UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CEMONE ANTENETTE BYNUM
Plaintiff, No. 16-cv-1904 (EGS) v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Cemone Antenette Bynum (“Ms. Bynum”), an African-
American woman and employee of the District of Columbia’s
Department of Behavioral Health (“DBH”), brings this lawsuit
against the District of Columbia (the “District”) and DBH 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., claiming that she was
harassed and retaliated against for reporting her male
colleague’s behavior. Ms. Bynum also alleges that DBH unlawfully
refused to accommodate her disabilities by denying her requests
to transfer to an appropriate program area.
Pending before the Court are Ms. Bynum’s objections to
Magistrate Judge Robin M. Meriweather’s Report and
Recommendation (“R & R”), which recommends that this Court
dismiss without prejudice Counts II and IV of the First Amended Complaint. See R & R, ECF No. 20 at 13. 1 Raising no objections to
the R & R, the District asks this Court to adopt the R & R in
its entirety. Upon careful consideration of the R & R,
Ms. Bynum’s objections, the District’s response, and the
relevant law, the Court concludes that Ms. Bynum sufficiently
alleges a retaliation claim under Title VII (Count II), and
Ms. Bynum plausibly states a hostile work environment claim
under Title VII (Count IV). Therefore, the Court ADOPTS IN PART
and REJECTS IN PART the R & R, GRANTS IN PART and DENIES IN PART
the District’s Partial Motion to Dismiss, and DISMISSES WITHOUT
PREJUDICE Ms. Bynum’s retaliation claim under the ADA. Because
DBH is a non sui juris entity that lacks the capacity to sue or
be sued, the Court DISMISSES WITH PREJUDICE Ms. Bynum’s claims
against DBH.
I. Background
The factual background and procedural history in this case
are set forth in the R & R. See R & R, ECF No. 20 at 2-4. 2 To
briefly summarize, in 2005, the District hired Ms. Bynum, an
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 The Court accepts as true the allegations in the operative complaint for purposes of deciding this motion, and construes them in Ms. Bynum’s favor. See Baird v. Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015). Ms. Bynum does not object to Magistrate Judge Meriweather’s recitation of the alleged facts. See Pl.’s Objs., ECF No. 22 at 1-3. 2 African-American female, as DBH’s Data Management Specialist.
First Am. Compl. (“FAC”), ECF No. 14 at 3 ¶ 6, 4 ¶¶ 19-20. She
later assumed a new role. Id. at 4 ¶ 21. At all relevant times,
Ms. Bynum was employed at DBH as a Project and Data Management
Specialist. Id. Ms. Bynum was diagnosed with anxiety disorder
and major depression disorder in 2011, and then post-traumatic
stress disorder in 2014. Id. at 3 ¶¶ 8-10. DBH was aware of
Ms. Bynum’s disabilities. Id. at 3 ¶ 13.
Between 2012 and 2015, Ms. Bynum filed complaints against
her employer with the Equal Employment Opportunity Commission
(“EEOC”), the District’s Office of Human Rights (“OHR”), and
DBH’s manager of equal employment opportunity (“EEO”), alleging
age and racial discrimination. Id. at 4 ¶¶ 24-27. The parties
settled her EEOC complaint alleging age discrimination in 2012,
and OHR rendered its decision in 2015 regarding Ms. Bynum’s
racial discrimination complaint. Id. at 4 ¶ 25. Following those
events, DBH isolated Ms. Bynum, excluded her from team projects,
denied her opportunities to work on assignments, and refused to
promote her several times. Id. at 4-5 ¶¶ 29-32.
While at work on Tuesday, March 29, 2016, Ms. Bynum and
approximately five other individuals attended a meeting for
DBH’s Mental Health Statistics Improvement Program. Id. at 5 ¶¶
33, 35. At some point, Ms. Bynum, her supervisor, and her male
colleague were the remaining three attendees in the meeting. Id.
3 at 5 ¶¶ 35, 37, 40. The male colleague, Colin Billett
(“Mr. Billett”), was responsible for reviewing and approving
invoices that were submitted by contractors to DBH. Id. at 5 ¶
39. 3 After Ms. Bynum explained to Mr. Billett that certain
invoices he had submitted were improperly filled out, id. at 5 ¶
41, “[Mr.] Billett suddenly bolted out of his chair, causing his
chair to violently hit the wall behind him,” id. at 5 ¶ 43, and
he “stood over [Ms. Bynum], pointed his finger at her, and
shouted ‘I’m sick of you,’” id. at 5 ¶ 44. Mr. Billett also
shouted that “you are immature, you are childish, and stupid,”
id. at 5 ¶ 45, and “you need to go back to the South where you
came from,” id. at 5 ¶ 46.
Mr. Billett repeated those “epithets several times” during
the incident, id. at 5 ¶ 47, and he started to approach
Ms. Bynum as she was sitting in her chair before he began pacing
back and forth around the room, id. at 5-6 ¶¶ 48-50. Ms. Bynum’s
supervisor, Dr. Denise Wright, Ph.D., did not intervene in the
incident, which lasted more than ten minutes, and Dr. Wright
instructed Ms. Bynum to refrain from calling the police. Id. at
6 ¶¶ 54-55, 58. Another employee entered the room and removed
3 As noted in the R & R, the FAC refers to Ms. Bynum’s male colleague as “Colin Bissett” and “Colin Billett.” R & R, ECF No. 20 at 2 n.2; see also FAC, ECF No. 14 at 5 ¶¶ 37, 40. The Court assumes that “Colin Billett” is the correct spelling of Ms. Bynum’s male colleague because Ms. Bynum’s objections refer to him as “Colin Billett.” Pl.’s Objs., ECF No. 22 at 1. 4 Mr. Billett. Id. at 6 ¶ 56. Ms. Bynum feared for her safety,
suffering a panic attack and emotional distress as a result of
the incident. Id. at 6 ¶¶ 51-53. On or about March 29, 2016,
Ms. Bynum reported Mr. Billett’s “assault” to her supervisor.
Id. at 10 ¶ 104. Ms. Bynum also submitted an incident report,
sought medical assistance, and returned to work on May 9, 2016.
Id. at 6 ¶¶ 59, 61, 63.
When she returned to work, Ms. Bynum felt threatened by
Mr. Billett’s presence near her workspace, id. at 6 ¶ 67, and
she reported to DBH the issue of Mr. Billett’s “unnecessary
contact” with her, id. at 6 ¶ 68. DBH denied her requests to
transfer to an appropriate program area to avoid Mr. Billett.
Id. at 7 ¶ 70. DBH refused to order Mr. Billett to not harass,
intimidate, or annoy Ms. Bynum. Id. at 7 ¶ 69. Without a
“business or employer related purpose,” id. at 7 ¶ 76,
Mr. Billett continued to approach Ms. Bynum’s workspace, id. at
7 ¶ 78.
On or about May 9, 2016, DBH issued a “Letter of Warning”
to Ms. Bynum, which was signed by Dr. Wright, stating that:
(1) Ms. Bynum’s conduct on the day of the incident failed to
comply with professional standards of conduct for the District’s
employees, id. at 7 ¶ 80; (2) Ms. Bynum violated DBH’s workplace
violence prevention and response policy that prohibits
“assaultive, intimidating, or harassing behavior in the
5 workplace,” id. at 7 ¶ 81; and (3) failure to comply with the
warning could result in disciplinary action, including
suspension or dismissal, id. at 8 ¶ 87. The letter, however, did
not include Ms. Bynum’s alleged wrongdoing. Id. at 8 ¶ 84.
Based on these events, Ms. Bynum filed a charge of
discrimination against the District and DBH with the EEOC on May
9, 2016. Id. at 8 ¶ 92. On September 26, 2016, Ms. Bynum brought
Title VII and ADA claims against the District and DBH in this
Court. See generally Compl., ECF No. 1. On August 8, 2017, this
Court denied as moot the District’s motion to dismiss the
initial complaint in light of Ms. Bynum’s First Amended
Complaint, and granted DBH’s motion to dismiss in view of
Ms. Bynum’s lack of opposition. Min. Orders of Aug. 8, 2017.
Ms. Bynum’s First Amended Complaint asserts four claims against
the District and DBH: (1) denial of reasonable accommodation in
violation of ADA (“Count I”); (2) retaliation in violation of
Title VII (“Count II”); (3) retaliation in violation of Title
VII (“Count III”); and (4) harassment in violation of Title VII
(“Count IV”). FAC, ECF No. 14 at 9-14 ¶¶ 95-151.
On August 17, 2017, the District moved to dismiss Counts II
and IV of the operative complaint. See Def.’s Partial Mot. to
Dismiss, ECF No. 15. Ms. Bynum filed her opposition brief, see
Pl.’s Opp’n, ECF No. 17, and the District filed its reply brief,
see Def.’s Reply, ECF No. 19. Magistrate Judge Meriweather,
6 having been referred the District’s motion and this case for
full case management, issued the R & R on January 26, 2018. See
R & R, ECF No. 20; see also Min. Order of Aug. 8, 2017.
Ms. Bynum submitted objections to the R & R, and the District
responded to her objections. The objections are ripe and ready
for the Court’s 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
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).
Proper objections “shall specifically identify the portions
of the proposed findings and recommendations to which objection
7 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. Motion to Dismiss
“A Rule 12(b)(6) motion to dismiss tests the legal
sufficiency of a plaintiff’s complaint.” Herron v. Fannie Mae,
861 F.3d 160, 173 (D.C. Cir. 2017). “[T]he complaint is
construed liberally in the plaintiffs’ favor, and [courts] grant
plaintiffs the benefit of all inferences that can be derived
from the facts alleged.” Kowal v. MCI Comm’cns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). However, the court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
A complaint survives a motion under Rule 12(b)(6) only if
it “contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw [a] reasonable inference that the defendant is
8 liable for the misconduct alleged.” Id. A complaint alleging
facts that are “‘merely consistent with’ a defendant’s liability
. . . ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Id. (quoting Twombly,
550 U.S. at 557).
III. Analysis
The District advances two primary arguments for dismissal
of the retaliation claim (Count II) and the hostile work
environment claim (Count IV). See Def.’s Mem. of P. & A. in
Supp. of Def.’s Partial Mot. to Dismiss (“Def.’s Mem.”), ECF No.
15 at 5-7. First, Ms. Bynum fails to state a retaliation claim
because her report to her supervisor about Mr. Billett’s alleged
“assault” does not constitute protected activity under Title
VII, and “nothing in the Amended Complaint shows that the
alleged assault was linked to [Ms. Bynum’s] membership in a
protected class.” Id. at 6. Next, Ms. Bynum fails to state a
claim for harassment because she does not allege sufficient
facts that link the alleged harassment to her membership in a
protected class. Id. at 7. For the reasons explained below, the
Court rejects the recommendations in the R & R to dismiss the
retaliation and hostile work environment claims under Title VII.
Before turning to Ms. Bynum’s objections to the
recommendations in the R & R, the Court first addresses the
issue of whether DBH is a proper defendant in this case.
9 A. DBH Lacks the Capacity to Sue or Be Sued
Ms. Bynum sued both DBH and the District. Compl., ECF No. 1
at 3 ¶ 14. DBH moved to dismiss the department as a defendant on
the ground that DBH is non sui juris. See Def.’s Mot. to
Dismiss, ECF No. 7 at 1; see also Non Sui Juris, Black’s Law
Dictionary (11th ed. 2019) (Latin for “not of one’s own right”).
Because Ms. Bynum did not oppose the dismissal of DBH as a
party, see Pl.’s Opp’n, ECF No. 9 at 1, this Court granted DBH’s
motion, Min. Order of Aug. 8, 2018. Nonetheless, Ms. Bynum named
the District and DBH as defendants in the First Amended
Complaint. See FAC, ECF No. 14 at 3 ¶ 15 (“Defendant [DBH] is an
agency/subsidiary/division of the government of the District of
Columbia.”). The District argues—and Ms. Bynum does not dispute—
that DBH is not a proper defendant. See, e.g., Def.’s Mem., ECF
No. 15 at 3 n.2; Pl.’s Opp’n, ECF No. 17 at 1-11; Pl.’s Objs.,
ECF No. 22 at 3. The Court agrees.
DBH is a department of the District. See D.C. Code § 7-
1141.02(a). “[I]t is well-settled that a department or agency of
the District of Columbia cannot sue or be sued in its own name
in the absence of a statutory provision to that effect.”
Whitehead v. D.C. Child Support Servs. Div., 892 F. Supp. 2d
315, 319 (D.D.C. 2012); accord Hunt v. District of Columbia,
No. 02-7044, 2002 WL 1997987, at *1 (D.C. Cir. Aug. 29,
2002) (per curiam) (“The district court correctly concluded that
10 appellee Metropolitan Police Department is non sui juris.”). The
Court therefore finds that DBH is a non sui juris entity that
cannot be sued in its own name. The District is the only proper
defendant in this case. Accordingly, the Court DISMISSES WITH
PREJUDICE DBH as a defendant.
B. Retaliation Claim
The Court next considers Ms. Bynum’s objections to the
R & R, which recommends that her retaliation claim be dismissed
on the ground that she fails to allege facts establishing or
supporting an inference that her incident report about
Mr. Billett’s conduct concerned discrimination based on her
race, color, religion, sex, or national origin. See R & R, ECF
No. 20 at 8; see also Pl.’s Objs., ECF No. 22 at 6-9.
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]
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
11 quotation marks omitted). “[A] plaintiff need not plead each
element of [her] prima facie retaliation case to survive a
motion to dismiss.” Jackson v. Dist. Hosp. Partners, L.P., No.
CV 18-1978 (ABJ), 2019 WL 3502389, at *5 (D.D.C. Aug. 1, 2019).
As noted in the R & R, the District does not dispute that
Ms. Bynum has sufficiently alleged facts for the last two
elements of her retaliation claim. R & R, ECF No. 20 at 6 n.4.
The District concedes that Ms. Bynum alleges sufficient facts to
show that DBH took a materially adverse action against Ms. Bynum
when she complained to her supervisor about Mr. Billett’s
conduct. See, e.g., id.; Pl.’s Objs., ECF No. 22 at 6; Def.’s
Resp. to Pl.’s Objs. (“Def.’s Resp.”), ECF No. 24 at 2-3.
Indeed, DBH “issued [Ms. Bynum] a reprimand and a warning
letter” after she reported Mr. Billett’s conduct to her
supervisor. FAC, ECF No. 14 at 10 ¶ 106. And DBH “threatened
[Ms. Bynum] with sanctions including termination without
informing [her] of the alleged infractions,” id. at 10-11 ¶ 114,
causing her “unwarranted stress and harm,” id. at 11 ¶ 118. The
remaining issue is whether Ms. Bynum has alleged enough facts to
demonstrate the first element of her retaliation claim.
1. Ms. Bynum Has Pled Sufficient Facts That She Engaged in Protected Activity Under Title VII
Ms. Bynum alleges that, on the day of the incident at
issue, Mr. Billett stood over her, pointed his finger at her,
12 and shouted comments directed at her. See id. at 5 ¶¶ 43-46.
Specifically, Mr. Billett shouted: (1) “I’m sick of you,” id. at
5 ¶ 44; (2) “you are immature, you are childish, and stupid,”
id. at 5 ¶ 45; and (3) “you need to go back to the South where
you came from,” id. at 5 ¶ 46 (emphasis added). Ms. Bynum
further alleges that “[Mr.] Billett repeated these epithets
several times.” Id. at 5 ¶ 47 (emphasis added). Mr. Billett made
these “epithets” in the presence of Ms. Bynum’s supervisor. See
id. at 5 ¶¶ 40-48, 6 ¶¶ 49-55, 11 ¶ 116. Dr. Wright did nothing,
id. at 6 ¶ 55, 10 ¶ 111, and Ms. Bynum remained in her chair
during the incident, id. at 6 ¶ 50. At some point, Ms. Bynum
submitted an incident report, id. at 6 ¶ 59, and she “reported
the assault by Mr. Billett against her to her supervisor,” id.
at 10 ¶ 104. According to Ms. Bynum, her “action in reporting
the attack on her by [Mr.] Billet[t] was a protected activity
under Title VII and the ADA,” id. at 10 ¶ 105, and “[b]ut for
[Ms. Bynum’s] above-referenced protected activity of filing
complaints for alleged discrimination, [DBH] would not have
retaliated against [her],” id. at 11 ¶ 121.
The District argues that Ms. Bynum’s incident report does
not qualify as “protected activity” under Title VII because
Ms. Bynum fails to link Mr. Billett’s alleged assault to her
membership in a protected class, and Ms. Bynum cannot show that
she was “opposing or making a charge of discrimination in
13 violation of Title VII.” Def.’s Mem., ECF No. 15 at 6; see also
Def.’s Reply, ECF No. 19 at 1-2. It is undisputed that
Ms. Bynum, an African-American woman, is a member of two
protected classes. See, e.g., Pl.’s Opp’n, ECF No. 17 at 10;
Def.’s Reply, ECF No. 19 at 1-3. The R & R states that Ms. Bynum
“suggests that the Court should infer that she engaged in
protected activity simply because she is an African American
woman.” R & R, ECF No. 20 at 8. Ms. Bynum argues that “the
threshold for oppositional conduct is not onerous” under Title
VII, Pl.’s Opp’n, ECF No. 17 at 10; and she points to her
“previous Title VII claim against her employer,” id.
Magistrate Judge Meriweather articulated three reasons for
why Ms. Bynum has failed to plead sufficient facts that she
engaged in protected activity. R & R, ECF No. 20 at 8-9. First,
“Ms. Bynum has failed to allege facts that establish or support
an inference that her report regarding the incident with
Mr. Billett concerned discrimination on the basis of her race,
color, religion, sex, or national origin.” Id. at 8. Next,
Ms. Bynum “does not claim to have believed that Mr. Billett’s
conduct was discriminatory,” id. (citing FAC, ECF No. 14 at 6 ¶
59), and she does not “allege any facts attributing
Mr. Billett’s conduct to her membership in a protected class in
Count II or elsewhere in the complaint,” id. Finally, Ms. Bynum
“does not contend that [her] past complaints [of discrimination]
14 played any role in DBH’s decision to issue her the reprimand or
letter of warning.” Id. (citing Pl.’s Opp’n, ECF No. 17 at 10;
FAC, ECF No. 14 at 4 ¶¶ 24-27, 7-8 ¶¶ 79-90). Magistrate Judge
Meriweather recommends that this Court dismiss without prejudice
the retaliation claim under Title VII in Count II. Id. at 8-9,
13. 4
Ms. Bynum specifically objects to the R & R’s findings
that: (1) she fails to allege sufficient facts that support an
inference that her incident report regarding Mr. Billett’s
conduct concerned discrimination; and (2) she fails to allege
her belief that Mr. Billet’s conduct was discriminatory. Pl.’s
Objs., ECF No. 22 at 8-9. The Court will address each objection
in turn.
4 Magistrate Judge Meriweather found that Ms. Bynum failed to state a plausible retaliation claim under the ADA because the FAC “lacks any allegations indicating or supporting an inference that her complaint about Mr. Billet[t]’s conduct constituted protected activity under the ADA.” R & R, ECF No. 20 at 10; see also FAC, ECF No. 14 at 9-10 ¶¶ 102-122. Neither party objects to these findings, see, e.g., Pl.’s Objs., ECF No. 22 at 6-9; Def.’s Resp., ECF No. 24 at 2 n.1, and this Court agrees that Count II should be dismissed without prejudice to the extent Ms. Bynum asserts an ADA retaliation claim. Having found no clear error in this portion of the R & R, the Court therefore ADOPTS Magistrate Judge Meriweather’s recommendation, and DISMISSES WITHOUT PREJUDICE Ms. Bynum’s ADA retaliation claim in Count II. 15 a. The Court Reasonably Infers from Mr. Billett’s Alleged Epithets That Ms. Bynum’s Incident Report Constitutes Protected Activity
Ms. Bynum has alleged sufficient facts for the Court to
reasonably infer that DBH retaliated against her because she
engaged in statutorily protected activity. See Iqbal, 556 U.S.
at 678; see also Twombly, 550 U.S. at 556. Ms. Bynum argues—and
the Court agrees—that this Court can draw a reasonable inference
that Mr. Billett’s comment—“you need to go back to the South
where you came from,” FAC, ECF No. 14 at 5 ¶ 46—was a “racially
tinged” comment given the historical context of the phrase.
Pl.’s Objs., ECF No. 22 at 8. Ms. Bynum refers to the peculiar
institution of slavery that stains our nation’s history and the
well-documented plight of African-Americans in migrating from
the Jim Crow South to Northern cities in hopes of a better life.
Id. at 6-8. Ms. Bynum argues that “the cat call ‘go back to the
South’ is a racially tinged slur that conjures images of pitiful
African American refugees forced out of the South,” id. at 8,
and “the term ‘South’ is a thinly veiled reference to ignorant,
poor African Americans who are also referred to as ‘Field
Nig[**]s,’” id. at 6-7.
The District responds that Ms. Bynum’s objections are
“riddled with histrionics and irrelevant facts that are
unsupported by the record.” Def.’s Resp., ECF No. 24 at 2. The
16 District contends that Mr. Billett’s phrase—“go back to the
South where you came from”—cannot save Ms. Bynum’s retaliation
claim because it is not included in Count II, and Ms. Bynum did
not raise that argument in her opposition brief. Id. at 3. And
the District argues that Ms. Bynum fails to allege that
Mr. Billett’s “comment was related to her membership in a
protected class or that she complained about it.” Id.; see also
Def.’s Mem., ECF No. 15 at 6.
But Count II “adopts and incorporates all of the forgoing
allegations into [the Title VII retaliation] claim,” FAC, ECF
No. 14 at 9 ¶ 102, including the allegations in the “Facts
Common to All Claims” section, see id. at 3-8 ¶¶ 19-94, 9-11 ¶¶
102-122. At the motion to dismiss stage, the Court must construe
the operative complaint liberally in Ms. Bynum’s favor, view the
factual allegations therein as a whole, accept them as true, and
grant her the benefit of all inferences that can be derived from
the alleged facts. See Kowal, 16 F.3d at 1276. Contrary to the
District’s assertion, Ms. Bynum’s position is supported by
Supreme Court precedent. See Ash v. Tyson Foods, Inc., 546 U.S.
454, 456 (2006) (per curiam) (explaining that a white manager’s
use of the word “boy” to refer to African-American employees can
be evidence of racial animus).
In Ash v. Tyson Foods, Inc., two African-American men
worked as superintendents at a poultry plant, and they sought
17 promotions. Id. at 455. The white plant manager selected two
white males for the vacancies. Id. The petitioners asserted,
inter alia, Title VII claims, alleging that the defendant-
corporation discriminated against them based on their race. Id.
The Supreme Court noted that “there was evidence that [the]
plant manager, who made the disputed hiring decisions, had
referred on some occasions to each of the petitioners as ‘boy.’”
Id. at 456. The petitioners argued that the use of “boy” was
evidence of discriminatory animus. Id. In holding that the use
of the term “boy” may give rise to an inference of racial animus
under certain circumstances, the Supreme Court reasoned that
“[a]lthough it is true the disputed word will not always be
evidence of racial animus, it does not follow that the term,
standing alone, is always benign. The speaker’s meaning may
depend on various factors including context, inflection, tone of
voice, local custom, and historical usage.” Id.
Here, Mr. Billett made a series of comments to Ms. Bynum,
an African-American woman, and she alleges that “[Mr.] Billett
repeated [those] epithets several times,” id. at 5 ¶ 47
(emphasis added). It is plausible that Mr. Billett’s use of the
phrase “you need to go back to the South where you came from,”
FAC, ECF No. 14 at 5 ¶ 46, was not benign when construing the
allegations in the light most favorable to Ms. Bynum, see Kowal,
16 F.3d at 1276. Indeed, “[t]he phrase ‘go back to where you
18 came from’ has a similar historical context to the term ‘boy.’”
McCurdy v. Auburn Univ., No. 3:14CV226-MHT WO, 2015 WL 2064248,
at *5 (M.D. Ala. May 4, 2015) (analyzing failure-to-promote
claims under the same analytical framework for Title VII claims
and explaining that “[i]t would be unnatural phrasing, at best,
for a white manager to tell a black employee to ‘go back where
you came from’ and mean ‘return to your work in the
stockroom’”). The District does not offer a more likely
explanation that challenges the inference that the phrase “you
need to go back to the South where you came from” is a racially-
tinged comment. See Iqbal, 556 U.S. at 681.
b. The Court Reasonably Infers From the Alleged Facts That Ms. Bynum Opposed Mr. Billett’s Discriminatory Conduct
Viewing the factual allegations as a whole, the Court can
draw a reasonable inference from the alleged facts that
Ms. Bynum opposed what she perceived as racial discrimination
when she reported Mr. Billett’s conduct to her supervisor. See
FAC, ECF No. 14 at 3 ¶ 6, 5-6 ¶¶ 40-68, 10 ¶ 105, 11 ¶¶ 119-121.
The “opposition clause” in Title VII’s anti-retaliation
provision makes it “‘an unlawful employment practice for an
employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful employment
practice by this subchapter.’” Crawford v. Metro. Gov’t of
Nashville & Davidson Cty., Tenn., 555 U.S. 271, 274 (2009)
19 (quoting 42 U.S.C. § 2000e–3(a)). In Crawford, the Supreme Court
explained that the ordinary meaning of the term “oppose” is
“[t]o resist or antagonize . . .; to contend against; to
confront; resist; withstand.” 555 U.S. at 276 (citation
omitted). “An employee’s opposition to an employment practice is
protected under Title VII when the employee ‘reasonably and in
good faith believed [the practice] was unlawful under the
statute.’” Grosdidier v. Broad. Bd. of Governors, Chairman, 709
F.3d 19, 24 (D.C. Cir. 2013) (quoting McGrath v. Clinton, 666
F.3d 1377, 1380 (D.C. Cir. 2012)); see also Lott v. Not-for-
Profit Hosp. Corp., 319 F. Supp. 3d 277, 282 (D.D.C. 2018) (“The
employee’s ‘belief’ that the employer’s conduct was unlawful
need not be certain.”).
In this case, Magistrate Judge Meriweather found that
“Mr. Bynum has failed to plead sufficient facts to satisfy even
[the] modest threshold” that oppositional conduct is not
onerous. R & R, ECF No. 20 at 8. Magistrate Judge Meriweather
found that Ms. Bynum did not allege that she believed that
Mr. Billett’s conduct was discriminatory. Id. To support the
conclusion that Ms. Bynum’s operative complaint fails to indicate
that she complained about discriminatory conduct when she reported
Mr. Billett’s conduct, Magistrate Judge Meriweather cited Peters
v. District of Columbia, 873 F. Supp. 2d 158, 202 (D.D.C. 2012) and
Moore v. Office of the Architect of the Capitol, 828 F. Supp. 2d
20 254, 257 (D.D.C. 2011). R & R, ECF No. 20 at 8-9. Peters and Moore
are distinguishable from this case.
In Peters, the court found that the informal complaints of two
African-American employees to management did not constitute
protected activity. 873 F. Supp. 2d at 202. The plaintiffs
complained about a supervisor “assigning them too many cases and
then penalizing them for a backlog when other caseworkers were not
penalized.” Id. The court reasoned that “[w]hile informal
complaints to management may constitute protected activity, the
plaintiffs must clearly complain about discriminatory treatment.”
Id. The court explained that the plaintiffs did “not allege that
they complained about being targeted for [the] harsher treatment
due to their race, age or national origin or even in retaliation
for their prior complaints about her.” Id.
In Moore, a white male employee alleged that he was unlawfully
terminated in retaliation for “opposing defendant’s refusal to
accept ‘Outstanding’ ratings on performance evaluations for two
white men over the age of forty and a Guatemalan man over the age
of forty.” 828 F. Supp. 2d at 256. The court found that the
plaintiff “failed to allege that he ever communicated to his
supervisors that he was opposing what he believed to be
discriminatory conduct by them” because he “never told his
supervisors that he believed their rejection of his ‘Outstanding’
ratings was the result of discrimination based on race, age, or
nationality.” Id. at 257. The court further explained that the
21 plaintiff “concede[d] that he was silent as to his opposition to
defendant’s allegedly discriminatory practices.” Id.
Unlike the plaintiffs’ informal complaints in Peters, 873 F.
Supp. 2d at 202, Ms. Bynum filed an incident report, intended to
report the incident to the police, reported Mr. Billet’s “assault”
to her supervisor, and requested that DBH order Mr. Billett to not
harass, intimidate or annoy her following the “attack.” See FAC,
ECF No. 14 at 6 ¶¶ 57-59, 7 ¶ 69, 10 ¶¶ 104-105. And, unlike the
white male employee in Moore who conceded that he was silent as to
his opposition to his employer’s allegedly discriminatory
practices, see 828 F. Supp. 2d at 257, Ms. Bynum does not concede
that she was silent in opposing Mr. Billett’s epithets and his
behavior. Here, the operative complaint contains factual
allegations that support the inference that Ms. Bynum complained
to her supervisor that Mr. Billett’s words and actions were
discriminatory based on her race. See FAC, ECF No. 14 at 5 ¶¶
43-48, 6 ¶¶ 59-60, 7 ¶ 69, 10 ¶¶ 104-105, 11 ¶ 121. After she
received medical assistance for the incident at issue, Ms. Bynum
alleges that she returned to work on May 9, 2016. Id. at 6 ¶¶
61-63. On that same day, Ms. Bynum filed an EEOC charge of
discrimination. Id. at 8 ¶ 92.
Ms. Bynum’s opposition of Mr. Billet’s alleged
discriminatory conduct is similar to the plaintiff’s opposition
of discrimination in Bryant v. Pepco, 730 F. Supp. 2d 25, 31
22 (D.D.C. 2010). In Bryant, the plaintiff alleged that his
attendance at two informal meetings between management and other
African-American employees about the lack of overtime
compensation opportunities for them constituted protected
activity under Title VII. Id. at 27, 31. In rejecting the
defendant’s argument that the plaintiff had to allege that “he
said something at [those] meetings or that he did something more
than merely attend,” the court explained that the plaintiff
“specifically allege[d] that the particular meetings he attended
concerned allegations of racial discrimination” and that “his
attendance at them certainly could be viewed by his supervisors
as opposition to what he perceived as [the defendant’s]
discrimination against him and other [African-American
employees].” Id. at 31.
Like the plaintiff’s attendance at the meetings in Bryant,
Ms. Bynum’s actions of filing the incident report and reporting
the incident to her supervisor can be viewed by DBH as
opposition to what Ms. Bynum perceived as racial discrimination
given that it is plausible Mr. Billett’s comments were racial
epithets. See FAC, ECF No. 14 at 6 ¶ 59, 10 ¶¶ 104-105. The
alleged facts in this case present a stronger case than in
Bryant. Ms. Bynum alleges that Mr. Billett repeated “epithets”
several times during the incident at issue, id. at 5 ¶ 47; she
reported Mr. Billett’s “attack” to her supervisor, id. at 10 ¶¶
23 104-105; she filed an incident report, id. at 6 ¶ 59; and she
“asked [DBH] to order [Mr.] Billett not to harass, intimidate or
annoy [her],” id. at 7 ¶ 69. Viewing the factual allegations as
a whole, the Court can draw a reasonable inference from the
alleged facts that Ms. Bynum opposed what she perceived as
racial discrimination at DBH when she reported Mr. Billett’s
conduct to her supervisor. See id. at 3 ¶ 6, 5-6 ¶¶ 40-60, 10 ¶¶
104-105, 11 ¶¶ 119-121.
Although Ms. Bynum does not use the exact words that she
“believed” that Mr. Billett’s conduct was discriminatory in the
operative complaint, R & R, ECF No. 20 at 8, the United States
Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) has made clear that “no ‘magic words’ are required,”
Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). The
D.C. Circuit has instructed that “the complaint must in some way
allege unlawful discrimination, not just frustrated ambition.” Id.
Ms. Bynum has alleged more than “just frustrated ambition” based
on the alleged facts that she opposed Mr. Billett’s epithets at
DBH. See id. Ms. Bynum specifically alleges that Mr. Billett
shouted, among other things, that she needed to “go back to the
South where [she] came from.” FAC, ECF No. 14 at 5 ¶ 46. As
previously explained, Mr. Billett’s use of that phrase may
demonstrate racial animus based on multiple factors, including
the phrase’s historical usage, its context, Mr. Billett’s
24 inflection, and his tone of voice. See Ash, 546 U.S. at 456
(explaining that modifiers or qualifications of racially neutral
words are not necessary in every circumstance to render the word
probative of bias). Mr. Billett’s epithets targeted at
Ms. Bynum, an African-American woman, support the reasonable
inference that she reasonably believed Mr. Billett’s conduct was
racially discriminatory when she reported the incident to her
supervisor. The Court therefore finds that Ms. Bynum has alleged
sufficient facts to give rise to a reasonable inference of
retaliation under Title VII. Accordingly, the Court rejects the
R & R’s recommendation to dismiss without prejudice Ms. Bynum’s
retaliation claim, and DENIES the District’s Partial Motion to
Dismiss as to Count II.
C. Hostile Work Environment Claim
The Court next turns to Ms. Bynum’s harassment claim in
Count IV, which the R & R correctly construes as a hostile work
environment claim. See, e.g., R & R, ECF No. 20 at 11 (citing
Knight v. Mabus, 134 F. Supp. 3d 348, 356 (D.D.C. 2015)); FAC,
ECF No. 14 at 14 ¶¶ 147-48; Pl.’s Objs., ECF No. 22 at 9-12.
To state 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 the plaintiff’s protected status; (4) the harassment affected a term, condition, or
25 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.
Gordon v. Beers, 972 F. Supp. 2d 28, 36 (D.D.C. 2013). “Although
a plaintiff need not plead a prima facie case of hostile work
environment in the complaint, the alleged facts must support
such a claim.” McKeithan v. Boarman, 803 F. Supp. 2d 63, 69
(D.D.C. 2011) (citation and internal quotation marks omitted).
Ms. Bynum must allege that her “employer subjected [her] to
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment.”
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(citations and internal quotation marks omitted).
Here, Count IV alleges that Ms. Bynum was “harassed” at DBH
in three ways: (1) “[b]y permitting [Mr.] Billet[t] to denigrate
[Ms. Bynum] for more than ten minutes in a small meeting room,”
FAC, ECF No. 14 at 14 ¶ 145; (2) “[b]y permitting
[Mr.] Billet[t] to stalk [her] while she worked,” id. at 14 ¶
146; and (3) “[b]y threatening [her] with sanctions, including
termination of employment, without just cause,” id. at 14 ¶ 149.
Count IV asserts that Ms. Bynum was subjected to an “abusive
work environment” at DBH in two ways: (1) “[b]y refusing to move
[Ms. Bynum] to an area or a new assignment where she could avoid
26 unnecessary contact with [Mr.] Billet[t],” id. at 14 ¶ 147; and
(2) “[b]y issuing [Ms. Bynum] a warning/reprimand letter,” id.
at 14 ¶ 148. Count IV “adopts and incorporates all of the
[previous] allegations into [the hostile work environment]
claim.” Id. at 14 ¶ 144.
Magistrate Judge Meriweather recommends that Count IV be
dismissed without prejudice because Ms. Bynum has failed to
allege facts to support the third element of the hostile work
environment claim: the alleged harassment occurred because of
Ms. Bynum’s protected status. R & R, ECF No. 20 at 13.
Magistrate Judge Meriweather recognized that Ms. Bynum, an
African-American woman, is a member of two protected classes.
Id. at 11 (citing 42 U.S.C. § 2000e-2(a)(1)). But Magistrate
Judge Meriweather refused to “simply assume that . . . a
connection [between the alleged harassment and Ms. Bynum’s race
or sex] exists.” Id. at 11-12 (collecting cases). Magistrate
Judge Meriweather disagreed with Ms. Bynum’s argument that the
operative “complaint’s incorporation by reference of allegations
made earlier in the complaint . . . purportedly demonstrate that
she was ‘harassed . . . in numerous ways in connection with her
protected activity.’” Id. at 12 (quoting Pl.’s Opp’n, ECF No. 17
at 11). In considering Ms. Bynum’s cited allegations, Magistrate
Judge Meriweather found that none of them “establish a basis to
infer that the alleged harassment at issue in Count IV was based
27 on her race or sex.” Id.; see also FAC, ECF No. 14 at 4 ¶¶ 24-
27, 4 ¶¶ 29-32, 5 ¶¶ 44-48, 6-7 ¶¶ 68-74, 7-8 ¶¶ 79-90.
Magistrate Judge Meriweather found that Ms. Bynum fails to
“connect the alleged harassment to her race or sex” because she
does not “articulate any reason—discriminatory or otherwise—for
the alleged harassment.” R & R, ECF No. 20 at 13.
Ms. Bynum argues that the R & R disregards the previous
factual allegations in the operative complaint that were
incorporated in Count IV. Pl.’s Objs., ECF No. 22 at 9-10. To
support her objection, Ms. Bynum points to: (1) her EEOC charge
of discrimination “in response to the harassment that was
inflicted upon her by [Mr.] Billet[t] and [DBH],” id. at 10
(citing FAC, ECF No. 14 at 8 ¶ 92); (2) her averment that the
“retaliatory actions of [DBH] were proximate to [her] protected
activity,” id. (citing FAC, ECF No. 14 at 10 ¶ 109); and (3) her
allegation that DBH’s “motivation was to retaliate against [her]
for . . . engaging in protected activity,” id. (citing FAC, ECF
No. 14 at 11 ¶ 119). Ms. Bynum argues that the operative
complaint alleges that DBH engaged in discrimination based on
her race, sex, and disability. Id. Ms. Bynum contends that the
allegations placed the District on “notice that [Mr.] Billett
and Dr. Wright were engaging in conduct that was proximately
related to [Ms. Bynum’s] numerous complaints of discrimination,”
which were “expressly based on [her] race and sex.” Id. at 11.
28 The District does not dispute that Ms. Bynum is a member of
two protected classes based on her race and sex. Def.’s Resp.,
ECF No. 24 at 3. Rather, the District argues that the operative
complaint does not contain facts either alleging or supporting
an inference that the alleged harassment occurred because of
Ms. Bynum’s race or gender. Id. at 3-4. The District contends
that neither Ms. Bynum’s EEOC charge of discrimination nor her
argument that DBH engaged in discrimination based on her race,
sex, and disability “save” her hostile work environment claim.
Id. at 4. The District further contends that “[a]llowing
[Ms. Bynum’s] claim to proceed on this conclusory allegation
would require the Court to impermissibly assume a link between
the claimed harassment and [her] membership in a protected
class.” Id. But, as explained below, a reasonable inference can
be drawn from the alleged facts, viewed as a whole, that
connects the alleged harassment and Ms. Bynum’s race.
1. The Court Reasonably Infers From the Alleged Facts That Ms. Bynum Was Harassed Because of Her Race
Ms. Bynum alleges that DBH created a hostile work
environment by: (1) permitting Mr. Billett to assault her on
March 29, 2016; (2) allowing Mr. Billett to stalk her while she
worked at DBH; (3) refusing to transfer her or assign her to a
different program area; and (4) threatening her with termination
or sanctions without just cause. FAC, ECF No. 14 at 5-6 ¶¶ 33-
29 59, 10 ¶ 111, 14 ¶¶ 145, 147, 149-51; see also R & R, ECF No. 20
at 10. These alleged events flow from Mr. Billett’s conduct on
March 29, 2016, and these allegations have a connection to the
alleged harassment because Mr. Billett allegedly shouted a
racially-tinged comment and epithets during the alleged assault
on the day of the incident at issue. See FAC, ECF No. 14 at 5 ¶¶
43-47, 6-7 ¶¶ 67-70, 14 ¶¶ 144-150.
Although the Court acknowledges that Ms. Bynum could have
stated her hostile work environment claim more artfully,
Ms. Bynum does allege facts from which a reasonable inference
can be drawn that the post-assault harassment occurred because
of Ms. Bynum’s race. The alleged facts, however, do not support
an inference that the alleged hostility is linked to Ms. Bynum’s
sex. The Court declines to adopt the R & R’s conclusion that the
alleged facts do not connect the alleged harassment to
Ms. Bynum’s race, but adopts the conclusion that the alleged
facts fail to connect the alleged harassment to her sex. See
R & R, ECF No. 20 at 13.
2. Ms. Bynum’s Allegations Are Sufficient to State a Hostile Work Environment Claim
Having found that a reasonable inference can be drawn from
the alleged facts that the alleged hostility occurred because of
Ms. Bynum’s race, the Court next considers whether the alleged
harassment is “sufficiently severe or pervasive to alter the
30 conditions of [Ms. Bynum’s] employment and create an abusive
working environment.” Baloch, 550 F.3d at 1201. The Court must
evaluate “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.” Id.; see also Baird, 792 F.3d at 168 (“A hostile
environment consists of several individual acts that ‘may not be
actionable on [their] own’ but become actionable due to their
‘cumulative effect.’” (quoting Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115 (2002)). Here, Ms. Bynum’s alleged
incidents of harassment are sufficient to state a hostile work
environment claim. See FAC, ECF No. 14 at 5-6 ¶¶ 43-68, 7 ¶¶ 69-
82, 8 ¶¶ 83-94, 14 ¶¶ 144-151.
To begin, “isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998) (emphasis added); see also Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (holding
that a jury could find the “uses of the ‘porch monkey’ epithet—
whether viewed as a single incident or as a pair of discrete
instances of harassment—were severe enough to engender a hostile
work environment”). In George v. Leavitt, 407 F.3d 405, 416–17
(D.C. Cir. 2005), the D.C. Circuit held that statements by three
employees over a six-month period telling a plaintiff to “go
31 back where she came from,” separate acts of yelling and
hostility, and allegations that the plaintiff was not given the
type of work she deserved, were isolated instances that did not
rise to the level of severity necessary to find a hostile work
environment. Seven years later, however, the D.C. Circuit
recognized that the “single incident [of using the n-word] might
well have been sufficient to establish a hostile work
environment.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C.
Cir. 2013) (per curiam); id. at 580 (Kavanaugh, J., concurring)
(“[I]n my view, being called the n-word by a supervisor—as
[plaintiff] alleges happened to him—suffices by itself to
establish a racially hostile work environment.”).
In Ayissi-Etoh, an African-American employee brought
various claims against his employer, including a hostile work
environment claim under 42 U.S.C. § 1981. Id. at 574. 5 The
plaintiff alleged that, after receiving a promotion, but being
denied a salary increase, his manager told him: “For a young
black man smart like you, we are happy to have your expertise; I
think I’m already paying you a lot of money.” Id. The plaintiff
also alleged that the vice president, on a separate occasion,
shouted at him to “get out of my office nigger.” Id. The
5 Courts analyze hostile work environment claims under Section 1981 and Title VII using the same analytical framework. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 n.3 (D.C. Cir. 2000). 32 plaintiff filed an EEOC complaint, his supervisor allegedly
instructed him to either “drop the racial discrimination claim
or be fired,” and the plaintiff was later terminated. Id.
The D.C. Circuit held that the district court erred by
granting summary judgment to the employer on the hostile work
environment claim, concluding that “a reasonable jury could find
[the manager’s] and [vice president’s] behavior sufficiently
severe or pervasive as to create a hostile work environment.”
Id. at 577. The D.C. Circuit reasoned that the use of the n-word
alone might have been sufficient to establish a hostile work
environment claim, but the plaintiff alleged more than the
“deeply offensive racial epithet.” Id. The plaintiff also
alleged: (1) the “young black man” statement; (2) the plaintiff
“having to continue working with [the manager] for nearly three
months, until [the manager] was ultimately fired”; and (3) the
plaintiff being forced to continue working with the manager
“made [the plaintiff] ill and caused him to miss work on at
least one occasion.” Id.
Like the plaintiff in Ayissi-Etoh who missed work and
became ill after being forced to work with the manager who used
the deeply offensive racial epithet, see id., Ms. Bynum alleges
that Mr. Billett’s behavior, including his alleged racially-
tinged comment to “go back to the South where you came from,”
resulted in her missing twenty-eight days of work, prompted her
33 to seek medical assistance, and caused her psychic injury, see
FAC, ECF No. 14 at 6 ¶¶ 61-66. According to Ms. Bynum, she
suffered emotional distress and a panic attack after the alleged
incident with Mr. Billett. Id. at 6 ¶¶ 52-53. As in Ayissi-Etoh,
Ms. Bynum alleges that she was forced to work in the program
area where Mr. Billett threatened her with “unnecessary
contact,” id. at 6 ¶ 68, and Mr. Billett “kept coming around[]
[her] desk” even after her multiple requests to DBH for a
transfer to an appropriate program area, id. at 7 ¶ 75.
At the motion to dismiss stage, Ms. Bynum’s allegations of
Mr. Billett’s behavior, the denial of her transfer request, the
warning, and the reprimand letter sufficiently support that
there was a significant level of offensiveness at DBH.
Construing Mr. Billett’s comments and the post-incident actions
in the light most favorable to Ms. Bynum as reflecting
discriminatory animus, cf. Ash, 546 U.S. at 456, the Court can
infer that Mr. Billett’s conduct and Dr. Wright’s actions were
so extreme and pervasive that they altered the conditions of Ms.
Bynum’s employment, see Rodgers v. W.–S. Life Ins. Co., 12 F.3d
668, 675 (7th Cir. 1993) (“Perhaps no single act can more
quickly alter the conditions of employment and create an abusive
working environment than the use of an unambiguously racial
epithet . . . by a supervisor in the presence of his
subordinates.” (citation and internal quotation marks omitted)).
34 Ms. Bynum alleges that Mr. Billett’s presence near workspace her
after the incident was stressful, intimidating, and annoying.
FAC, ECF No. 14 at 7 ¶¶ 69, 77. Indeed, Ms. Bynum alleges that
the actions that occurred on the day of the incident and on the
day that she received the warning and reprimand caused her to
“relapse in her mental health treatment.” Id. at 8 ¶ 90. DBH
allegedly did nothing in response to the alleged harassment. See
id. at 14 ¶ 146. The Court therefore finds that Ms. Bynum’s
hostile work environment claim passes muster. Cf. Ayissi-Etoh,
712 F.3d at 577. Accordingly, the Court DENIES the District’s
Partial Motion to Dismiss as to Count IV. 6
IV. Conclusion
For the reasons set forth above, the Court ADOPTS IN PART
and REJECTS IN PART the R & R, GRANTS IN PART and DENIES IN PART
the District’s Partial Motion to Dismiss, DISMISSES WITHOUT
PREJUDICE Ms. Bynum’s retaliation claim under the ADA, and
DISMISSES WITH PREJUDICE Ms. Bynum’s claims against DBH. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge January 30, 2020
6 Having found that Ms. Bynum’s Title VII claims survive the District’s partial motion to dismiss, the Court need not address Ms. Bynum’s request for leave to amend the operative complaint pursuant to Federal Rule of Civil Procedure 15. See Pl.’s Objs., ECF No. 22 at 9, 11. 35