Plaintiff "Took Thousands of Photographs and Videos of Many of Her Coworkers Without Their Permission"

From Thursday's decision by Judge Lee Rosenthal (S.D. Tex.) in Berry v. City of Houston:

[T]aking the disputed facts in the light most favorable to Ms. Berry, summary judgment is nonetheless appropriate. The facts show a temporary employee who created, and received, workplace friction and unpleasantness, but not based on unconstitutional grounds. The facts do not permit an inference that there was discrimination or harassment based on animosity to the employee's national origin [Egyptian] or religion [Muslim], or in retaliation for her complaints….

Ms. Berry first reported that she felt she was treated discriminatorily in May 2022. In an email to Ms. Ikpeme, followed by emails to Ms. Brownlow and Ms. Johnson, Ms. Berry complained that she had "experienced … Humiliation and Mobbing at work" by a group of other employees who came in and left at the same time she did, and who parked in the same parking garage, near her parking place. She also complained that Ms. Ikpeme had talked to her at a lunch once about Jesus, including stating that those who do not believe in Jesus are "lost."

The day after Ms. Berry sent the emails to Ms. Brownlow and Ms. Johnson, they convened a meeting between Ms. Berry and Ms. Ikpeme. Ms. Ikpeme agreed not to discuss religion with Ms. Berry, and it did not happen again. It is unclear what was discussed about Ms. Berry's belief that a group of coworkers who arrived at and left work from the same parking garage at the same times as Ms. Berry were "mobbing" her. Berry did not tell Ms. Brownlow or Ms. Johnson that this was based on her religion or national origin….

Before, during, and after these events, Ms. Berry described a series of events in sinister terms. For example, in June 2021, Ms. Ikpeme asked Ms. Berry for a copy of her driver's license and names of family members. Ms. Berry described this as a "trespass on Berry's personal information." When Ms. Berry's job was extended past the originally anticipated end date, Ms. Ikpeme reminded her that the job was temporary, which Ms. Berry viewed as inappropriate. Ms. Johnson and Ms. Ikpeme tried to have Ms. Berry sign an acknowledgment of temporary employment, which Ms. Berry refused to do because she insisted that she had the status of a protected civil servant. She did not….

When Ms. Berry changed her work arrival time by 30 minutes to avoid walking to and from the parking garage with a group of people, she encountered another group of people walking to and from the garage. She believed that because this group was arriving and leaving work at the same time she was, she was being followed and harassed, and began taking pictures of the other employees. She continued to report to Ms. Ikpeme and Ms. Johnson that she was being "mobbed" on her way to and from the parking garage. When a coworker who Ms. Berry believed was "often hovering" over her shoulder commented on a computer course she was taking, she reported him. When that same coworker came into the filing room where she worked and "hit" the back of her chair with her arm, she reported him; that employee was reprimanded and moved to another area.

In short, Ms. Berry complained about even the slightest workplace interactions with other employees and took offense at innocuous and mundane occurrences. Despite the lack of any evidence that religion came up more than once, she alleges discrimination on the basis that she is Muslim. Despite the lack of any evidence that any ethnic slur or non-trivial comment was made, she alleges discrimination on the basis that her national origin is Egyptian. Despite the lack of any evidence that she was treated less favorably than other similarly situated temporary employees of the City, she alleges discrimination and retaliation.

Ms. Berry was taking thousands of pictures and videos of coworkers who she apparently believed were "mobbing" her as she walked between the building where they all worked and the attached parking garage where they all parked. As the photographing became more obvious and frequent, employees complained. Several employees from other departments complained, and they shared fears for their safety and the safety of their coworkers….

Ms. Berry was [repeatedly] told by Ms. Johnson and Ms. Ikpeme that she had to stop photographing other employees and their cars because of the workplace disruption it caused. Ms. Berry was also told that if she did not stop, she could be terminated. Ms. Berry continued to photograph other employees, who continued to complain….

Because Ms. Berry refused to stop taking photographs of other employees despite management's repeated orders to do so, and because her continued photographing of other employees was causing disruption in the workplace, Ms. Ikpeme recommended the termination of Ms. Berry's temporary employment….

No one replaced Ms. Berry, and her temporary position was eliminated after her termination.

The court ultimately concluded that Berry hadn't introduced enough evidence of discrimination, hostile environment harassment, or retaliation for complaining about discrimination or harassment. A brief excerpt of the court's longer analysis:

Nor is there any basis to infer that the actions Ms. Berry found so offensive were targeted at her because of her religion or national origin. It seems clear that Ms. Berry made herself an unpopular coworker, who frequently complained about others and who saw sinister reasons behind the actions of others. But the evidence does not support an inference that she was singled out because she was Muslim or Egyptian, or that the conduct that she subjectively found so offensive rose to the level of objective harassment….

[T]he City looked into Ms. Berry's complaints and responded when it could do so. Ms. Ikpeme was counseled not to talk about religion in the workplace. The man who was accused of hovering next to Ms. Berry and hitting the back of her chair was reprimanded. The one person who did not heed repeated counsel about the need to change one workplace habit was Ms. Berry, who ignored warnings that if she continued to photograph her coworkers in the parking garage, she would be fired.

Marjorie Leigh Cohen represents the City.