UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CEMONE ANTENETTE BYNUM
Plaintiff,
v. Civil Action No. 16-1904 (EGS) DISTRICT OF COLUMBIA
Defendant.
MEMORANDUM OPINION
Plaintiff Cemone Antenette Bynum (“Ms. Bynum”), an AfricanAmerican woman and employee of the District of Columbia’s
Department of Behavioral Health (“DBH”), brings this lawsuit
against the District of Columbia (the “District”) under Title
VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et
seq., and the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101, et seq., alleging the following claims:
Denial of Reasonable Accommodations in violation of the ADA
(Count I); Retaliation in violation of Title VII (Counts II and
III); and Hostile Work Environment in violation of Title VII
(Count IV).
Pending before the Court are the parties’ Cross-motions for
Summary Judgment. See Def.’ Mot. for Summ. J., ECF No. 43; Pl.’s
Mot. for Summ. J., ECF No. 50. Magistrate Judge Merriweather
issued a Report and Recommendation recommending that this Court
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grant the District’s Motion for Summary Judgment as to Counts I,
II, and III, and deny the District’s Motion for Summary Judgment
as to Count IV. See R. & R., ECF No. 55 at 38. 1 The R. & R. also
recommends that this Court deny Ms. Bynum’s Motion for Summary
Judgment on each of her claims. Id.
Each party raises objections to the recommendations. Ms.
Bynum asks this Court to decline to adopt the recommendation
that the Court grant summary judgment to the District on Counts
I, II, and III and instead grant it to her. Pl.’s Objs. to R. &
R., ECF No. 57 at 1. She also asks this Court to grant summary
judgment to her on Count IV. Id. at 12-14. The District asks
this Court to decline to adopt the recommendation that it deny
the District’s Motion for Summary Judgment as to Count IV. See
Def.’s Partial Objs. to R. &. R., ECF No. 56 at 1.
Upon careful consideration of the R. & R., the District and
Ms. Bynum’s objections, the District’s and Ms. Bynum’s
responses, the record, the relevant law, and for the reasons
explained below, the Court ADOPTS the R. & R. as to the
recommendations for Counts I, II, and III, and ADOPTS IN PART
and REJECTS IN PART the recommendation as to Count IV.
Accordingly, the Court GRANTS the District’s Motion for Summary
1 Except for cites to deposition transcripts, where the cite is to the original page number, when citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.
2
Judgment, ECF No. 43; and DENIES Ms. Bynum’s Motion for Summary
Judgment, ECF No. 50.
I. Background
A. Factual Background
The undisputed facts in the R. & R are set forth below. See
R. & R., ECF No. 55 at 2-5. 2 Neither party has objected to the R.
& R.’s articulation of the undisputed facts. See generally Dkt.
for Civil Action No. 16-1904.
Ms. Bynum is an African American woman who is employed by
DBH. See Pl. SMF Resp., ECF No. 45-1 ¶ 1. She suffers from Major
Depression Disorder, Anxiety Disorder, and Post-Traumatic Stress
Disorder. Id. ¶ 4. Around March 28 or 29, 2016 Ms. Bynum filed a
request for reasonable accommodations under the ADA to address
her mental health disorders. 3 See Pl. SMF Resp., ECF No. 45-1 ¶
19; Pl. Opp’n Ex. 14, Mar. 28, 2016 Employee Request for
Reasonable Accommodation (“March 2016 Accommodation Request”)
ECF No. 45-14 (signed by Plaintiff on March 29 and ADA
2 For reasons of judicial economy, the facts are provided verbatim from the R. &. R., except that the ECF document number has been inserted for each cite to the record.
3 The document itself was signed by Ms. Bynum’s supervisor on
March 28, 2016, was signed by Ms. Bynum on March 29, 2016, and the “Date of Employee’s Request” item reads March 28, 2016. See March 2016 Accommodation Request. Regardless, the parties seem to agree that this request was submitted before the Incident and was entirely unrelated to Mr. Billett. See March 2016 Accommodation Request; Pl. Opp’n at 4 (the request was made “[o]n or about March 28, 2016), 29 (the request was made “on or about March 29, 2016”).
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Coordinator March 28). She requested two accommodations: the
first was to address the noise level at her cubicle due to
proximity to a conference room; she also asked for a mirror so
that she could see people approaching her cubicle from behind.
See March 2016 Accommodation Request.
On March 29, 2016, Ms. Bynum attended a meeting at DBH with
several co-workers, including Colin Billett (“Mr. Billett”) and
Mr. Billett’s supervisor Dr. Denise Wright (“Dr. Wright”). See
Pl. SMF Resp., ECF No. 45-1 ¶¶ 5, 11. The District states that
Mr. Billett identifies as “Black” and Ms. Bynum describes him as
“from another country; France or something,” and “medium
complexion.” Def. SMF Resp., ECF No. 51-1 ¶ 58; Pl. Opp’n Ex. 4,
Deposition of Cemone Bynum (“Bynum Dep.”) at 119:10–120:4, ECF
No. 45-4. On March 29, 2016, a dispute arose between Mr. Billett
and Ms. Bynum during a team meeting, and Mr. Billett stood up
and verbally assaulted Ms. Bynum (the “Incident”). See Pl. SMF
Resp., ECF No. 45-1 ¶ 6, 8; Def. SMF Reply, ECF No. 47-1 ¶ 51
(no dispute to Plaintiff’s characterization).
During the meeting, Ms. Bynum made statements that could be
perceived as criticizing Mr. Billett’s interactions with
vendors. See Def. SMF, ECF No. 43-1 ¶¶ 6–7; Pl. SMF Resp., ECF
No. 45-1 ¶¶ 6–7; Pl. MSJ at 4. She allegedly said “[w]e should
have further training on the vendors completing their invoices,
because they were getting conflicting information from Mr.
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Bill[ett]….” Bynum Dep. at 114:14-20. She then told Mr. Billett
that “there was a[n] invoice that he completed for the vendor
and he also signed it” and that it “was against the policy.” Id.
at 114:17–115:8. Ms. Bynum then left the room to get the
invoices for Dr. Wright to review. Id. at 115:17–19, 116:3–4.
Ms. Bynum alleges that when she returned, Mr. Billett seemed
agitated and responded saying, “What do you think, I’m
incompetent; you think I can’t do the job?” Id. at 116:1, 6–8.
Ms. Bynum contends that Mr. Billett then “jumped out of his
chair,” called her “immature” and “childish” and said she should
“go back to the South where you came from.” Id. at 116:14–20;
Def. SMF ¶ 8; Pl. SMF Resp., ECF No. 45-1 ¶ 8. Ms. Bynum asserts
that Mr. Billett shouted these remarks and that his behavior was
threatening. See Pl. SMF Resp., ECF No. 45-1¶ 8. At some point
during the Incident, Dr. Wright stood up and put her arms out in
an attempt to deescalate the conflict, but took no further
action, and someone else came into the room and removed Mr.
Billett. See Pl. SMF Resp., ECF No. 45-1 ¶ 11.
After the Incident, Ms. Bynum filed an incident report
describing the events. See Pl. SMF Resp., ECF No. 45-1 ¶ 33; Pl.
Opp’n Ex. 8, Apr. 5, 2016 Major and Unusual Incident Report
Form(“Incident Report”), ECF No. 45-8. Mr. Billett immediately
sent Ms. Bynum an apology letter. See Pl. SMF Resp., ECF No. 45-1 ¶¶ 9; Pl. Opp’n Ex. 16 at *7, ECF No. 45-16 (Mar. 29, 2016
5
Email from Colin Billett to Cemone Bynum). Ms. Bynum’s workspace
was then moved; she no longer worked with Mr. Billett, nor did
she ever speak with him again, but he would occasionally walk by
her relocated workspace. See Pl. SMF Resp., ECF No. 45-1 ¶¶ 14–
17; Bynum Dep. 136:10–12.
On May 12, 2016, DBH issued Ms. Bynum a letter concerning
her conduct related to the Incident. See Pl. SMF Resp., ECF No.
45-1 ¶¶ 18, 76; Pl. Opp’n Ex. 7, May 9, 2016 Letter from DBH to
Ms. Bynum (“Letter of Warning”), ECF No. 45-7. The letter stated
that Ms. Bynum’s conduct at the meeting failed to comply with
the professional standards of conduct required of District
employees. See Def. SMF Reply, ECF No. 47-1 ¶ 78; Letter of
Warning at 1. The letter also stated that Ms. Bynum violated
DBH’s violence prevention and response policy, and charged Ms.
Bynum with creating a hostile work environment. Id. ¶¶ 79–80;
Letter of Warning at 1. Further, the letter stated that an
investigation revealed that Ms. Bynum was at least partially at
fault for Mr. Billett’s conduct. Letter of Warning at 1. The
Letter noted that Dr. Wright would keep the letter for not more
than three years and that it would be used against Ms. Bynum if
any further incidents occurred. Id. ¶¶ 84–85; Letter of Warning
at 2. DBH gave Ms. Bynum two days to respond to the letter, and
the letter informed her that failure to adhere to it could
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result in disciplinary action. Id. ¶¶ 87–88; Letter of Warning
at 2.
The following month, Ms. Bynum filed a discrimination
complaint with OHR, in which she described the Incident. See Pl.
SMF Resp., ECF No. 45-1 ¶ 21; Def. MSJ Ex. C, June 17, 2016 OHR
Charge of Discrimination (“June 2016 OHR Complaint”), ECF No.
43-2 at *33. She then submitted another ADA request for
reasonable accommodations. See Pl. SMF Resp., ECF No. 45-1 ¶ 23;
Pl. Opp’n Ex. 12, June 30, 2016 Employee Request for Reasonable
Accommodation (“June 2016 Accommodation Request”) at 1, ECF No.
45-12. Ms. Bynum requested that the District conduct an
interactive process, including negotiations and communications
with Ms. Bynum’s supervisor, to determine what accommodations
would be appropriate. See Pl. SMF Resp., ECF No. 45-1 ¶ 24.
B. Procedural Background
Pursuant to Local Civil Rule 72.2, the case was referred to
Magistrate Judge Merriweather, up to but excluding trial, for
full case management, including the preparation of an R. & R.
with respect to any potentially dispositive motions. See Minute
Order (Aug. 8, 2017). Following the resolution of the District’s
Motion to Dismiss, ECF No. 15, and the completion of discovery,
the District filed its Motion for Summary Judgment on November
11, 2021. See Def.’s Mot. for Summ. J. (Def.’s MSJ). ECF No. 43.
Ms. Bynum filed her opposition on December 20, 2021, see ECF No.
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45; and the District filed its reply on February 4, 2022, see
ECF No. 47. Thereafter, Ms. Bynum filed her Motion for Summary
Judgment on August 5, 2022. See Pl.’s Mot. for Summ. J. (Pl.’s
MSJ), ECF No. 50. The District filed its opposition on August
26, 2022, see ECF No. 51; and Ms. Bynum filed her reply on
September 16, 2022, see ECF No. 52. Ms. Bynum and the District
each contend that the undisputed facts entitle them to summary
judgment on each of Ms. Bynum’s claims.
Magistrate Judge Merriweather issued the R. & R. on April
25, 2024. See R. & R., ECF No. 55. Each party filed objections
to the R. & R., see Def.’s Partial Objs. to R. &. R., ECF No.
56; Pl.’s Objs. to R. & R., ECF No. 57; and responses to the
objections, see Def.’s Response, ECF No. 59; Pl.’s Reply, ECF
No. 60. The parties’ respective objections to the R. & R. are
now ripe and ready for adjudication.
II. Standard of Review
A. Objections to a Magistrate Judge’s R. & R.
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. FED. R. CIV. P. 72(b)(1)-(2). A
district court “may accept, reject or modify the recommended
disposition.” FED. R. CIV. P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1) (“A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
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made by the magistrate judge.”). A district court “must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” FED. R. CIV. P. 72(b)(3).
“If, however, the party makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the [R & R] only for clear error.” Houlahan v.
Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (citation omitted).
Objections “shall specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for objection.” LCvR 72.3(b). “[O]bjections which
merely rehash an argument presented to and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).
B. Summary Judgment
Summary judgment is proper when “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). A
“material” fact is one that could “affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” if “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. The moving party bears the burden
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of “informing the district court of the basis for its motion” as
well as “identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotation marks omitted); see also FED. R. CIV. P. 56(c)(1)(A).
To defeat summary judgment, the nonmoving party must “go
beyond the pleadings” and “designate specific facts showing that
there is a genuine issue [of material fact] for trial.” Celotex
Corp., 477 U.S. at 324 (internal quotation marks omitted). In
evaluating a summary judgment motion, “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255. However,
the nonmoving party's opposition “must consist of more than mere
unsupported allegations or denials and must be supported by
affidavits or other competent evidence” in the record. Musgrove
v. District of Columbia, 775 F. Supp. 2d 158, 164 (D.D.C. 2011);
see also Celotex Corp., 477 U.S. at 324. If the evidence
favoring the nonmoving party is “merely colorable, or is not
significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249–50 (internal citations omitted).
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III. Analysis 4
A. The District Reasonably Accommodated Ms. Bynum’s
Accommodation Requests
The ADA prohibits employers from discriminating “against a
qualified individual on the basis of disability,” 42 U.S.C.
§12112(a); and requires employers to make reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability,” id. §
12112(b)(5)(A). To establish a valid failure-to-accommodate
claim, “a plaintiff must establish by a preponderance of the
evidence that ‘(1) she was a qualified individual with a
disability, (2) the [employer] had notice of her disability and
(3) the [employer] denied her request for a reasonable
accommodation.’” Waggel v. George Washington Univ., 957 F.3d
1364, 1371 (D.C. Cir. 2020) (quoting Ward v. McDonald, 762 F.3d
24, 31 (D.C. Cir. 2014)). An “‘employer need only provide
some reasonable accommodation,’ not the accommodation that the
employee requests or prefers.” Carter v. Nelson, No. 20-5111,
2021 WL 6139250, at *1 (D.C. Cir. Dec. 27, 2021) (quoting Aka v.
Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en
banc)). The District concedes that Ms. Bynum has a disability of
which it was on notice; the parties’ dispute is whether the
4 The Court does not discuss the parts of Magistrate Judge Merriweather’s R. & R. to which no objection is raised.
11
District reasonably accommodated Ms. Bynum’s requests. See R. &
R., ECF No. 55 at 8.
Magistrate Judge Merriweather found that Ms. Bynum made two
formal requests for reasonable accommodations under the ADA, one
in March 2016 and another on June 30, 2016, that the District
reasonably accommodated these requests, and therefore recommends
summary judgment be granted to the District on this claim. See
R. & R., ECF No. 55 at 8-13. Ms. Bynum objects to this
recommendation and asks that the Court instead grant summary
judgment to her on this claim. See Pl.’s Objs. to R. & R., ECF
No. 57 at 8-9.
1. Requests for Accommodation
Ms. Bynum objects to Magistrate Judge Merriweather’s
finding that she submitted only two requests for accommodation,
and contends that she also made a request for accommodation in
an April 20, 2016 email in which she requested that she be
“relocated to another unit that best fit my skills and
qualification.” Pl.’s Objs. to R. & R., ECF No. 57 at 8; Pl.
Opp’n Ex. 15 at *2, ECF No. 45-15 (April 20, 2016 Email from
Cemone Bynum to Mary Campbell). Magistrate Judge Merriweather
found that this email did not constitute a request for
accommodation because “Ms. Bynum has not presented evidence
indicating that her need was ‘so apparent’ that the District was
required to offer her accommodation at that time, nor does she
12
‘claim that she lacked the capacity to make a request for
accommodation of a disability.’” R. &. R., ECF No. 55 at 9-10
(quoting Waggel, 2018 WL 5886653, at *6, and Chenari v. George
Washington Univ., 847 F.3d 740, 748 (D.C. Cir. 2017). However,
Magistrate Judge Merriweather also found that even if the April
20, 2016 email was construed as a request for accommodation,
“the District’s ultimate response offered a reasonable and
timely accommodation to those requests.” R. & R., ECF No. 55 at
12 n.6.
The Court rejects Ms. Bynum’s argument that Magistrate
Judge Merriweather’s reliance on Chenari in making the
determination that the April 20, 2106 was not a request for
accommodation was faulty. Ms. Bynum argues that it was faulty
because in Chenari, the plaintiff conceded that he had not
requested an accommodation. See Pl.’s Objs. to R. & R., ECF No.
57 at 8. However, Magistrate Judge Merriweather cites Chenari
for the legal standard applicable to whether a need for an
accommodation reaches the level of obviousness such that a
formal request is unnecessary, see R. & R., ECF No. 55 at 8-9;
she did not rely on it by analogy in determining that Ms.
Bynum’s April 20, 2016 email was not a formal request, nor could
she have, since the plaintiff in Chenari conceded that he had
not requested an accommodation, see id.
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Ms. Bynum also states generally that Magistrate Judge
Merriweather “engages in fact-finding and analysis that is the
province of the jury” to arrive at her conclusion about the
sufficiency of Ms. Bynum’s April request. Pl.’s Objs. to R. &
R., ECF No. 57 at 8. This kind of “conclusory or general
objection” is reviewed for clear error, Borushevskyi v. United
States Citizenship & Immigr. Servs., 664 F. Supp. 3d 117, 125
(D.D.C. 2023), aff'd, No. 23-5116, 2024 WL 2762146 (D.C. Cir.
May 30, 2024). Magistrate Judge Merriweather did not engage in
fact-finding; rather she pointed out that Ms. Bynum had provided
no evidence that would support a determination that her need was
so apparent that the District was required to offer her an
accommodation.
Finally, Ms. Bynum argues that Magistrate Judge
Merriweather did not consider Ms. Bynum’s March 2016 request for
accommodation in deciding whether her April 20, 2016 email
constituted an accommodation request. See Pl.’s Objs. to R. &
R., ECF No. 57 at 9. However, Ms. Bynum does not explain why
Magistrate Judge Merriweather should have considered the April
20, 2016 email as supplementing the March 2016 request for
accommodation. In the latter, “Ms. Bynum referenced her PTSD,
anxiety, and depression and asked for accommodations to address
the noise level at her cubicle due to proximity to a conference
room and requested a mirror so that she could see people
14
approaching her cubicle from behind.” R. & R., ECF No. 55 at 8.
In the former, she requested “relocated to another unit that
best fit my skills and qualification.” Pl. Opp’n Ex. 15 at *2,
ECF No. 45-15 (April 20, 2016 Email from Cemone Bynum to Mary
Campbell). Ms. Bynum points to no evidence or legal authority
supporting her assertion that Magistrate Judge Merriweather
should have considered the April 20, 2016 email as supplementing
the March 2016.
For all these reasons, the Court concludes that Magistrate
Judge Merriweather’s analysis of whether the April 20, 2016
email constituted a request for accommodation was not “clearly
erroneous or contrary to law.” LCvR 72.2(b).
1. Reasonable Accommodation of Request
The accommodations requested in the June 2016 request were:
(1) job transfer to possibly another building; (2) noise level—
she is between two conference rooms and still uses a headset;
and (3) schedule change. See June 2016 Accommodation Request,
ECF No. 45-12 at 1. Magistrate Judge Merriweather found that Ms.
Bynum failed to show that the District did not provide a
reasonable accommodation in response to this request. See R. &
R., ECF No. 55 at 12-13.
In her objections to this finding, Ms. Bynum repeats
arguments that she previously made in her Motion for Summary
Judgment that were addressed in the R. & R., specifically that
15
the District did not place her in a separate building or on a
different floor. See Pl.’s Mot. Summ. J., ECF No. 50 at 18-19.
Ms. Bynum also points to the fact that Mr. Billett continued to
walk by her workspace until mid-September 2016, and generally
states that “[j]ustice delayed is justice denied.” Pl.’s Objs.
to R. & R., ECF No. 57 at 9. That Mr. Billett continued to walk
past her workspace was similarly stated throughout Ms. Bynum’s
summary judgment briefing and was addressed in the R. & R. See
Pl.’s Mot. Summ. J., ECF no. 50 at 7, 18-19.
Ms. Bynum asserts that she should have been moved “to an
area, a floor or a building where she did not have to interact
with [Mr.] Billet[t]” and that the District was required to
offer evidence that moving her to another area or site away from
Mr. Billett was an undue hardship. Pl.’s Objs. to R. & R., ECF
No. 57 at 9. However, “[a]n employer is not required to provide
an employee that accommodation he requests or prefers, the
employer need only provide some reasonable accommodation.” Aka,
156 F.3d at 1305. And because Ms. Bynum has not shown that the
District did not provide reasonable accommodations, the District
does not need to demonstrate that providing further
accommodations would have caused an undue burden. Stewart v.
White, 118 F. Supp. 3d 321, 325 (D.D.C. 2015), aff’d, No. 15-cv05288, 2016 WL 1695343 (D.C. Cir. 2016).
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Magistrate Judge Merriweather found that the District’s
accommodations were reasonable because: (1) Ms. Bynum’s
workspace was moved away from Mr. Billett; (2) she was located
to another floor; (3) she did not work with him after the
incident; (4) he did not try to speak with her again; and (5)
Mr. Billett ceased approaching her work station after midSeptember 2016. See R. &. R. ECF No. 55 at 11.
For all these reasons, the Court concludes that Magistrate
Judge Merriweather’s analysis of whether the District reasonably
accommodated Ms. Bynum’s June 2016 accommodation request was not
“clearly erroneous or contrary to law.” LCvR 72.2(b).
Accordingly, the Court REJECTS Ms. Bynum’s objections, and
ADOPTS this portion of the R. & R. The Court GRANTS the
District’s Motion for Summary Judgment on Count I and DENIES Ms.
Bynum’s Motion for Summary Judgment on Count I.
B. Ms. Bynum Has Not Presented Sufficient Evidence From
Which a Jury Could Reasonably Infer a Retaliatory
Motive, Causation, or Pretext
Title VII “both prohibits employers from engaging in
employment practices that discriminate on the basis of race, see
42 U.S.C. § 2000e–2(a), and bars them from retaliating against
an employee ‘because [she] has opposed any [such] practice,’ id.
§ 2000e–3(a).” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65,
68 (D.C. Cir. 2015) (citation omitted). “To establish a prima
facie case of retaliation, a plaintiff must show (1) that [she]
17
engaged in statutorily protected activity; (2) that [she]
suffered a materially adverse action by [her] employer; and (3)
that a causal link connects the two.” Cruz v. McAleenan, 931
F.3d 1186, 1193–94 (D.C. Cir. 2019) (citation and internal
quotation marks omitted).
Magistrate Judge Merriweather found that while a reasonable
juror could find that Ms. Bynum engaged in protected activity
and suffered materially adverse action, the facts in the record
failed to establish retaliatory motive, causation, or pretext.
See R. & R., ECF No. 55 at 14-27. Ms. Bynum objects to
Magistrate Judge Merriweather’s conclusion that Ms. Bynum failed
to establish a retaliatory motive, causation, or pretext, and
contends that she is entitled to summary judgment on Counts II
and III. See Pl.’s Objs. to R. & R., ECF No. 57 at 9-12.
1. Letter of Reprimand
First, Ms. Bynum argues that the Letter of Reprimand failed
to state the basis for issuing the letter and that it was issued
for a “secret reason.” Pl.’s Objs. to R. & R., ECF No. 57 at 10.
This repeats arguments Ms. Bynum made in her summary judgment
briefing, where she argued that the Defendant was “unable to
articulate a viable basis for the reprimand,” Pl.’s Mot. for
Summ. J., ECF no. 50 at 26. Magistrate Judge Merriweather
addressed the District’s proffered basis for the letter, stating
that the letter “explains that Ms. Bynum filed a report of an
18
‘Unusual Incident,’ that an investigation ensued, and that the
investigation report concluded that Mr. Billett’s conduct was
‘unprofessional and aggressive’ and that ‘his actions, while not
excusable, were provoked by [Ms. Bynum].’” R. & R., ECF No. 55
at 23. Magistrate Judge Merriweather concluded that the
District’s basis would not allow a jury to conclude that “the
District’s proffered explanation is false and the letter served
an invidious purpose.” Id. The Court concludes that Magistrate
Judge Merriweather’s analysis of the District’s proffered reason
for the Letter of Reprimand was not “clearly erroneous or
contrary to law.” LCvR 72.2(b).
Ms. Bynum also states that the District’s failure to
present facts that it disciplined Mr. Billett in addition to her
“deviated from its standard of fair dealing with employees in
meting out discipline.” Pl.’s Objs. to R. & R., ECF No. 57 at
10. As the District correctly points out in its Reply, Ms. Bynum
raises the issue of whether the District deviated from a
standard disciplinary practice for the first time in her
objections to the R. & R., and thus the Court does not consider
them. See Def.’s Resp. to Pl.’s Objs., ECF No. 59 at 7; see
Taylor v. D.C., 205 F. Supp. 3d 75, 90 (D.D.C. 2016) (explaining
that “failure to present an argument to the Magistrate Judge
constitutes a waiver of that argument”).
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2. Denial of Transfer
Magistrate Judge Merriweather found that Ms. Bynum did not
put forth facts sufficient to establish a causal connection
between her protected activity and the District’s decision not
to transfer her to a different program area. See R. & R., ECF
No. 55 at 25-26.
Ms. Bynum objects, stating first that Magistrate Judge
Merriweather failed to account for the fact that Mr. Billett
continued to walk by her workspace on occasion. See Pl.’s Objs.
to R. & R., ECF No. 57 at 10-11. Ms. Bynum raised this argument
in her Motion for Summary Judgment, and Magistrate Judge
Merriweather accounted for it in her conclusion that the
undisputed facts that the “District moved Ms. Bynum’s workspace,
she no longer worked with Mr. Billett, and the District had
communicated Ms. Bynum’s concerns to Mr. Billett by midSeptember,” and that absent other circumstantial evidence of
animus, this would not lead a reasonable juror to find a causal
link between Ms. Bynum’s protected activity and the denial. See
R. & R., ECF No. 55 at 26. The Court concludes that Magistrate
Judge Merriweather’s analysis here was not “clearly erroneous or
contrary to law.” LCvR 72.2(b).
Finally, Ms. Bynum objects to Magistrate Judge
Merriweather’s findings related to Ms. Bynum’s assertion that
the District regularly reassigns employees who have conflicts
20
with one another. See R. & R., ECF No. 55 at 26; Pl.’s Objs. to
R. & R., ECF No. 57 at 10-11. Magistrate Judge Merriweather
found that Ms. Bynum’s affidavit, in which she generally states
that the District has transferred employees in the past and thus
she was treated less favorably, but does not reference specific
instances of such a practice, is “insufficient to establish
pretext or create a genuine and material factual dispute.” R. &
R., ECF No. 55 at 26. Ms. Bynum argues that this affidavit is
sufficient to preserve the issue of the District’s reassignment
practice for trial. See Pl.’s Objs. to R. & R., ECF No. 57 at
12.
“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); and a “party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to
particular parts of materials in the record,” see FED. R. CIV. P.
56(c)(1)(A). However, when the only record support provided is
the plaintiff’s own declaration containing generalized
statements, without “indication as to the basis of the
plaintiff’s personal knowledge,” it cannot alone support a
motion for summary judgment. Lemmons v. Georgetown Univ. Hosp.,
431 F. Supp. 2d 76, 90 (D.D.C. 2006); see also Gordon v. Beers,
972 F. Supp. 2d 28, 37 (D.D.C. 2013) (“[o]ne’s subjective belief
21
alone is insufficient to establish a genuine issue of material
fact as to whether discrimination motivated an employer's
action.”). Here, Ms. Bynum’s cited declaration suffers from the
same deficiencies.
For all these reasons, Court concludes that Magistrate
Judge Merriweather’s analysis of Ms. Bynum’s retaliation claims
was not “clearly erroneous or contrary to law.” LCvR 72.2(b).
Accordingly, the Court REJECTS Ms. Bynum’s objections, and
ADOPTS this portion of the R. & R. The Court GRANTS the
District’s Motion for Summary Judgment on Counts II and III and
DENIES Ms. Bynum’s Motion for Summary Judgment on Counts II and
III.
C. The District Is Entitled to Summary Judgment on Ms.
Bynum’s Hostile Work Environment Claim
Both parties moved for summary judgment on Ms. Bynum’s
hostile work environment claim. See R. &. R., ECF No. 55 at 37.
Magistrate Judge Merriweather concluded that neither party could
prevail on this issue as a matter of law. Id. Both parties
object to this portion of the R. &. R. and each contend that
they are entitled to summary judgment on the hostile work
environment claim. See Def.’s Partial Objs. to R. &. R., ECF No.
56 at 4-7; Pl.’s Objs. to R. & R., ECF No. 57 at 12-13.
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1. Legal Standard
To prevail on a hostile work environment claim, Ms. Bynum
must show: (1) she is a member of a protected class; (2) she was
subjected to unwelcome harassment; (3) the harassment occurred
because of her protected status; (4) the harassment affected a
term, condition, or privilege of employment; and (5) the
employer knew or should have known of the harassment in question
but nonetheless failed to either take steps to prevent it or
afford the plaintiff prompt remedial action. See Gordon, 972 F.
Supp. 2d 28 at 36.
The Court must consider whether the employee was subjected
to “‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment.’”
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013)
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 65, 67 (1986)). In evaluating these claims, “the court looks
to the totality of the circumstances, including the frequency of
the discriminatory conduct, its severity, its offensiveness, and
whether it interferes with an employee's work performance.”
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88
(1998)). In cases involving alleged harassment by a co-worker,
23
as opposed to supervisors, “the plaintiff must prove that the
employer was at least negligent in not preventing or correcting
the harassment.” Ayissi-Etoh, 712 F.3d at 577.
2. The District’s Objections
The District argues that “no reasonable juror could
conclude that the District’s response to Mr. Billett’s one-time
remark was unreasonable.” ECF No. 56 at 7.
Magistrate Judge Merriweather rejected Ms. Bynum’s argument
that the District was negligent because the harassment allegedly
continued after the Incident:
Although Ms. Bynum characterizes Mr. Billett’s
behavior as “stalking,” the underlying facts
are less extreme than that label suggests. Mr.
Billett walked past Ms. Bynum’s desk to speak
to her coworker about personal matters and did
not speak to Ms. Bynum on those occasions. See
Def. SMF, ECF No. 43-1 ¶ 17; Bynum Dep. at
137:14–16; Pl. SMF Resp., ECF No. 45-1 ¶ 17;
Bynum Decl. ¶¶ 33–36. He did not stop at Ms.
Bynum’s desk during those visits or any time
after the Incident. See Bynum Dep. at 135:14–
20, 137:10–16. Ms. Bynum believed he was
trying to intimidate her and that he had a
smirk on his face when they made eye contact.
See Bynum Dep. at 138:11–20. She perceived his
behavior as a “taunt” that conveyed “I’m the
winner, look at you, look at you, I could come
and go as I please.” Bynum Dep. at 140:16–20.
These infrequent passing interactions are not
severe enough to establish ongoing harassment
after the Incident, and therefore do not
establish that the District’s response to the
complaint was inadequate.
24
R. &. R., ECF No. 55 at 36. However, she found that neither
party could prevail on this claim as a matter of law because on
one hand,
jurors could reasonably question the adequacy of
the District’s response. Specifically, the
decision to reprimand Ms. Bynum for provoking
Mr. Billett’s conduct, paired with the absence
of evidence that Mr. Billett was counseled or
reprimanded for his own more extreme actions,
could lead jurors to believe that the District
punished the victim instead of appropriately
addressing the alleged harassment. On the other
hand, jurors could reasonably conclude that the
District did respond appropriately, given that
it moved Ms. Bynum’s desk and the two no longer
had occasion to speak to each other at work.
R. &. R., ECF No. 55 at 37.
The District argues that Magistrate Judge Merriweather’s
focus on the District’s “decision to reprimand Plaintiff for
provoking Mr. Billett’s conduct, paired with the absence of
evidence that Mr. Billett was counseled or reprimanded for his
own actions, could lead jurors to believe the District punished
the victim instead of addressing the alleged harassment” does
not create a material dispute of fact for a jury to resolve.
Def.’s Partial Objs. to R. &. R., ECF No. 56 at 4.
In response, Ms. Bynum asserts that the District’s response
to the Incident was not reasonable because: (1) the Incident
occurred in the presence of their supervisor, who took no steps
to stop it; (2) when she returned to work on May 9, 2016, Mr.
25
Billett “continued to harass” her for six months; and (3) Ms.
Bynum was punished because the Letter of Warning was issued to
her but there is no evidence that any remedial action was taken
against Mr. Billett. 5 Pl.’s Reply, ECF No. 60 at 5-7. Ms. Bynum
provides no legal support for her broad and conclusory responses
to the District’s objections. See id.
Because “the harassing employee is the victim’s co-worker,
the employer is liable only if it was negligent in controlling
working conditions.” Vance v. Ball State University, 570 U.S.
421, 424 (2013). To establish negligence, Ms. Bynum’s burden is
to prove that the District “knew or should have known of the
harassment and failed to implement prompt and appropriate
corrective action.” Curry v. District of Columbia, 195 F.3d 654,
660 (D.C. Cir. 1999); see also Vance, 570 U.S. at 424. “To
assess whether an employer’s response is adequate, courts should
look to the amount of time that elapsed between the notice and
remedial action, the [remedial] options available to the
employer, … and whether or not the measures ended the
5 Ms. Bynum also objects to the District referring to Mr. Billett as “Black.” Pl.’s Reply, ECF No. 60 at 6-7. The District does not object to the R. & R.’s determination that Ms. Bynum’s allegation that Mr. Billett told her to “go back to the South where she came from” can reasonably be understood to have a racial connotation that could support an inference of a racebased motive. Accordingly, the Court does not address this objection.
26
harassment.” Johnson v. Shinseki, 811 F. Supp. 2d 336, 350
(D.D.C. 2011) (citations omitted).
As an initial matter, there is no evidence that the
District could have prevented the Incident from occurring. It is
undisputed that Ms. Bynum and Mr. Billett had a good working
relationship prior to the Incident and that Dr. Wright had never
seen Mr. Billett act that way before. See Bynum Dep. Tr., ECF
No. 45-4 at 120: 5-14; 118:8-10. The undisputed evidence shows
that the District responded quickly and reasonably to the
Incident. After the Incident, Ms. Bynum requested to be moved
away from Mr. Billett, and her desk was moved around the corner.
See id. at 107:20-108:1. She asked to be reassigned, and she no
longer worked with him after the Incident. See id. 106:20-107:7.
Ms. Bynum contends that it took the District “six” months to
make Mr. Billett understand that he needed to avoid walking by
her workspace. The undisputed facts are that the Incident
occurred on March 29, 2016 and that following the Incident, Ms.
Bynum was on leave for 28 days, returning to the office on May
9, 2016. See Bynum Decl., ECF No. 50-4 ¶ 31. When she returned
to the office, Ms. Bynum complained to her supervisor about Mr.
Billett coming near her workspace, and stated that after her
third or fourth message, her supervisor emailed her on September
15, 2016 that “Colin Billett got the message.” Bynum Dep. Tr.,
ECF No. 45-4 at 108:2-110:7; Email from Laura Heaven to Cemone
27
Bynum, ECF No. 45-18. Therefore, it was approximately four
months after her return from leave that she received the email
stating that “Colin Billett got the message.” Ms. Bynum has
provided no evidence of the dates she sent the messages to her
supervisor about Mr. Billett walking by her workspace, and she
has provided no legal authority to support her argument that
four months is unreasonable. Although there is no evidence as to
whether Mr. Billett was counseled or reprimanded her his
actions, it is undisputed that the District succeeded in making
him understand that he needed to avoid walking by Ms. Bynum’s
workspace as there is no evidence that he did so after September
15, 2016. Finally, there is no evidence that there was anything
improper with the investigation of the Incident that lead to the
Letter of Warning.
In view of the undisputed facts, no reasonable jury could
conclude that the District “failed to implement prompt and
appropriate corrective action.” Curry, 195 F.3d at 660.
Accordingly, the Court REJECTS this portion of the R. &. R. The
Court GRANTS the District’s Motion for Summary Judgment on Count
IV.
3. Ms. Bynum’s Objections
Ms. Bynum very briefly asserts that she is entitled to
Summary Judgment on her hostile work environment claim because
there is “no genuine issue of material fact on the creation of a
28
hostile work environment.” Pl.’s Obj. to R. & R., ECF No. 57 at
12-13. Ms. Bynum asserts this is because the District: (1)
provided no evidence to show that the “six (6) month delay in
protecting [Ms. Bynum] was reasonable or fair”; (2) it provided
no evidence to show that it was unable to protect her from close
contact with Mr. Billett; and (3) it provided no evidence to
show that it was an undue hardship to transfer Ms. Bynum to
another area, floor or building. Id.
As explained above, Ms. Bynum’s assertion that there was a
six-month delay has no basis in the record. Ms. Bynum has
provided no legal authority to support her assertion that a six
month—or four month—delay is unreasonable. She has provided no
legal authority to support her assertion that the District’s
burden is to show that it was unable to protect her from close
contact with Mr. Billett. She has provided no legal authority to
support her contention that for a hostile work environment
claim, it is the District’s burden to show that it was an “undue
hardship” to transfer her to another area, floor, or building.
Ms. Bynum has provided sparse and conclusory assertions, and no
legal authority for her objections.
For all these reasons, the Court concludes that Magistrate
Judge Merriweather’s analysis of whether Ms. Bynum is entitled
to summary judgment on her hostile work environment claim was
not “clearly erroneous or contrary to law.” LCvR 72.2(b).
29
Accordingly, the Court ADOPTS the portion of the R. &. R. as to
the hostile work environment claim and DENIES Ms. Bynum’s Motion
for Summary Judgment on the hostile work environment claim.
IV. Conclusion
For the reasons explained above, the Court ADOPTS the R. & R.
as to the recommendations for Counts I, II, and III, and ADOPTS
IN PART and REJECTS IN PART the recommendations as to Count IV.
The Court GRANTS the District’s Motion for Summary Judgment, ECF
No. 43; and DENIES Ms. Bynum’s Motion for Summary Judgment, ECF
No. 50.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 25, 2026
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