Grosdidier v. Board Broadcast Governors ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAMILLE GROSDIDIER,
Plaintiff,
v. Civil Action No. 08-1553 (CKK)
CHAIRMAN, BROADCASTING BOARD
OF GOVERNORS,
Defendant.
MEMORANDUM OPINION
(May 16, 2011)
Plaintiff Camille Grosdidier (“Grosdidier”) filed this action against her employer, the
Broadcasting Board of Governors (“BBG”), alleging that she was unlawfully discriminated
against based on her race, age, sex, and national origin and unlawfully retaliated for complaining
about discrimination in the workplace. On March 28, 2011, the Court granted-in-part and
denied-in-part Defendant’s motion for summary judgment, entering judgment for Defendant as to
all of Grosdidier’s claims except for her claim that Defendant retaliated against her by reducing
her editing responsibilities after October 5, 2007. Grosdidier has since filed a [31] Motion to
Reconsider or in the Alternative to Amend Judgment to Permit Appeal, in response to which
Defendant has filed an opposition, and Grosdidier has filed a reply.
Grosdidier asks the Court to reconsider its grant of summary judgment to Defendant on
her claim that she was not selected for a promotion in 2006 in retaliation for her opposition to
conduct that violated Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42
U.S.C. §§ 2000e et seq. The Court held that Grosdidier’s complaints about conduct occurring in
her workplace did not constitute protected activity for purposes of Title VII’s antiretaliation
provision because her belief that she was being subjected to a hostile work environment was
objectively unreasonable. Grosdidier contends that the Court erred by failing to give her notice
that it would rule on this claim, applying the wrong legal standard, and overlooking one of
Grosdidier’s complaints as evidence of protected activity. Grosdidier therefore asks the Court to
reconsider its ruling or, in the alternative, to amend its order so as to permit Grosdidier to take an
interlocutory appeal. For the reasons explained below, the Court concludes that Grosdidier was
properly on notice of the need to present evidence in support of her retaliation claim, that the
Court did not err in determining that Grosdidier’s complaints were objectively unreasonable, and
that Grosdidier’s other alleged complaint does not constitute activity protected by Title VII.
Therefore, the Court declines to reconsider its prior ruling or certify it for interlocutory appeal.
I. BACKGROUND
The following facts, which are limited to the issues relevant to the pending motion, are
drawn from the Court’s prior Memorandum Opinion and from the record produced by the parties
at summary judgment. Camille Grosdidier has worked as an International Broadcaster with the
French to Africa Service of the Voice of America (“VOA”) since 1987. Def.’s Stmt. ¶ 2.
Grosdidier is a white female of French national origin who is a naturalized citizen of the United
States. Id. ¶ 1. The BBG encompasses all U.S. civilian international broadcasting, including the
VOA, Radio Free Europe, and other networks. Id. ¶ 14. BBG broadcasters distribute
programming in sixty languages to an estimated weekly audience of 175 million people via radio,
television, the internet, and other news media. Id. The VOA’s French to Africa Service
primarily competes with French, British, and local African radio and media services. Id. ¶ 15.
2
Throughout most of the time relevant to this litigation, the Chief of the French to Africa
Service was Idrissa Seydou Dia (“Dia”). See Pl.’s Ex. 6 (Dia Dep.) at 5. Dia had been acting in
that capacity since sometime in 2003. Id. Between 1992 and 2002, Grosdidier filed a series of
equal employment opportunity (“EEO”) complaints about discrimination and harassment in the
workplace. See Def.’s Ex. Y (Aff. of Camille Grosdidier) at 1-2. In September 2002, Grosdidier
filed a complaint about her nonselection for a GS-13 International Broadcaster position in the
French to Africa Service, alleging discrimination based on her sex, color, and reprisal for
engaging in EEO activity. Id. at 2. That complaint was dismissed by an administrative judge.
See Pl.’s Ex. 2 (Grosdidier Dep.) at 37. Grosdidier also complained about an incident in 2000
when her supervisor, then-Chief Claude Porsella, removed her from editing duties. See id. at 32-
33. She was eventually reinstated to editing duties. Id. at 33-34. Grosdidier contends that her
EEO activity was generally known within the French to Africa Service. See Def.’s Ex. Y (Aff. of
Camille Grosdidier) at 2.
Around 2004 and 2005, Grosdidier complained to her supervisors about what she
perceived to be a sexually charged atmosphere in the French to Africa Service. Dia had a
particularly friendly relationship with one female producer in the office, who called Dia “Sexy
Papa” and whom Dia called “Sexy Mama.” See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 109.
Ferdinand Ferella, who worked as a managing editor for the French to Africa Service, described
this as “something of a joke.” Id. Dia testified that it did not have any sexual connotation, but
instead resulted from Dia’s mistranslation of the Jimi Hendrix song “Foxy Lady.” See Pl.’s Ex. 6
(Dia Dep.) at 40-41. Grosdidier objected to the banter between Dia and this employee.
Grosdidier also complained about another female employee who called Ferella “maître,”or
3
“master,” which she thought was inappropriate. Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 110-
11; Pl.’s Ex. 2 (Grosdidier Dep.) at 190. This conduct stopped after Grosdidier complained.
Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 115.
Grosdidier complained about hugging and kissing in the workplace that she perceived to
be unprofessional and outside the bounds of what was acceptable in French culture. Pl.’s Ex. 2
(Dep. of Camille Grosdidier) at 185-86. On May 3, 2005, Grosdidier sent an email to Dia
complaining about one particular female co-worker who gave a “big, long, fat hug” to a
Senegalese man visiting the office; Grosdidier objected to what she perceived as the employee’s
“pressing need to press herself against every man in sight on the slightest pretext - especially
strangers - and the way this has ‘sexualized’ our French Branch office.” Pl.’s Ex. 30 (5/3/2005
Email from Grosdidier to Dia) at 17.
Grosdidier also complained about an email sent around the office in April 2004 depicting
a man straddling a cannon, which she perceived to be sexually suggestive. See Pl.’s Ex. 24 (Dep.
of Ferdinand Ferella) at 117; Pl.’s Ex. 29 at 12 (4/13/2004 Email from Grosdidier to Eric
Agnero) (“Thanks for this edifying picture of a man with a giant object between his legs.”). Dia
told Grosdidier that the employee who sent the email did not see anything sexual about the
photograph, which depicted a famous musician from his home country. See Pl.’s Ex. 29 at 13;
Pl.’s Ex. 6 (Dia Dep.) at 36. In November 2003, the same employee had sent an email around the
office containing a picture of an outdoor marketplace in which brassieres were prominently
displayed. See Pl.’s Ex. 29 at 14. Grosdidier also complained about one male employee who
wore short shorts to the office; Ferella agreed in his deposition testimony that his attire was
unprofessional. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 118-19.
4
Dia took informal action in response to Grosdidier’s complaints, warning people during a
morning office meeting not to go overboard with physical contact and to keep things professional
because “someone” might complain. See Pl.’s Ex. 6 (Dep. of Idrissa Dia) at 37-38. Dia denies
identifying Grosdidier as the potential complainant. See id. at 132. Dia told Ferella that he was
frustrated by Grosdidier’s complaints because he did not believe the conduct was sexual in
nature. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 115-16. Dia testified in his deposition
that he was upset at Grosdidier for tarnishing his warm relationship with the employee who
called him “Sexy Papa.” See Pl.’s Ex. 6 (Dep. of Idrissa Dia) at 41.
In March 2006, Grosdidier interviewed for a vacant position in the French to Africa
Service as a GS-13 International Broadcaster. However, she was not selected for the position,
and on July 5, 2006, she timely filed a formal complaint alleging that she was not selected
because of her sex, race, national origin, and her prior equal employment opportunity (“EEO”)
activity. See Def.’s Ex. GG (Formal Complaint of Discrimination). In that formal complaint,
Grosdidier listed “Dec. 10, 2002” as the date of her prior EEO activity. Grosdidier litigated this
complaint before the Equal Employment Opportunity Commission but was denied relief.
On December 27, 2007, Grosdidier filed a second formal complaint of discrimination
with the BBG. See Def.’s Ex. W (Formal Complaint of Discrimination). In her formal
complaint, Grosdidier claimed that she had been discriminated against on the basis of her sex,
national origin, and engaging in prior EEO activity in 2000, 2001, and 2006. See id. She
claimed that the dates of the alleged discriminatory acts were November 20, 2007 and from
January 2007 to the present (i.e., December 27, 2007). Id. Grosdidier complained about the fact
that her position description had not been updated, that her professional responsibilities had been
5
reduced, and that her supervisor had refused to directly interact with her. Id. She subsequently
amended her complaint regarding a letter of admonition she received on April 1, 2008.
II. LEGAL STANDARD
Under Rule 54(b) of the Federal Rules of Civil Procedure, a district court may revise its
own interlocutory orders “at any time before the entry of judgment adjudicating all the claims
and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Rule 54(b) recognizes the
inherent power of the courts to reconsider interlocutory orders “as justice requires.” Capitol
Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011). The “as
justice requires” standard may be met where the court has patently misunderstood the parties,
strayed far afield of the issues presented, or failed to consider a controlling or significant change
in the law or facts since the submission of the issue. See Cobell v. Norton, 224 F.R.D. 266, 272
(D.D.C. 2004). In the final analysis, the district court must ask whether relief upon
reconsideration is “necessary under the relevant circumstances.” Lewis v. District of Columbia,
736 F. Supp. 2d 98, 102 (D.D.C. 2010) (internal quotation marks omitted). In this regard, the
court’s discretion is broad. Id.III. DISCUSSION
Grosdidier’s motion to reconsider focuses almost entirely on the Court’s ruling that her
complaints about sexually suggestive conduct in her workplace during 2004 and 2005 did not
constitute protected activity for purposes of Title VII because no reasonable employee could
believe that the conduct about which she complained amounted to a hostile work environment
under Title VII. First, Grosdidier argues that Defendant did not raise this argument in its motion
for summary judgment and that the Court improperly granted summary judgment on this issue
6
sua sponte without affording her notice and an opportunity to respond. Second, Grosdidier
contends that the Court applied the wrong standard in determining her complaints were not
protected activity because Title VII encourages employees to complain about misconduct in the
workplace before a hostile work environment develops. Third, Grosdidier argues that the Court
improperly overlooked evidence relating to a complaint she made in August 2005 that could have
constituted protected activity to support her retaliation claim. The Court shall address each of
these issues below.
A. Grosdidier Had Notice of the Need to Present Evidence Relating to Her
Retaliation Claim
Grosdidier contends that Defendant never argued in its motion for summary judgment
that her complaints about her workplace in 2004 and 2005 were not protected activity and
therefore she was not on notice that she needed to come forward with all her evidence in support
of this aspect of her retaliation claim. Grosdidier relies on McBride v. Merrell Dow &
Pharmaceuticals, Inc., 800 F.2d 1208 (D.C. Cir. 1986), for the proposition that “[w]hile district
courts possess the authority to enter summary judgment against a party sua sponte, that authority
may only be exercised ‘so long as the losing party was on notice that she had to come forward
with all of her evidence.’” Id. at 1212 (internal citation omitted) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 326 (1986)); accord Sussman v. U.S. Marshals Service, 494 F.3d 1106,
1117 (D.C. Cir. 2007) (same). Both McBride and Sussman involved situations where the district
court awarded summary judgment on a basis that was not presented in a motion for summary
judgment. See Sussman, 494 F.3d at 1117 (vacating summary judgment in FOIA case with
respect to documents for which defendant agency failed to affirmatively move for summary
7
judgment); McBride, 800 F.2d at 1212-13 (vacating summary judgment against plaintiff’s libel
claim where ruling was based on lack of actual malice but defendants moved for summary
judgment only on the asserted truth of the statement at issue). By contrast, where a defendant
moves for summary judgment as to all essential elements of a plaintiff’s claim, the plaintiff is on
notice of the need to present affirmative evidence in support of each of those elements.
In this case, it is inaccurate to characterize Defendant’s motion for summary judgment as
not raising the argument that Grosdidier’s complaints about her workplace in 2004 and 2005
were not protected activity. Defendant argued that Grosdidier had failed to demonstrate
retaliation with respect to her nonselection because she could not establish any causal connection
between her nonselection and her filing of an EEO complaint in 2002, which was the most recent
protected activity that Grosdidier had complained about in her formal complaint of
discrimination. See Def.’s Mem. at 31-33. Therefore, Defendant’s motion for summary
judgment was based on the assumption that Grosdidier’s post-2002 complaints were not
protected activity and could not serve as the basis for Grosdidier’s retaliation claim. This was a
particularly reasonable assumption in light of the fact that Grosdidier had not listed her 2004 and
2005 complaints as protected activity in either of the formal complaints she filed with the BBG.1
Defendant clearly intended to move for summary judgment with respect to every aspect of
Grosdidier’s retaliation claim, and therefore it was Grosdidier’s obligation to come forward with
evidence to support that claim, even if her theory of the claim was different than what was
1
Indeed, it is unclear whether Grosdidier administratively exhausted her claim that her
nonselection in 2006 was motivated by retaliation for 2004 and 2005 complaints about her
workplace. The parties did not explicitly address this in their summary judgment briefs, and
therefore there is no basis for the Court to address it here.
8
spelled out by Defendant’s motion. Grosdidier obviously understood this obligation because she
addressed the issue in her opposition brief and cited to evidence in the record supporting her
claim that she engaged in protected activity in 2005. See Pl.’s Opp’n at 34 n.7 (“The Defendant
appears to believe that the Plaintiff’s claim is that the non-selection was premised on reprisal for
her 2002 protected activity. The record, however, clearly demonstrates that Ms. Grosdidier
engaged in protected activity with respect to the sexually charged environment in 2005, and that
Mr. Dia expressed his anger about that protected activity contemporaneously.”) (citations
omitted); Pl.’s Stmt. ¶ 62 (describing Grosdidier’s complaints about her workplace in 2004 and
2005). The Court then ruled on the sufficiency of this evidence after Defendant specifically
addressed the issue in its reply brief. If Grosdidier believed that Defendant was improperly
raising a new argument in its reply, she could have asked the Court for leave to file a surreply;
the fact that she did not make any such request suggests that she understood this issue to have
been properly raised in Defendant’s opening brief.
That Grosdidier had an opportunity to present all evidence relevant to her claim is
demonstrated by the fact that her affidavit in support of her motion to reconsider adds very little
beyond what she presented in her opposition brief. Grosdidier’s new affidavit relies mostly on
the same conduct about which she complained earlier: excessive hugging and kissing by other
coworkers during greetings, the use of the phrases “Sexy Papa” and “Sexy Mama” by Dia and a
female coworker, and a female coworker’s use of the term “maître” or “master” to address Dia.
See Pl.’s Aff. in Support of Her Rule 59(e) Mot. ¶ 5. Grosdidier adds only a few conclusory
allegations about the sexually charged nature of the work environment and the following discrete
incidents: (a) an incident in March 2003 when a male coworker told Grosdidier she contributed
9
“too much” during morning meetings, implying it was “too much” for a female; (b) “several
events” where Grosdidier found pornography on an open window of a computer in the recording
studio; (c) “[t]he circulation of misogynistic jokes”; (d) the circulation of news articles featuring
harsh treatment of women; and (e) a period of approximately two weeks when one of the
producers would stand at Grosdidier’s desk and ask where his hug was, causing Grosdidier to tell
him that she was not comfortable with hugging in the workplace. Id. ¶¶ 3-6. The Court declines
to reconsider its ruling in light of Grosdidier’s new evidence because Grosdidier could have and
should have presented this evidence as part of her original opposition to Defendant’s motion for
summary judgment on her retaliation claim. However, as explained below, the Court shall make
an alternative ruling that takes into account the new allegations raised by Grosdidier.
B. Grosdidier’s Complaints About Her Work Environment Were Not Protected
Activity
The Court ruled in its prior Memorandum Opinion that although Grosdidier appeared to
have a good faith basis for opposing what she perceived to be offensive conduct in the
workplace, no reasonable employee could believe that the conduct about which she complained
amounted a hostile work environment under Title VII. Grosdidier argues that the Court’s ruling
is in error, for two reasons. First, Grosdidier argues that employees are encouraged to complain
about hostile conduct in the workplace before it becomes actionable as a hostile work
environment, and therefore her complaints should be deemed protected for purposes of Title
VII’s antiretaliation clause. Second, Grosdidier argues that the Court improperly focused on
whether a hostile work environment actually existed instead of whether Grosdidier reasonably
believed there was one. The Court shall address Grosdidier’s second argument first.
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1. Grosdidier’s Belief that the Conduct She Opposed Violated Title VII Was
Objectively Unreasonable
As the Court recognized in its prior Memorandum Opinion, Title VII’s antiretaliation
provision protects two kinds of activity: (1) participation in EEO proceedings, such as making a
charge, testifying, assisting, or otherwise participating in an EEO investigation, proceeding, or
hearing; and (2) opposition to “any practice made an unlawful employment practice” by Title
VII. See 42 U.S.C. § 2000e-3(a). The D.C. Circuit has held that “an employee seeking the
protection of the opposition clause [must] demonstrate a good faith, reasonable belief that the
challenged practice violates Title VII.” George v. Leavitt, 407 F.3d 405, 417 (D.C. Cir. 2005)
(quoting Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981)). In other
words, a plaintiff need not prove that the conduct she opposed actually violated Title VII; “the
fact that a nonfrivolous claim is ultimately resolved in favor of management does not justify an
attempt to suppress the claim by penalizing the employee who raised it.” Parker, 652 F.2d at
1020. “The objective reasonableness of an employee’s belief that her employer has engaged in
an unlawful employment practice must be measured against existing substantive law.” Clover v.
Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).
In this case, it is significant that Grosdidier’s complaints in 2004 and 2005 were not about
any specific discriminatory action; rather, they focused on incidents that she believed contributed
to the sexually charged nature of her workplace. Therefore, the “unlawful employment practice”
that Grosdidier was opposing could only be characterized as harassment in the form of a hostile
work environment. The Supreme Court has repeatedly stated that in order for a hostile work
environment to constitute discrimination under Title VII, the workplace must be “permeated with
11
‘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.’” Harris
v. Forklift Systems, 510 U.S. 17, 21 (1993) (citations omitted) (quoting Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)).
Title VII does not prohibit all verbal or physical harassment in the workplace; it is
directed only at “discriminat[ion] . . . because of . . . sex.” . . . [T]he statute does not
reach genuine but innocuous differences in the ways men and women routinely
interact with members of the same sex and the opposite sex. The prohibition on
harassment on the basis of sex requires neither asexuality nor androgyny in the
workplace; it forbids only behavior so objectively offensive as to alter the
“conditions” of the victim’s employment.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998) (emphasis original).
“These standards for judging hostility are sufficiently demanding to ensure that Title VII does not
become a ‘general civility code.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
“‘[S]imple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of employment.’” Id. (internal
citation omitted).
In finding that Grosdidier’s complaints were not protected activity, the Court held that
Grosdidier could not have reasonably believed that the conduct about which she was complaining
amounted to a hostile work environment. Grosdidier’s complaints were focused primarily on
conduct that was neither directed at Grosdidier nor objectively offensive, such as two emails that
Grosdidier interpreted as sexually suggestive but which were also susceptible to innocent
interpretations. Grosdidier also complained about voluntary, flirtatious banter between her male
and female coworkers as well as hugging and kissing during greetings that Grosdidier felt
exceeded the bounds of cultural courtesy. Although such conduct is not appropriate in the
12
modern workplace, it falls far below the standard of conduct prohibited by Title VII. None of the
actions about which Grosdidier complained suggest discriminatory animus or hostility towards
women in the office. Under such circumstances, Grosdidier’s belief that she was being subjected
to a hostile work environment was objectively unreasonable.
As the Court noted above, Grosdidier seeks to bolster her allegations of a hostile work
environment with a new affidavit in support of her motion to reconsider. As noted above, the
Court declines to consider these newly minted allegations because they should have been
presented as part of Grosdidier’s opposition to Defendant’s motion for summary judgment.
Alternatively, even considering Grosdidier’s new allegations, there is little evidence that her
workplace was permeated with discriminatory intimidation, ridicule, and insult sufficient to
create an abusive working environment. Grosdidier’s new allegations focus on a few isolated
incidents in which she found pornography on office computers and the circulation of
misogynistic jokes and news stories about the harsh treatment of women; none of these alleged
actions were specifically directed at Grosdidier.2 Grosdidier also identifies one incident in March
2003 in which a coworker suggested that she contributed too much for a female journalist and an
undated incident over a two-week period when one of the producers stood at her desk and asked
her to hug him, which apparently stopped after Grosdidier explained that this made her
uncomfortable. Although this conduct was directed at Grosdidier, it still falls well short of an
actionable hostile work environment claim. Furthermore, it is unclear from the record at
2
Grosdidier refers to “[t]he circulation of news articles reflecting women being treated in
deplorable ways, such as one case that I remember clearly, a women being forced to marry the
man who had raped her.” See Pl.’s Aff. in Support of Her Rule 59(e) Mot. ¶ 5(f). Without any
additional context, the Court cannot conclude that the circulation of news articles within a news
agency suggests discriminatory intimidation, ridicule, or insult.
13
summary judgment or Grosdidier’s new affidavit whether she ever complained about these newly
alleged incidents. See Pl.’s Stmt. ¶ 62 (describing complaints only about sexually suggestive
photographs distributed to employees, a particular female coworker’s flirtacious conduct, use of
the terms “Sexy Papa” and “Sexy Mama” by Dia and another female coworker, and a complaint
by a union representative about attempted retaliation). Without evidence that Grosdidier opposed
this conduct, there is no basis for the Court to conclude that Grosdidier engaged in protected
activity. Accordingly, the Court declines to reconsider its ruling that Grosdidier did not engage
in protected activity that can be causally connected to her nonselection for a promotion in 2006.
2. Grosdidier’s Complaints Were Not Protected Activity By Virtue of the
Possibility that Her Workplace Would Eventually Become Actionably
Hostile
Grosdidier alternatively argues that even if she could not have reasonably believed her
workplace was actionably hostile under Title VII when she complained about it, her complaints
should be deemed protected activity because employees are encouraged to complain about
sexually harassing behavior before it becomes actionable. In making this argument, Grosdidier is
tacitly conceding that her workplace was not actionably hostile when she complained about it.
Grosdidier relies on the Supreme Court’s decisions in Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), in which the Court
limited employers’ vicarious liability for a supervisor’s harassment of a subordinate where the
employer can establish that it exercised reasonable care to prevent and correct any sexually
harassing behavior and the employee unreasonably failed to take advantage of preventive or
corrective opportunities provided by the employer. See Ellerth, 524 U.S. at 765; Faragher, 524
U.S. at 807. The Court stated that limiting employer liability would “serve Title VII’s deterrent
14
purpose” by encouraging employees to “report harassing conduct before it becomes severe or
pervasive.” Ellerth, 524 U.S. at 764. Grosdidier therefore argues that her complaints should be
protected because she reported harassing conduct before it evolved into a hostile work
environment.
The problem with Grosdidier’s argument is that it would dramatically expand the scope
of protected activity under the opposition clause of Title VII, which protects only opposition to
“any practice made an unlawful employment practice” under the statute. Courts have already
placed a judicial gloss on the opposition clause by protecting opposition based on an employee’s
reasonable, good faith belief that the employment practice is unlawful. That construction of the
statute provides a fair measure of protection for employees who believe they are witnessing
unlawful conduct. Grosdidier’s interpretation, however, would protect an employee’s opposition
to conduct that she reasonably believes is not prohibited by Title VII but which might, if left
unchecked, some day ripen into an unlawful hostile work environment. That would provide
protection for nearly all employee complaints about offensive conduct in the workplace, since
practically every employee could argue that her workplace would have ultimately developed an
actionably hostile atmosphere. But Title VII does not impose a general civility code for the
American workplace, and the opposition clause of its antiretaliation provision should not be
construed to protect nearly all employee complaints about sexually suggestive conduct at the
office. The Fourth Circuit, the only court of appeals that appears to have addressed this question
squarely, has also rejected Grosdidier’s argument. See Jordan v. Alternative Resources Corp.,
458 F.3d 332, 341-43 (4th Cir. 2006). Accordingly, the Court declines to reconsider its ruling on
this basis.
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3. The Court Shall Not Certify An Interlocutory Appeal
If the Court does not reconsider its prior rulings, Grosdidier requests that the Court
amend its order so as to enable her to take an interlocutory appeal of the Court’s ruling awarding
summary judgment to Defendant on her nonselection claim. Pursuant to 28 U.S.C. § 1292(b),
“[w]hen a district judge . . . shall be of the opinion that [an interlocutory] order involves a
controlling question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate termination of the
litigation, he shall so state in writing in such order.” This action would enable Grosdidier to
apply to the court of appeals for permission to appeal the ruling. “A party seeking certification
pursuant to § 1292(b) must meet a high standard to overcome the ‘strong congressional policy
against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding
by interlocutory appeals.’” Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 233 F. Supp.
2d 16, 20 (D.D.C. 2002) (quoting United States v. Nixon, 418 U.S. 683, 690 (1974)). The Court
is not persuaded that there is a controlling question of law as to which there is a substantial
ground for difference of opinion or that an immediately appeal would advance the ultimate
termination of the litigation. Accordingly, the Court declines to certify its summary judgment
ruling for interlocutory appeal.
Grosdidier also suggests that the Court certify its summary judgment ruling as a final
judgment pursuant to Rule 54(b). Under that rule, “[w]hen an action presents more than one
claim for relief . . ., the court may direct entry of a final judgment as to one or more, but fewer
than all, claims . . . only if the court expressly determines that there is no just reason for delay.”
“Only ‘exceptional cases’ merit Rule 54(b)’s direct entry, and the district court has discretion in
16
identifying such cases because of its ‘familiarity with the case and with any justifiable reasons for
delay.’” Ben-Rafael v. Islamic Republic of Iran, 718 F. Supp. 2d 25, 33 (D.D.C. 2010) (quoting
Bldg. Indus. Ass’n of Superior Cal. v. Babbitt, 161 F.3d 740, 743 (D.C. Cir. 1998)). Ordinarily,
the presumption against piecemeal appeals will be sufficient to deny certification under Rule
54(b). See Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980) (“Not all final
judgments on individual claims should be immediately appealable, even if they are in some sense
separable from the remaining unresolved claims.”). There is sufficient factual and legal overlap
between Grosdidier’s remaining retaliation claim and the claims the Court denied at summary
judgment to conclude that separate appeals would be an inappropriate use of judicial resources.
Accordingly, the Court declines to certify its summary judgment ruling as a final order under
Rule 54(b).
C. Evidence of Grosdidier’s Complaint About Retaliation in August 2005
In a short paragraph near the end of her motion to reconsider, Grosdidier argues that the
Court overlooked the fact that in August 2005, Grosdidier had a meeting with Dia to address
discipline that he was contemplating assessing against her, during which Grosdidier’s union
representative complained about the potential for retaliation. Grosdidier argues that this
complaint should have been considered by the Court as protected activity in support of her
retaliatory nonselection claim. The Court did not specifically address this factual claim in its
prior Memorandum Opinion. The reason for that omission, however, was that the complaint at
issue was not actually made in opposition to any discriminatory or retaliatory conduct.
Grosdidier relies on paragraph 62(c) of her statement of material facts, which read, “In
August 2005, Ms. Grosdidier’s union representative informed Mr. Dia that it appeared he was
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attempting to retaliate against Ms. Grosdidier by considering discipline against her.” Pl.’s Stmt.
¶ 62(c). However, the evidence Grosdidier cited in support of this statement does not actually
indicate that Grosdidier’s union representative accused Dia of retaliation. Dia testified at his
deposition that he called a meeting with Grosdidier to admonish her for disobeying instructions
from managing editor Ferdinand Ferella regarding content on a sports program. See Pl.’s Ex. 6
(Dia Dep.) at 120-21. Dia testified that Grosdidier agreed it would not happen again and that no
formal reprimand was placed in Grosdidier’s file. Id. at 121. Dia did testify that he wrote down
what had occurred during the meeting and that Grosdidier’s union representative complained
about his writing down what occurred and accused him of setting up Grosdidier for reprisal. Id.
at 121-22. Dia denied the allegation and testified that he did not know what the union
representative meant. Id. at 122-23. From this testimony, it appears that the union representative
was not accusing Dia of engaging in retaliatory conduct, but rather of improperly keeping records
to make it easier to sanction her in the future. Therefore, the union representative’s complaint
cannot be considered opposition to a practice made unlawful by Title VII. Accordingly, there is
no basis for the Court to reconsider its ruling based on this incident.
IV. CONCLUSION
For the foregoing reasons, the Court declines to reconsider its summary judgment ruling.
The Court finds that Grosdidier was properly on notice of the need to present evidence in support
of her retaliation claim and therefore did not err by ruling that Grosdidier’s evidence that she
engaged in protected activity in 2004 and 2005 was insufficient. Furthermore, the Court finds
that Grosdidier’s belief that she was being subjected to a hostile work environment during that
time period was objectively unreasonable in light of the record presented at summary judgment
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and, alternatively, in light of Grosdidier’s new allegations. The Court also rejects Grosdidier’s
argument that her complaints should be deemed protected activity because her workplace might
have ultimately developed an actionably hostile atmosphere if she did not complain. Finally, the
Court finds that statements by Grosdidier’s union representative in August 2005 do not qualify as
protected activity for purposes of Grosdidier’s retaliation claim. Therefore, the Court shall
DENY Plaintiff’s [31] Motion to Reconsider or in the Alternative to Amend Judgment to Permit
Appeal. An appropriate Order accompanies this Memorandum Opinion.
Dated: May 16, 2011 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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