Disclaimer:
The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
-------------------------
Court finds
that harassment by supervisor and that supervisor's successor are part
of the same hostile work environment even though the harassment by each
supervisor took different forms.
Vickers v. Powell,
493 F.3d 186 (D.C. Cir. July 6, 2007)
Facts: This is
Title VII race and sex discrimination and retaliation action plus an
appeal of a decision from the Merit Systems Protection Board.
Cynthia Vickers, an
African-American woman, worked for the Federal Deposit Insurance
Corporation (FDIC) as a criminal investigator until her dismissal in
2001. Vickers had a strained relationship with her supervisor, Dana
Bedwell (a male).
On October 31, 2000,
they got into an argument. Vickers quit. On November 2, Bedwell sent
Vickers a letter that gave his account of the argument and granted her
four hours of administrative leave for the time she left work on October
31.
The letter also warned that if she did not return by November 6, he
would begin termination proceedings. She returned on November 6 and
requested six months of leave without pay to resolve the "mental,
emotional, and physical anguish" caused by her employment. Her request
was granted. In November, she filed an EEOC charge, but the record does
not provide any information about the charge.
For the next five
months, she was treated for severe depression. Her physician said she
could return to work on May 1, 2001. She was required by the FDIC to submit to a
medical examination, which she did. However, on advice of counsel, she
refused to execute two medical release forms because they lacked
sufficient safeguards to protect her privacy.
On April 18, 2001,
Thomas McDade (who had replaced Bedwell after he retired in March) sent
Vickers a letter demanding that she execute the medical forms. She again
refused to sign either form. Samuel Holland, Assistant Inspector General
for Investigations, made the decision to fire Vickers effective December
14, 2001.
Vickers appealed her
dismissal to the Merit Systems Protection Board (MSPB). Before the MSPB,
the employer must demonstrate that its reasons for firing the civil
servant are supported by a preponderance of the evidence and that the
penalty imposed was reasonable. The employee must prove any affirmative
defense by a preponderance of the evidence. An administrative law judge
(ALJ) upheld Vickers' termination. The ALJ faulted her for not signing
one of the two medical release forms. She then appealed to the district
court.
District court:
The district court granted summary judgment for the FDIC on all claims.
Appeal: With
respect to the MSPB decision, the court faults the MSPB for requiring
Vickers to
sign the one medical form and the court remands to the district court
with instructions to further remand back to the MSPB to determine
whether any other allegations constitute an independent basis for firing
Vickers. [Editor's Note: We do not summarize MSPB decisions, so that is
why there is little detail.]
With respect to the
retaliation claim, Vickers cannot show that she was terminated based on
her EEO complaints. The evidence only shows she was terminated for
refusing to sign two medical forms that the decisionmaker thought she
was required
to sign in order to return to work.
With respect to her
discrimination claim, she alleges that she was subjected to two adverse
employment actions: (1) unfair performance appraisals and (2)
termination. The court finds no evidence of unfair performance
appraisals and her termination claim fails for the same reasons her
retaliation claim failed.
The important issue in
this case is the hostile work environment claim. She alleges thirteen
incidents of harassment. Most of the incidents were allegedly
perpetrated by her supervisor, Dana Bedwell, or his predecessor, Mike
Mitchell. Those alleged incidents are as follows:
1. In 1992 she "was ridiculed by her supervisor
[Mike Mitchell] because she attended the Women in Federal Law
Enforcement Conference ("WIFLE") in Washington, D.C." Vickers,
2005 WL 3207775, at *9.
2. She "was subject to unwanted and continuing
conversations about her [supervisor Mitchell's] divorce and sexual
dysfunction" around 1993-1994. Id.
3. In 1995 or early 1996 she "was asked to assist
her manager [Mitchell] in going to the restroom by holding his
genitals for him." Id.
4. In 1996 Mitchell "forced [her] to listen to
sexist remarks about a female coworker, including comments that this
co-worker's 'legs flew open' at the sight of a photograph of her
abusive husband." Id.
5. Vickers "was shocked when her supervisor
[Mitchell] tricked her into picking up a troll-like doll designed so
that a large penis fell from under the shirt when she picked it up"
in 1995. Id.
6. In 1996 she "was singled out for rude,
condescending and often accusatory comments from [Bedwell] who
showed no position than he." Id.
7. In 1998 Bedwell "repeatedly subjected her to
intrusive and embarrassing inquiries about personal and medical
privacy for no reason other than curiosity, including inquiries of
other female employees regarding her medical condition." Id.
After objecting to these inquiries, she was accused of being
"hypersensitive." Id.
8. She "was subjected to unjustly reduced
performance rating[s], most recently on her October 2000 performance
evaluation. When she objected to the ratings given her, and
therefore refused to sign the Performance Plan, she was subjected to
angry threats from [Bedwell]." Id. at *10.
9. In 1999 Vickers "was subjected to sexist
comments in the work place, including a statement by her supervisor
to the Atlanta Regional Agent staff, which at this point was about
12 (twelve) white men and Ms. Vickers to the effect, 'hey, we're all
men here.'" Id.
10. She "was subjected to constant derogatory
comments made towards women and minorities," including a comment in
October 2000 by an instructor employed by the Federal Law
Enforcement Training Center "that a baton is a good weapon to use,
but depending on the circumstances a gun is a better weapon because
it eliminates problems, 'like the Rodney King case.'" Id.
11. In 1998 Vickers "was subjected to racial
profiling jokes including a comment that a white male could enter
their building unchallenged because 'he didn't fit the profile.'"
Id.
12. In 1998 she overheard insulting remarks from
behind a closed door regarding "affirmative action when an
African-American was selected for a position and her white coworkers
suggested that he had been selected only because of his race."
Id.
13. Vickers "was singled out for a requirement to
provide inordinate amounts of medical information to support
requests for leave." Id.
A federal employee must report discrimination to an
EEO counselor within forty-five days of the alleged conduct. Vickers did
not contact an EEO counselor until November 9, 2000, which would appear
to bar any incidents before September 25, 2000. The district court erred
in finding that the three alleged incidents that took place within the
filing period must, by themselves, make out a claim for a hostile work
environment before a court can consider whether the earlier acts are
part of the same hostile work environment.
The closer question is whether the alleged harassment
by Bedwell is part of the same actionable hostile work environment
practice perpetrated by Bedwell's predecessor, Mitchell. Following the
teachings of Morgan, the court explains that it "need not
consider an alleged incident if it 'had no relation to the [other] acts,
or for some other reason, such as certain intervening action by the
employer, was no longer part of the same hostile work environment
claim."
The district court determined that the acts
perpetrated by Mitchell (which were sexual in nature) were not part of
the same hostile work environment allegedly perpetrated by Bedwell
(whose acts were not sexual in nature). The D.C. Circuit disagrees
that the Mitchell allegations were so different in
kind that, as a matter of law, we can conclude that they were not
part of the same hostile work environment. The line between Mitchell
creating a hostile environment through sexual conduct and his
deputy-turned successor Bedwell perpetuating the environment by
condoning the same is not so well-defined to say that the Mitchell
and Bedwell acts have "no relation" as required in Morgan.
The court then goes on to explain:
The Mitchell incidents can therefore
be severed from the Bedwell incidents only if we accord conclusive
significance to the change in management. But routine personnel
actions such as Mitchell's retirement and Bedwell's promotion cannot
be the type of "intervening action[s] by the employer" that would
sever the earlier incidents from the more recent incidents
constituting Vickers' hostile environment claim. Id.
Although we can easily imagine circumstances in which a change in
managers might affect a hostile work environment claim, we see
nothing in the record that shows that Bedwell's succession was in
any way intended to address the environment created by Mitchell's
alleged improprieties.
Therefore, the court holds that all of the alleged
incidents of harassment can be considered. The court reverses the grant
of summary judgment as to the hostile work environment claim and remands
for further proceedings consistent with this opinion.