D.C. Circuit, hostile work environment decision
The D.C. Circuit issued a good decision reversing the district court's grant of summary judgment on plaintiff's Title VII hostile work environment claim (while leaving intact the summary judgment on her retaliation and discrimination claims arising from her termination and evaluations). The plaintiff, a criminal investigator at the FDIC, suffered fairly egregious gender and race-based harassment at the hands of both her former supervisor and her current supervisor. The agency argued, and the district court had agreed, that the older incidents involving her former supervisor could not be used for any purpose, since they were too far back in time and the replacement of the former supervisor by the new supervisor "broke the chain," so to speak. The DC Circuit squarely rejected this reasoning under the Supreme Court's Amtrak v. Morgan decision. Some excerpts follow: Vickers v. Powell (Chairman, FDIC), No. 06-5016 (D.C. Cir. July 6, 2007). Before: ROGERS, TATEL and GRIFFITH, Circuit Judges. Opinion for the Court filed by Circuit Judge GRIFFITH. . . . Federal regulations bar discrimination claims that an employee does not first bring to the attention of an agency's EEO counselor within forty-five days of the alleged conduct. See 29 C.F.R. ยงยง1614.105(a), 1614.107; Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). Vickers did not contact an EEO counselor until November 9, 2000, which, as the FDIC argues, would appear to bar from her claim any incidents before September 25, 2000. But because "[h]ostile environment claims are different in kind from discrete acts," the Supreme Court has noted that incidents constituting a claim "occur[] over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Because these acts may not all occur within the filing period, the Supreme Court has held "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117. In other words, because of the unique nature of a hostile environment claim, so long as at least one of the acts that contributed to the hostile environment occurs within the filing period, other acts that also contributed to the claim but that did not occur within the filing period may also be considered. We disagree 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. Morgan, 536 U.S. at 118. On summary judgment, we consider not just Vickers' allegations but also other supporting evidence such as her response to interrogatories, see Plaintiff's Answers to Defendant's First Set of Interrogatories, Vickers v. Powell, Civ. No. 03-174 (D.D.C. Nov. 15, 2004), which more fully describe the incidents on which her claim is grounded. According Vickers the benefit of all reasonable inferences, to which she is entitled as the nonmoving party on summary judgment, the Mitchell and Bedwell incidents do not seem so obviously different in kind for us to conclude that they are not related as a matter of law. 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. To the contrary, Vickers has alleged that her harassment intensified after the change in management. Cf. Isaacs v. Hill's Pet Nutrition, Inc., 485 F.3d 383, 386 (7th Cir. 2007) (faulting district court for focusing on identity of two harassers when both were employed by the defendant company because "the entity responsible for complying with Title VII is the employer, of which [the plaintiff] had just one"). We thus conclude that the district court erred when it held that Mitchell's actions, as a matter of law, could not reasonably be considered part of the same hostile work environment allegedly created by Bedwell's actions. The district court also erred in determining which of the Bedwell allegations could be considered to support Vickers' hostile work environment claim. In determining whether any of Vickers' remaining allegations were time-barred after it excluded the Mitchell allegations, the district court first examined the three acts that took place within the filing period, incidents 8, 10, and 13, to determine whether, taken as a group, they could support a hostile work environment claim. Concluding that they were by themselves "insufficient to support a hostile work environment claim," the district court then held that the incidents outside the filing period "cannot be revived under Morgan for reconsideration," even if they could make out a hostile work environment claim. Vickers, 2005 WL 3207775, at *35. We disagree with the district court's analysis that the three alleged incidents that took place within the filing period must, by themselves, make out a claim for a hostile workplace before we can make the common sense observation that they were part of a hostile work environment that includes earlier acts. As we have already observed, the Supreme Court addressed this issue in Morgan, see 536 U.S. at 120, and we have previously held that "the timeliness of [plaintiff's] hostile work environment claim does not depend on whether the acts that he alleged were discriminatory are actionable standing alone." Singletary v. District of Columbia, 351 F.3d 519, 527 (D.C. Cir. 2003). "Rather, all [the plaintiff] need demonstrate is that 'the acts about which [he] complains are part of the same actionable hostile work environment practice.'" Id. (quoting Morgan, 536 U.S. at 120); see also Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 140 (4th Cir. 2007) (noting that Morgan overturned Fourth Circuit precedent requiring incident occurring within filing period to itself constitute a Title VII violation before looking outside the filing period). Although in Vickers' case, the district court was correct that the three incidents within the period were "insufficient to support a hostile work environment claim," Vickers, 2005 WL 3207775, at *35, the Supreme Court has only required that they contribute to the claim, not that they constitute the claim, see Morgan, 536 U.S. at 117. Consistent with our precedent, we therefore remand this issue to the district court to consider in the first instance whether the allegations concerning Mitchell and Bedwell could constitute a hostile work environment that would survive the FDIC's motion for summary judgment. See Singletary, 351 F.3d at 528-29 (remanding case to district court for a "determination of both the timeliness and the merits" of plaintiff's claims after determining that district court failed to apply the appropriate limitations analysis under Morgan). Alan R. Kabat Bernabei & Wachtel, PLLC
