United States District Court, D. Massachusetts
MEMORANDUM AND ORDER (revised and unsealed June 29, 2015)
DENISE J. CASPER, District Judge.
Plaintiff Kathleen Burns ("Burns") originally filed this lawsuit against Defendant Jeh Johnson in his official capacity as the Secretary of the United States Department of Homeland Security, Transportation Security Administration (the "Secretary") and Supervisory Air Marshal in Charge David Johnson ("SAC Johnson") alleging discrimination based on gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I), retaliation in violation of Title VII (Count II), intentional infliction of emotional distress (Count III), negligent infliction of emotional distress (Count IV), sexual harassment in violation of Title VII (Count V), the creation of a hostile work environment in violation of Title VII (Count VI) and violation of the Massachusetts Declaration of Rights (Count VII). D. 1. Following the Court's dismissal of all but Counts I and VI, as well as the claims against SAC Johnson in both his individual and official capacities, D. 35, the Secretary has moved for summary judgment on the remaining claims. D. 49. For the reasons stated below, the Court ALLOWS the motion.
II. Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material fact, and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (citation omitted). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citation omitted).
III. Factual Background
From 2002 until June 2012, Burns worked in the Boston Operations Unit of the Federal Air Marshal Service ("FAMS"), a division of the Transportation Security Administration. D. 61 ¶¶ 1, 21, 45. In 2012, Burns was one of few female employees at the Boston office. Id . ¶¶ 5, 11. In addition, she was one of five employees who were not law enforcement officers. Id . ¶ 6. In May 2012, Burns was in charge of assigning Federal Air Marshals ("FAMs") to international flights. id. ¶¶ 17, 23. Burns spent about 75% of her time at work coordinating international flights with FAMs' schedules and the remaining 25% fulfilling the rest of her job duties. id. ¶ 28. Burns worked an alternative, 32 hour-per-week schedule so she could care for her five children. id. ¶ 26; D. 69 ¶¶ 90-91. Burns worked from 12:30 p.m. to 9:00 p.m. on Thursday through Sunday each week. D. 69 ¶ 91.
In April 2012, SAC Johnson visited the Boston office in advance of assuming his leadership position. D. 61 ¶¶ 29-30. During his visit, SAC Johnson met Burns and inquired, "who are you and what do you do for me?" D. 61 ¶ 60.
A few weeks after assuming the SAC position, SAC Johnson decided to change the way FAMs were assigned to international flights by reassigning Burns's scheduling responsibility to nine Supervisory FAMs, all of whom were male. id. ¶¶ 31, 126. Accordingly, Burns would no longer be responsible for assigning FAMs to international flights. On May 31, 2012, SFAM James Ouelette, one of Burns's supervisors, informed her that her international scheduling duties would be reassigned. D. 61 ¶ 37.
SAC Johnson regularly carried a baseball bat with him at the office. id. ¶ 55. Every time Burns saw SAC Johnson, he was carrying this baseball bat. D. 69 ¶ 56. A few weeks after SAC Johnson joined the office, on May 24, 2012, he approached Burns in the Operations office and commented, "so you do still work here." id. ¶ 58. Later that same day, SAC Johnson again approached Burns and asked her about her background and work schedule. id. Johnson "said he had done his homework on [Burns]... and that everyone had spoken very highly about her [but] he was concerned because someone in international planning had told him that [Burns] was sometimes hard to reach." id. Burns denied being hard to reach, noting that she even used her personal time to complete assignments. id. In early June 2012, SAC Johnson again spoke to Burns in the Operations office. D. 61 ¶ 58. He held the bat in a swinging position, tapped it against his left hand and told Burns about his plan to install new carpeting in the Operations office. id. Johnson abruptly left the room when Burns voiced concerns about Johnson's idea. id.
Although the parties dispute when this encounter occurred, at some point in June, Burns had a conversation concerning early retirement with an Administrative Officer. D. 69 ¶¶ 150-53; D. 84 ¶¶ 150-53. The parties also dispute whether SAC Johnson approached Burns while she was in the hallway or whether SAC Johnson walked past the office in which she was meeting with the Administrative Officer. D. 69 ¶ 150; D. 84 ¶ 153. It is undisputed, however, that SAC Johnson walked up and down the hallway past the Administrative Officer's office carrying a bat. D. 84 ¶ 153.
On June 14, 2012, Burns informed SFAM Darin Devine that she had decided to retire and that June 22 would be her last day in the office, with her official retirement effective August 1. D. 61 ¶¶ 50-51. On July 10, 2012, Burns initiated a complaint with the Equal Employment Opportunity Commission, alleging that she "was forced to retire because she felt unsafe and could not continue working in a hostile work environment with an individual who habitually brandished a baseball bat as a way to intimidate and threaten" her. D. 69 ¶¶ 73-74. Additionally, Burns filed a parallel complaint with the TSA Office of the Inspector General, id. ¶ 76, which demoted and transferred SAC Johnson upon concluding that it was inappropriate for him to carry a baseball bat, id. ¶¶ 77, 168-70.
IV. Procedural History
Burns instituted this action on August 29, 2013. D. 1. The Secretary and SAC Johnson moved to dismiss all claims except Count I, the gender discrimination claim, on February 4, 2014. D. 18. The Court allowed the motion in part, dismissing all of Burns's claims against SAC Johnson in his individual and official capacities, but denying the motion as to Count I (gender discrimination) and Count VI (sexual harassment based on hostile work environment) as to the Secretary. D. 34. The parties proceeded with discovery. The Secretary ...