UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KEISHA JONES,
Plaintiff, Civil Action No. 23-1488 v. Judge Beryl A. Howell DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiff Keisha Jones initiated this suit against her former employer, the District of
Columbia (“District”), alleging, in ten counts, racial, gender, and disability discrimination and
retaliation, in violation of both federal and local laws, including 42 U.S.C. §§ 1981, 1983, Title
VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., the
Americans with Disabilities Act of 1967 (“ADA”), 42 U.S.C. §§ 126, 12101 et seq., and the
District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq. See,
generally, Compl., ECF No. 1. Pending before the Court are two motions: defendant seeks
dismissal of each of plaintiff’s claims on various grounds, or, in the alternative, partial summary
judgment on plaintiff’s DCHRA gender and disability retaliation claims, in Counts VI and VIII,
Def.’s Mot. to Dismiss or for Partial Summ. J. (“Def.’s Mot.”) at 1, ECF No. 8, and plaintiff
seeks discovery, under Federal Rule of Civil Procedure 56(d), before resolution of the alternative
summary judgment motion, Pl.’s Mot. Pursuant to Rule 56(d) to Seek Discovery to Properly
Respond to Def.’s Mot. for Summ. J. (“Pl.’s Discovery Mot.”) at 1, ECF No. 13. For the reasons
discussed below, defendant’s motion is granted in part and denied in part, with plaintiff’s claims
in Counts I, II, V, VII, and IX dismissed, and this case proceeding with only the claims of gender
discrimination and retaliation, under Title VII and the DCHRA, in Counts III, IV, and VI, and
1 disability retaliation and failure to accommodate, under the DCHRA, in Counts VIII and X.
Plaintiff’s motion for discovery is denied as moot.
I. BACKGROUND
The factual background and procedural history of the instant matter are summarized
below.
A. Factual Background
Plaintiff, an African American female, was employed at the Washington D.C.
Metropolitan Police Department (“MPD”) for approximately seventeen years, between 2006 to
March 21, 2023, when she was terminated. Compl., Introduction at 1–2, ¶ 49. In 2006, she was
hired as a district property technician at the General Schedule (“GS”) six level, id. ¶ 1, until
several years later, when she received a GS-7 grade increase, id. ¶ 6. After she was denied a
promotion to Lead Property Technician, plaintiff engaged in a mediation and reached a
settlement with MPD, on July 30, 2020, “that placed her into a management role,” id., Intro. at 2;
id. ¶¶ 8–15, as a Records Manager, a job she apparently began on February 28, 2021, id, Intro. at
2. 1 Her claims stem from this latter period of her employment when she had a management role.
After being placed in the management role, plaintiff alleges that she “was subjected to
noticeable and impactful disparate treatment.” Id. ¶ 16. As examples of such treatment, plaintiff
alleges that she “was required to provide documentation and proof of the need to attend physical
therapy for a work related injury, and documentation proving her academic studies, when her
male colleagues were not required to do so.” Id. According to plaintiff, her disability “caused
1 Plaintiff’s complaint provides seemingly contradictory timelines about when she applied for promotions, went to mediation, and eventually was promoted. See Compl. ¶¶ 8–14 (stating that MPD’s misrepresentations about the department’s hiring freeze kept plaintiff out of the Records Manager role from July 2020 to February 2021, but also stating that she only applied for the position leading to the mediation and settlement “on or about February 20, 2021”). Nonetheless, plaintiff apparently was placed into the Records Manager role on February 28, 2021, when MPD implemented the terms of its settlement with plaintiff. Id., Intro. at 2.
2 her severe pain and numbness in her hands and forearms” because of the amount of typing that
she did and “the physical orientation of her workstation.” Id. ¶ 17.
According to plaintiff’s complaint, she “filed an EEOC charge related to this disparate
treatment on or about March 3, 2021 (charge No. 570-2022-0026),” less than a week after she
began her new job as Records Manager. Id. ¶19. This EEOC charge alleged that “she was being
treated unfavorably because of her gender, that she was being subjected to a hostile work
environment, and that MPD was discriminating against her because of her disability.” Id. 2 After
filing this EEOC charge, plaintiff says that her work environment deteriorated and she “was
subjected to near daily insults, bullying, harassment, denigration, frivolous and unfounded
investigations, and disparate terms and conditions of employment.” Id. ¶¶ 21–22.
In scattershot examples without dates, plaintiff alleges instances of hostile treatment and
altercations she experienced at the hands of both co-workers and more senior personnel. Several
of these examples involve plaintiff’s supervisor, Bernadette Green. See id. ¶ 21. 3 For example,
plaintiff’s medical provider recommended that she telework two days per week to relieve stress
on her hands and forearms, and although she was approved to do this as a reasonable
accommodation, that approval was “immediately disapproved” by Ms. Green “within a few
hours of the approval,” with “[n]o explanation or excuse.” Id. ¶¶ 23–24 (emphasis in original).
2 Defendant provides a copy of plaintiff’s EEOC charge reflecting her signature on December 20, 2021, that was received on December 20, 2021. Def.’s Mot., Ex. 1, Pl.’s EEOC Charge No. 570-2022-00026, ECF No. 8-1. In general, a court must treat a Rule 12(b)(6) motion as a Rule 56 motion for summary judgment if it considers “matters outside the pleadings.” Fed. R. Civ. P. 12(d). This conversion rule is not triggered, however, when a court considers “any documents either attached to or incorporated in the complaint and matters of which the court may take judicial notice.” N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020) (alterations in original accepted and citation omitted). This rule is also not triggered when a court considers documents attached to motions to dismiss that are referred to in the complaint and are central to the plaintiff’s claim, even when the documents are produced by the defendant. See, e.g., Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999) (finding that “the various letters and materials produced in the course of plaintiff’s discharge proceeding . . . fall under this exception and may be considered”), aff’d, 38 F. App’x 4 (D.C. Cir. 2002). 3 Defendant clarifies that this supervisor’s name is “Greene.” Def.’s Mot. at 3 n.2.
3 Plaintiff alleges that this denial was motivated because of defendant’s “animus towards her.” Id.
¶ 26. “Plaintiff was subjected to comments from her supervisors attacking her character and
bullying her,” allegedly “labeling Plaintiff as a troublemaker and someone unworthy of the
common courtesy of a greeting,” although plaintiff only mentions Ms. Green by name in her
complaint as one of her supervisors. Id. ¶ 27. Among the comments, plaintiff accuses Ms.
Green of making are: “negative comments about what Plaintiff was wearing, her appearance and
her body,” id. ¶ 35; she “would scream at Plaintiff or speak to Plaintiff in a harsh and
condescending tone, and would model for the other employees that Plaintiff did not need to be
treated with respect,” id. ¶ 36; and “tell[] Plaintiff’s co-workers how much money Plaintiff made
and what her grade and step was, for the express purposes of undermining Plaintiff’s ability to
manage her staff,” id. ¶ 37.
Plaintiff also alleges that Ms. Green refused to input her work hours, which caused her
stress that she would not be paid, and required her to “chase down Ms. Green and beg for her
time to be input, which Ms. Green would do at the very last minute.” Id. ¶ 28. This caused
plaintiff’s pay to be delayed on at least two occasions. Id. ¶ 29. Ms. Green also allegedly
“refused to execute her supervisory responsibilities with respect to Plaintiff,” which required
plaintiff to talk to the lieutenants when she needed time off or a change in schedule. Id. ¶ 30.
Additionally, plaintiff “was denied bereavement leave when a family member died” and instead
was instructed “she needed to prove the death of the family member, which no other person in
her department was ever required to do.” Id. ¶ 33.
Plaintiff’s troubles extended further than her relationship with Ms. Green, however, as
she alleges that a co-worker, Monica Campbell, threatened physically to attack her, but “[r]ather
than admonishing Ms. Campbell, Defendant attempted to suspend Plaintiff, and only because
4 Plaintiff was represented by legal counsel, did Defendant ultimately decide that disciplinary
action was unwise, and instead gave Plaintiff a letter of counseling.” Id. ¶ 32. According to
plaintiff, no action was ever taken with respect to Ms. Campbell for this incident. Id. Further,
plaintiff alleges that Lieutenant Stephen Amadeo once “detained Plaintiff in the office so that he
could scream at, and chastise her in front of others, for completing paperwork in accordance with
directions from Ms. Green.” Id. ¶ 34.
Plaintiff alleges that, in October and November 2022, she complained about this alleged
mistreatment to Assistant Chief Morgan Kane, Ms. Simpson, and Chief of Diversity Pamela
Smith—without any details about how the complaints were communicated, either orally or in
writing, together or individually—but nothing was done. Id. ¶ 40. Instead, plaintiff alleges that
defendant then “manufactured a reason to terminate Plaintiff.” Id. ¶ 43. After an anonymous tip
that “Plaintiff was ‘doing favors’ for security officers in the gun registry office,” id. ¶ 44,
plaintiff claims she was investigated and found not to have done anything wrong, “[b]ut rather
than close the investigation, Defendant kept the scrutiny on Plaintiff in order to catch her in some
transgression,” id. ¶ 45. In November 2022, plaintiff was informed that her time and attendance
records were being investigated, id. ¶ 46, when, according to plaintiff, changing the topic of the
open investigation was a violation of MPD’s policies, id. ¶ 47.
Plaintiff was terminated on or about March 21, 2023, but “no reason was given for her
termination letter, and she was never provided any findings with respect to her time and
attendance, or given any opportunity to challenge such findings.” Id. ¶ 49. Plaintiff claims that
because of her race, she was treated more harshly than two colleagues who worked at her same
level, including a white male and a Hispanic female, id. ¶ 51, and asserts this was part of MPD’s
pattern and practice of devaluing and discriminating against Black women and women of color,
5 id. ¶ 63. As support for this assertion, she incorporates racial discrimination allegations made by
ten MPD employees who are Black women in another case pending before a different Judge. Id.
¶ 53 (citing Brinkley v. District of Columbia, Case No. 1:21-CV-01537). Alleging that, by 2022,
the Brinkley case put the Mayor and MPD’s Chief on notice that the department’s treatment of
Black women was inappropriate, id. ¶ 54, plaintiff insists that the Mayor and MPD Chief were
the driving force behind the retaliation and discrimination to which she was subjected, id. ¶¶ 56–
57, 64–65.
B. Procedural Background
Approximately two months after her termination, plaintiff filed the instant complaint,
alleging in ten counts, racial discrimination and retaliation, in violation of 42 U.S.C. §§ 1981,
1983 (Counts I and II), gender discrimination and retaliation, in violation of Title VII and the
DCHRA (Counts III–VI), and disability retaliation and failure to accommodate, in violation of
the ADA, 42 U.S.C. §§ 126, 12101 et seq., and the DCHRA (Counts VII–X). See generally
Compl. As relief, plaintiff seeks “compensatory damages of not less than $3,000,000.00,” as
well as “costs, fees, attorney’s fees and interest.” Id. ¶ 132.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “the complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v.
Moss, 572 U.S. 744, 757–58 (2014) (citation omitted). A claim is facially plausible when the
plaintiff pleads factual content that is more than “‘merely consistent with’ a defendant’s liability”
and “allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)); see also Banneker Ventures, LLC v. Graham, 798 F.3d
6 1119, 1129 (D.C. Cir. 2015) (“Plausibility requires more than a sheer possibility that a defendant
has acted unlawfully.” (citation omitted)).
In deciding a motion under Rule 12(b)(6), a court must consider the whole complaint,
accepting all factual allegations in the complaint as true, even if doubtful in fact, and construing
all reasonable inferences in the plaintiff’s favor. Twombly, 550 U.S. at 555; see also Atchley v.
AstraZeneca UK Ltd., 22 F.4th 204, 210 (D.C. Cir. 2022). A court, however, does not “accept
inferences drawn by a plaintiff if such inferences are unsupported by the facts set out in the
complaint.” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (alterations in original
accepted and citation omitted).
B. Rule 56
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Hall & Assocs. v. Env’t Prot. Agency, 956 F.3d 621,
629 (D.C. Cir. 2020) (quoting Fed. R. Civ. P. 56(a)). Summary judgment is properly granted
against a party who, “after adequate time for discovery and upon motion . . . fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The moving party bears the burden to demonstrate the “absence of a genuine issue
of material fact” in dispute, id. at 323, while the nonmoving party must present specific facts
supported by materials in the record that would be admissible at trial and that could enable a
reasonable jury to find in its favor, see Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015)
(noting that, on summary judgment, the appropriate inquiry is “whether, on the evidence so
viewed, a reasonable jury could return a verdict for the nonmoving party” (citation omitted)).
7 In evaluating a motion for summary judgment “courts may not resolve genuine disputes
of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 572 U.S. 650, 656
(2014), and “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor,” id. at 651. Courts must avoid making “credibility determinations or
weigh[ing] the evidence,” since “[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Mayorga v. Merdon, 928 F.3d 84, 94 (D.C. Cir. 2019) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted)); see also Burley v. Nat’l Passenger
Rail Corp., 801 F.3d 290, 295–96 (D.C. Cir. 2015).
III. DISCUSSION
Defendant seeks dismissal of all ten of plaintiff’s claims, arguing the Complaint fails
plausibly to allege that the District has municipal liability as to race discrimination and
retaliation, in Counts I and II; that plaintiff suffered an adverse employment action because of
her gender, in Counts III and IV; that she suffered a hostile work environment due to her gender
and disability, in Counts V through VIII; and that she could perform the necessary functions of
her job with a reasonable accommodation, in Count X. See generally, Def.’s Mot. Further,
defendant contends that plaintiff failed administratively to exhaust her remedies before claiming
retaliation, under Title VII, due to her gender and disability and failure to accommodate her
disability, under the ADA, in Counts V, VII, and IX, requiring dismissal of these claims on this
ground alone. Id. at 15–18. In the alternative, defendant moved for summary judgment as to
plaintiff’s DCHRA claims in Counts VI and VIII of gender and disability-based retaliation, on
the ground that plaintiff failed to prove a causal connection between her protected activity and
8 any adverse employment action. Id. at 18. For the following reasons, defendant’s motion to
dismiss Counts I, II, V, VII, and IX is warranted, and this motion is otherwise denied.
A. Claimed Race Discrimination and Retaliation (Counts I and II)
Defendant seeks dismissal of plaintiff’s claims, in Counts I and II, that she was subject to
race discrimination and retaliation, respectively, in violation of 42 U.S.C. § 1981 and enforced
under 42 U.S.C. § 1983, due to failure plausibly to allege municipal liability. 4
In a Section 1983 suit, alleging violations of constitutional rights by an individual acting
under color of state law, the District, as a municipality, “cannot be held liable solely because it
employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)
(emphasis in original). Thus, the law is well settled that “[l]ocal governments [] are not liable for
injuries inflicted solely by their employees or agents; the government must be the ‘moving force’
behind the violation.” Frederick Douglass Found., Inc. v. District of Columbia, 82 F.4th 1122,
1136 (D.C. Cir. 2023) (quoting Monell, 436 U.S. at 694).
To succeed on a Section 1983 claim against a municipality, the plaintiff must show both
a predicate violation of some right, privilege, or immunity secured by the Constitution or laws of
the United States, see 42 U.S.C. § 1983, and “that the municipality’s custom or policy caused the
violation.” Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004) (citing Collins v.
City of Harker Heights, 503 U.S. 115, 123–24 (1992)). “While Congress never questioned its
power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its
constitutional power to impose such liability in order to oblige municipalities to control the
conduct of others.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in
4 Plaintiff asserted no claim of race discrimination and retaliation under Title VII.
9 original). “The ‘official policy’ requirement was intended to distinguish acts of the municipality
from acts of employees of the municipality, and thereby make clear that municipal liability is
limited to action for which the municipality is actually responsible.” Id. (emphasis in original).
Acknowledging this requirement, plaintiff contends that “she can articulate a policy or
practice that forms the basis of the discrimination she endured.” Pl.’s Opp’n to Def.’s Mot. to
Dismiss or for Partial Summ. J. (“Pl.’s Opp’n”) at 6, ECF No. 12. A plaintiff may establish that
a municipality’s custom or policy caused the constitutional violation at issue by demonstrating:
(1) “the explicit setting of a policy by the government that violates the Constitution,” (2) “the
action of a policy maker with the government,” (3) “the adoption through a knowing failure to
act by a policy maker of actions by his subordinates that are so consistent that they have become
custom,” or (4) “the failure of the government to respond to a need (for example, training of
employees) in such a manner as to show deliberate indifference to the risk that not addressing the
need will result in constitutional violations.” Baker v. District of Columbia, 326 F.3d 1302, 1306
(D.C. Cir. 2003) (internal citations and quotation marks omitted).
Plaintiff makes no allegation about an “explicit setting of a policy” violative of the
Constitution, instead invoking the names of the District’s policymakers and accusing them of
“callous indifference” and being the “driving force behind” plaintiff’s claimed disparate
treatment on the basis of race, see, e.g., Compl. ¶¶ 64–66, 68, and also using language regarding
“MPD’s custom and practice,” id. ¶ 63, in an effort to trigger other prongs for municipal liability.
Defendant counters that for claims of municipal liability to survive plaintiff “must allege
concentrated, fully packed, precisely delineated scenarios as proof that an unconstitutional policy
or custom exists” in order to satisfy one of these requirements, Def.’s Mot. at 9 (quoting Page v.
Mancuso, 999 F. Supp. 2d 269, 284 (D.D.C. 2013)) (internal quotation marks omitted), and,
10 here, plaintiff’s allegations are too “conclusory” to establish any unconstitutional municipal
policy or custom or deliberate indifference to constitutional violation, id. at 9–13. At most,
plaintiff alleges merely isolated instances of alleged disparate treatment by supervisors and co-
workers, which are insufficient to impose municipal liability under § 1983, because “[w]ere it
otherwise, nearly every act could impute Section 1983 liability to the government,” id. at 10
(quoting Hamilton v. District of Columbia, 720 F. Supp. 2d 102, 113 (D.D.C. 2010)).
To show that her claims brought under § 1983 extend more broadly than just to her,
plaintiff alleges that “she has been victimized by MPD’s custom and practice of devaluing,
denigrating and subjugating Black women and women of color, and she incorporates and
references the allegations in Brinkley,” Compl. ¶ 63, “which over the course of a 200+ page
Complaint filed in this Court in 2021, outlines decades of disparate and hostile treatment of
African American women at MPD,” Pl.’s Opp’n at 8 (emphasis omitted). 5 Plaintiff further
asserts that “Mayor Bowser and Chief Contee, both of whom are ultimate decision makers, were
on notice in early 2022 that MPD’s personnel policies and practices are seriously out of
compliance with EEOC regulations due to an external investigation that so stated, and opted to
do nothing about it.” Compl. ¶ 64.
The Supreme Court has interpreted the term “policymaker” in the context of municipal
liability narrowly, noting that “when a subordinate’s decision is subject to review by the
municipality’s authorized policymakers,” those policymakers “have retained the authority to
measure the official’s conduct for conformance with their policies.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988) (emphasis in original). In this Circuit, courts “have held
5 The Brinkley case relied upon by plaintiff was filed by the same plaintiff’s counsel as the instant action, and the District’s Partial Motion to Dismiss, which is predicated in part on the ground that plaintiffs failed to prove municipal liability, has not been resolved in that case. See Def.’s Mot. for Partial Dismissal of Am. Compl. or for Partial Summ. J. at 46–48, Brinkley v. District of Columbia, 21-cv-1537, ECF No. 33.
11 that a final policy maker ‘typically must be at least an agency head or the governing body of an
agency.’” Allen–Brown v. District of Columbia, 54 F. Supp. 3d 35, 42 (D.D.C. 2014) (quoting
Coleman v. District of Columbia, 828 F. Supp. 2d 87, 91 (D.D.C. 2011)). This requirement is in
accord with the D.C. Circuit’s holding in Triplett v. District of Columbia, that “[t]he only acts
that count” for Monell purposes “are ones by a person or persons who ‘have final policymaking
authority [under] state law.’” 108 F.3d 1450, 1453 (D.C. Cir. 1997) (quoting Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 737 (1989)) (alteration in original).
Perhaps recognizing this limit on municipal liability, plaintiff alleges that the Mayor and
MPD Chief Contee had ultimate decision-making authority and were the cause of her
discrimination. Compl. ¶ 64. In the District, the Mayor is ultimately responsible for the police
department, see D.C. Code § 5–101.03, and the Mayor appoints a Chief of Police, “with the
advice and consent of the [City] Council,” D.C. Code § 5–105.01(a–1)(1), to administer the
police department. All police officers are required to “respect and obey the Chief of Police as
the head and chief of the police force, subject to the rules, regulations, and general orders of the
Council of the District of Columbia and the Mayor of the District of Columbia.” D.C. Code § 5–
127.03. Thus, by law, police officers below the level of the Chief of Police are subordinates
whose “decision[s are] subject to review by the municipality’s authorized policymakers.” See
Praprotnik, 485 U.S. at 127.
Set against that legal background, the actions alleged to have been taken by Ms. Green,
Ms. Simpson, and other MPD employees or supervisors fail to satisfy the prerequisites for
municipal liability to sustain a Monell claim. Only plaintiff’s conclusory statements implicating
Chief Contee and Mayor Bowser can contribute to plaintiff’s case in this inquiry. While plaintiff
broadly asserts Mayor Bowser’s knowledge of the discriminatory environment at MPD and
12 adoption of discriminatory policies or customs, plaintiff has offered no specific facts confirming
such knowledge or acceptance. Where, as here, plaintiffs have “not produced any evidence that
[the agency’s] alleged discriminatory employment practices impacted a single employee” other
than his or herself, claims of alleged municipal liability have been rejected. Sledge v. District of
Columbia, 63 F. Supp. 3d 1, 28 (D.D.C. 2014) (quoting DuBerry v. District of Columbia, 582
F.Supp.2d 27, 39 (D.D.C. 2008)); see also Bonaccorsy v. District of Columbia, 685 F. Supp. 2d
18, 26–27 (D.D.C. 2010) (holding that plaintiff failed to establish municipal liability when
alleging that MPD violated her First Amendment rights but failing to connect that violation to an
unconstitutional policy). Plaintiff’s reliance on unconfirmed allegations in the Brinkley case to
assert that Mayor Bowser and Chief Contee were aware of allegedly discriminatory practices at
MPD are insufficient to save her claim—particularly, since plaintiff has offered no analysis or
comparison as to the similarities in position, responsibilities, supervisors, time periods, between
this case and that one. Such mere allegations fall far short of establishing the requisite “adoption
through a knowing failure to act by a policy maker of actions by his subordinates that are so
consistent that they have become custom” as required for municipal liability. Baker, 326 F.3d at
1306 (internal citation and quotation marks omitted); see also Praprotnik, 485 U.S. at 130
(noting that “the mere failure to investigate the basis of a subordinate’s discretionary decisions
does not amount to a delegation of policymaking authority, especially where (as here) the
wrongfulness of the subordinate’s decision arises from a retaliatory motive or other unstated
rationale. In such circumstances, the purposes of § 1983 would not be served by treating a
subordinate employees’ decision as if it were a reflection of municipal policy.”).
Plaintiff’s allegations would also fail on a deliberate indifference theory of municipal
liability. Courts determine whether municipal liability may lie on such a theory “by analyzing
13 whether the municipality knew or should have known of the risk of constitutional violations, but
did not act.” Warren, 353 F.3d at 39 (internal quotation marks omitted). In other words, “faced
with actual or constructive knowledge that its agents will probably violate constitutional rights,
the city may not adopt a policy of inaction.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 841
(1994)). Again, plaintiff fails to allege sufficient factual matter to show that the municipality in
this case had “actual or constructive knowledge that its agents will probably violate
constitutional rights.” Id. Plaintiff’s own conclusory statements and the allegations in the
Brinkley case are insufficient themselves to establish such actual or constructive knowledge on
the part of Mayor Bowser or MPD Chief Contee.
Plaintiff’s claims of race discrimination and retaliation against the District are, at bottom,
premised on the actions of her supervisors and co-workers, and a theory of respondeat superior
cannot be the basis of municipal defendant liability under Sections 1981 or 1983. Consequently,
Counts I and II of plaintiff’s complaint are dismissed.
B. Gender Discrimination (Counts III and IV)
Defendant moves to dismiss plaintiff’s claims, in Counts III and IV, of gender
discrimination, under Title VII and the DCHRA, respectively, for failure plausibly to “allege that
she suffered an adverse employment action because of her gender.” Def.’s Mot. at 13. Both
Title VII and the DCHRA make it unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment”
because of the individual’s race and sex. 42 U.S.C. § 2000e-2(a)(1); accord D.C. Code § 2-
1402.11(a)(1). An employee who has suffered an adverse employment action because of his or
gender has been subjected to a violation of both statutes, which are subject to the same
analysis. Mawakana v. Bd. of Trs. of the Univ. of D.C., 926 F.3d 859, 863 (D.C. Cir. 2019);
see also Brown v. Sessoms, 774 F.3d 1016, 1024 (2014); Baloch v. Kempthorne, 550 F.3d 1191, 14 1196, (D.C. Cir. 2008); Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 802–03
(D.C. 2003) (noting that Title VII and DCHRA are subject to same analysis).
To bring a gender discrimination claim under Title VII and the DCHRA, plaintiff must
allege that “(1) she is a member of a protected class (2) she suffered an adverse employment
action and (3) the unfavorable action gives rise to an inference of discrimination.” Russell v.
Principi, 257 F.3d 815, 818 (D.C. Cir. 2001); Doe 1 v. George Wash. Univ., 369 F. Supp. 3d 49,
84 (D.D.C. 2019). An adverse employment action constitutes “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). “While adverse employment actions extend
beyond readily quantifiable losses, not everything that makes an employee unhappy is an
actionable adverse action.” Russell, 257 F.3d at 818 (quoting Smart v. Ball State Univ., 89 F.3d
437, 441 (7th Cir. 1996)). For example, “changes in assignments or work-related duties do not
ordinarily constitute adverse employment decisions if unaccompanied by a decrease in salary or
work hour changes,” Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997),
while discriminatory transfers or denial of transfer requests do amount to cognizable harms
under Title VII, Chambers v. District of Columbia, 35 F.4th 870, 872 (D.C. Cir. 2022).
The parties do not dispute that plaintiff is a member of a protected class because she is a
woman. Defendant challenges the sufficiency of the gender-based discrimination and retaliation
claims solely on the ground that plaintiff “does not plausibly allege that she suffered an adverse
employment action because of her gender.” Def.’s Mot. at 13. The allegations in the complaint
that pertain to plaintiff’s gender discrimination claim are thin, and although she contends that
defendant’s unlawful conduct ultimately resulted in her termination, her only allegation that
15 specifically supports gender discrimination is that “unlike her male colleagues, she was required
to provide proof and verification of attending physical therapy treatments related to a workplace
injury.” Compl. ¶ 91. Plaintiff asserts that this indicated a discriminatory bias against her
“because there was never any allegation or reason to believe that Plaintiff was not attending
therapy sessions.” Id. ¶ 92. Plaintiff supplements this claim with an assertion that she was
subjected to hyper-scrutiny based on her gender, but hyper-scrutiny does not amount to an
adverse employment action. Lester v. Natsios, 290 F. Supp. 2d 11, 27 (D.D.C. 2003).
Plaintiff’s complaints of gender discrimination may seem bolstered by her allegations
that her supervisor, Ms. Green, refused to input her work hours, which delayed her pay on two
occasions, see Compl. ¶¶ 28–29, that defendant “attempted to suspend plaintiff” in response to
an incident when her female colleague threatened to physically attack her, id. ¶¶ 31–32, and that
“Ms. Green made negative comments about what Plaintiff was wearing, her appearance and her
body,” id. ¶ 35. Each of these allegations, however, involves hostile treatment that plaintiff
experienced at the hands of other women in her office, and therefore are weak support for any
inference that this conduct was a result of gender discrimination against plaintiff because she is a
woman. Plaintiff’s claim of gender discrimination is thus thinly supported only by her
statements that she was required to provide proof of attending physical therapy class. Although
this barely survives plausibility review, defendant’s motion to dismiss the gender discrimination
claims in Counts III and IV, under Title VII and the DHCRA, on this basis is thus denied.
C. Gender and Disability Retaliation and Failure to Accommodate Violative of Federal Law (Counts V, VII, and IX)
Defendant seeks dismissal of plaintiff’s claims, in Counts V, VII, and IX, for gender-
based retaliation under Title VII, disability retaliation under the ADA, and failure to
accommodate under the ADA, respectively, for failure administratively to exhaust. Def.’s Mot.
16 at 15–16. The ADA and Title VII require that a party exhaust his or her administrative remedies
before filing suit. Ramos v. Garland, 77 F.4th 932, 937 (D.C. Cir. 2023) (quoting Park v.
Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (“Title VII requires that a person complaining
of a violation file an administrative charge with the EEOC and allow the agency time to act on
the charge))”; Marshall v. Federal Exp. Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (“Before
bringing suit in federal court, ADA plaintiffs, like those under Title VII, must exhaust their
administrative remedies by filing an EEOC charge and giving that agency a chance to act on
it.”).
Plaintiff concedes that she has not administratively exhausted these three claims, either
expressly or by failing to address defendant’s arguments. See, e.g., Pl.’s Opp’n at 13 (agreeing
to “voluntarily dismiss[] without prejudice her Title VII retaliation claim,” although not
clarifying whether this dismissal applies to the gender-retaliation claim in Count V or the
disability retaliation claim in Count VII, or both); Def.’s Reply at 7 (highlighting that plaintiff
failed to address defendant’s arguments “that she has not administratively exhausted her Title
VII hostile work environment claim and ADA failure-to-accommodate, retaliation, and hostile
work environment claims” in Counts VII and IX); accord Brown v. Sessoms, 774 F.3d 1016,
1020 n.3 (D.C. Cir. 2014) (finding wrongful termination claim forfeit for failing to include
argument supporting claim). Plaintiff may not bring suit until “the EEOC has notified the
aggrieved person of its decision to dismiss or its inability to bring a civil action within the
requisite time period . . . .” Park, 71 F.3d at 907. Defendant’s motion to dismiss Counts V, VII,
and IX is thus granted, without prejudice. 6
6 Defendant also argues that Count V should be dismissed for failure to state a plausible hostile work environment claim, Def.’s Mot. at 18 n.5, but that argument need not be considered given dismissal of this count for failure administratively to exhaust.
17 D. Gender and Disability Retaliation Violative of DCHRA (Counts VI and VIII)
Defendant seeks dismissal for failure to state a claim for relief or, alternatively, summary
judgment on plaintiff’s gender-based and disability retaliation claims, in violation of the
DCHRA, in Counts VI and VIII, respectively. Def.’s Mot. at 18. “A prima facie case
of retaliation requires that a plaintiff demonstrate she: 1) engaged in a statutorily protected
activity; 2) suffered a materially adverse action by her employer; and that 3) a causal connection
existed between the two.” Nurriddin v. Bolden, 818 F.3d 751, 758 n.6 (D.C. Cir. 2016); see also
Jones, 557 F.3d at 677. Although the plaintiff’s burden at the prima facie stage “is not great,” a
plaintiff must still “establish facts adequate to permit an inference of a retaliatory motive.”
Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006) (quoting McKenna v. Weinberger, 729
F.2d 783, 790 (D.C. Cir. 1984)).
Defendant argues that “there is no temporal proximity between Plaintiff’s protected
activity and any adverse employment action,” because “the first possible adverse employment
action that Plaintiff alleges, the disapproval of her telework request,” occurred almost one-year
after the filing of her EEOC charge, and she “does not provide dates or even a timeframe for the
other conduct that she alleges created a hostile work environment.” Def.’s Mot. at 19.
Underscoring this point, defendant cites plaintiff’s termination as “the only clear adverse
employment action taken against Plaintiff,” and that termination occurred in March 2023, fifteen
months after plaintiff filed her EEOC charge. Id. at 20.
Plaintiff counters that showing a causal link in a retaliation claim is a “low hurdle,” and
plaintiff “clears that hurdle by alleging that she is the victim of a continuing and ongoing scheme
to push her out of her employment that began because Defendant did not want to promote her
into her role in the first place, and manifest an intention to push her out from the very
beginning.” Pl.’s Opp’n at 13. She also reiterates that she “specifically alleges that her 18 relationship with her supervisor deteriorated immediately after filing the EEOC charge, and that
she was subjected to near daily harassment from that point forward.” Id. at 14.
Though conceding that “there are other ways to demonstrate a causal connection aside
from temporal proximity,” Def.’s Reply at 8, defendant insists that since plaintiff relied on
temporal proximity in her complaint and supposedly “concedes that she has not adequately
pleaded temporal proximity” in her opposition, her DCHRA retaliation claims must be
dismissed, id. Defendant’s argument appears predicated on an improperly narrow reading of
plaintiff’s complaint. Both parties acknowledge that “[e]vidence of discriminatory or disparate
treatment in the time period between the protected activity and the adverse employment action
can be sufficient to show a causal connection,” Medina v. District of Columbia, 517 F. Supp. 2d
272, 288 (D.D.C. 2007), and plaintiff alleges that “[i]mmediately after filing her EEOC charge,
Plaintiff was subjected to a hostile work environment,” Compl. ¶ 110. Without specifying the
exact timeframe of the hostile work environment experienced, plaintiff’s allegations indicate this
discriminatory or disparate treatment occurred “in the time period between the protected activity
and the adverse employment action.” See Medina, 517 F. Supp. 2d at 288. These allegations are
exceedingly spare and barely sufficient to establish the causal link between her alleged protected
activity and the adverse employment action of termination. Nevertheless, at this stage,
defendant’s motion to dismiss, or for summary judgment as to, Counts VI and VIII is denied on
this basis. 7
7 Defendant moves, in the alternative, for summary judgment as to Counts VI and VIII, Def.’s Mot. at 18, in response to which plaintiff requests that this portion of defendant’s motion be held in abeyance until plaintiff has an opportunity for discovery, pursuant to Rule 56(d), see generally Pl.’s Discovery Mot. Defendant’s motion for summary judgment is denied and thus plaintiff’s discovery motion is denied as moot.
19 Defendant additionally argues that plaintiff’s claims in Counts VI and VIII should be
dismissed because she has failed to “state a plausible hostile work environment claim.” Def.’s
Mot. at 22. The following factors are among those to consider in evaluating whether a plausible
hostile work environment claim has been plead: (1) the “frequency of the discriminatory
conduct”; (2) the severity of the conduct; (3) whether the conduct is “physically threatening or
humiliating, or a mere offensive utterance”; and (4) whether the conduct reasonably interferes
with the employee’s work performance. Faragher v. Boca Raton, 524 U.S. 775, 787–88 (1998).
Defendant downplays plaintiff’s allegations of a hostile work environment as not rising “to the
level of severity and pervasiveness needed to state a plausible hostile work environment claim,”
and characterizes the allegations as occasional instances of poor treatment, close scrutiny by her
supervisor, and only isolated incidents of threats of violence against her. Def.’s Reply at 11–12.
Assuming as true the allegations in the complaint, as required, plaintiff alleges a female
coworker threatened her with violence but plaintiff was given a letter of counseling, Compl.
¶¶ 31-32; her supervisor occasionally delayed inputting plaintiff’s work hours, causing plaintiff
stress that she would not get paid, id. ¶ 28, attacked her character and bullied her, id. ¶ 27, denied
her bereavement leave without proof of the death, which proof no other department employee
was required to provide, id. ¶ 33, and screamed at her in front of others, id. ¶ 34. At a minimum,
these allegations of persistent verbal belittling and allegedly disparate treatment from others in
the department would reasonably interfere with plaintiff’s performance. Plaintiff’s claims of a
hostile work environment due to her gender and disability, in Counts VI and VIII, thus survive
defendant’s motion to dismiss.
E. Failure to Accommodate Under the DCHRA (Count X)
Defendant seeks dismissal of plaintiff’s claim, in Count X, regarding defendant’s failure
to provide a reasonable accommodation for her disability, in violation of the DCHRA, because 20 plaintiff failed to plead that she could perform the essential functions of her job with reasonable
accommodations. Def.’s Mot. at 21. “To make out a prima facie case of discrimination for
failure to reasonably accommodate [under the ADA], [the] plaintiff must demonstrate by a
preponderance of the evidence : (1) that she was an individual who had a disability within the
meaning of the statute; (2) that the employer had notice of her disability; (3) that with reasonable
accommodation she could perform the essential functions of her job; and (4) that the employer
refused to make such accommodations.” Floyd v. Lee, 968 F. Supp. 2d 308, 316 (D.D.C. 2013).
Defendant argues that plaintiff’s bare allegation that she is “a qualified person with a
disability” is not enough to establish this element of a failure to accommodate claim, Def.’s Mot.
at 21, and if this were all that was alleged, defendant would be correct. Yet, plaintiff does allege
more than that she is a qualified person with a disability. Specifically, she further alleges that
she “asked for a reasonable accommodation,” that MPD “never asserted . . . that allowing
Plaintiff to telework would be hardship to the enterprise,” and that “other employees who were
not disabled were allowed to telework while Plaintiff was not.” Compl. ¶¶ 123–27. Although
these allegations suggest that plaintiff believes she could perform the essential functions of her
job while teleworking from home two times a week, that element of her claim is never explicitly
asserted. Although other employees were allowed to telework, plaintiff does not clarify whether
these other employees had the same responsibilities as her and whether her job itself could be
completed while working from home two days a week.
Despite these deficiencies in the Complaint, plaintiff also alleges that “Defendant did not
engage in an interactive process with Plaintiff to ascertain if telework was a viable
accommodation.” Id. ¶ 25. After an employee’s initial disclosure, “the ADA obligates the
employer to engage with the employee in an interactive process to determine the appropriate
21 accommodation under the circumstances.” Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th
Cir. 2000) (internal quotation marks omitted). In the interactive process, “neither party should
be able to cause a breakdown in the process for the purpose of either avoiding or inflicting
liability.” Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (citing EEOC v. Sears, Roebuck
& Co., 417 F.3d 789, 805 (7th Cir. 2005)). An employee may establish that an employer
violated their right to a reasonable accommodation if the employer refuses to participate in an
interactive process or participates in bad faith. Ward, 762 F.3d at 32. “A party that fails to
communicate, by way of initiation or response, may [] be acting in bad faith.” Id. (quoting
Sears, 417 F.3d at 805). Thus, by alleging that defendant failed to participate in an interactive
process to determine a reasonable accommodation for her disability, plaintiff has sufficiently
alleged her claim of a failure to accommodate. Defendant’s motion to dismiss Count X is thus
denied.
IV. CONCLUSION
To summarize, defendant’s motion to dismiss is granted as to plaintiff’s Sections 1981
and 1983, Title VII, and ADA claims in Counts I, II, V, VII, and IX, but is otherwise denied.
This case will thus proceed only on plaintiff’s claims of gender discrimination and retaliation,
under Title VII and the DCHRA, in Counts III, IV, and VI, disability retaliation under the
DCHRA, in Count VIII, and failure to accommodate under the DCHRA, in Count X.
An Order consistent with this Memorandum Opinion will be filed contemporaneously.
Date: March 21, 2024
__________________________ BERYL A. HOWELL United States District Judge