United States District Court, S.D. Ohio, Eastern Division
Kimberly A. Jolson Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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.
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 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.)
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.)
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
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.)
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.
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.)
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.)
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 ...