United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga United States district Judge
employment discrimination case is before the Court on
Defendant's Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56 [Doc. No. 32] (the
“Motion”). In her three count Amended Complaint
[Doc. No. 8] (“AC”), Plaintiff Magaly Hernandez
(“Hernandez”) alleges that her employer, Fairfax
County (the “County”), engaged in sexual
harassment and retaliation when she complained of that
harassment, all in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§
2000e-e-17 (1964). The Court held a hearing on
Defendant's Motion on December 9, 2016, following which
it took the matter under advisement. For the reasons stated
below, the Motion is GRANTED, and this action will be
otherwise indicated, the following facts are either
undisputed or, where disputed, stated in the light most
favorable to the Plaintiff.
Hernandez has been employed as a firefighter with the Fairfax
County Fire and Rescue Department (the “FRD”)
since December 11, 2006. Defendant's Memorandum in
Support of its Motion for Summary Judgment [Doc. No. 33]
(“Def.'s Mem. Supp.”) ¶ 1. On October 1,
2013, Hernandez voluntarily transferred to the C-Shift at
Fire Station 42 (“FS 42-C-shift”), at which Jon
Bruley (“Bruley”) was the Station Captain at that
time. Id. ¶ 2. FS 42-C is within FRD's
second battalion and, at all relevant times, Cheri Zosh
(“Zosh”) was the Battalion Chief for C-shift of
the second battalion.
Hernandez first felt harassed in October 2013, within hours
of her first working together with Bruley, when Bruley
blocked her path in the hallway. Plaintiff's Memorandum
in Opposition to Defendant's Motion for Summary Judgment
[Doc. No. 53] (“Pl.'s Mem. Opp'n”) 3;
id., Ex. 1 (“Hernandez Declaration” or
“Hernandez Decl.”) ¶1.
November or December 2013, Bruley walked up behind Hernandez
and placed his chin on her shoulder while she was engaged in
a conversation with colleagues. Def.'s Mem. Supp. ¶
3. Hernandez said, “Captain, I don't like people
that close to me. It makes me feel uncomfortable. I don't
like it.” Id. Bruley acted like he was leaving
but then propped his hand up against the door of the room and
positioned his body “right up against” Hernandez.
Hernandez ducked under his arm and stepped out of the room.
early 2014, Bruley asked Hernandez for a hug, and when she
did not comply, Bruley placed his arm on her. Pl.'s Mem.
Opp'n 3. Around that same time, in early 2014, Bruley
placed his chin on Hernandez's shoulder again, this time
in the kitchen of the fire station. Def.'s Mem. Supp.
¶ 4. Hernandez again told Bruley she didn't like it
when people get that close to her and walked out of the room.
three separate occasions prior to April 2014, Bruley invited
the entire FS 42-C-shift over to his house for a pool party.
Id. ¶ 9. On one of those occasions, Hernandez
indicated an interest in coming but said she would just watch
because she does not wear bathing suits and does not enjoy
swimming. On two of those occasions, Bruley responded that he
wanted to see her in a bathing suit. Pl.'s Mem. Opp'n
4. He repeated his desire to see her in a bathing suit, even
after she said his remarks made her feel uncomfortable.
6. On a
separate occasion prior to April 2014, a number of
firefighters were discussing emergency scenarios in the
kitchen of the fire station. Bruley told Hernandez that if
they had to respond to a fire, the two of them would have to
work together as a team. Hernandez said she was fine with
that arrangement. Bruley responded, “But you are not
going to be able to handle that big hose now, are
you?” Id. Hernandez interpreted
Bruley's comment to have a sexual innuendo and told
Bruley that the remark was inappropriate, but Bruley did not
April 29, 2014, an incident occurred between Bruley and
Hernandez while she was standing over a colleague at a
computer viewing vacation photos with her colleagues.
Def.'s Mem. Supp. ¶ 5. Hernadez recalls that while
looking at the pictures, she felt a “nudge on [her]
heel. [She] turned around to find Capt. Bruley had again
snuck up behind [her]. [She] asked him to back up and told
him again that [she doesn't] like [her] personal space
invaded like that.” Hernandez Decl. ¶ 8. Hernandez
also recalls that during that incident, Bruley put his chin
on her shoulder, and Hernandez said “what the hell,
” and walked away. Pl.'s Mem. Opp'n 4.
in April 2014, Bruley got into a basketball-like defensive
stance to block Hernandez's movement down a hallway of
the fire station. Def.'s Mem. Supp. ¶ 4 n.4. Bruley
eventually walked by Hernandez without touching her.
response to the April 29 incident in paragraph seven above,
Hernandez asked Zosh to speak with Bruley but requested that
Zosh handle the issue at the station level because she feared
retaliation. Id. ¶ 7. Zosh addressed the issue
with Bruley the same day.
next day, Zosh raised the issue again in a meeting with
Hernandez, Bruley, and Captain Cunningham. Zosh directed
Bruley not to invade Hernandez's personal space or touch
her, to stay two arms lengths away at all times, and not to
say inappropriate things to her. She also directed that
physical contact should not be made without prior consent.
Id. Hernandez considered Zosh's actions
“appropriate.” Id. ¶ 8; see
also Hernandez Deposition Transcript (“Hernandez
Dep. Tr.”) 155:3-5. Zosh also recommended a fitness for
duty examination for Bruley based on what she believed might
be psychological issues. Pl.'s Mem. Opp'n 10. Dr.
Donald Steward, the Director of the Occupational Health
Center, concurred with Zosh's judgment and further
recommended to the FRD leadership that Bruley be temporarily
relieved from duty pending the results of that exam.
Id. The Equal Employment Opportunity
(“EEO”) officer investigating Hernandez's
complaint canceled any such examination, however, because of
the pending complaint against Bruley. Id. Bruley
eventually underwent this examination on a later date, though
the results of that examination do not appear in the record.
Following the April meetings with Bruley concerning
Hernandez, Bruley's conduct took on a different aspect.
Although he no longer physically touched her or made sexual
remarks, Bruley began to “ostracize” Hernandez
around the station, though he continued to discuss
business-related issues with her. Hernandez Decl. ¶
In reaction to Bruley, Hernandez did not read, but rather
deleted without reading, at least some email correspondences
from Bruley. Id.; see also Hernandez Dep.
Tr. 156:4-20 (Hernandez acknowledges she “may have
deleted” email from Bruley “[b]efore reading
late June or early July 2014, Bruley made an unsubstantiated
complaint to Deputy Chief Richard Roatch
(“Roatch”) about an inappropriate and possibly
sexual relationship between Zosh and Hernandez. Def.'s
Mem. Supp. ¶18.
July 15, 2014, Zosh met with Bruley and directed him to make
immediate changes at ¶ 42-C-shift, including the
implementation of a daily physical training regimen.
Def.'s Mem. Supp. ¶ 13. Bruley did this on July 17,
2014 and designated 9 a.m. for daily physical training
(“PT”). On July 19, 2014, Bruley directed
Hernandez to PT with the rest of the shift, but Hernandez
claimed that she was not required to attend because she had
already done PT earlier that morning. Hernandez admits that
she failed to comply with Bruley's direct order.
Hernandez Dep. Tr. 194:15-195:18.
some point after the July 15, 2014 meeting with Zosh, Bruley
began documenting Hernandez's activities around the
station, including to whom she was talking, to whom she gave
hugs, and what she did on certain occasions. Id.
¶ 15. Hernandez has never seen the notes, although
Bruley “freely showed [his notes] to Chief Zosh.”
Hernandez Dep. Tr. 406:13-21, 407:11-12. She only knew Bruley
was engaged in this tracking of her activities from her
discussions with Zosh and never personally observed any
documentation activities. Def.'s Mem. Supp. ¶ 15.
Zosh also told Hernandez that Bruley told Zosh that he wanted
to know when Hernandez used the bathroom, although he never
so informed Hernandez. Hernandez Dep. Tr.
July 17, 2014, Bruley complained to Zosh that there were
issues pertaining to Hernandez that were not adequately being
addressed and that these issues had begun to affect the
day-to-day activities of the station. Def.'s Mem. Supp.
July 24, 2014, Hernandez and Bruley had a dispute over the
meaning of a Standard Operating Procedure (“SOP”)
regarding the use of personal electronic devices. Bruley
claimed the SOP prohibited the use of cellphones during
lineup, whereas Hernandez claimed Bruley misunderstood the
SOP and that she merely corrected his misunderstanding.
Id. ¶ 21; Pl.'s Mem. Opp'n 5.
Following the July 24, 2014 incident, Bruley filed a hostile
work environment complaint, claiming that Hernandez
inappropriately directed her superiors to complete tasks, was
regularly late for lineups and drills, inappropriately used
her cell phone during lineup, and was insubordinate on
multiple specific occasions. Def.'s Mem. Supp. ¶ 22.
Bruley wrote, “Hernandez is challenging everything I
say and has become a liability. . . . She has no respect for
her officers as she is willing to openly argue and contradict
lawful orders in front of other employees. . . . [She] has
been a disruptive force . . . I don't feel, based on the
relationship between Zosh and FF Hernandez, that this can be
resolved within the battalion.” Id.; see also
id., Ex. 12.
July 28, 2014, in immediate response to Bruley's
complaint, Hernandez was transferred from FS 42-C to Fire
Station 2 (“FS 2”) for a temporary assignment.
Id., Ex. 2 ¶ 10-11. She was then sent to Fire
Station 1(“FS 1”) for seven work days and then in
late September 2014, back to FS 2 for twenty work days,
through October 17, 2014. Def.'s Mem. Supp. ¶ 22.
After her July 24, 2014 transfer, Hernandez never again
worked under Bruley's supervision. Id. ¶
56. Nevertheless, Bruley, without Hernandez's
contemporaneous knowledge, continued to monitor her from his
separate location. See Pl.'s Mem. Opp'n 5.
Hernandez later found out about this monitoring from a
colleague. In total, Bruley compiled three binders of notes
and also apparently used electronic resources to make further
Sometime in July 2014, Bruley had audio and visual recording
equipment installed at the fire station. Id. The
equipment was installed with the County's prior consent
and was only placed in public areas around the station. The
record is unclear as to when Hernandez became aware of this
August 2, 2014, Deputy Chief Roatch met with Hernandez at
¶ 1 to discuss the July 24 incident, at which time
Hernandez said she wanted to return to FS 42-C-shift if that
could be accomplished without Bruley's also being there.
Def.'s Mem. Supp. ¶ 25.
August 18, 2014, Hernandez filed a sexual harassment and
retaliation complaint with the Fairfax County Office of Human
Rights and Equity Programs (“OHREP”). Def.'s
Mem. Supp. ¶ 26. Justin Wharton (“Wharton”),
the Equity Programs Manager for OHREP, investigated
Hernandez's complaint and, in a twenty-one-page
memorandum report dated October 1, 2014, determined that her
allegations were unsubstantiated. Id. ¶ 28.
However, Hernandez claims that Wharton's investigation
suffered from serious flaws including failures to interview
Hernandez and to inspect Bruley's tracking notes.
Pl.'s Mem. Opp'n 10.
August 29, 2014, Assistant Chief John Caussin
(“Assistant Chief Caussin”) met with Bruley to
discuss the various issues at ¶ 42. Assistant Chief
Caussin told Bruley not to discuss the Hernandez situation
and that he should, instead, focus on his own personal duties
as a shift leader. Def.'s Mem. Supp. ¶ 31.
late October 2014, Bruley was transferred from FS 42-C-shift
(Hernandez's previous shift) to FS 23-B-shift, and at
about the same time, Hernandez was returned to FS 42-C-shift.
Id. ¶¶ 32, 35. Bruley formally contested
this transfer in a grievance.
November 15, 2014, Bruley was issued a broad directive to
“cease all investigation of matters related to your
prior assignment [at FS 42-C-shift] that negatively impact or
distract your focus on your assignment and duties at [FS
2].” Id. ¶ 37; see also id., Ex.
February 11, 2015, an incident occurred between Hernandez and
Firefighter Merneptah Funn (“Funn”) during a FS
42-C-shift basketball game. See Id. ¶¶
38-50. The two had a dispute on the basketball court which
ended with a verbal confrontation between Hernandez and
Funn. Zosh stepped between the two firefighters,
and Funn walked away. Id. Funn later asked Zosh to
address Hernandez about the incident, and in response, Zosh
asked Lieutenant Mark Davidson (“Davidson”) to
investigate the incident. Id. ¶ 39. Hernandez
spoke with Davidson and took full responsibility for her
actions and offered a full apology to Funn, who interpreted
her apology as being disingenuous. Id. ¶¶
40-41. Funn therefore discussed the incident with Captain
Charles Cunningham (“Captain Cunningham”), who
suggested that Funn report the entire incident to Guy Morgan
(“Morgan”) in the FRD's Professional
Standards Office. Id. ¶ 42.
February 12, 2015, Funn reported the incident to Morgan.
Id. ¶ 43. Morgan proceeded to investigate the
incident and to interview Hernandez, Captain Steve Clark (the
shift captain at ¶ 2), Captain Francis Mensah, and Tech
Jacob Quirke. Id. ¶¶ 45-46. He did not
speak with Carol Laymon, however, who Plaintiff claims was an
eyewitness to the alleged workplace violence. Pl.'s Mem.
Opp'n 14. As part of Morgan's investigation into
Hernandez, he discovered other information about past
misconduct with which Hernandez had been involved including:
A. On March 27, 2013, Hernandez was involved in an
altercation with Tech. Quirke, according to Captain Mensah
and Tech. Quirke. Def.'s Mem. Supp. ¶ 46. At the
time of this incident, Captain Mensah “advised
[Hernandez and Quirke] of the possibility of progressive
discipline should this continue to be a workplace
B. In 2014, Hernandez was arrested and charged with domestic
violence and attended a six-month court-ordered anger
management program. Id. ¶ 47.
C. In September 2014, Hernandez was involved in an
altercation with firefighters at ¶ 2, according to