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Sanford v. Carter

United States District Court, S.D. Ohio, Eastern Division

January 10, 2018

ASHTON B. CARTER, Defendant.

          Kimberly A. Jolson Magistrate Judge.



         This matter is before the Court on Defendant's Motion for Summary Judgment (ECF No. 39), Plaintiffs Memorandum in Opposition (ECF No. 41), and Defendant's Reply in Support. (ECF No. 42.) For the reasons that follow, Defendant's Motion is GRANTED.

         I. BACKGROUND

         A. Procedural background

         Plaintiff, Dorian Sanford ("Ms. Sanford"), began employment with the Secretary of Defense Finance and Accounting Service ("DFAS") in May 2010 as an accounting technician. (Sanford Aff., ECF No. 41-1.) DFAS is a component of the U.S. Department of Defense. On May 27, 2014 Ms. Sanford filed an Equal Employment Opportunity ("EEO") complaint alleging sexual harassment by her supervisor Eric Gersper, which she supplemented on October 27, 2014, to allege race discrimination[1] and retaliation claims, all in violation of Title VII, On March 24, 2015, Plaintiff filed the instant action. On April 24, 2015, the Magistrate Judge screened Plaintiffs Complaint pursuant 28 U.S.C. § 1915(a), recommending her Complaint proceed against Ashton B. Carter, Secretary of Defense and dismissed all other defendants under Title VII, 42 U.S.C. § 2000e-16 as improper. (ECF No. 3.) On June 16, 2015, the Court adopted the Report and Recommendation. (ECF No. 8.) The Defendant now moves for summary judgment on all claims. (ECF No. 39.)

         B. Factual Background

         1. Alleged Harassment

         In July of 2013, Ms. Sanford was moved to a new team under the supervision of Eric Gersper ("Mr. Gersper"). (Sanford Decl. at 2. ECF No. 39-2.) Mr. Gersper in turn reported to Pam Vogel ("Ms. Vogel") the division Chief, who reported to Chris Mattingly ("Mr. Mattingly"), the Director of Accounts Receivable. (Vogel Dep. at 11:1-16, ECF No. 38-5.)

         Ms. Sanford describes her work-space as a small cubicle-type desk. (Pl.'s Mot. in Opp. at 2, ECF No. 41.) She contends that her space was too small to fit two employees. Thus, there was not enough space for her and Mr. Gersper when Mr. Gersper entered her workspace. Ms. Sanford asserts that over the course of several months between 2013 and 2014, Mr. Gersper entered her cubicle, kneeled next to her desk and reached over her to show her work on her computer screen. (Id.) By positioning himself into the small space, Ms. Sanford contends,

his body was directly up against mine. He would squeeze down into the area so that his body was directly up against mine. He would put his thigh against my thigh and my hip, and then his left arm would brush up against the right side of my breast. He did this often, multiple times a week. I think it was twice a week on average. Once he almost touched my right nipple, it was close.

(Sanford Decl. at 2, ECF No. 39-2.) Ms. Sanford never alleges Mr. Gersper's alleged physical contact was accompanied with inappropriate words. Instead she states "[h]e never propositioned me sexually or threatened to harm me if I did not do something sexual. He was just creepy and intimidating with his physical contact." (Id. at 18.) Ms. Sanford never complained of Mr. Gersper's actions or reported his conduct until she filed a Congressional complaint.

         2. Complaints

         In December 2013, Ms. Sanford filed a Congressional complaint against Mr. Gersper, which DFAS received in approximately February 2014. (Id. at 5-7.) During the investigation, Ms, Sanford's coworker, Stephany Small, wrote an email to the investigator stating, "I've seen her supervisor, Eric Gersper, sitting in a tight space next to her instead of sitting on the side where there is more room. He's too big to squeeze himself in that right space between her and the file cabinet." (Pl.'s Exhibit 3, ECF No. 41-3.)

         Thereafter, on February 13, 2014, Ms. Sanford contacted an Equal Employment Opportunity ("EEO") counselor. Ms. Vogel first learned about Ms. Sanford's allegations after Ms. Sanford contacted the EEO Office in February of 2014. (Vogel Dep. 16:5-23; 17:6-25; 18:1-25; 19: 1-25; 20:1-25; 21:1-2.) Mr. Gersper was similarly unaware Ms. Sanford had any issues with him until February 2014. In response to the allegations, Mr. Mattingly brought in an "outside internal investigator, " Charlene Anderson to investigate the complaint and issued a "no-contact order" to Mr. Gersper, prohibiting contact between Mr. Gersper and Ms. Sanford during investigation of the complaint. (Vogel Dep. 28:18-29; 19:1-13.) After counseling was deemed unsuccessful, Ms. Sanford filed a formal Complaint of Discrimination on May 27, 2014 ("EEO Complaint"). (EEO Report, ECF No. 39-1.)

         On February 20, 2014, Ms. Vogel met with Ms. Sanford to inform her of the investigation into her complaint. Ms. Vogel testified that Ms. Sanford refused to speak with her. Ms. Vogel testified that after explaining to Ms. Sanford that Ms. Anderson would be investigating the complaint and asking if Ms. Sanford "if there was anything that she would like to discuss before we left the room, " Ms. Sanford refused to respond. (Vogel Dep. 28:18-25; 29:1-19.) Instead, "[s]he had a piece of paper written on it and pushed it over to me. I don't recall if she said anything other than pushing me the piece of paper that said, 'I don't trust you as a manager. I am not going to have a conversation with you.'" (Id.)

         Ms. Sanford also refused to cooperate with Ms. Anderson's investigation of her complaint. Prior to the arranged meeting with Ms. Anderson, Ms. Sanford noticed Ms. Anderson and Ms. Vogel were Facebook friends. Therefore, instead of cooperating with the investigation of her complaint, she told Ms. Anderson that she "was sexually harassed by Eric Gersper, my supervisor but did not feel comfortable about sharing the details with her because of her friendship outside of DFAS with Pam Vogel." (Def.'s Exhibit 4 at 000745, ECF No. 39-9.) Indeed, Ms. Sanders initially spurned Ms. Anderson's attempts to meet with her, ultimately attending the meeting because she was told to do so by Mr. Brockwell. (Sanford Decl. at 4 ("He [Mr. Brockwell] made me meet with the harassment investigator (Charlene Anderson), who was Facebook/Social Media friends with Pam Vogel.").) Because Ms. Sanford refused to cooperate and because none of her coworkers witnessed the alleged inappropriate touching, the investigation was deemed inconclusive. (EEO Report at 13.)

         Angela Schultz, director of the Office of Equal Opportunity Programs investigated Ms. Sanford's EEO complaint and issued a Final Agency Decision ("EEO Decision"). (Def.'s Exhibit A, ECF No. 39-1.) She interviewed eleven of Ms. Sanford's coworkers as well as Mr. Gersper, Ms. Vogel, Mr. Mattingly, and Mr. Mattingly's superior Mr. Brockwell. (Id. at 5-6.) The eleven interviewed coworkers included Ms. Small and Ms. Pope, both of whom Ms. Sanford contends witnessed Ms. Gersper's alleged inappropriate actions. (Id.) The EEO Decision reflects that the "[e]leven (11) co-workers uniformly testify that they "never experienced or witnessed inappropriate physical contacts in the workplace." (Id. at 13.) Ms. Schultz concluded that Ms. Sanford's allegation, of being subjected to unwelcome conduct "has not been established." (EEO Report at 13.) She based her decision in-part on the facts that

[m]ore than once, management attempted to investigate the allegations when it learned of them and encouraged Complainant to share details of the alleged incidents of sexual harassment she had experienced; Complainant refused to do so. Moreover, there is no corroborating testimony by any of the several employees who were interviewed or any documentary evidence that these ...

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