MOODY v. ATLANTIC CITY BOARD OF EDUCATION, No. 1:2014cv04912 - Document 31 (D.N.J. 2016)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/13/2016. (tf, )
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MOODY v. ATLANTIC CITY BOARD OF EDUCATION Doc. 31 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY MICHELE MOODY, : Hon. J oseph H. Rodriguez: Plaintiff, : Civil Action No. 14-4912 v. : ATLANTIC CITY BOARD OF EDUC., OPINION : Defendant. : This m atter is before the Court on Defendant’s m otion for sum m ary judgm ent pursuant to Federal Rule of Civil Procedure 56. [Doc. 22.] The Court has reviewed the subm issions and decides the m atter based on the briefs pursuant to Fed. R. Civ. P. 78(b). For the reasons stated here, the m otion will be granted. Ju ris d ictio n This case is a civil action over which the district court has original jurisdiction based on a question “arising under the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331. Plaintiff asserts that she was sexually harassed and retaliated against in violation of Title VII, 42 U.S.C. § 20 0 o(e) of the Civil Rights Act of 1964 as am ended. With respect to Plaintiff’s state law claim s, this Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). 1 Dockets.Justia.com Backgro u n d Plaintiff Michele Moody claim s that she was sexually harassed while em ployed as a Substitute Custodian for Defendant Atlantic City Board of Education. Atlantic City School District is com prised of eleven schools. As a Substitute Custodian, Plaintiff was part of a pool of em ployees that potentially could be called to work in any one of the schools should the need arise. She was paid on a per diem basis and was not guaranteed work. (Moody Dep. p. 24-25.) Plaintiff’s alleged harasser, Maurice Marshall, is a full-time Custodial Forem an at the New York Avenue School, one of the schools in the District. He has no authority to hire staff or award contracts on behalf of the District; he has no involvem ent as to the hiring of full-tim e custodians. (Marshall Dep. p. 24-25.) However, it appears that he was responsible for scheduling substitute custodians to work at the New York Avenue School. (Moody Dep. p. 40 , 130 .) Beginning on October 26, 20 12, Plaintiff received calls to work at the New York Avenue School, and did work there. At that tim e, Plaintiff alleges that Marshall inform ed her that she would receive more hours at his school in exchange for sexual favors. (Moody Dep. p. 44-45.) Shortly after October 26, 20 12, Marshall allegedly grabbed Plaintiff by the arm in the stairwell 2 and tried to pull her close to him to kiss him , but Plaintiff pulled away. (Moody Dep. p. 47.) In early to m id-November 20 12, Plaintiff was called over the radio to com e to Marshall’s office, and when she opened the door, Marshall allegedly was sitting unclothed in his office chair. (Moody Dep. p. 52.) Plaintiff walked out, (id.), causing Marshall to ask Plaintiff: “Where are you going?” (Moody Dep. p. 53.) Plaintiff kept walking. (Id.) Nonetheless, she continued to get the sam e level of custodian work – allegedly 4 to 5 days per week. (Moody Dep. p. 55.) Plaintiff also alleges near daily sexual advances and/ or text m essages from Marshall, which she was uncom fortable with and rejected. 1 This conduct allegedly culm inated in a December 20 12 encounter between the two at Plaintiff’s hom e during which Marshall inform ed Plaintiff that the only way she would get a For exam ple, Marshall would com m ent on how tight Plaintiff’s jeans were and that girls from Plaintiff’s section of town are “dirty girls.” (Moody Dep. p. 125.) Also am ong the daily com ments that Marshall m ade to Plaintiff included: “If your dad knew you were dressed like that he would be shakin’ his head” and “Why does your butt shake like that?” and he would tell other fem ale em ployees: “Don’t you wish your but was big that that.” (Moody Decl. ¶ 46.) Also, on a weekly basis, Marshall would often grab Plaintiff’s breasts or buttocks at the work place. (Moody Decl. ¶ 47.) On about November 5, 20 12, Marshall called Plaintiff into his office and tried to take her shirt off. (Moody Decl. ¶ 45.) J ust before Christm as break in late December 20 12, Marshall again physically grabbed Plaintiff in the office from behind and pulled here backwards towards himself. (Moody Dep. p. 60 .) Plaintiff pulled away and asked why he was doing this. Marshall responded: “You want m ore hours?” (Moody Dep. p. 61.) 1 3 contract with Defendant would be to engage in sexual activity with him . 2 (Moody Dep. p. 64.) The two allegedly engaged in sexual relations in Plaintiff’s house. (Moody Dep. p. 66.) Marshall denies having m ade sexual com m ents or advances, as well as having entered Plaintiff’s house and sexual relations. (Marshall Dep. p. 33-35, 42, 51-52.) Plaintiff asserts that she informed Marshall shortly afterward that what they had done would never happen again, (Moody Dep. p. 126); she states that her work hours were then substantially reduced. (Moody Decl. ¶ 18-19.) 3 On J anuary 23, 20 13, when Plaintiff attem pted to pick up her paycheck at the New York Avenue School, Marshall was playing ping pong and m ade Plaintiff wait for her check. (Moody Decl. ¶ 20 .) At that tim e, Plaintiff noticed that a new substitute custodian, Michelle McArthur, was On December 27, 20 12, Marshall started texting Plaintiff at 6:0 5 p.m.: Marshall: “U playing . . . Well . . . Ok ill hit u when U go to work.” Plaintiff: “In the am ?” Marshall: “No tonight m y other job I am getting all three holes.” Plaintiff: “No the hell u not.” Marshall: “How’s penn [another school] treating u . . . U got steady work and that’s where the contracts going to b at . . . I got u” (Moody Decl. Ex. 1.) Later that evening, Marshall allegedly went to Plaintiff’s house uninvited, and told her “This is the only way you are going to get a contract.” (Moody Decl. ¶ 16.) 3 During her deposition, Plaintiff theorized that her hours had been reduced because her coworkers had inquired about whether there was an inappropriate relationship between her and Marshall that caused her to receive special treatm ent. (Moody Dep. p. 68 -69.) 2 4 working at the New York Avenue School. (Moody Decl. ¶ 21.) Plaintiff alleges that she was inform ed by another custodian at the school, Eloise Spellm an, that Plaintiff was on Marshall’s “shit list.” (Moody Decl. ¶ 22; Moody Dep. p. 72.) 4 After Plaintiff left the New York Avenue School that m orning, she initiated a text exchange with Marshall. Plaintiff: “U don’t gotta act like that towards me, I understand your [sic] upset at m e but, outside of that Im a good worker but, Its cool.” Marshall: “Wt are u talking about, I’m not into the dram a.” Plaintiff: “J ust m aking sure Im not on ya so call “shit list”.” Marshall: “U are but not like that I won’t stop u from getting I don’t play gam es like that.” (Moody Decl. ¶ 23-27; Ex. 1.) The remainder of that week, Plaintiff was not assigned any work by Marshall but the new substitute custodian, McArthur, was assigned three days that week. (Moody Decl. ¶ 29.) On J anuary 29, 20 13, Plaintiff again initiated a text exchange with Marshall. Plaintiff: “Guess it is m essing with m y hours, Its cool though.” In her deposition, Spellm an testified that she never saw Marshall be disrespectful to any em ployees. (Spellm an Dep. p. 7-8.) She testified that she never texted or told anyone that Plaintiff was on Marshall’s “shit list,” and she did not have any conversations with Plaintiff about Marshall or with Marshall about Plaintiff. (Spellm an Dep. p. 8.) Spellm an further testified that there was one instance she remembered when Plaintiff was not working on a particular day and Plaintiff said “He’s [meaning Marshall] not letting m e work today, he’s letting Michelle [McArthur] work. He said he’s letting Michelle work. Oh, I got som ething for that ass.” (Spellm an Dep. p. 10 -11.) 4 5 Marshall: “Wt are you talking about please stop . . . I see your a trouble starter don’t know wts your problem but I got rid of all m y trouble at this school if you have a problem with m e my door is always open.” Plaintiff: “Im not a trouble starter or a problem U said that I was on your “shit list” to Ms. Weezy but I knew what u were referring to because it got out that we were m essing around, I knew I should have never engaged into that with u but, It is what it is that should have never interfered with m e lossing hours cause Im a good worker but, Its cool if only I knew what I know now but, everybody tried to warn m e.” Marshall: “One when the fuck we mess around two u get mad cause I wouldn’t stop playing m y game and go get your check like who are u I said give m e a m in, so I didn’t do anything to u u did it to your self, and the ppl telling u to watch m e lol all the subs work for m e are cool and com e back, take a look at your self before u blam e anyone we was cool till u started bugging . . . Like I said I don’t argue with subs to m any ppl want jobs and on the list.” Plaintiff: “Yo I have all the text m essages and my parents saw u when u cam e to m y house.” Marshal: “Lol m oody something really wrong with u than u say y we got beef it’s not m e who has the beef it’s u on that note.” Plaintiff: “I don’t have beef Im just seeing now what everybody was talking about . . . How u really are.” Marshall: “How am I u was com ing in u was being called u was getting hours wt are I talking about how did I disrespect U but you did m e telling ppl we had sex cause I didn’t get your ck fast enough, like I said u have beef com e talk to me that’s wt wom an do this some teen shit.” Plaintiff: “Monk whatever . . . Look I never disrespected u any type of way m y thing is as long as we were messing around and nobody knew I got hours then when word got out u stopped calling me in for work its cool though but, I work to feed and cloth m y children and with that being said I have to do whats best for m e . . .” Marshall: “Look I haven’t called u in one week that’s it shell cam e in for wizzy while she was there m ark took off that’s why she got them days u are bugging for real not even that serious. Are u going through something personal cause this is crazy.” (Moody Decl. ¶ 30 -41; Ex. 1.) 6 On February 4, 20 13, Plaintiff m ade a com plaint against Marshall to Assistant Superintendent Sherry Yahn, who im m ediately took Plaintiff to Hum an Resources to lodge a written com plaint. (Moody Decl. ¶ 43; Moody Dep. p. 76-77; Yahn Dep. p. 9-11.) That day, Diane Saunders, Supervisor of Hum an Resources had a telephone conversation with Plaintiff concerning her com plaint and setting up an in-person m eeting with the New York Avenue School Principal, J ames Knox. (Moody Dep. p. 77-78.) On February 12, 20 13, Plaintiff was sent correspondence confirm ing the m eeting. (Moody Dep. p. 78.) On February 12, 20 13, Diane Saunders held a m eeting with Maurice Marshall, J am es Knox, Principal of the New York Avenue School, Kurt Austin, District Facilities Manager, Edzii Ebenezer, President of the Head Custodian Association, and Brian Currie, NJ EA Representative. (Riley Cert., Ex. I.) Marshall adam antly denied all of Plaintiff’s allegations. (Id.) He stated that Plaintiff began to m ake allegations against him when he began to call another substitute custodian in for work. Marshall further provided that he did stop calling Plaintiff into work because of the accusations she was m aking about him . (Id.) On February 13, 20 13, eight custodians from the New York Avenue School were individually interviewed with regard to Plaintiff’s allegations. 7 (Riley Cert., Ex. I.) The eight custodians were Mark Crum ble, Hattie Martin, Eloise Spellm an, Harold Barnes (substitute), Granville Haywood, Daniel Sm ith, Michael Downing, and J oseph Beaman III. (Id.) All of the custodians were asked if they witnessed any inappropriate behavior by Marshall towards Plaintiff. All of the custodians answered in the negative. (Id.) During a February 14, 20 13 meeting, Saunders and Knox questioned Plaintiff about the circum stances that lead to her complaint. (Moody Dep. p. 78.) While the investigation into Plaintiff’s allegations was pending, she was informed that she would be separated from Marshall. (Moody Dep. p. 81.) Thereafter, she did not receive any assignments at the New York Avenue School. (Moody Dep p. 82; Marshall Dep. p. 53.) Defendant Atlantic City Board of Education retained an outside law firm to investigate the claim of harassm ent m ade by Plaintiff. (Riley Cert., Ex. M.) The law firm of DeCotiis, Fitzpatrick & Cole, LLP conducted an investigation, and rendered a report in this m atter. Witnesses were again interviewed, including Plaintiff. (Riley Cert., Ex. M & N.) The DeCotiis investigation recomm ended a finding of no sexual harassment or discrim ination. (Riley Cert., Ex. N.) Hum an Resources was unable to com e to any finding of sexual or other discrim ination in the workplace. (Riley 8 Cert., Ex. O.) Plaintiff was notified of the findings and the reasons for the findings in correspondence dated J uly 23, 20 13. (Riley Cert., Ex. O.) In October of 20 13, Plaintiff’s children were transferred from the New York Avenue School to the Uptown School Com plex; Plaintiff views the transfer as retaliation for com plaining about Marshall. (Moody Dep. p. 92.) Plaintiff’s children previously attended the Martin Luther King Com plex due to ongoing custody issues, but Plaintiff became angry with the school’s principal, and requested that her children be able to attend the New York Avenue School because that school was closer to where her parents lived. (Yahn Dep. p. 17-19.) Yahn granted the request and Plaintiff’s children were enrolled at New York Avenue. (Yahn Dep. p. 19; Yahn Cert.¶ 3-6.) Plaintiff’s son was placed in a program outside the district for behavioral issues, and when he was to re-enroll through the district’s central registration, it was determ ined that his neighborhood school was at Uptown Com plex, so that is where he was placed. (Yahn Dep. p. 21-22 Yahn Cert.¶ 7.) Further, Yahn explained to Plaintiff that having her three children in the sam e neighborhood school would help with the truancy issues she had. (Yahn Dep. p. 31 Yahn Cert.¶ 9-10 .) 9 Su m m ary Ju d gm e n t Stan d ard “Sum m ary judgment is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter sum mary judgment in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any material fact by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the 10 nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum mary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate time for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party 11 cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). D is cu s s io n Title VII of the Civil Rights Act of 1964 m akes it unlawful for em ployers to “discrim inate against any individual with respect to com pensation, term s, conditions or privileges of em ploym ent, because of such individual’s . . . sex.” 42 U.S.C § 20 0 0 e– 2(a)(1). Because New J ersey courts “have frequently looked to case law under Title VII . . . for guidance in developing standards to govern the resolution of LAD claim s,” the Court will analyze the NJ LAD claim s together with the Title VII claim s. Carm ona v. Resorts Int’l Hotel, Inc., 915 A.2d 518 (N.J . 20 0 7). Sexual harassm ent that is actionable under Title VII can take two form s—quid pro quo or a hostile work environment. “Quid pro quo” harassment involves express or im plied dem ands for sexual favors by a 12 superior directed at a subordinate in exchange for a benefit or the avoidance of a negative consequence. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986). This type of harassment consists of “[u]nwelcom e sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassm ent when (1) subm ission to such conduct is m ade either explicitly or im plicitly a term or condition of an individual’s em ploym ent [or] (2) submission to or rejection of such conduct by an individual is used as the basis for em ploym ent decisions affecting such individual.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997) (abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (20 0 6)). “[A] plaintiff m ay prove a claim of quid pro quo sexual harassment by showing that ‘his or her response to unwelcom e advances was subsequently used as a basis for a decision about com pensation, [term s, conditions, or privileges of em ploym ent].’” Farrell v. Planters Lifesavers Co., 20 6 F.3d 271, 281-82 (3d Cir. 20 0 0 ) (quoting Robinson, 120 F.3d at 1297). To establish a prima facie case of hostile work environment, a plaintiff m ust show that “(1) the em ployee suffered intentional discrim ination because of their sex; (2) the discrim ination was [severe or pervasive]; (3) the discrim ination detrim entally affected the plaintiff; (4) 13 the discrim ination would detrim entally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.” Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 10 0 , 10 4 (3d Cir. 20 0 9) (internal citations and quotation m arks om itted). 5 Accord J ensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 20 0 6). In analyzing a hostile work environm ent case, the courts m ust “determ ine whether an environment is sufficiently hostile or abusive by looking at all the circum stances, including the frequency of the discrim inatory conduct; its severity; whether it is physically threatening or hum iliating, or a mere offensive utterance; and whether it unreasonably interferes with an em ployee’s work perform ance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (internal citations and quotation m arks om itted). See also Burlington Indus. v. Ellerth, 524 U.S. 742, 752 (1998) (A plaintiff bringing a hostile work environm ent claim under Title VII m ust allege harassment that is severe or pervasive.). That is, Title VII is violated only “[w]hen the workplace is permeated with discrim inatory intim idation, In applying the NJ LAD, the New J ersey Supreme Court uses a sim ilar test, requiring that “the com plained-of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to m ake a (3) reasonable [person of that gender] believe that (4) the conditions of em ploym ent are altered and the working environm ent is hostile or abusive.” Lehmann v. Toys ‘R’ Us, 626 A.2d 445, 453 (N.J . 1993). 5 14 ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim ’s em ployment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor, 477 U.S. at 65, 67). “Title VII is not intended as a ‘general civility code.’” Burgess v. Dollar Tree Stores, Inc., 642 F. App’x 152, 154– 55 (3d Cir. 20 16) (quoting Faragher, 524 U.S. at 788). When a co-worker harasses a plaintiff, an em ployer is liable for its em ployee’s unlawful harassm ent if the em ployer was negligent with respect to the offensive behavior. Vance v. Ball State Univ., --- U.S. ---, 133 S. Ct. 2434, 2441 (20 13). Under the Ellerth/ Faragher analysis, the employer in a hostile work environm ent sexual harassm ent case m ay assert as an affirm ative defense to vicarious liability that it ‘exercised reasonable care to prevent and correct prom ptly any sexually harassing behavior,’ and ‘the plaintiff em ployee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the em ployer or to avoid harm otherwise,’ provided that the em ployer has not taken an adverse tangible em ploym ent action against the plaintiff em ployee.” Aguas v. State, 10 7 A.3d 1250 , 1253 (N.J . 20 15) (quoting Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 80 7-0 8). 15 The New J ersey Supreme Court has held that “an allegedly harassing em ployee is the com plainant’s supervisor if that em ployee had the authority to take or recom mend tangible em ploym ent actions affecting the com plaining em ployee, or to direct the com plainant's day-to-day activities in the workplace. Id. Sim ilarly, the United States Supreme Court has held that “an em ployer m ay be vicariously liable for an em ployee’s unlawful harassment only when the em ployer has empowered that em ployee to take tangible em ploym ent actions against the victim , i.e., to effect a ‘significant change in em ployment status, such as hiring, firing, failing to prom ote, reassignm ent with significantly different responsibilities, or a decision causing a significant change in benefits.’” Vance, 133 S. Ct. at 2443 (quoting Ellerth, 524 U.S. at 761). “The ability to direct another em ployee’s tasks is sim ply not sufficient.” Vance, 133 S. Ct. at 2448. In order to m ake out a prim a facie case of retaliation, the plaintiff m ust show: (1) that she engaged in a protected activity, which can include inform al protests of discrim inatory employm ent practices such as making com plaints to m anagement; (2) adverse action taken by the employer either after or contem poraneous with the employee’s protected activity; and (3) a causal connection between the protected activity and the adverse action. Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 20 15). Again, 16 [w]hile this discussion focuses on Title VII, the same analysis applies to [Plaintiff’s] NJ LAD claim . . . . To establish a prim a facie case of retaliation under the NJ LAD, [a Plaintiff] m ust [show] both that she opposed ‘a practice rendered unlawful’ by the statute and that the employer knew about that opposition.” Davis v. City of Newark, 417 F. App’x 20 1, 20 3 (3d Cir. 20 11) (quoting Young v. Hobart W. Group, 897 A.2d 10 63, 10 73 (N. J . Super Ct. App. Div. 20 0 5)). In this case, Plaintiff has not established that Marshall was her supervisor. Although Marshall was able to call Plaintiff into work at the New York Avenue School when needed, so were ten other m aintenance forepersons, as well as the Board office. Marshall did not have authority to term inate Plaintiff or m ake any other personnel decisions. Assum ing arguendo that Marshall was Plaintiff’s supervisor, the record does not support a finding that Plaintiff’s response to Marshall’s alleged unwelcom e advances was subsequently used as a basis for a tangible em ploym ent action, that is “a significant change in em ploym ent status, such as hiring, firing, failing to prom ote, reassignm ent with significantly different responsibilities, or a decision causing a significant change in benefits.” Vance, 133 S. Ct. at 2442 (quoting Ellerth, 524 U.S. at 761). 17 During each of the two pay periods ending October 26, 20 12, Plaintiff worked and was com pensated for 24 and 40 hours. (Riley Cert. Ex. L.) She then began to receive calls from Marshall to work at the New York Avenue School. Plaintiff worked 19.5, 64, 46, and 48 hours per pay period during which tim e she alleges that she consistently rejected Marshall's advances. During the week of and the week after their alleged sexual encounter, December 23, 20 12 through J anuary 4, 20 14, Plaintiff worked exclusively at the Pennsylvania Avenue School and logged 72 hours. Plaintiff asserts that shortly thereafter, she informed Marshall that they would not have further sexual relations, yet she was scheduled for 38.5 and 24 hours at the New York Avenue School during the subsequent two pay periods. Plaintiff filed her com plaint with Hum an Relations on February 4, 20 13 but, during that week and the next, she worked 36 hours at Pennsylvania Avenue. Upon initiating an investigation into Plaintiff’s accusations against Marshall, Defendant instructed the two to have no contact with each other. As such, one would not expect Marshall to call Plaintiff in to substitute at New York Avenue. Plaintiff continued to be called to work at other schools 18 in the District sporadically until May of 20 14, during which she worked 48 hours in one pay period. (Id.) 6 As Plaintiff has failed to establish a tangible em ploym ent action taken against her by Defendant, Defendant is able to avoid liability if it can establish an affirmative defense by showing that it exercised reasonable care to prevent and correct prom ptly any sexually harassing behavior and the plaintiff em ployee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Ellerth, 542 U.S. at 765; Faragher, 524 U.S. at 80 7. There is nothing in the record to support a finding the Defendant knew or should have known of the alleged harassm ent and failed to take prom pt remedial action. Indeed, the opposite has been shown through record evidence, as outlined above. Upon being notified of Plaintiff’s allegations, Defendant conducted a thorough investigation. Plaintiff and Marshall were During the pay period ending April 12, 20 13, Plaintiff worked and was com pensated for 23 hours. During the pay period ending April 26, 20 13, Plaintiff worked and was com pensated for 8.5 hours. During the pay period ending May 10 , 20 13, Plaintiff worked and was com pensated for 40 hours. During the pay period ending May 24, 20 913, Plaintiff worked and was com pensated for 8 hours. Plaintiff was not called in for hours during the m onths of J une, J uly, August, or Septem ber 20 13. Plaintiff was also not called into work during the summ er months of J une, J uly, August, or September of 20 12. 6 19 directed to have no contact with each other, and that directive was confirm ed in writing by certified mail. Regarding Plaintiff’s claim of retaliation, the Court finds no causal connection between Plaintiff com plaining about Marshall and the assignment of her children to their neighborhood school. Additionally, as stated, Plaintiff continued to be called into work on a substitute basis after lodging her com plaint. Co n clu s io n For the reasons stated above, Defendant’s m otion for summ ary judgm ent will be granted. An Order will accom pany this Opinion. Dated: Decem ber 13, 20 16 / s/ J oseph H. Rodriguez J oseph H. Rodriguez, USDJ 20
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