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Osburn v. Hagel

United States District Court, M.D. Alabama, Northern Division

September 15, 2014

CHUCK HAGEL, Secretary, Department of Defense, (Defense Information Systems Agency), Defendant

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For Sharon Osburn, Plaintiff: Daniel P. Evans, LEAD ATTORNEY, Wiggins, Childs, Quinn, & Pantazis, Birmingham, AL; Henry Wallace Blizzard, III, Wiggins Childs Quinn & Pantanzis, PC, Birmingham, AL.

For Chuck Hagel, Secretary, Department of Defense (Defense Informtaion Systems Agency), Defendant: Dorothy Graham Campbell, Lia Neill Wentworth, LEAD ATTORNEYS, Defense Information Systems Agency, Ft. Meade, MD; Robert Randolph Neeley, LEAD ATTORNEY, U.S. Attorney's Office, Montgomery, AL.

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Plaintiff Sharon Osburn brought this lawsuit against defendant Secretary of the Department of Defense claiming sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 1981a & 2000e through 2000e-17. Subject-matter jurisdiction is proper under 42 U.S.C. § 2000e-5(f)(3). The cause is before the court on the Defense Secretary's motion for summary judgment. The motion will be denied in part.


" A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


Osburn alleges that, while she worked at the Defense Information Systems Agency (" DISA" ), her first-line supervisor, Tim Tarver, subjected her to an array of sexual harassment, including raping her on five occasions. The facts that follow are drawn from the evidence taken in the light most favorable to Osburn.

Osburn began at DISA as a contract employee in 2005. She was formally hired by the agency as an Information Technology Specialist in February 2007.

Tarver's harassment of Osburn started several months after her employment by DISA. He would make sexual comments to her. He frequently visited her desk and called her into his office. Coworkers observed this behavior and expressed concern to Osburn. By late 2007, Tarver dialed-up the harassment. He began touching Osburn, patting her buttocks and touching her breasts. He told her he would help her with her career and immediately followed-up with sexual comments to her. He also told her that if she said anything he would ruin her career.

On one occasion, when Osburn stayed late, Tarver stayed at work and cornered her in the office. She was able to convince him to let her leave. Another night, he

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again stayed late, apparently hoping to corner her, but, at her request, a co-worker stayed late as well. Tarver would drive by Osburn's house when she was home alone, and one night he came to her door uninvited. He also continued to touch her and make sexual comments at work.

At the end of January 2008, Tarver raped Osburn. He called her into his office, locked the door, forcibly performed oral sex on her, and then had intercourse with her. He apologized and promised not to do it again. However, he raped her in his office three more times in the months that followed. In July 2009, he raped her for the fifth and final time while they were on a work trip.

In October 2009, Osburn approached her second-line supervisor, Bib Richert, and told him Tarver was sexually harassing her. She did not tell him about the rapes because she felt too embarrassed. Because Richart was planning to retire soon, he told her to contact Allison Stafford, an Equal Employment Opportunity (" EEO" ) specialist. Osburn tried to contact Stafford several times but could not reach her and did not leave a message.

In November 2009, Osburn complained to Dan Raney, who was assuming Richart's position. She told him that Tarver had made sexual advances and mistreated her. Raney advised Osburn to go to human resources. A short time later, Osburn again complained to Raney about Tarver. Raney did not take any other steps.

Tarver continued to grope Osburn and make sexual comments to her. He also continued to try to arrange for work trips with her, but Raney would cancel those trips. Tarver criticized Osburn in front of co-workers, tried to move her out of her supervisory position, and required her to write a useless report. On April 16, 2010, after Osburn had complained to Raney, Tarver yelled at Osburn in front of her co-workers and ordered her to stay out of Raney's office.

Osburn decided to report everything. She contacted EEO Specialist Stafford and told her that Tarver had raped her. Stafford told her not to come into work, but set up a time to meet her off site. Tarver called her numerous times in the days that followed, asking her not to proceed with her complaint.[1]

Osburn was placed on administrative leave until May 7, 2010. At that time, she was reassigned to a non-supervisory position. She was given two options: work from home three days a week and work the other two in the same building as Tarver; or work five days a week in an isolated location. She asked for Tarver to be moved instead or for DISA to allow her to transfer to Huntsville, Alabama, but the agency refused. She moved to the fourth floor of the building where her previous office was located. She was not allowed access to areas that her co-workers could access.

Osburn was evaluated and diagnosed with posttraumatic stress disorder. Her doctor determined that she would be unable to return to work because of her symptoms. She submitted an application to the Department of Labor for worker's compensation benefits. DISA opposed the application, and the Department of Labor denied benefits.

Osburn did not return to work at DISA. On August 15, 2011, citing her extended and indefinite absence, DISA terminated

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Osburn. Osburn brought this lawsuit against the Secretary of Defense.


Title VII bars an employer from discriminating against an employee " because of ... sex." 42 U.S.C.2000e-2 (a)(1). This provision " prohibits sex-based discrimination that alters the terms and conditions of employment." Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1300 (11th Cir. 2007). Title VII also prohibits retaliation against an employee because she opposed " an unlawful employment practice." 42 U.S.C. § 2000e-3(a). Osburn alleges both sexual harassment and retaliation, and the Defense Secretary seeks summary judgment in his favor on each claim.

A. Sex Discrimination

An employee can establish a sex-based violation against an employer in either of two ways: (1) " through tangible employment action" or (2) " through creation of a hostile work environment caused by sexual harassment that is sufficiently severe or pervasive to alter the terms and conditions of the work." Nurse " BE" v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302, 1308 (11th Cir. 2007).

Osburn has sought to establish a violation through both theories, tangible-employment action and hostile-work environment.

1. Tangible-Employment Action

A tangible-employment action is " 'a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Vance v. Ball State Univ., 133 S.Ct. 2434, 2442, 186 L.Ed.2d 565 (2013) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). As a general rule, " [t]angible employment actions fall within the special province of the supervisor," and, as such, there is rarely a question of vicarious liability for the company. Ellerth, 524 U.S. at 762. A company has no affirmative defense where there has been a tangible-employment action. Id. at 765.

To establish the Defense Secretary's liability under a tangible-employment-action theory, Osburn must first prove that there was a tangible-employment action. Minix v. Jeld-Wen, Inc., 2006 WL 2971654, at *3 (M.D. Ala. 2006)(Thompson, J.) aff'd, 237 F.App'x 578 (11th Cir. 2007). The Secretary argues that Osburn has failed ...

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