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Hernandez v. Fairfax County

United States District Court, E.D. Virginia, Alexandria Division

January 30, 2017



          Anthony J. Trenga United States district Judge

         This 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.[1] For the reasons stated below, the Motion is GRANTED, and this action will be DISMISSED.

         I. BACKGROUND

         Unless otherwise indicated, the following facts are either undisputed or, where disputed, stated in the light most favorable to the Plaintiff.

         1. 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.

         2. 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.

         3. In 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. Id.

         4. In early 2014, Bruley asked Hernandez for a hug, and when she did not comply, Bruley placed his arm on her.[2] 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. Id.

         5. On 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. Id.

         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?”[3] Id. Hernandez interpreted Bruley's comment to have a sexual innuendo and told Bruley that the remark was inappropriate, but Bruley did not apologize. Id.

         7. On 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.

         8. Also 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. Id.

         9. In 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.

         10. The 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.

         11. 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. ¶ 12.[4] 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 it.”).

         12. In 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.

         13. On 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.

         14. At 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. 407:13-408:9.[5]

         15. On 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. ¶ 19.

         16. On 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.

         17. 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.”[6] Id.; see also id., Ex. 12.

         18. On 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.

         19. 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 records. Id.

         20. 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 equipment.

         21. On 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.

         22. On 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.

         23. On 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.

         24. In 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.[7]

         25. On 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. 23.

         26. On 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.[8] 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.

         27. On 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 issue.” Id.
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 ΒΆ 2, according to ...

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