Tridico v. District of Columbia , 130 F. Supp. 3d 17 ( 2015 )


Menu:
  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    PHILIP J. TRIDICO,
    Plaintiff,
    v.                                 Civil Action No. 13-0937 (ESH)
    DISTRICT OF COLUMBIA,
    Defendant.
    MEMORANDUM OPINION
    Plaintiff Officer Philip J. Tridico brings this action against the District of Columbia
    alleging that he has been, and continues to be, subjected to discrimination, retaliation, and a
    hostile work environment based on his religion and past military service. (See Compl., June 21,
    2013 [ECF No. 1].) Defendant now moves for summary judgment. (Def.’s Mot. for S. J. and to
    Dismiss, May 18, 2015 [ECF No. 26] (“Mot.”).) For the following reasons, the motion is
    granted in part and denied in part.
    BACKGROUND
    Plaintiff, a Roman Catholic, served in the United States Marine Corps and the Marine
    Corps Reserves as a Corporal from 1992 until 1999, when he was honorably discharged. (See
    Pl.’s St. of Mat. Facts in Dispute, June 22, 2014 [ECF No. 29] at 1.) He has been employed by
    the Metropolitan Police Department (“MPD”) in the District of Columbia since 2006. (See Pl.’s
    St. of Mat. Facts in Dispute, Ex. 2, June 22, 2014 [ECF No. 29-2] (“Pl. Dep. Tr.”) at 23.)
    Plaintiff was assigned to the Crime Patrol Unit until 2008, when he was transferred to the Auto
    Theft Unit. (See 
    id. at 24.)
    In January 2009, plaintiff was assigned to the Sixth District
    Narcotics Unit (“Narcotics”) where he was supervised by Sergeant Matthew Nickerson and
    Sergeant Ernest Grant, under Lieutenant Gary Fitzgerald’s and Captain Keith Deville’s chain of
    command. (See Compl. ¶¶ 19-20; Pl. Dep. Tr. at 30.)
    Soon after plaintiff arrived in Narcotics in early 2009, he approached Lieutenant
    Fitzgerald about his concern with other officers, including Officer Samoli Fuller, calling plaintiff
    a “White Boy,” the frequent use of the “N-word” by officers, and the display of pornography in
    the workplace. (See Pl. Dep. Tr. at 31-33.) Three or four days later, plaintiff heard from another
    officer that Officer Fuller was under investigation for the behavior that plaintiff had reported.
    (See 
    id. at 32.)
    Officer Fuller was either terminated or resigned shortly thereafter. (See 
    id. at 35-
    36.) Following these events, Sergeant Nickerson began to call plaintiff “moral” and “sensitive.”
    Plaintiff alleges that he was labeled moral because of his objection to pornography, which he
    believes Sergeant Nickerson attributed to plaintiff’s religion. (See 
    id. at 33.)
    In the summer of 2009, plaintiff crossed himself before eating his lunch. (See 
    id. at 37.)
    Witnessing plaintiff’s gesture, Sergeant Nickerson pointed at plaintiff and declared, “[T]hat is
    why he is so weird, he believes in that weirdo Jesus shit.” (See id.) Following this interaction,
    Sergeant Nickerson repeatedly referred to plaintiff as “weirdo,” so often that plaintiff does not
    recall Sergeant Nickerson using his name at any point thereafter. (See id.) On another occasion,
    plaintiff came to the office wearing a sweater after appearing in court and attending church.
    Upon seeing plaintiff and learning that plaintiff had attended church, Sergeant Nickerson
    remarked, “Church! That is a waste of time.” (Id. at 55.) Plaintiff notes that these comments
    were about his “morals, [his] values, [his] upbringing, [his] religion.” (Id. at 57.)
    Plaintiff alleges that the “daily harassment and discrimination” he endured also related to
    his prior military service. (Pl.’s Opp. to Mot., June 22, 2015 [ECF No. 30] (“Opp.”) at 4.)
    2
    Sergeant Nickerson repeatedly told other officers in Narcotics that plaintiff was “crazy,” suffered
    from post-traumatic stress disorder (“PTSD”), was a “PTSD motherfucker,” heard “voices in his
    head,” and could “go off at any time.” (Pl. Dep. Tr. at 37-38.) Sergeant Nickerson frequently
    referred to plaintiff as a “retard,” “psycho,” and “killer.” (Id. at 37-38, 54.) In July 2010, when
    plaintiff asked Sergeant Nickerson to pass him a knife, Sergeant Nickerson responded, “I’ll pass
    you the knife, you kill yourself . . . [Y]ou are not good for anything anyway.” (Id. at 62.) On
    another occasion, plaintiff asked Sergeant Nickerson for information regarding confiscated
    property, and Sergeant Nickerson responded, “What’s the voices in your head say you PTSD
    motherfucker.” (Id. at 58.)
    Plaintiff acknowledged that Sergeant Nickerson was “the only one that gave [him] those
    comments” and “when [Sergeant Nickerson] wasn’t there, he wasn’t at work, [plaintiff] had
    peace because nobody else would say it.” (Id. at 64.) However, Officer Victoria Gibson, an
    officer with whom plaintiff previously had a romantic relationship, also engaged in harassing
    behavior. (See 
    id. at 45.)
    In early 2010, Officer Gibson printed pictures and posted them above
    the community desk where plaintiff regularly worked. (See 
    id. at 47.)
    One of the pictures
    depicted Pope John Paul II with the word “weirdo” handwritten on it. (See id.) Alongside the
    picture of the Pope, Officer Gibson had also posted a picture of a United States marine holding a
    rifle with the word “killer” handwritten on the photo. (See id.) The pictures, posted near a
    communal printer, were highly visible to plaintiff and his coworkers. (See id.) Lieutenant
    Fitzgerald was nearby when several officers were laughing at the pictures, and he “kind of
    chuckled and walked away.” (Id. at 80.) The offensive photographs remained posted on the
    community desk for several months and were only removed to prepare for an office inspection
    by the Internal Affairs Division. (See 
    id. at 79.)
    3
    At one point, plaintiff asked Sergeant Nickerson to refrain from calling him names. (See
    Pl. Dep. Tr. at 56-57.) Sergeant Nickerson responded that he was a sergeant and plaintiff could
    not talk to him that way. He also told plaintiff that “you know I’m just going to fuck with you.”
    (Id. at 57.) Plaintiff spoke with Sergeant Grant between May 2010 and August 2010 about
    Sergeant Nickerson’s comments. (See 
    id. at 64.)
    Sergeant Grant advised plaintiff that he was
    “just internalizing it, just let it go.” (Id. at 65.) Plaintiff alleges that he was not able to let it go,
    and the harassment affected his employment and health. For example, in July 2010, plaintiff sat
    in the roll call room and avoided the Narcotics office to “get away from the beating.” (Id. at 63.)
    As a result of the harassment, plaintiff says he still suffers from headaches, nausea, loss of sleep,
    and anxiety, and regularly attends therapy. (See 
    id. at 85-86.)
    Following an instance when Sergeant Nickerson called plaintiff a “fucking retard,”
    plaintiff reported the ongoing harassment to Lieutenant Fitzgerald on August 12, 2010. (See 
    id. at 77.)
    Lieutenant Fitzgerald said that he did not know why people disliked plaintiff and
    suggested that he take annual leave for two days. (See 
    id. at 74.)
    On August 13, 2010, plaintiff
    called Officer Jody Shegan, a union representative, and communicated some of Sergeant
    Nickerson’s comments. (See 
    id. at 75.)
    Officer Shegan then informed the Internal Affairs
    Division of plaintiff’s concerns, which upset plaintiff because he was worried about
    repercussions for complaining. (See 
    id. at 75-76.)
    Thereafter, plaintiff received a call from the
    Internal Affairs Division, and he discussed how he was being treated by Sergeant Nickerson.
    (See 
    id. at 76.)
    When plaintiff returned to work on August 17, 2010, he met with Captain Deville,
    Lieutenant Fitzgerald, and Officer Shegan. (See 
    id. at 96.)
    Captain Deville informed plaintiff
    that the Department would investigate plaintiff’s allegations and asked him how he would handle
    4
    future incidents of harassment from Sergeant Nickerson. (See Pl. Dep. Tr. at 96, 98.) When
    plaintiff responded that he would write them down and inform Captain Deville, the Captain
    “shrugged his shoulders” and said “you are out . . . . you are out of the office.” (Id. at 98.)
    Plaintiff requested to be transferred to the Narcotics and Special Investigations Division
    (“NSID”), but instead, he was transferred to the Auto Theft Unit, although he was permitted to
    continue to work on some narcotics cases. (See 
    id. at 102,
    104.) Later that day, Captain Deville
    again met with plaintiff and asked him if he was going to file an Equal Employment Opportunity
    (“EEO”) complaint. (See 
    id. 100-01.) Plaintiff
    responded that he intended to do so. (See id.)
    Plaintiff filed an internal EEO complaint with MPD’s Internal Affairs Division and EEO
    Compliance Branch on August 22, 2010. (See Pl.’s St. of Mat. Facts in Dispute at 9.)
    Plaintiff alleges that in retaliation for complaining in August 2010, Captain Deville
    transferred him to the Auto Theft Unit on the same day that he filed his EEO internal complaint.
    (See Compl. ¶ 51.) Following the reassignment, plaintiff was under the direct supervision of
    Sergeant Drummond, but the rest of the chain of command remained the same. (See Pl. Dep. Tr.
    at 104.) In the Auto Theft Unit, plaintiff participated in fewer search and arrest warrants. (See
    
    id. at 187.)
    As a result, plaintiff appeared in court less, reducing his overtime pay significantly.
    (See 
    id. at 188.)
    In 2009, plaintiff earned between $75,000 and $80,000, but in 2011, plaintiff
    earned only $54,000. (See id.)
    In the Auto Theft Unit, plaintiff no longer interacted frequently with Sergeant Nickerson,
    but he nonetheless alleges that he was still retaliated against in numerous ways for his EEO
    complaint. (See 
    id. at 103.)
    Specifically, he was required to wear a uniform even though he had
    previously been allowed to work in plain clothes. (See id.) He was also directed to drive a
    marked scout car instead of an unmarked car. (See id.) When plaintiff was allowed to drive an
    5
    unmarked car, his vehicle lacked police lights or sirens. (See 
    id. at 128.)
    Plaintiff was not
    provided with a laptop for his vehicle even though some vehicles were equipped with two
    laptops if two officers rode together. (See Pl.’s Dep. Tr. at 129.) Plaintiff alleges that he was
    assigned responsibilities below his seniority level, and his supervisors and fellow officers
    declined to inform him about assignments, Unit schedules, and search warrants. (See 
    id. at 134-
    37.) Plaintiff participated in the Robbery Intervention Program, but when the program was
    temporarily suspended, plaintiff was not permitted to resume his detail because of what one
    sergeant described as plaintiff’s “administrative issues.” (Id. at 141-42.) Plaintiff was
    eventually transferred to the Crime Patrol Unit where he currently works under the supervision
    of Sergeant Williams, Captain Carrol, and Commander Contee. Plaintiff claims this was a
    demotion. (See Compl. ¶ 56.)
    On March 11, 2011, plaintiff filed a discrimination claim against MPD with the D.C.
    Office of Human Rights (“DCOHR”) alleging that he was subjected to a hostile work
    environment on account of his religion and retaliation. (See Pl.’s St. of Mat. Facts in Dispute at
    9.) The DCOHR determined that there was probable cause to believe that the District had
    subjected plaintiff to a hostile work environment because of his religion, but that there was no
    probable cause to support his retaliation claim. (See 
    id. at 10.)
    In his complaint, plaintiff alleges that defendant subjected him to discrimination and a
    hostile work environment because of his religion in violation of Title VII of the Civil Rights Act,
    42 U.S.C. §§ 2000e, et seq., and his prior military service in violation of the Uniformed Services
    Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301, et seq. Plaintiff
    also alleges that defendant retaliated against him for his protected activity and is liable for
    negligently retaining and supervising Sergeant Nickerson. Finally, plaintiff has brought
    6
    discrimination, hostile work environment, and retaliation claims under the District of Columbia
    Human Rights Act, D.C. Code §§ 2-1401, et seq., but has now dismissed those claims. (See
    Opp. at 9 n.2.)
    In its motion for summary judgment, defendant argues that plaintiff (1) failed to exhaust
    his administrative remedies with respect to his Title VII discrimination and retaliation claims; (2)
    cannot prove a prima facie case for discrimination based on military service; (3) cannot prove a
    hostile work environment under Title VII; (4) cannot bring a hostile work environment claim
    under USERRA; (5) cannot prove a prima facie case for retaliation under Title VII and has not
    stated a claim for retaliation under USERRA; and (6) is precluded from bringing his negligence
    claim because it is preempted by Title VII.
    ANALYSIS
    I.     STANDARD OF REVIEW
    Under Federal Civil Rule of Procedure 56, a motion for summary judgment shall be
    granted if the pleadings, discovery, and any affidavits show 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); see also Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 247-48 (1986). “A genuine issue
    of material fact exists if the evidence, viewed in a light most favorable to the nonmoving party,
    could support a reasonable jury’s verdict for the non-moving party.” Brooks v. Grundmann, 
    748 F.3d 1273
    , 1276 (D.C. Cir. 2014) (quoting Hampton v. Vilsack, 
    685 F.3d 1096
    , 1099 (D.C. Cir.
    2012)) (internal citation marks omitted). A moving party is thus entitled to summary judgment
    against “a party who fails to make a showing sufficient to establish the existence of an element
    essential to that party’s case, and on which that party will bear the burden of proof at trial.”
    7
    Waterhouse v. District of Columbia, 
    298 F.3d 989
    , 992 (D.C. Cir. 2002) (quoting Celotex Corp.
    v. Catrett, 
    477 U.S. 317
    , 322 (1986)).
    In considering a motion for summary judgment, the “evidence of the non-movant is to be
    believed, and all justifiable inferences are to be drawn in his favor.” 
    Anderson, 477 U.S. at 255
    .
    The non-moving party’s opposition, however, must consist of more than mere unsupported
    allegations or denials and must be supported by affidavits or other competent evidence setting
    forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
    II.    FAILURE TO EXHAUST
    Defendant contends that plaintiff failed to exhaust his administrative remedies, as
    required by Title VII, with respect to his discrimination claim and certain retaliatory actions.
    (See Mot. at 6.) The EEOC has “established detailed procedures for the administrative resolution
    of discrimination complaints” which “[c]omplainants must timely exhaust . . . before bringing
    their claims to court.” Bowden v. United States, 
    106 F.3d 433
    , 437 (D.C. Cir. 1997). Further, a
    “Title VII lawsuit following the EEOC charge is limited in scope to claims that are ‘like or
    reasonably related to the allegations of the charge and growing out of such allegations.’” Park v.
    Howard Univ., 
    71 F.3d 904
    , 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S. Life Ins. Co., 
    31 F.3d 497
    , 500 (7th Cir. 1994)). “At a minimum, the Title VII claims must arise from ‘the
    administrative investigation that can reasonably be expected to follow the charge of
    discrimination.’” 
    Park, 71 F.3d at 907
    . The burden falls on defendant to prove by a
    preponderance of the evidence that plaintiff failed to exhaust administrative remedies. See
    Na’im v. Rice, 
    577 F. Supp. 2d 361
    , 370 (D.D.C. 1008) (citing Brown v. Marsh, 
    777 F.2d 8
    , 13
    (D.C. Cir. 1985)).
    8
    a. Title VII Discrimination Claim
    Defendant argues that plaintiff’s Title VII discrimination claim is “completely different”
    from the charges he brought before the EEOC. Specifically, defendant argues that plaintiff
    alleged before the EEOC “that he was harassed based on, among various other things, his
    religion,” but neglected to specify that he was transferred to the Auto Theft Unit because he is
    Catholic. (Mot. at 6-7.) Further, because plaintiff noted that he was transferred in retaliation for
    complaining about Sergeant Nickerson’s comments, “the inference that he was transferred
    because of his religion did not arise from any administrative investigation.” (Id. at 7.) Plaintiff
    responds that notwithstanding the fact that he organized his EEOC charges under the headings
    “Hostile Work Environment” and “Retaliation” (Mot., Ex. 1, Charge of Discrimination Form
    [ECF No. 26-1] (“EEOC Charge”) at 1), he adequately alleged that he suffered an adverse action
    that was motivated by religious animus. (See Opp. at 10.)
    The Court agrees that plaintiff need not have included a specific “Discrimination”
    heading in his EEOC charges in order to exhaust this claim. See Wiley v. Glassman, 
    511 F.3d 151
    , 160 (D.C. Cir. 2007) (failure to specifically list retaliation claim in formal administrative
    complaint did not undermine exhaustion). Rather, the substance of the Title VII claim must be
    within the overall scope of “the administrative investigation that can reasonably be expected to
    follow the charge of discrimination.” Marshall v. Fed. Exp. Corp., 
    130 F.3d 1095
    , 1098 (D.C.
    Cir. 1997) (quoting 
    Park, 71 F.3d at 907
    ). Plaintiff’s administrative charges describe a series of
    religiously offensive comments made by one of his supervisors followed by an adverse
    employment action (i.e., the transfer to the Auto Theft Unit). (See EEOC Charge at 1-2.)
    Plaintiff also stated in the EEOC complaint that he “charge[s] Respondent with unlawful
    discriminatory acts in violation of Title VII of the Civil Rights Act.” (Id.) Based on these facts,
    9
    the Court concludes that the allegations plaintiff included in his EEOC complaint were sufficient
    to trigger an investigation into whether plaintiff suffered an adverse action because of his
    religion. Thus, plaintiff exhausted his administrative remedies with respect to his Title VII
    religious discrimination claim.
    b. Title VII Retaliation Claim
    Defendant also argues that plaintiff’s retaliation claim is limited to his reassignment to
    the Auto Theft Unit, which is the only adverse action alleged in the EEOC charge, since the
    other adverse employment actions alleged in the complaint were not included in the EEOC
    charge. (See Mot. at 7-8 (citing Compl. ¶ 56).) Plaintiff responds that “exhaustion is not
    required for discrete acts of retaliation as long as the acts fall within the statutory period and are
    like or related to the administrative allegations.” (Opp. at 11-12 (citing Contreras v. Ridge, 
    305 F. Supp. 2d 126
    , 135 (D.D.C. 2004).)
    “The administrative charge requirement serves the important purposes of giving the
    charged party notice of the claim and ‘narrow[ing] the issues for prompt adjudication and
    decision.’” 
    Park, 71 F.3d at 907
    (quoting Laffey v. NW Airlines, Inc., 
    567 F.2d 429
    , 472 n.325
    (D.C. Cir. 1976)). To achieve this purpose, “[n]aturally every detail of the eventual complaint
    need not be presaged in the EEOC filing, but the substance of . . . a Title VII claim [ ] must fall
    within the scope of ‘the administrative investigation that can reasonably be expected to follow
    the charge of discrimination.’” 
    Marshall, 130 F.3d at 1098
    (quoting 
    Park, 71 F.3d at 907
    ).
    Plaintiff’s EEOC charge alleges that he was transferred to the Auto Theft Unit in
    retaliation for his internal complaint. (See EEOC Charge at 1-2.) The additional retaliatory acts
    enumerated in the complaint resulted from his transfer. (See Compl. ¶ 56.) For example,
    plaintiff alleges that following his transfer, he was the only officer required to wear a police
    10
    uniform, relegated to a marked police car instead of an unmarked cruiser, denied a police laptop,
    and assigned responsibilities below his seniority. (See id.) These allegations grew out of the
    adverse action included in the EEOC charge, and it is reasonable to assume that the EEOC’s
    investigation would have addressed the consequences of plaintiff’s transfer. Therefore, the Court
    concludes that defendant has not met its burden of proving that these retaliatory acts were not
    exhausted.
    III.   DISCRIMINATION 1
    Under USERRA, “[a] person who is a member of . . . or has an obligation to perform
    service in a uniformed service shall not be denied initial employment, reemployment, retention
    in employment, promotion, or any benefit of employment by an employer on the basis of that
    membership.” 38 U.S.C. § 4311(a). USERRA also provides that “[a]n employer shall be
    considered to have engaged in actions prohibited . . . under subsection (a), if the person’s
    membership . . . is a motivating factor in the employer’s action, unless the employer can prove
    that the action would have been taken in the absence of such membership.” 38 U.S.C. § 4311(c).
    An employee who brings a discrimination claim under USERRA must show by a
    preponderance of the evidence that his membership in the uniformed services was a substantial
    or motivating factor in the adverse employment action. See Potts v. Howard Univ. Hosp., 843 F.
    Supp. 2d 101, 104 (D.D.C. 2012). “If the employee successfully makes that prima facie
    1
    In its motion for summary judgment, defendant relies only on its exhaustion arguments to
    justify dismissal of plaintiff’s Title VII discrimination claim. In its reply, however, defendant
    argues for the first time that plaintiff has failed to show that he suffered an adverse action
    motivated by religious discrimination. (See Reply, July 17, 2015 [ECF No. 34] at 5-7.) In
    considering a motion for summary judgment, it is within the Court’s discretion to ignore the
    movant’s arguments made in the first instance in its reply. See U.S. ex rel Purcell v. MWI Corp.,
    
    520 F. Supp. 2d 158
    , 166 (D.D.C. 2007). The Court will therefore not address the arguments
    raised for the first time in defendant’s reply.
    11
    showing, the employer can avoid liability by demonstrating that it would have taken the same
    action anyway for a valid reason, without regard to the employee’s military service.” 
    Id. (citing Erickson
    v. U.S. Postal Serv., 
    571 F.3d 1364
    , 1368 (Fed. Cir. 2009)).
    Defendant argues that plaintiff cannot carry his burden of making a prima facie showing
    that his prior military service was a motivating factor in the decision to transfer him to the Auto
    Theft Unit. Defendant does not contest plaintiff’s allegations that he served in the military or
    that the transfer to the Auto Theft Unit was an adverse employment action (see Opp. at 15), so
    the only issue is whether plaintiff’s prior military service was a motivating factor in the
    employer’s adverse action.
    Plaintiff contends that defendant misstates the record and that the evidence shows that
    defendant took into account plaintiff’s military service when deciding to transfer him. However,
    the events that plaintiff relies upon are examples of harassment by Sergeant Nickerson and
    Officer Gibson. (See Opp. at 15-16.) Indeed, plaintiff cites evidence that Sergeant Nickerson
    expressed animus toward plaintiff because of his prior military service, but he does not show that
    these actions were causal factors underlying Captain Deville’s decision to transfer plaintiff.
    According to plaintiff’s deposition, only Lieutenant Fitzgerald, Captain Deville, and Officer
    Shegan, the union representative, were present at the August 17, 2010 meeting in which plaintiff
    was informed he would be transferred out of Narcotics. (See Pl. Dep. Tr. at 96.) Not only was
    Sergeant Nickerson not present at the meeting, but there is no evidence that he submitted a
    report, written or verbal, to Lieutenant Fitzgerald or Captain Deville regarding plaintiff that may
    have influenced the employment action. In fact, there is no evidence that the individuals who
    made the decision to transfer plaintiff had any contact with Sergeant Nickerson before
    transferring plaintiff.
    12
    Without any evidence that Sergeant Nickerson intended to cause, and did in fact cause,
    the adverse employment action, plaintiff cannot meet his burden. For example, in Staub v.
    Proctor Hosp., the plaintiff’s immediate supervisors included negative entries in his personnel
    file out of hostility toward his military obligations with the intention that he would be fired. 
    562 U.S. 411
    , 414 (2011). There was no evidence that the individual who eventually terminated the
    plaintiff harbored any such hostility, but the Supreme Court held that the defendant was liable
    because the discriminatory acts of the plaintiff’s supervisors caused the adverse action. See 
    id. at 423.
    The Court noted that the termination notice expressly stated that the plaintiff was fired
    because of the negative reports in his personnel file and that the two supervisors had the specific
    intent to cause the plaintiff to be terminated. See 
    id. By contrast,
    “if the employer’s
    investigation results in an adverse action for reasons unrelated to the supervisor’s original biased
    action . . . , then the employer will not be liable.” 
    Id. at 421.
    Here, plaintiff has not identified
    any evidence that Sergeant Nickerson, or any others who expressed discriminatory animus,
    “intended to cause, and did in fact cause, an adverse employment decision.” 
    Id. Plaintiff also
    asserts that he “endured disparate treatment and discriminatory statements
    and actions” by Sergeant Drummond and Captain Deville, but he does not present any evidence
    to support the contention that these supervisors discriminated against him on the basis of his
    military service. (Opp. at 16-17.) “Circumstantial evidence will often be a factor in [USERRA]
    cases, for discrimination is seldom open or notorious,” but plaintiff does not provide even
    circumstantial evidence that the transfer decision was motivated by his prior military service.
    Sheehan v. Dep’t of Navy, 
    240 F.3d 1009
    , 1014 (Fed. Cir. 2001). Plaintiff points to the
    deposition testimony of Officers Tridico and Tabitha Alberti to “demonstrate numerous instances
    of disparate treatment concerning Officer Tridico,” but neither officer testified that Sergeant
    13
    Drummond or Captain Deville treated plaintiff negatively because of his military service. (Opp.
    at 17.) In fact, the only reason plaintiff and Officer Alberti cite to explain the treatment at the
    hands of Sergeant Drummond and Captain Deville is that plaintiff engaged in protected activity
    by complaining about the discriminatory behavior of others. (See Pl. Dep. Tr. at 98, 187; Pl.’s
    St. of Mat. Facts in Dispute, Ex. 3, June 22, 2015 [ECF No. 29-3] (“Alberti Tr.”) at 38, 114.)
    Without evidence that plaintiff’s military service was a factor in the alleged disparate treatment,
    plaintiff has not met his burden under USERRA to support a discrimination claim. See 
    Sheehan, 240 F.3d at 1015
    (“[C]laimants must show evidence of discrimination other than the fact of non-
    selection and membership in the protected class.”). Thus, the discrimination claim in Count III is
    dismissed.
    IV.    RETALIATION
    a. Based on Religion
    Under Title VII, it is unlawful for an employer to “discriminate against any of his
    employees . . . because he has made a charge, testified, assisted, or participated in any manner in
    an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To
    succeed in a retaliation claim, plaintiff must prove “(1) that he engaged in statutorily protected
    activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal
    link connects the two.” Jones v. Bernanke, 
    557 F.3d 670
    , 677 (D.C. Cir. 2009). A “materially
    adverse action” is an action that “well might have ‘dissuaded a reasonable worker from making
    or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White, 
    548 U.S. 53
    , 68 (2006) (quoting Rochon v. Gonzales, 
    438 F.3d 1211
    , 1219 (D.C. Cir. 2006)). To meet the
    causal nexus prong, the plaintiff “must demonstrate by direct or circumstantial evidence that the
    employer had actual knowledge of the protected activity and took adverse action against him
    14
    because of it.” Sledge v. Dist. of Columbia, 
    63 F. Supp. 3d 1
    , 19 (D.D.C. 2014); see also Univ.
    of Tex. Southwestern Med. Ctr. v. Nassar, 
    133 S. Ct. 2517
    , 2533 (2013) (“Title VII retaliation
    claims must be proved according to traditional principles of but-for causation.”).
    Retaliation claims are subject to the McDonnell burden-shifting framework wherein the
    plaintiff must first make a prima facie case of retaliation. See McDonnell Douglas Corp. v.
    Green, 
    411 U.S. 792
    (1973). This showing triggers the employer’s burden to show a legitimate,
    non-retaliatory reason for the alleged adverse action. Allen v. Johnson, No. 13-5170, 
    2015 WL 4489510
    , at *3 (D.C. Cir. Jul. 24, 2015). The plaintiff may overcome this by showing that the
    proffered non-retaliatory reason was pretextual. See 
    McDonnell, 411 U.S. at 804
    . However, in
    considering a motion for summary judgment, district courts fast-forward to the final step and
    examine “whether all of the evidence, taken together, supports an inference of retaliation when
    the employer has proffered a legitimate, non-discriminatory reason for the adverse action at
    issue.” 
    Sledge, 63 F. Supp. 3d at 19
    ; see also Brady v. Office of the Sergeant at Arms, 
    520 F.3d 490
    , 494 (D.C. Cir. 2008) (“[I]n considering an employer’s motion for summary judgment . . .
    the district court must resolve one central question: Has the employee produced sufficient
    evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was
    not the actual reason and that the employer intentionally discriminated [or retaliated] against the
    employee on the basis of [his religion]?”).
    In its motion, defendant does not argue that plaintiff failed to show that he suffered a
    materially adverse action. In fact, defendant acknowledges that plaintiff’s transfer to the Auto
    Theft Unit may be considered a materially adverse action, asserting that “the Court should limit
    its review to only Plaintiff’s reassignment.” (Mot. at 8.) Plaintiff, however, alleges that there
    were additional retaliatory actions that were materially adverse to him: (1) requirement to wear a
    15
    police uniform; (2) requirement to drive a marked police car instead of an unmarked car; (3)
    when he was afforded an unmarked car, it lacked police lights or sirens; (4) denied a police
    laptop; (5) assigned responsibilities below his seniority level; (6) isolated from information, unit
    schedules, and search warrant executions; (7) severe and hostile treatment by supervisors
    including further demotion to Crime Patrol; and (8) denied participation in the Robbery
    Intervention Program. (See Opp. at 12-13.)
    Plaintiff has shown that the transfer to the Auto Theft Unit caused him financial harm;
    the transfer limited his opportunity for overtime, which significantly decreased his annual
    income from approximately $75,000 to $54,000. (See Pl. Dep. Tr. at 188.) This employment
    action is certainly enough to dissuade a reasonable worker from making a charge of
    discrimination. However, the other actions plaintiff identifies do not meet the definition of a
    materially adverse action. 2 See 
    Burlington, 548 U.S. at 68
    (“We speak of material adversity
    because we believe it is important to separate significant from trivial harms. Title VII, we have
    said, does not set forth ‘a general civility code for the American workplace.’”) (quoting Oncale
    v. Sundowner Offshore Services, Inc., 
    523 U.S. 75
    , 80 (1998)). Indeed, “[t]he antiretaliation
    provision protects an individual not from all retaliation, but from retaliation that produces an
    injury or harm.” 
    Id. at 67.
    Although plaintiff may have been singled out by certain
    administrative requirements such as the requirement to wear a police uniform and to drive a
    2
    Plaintiff alleges that in retaliation for his protected activity, he received “an eventual demotion
    to Crime Patrol on or about January 2, 2013.” (Compl. ¶ 56(g).) Although plaintiff alleges in
    his complaint that his transfer to Crime Patrol was a demotion, he admits that “it is not an
    undesirable position” and “just means . . . back in uniform.” (Pl. Dep. Tr. at 143-42.) Nor does
    he allege that he suffered any financial consequences as a result of the transfer to Crime Patrol.
    Further, the transfer to Crime Patrol occurred three years after he filed the internal EEO
    complaint and nearly two years after he filed an EEOC charge with the DCOHR. Thus, the
    transfer to Crime Patrol cannot be swept into plaintiff’s claim of retaliation. See 
    Rochon, 438 F.3d at 1219
    .
    16
    marked police vehicle while on duty, these requirements are not enough to dissuade a reasonable
    worker from making or supporting a charge of discrimination. Thus, only the transfer to the
    Auto Theft Unit will be considered an adverse action for purposes of retaliation.
    Defendant argues that Captain Deville, the supervisor responsible for transferring
    plaintiff, was not aware that plaintiff was planning on filing an EEO complaint until after the
    decision to transfer him. (See Reply at 9 (“It was after Tridico learned of the [transfer] decision
    that he informed Captain DeVille that he would be filing an EEO complaint, which he did on
    August 22, 2010.”).) There is a factual dispute, however, as to this issue. According to plaintiff,
    he informed Captain Deville that he intended to file an EEO complaint following the meeting on
    August 17, 2010. (See Pl. Dep. Tr. at 100 (“[Captain Deville] sat there . . . and he goes you are
    really going to file a EEO Complaint? And I was like absolutely Captain.”).) Defendant further
    contends that plaintiff was reassigned to the Auto Theft Unit “only after he asked for a transfer,
    and [plaintiff’s supervisors] laterally transferred him away from an allegedly unpleasant
    environment to a unit with a known supervisor.” (Mot. at 17.) While plaintiff admits that he
    asked for a transfer to NSID (see Pl. Dep. Tr. at 104 (plaintiff “asked to go to NSID.”)), he
    argues that this defense is merely pretextual and that he “never asked to be transferred to the
    Auto Theft Unit because such a reassignment was contrary to his career goals. Rather, Officer
    Tridico requested that the discriminating officers and supervisors be dealt with and that he be
    given a fair opportunity to pursue drug crimes in NSID.” (Pl.’s St. of Mat. Facts in Dispute at 4.)
    Moreover, during the August 17, 2010 meeting, Captain Deville asked plaintiff what he
    would do if the harassment occurrences with Sergeant Nickerson happened again. (See Pl. Dep.
    Tr. at 98.) When plaintiff responded that he would write them down and deliver his notes to
    Captain Deville, the captain “shrugged his shoulders” and said “you are out . . . . you are out of
    17
    the office.” (Id.) Indeed, defendant admits that the “reason [Captain Deville] was transferring
    him was that he complained excessively and created too much animosity in the unit to continue
    working there.” (Reply at 10.)
    Plaintiff contends that the timing of the transfer and the comments of his colleagues also
    support his position that he was reassigned because of his informal complaints to his supervisors
    and the internal EEO complaint. (See Opp. at 24-25.) Plaintiff informally complained to his
    supervisors regarding the alleged harassment on August 17, 2010, and was transferred to the
    Auto Theft Unit on August 22, 2010—the same day that he filed an internal EEO complaint.
    (See 
    id. at 24.)
    “The temporal proximity of an adverse action close on the heels of protected
    activity is a common and highly probative type of circumstantial evidence of retaliation.” Allen,
    
    2015 WL 4489510
    , at *3.
    Plaintiff has also provided evidence that there was an assumption in the Unit that
    complaining would lead to an adverse employment action. He testified in his deposition that he
    was fearful of reporting Sergeant Nickerson’s actions and comments to the Internal Affairs
    Division “[b]ecause [he] knew if [he] reported it, [he] was done.” (Pl. Dep. Tr. at 135.)
    Similarly, Officer Alberti testified in her deposition that “trouble-makers,” which she said may
    include officers who engage in protected activity, “get moved out of the unit or [ ] get transferred
    or get written up.” (Alberti Dep. Tr. at 38.)
    Taken together and giving plaintiff the benefit of all reasonable inferences, the evidence
    is sufficient to permit an inference of retaliation in violation of Title VII.
    b. Based on Military Service
    Under USERRA, “[a]n employer may not discriminate in employment against or take
    any adverse employment action against any person because such person . . . has taken an action
    18
    to enforce a protection afforded any person under this chapter . . . or has exercised a right
    provided for in this chapter.” 38 U.S.C. § 4311(b). An employer is prohibited from taking an
    adverse action against a covered employee if the employee’s protected activity “is a motivating
    factor in the employer’s action, unless the employer can prove that the action would have been
    taken in the absence of such person’s enforcement action . . . or exercise of a right.” 38 U.S.C. §
    4311(c).
    Defendant first asserts, without legal support, that retaliation is not a separate cause of
    action under USERRA. (Mot. at 18.) Contrary to defendant’s assertion, it has been recognized
    that retaliation may be brought as a separate cause of action under USERRA. See Brandsasse v.
    City of Suffolk, Va., 
    72 F. Supp. 2d 608
    , 612 (E.D. Va. 1999) (describing discrimination and
    retaliation as two separate causes of action under USERRA). Defendant also argues that even if
    retaliation can be brought as a separate cause of action, plaintiff has failed to state a claim of
    retaliation under USERRA because he has not shown that he took an action to enforce a
    protection or right provided by the statute. (See Mot. at 18.) Specifically, plaintiff complained
    to his supervisors about alleged derogatory comments regarding his prior military service, and as
    argued by defendant, USERRA does not protect an employee from derogatory comments or
    harassment in the workplace. (See 
    id. at 19.)
    As discussed in Section V(b), infra, the Court
    concludes that USERRA recognizes a hostile work environment claim. Thus, plaintiff engaged in
    a protected activity under USERRA when he complained that his right to be free from a hostile
    work environment had been violated, and to the extent that Count III alleges retaliation based on
    USERRA, it survives summary judgment. 3
    3
    In its motion for summary judgment, defendant does not challenge the other elements of
    plaintiff’s USERRA retaliation claim.
    19
    V.     HOSTILE WORK ENVIRONMENT
    a. Based on Religion
    Defendant argues that plaintiff has failed to show that the alleged religious harassment
    was severe or pervasive, since it claims that it is undisputed that plaintiff’s coworkers only
    commented on his religion twice. (See Mot. at 11.) Plaintiff vigorously disputes this statement
    and offers ample evidence that his coworkers engaged in “an ongoing pattern of daily
    discriminatory and harassing remarks” regarding his religion. (Opp. at 19.)
    “A hostile work environment claim is composed of a series of separate acts that
    collectively constitute one unlawful employment practice.” Nat’l R.R. Passenger Corp. v.
    Morgan, 
    536 U.S. 101
    , 117 (2002) (internal quotation marks omitted). A work environment is
    considered “hostile” under Title VII only when it is “permeated with 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.” 
    Oncale, 523 U.S. at 78
    (quoting
    Harris v. Forklift Systems, Inc., 
    510 U.S. 17
    , 21 (1993) (internal quotation marks omitted)).
    To determine whether a work environment is sufficiently “hostile” to support a Title VII
    claim, the Court must look at the totality of the circumstances, including “the frequency of the
    discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
    offensive utterance; and whether it unreasonably interferes with an employee’s work
    performance.” 
    Harris, 510 U.S. at 23
    ; see also Baloch v. Kempthorne, 
    550 F.3d 1191
    , 1201
    (D.C. Cir. 2008). The “conduct must be extreme to amount to a change in the terms and
    conditions of employment.” Faragher v. Boca Raton, 
    524 U.S. 775
    , 788 (1998). “[O]ffhand
    comments [ ] and isolated incidents (unless extremely serious)” do not meet this standard. 
    Id. 20 Contrary
    to defendant’s argument, plaintiff has provided evidence that supports his
    allegation that he was subjected to a daily barrage of harassing and discriminatory remarks
    regarding his religion. Between the summer of 2009 and the time he was transferred to the Auto
    Theft Unit in August 2010, Sergeant Nickerson called plaintiff “weirdo” so often that plaintiff
    was not called “Joe or Philip or Tridico ever again.” (See Pl. Dep. Tr. at 37.) Although the term
    “weirdo” on its face does not necessarily connote religious animus, plaintiff provided evidence
    that Sergeant Nickerson and others employed this term to denigrate plaintiff’s religious beliefs.
    For example, upon viewing plaintiff crossing himself, Sergeant Nickerson said, “[T]hat is why
    he is so weird, he believes in that weirdo Jesus shit.” (See id.) The connection between
    “weirdo” and plaintiff’s religion is also evident by the photograph of the Pope transcribed with
    the word “weirdo” that Officer Gibson posted in plaintiff’s workspace. (See 
    id. at 47.)
    Plaintiff has also demonstrated a genuine issue of material fact that the alleged
    harassment altered the conditions of his employment. In July 2010, plaintiff sat in the roll call
    room and avoided the Narcotics office to “get away from the beating.” (Id. at 63.) He testified
    that as a result of the harassment, he still suffers from headaches, nausea, loss of sleep, and
    anxiety. (See 
    id. at 85.)
    Plaintiff has sought therapy “to talk about work and work related stress
    due to [his] ability to practice [his] religion.” (Id. at 86.) Thus, given this evidence, a reasonable
    jury could find that the harassing comments were pervasive and altered the conditions of his
    employment.
    b. Based on Military Service
    Defendant argues that USERRA did not include a cause of action for hostile work
    environment in 2010. (See Mot. at 13.) Defendant relies on Carder v. Cont’l Airlines, Inc., in
    which the Fifth Circuit “decline[d] to infer a cause of action for hostile work environment under
    21
    USERRA,” because it did not include the “terms, conditions, or privileges of employment”
    language that has been construed to allow hostile work environment claims under Title VII. 
    636 F.3d 172
    , 179 (5th Cir. 2010). In 2011, only eight months after the Fifth Circuit issued its
    decision in Carder, Congress amended USERRA to add that “benefit[s] of employment” include
    “terms, conditions or privileges of employment.” 38 U.S.C. § 4303(2) (2011). Defendant argues
    this amendment is not retroactive, and thus, does not apply to plaintiff’s claim because the
    harassment ceased in August 2010. However, numerous courts have held that the amendment,
    deemed by Congress as a “clarification of benefits of employment covered under USERRA,” is
    retroactive. 4 See Montoya v. Orange County Sheriff’s Dept., 
    987 F. Supp. 2d 981
    , 1012-15 (C.D.
    Cal. 2013) (“[T]he Court defers to Congress’s opinion that the 2011 Amendment was intended to
    clarify, not change the scope of USERRA, and thus hostile work environment claims have
    always been cognizable under USERRA.”); McDaniel v. Loyola Univ. Med. Ctr., No. 13-6500,
    
    2014 WL 4269126
    , at *7 (N.D. Ill. Aug. 28, 2014) (“In light of the amendment addressing the
    Fifth Circuit’s precise concern, it seems clear that the Fifth Circuit now would find a hostile
    work environment claim cognizable under USERRA.”); Wang v. N.Y. State Dept. of Health, 
    40 Misc. 3d 747
    , 753 (N.Y. 2013) (“While this subsequent amendment is not necessarily a reliable
    indicator of Congress’s original intent, the prompt legislative response to the Carder decision
    does provide some measure of confirmation to the conclusion that USERRA provides for a
    hostile work environment claim.”). The Court agrees with the other courts that have held that
    4
    Even before the 2011 amendment, the First and Eleventh Circuits assumed without deciding
    that USERRA provided a cognizable hostile work environment claim. See Vega-Colon v. Wyeth
    Pharmaceuticals, 
    625 F.3d 22
    , 32 (1st Cir. 2010); Dees v. Hyundai Motor Mfg. Alabama, LLC,
    368 Fed. Appx. 49, 53 (11th Cir. 2010).
    22
    USERRA has provided for a hostile work environment claim, and thus, this claim in Count III
    will not be dismissed. 5
    VI.    NEGLIGENCE
    Count X charges defendant with negligent retention and supervision for failing to
    supervise or terminate Sergeant Nickerson for the harm he caused plaintiff. “[A] common law
    claim of negligent supervision may be predicated only on common law causes of action or duties
    otherwise imposed by the common law. . . . To hold otherwise ‘would be to impose liability on
    employers for failing to prevent a harm that is not a cognizable injury under the common law.’”
    Griffin v. Acacia Life. Ins. Co., 
    925 A.2d 564
    , 576-77 (D.C. 2007) (quoting Hays v. Patton-Tully
    Transp. Co., 
    844 F. Supp. 1221
    , 1223 (W.D. 1993)). Although in his opposition plaintiff argues
    that “the underlying facts for this claim do not relate to the underlying facts for the Title VII
    discrimination/retaliation claim,” he fails to provide any support for this assertion. (Opp. at 28.)
    Plaintiff fails to show any evidence of independent tortious conduct distinct from the alleged
    harassment by Sergeant Nickerson, so this claim is preempted by Title VII. See 
    Griffin, 925 A.2d at 577
    ; Brown v. Children’s Nat’l Med. Ctr., 
    773 F. Supp. 2d 125
    (D.D.C 2011) (“Insofar
    as the conduct giving rise to plaintiff’s negligence claims is the same conduct giving rise to her
    Title VII claims, the negligence claims appear to be duplicative.”); Wade v. WMATA, No. 01-
    334, 
    2005 WL 1513137
    , at *6 (D.D.C. June 27, 2005) (“The precisely drawn, detailed Title VII
    preempts the more general common law negligence remedy.”).
    5
    In its motion for summary judgment, defendant does not otherwise challenge plaintiff’s hostile
    work environment claim under USERRA.
    23
    CONCLUSION
    For the foregoing reasons, the Court will grant defendant’s motion for summary
    judgment with respect to Counts IV, VII, VIII, IX, X, and the discrimination claim in Count III
    and deny defendant’s motion with respect to Counts I, II, VI, and the retaliation claim in Count
    III. A separate Order accompanies this Memorandum Opinion.
    /s/ Ellen Segal Huvelle
    ELLEN SEGAL HUVELLE
    United States District Judge
    Date: September 1, 2015
    24
    

Document Info

Docket Number: Civil Action No. 2013-0937

Citation Numbers: 130 F. Supp. 3d 17

Judges: Judge Ellen S. Huvelle

Filed Date: 9/1/2015

Precedential Status: Precedential

Modified Date: 1/13/2023

Authorities (27)

Vega-Colon v. Wyeth Pharmaceuticals , 625 F.3d 22 ( 2010 )

Loretta Cheek v. Western and Southern Life Insurance Company , 31 F.3d 497 ( 1994 )

Jones v. Bernanke , 557 F.3d 670 ( 2009 )

Roy E. Bowden v. United States , 106 F.3d 433 ( 1997 )

Waterhouse v. District of Columbia , 298 F.3d 989 ( 2002 )

Rochon, Donald v. Gonzales, Alberto , 438 F.3d 1211 ( 2006 )

Erickson v. United States Postal Service , 571 F.3d 1364 ( 2009 )

Brady v. Office of the Sergeant at Arms , 520 F.3d 490 ( 2008 )

Wiley v. Glassman , 511 F.3d 151 ( 2007 )

Marshall, Angela v. Fed Exprs Corp , 130 F.3d 1095 ( 1997 )

Baloch v. Kempthorne , 550 F.3d 1191 ( 2008 )

James E. Brown v. John O. Marsh, Jr., Secretary of the Army , 777 F.2d 8 ( 1985 )

Na'Im v. Rice , 577 F. Supp. 2d 361 ( 2008 )

United States Ex Rel. Purcell v. MWI Corp. , 520 F. Supp. 2d 158 ( 2007 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Burlington Northern & Santa Fe Railway Co. v. White , 126 S. Ct. 2405 ( 2006 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Contreras v. Ridge , 305 F. Supp. 2d 126 ( 2004 )

Brown v. Children's National Medical Center , 773 F. Supp. 2d 125 ( 2011 )

View All Authorities »