Kennedy v. Buttigieg

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DIAMOND KENNEDY, Plaintiff, v. PETE BUTTIGIEG, Secretary of United States Department of Transportation,^[1] Defendant.

Civil Action Nos. 19-2212 (RDM), 19-2666 (RDM)

United States District Court, District of Columbia

March 17, 2023

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

Although Plaintiff Diamond Kennedy originally brought these consolidated actions against the Secretary of Transportation (hereinafter the “Department”) and a Department of Transportation contractor, Dynamic-Pro, Inc. (hereinafter “Dynamic-Pro”), the parties have stipulated to the dismissal of Dynamic-Pro, Min. Order (April 26, 2021) Kennedy has voluntarily dismissed two counts against the Department, Min. Order (Feb. 12, 2021), and, most recently she withdrew an additional count against the Department, Dkt 39 at 8. As a result, all that remains are three claims against the Department: Count I, which alleges that Kennedy was subjected to a hostile work environment based on gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); Count II, which alleges that she was subjected to a retaliatory hostile work environment and retaliatory termination, also in violation of Title VII; and Count III, which alleges that the Department failed to accommodate her disability, in violation of the Rehabilitation Act, 29 USC § 701 et seq.

The Department now moves for summary judgment on each of Kennedy's remaining claims. Dkt. 32. For the following reasons, the Court will GRANT in part and DENY in part the Department's motion.

I. BACKGROUND

For purposes of resolving the motion for summary judgment, the Court takes “the facts in the record and all reasonable inferences derived therefrom in a light most favorable” to Kennedy, the non-moving party. Coleman v. Duke, 867 F.3d 204, 209 (D.C. Cir. 2017) (quoting Al-Saffy v. Vilsack, 827 F.3d 85, 89 (D.C. Cir. 2016)).

A. Factual Background

1. Kennedy's employment at the FRA

The Federal Railroad Administration (“FRA”) is an agency within the Department of Transportation. Dkt. 39-6 at 1-2 (Pl.'s Statement of Material Facts in Dispute (“Pl.'s SDMF”) ¶ 3); Dkt. 42-1 at 2 (Def.'s Response to Pl.'s SDMF (“Def.'s Response”) ¶ 3). Dynamic-Pro is a government contractor, which provides administrative support to government agencies, including the FRA. Dkt. 32-2 at 1 (Def.'s Statement of Undisputed Material Facts (“SUMF”) ¶ 2); see also Dkt. 39-7 at 1 (Pl.'s Response to SUMF (“Pl.'s Response”) ¶ 2). In August 2017, Dynamic-Pro offered Diamond Kennedy a position as an administrative assistant. Dkt. 32-2 at 1 (Def.'s SUMF ¶ 1); see also Dkt. 39-7 at 1 (Pl.'s Response ¶ 1). The next month, Kennedy started work at the FRA as a contract Administrative Assistant in the Office of the Administrator, where she worked for Patrick Warren, the FRA's Executive Director. Dkt. 32-2 at 2 (Def.'s SUMF ¶ 4); see also Dkt. 39-7 at 1 (Pl.'s Response ¶ 4). A short time later, on November 20, 2017, Kennedy was reassigned to the FRA's Government Affairs Office, where she provided administrative support for Christopher Hess, the FRA's Director of Administrative Affairs. Dkt. 32-2 at 3 (Def.'s SUMF ¶¶ 6-9); see also Dkt. 39-7 at 2 (Pl.'s Response ¶¶ 6-9).

For budget reasons, Kennedy was subsequently transferred to the position of Administrative Assistant II in the FRA's Office of the Chief Financial Officer (“RCFO”), where she started work on July 16, 2018. Dkt. 39-6 at 15 (Pl.'s SDMF ¶¶ 45-46); Dkt. 42-1 at 25-26 (Def.'s Response ¶¶ 45-46). The head of RCFO was Rebecca Pennington, and Kennedy's new Contracting Officer Representative (“COR”) was Yulita O'Neal. Dkt. 39-6 at 15-16 (Pl.'s SDMF ¶¶ 46, 48); Dkt. 42-1 at 26-27 (Def.'s Response ¶¶ 46, 48).

2. Alleged sexual harassment

The events leading to this case began in the fall of 2017, when Kennedy was transferred to the Government Affairs Office. That office shared an office suite with the Office of Public Affairs, and the Deputy Director of the Office of Public Affairs was Marc Willis. Dkt. 32-2 at 3 (Def.'s SUMF ¶ 10); see also Dkt. 39-7 at 2 (Pl.'s Response ¶ 10). Kennedy alleges that within a month of starting at Government Affairs, Willis began to sexually harass her. Dkt. 39-6 at 5 (Pl.'s SDMF ¶ 17); Dkt. 42-1 at 7 (Def.'s Response ¶ 17).

Kennedy recalls the first alleged incident with Willis: When she was leaving the office, Willis was “ogling [her] body,” and, when she returned, her co-worked Ashante Jorden told Kennedy that Willis “asked if [Kennedy] was a stripper” because her “butt is big.” Dkt. 39-1 at 181 (Pl.'s Ex. 4, Kennedy Dep. at 57:19-58:4). Kennedy testified that Willis engaged in similar ogling on five or six other occasions. Id. at 183-84 (Pl.'s Ex. 4, Kennedy Dep. at 68:13-69:15). When asked about this by an Equal Employment Opportunity (“EEO”) investigator, Willis did not dispute that he ogled Kennedy and merely stated: “I am a heterosexual male, I may have noticed. But I did not laugh[,] and I do not make comments about someone's figure.” Id. at 1584 (Pl.'s Ex. 19). According to Kennedy, “when [she] was about to move over to Government Affairs[,]” Willis “kept coming up to [her] and telling [her] the whole week that [she] was getting ready to work for him and [she] was going to be his assistant,” id. at 185 (Pl.'s Ex. 4, Kennedy Dep. at 74:10-74:22), although she was ultimately assigned to work as Chris Hess's assistant, see Dkt. 32-2 at 3 (Def.'s SUMF ¶¶ 6-9); see also Dkt. 39-7 at 2 (Pl.'s Response ¶¶ 6-9). Willis allegedly told Kennedy that Hess only wanted her in his office “because of [her] looks.” Dkt. 39-1 at 185 (Pl.'s Ex. 4, Kennedy Dep. at 74:4-75:5).

Kennedy also alleges that, on one occasion, Willis stopped by her desk to ask for a piece of gum “and said he might not know when [she] will want a kiss from him.” Id. at 184 (Pl.'s Ex. 4, Kennedy Dep. at 70:24-71:8). Later in that same interaction, Willis purportedly told Kennedy that “he was jealous of the [hickies] on [her] neck and that he wasn't the one to give them to [her] or put them there.” Dkt. 39-1 at 186 (Pl.'s Ex. 4, Kennedy Dep. at 77:16-78:10). Willis admits to making a different comment about Kennedy's neck, claiming that he “did tell her she needed to cover up the marks on her neck with makeup because they were unprofessional.” Dkt. 39-1 at 1585 (Pl.'s Ex. 19). On another occasion, Willis asked to get in front of Kennedy in the line for the printer. Kennedy responded, “in a ‘non-sexual manner,'” “ok, you can get in front of me but it may cost ya,” to which Willis allegedly responded “‘I am willing to pay for certain things.'” Dkt. 39-1 at 184 (Pl.'s Ex. 4, Kennedy Dep. at 72:11-19).

Kennedy made other allegations against Willis. In a chat message with a co-worker, Antoinette Jensen, for example, Kennedy told Jensen that Willis “tell[s me] im beautiful all the time.” Dkt. 39-1 at 1573 (Pl.'s Ex. 17). At her deposition in this case, she testified Willis told her “how nice [she] look[ed] in [her] jeans on Fridays” and told her “how pretty [she is] and that if he was [her] age he would date [her.]” Dkt. 39-1 at 185 (Pl.'s Ex. 4, Kennedy Dep. at 75:976:4). She also testified that Willis told Jensen that he was “a dirty old man” who “grabb[ed]” nurses' “butts.” Dkt. 39-1 at 185 (Pl.'s Ex. 4, Kennedy Dep. at 76:8-24). Willis admitted to making a “similar comment” in the workplace. Dkt. 39-1 at 1380-81 (Deposition of Marc Willis at 89:10-90:14).

When asked at deposition whether others were in earshot when Willis made inappropriate comments to her, Kennedy responded, “[h]e would only do it when I was by myself.” Dkt. 39-1 at 234 (Pl.'s Ex. 4, Kennedy Dep. at 269:6-9). And when asked, “[o]ut of all the times that you were alone with him . . . [,] how often would he make a comment that you would consider to be improper or a form of sexual harassment,” she responded, “[p]retty much every time, which was far and few because I was rarely by myself.” Dkt. 39-1 at 234 (Pl.'s Ex. 4, Kennedy Dep. at 269:10-16).

Shortly after her reassignment to RCFO, Kennedy and Jensen met with the FRA's EEO Program Manager, Shandra Whiting, to discuss Willis' conduct. Dkt. 32-2 at 12 (Def.'s SUMF ¶ 38); see also Dkt. 39-7 at 10 (Pl.'s Response ¶ 38). A few days later, on July 25, 2018, the Office of Civil Rights completed its inquiry and its director, Calvin Gibson, submitted a recommendation to Matthew Sturges, FRA's Deputy Administrator. Dkt. 32-2 at 16 (Def.'s SUMF ¶ 49); see also Dkt. 39-7 at 16-17 (Pl.'s Response ¶ 49). Gibson recommended that because Willis “ha[d] no prior allegations, his supervisor would call the situation to his attention without disclosing who complained.'” Dkt. 32-2 at 16-17 (Def.'s SUMF ¶ 49); see also Dkt. 397 at 16-17 (Pl.'s Response ¶ 49). There is evidence, however, that Willis did learn that Kennedy was his accuser, although it is unclear how he learned that Kennedy had complained about his behavior. See Dkt. 39-1 at 188 (Kennedy Dep. at 88:20-25); Dkt. 39-6 at 28 (Pl.'s SDMF ¶ 97).

On July 30, 2018, Gibson met with Willis concerning the allegations, which Willis denied, except for the “dirty old man” comment. Dkt. 32-2 at 17 (Def.'s SUMF ¶ 51); see also Dkt. 39-7 at 17 (Pl.'s Response ¶ 51). On July 31, 2018, Whiting emailed Kennedy and Jensen to tell them “that the issue you both informed me of on Friday, July 20, 2018 was looked into and addressed accordingly.” Dkt. 32-2 at 17 (Def.'s SUMF ¶ 52); see also Dkt. 39-7 at 18 (Pl.'s Response ¶ 52). It is undisputed that after Kennedy reported Willis' inappropriate behavior, no additional incidents of sexual harassment occurred. Dkt. 32-2 at 17 (Def.'s SUMF ¶ 53); see also Dkt. 39-7 at 18 (Pl.'s Response ¶ 53).

3. Kennedy's performance, improvement...