuries, such as dissatisfaction with a reassignment, or public

humiliation or loss of reputation . . . .”

(internal citations and quotations omitted). The Court addresses

each alleged adverse action in turn.

a. Administrative Investigation

Ms. Carter-Frost contends that the MPD investigation into

her T&A work was adverse. Generally, “the 'mere initiation' of

an investigation may not constitute a materially adverse

action.” King v. Holder,

(D.D.C. 2015)

(citing Ware v. Billington,

(D.D.C.

2004)). However, an investigation may be adverse if it “resulted

in ‘materially adverse consequences affecting the terms,

conditions, or privileges of [Plaintiff's] employment or

[Plaintiff's] future employment opportunities such that a

reasonable trier of fact could conclude that the plaintiff has

suffered objectively tangible harm.’”

at 151-52 (quoting

12 Youssef v. FBI,

(D.C. Cir. 2012)). In King v.

Holder, an investigation was adverse in part because the

plaintiff’s promotion was suspended pending the results of the

investigation, potentially affecting the plaintiff’s career.

So here too. The penalties for the T&A policy violation

underlying the MPD’s investigation ranged from “reprimand to

removal.” Notice of Proposed Action, ECF No. 24-9 at 2. Just as

the stalled promotion affected the King plaintiff’s career,

possible termination affects Ms. Carter-Frost’s career. See

. Additionally, the investigation exposed

Ms. Carter-Frost to criminal liability had the U.S. Attorney’s

Office elected to prosecute, affecting far more than Ms. Carter-

Frost’s career. See USAO-DC Letter, ECF No. 24-10. Moreover, the

investigation did in fact cause “material[ly] adverse

consequences” to the terms of Ms. Carter-Frost’s employment. She

was detailed to the Forensics Unit and then to the Fifth

District as “corrective action.” Pl.’s Dep., ECF No. 24-2 at

53:8-19. On these facts, a reasonable jury could find the

Bureau’s investigation adverse because it had the potential to

“affect her employment in a meaningful way.” Compare with

Herbert v. Architect of the Capitol,

(D.D.C. 2011)(finding that an investigation did not meaningfully

affect Plaintiff’s employment because it “involved little more

than interviews with various . . . employees; . . . never

13 proceeded beyond draft form; . . . [and there were] no

recommendations specifically directed towards [Plaintiff]”).

b. Details to the Forensics Unit and Fifth District

Ms. Carter-Frost also argues that the two details, first to

the Forensics Unit and then to the Fifth District, were adverse

actions. See Pl.’s Opp’n, ECF No. 24 at 12-14. The District

argues that these events were not adverse because the transfers

were not accompanied by a decrease in pay, benefits, or

responsibilities. Def.’s Mot., ECF No. 19 at 9-12.

Lateral transfers, as here, qualify as adverse employment

actions only when the reassignment carries with it

“significantly different responsibilities.” Czekalski v.

Peters,

(D.C. Cir. 2007)(quoting Forkkio v.

Powell,

(D.C. Cir. 2001)). Generally, this

is a jury question, which the Court “may not take . . . away . .

. if a reasonable juror could find that the reassignment left

the plaintiff with significantly diminished responsibilities.”

Id. at 365. By contrast, mere “subjective dissatisfaction” with

the transfer or the plaintiff’s new working conditions does not

qualify as adverse action.” Zelaya v. UNICCO Servs. Co.,

(D.D.C. 2010). Therefore, to determine whether

the reassignment to patrol work was adverse, the Court must

“compare the position the plaintiff held before the transfer to

the one [s]he holds afterwards.” Pardo–Kronemann v. Donovan, 601

, 607 (D.C. Cir. 2010). Viewing the evidence in the

light most favorable to Ms. Carter-Frost, she has raised a

genuine issue as to whether her second detail to the Fifth

District left her with significantly different and diminished

responsibilities.

The District suggests that Ms. Carter-Frost’s duties during

her first detail to the Forensic Department were “different” but

not “significantly different” because the work was of the same

type: “administrative.” Def.’s Mot., ECF No. 19 at 11-12. True,

but clearly it cannot make this argument for the second detail

to the Fifth District. Id. at 12. As the District itself

admits, T&A work is “administrative,” while patrolling the

streets of the Fifth District plainly is not. Id. Instead, the

District argues that the second detail was not adverse because

Ms. Carter-Frost’s responsibilities were not diminished, but

rather heightened because patrol work is critical to MPD’s

mission. Id. The Court is not persuaded that the second transfer

was adverse as a matter of law.

Whereas Ms. Carter-Frost had training and decades of

experience for her T&A role, she had not performed patrol work

for over twenty years and felt dangerously ill-equipped to be

“thrown directly onto the street.” Id. at 60:20-61:1. In

Youssef, the D.C. Circuit concluded that a jury could find that

the Plaintiff’s lateral transfer was adverse in part because his

15 new position “did not utilize his skills and expertise.”

. Similarly, Ms. Carter-Frost’s skills and expertise

as a T&A clerk were not utilized on patrol in the Fifth

District. Her former position required training and a

“certificate.” Pl.’s Dep., ECF No. 24-2 at 9:2-9; see also

Burlington Northern & Santa Fe Railway Co. v. White,

(2006)(concluding that the jury had a reasonable basis to

find a reassignment adverse because the new position was “more

arduous” and the former position “required more

qualifications”). Whether or not the second detail was an

adverse action is therefore a factual dispute for a jury to

decide.

Additionally, a jury could find that Ms. Carter-Frost had

diminished responsibilities in the Fifth District based on the

District’s own characterization of her former office—calling the

CID a “specialized unit.” Answer, ECF No. 6 at 5, ¶ 32.

Additionally, the District itself described Officer J.Y.’s

admittedly “administrative” position as “prominent.” Notice of

Proposed Action, ECF No. 24-9. Not only did Ms. Carter-Frost

work in the same office, it is undisputed that she also did

“administrative” work. Def.’s Mot., ECF No. 19 at 11. Therefore,

a reasonable jury could easily conclude that her former role was

“prominent” as well. Compare with Wade v. District of Columbia,

(D.D.C. 2011) (finding a lateral transfer

16 to patrol work not an adverse action when the Plaintiff provided

“no evidence” that the transfer affected the “privileges of his

employment”).

It may well be that patrol work is indeed more respected as

mission-critical and therefore, Ms. Carter-Frost’s

responsibilities were not diminished. But on this record, the

Court cannot agree with the District that its two employment

actions—the investigation and the transfer to the Fifth

District—were not adverse as a matter of law.

2. A Reasonable Jury Could Find That Gender Discrimination Motivated her Transfer to the Fifth District Having established a prima facie case, the burden is now on

the District to proffer a legitimate, non-discriminatory reason

for investigating Ms. Carter-Frost and detailing her to the

Fifth District to work patrol. The District does not provide any

justification in the “gender discrimination” section of their

motion, relying entirely on the argument that Ms. Carter-Frost

has not established a prima facie case. See Def.’s Mot., ECF No.

19 at 8-12. However, the District does put forward a legitimate,

non-discriminatory explanation in rebutting Ms. Carter-Frost’s

retaliation claim.

. Because the retaliation case

rests on the same alleged adverse action, the Court will assume

arguendo that the District intended to put forth the same

argument here. First, the District argues that it had a

17 legitimate reason to conduct the 2013 investigation because

there was good reason to believe that Ms. Carter-Frost and

Officer J.Y. violated its conflict of interest policy.

. Second, it argues that it had a legitimate reason to detail

Ms. Carter-Frost from the CID to the Forensics Unit and then to

the Fifth District because it was inappropriate for her to

continue as a T&A clerk in light her policy violation.

The District did have a legitimate, non-discriminatory

reason to conduct the investigation. It is undisputed that

Officer J.Y. allowed Ms. Carter-Frost to use his login

credentials to input her own time, violating MPD policy. See

Investigative Report, ECF No. 24-6 at 3. While Ms. Carter-Frost

claimed that she “was never told at training that she could not

enter time under someone else’s code,” there is no basis in the

record to believe that the investigation was unfounded or

initiated for pretextual reasons.

Additionally, the District

does assert a legitimate reason for detailing Ms. Carter-Frost

away from T&A work to the Forensics Unit, in light of her

violation. Def.’s Mot., ECF No. 19 at 18. However, the District

relies on this same explanation to justify detailing Ms. Carter-

Frost from the Forensics Unit—where she was not working as a T&A

clerk—to the Fifth District on patrol. See

This makes less

sense because the second transfer was not from a T&A position.

However, imposing disciplinary measures are legitimate when

18 warranted after a policy infraction. See Baloch,

. Ms. Carter-Frost testified that the involuntary detail to

the Fifth District was punishment, or “corrective action,” for

her infraction. Pl.’s Dep., ECF No. 24-2 at 52:24-53:19.

Because the District put forward a legitimate justification

for the adverse action, the burden flips to Ms. Carter-Frost to

establish that the District’s explanation is mere pretext, such

that a reasonable jury could conclude that the District was

motivated by gender. See Burdine,

. She met her

burden by providing evidence that the District treated similarly

situated male officers, specifically Officer J.Y., more

favorably than it did her. Pl.’s Opp’n, ECF No. 24 at 18-20.

A plaintiff can establish “pretext masking a discriminatory

motive by presenting ‘evidence suggesting that the employer

treated other employees of a different race [or gender] . . .

more favorably in the same factual circumstances.’” Burley v.

Nat’l Passenger Rail Corp.,

(D.C. Cir. 2015)

(quoting Brady,

). At the summary judgment stage,

a plaintiff must show, with “evidence substantiated by the

record” that she and the comparator are “similarly situated.”

Burton v. District of Columbia,

(D.D.C.

2015). “Factors that bear on whether someone is an appropriate

comparator include the similarity of the plaintiff's and the

putative comparator's jobs and job duties, whether they were

19 disciplined by the same supervisor, and, in cases involving

discipline, the similarity of their offenses.” Burley,

. Generally, “[w]hether two employees are similarly

situated ordinarily presents a question of fact for the

jury,” but the court may decide that employees are not similarly

situated as a matter of law if a reasonable jury would be unable

to conclude based on the facts that the two employees were

similarly situated. George v. Leavitt,

, 414–15

(D.C. Cir. 2005) (citations omitted.)

Ms. Carter-Frost presents evidence sufficient for a

reasonable jury to conclude that she and Officer J.Y. were

similarly situated. Specifically, the two performed

administrative work in the same office: CID Headquarters. Pl.’s

Dep., ECF No. 24-2 at 50:5-51:19; Recommendation Letter, ECF No.

24-7. Despite not having the same job title, the two did the

same type of work. Indeed, the District characterizes Ms.

Carter-Frost’s “type” of work as “administrative,” Def.’s Mot.,

ECF No. 19 at 11, and it describes Officer J.Y.’s “primary

duties” as “administrative,” Investigative Report, ECF No. 24-6

at 1. Despite not serving formally as a T&A clerk, Officer J.Y.

was certified as a T&A clerk and entered T&A periodically. Pl.’s

Dep., ECF No. 24-2 at 51:3-19. Like Ms. Carter-Frost, Officer

J.Y. also had T&A login credentials and did “on a number of

occasions” log onto the T&A database. Investigative Report, ECF

20 No. 24-6 at 3. As the District itself states, the only officers

who typically had T&A credentials “were time and attendance

clerks and supervisors”. Id. at 6; see also Notice of Proposed

Action, ECF No. 24-9 at 2. Viewing the evidence in the light

most favorable to Ms. Carter-Frost, a jury could find that

Officer J.Y.’s position was sufficiently similar to hers.

The District relies exclusively on Ms. Carter-Frost’s and

Officer J.Y.’s different job titles to justify its disparate

treatment of the two: “[e]ven though J.Y. was also subject to

the administrative investigation concerning time and attendance

records, he was not a time and attendance clerk in CID.

Therefore, he is not a proper comparator.” Def.’s Mot., ECF No.

19 at 19. In support, the District cites to a single affidavit,

which concludes, based on MPD records, that Officer J.Y.’s

duties did not include inputting T&A and that he was not a T&A

clerk. Tapp Aff., ECF No. 19-2 ¶¶ 8, 10. However, evidence in

the record discussed supra indicates that Officer J.Y. did in

fact input T&A. Furthermore, it is undisputed that Officer J.Y.

and Ms. Carter-Frost underwent the same administrative

investigation for the same charge and were both found to violate

the same policy. 2 Pl.’s Opp’n, ECF No. 24 ¶ 3.

2 Because Officer J.Y. and Ms. Carter-Frost both endured the administrative investigation and both potentially faced the same adverse consequences, a reasonable jury could not find that the District was motivated by Ms. Carter-Frost’s gender in 21 However, the District’s similar treatment of the two ends

there. Whereas Ms. Carter-Frost was detailed two times in three

months as “corrective action,” Officer J.Y. was not transferred

out of his “prominent” office and ultimately was not punished at

all. See Notice of Proposed Action, ECF No. 24-9; Appeal, ECF

No. 24-11. Therefore, a reasonable juror could infer, based on

the District’ unexplained disparate treatment, that it

transferred Ms. Carter-Frost to the Fifth District due to her

gender. Given this factual dispute, the District’s motion for

summary judgment on Ms. Carter-Frost’s gender discrimination

claim is DENIED. Ms. Carter-Frost’s claim may proceed, but only

to the extent that she argues that she endured gender

discrimination when she was transferred to the Fifth District.

C. A Reasonable Jury Could Not Find That Ms. Carter-Frost Was Subject to Retaliation

As with discrimination claims, a retaliation claim is

subject to the McDonnell Douglas framework. See McDonnell

Douglas Corp. v. Green,

(1973); Walker v.

Johnson,

(D.C. Cir. 2015). “Under that

framework, a plaintiff must first establish a prima facie case

of retaliation by showing (1) that [s]he engaged in statutorily

initiating it. Therefore, despite finding that the administrative investigation was an adverse action, Ms. Carter- Frost’s gender discrimination claim may not proceed on this basis. 22 protected activity; (2) that [s]he suffered a materially adverse

action by his employer; and (3) that a causal link connects the

two.” Jones v. Bernanke,

(D.C. Cir. 2009). If

the plaintiff establishes a prima facie case, the burden shifts

to the employer to articulate a legitimate, non-retaliatory

reason for its actions.

If the employer does so, the burden

shifts back to the plaintiff to demonstrate that the employer's

asserted non-retaliatory reason was mere pretext for

retaliation.

Thus, the “central question reduces to whether

the plaintiff has produced sufficient evidence for a reasonable

jury to find that the employer's asserted non-retaliatory reason

was not the actual reason for its adverse action and that the

employer intentionally retaliated against the plaintiff.”

Walker,

.

At issue is whether Ms. Carter-Frost established a prima

facie case—specifically whether she engaged in protected

activity and was subject to adverse action as a result. Ms.

Carter-Frost argues that she engaged in protected activity on

four occasions: (1) in 2002, when she filed an EEO claim with

MPD’s Internal Affairs office, Pl.’s Dep., ECF No. 24-2 at

27:12-29:22; (2) “beginning in early 2012,” when she complained

to her supervisors “regularly,” Compl., ECF No. 1 ¶ 56; (3) on

November 26, 2013, when she filed an EEO complaint with MPD’s

Internal Affairs regarding the Department’s discriminatory

23 treatment, id. ¶ 57; and (4) in August 2013, when she filed a

complaint with the EEOC, id. ¶¶ 58, 59. Ms. Carter-Frost also

argues that she was subject to several adverse actions as a

result of her protected activity. She alleges that she was: (1)

“segregated from her coworkers”; (2) “audited”; (3) “placed

under investigation”; (4) denied requests for leave, overtime,

and a schedule change; (5) “involuntarily detailed” twice; and

(6) denied requests for a detail back to her T&A position. Id.

¶¶ 56, 60. The District argues that Ms. Carter-Frost failed to

establish a prima facie case as a matter of law because there is

no record of her first three complaints. Def.’s Mot., ECF No. 19

at 12-16. Moreover, the District points out that her final EEOC

complaint was filed after the alleged retaliatory behavior and

thus her activity could not have caused any retaliatory action.

Id. at 13-14.

Beyond Ms. Carter-Frost’s self-serving deposition

testimony, there is no evidence that she filed any complaint or

regularly complained to her supervisors. See generally Pl.’s

Opp’n, ECF No. 24 at 23-29. In contrast, the District submitted

an affidavit from EEO Internal Affairs Branch Investigator Tapp,

who stated that the EEO Office has no record of any complaint

from Ms. Carter-Frost in 2002 and 2012. See Tapp Aff., ECF No.

19-2 ¶¶ 3, 4; see Fields v. Office of Johnson,

(D.D.C. 2007) (“Self-serving testimony does not create

24 genuine issues of material fact, especially where that very

testimony suggests that corroborating evidence should be readily

available.”). Moreover, Ms. Carter-Frost’s own deposition on

this subject contradicts her argument. She undermined her claim

that she “regularly complained” to her supervisors about

discriminatory treatment when she could only recall one

complaint to a supervisor. Specifically, she could only identify

a single time that she complained during the spring of 2012 when

she posted a “written post-it note” on her supervisor’s door.

Pl.’s Dep., ECF No. 24-2 at 35:15-36:6. Ms. Carter-Frost could

not remember whether her supervisor responded to the complaint.

Id. at 36:11-13. These vague, self-serving allegations are not

sufficient evidence to create a dispute of material fact. See

Arrington v. United States,

(D.C. Cir.

2006)(“When a plaintiff relies entirely on his own self-serving

testimony, which lacks any corroboration and is contradicted by

all the available . . . evidence, a court is not obligated to

reward the plaintiff with a jury trial.”). While it is

undisputed that Ms. Carter-Frost filed an amended EEOC claim in

August 2013, see ECF No. 24-3, all of the alleged adverse

actions occurred prior to February 2013. Therefore, Ms. Carter-

Frost cannot establish that the District’s actions were in

retaliation for any protected activity.

25 Moreover, even if Ms. Carter-Frost had established a prima

facie case, she fails to rebut the District’s legitimate,

nondiscriminatory reasons for the alleged adverse actions. As

discussed above, the District investigated Ms. Carter-Frost,

detailed her from T&A work, and denied her requests to return to

T&A work—all because she had violated MPD T&A policy. See Def.’s

Mot., ECF No. 19 at 18; see, e.g., Baloch,

(finding it legitimate that an employer took adverse action

because the “disciplinary measures . . . occurred only after

various infractions” and therefore “good institutional

administration” justified discipline).

Ms. Carter-Frost raises the same comparator argument as she

did for her gender discrimination claim—that the District’s

reasons are pretextual because she was treated differently than

similarly situated male officers. Pl.’s Opp’n, ECF No. 24 at 25-

29. However, unlike her discrimination claim, Ms. Carter-Frost

fails to establish that Officer J.Y. and other male officers are

proper comparators because she includes no information, beyond

speculative conclusions, about the male officers’ protected

activity. See

Without this information, the Court has no

basis to find that the male officers and Ms. Carter-Frost are

similarly situated. To succeed in a disparate treatment

argument, “a plaintiff can cite the employer's better treatment

of similarly situated employees outside the plaintiff's

26 protected group . . . .” Toomer,

at *7 (citing

Walker,

)(emphasis added). For the

discrimination analysis, the Court had that information

concerning Officer J.Y.’s gender. Here, the Court has no

information as to whether Officer J.Y. is “outside” Ms. Carter-

Frost’s “protected group,” that is, employees who engage in

protected activity. See Felder v. Johanns,

(D.D.C. 2009)(examining whether the comparator employee

“engaged in protected activity” to determine whether that

employee was treated more favorably); Anderson v. Donahoe,

(7th Cir. 2012) (“Plaintiff has not identified

other employees who did not file EEO complaints (or engage in

similar protected activity) that received more favorable

treatment . . . . his claim fails.”). Ms. Carter-Frost merely

speculates that Officer J.Y. has “no known EEO activity” without

citing support in the record. Compl., ECF No. 1 ¶ 32. While the

Court must examine the facts in the light most favorable to Ms.

Carter-Frost, it cannot “accept bare conclusory allegations as

fact.” Taylor v. FDIC,

(D.C. Cir. 1997).

Therefore, unlike her discrimination claim, Ms. Carter-Frost

failed present evidence such that a reasonable jury could

believe that she suffered retaliation as a result of protected

activity, the District’s motion for summary judgment on this

claim is GRANTED.

27 D. A Reasonable Jury Could Not Conclude That Ms. Carter- Frost Was Subject to a Hostile Working Environment

Ms. Carter-Frost alleges that, as a result of her protected

status and protected activity, the District subjected her to a

hostile working environment. See Compl., ECF No. 1 ¶¶ 73-84.

According to Ms. Carter-Frost, she was “regularly and

continually subjected to harassing conduct” including: (1)

subjecting her to an investigation; (2) segregating her from her

coworkers by detailing her to a “solitary assignment in a room

with no phone or windows”; (3) denying her leave, overtime, and

a schedule change; and (4) “involuntarily” detailing her to

patrol work. Id. ¶ 75. Ms. Carter-Frost alleges that this

harassment caused “routine[] humiliation.” Id. ¶ 74. The

District argues that Ms. Carter-Frost’s claim fails as a matter

of law because she has not presented any evidence of a hostile

work environment. Def.’s Mot., ECF No. 19 at 19-21.

To prevail on a hostile work environment claim “a plaintiff

must show that [her] employer subjected [her] to ‘discriminatory

intimidation, ridicule, and insult’ that is ‘sufficiently severe

or pervasive to alter the conditions of the victim's employment

and create an abusive working environment.’” Baloch v.

Kempthorne,

(D.C. Cir. 2008) (quoting Harris

v. Forklift Sys., Inc.,

(1993)). Whether a

workplace is actionably hostile involves both subjective and

28 objective analysis: “[t]he victim must subjectively perceive the

environment to be abusive, and the complained about conduct must

be so severe or pervasive that it objectively creates a hostile

or abusive work environment.” Toomer,

at *3

(citing Harris, 510 U.S. at 21–22). The court assesses a

workplace environment by looking 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.” Baloch,

(citing Faragher v. City of Boca Raton,

, 787–88 (1998)). “These standards for judging hostility are

sufficiently demanding to ensure that Title VII does not become

a general civility code.” Faragher,

(internal

citation and quotation omitted). In an effort to “filter out”

complaints attacking the “ordinary tribulations of the

workplace,” the Supreme Court has “made it clear that conduct

must be extreme to amount to a change in the terms and

conditions of employment . . . .”

(internal citation and

quotation omitted).

Although Ms. Carter-Frost has alleged that she felt

harassed and humiliated, none of Ms. Carter-Frost’s allegations,

taken alone or in combination, suggest an objectively hostile

work environment. Ms. Carter-Frost alleges that she was

“regularly and continually subjected to harassing conduct,” but

29 the evidence that she relies on does not rise to the level of an

objectively hostile treatment. For example, Ms. Carter-Frost was

subject to an investigation for undisputed T&A violations. See

Investigative Report, ECF No. 24-6 at 3. She was detailed away

from her former colleagues as a result of that undisputed

violation. Def.’s Mot., ECF No. 19 at 18; Pl.’s Dep., ECF No.

24-2 at 52:24-53:19. Furthermore, she has not established that

she was regularly denied her requests for leave and schedule

changes. See generally Pl.’s Opp’n, ECF No. 24. Therefore, this

alleged “harassment” evidence does not show that the MPD was a

workplace permeated with “discriminatory intimidation, ridicule

and insult.” Harris,

(quotation marks omitted).

Just as in Outlaw v. Johnson, Ms. Carter-Frost “incorporated,

without elaboration, the allegations of disparate treatment on

which [she] relies for [her] [gender]-discrimination [and

retaliation] claims,” allegations that “cannot alone support a

hostile-work-environment claim.”

(D.D.C.

2014). “Ultimately, ‘mere reference to alleged disparate acts of

discrimination ... cannot be transformed, without more, into a

hostile work environment.’”

at 92 (quoting Nurriddin v.

Bolden,

(D.D.C. 2009)). Ms. Carter-Frost

does not, as she must, describe the “day-to-day” insult or

intimidation that a hostile work environment claim requires.

. Indeed, she does nothing more than state that she felt

30 humiliated as a result of MPD’s discriminatory treatment. See

Compl., ECF No. 1 at ¶¶ 73-84.

While Ms. Carter-Frost does complain of a single instance

of intimidation—she was “yelled at onsite and [had] her personal

space encroached upon by [her supervisor],” was “taunted” by the

supervisor, and had “to deal with implicit threats to her job”—

the record does not support that Ms. Carter-Frost’s day-to-day

environment was objectively hostile. Pl.’s Opp’n, ECF No. 24 at

24; Pl.’s Dep., ECF No. 24-2 at 32:14-34:5. For example, Ms.

Carter-Frost could not remember what the supervisor said during

this lone encounter, testifying that she was intimidated because

of the supervisor’s “tone.”

No reasonable jury could find

this single encounter sufficient to support a hostile work

environment claim because it does not demonstrate a

“sufficiently pervasive pattern” of hostile conduct. Toomer,

at *6. Indeed, a “singular stray comment does

not a hostile environment make.” Freedman v. MCI Telecommc’ns

Corp.,

(D.C. Cir. 2001). Moreover, as in

Baloch, Ms. Carter-Frost’s assertions of pervasive abuse are

undermined by “the sporadic nature of the conflicts.” Baloch,

. While Ms. Carter-Frost may have had “clashes”

with her supervisors, the totality of the circumstances does not

rise to the pervasive pattern necessary to support a hostile

work environment claim.

Therefore, the District’s motion for

31 summary judgment as to the hostile work environment claim is

GRANTED.

V. Conclusion

For the foregoing reasons, the District’s summary judgment

is DENIED IN PART and GRANTED IN PART. Ms. Carter-Frost’s

remaining claim is her gender discrimination claim regarding the

“corrective action” lateral transfer to the Fifth District. A

separate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge April 9, 2018

32