Burrell v. Shepard ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
STEFANIE BURRELL, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-1837 (EGS)
)
ALICA SHEPARD, DANIEL CIPULLO, )
and the DISTRICT OF COLUMBIA, )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Stefanie Burrell claims that, after she lodged a
harassment complaint against her supervisor in the Superior
Court of the District of Columbia, her colleagues created a
hostile work environment and retaliated against her in violation
of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, et. seq., and the District of Columbia Human
Rights Act (“DCHRA”), D.C. Code Ann. § 2-1402.21. She further
claims that her constitutional right to equal protection under
the law was violated pursuant to 42 U.S.C. § 1983 (“section
1983”). To vindicate these rights, Ms. Burrell filed the instant
suit against two supervisors – Alicia Shepard and Daniel Cipullo
— and the District of Columbia. Pending before the Court is
defendants’ motion to dismiss the amended complaint. Upon
consideration of the amended complaint, defendants’ motion, the
response and reply thereto, and the applicable law, the Court
GRANTS IN PART AND DENIES IN PART defendants’ motion to dismiss.
I. Background
Ms. Burrell is an African-American woman who served as a
calendar coordinator in the Criminal Division of the Superior
Court of the District of Columbia (“Superior Court”). Am.
Compl., ECF No. 10 ¶ 7. Ms. Burrell worked at the Superior Court
from May 2, 1992 until she submitted her resignation letter on
November 22, 2016. Id. ¶¶ 14, 133. She alleges that, during her
tenure at the court, she “suffered from an ongoing pattern of
discrimination toward African-American employees.” Id. ¶ 16.
The first incident Ms. Burrell points to in support of her
allegations occurred on July 25, 2005. Id. ¶ 18. On that date, a
court security officer allegedly “made a sexual derogatory
remark” that made Ms. Burrell “feel extremely uncomfortable.”
Id. ¶ 18. Ms. Burrell reported the incident to the officer’s
supervisor and others, but “no action” regarding her complaint
was taken. Id. ¶¶ 21-25.
The second incident Ms. Burrell points to occurred more
than ten years later, on March 23, 2016. Id. ¶ 29. On that date,
Ms. Burrell alleges that Ms. Shepard — who was the Branch Chief
of the Criminal Division and one of Ms. Burrell’s supervisors —
recorded a video on her cell phone in which she made
“disparaging comments about the work ethic of her subordinates.”
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Id. ¶¶ 10, 29-38. In the course of filming this video, Ms.
Burrell alleges that Ms. Shepard “focused the camera” on Ms.
Burrell and made the following statement: “You so ignorant . . .
whatever . . . whatever, I hate ignorant black folk, they get on
my nerve.” Id. ¶ 37. Ms. Shepard then posted the video on
multiple social media platforms where other Superior Court
employees could see it. Id. ¶¶ 39-41. Upon seeing the video, one
of Ms. Burrell’s coworkers “took the video and reported it to
the Clerk of the Court.” Id. ¶ 43. Although the Clerk and other
supervisors in the Criminal Division were “fully aware of the
video,” Ms. Burrell asserts that “managerial personnel chose not
to initiate any action against Shepard.” Id. ¶ 46.
On April 4, 2016, Ms. Burrell filed a “bullying/harassment
complaint” against Ms. Shepard and other Superior Court Criminal
Division personnel with the Human Resources Division. Id. ¶ 47.
Ms. Burrell also requested to be transferred or reassigned to
another division. Id. ¶ 50. That request was denied because,
according to the Deputy Director of Human Resources, transfers
were only “done to satisfy an operational need of the Court.”
Id. ¶ 51. The Deputy Director also informed Ms. Burrell that her
complaint would be investigated and that the results would be
sent to her and Daniel Cipullo, the Director of the Criminal
Division, who “would determine the appropriate action, if any,
to be taken.” Id. ¶¶ 11, 54. Ms. Burrell alleges that Mr.
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Cipullo has “been aware of, and perpetuated, discriminatory acts
that create a hostile work environment” during his tenure at the
Superior Court. Id. ¶ 103. For example, Mr. Cipullo allegedly
“hired and promoted Caucasian individuals who are less qualified
than similarly-situated African Americans”; “intentionally
intimidated African-American female employees” by, for example,
“aggressively” yelling at them; “ordered African-American
employees to attend and perform menial tasks at judicial
conferences, while similarly situated Caucasian employees have
either been exempt or given professional roles”; and “assigned
African-American female employees offices that are under
construction, while giving similarly situated non-African-
American employees offices that were not under construction.”
Id. ¶¶ 105-109. According to Ms. Burrell, “numerous Superior
Court Criminal Division employees filed internal grievances and
EEOC Charges of Discrimination” against Mr. Cipullo based on
claims of racial discrimination. Id. ¶ 104.
Ms. Burrell alleges that, after she filed her complaint
against Ms. Shepard, her coworkers and Ms. Shepard “refused to
speak with her,” making it difficult for her to perform her work
duties and denying her access to a Branch Chief. Id. ¶¶ 56-57.
Ms. Burrell claims that access to a Branch Chief is critical
because it “allows employees the benefit of recognition, allows
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their ideas and suggestions to be heard, and strengthens their
professional network within the workplace.” Id. ¶ 58.
On April 18, 2016, Ms. Shepard sent an e-mail about the
video incident to all of the employees in the Criminal Division.
Id. ¶ 61. In the e-mail, Ms. Shepard wrote: “Over the years, we
have all joked with each other regarding what it is we are doing
during work hours; the comments in the video were simply one of
those moments.” Id. 62. A few days later, Mr. Cipullo held a
meeting with the Criminal Division employees to discuss the
incident. Id. In the course of the meeting, several employees
“stated that the video should not have been reported” and that
any individual who was offended should have taken his or her
concerns directly to Ms. Shepard. Id. ¶¶ 72-73. Mr. Cipullo
purportedly “voiced his agreement with th[at] sentiment.” Id. ¶
74. Later that same day, another Superior Court employee sent an
email to the employees of the Criminal Division in which she
admonished the individuals responsible for reporting the video.
Id. ¶¶ 76-79. In addition, other employees “published derogatory
comments about Burrell on Facebook” regarding her decision to
file a complaint against Ms. Shepard. Id. ¶¶ 82-83. Ms. Burrell
states that she was “intimidated by the constant statements from
her coworkers and the sentiments expressed by Cipullo that she
was wrong for filing a complaint alleging racial harassment and
discrimination against her supervisor.” Id. ¶ 99. Ms. Burrell
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alleges that her experience made her “fearful of speaking out
about any further incidents.” Id. ¶ 100.
On May 10, 2016, Ms. Burrell was informed that her
complaint against Ms. Shepard had been substantiated, and that a
notice would be sent to Mr. Cipullo, who would then determine
whether any action was warranted. Id. ¶¶ 88-89. Ms. Burrell
claims that the only action taken by Mr. Cipullo was to assign
Ms. Shepard to a program analyst position for a period of
approximately five months. Id. ¶¶ 65, 91-92. In October 2016,
Ms. Shepard returned to her position as Branch Chief of the
Criminal Division and resumed her role as Ms. Burrell’s
immediate supervisor. Id. ¶¶ 92-93.
In May or June 2016, Ms. Burrell requested “leave due to
work related stress that was . . . caused by . . . the Shepard
video and the backlash against Burrell for filing a complaint.”
Id. ¶ 98. The Human Resources Director denied her request. Id. ¶
102. In July 2016, Ms. Burrell was involved in a car accident
and requested medical leave from Mr. Cipullo. Id. ¶¶ 121-122.
She claims that, initially, she was only given “intermittent
leave,” which “detrimentally impacted her recovery.” Id. ¶¶ 123-
124. It was not until September 2016 that she was approved for
twelve weeks of medical leave under the Family Medical Leave
Act. Id. ¶ 125. While on medical leave, Ms. Burrell learned that
Ms. Shepard would be returning to her position as Branch Chief
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of the Criminal Division in October 2016. Id. ¶ 132. On November
22, 2016, Ms. Burrell submitted her resignation letter. Id. ¶
133. She claims that she was “forced to resign due to the
ongoing hostile work environment.” Id. ¶ 134.
Based on these facts, Ms. Burrell asserts the following
claims: (1)a race discrimination claim based on a hostile work
environment under Title VII and the DCHRA against the District
of Columbia (Count I), see ¶¶ 141-157; (2) a race discrimination
claim based on a hostile work environment under the DCHRA
against Ms. Shepard and Mr. Cipullo (Count II), see ¶¶ 158-167;
(3) a retaliation claim under Title VII and the DCHRA against
the District of Columbia (Count III), see ¶¶ 168-176; (4) a
retaliation claim under the DCHRA against Mr. Cipullo (Count
IV), see ¶¶ 177-186; and (5) equal protection claims pursuant to
section 1983 against the District of Columbia, Mr. Cipullo, and
Ms. Shepard (Counts V and VI), see ¶¶ 187-212. Defendants move
to dismiss the amended complaint, arguing that Ms. Burrell’s
claims are “either untimely or facially implausible.” See Defs.’
Mem. in Supp. of Mot. to Dismiss. Am. Compl. (“Defs.’ Mem.”),
ECF No. 12-1 at 6.
II. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
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complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell At. Corp. v. Twombly, 550
U.S. 544, 555 (2007). While detailed factual allegations are not
required, a complaint must contain “sufficient factual matter .
. . to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When ruling on a Rule 12(b)(6) motion, the Court “may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters
of which we may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621,624 (D.C. Cir. 1997). In so
doing, the court must give the plaintiff the “benefit of all
inferences that can be derived from the facts alleged.” Kowal v.
MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
III. Analysis
Ms. Burrell alleges both discrimination and retaliation
claims based on hostile work environment under Title VII and the
DCHRA. Because the legal standards for establishing these claims
under Title VII and the DCHRA are substantively the same, the
Court will analyze Ms. Burrell’s claims under these statutes
together. See e.g., Carpenter v. Fed. Nat’l Mortg. Ass’n, 165
F.3d 69, 72 (D.C. Cir. 1999) (explaining that, “[i]n
8
interpreting its Human Rights Act the District of Columbia . . .
generally seems ready to accept the federal constructions of
Title VII, given the substantial similarity between it and the
D.C. Human Rights Act”).
A. Exhaustion of Administrative Remedies for Title VII and
DCHRA Claims
Defendants argue that Ms. Burrell’s Title VII and DCHRA
race discrimination and retaliation claims must be dismissed
because Ms. Burrell failed to exhaust her administrative
remedies in a timely manner. See Defs.’ Mem., ECF No. 12-1 at
11, 20. Specifically, defendants maintain that, at the earliest,
Ms. Burrell signed a charge of discrimination on March 6, 2017,
and therefore only conduct that took place 300 days before that
date — i.e, after May 11, 2016 — can form the basis of
plaintiff’s claims. Id. at 11-13. 1 According to defendants, only
the conduct alleged after May 11, 2016 is actionable under Title
VII or the DCHRA. This conduct includes: a denial of Ms.
1 In support of their arguments, defendants point to (1) an
unsigned EEOC Charge of Discrimination dated March 6, 2017; (2)
a signed Amended EEOC Charge of Discrimination dated May 23,
2017; and (3) a Notice of Charge of Discrimination sent to the
Superior Court dated June 16, 2017. See Defs.’ Mem. Exs. 1-3,
ECF Nos. 12-3, 12-4, 12-5. Although defendants urge the Court to
consider only the signed charge from May 23, 2017 in its
timeliness analysis, defendants concede that “[i]t is possible
that Plaintiff signed some earlier original charge that the EEOC
forwarded to her on March 6, 2017.” Defs.’ Mem., ECF No. 12-1 at
13. Accordingly, for purposes of this motion to dismiss, the
Court will assume that the initial EEOC charge was signed on
March 6, 2017.
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Burrell’s request to transfer to a different division, a delay
in granting Ms. Burrell’s request for medical leave, the fact
that Ms. Shepard was reassigned as Ms. Burrell’s supervisor, and
Ms. Burrell’s decision to resign. Id. at 13-14.
Before commencing an action based on Title VII, a plaintiff
must first exhaust her administrative remedies by filing a
timely charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). Lewis v. City of Chicago, Ill.,
560 U.S. 205, 210 (2010). Generally, “a Title VII plaintiff
raising claims of discrete discriminatory or retaliatory acts
must file his charge within the appropriate time period — 180 or
300 days — set forth in 42 U.S.C. § 2000e–5(e)(1).” Nat’l.
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).
The lawsuit following the EEOC charge is “limited in scope to
claims that are like or reasonably related to the allegations of
the charge and growing out of such allegations.” Park v. Howard
Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Specifically, a
plaintiff's claims “must arise from the administrative
investigation that can reasonably be expected to follow the
charge of discrimination.” Id.Because “[a] hostile work environment claim is composed of
a series of separate acts that collectively constitute ‘one
unlawful employment practice,’” the timeliness analysis for
those claims is different than claims involving discrete acts.
10
Morgan, 536 U.S. at 117. For a hostile work environment claim to
be timely, “the employee need only file a charge within . . .
300 days of any act that is part of the hostile work
environment.” Singletary v. Dist. of Columbia, 351 F.3d 519, 527
(D.C. Cir. 2003) (emphasis in the original); see also Morgan,
536 U.S. at 122 (“A charge alleging a hostile work environment
claim . . . will not be time barred so long as all acts which
constitute the claim are part of the same unlawful employment
practice and at least one act falls within the time period.”).
Likewise, because this Circuit describes retaliatory hostile
work environment claims “in terms of the discrimination
standard,” a retaliation claim based on allegations of a hostile
work environment is timely “as long as just one of the alleged
acts compromising the hostile work environment” fall within the
statutory time period and the acts are part of the same unlawful
employment practice.” Bergbauer v. Mabus, 934 F. Supp. 2d 55, 82
(D.D.C. 2013).
Here, defendants’ arguments are premised on the assumption
that Mr. Burrell’s claims are based on a number of separate,
discrete acts of discrimination. See Defs.’ Mem., ECF No. 12-1
at 13-14. A fair reading of Ms. Burrell’s amended complaint,
however, makes clear that she is alleging that she was subjected
to repeated acts of discriminatory intimidation and insult
purportedly as a result of filing a complaint about her
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supervisor. See, e.g., Am. Compl., ECF No. 10 ¶ 143 (“During the
period that Burrell has been employed at the Superior Court, the
workplace has been permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe and pervasive
enough to alter the conditions of her employment, and has
created an abusive working environment.”); id. ¶ 147 (providing
examples of conduct “that created a hostile work environment”);
id.¶ 159 (relying primarily on the allegations set forth in
Count I for Count II). Moreover, Ms. Burrell clarified in her
opposition brief that she “brings her race discrimination claims
under a theory of a hostile work environment.” Pl.’s Opp’n, ECF
No. 13-1 at 11. She further states that she has pled her
retaliation claims “based upon both discrete adverse actions and
a hostile work environment.” Id.Thus, assuming arguendo that defendants are correct that
Ms. Burrell’s claims are timely only if the allegedly
discriminatory conduct took place after May 11, 2016, the Court
finds that Ms. Burrell has plainly alleged acts that took place
after that date as part of her discrimination and retaliation
claims based on a hostile work environment. Those acts include,
for example, defendants’ refusal to transfer or reassign Ms.
Burrell to a different division so that she would not have to
“interact with Shepard and others who were discriminating
against her or might retaliate against her” for lodging the
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complaint. Am. Compl., ECF No. 10 ¶¶ 50, 90. They also include
Ms. Burrell’s allegations that, after she made her complaint
about Ms. Shepard, Ms. Shepard would “admonish, mock and
belittle her” anytime she asked for any “assistance or
clarification” regarding her work duties. Id. ¶¶ 92-95, 115. Ms.
Burrell also alleges that the Superior Court denied her request
for leave due to work-related stress and delayed in granting her
request for medical leave after she was injured in a car
accident. Id. ¶¶ 98-102, 121-125. Taking these allegations
together and construing the amended complaint in a light
favorable to Ms. Burrell, the Court finds that Ms. Burrell has
plausibly alleged that she was subjected to a hostile work
environment, which may also have been a form of retaliation for
her decision to file a harassment complaint. Because Ms. Burrell
is able to “adequately link” the alleged retaliatory attacks
that occurred after May 11, 2016 to other acts occurring before
May 11, 2016, those acts are not time barred. See Baird v.
Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011).
Defendants also argue that Ms. Burrell’s DCHRA claims are
untimely for the same reasons. Defs.’ Mem. , ECF No. 12-1 at 13.
As defendants acknowledge, the statute of limitations for
plaintiff’s DCHRA claims was tolled by the filing of her EEOC
charge. See Defs.’ Mem., ECF No. 12-1 at 13 (citing D.C. Code §
2-1403.16(a)). Here, assuming Ms. Burrell first filed her EEOC
13
charge on March 6, 2017, she may pursue any DCHRA claims that
accrued on or after March 6, 2016. As explained above, Ms.
Burrell has sufficiently alleged facts in support of a hostile
work environment claim and retaliation claim within that time.
For all these reasons, the Court declines to dismiss Ms.
Burrell’s hostile work environment and retaliation claims on
timeliness grounds at this juncture.
B. Hostile Work Environment Claim
Defendants next argue that, even if Ms. Burrell’s
allegations are timely, “they fail because Plaintiff has not
sufficiently alleged that she was subject to a hostile work
environment, or any other adverse action, because of her race or
her sex.” Defs.’ Mem., ECF No. 12-1 at 14.
For starters, defendants’ argument that Counts I and II
should be dismissed because Ms. Burrell has not alleged an
“adverse personnel action” fail. The requirement that a
plaintiff must allege “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,” see Defs.’ Mem., ECF
No. 12-1 at 14 (quoting Ndzerre v. Wash. Metrop. Area Transit.
Auth., No. 15-1229, 2017 WL 3579890, at *4 (D.D.C. August 16,
2017)), only applies to claims of discrimination, not hostile
work environment claims.
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To state a claim under Title VII or the DCHRA based on a
hostile work environment, a plaintiff must allege facts
establishing that her “workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
[plaintiff’s] employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (citations and internal quotation marks omitted). In
evaluating a hostile work environment claim, the “court looks to
the totality of the circumstances, including the frequency of
the discriminatory conduct, its severity, its offensiveness, and
whether it interferes with an employee's work performance.”
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). This
standard is a demanding one, as Title VII is not intended to
function as a “general civility code” that regulates the
“ordinary tribulations of the workplace, such as the sporadic
use of abusive language, gender-related jokes, and occasional
teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). Nonetheless, depending on the circumstances, a single
incident may be sufficient to establish a hostile work
environment. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577
(D.C. Cir. 2013) (employer’s alleged use of “a deeply offensive
racial epithet when yelling at [the plaintiff] to get out of his
office” may have been enough to state a claim based on a hostile
15
work environment). Moreover, conduct that is “severe or
pervasive” is sufficient to state a hostile work environment
claim. Faragher, 524 U.S. at 786 (emphasis added, internal
quotation marks omitted).
In support of her hostile work environment claim, Ms.
Burrell points to the video in which Ms. Shepard allegedly
stated that she “hate[s] ignorant black folk.” Am. Compl., ECF
No. 10 ¶¶ 37, 147(b). She also points to the following examples
of “acts and omissions that created a hostile work environment”:
(1) Ms. Shepard’s mistreatment of her when she sought
clarification or assistance in performing her work duties; (2)
Mr. Cipullo permitting other employees to admonish her for
reporting the video incident; (3) Mr. Cipullo permitting other
employees to discourage individuals from reporting incidents
like the video; (4) Mr. Cipullo’s “vocal agreement” with the
statements of other employees discouraging reporting incidents
like that of the video; (5) isolating her for speaking out about
the video; (6) social media posts by other employees harassing
her for speaking out about the video; (7) Mr. Cipullo’s decision
to replace Ms. Shepard with another supervisor who also had a
known history of racial harassment and discrimination; (8)
allowing Ms. Shepard to return to her position as Branch Chief;
(9) Human Resources’ and Mr. Cipullo’s denial of her transfer
requests; (10) Human Resources denying her request for leave due
16
to work-related stress; (11) Mr. Cipullo’s decision affording
her only intermittent leave when she was injured in a car
accident; (12) an alleged instance of sexual harassment in 2005;
and (13) Mr. Cipullo’s and Human Resources’ refusal to
investigate other instances of racial harassment, bullying, and
discrimination. Id. ¶¶ 147(a)-(n).
Construing these allegations in the light most favorable to
Ms. Burrell, the Court concludes that her hostile work
environment claims survive defendants’ motion to dismiss.
Although defendants make a number of arguments as to why
particular incidents or allegations are insufficient to create a
hostile work environment, the Court “is obliged to consider the
whole picture, not just particular pixels, in assessing whether
a host of incidents amount to a pervasive pattern of hostility
and ridicule.” Gilliard v. Gruenberg, 302 F. Supp. 3d 257, 281
(D.D.C. 2018) (citation and internal quotation marks omitted).
Although Ms. Burrell does not point to any conduct that is
particularly severe, the Court is persuaded that she has alleged
sufficient facts to plausibly support her claim that the
purportedly discriminatory conduct was sufficiently pervasive.
See, e.g., Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 193
(D.D.C. 2008) (plaintiff’s allegations that supervisor’s
“hostility [toward her] manifested itself through isolation,
subjection to public ridicule and harmful treatment” were
17
sufficient to survive a motion to dismiss); Ali v. Dist. of
Columbia, 697 F. Supp. 2d 88, 92 (D.D.C. 2010) (denying motion
to dismiss the plaintiff's hostile work environment claim even
though “it [was] unlikely that [the plaintiff's] claims of
discrimination will ultimately prove meritorious”).
Defendants also argue that, “even if the alleged conduct of
Plaintiff’s coworkers were sufficiently severe to constitute
harassment . . . defendants would not be liable unless Plaintiff
could show that they were negligent in controlling working
conditions.” Defs.’ Reply, ECF No. 14 at 4; see also Ayissi-Etoh
v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (“To establish
liability when a plaintiff is harassed by his or her co-workers,
the plaintiff must prove that the employer was at least
negligent in not preventing or correcting the
harassment.”)(emphasis in original). Here, however, plaintiff’s
claim rests, at least in part, on allegations that she was
harassed by her supervisors. In such circumstances, “the
employer is vicariously liable for a supervisor’s actions,
except when no tangible adverse employment action has been taken
and the employer proves an affirmative defense.” Ayissi-Etoh,
712 F.3d at 577-78. Here, Ms. Burrell has sufficiently alleged
that she was harassed by supervisors and that her employer
failed to take sufficient remedial action in response to her
complaints. See, e.g., Am. Compl. ¶¶ 44, 81, 91, 127.
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Accordingly, the Court declines to dismiss Ms. Burrell’s hostile
work environment claims at this stage of the proceedings.
C. Retaliation Claim
Defendants next argue that Ms. Burrell’s retaliation claims
fail because she has not alleged any “materially adverse action”
taken by the District or Mr. Cipullo. Defs.’ Mem., ECF No. 12-1
at 20. According to defendants, “[a]lthough unpleasant and
potentially embarrassing to Plaintiff, criticisms from coworkers
on email and social media are not materially adverse actions.”
Id. at 21. Defendants also insist that the denial of Ms.
Burrell’s transfer request and the denial of her request for
medical leave are not materially adverse actions. Id. at 22.
To state a claim for retaliation under Title VII and the
DCHRA, a plaintiff must allege that she suffered a “materially
adverse action” because she “brought or threatened to bring a
discrimination claim.” See Baloch v. Kempthorne, 550 F.3d 1191,
1198 (D.C. Cir. 2008). A retaliatory act is “materially adverse”
if “a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S. 53, 68 (2006). For example,
depending on the context, “[a] schedule change in an employee’s
work schedule” or exclusion of an employee “from a weekly
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training lunch” could deter a reasonable employee from
complaining and therefore might be actionable. Id. at 69.
Here, Ms. Burrell alleges a number of retaliatory actions
taken after she complained about Ms. Shepard’s video. For
example, she claims that her coworkers refused to speak to her,
“making it very difficult for her to perform her assigned
tasks.” Am. Compl., ECF No. 10 ¶ 56. Some coworkers purportedly
made derogatory comments about Ms. Burrell on social media,
while another sent an email to Superior Court employees
questioning “the heart and motive” of any person who would
report Ms. Shepard. Id. ¶¶ 76-79, 82. Ms. Burrell contends that
these incidents made her “fearful of speaking out about any
further incidents of racial harassment, bullying and
discrimination.” Id. ¶ 100. She further claims that Human
Resources and Mr. Cipullo refused to take any corrective or
disciplinary actions against those harassing Ms. Burrell. Id. ¶¶
84, 86-87.
Ms. Burrell further claims that Ms. Shepard, who continued
to be her supervisor, refused to speak with her, thereby denying
her “access to a Branch Chief.” Id. ¶ 57. According to Ms.
Burrell, the ability to speak to her supervisor one-on-one is
critical because it “allows employees the benefit of
recognition, allows their ideas and suggestions to be heard, and
strengthens their professional network within the work place.”
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Id. ¶ 58. In addition, Ms. Burrell claims that, whenever she
asked for assistance with or clarification of her workplace
duties, Ms. Shepard would “admonish, mock and belittle her.” Id.
¶ 115. Despite this behavior, Mr. Cipullo refused to grant Ms.
Burrell’s request to be transferred or reassigned to another
division in Superior Court. Id. ¶ 97.
Finally, Ms. Burrell claims that Human Resources denied her
request for leave based on work-related stress. Id. ¶ 102. She
further claims that Mr. Cipullo denied her request for full
medical leave after she suffered injuries in a car accident. Id.
¶¶ 122-23. She contends that denial of her request for full
medical leave “detrimentally impacted her recovery” from her
injuries. Id. ¶ 124.
Here, construing the allegations in the light most
favorable to Ms. Burrell, the Court cannot conclude that she has
not alleged any adverse action as a matter of law. As other
courts in this Circuit have explained, under certain
circumstances, a denial of leave can constitute materially
adverse action. See, e.g., Nurriddin v. Bolden, 674 F. Supp. 2d
64, 90 (D.D.C. 2009) (declining to dismiss retaliation claim
where denial of leave had a financial impact on plaintiff);
Hussain v. Principi, 344 F. Supp. 2d 86, 104 (D.D.C. 2004)
(“denial of medical leave might each be an adverse action in
some circumstances”).
21
Moreover, as Ms. Burrell notes, a hostile work environment
can give rise to a retaliation claim under Title VII. See
Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006). To
prevail on such a claim, a plaintiff must show that her employer
subjected her to “discriminatory intimidation, ridicule, and
insult” of such sever[ity] or pervasive[ness] [as] to alter the
conditions of [her] employment and create an abusive working
environment.” Id. (citation and internal quotation marks
omitted). 2 Here, for the same reasons that her hostile work
environment claim survives, the Court finds that Ms. Burrell’s
claim for retaliation based on hostile work environment also
survives. Therefore, the Court declines to dismiss Ms. Burrell’s
retaliation claims. 3
2 It is unclear whether the same standard applies to both
discriminatory and retaliatory hostile work environment claims.
See Bergbauer v. Mabus, 934 F. Supp. 2d 55, 79-82 (D.D.C. 2013)
(explaining that courts in our circuit “do not appear to have
reconsidered the retaliatory harassment standard in light of
Burlington Northern,” finding that “[a] good argument” could be
made that courts should do so, but applying the older, more
stringent standard set forth in Hussain v. Nicholson, 435 F.3d
359 (D.C. Cir. 2006)). Because the Court concludes that Ms.
Burrell’s claim survives under the standard set forth in
Hussain, it would necessarily survive under the less stringent
standard articulated in Burlington Northern.
3 To the extent Ms. Burrell alleges a claim for constructive
discharge, see Pl.’s Opp’n, ECF No. 13-1 at 21, the Court finds
that she has not stated a claim. After all, a claim for
constructive discharge requires “something more” than a hostile
work environment claim alone. Penn. State Police v. Suders, 542
U.S. 129, 147 (2004); see also Bishopp v. Dist. of Columbia, 788
F.2d 781, 790 (D.C Cir. 1986) (“A finding of constructive
discharge requires a finding of intentional discrimination plus
22
D. Section 1983 Claims
To state a claim under section 1983, a plaintiff must
establish that she was deprived of “a right secured by the
Constitution or laws of the United States, and that the alleged
deprivation was committed under color of state law.” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). Ms.
Burrell alleges that she was denied her right to be free from
racial discrimination under the Equal Protection Clause of the
Fifth Amendment. See Am. Compl., ECF No. 10 ¶¶ 187-212. A
plaintiff may allege an equal protection violation if “he or she
received differential treatment by the government due to
membership in a protected class, such as one based on race,
national origin, or gender.” Kelley v. Dist. of Columbia, 893 F.
Supp. 2d 115, 122 (D.D.C. 2012).
To state a claim for intentional discrimination under the
Equal Protection Clause, a plaintiff “must plead and prove that
the defendant acted with discriminatory purpose.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). “[P]urposeful discrimination
requires more than ‘intent as volition or intent as awareness of
a finding of aggravating factors that suggest that the
complainant was driven to quit.”) (emphasis added). “The kinds
of situations where courts have upheld constructive-discharge
findings tend to involve extreme mistreatment or thinly veiled
(or even overt) threats of termination.” Kalinoski v. Gutierrez,
435 F. Supp. 2d 55, 78 (D.D.C. 2006). The allegations here do
not point to any “aggravating factors” and do not rise to the
level of “extreme mistreatment.”
23
consequences.’ It instead involves a decision maker’s
undertaking a course of action “‘because of,’ not merely ‘in
spite of,’ [the action's] adverse effects upon an identifiable
group.” Id. at 676-77 (citation and internal quotation marks
omitted).
Defendants argue that Ms. Burrell’s constitutional claims
against Ms. Shepard and Mr. Cipullo fail because she has not
sufficiently alleged that they engaged in “purposeful
discrimination” and, in any event, they are entitled to
qualified immunity. Defendants also argue that Ms. Burrell’s
claims against the District of Columbia fail because she has not
alleged sufficient facts to state a claim for municipal
liability under section 1983. Defs.’ Mem., ECF No. 12-1 at 23-
27. The Court evaluates each argument in turn.
1. Ms. Burrell’s Section 1983 Claims Against the
Individual Defendants
To state a claim under section 1983, a plaintiff must
allege the violation of a right secured by the Constitution and
must show that the alleged deprivation was committed by a person
acting under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
Ms. Burrell argues that she has sufficiently pled her
section 1983 claims against Mr. Cipullo and Ms. Shepard because
she alleges that they both intentionally discriminated against
24
her on the basis of her race. Pl.’s Opp’n, ECF No. 13-1 at 25-
27. Defendants argue that Ms. Burrell’s claims must be dismissed
because she “has not alleged any constitutional violation”
committed by either defendant. Defs.’ Mem., ECF No. 12 at 24-25.
For the reasons set forth below, the Court finds that, although
plaintiff’s section 1983 claim against Mr. Cipullo must be
dismissed, her claim against Ms. Shepard survives.
With respect to Mr. Cipullo, the Court finds that
plaintiff’s allegations are insufficient to set forth a claim
based on an equal protection violation. Plaintiff makes a series
of allegations relating to Mr. Cipullo’s history of acting with
racial animus toward employees that he supervised. See, e.g.,
Am. Compl., ECF No. 10 ¶ 104 (claiming that “numerous Superior
Court Criminal Division employees filed internal grievances and
EEOC Charges of Discrimination against Cipullo, which alleged
racial discrimination and a hostile work environment”); id. ¶ 107
(alleging that “Cipullo prevented an African-American female
employee from being able to leave her office while he
aggressively yelled at her”); id. ¶ 108 (“Cipullo has ordered
African-American employees to attend and perform menial tasks at
judicial conferences, while similarly-situated Caucasian
employees have either been exempt or given professional roles at
the conferences”); id. ¶ 109 (“Cipullo has assigned African-
American female employees offices that are under construction,
25
while giving similarly-situated non-African- American employees
offices that were not under construction”). She does not,
however, allege that Mr. Cipullo took any action with respect to
her that was animated by racial bias. See, e.g., Rodriguez v.
Dist. of Columbia, 118 F. Supp. 3d 132, 138 (D.D.C. 2015)
(dismissing the plaintiff’s section 1983 equal protection claim
because she did not allege any facts suggesting that “the
individual defendants took action against her because of, not
merely in spite of, her membership in a protected class”).
In her opposition, Ms. Burrell points to Mr. Cipullo’s
decision to deny her request for a transfer, his failure to take
action against Ms. Shepard for the substantiated complaint
related to the video incident, his expression of agreement with
another employee who stated that it was wrong that Ms. Burrell
had reported Ms. Shepard, and his failure to take actions
against Ms. Burrell’s coworkers for their purportedly harassing
behavior. Pl.’s Opp’n, ECF No. 13-1 at 26. As an initial matter,
the complaint states that Mr. Cipullo did take some action in
response to the video incident: he called a meeting to discuss
the incident and he transferred Ms. Shepard to a different
position for a period of time. See Am. Compl., ECF No. 10 ¶¶ 64-
65. In her amended complaint, plaintiff does not allege that any
of the other actions taken by Mr. Cipullo were “because of” her
race. See, e.g., Rodriguez, 118 F. Supp. 3d at 139 (“There are
26
no factual allegations in the second amended complaint that
connect plaintiff's race, national origin, or disability to the
adverse employment decisions of which she complains.”).
With respect to Ms. Shepard, however, the Court finds that
plaintiff has sufficiently alleged that Ms. Shepard treated her
differently from similarly-situated employees with a
discriminatory intent or purpose. In particular, Ms. Burrell
alleges that Ms. Shepard used racially derogatory language —
i.e., “I hate ignorant black folk, they get on my nerve” —
toward her in the course of filming the video on her cell phone.
Am. Compl., ECF NO. 10 ¶¶ 29-38. In addition, Ms. Burrell
alleges that, subsequent to the video incident, Ms. Shepard
refused to speak with her, ignored and isolated her, and would
“admonish, mock, and belittle her.” Id. ¶¶ 57, 60, 115. The use
of racially-charged language, coupled with Ms. Shepard’s alleged
persistent harassment of Ms. Burrell, is sufficient to state a
claim for a violation of the Equal Protection Clause. Cf. Watson
v. Div. of Child Support Servs., 560 F. App'x 911, 913 (11th
Cir. 2014) (offensive or derogatory statements may violate equal
protection guarantees if they “are so pervasive as to amount to
racial harassment or are accompanied by some other conduct that
deprives a person of the equal protection of the laws”).
Defendants argue that, even if Ms. Burrell does state an
equal protection claim, that claim would still fail because Ms.
27
Shepard is entitled to qualified immunity. Defs.’ Mem., ECF No.
12-1 at 25-26. The Supreme Court has held that “government
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts
approach qualified immunity claims through a two-step analysis:
(1) whether the alleged facts show that the individual's conduct
violated a statutory or constitutional right; and (2) whether
that right was clearly established at the time of the incident.
Saucier v. Katz, 533 U.S. 194, 200 (2001). When determining
whether a right was “clearly established,” “[t]he contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
As set forth above, the Court concludes that Ms. Burrell
has articulated a violation of her Fifth Amendment rights.
Additionally, there can be no question that freedom from racial
discrimination is “clearly established” under the Constitution.
See Caldwell v. Caesar, 150 F. Supp. 2d 50, 60 (“Defendant
Caesar does not claim he would be entitled to immunity if he is
found to have discriminated against Plaintiff because of his
race. Any such claim would be frivolous.”). Accordingly, the
28
Court declines to dismiss plaintiff’s section 1983 claim against
Ms. Shepard on qualified-immunity grounds at this stage of the
proceedings.
2. Plaintiff’s Section 1983 Claims Against the
District of Columbia
Finally, defendants argue that Ms. Burrell’s section 1983
claim against the District of Columbia must be dismissed for
failure to state a claim. Defs.’ Mem., ECF No. 12 at 26-27.
A municipality “can be found liable under section 1983 only
where the municipality itself causes the constitutional
violation at issue.” City of Canton, Ohio v. Harris, 489 U.S.
378, 385 (1989) (emphasis in the original). The District, as a
municipality, see D.C. Code § 1–102, is subject to liability
under section 1983 only “when an official policy or custom
causes the [plaintiff] to suffer a deprivation of [a]
constitutional right,” Carter v. Dist. of Columbia, 795 F.2d
116, 122 (D.C. Cir. 1986).
A plaintiff may rely on four basic categories of municipal
action in alleging that the municipality causes the
constitutional violation: (1) express municipal policy; (2)
adoption by municipal policymakers; (3) custom or usage; and (4)
deliberate indifference.” Hunter v. Dist. of Columbia, 824 F.
Supp. 2d 125, 133 (D.D.C. 2011). In addition, the municipal
action must be the moving force behind the alleged
29
constitutional violation. Carter, 795 F.2d at 122 (citing
Monell, 436 U.S. at 694); see also Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986) (“[M]unicipal liability
under § 1983 attaches where—and only where—a deliberate choice
to follow a course of action is made from among various
alternatives by the official or officials responsible for
establishing final policy with respect to the subject”). In
cases like this one that do not involve express policies, a
plaintiff must still allege a course of action deliberately
pursued by the city, “as opposed to an action taken unilaterally
by a nonpolicymaking municipal employee.” City of Oklahoma v.
Tuttle, 471 U.S. 808, 829 (1985) (Brennan, J., concurring). The
plaintiff must also allege “an affirmative link between the
[city's] policy and the particular constitutional violation
alleged.” Id. at 823 & n.8. Moreover, a city is not required “to
take reasonable care to discover and prevent constitutional
violations” but rather, must simply “not adopt a policy of
inaction” when “faced with actual or constructive knowledge that
its agents will probably violate constitutional rights.” Warren
v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).
Here, Ms. Burrell claims that the District has a “custom
and policy” of racially discriminating against African-American
Superior Court employees. Pl.’s Opp’n, ECF No. 13-1 at 28-29;
Am. Compl., ECF No. 10 ¶ 202. She further alleges that the
30
District acted with “deliberate indifference” in not training
its Human Resources department and supervisors in the Criminal
Division “on investigating and responding to allegations of
racial harassment and discrimination.” Pl.’s Opp’n, ECF No. 13-1
at 28-29; see also Am. Compl., ECF No. 10 ¶¶ 204, 206. Despite
these allegations, the Court finds that Ms. Burrell has not
sufficiently pled that the District had a “policy of inaction”
or acted with “conscious disregard for the consequences of their
action” to trigger municipal liability. Connick, 563 U.S. at 61-
62. To the contrary, Ms. Burrell acknowledges in her amended
complaint that a number of actions were taken in response to her
complaint about the video posted by Ms. Shepard. For example, on
April 18, 2016, Ms. Shepard sent an e-mail about the incident to
all Superior Court Criminal Division employees in which she
stated that she took “full responsibility for [her] actions” and
asked those who were offended to “forgive” her. Pl.’s Opp’n Ex.
1D, ECF No. 13-4 at 32. In that same email, Ms. Shepard also
explained that she had “learned the hard way that there is a
court policy that exists stating that we are prohibited from
taking video and audio recording . . . without prior
authorization” and that violation of the policy “can result in
corrective action.” Id. Two days later, Mr. Cipullo held a
meeting with all of the employees in the Criminal Division to
discuss the incident. Am. Compl., ECF No. 10 ¶ 64. At that
31
meeting, Mr. Cipullo explained that another employee would
“replace Shepard” as Branch Chief. Id. ¶ 65; see also id. ¶ 91
(“the only remedial action that has been taken by Cipullo in
connection with the substantiated bullying finding against
Shepard was her temporary reassignment”). In addition, Ms.
Burrell states that, on May 10, 2016, a representative from the
Human Resources Division informed her that her bullying
complaint against Ms. Shepard had been “substantiated” and that
actions would be take in accordance with court policy. Id. ¶¶
88-89.
Given these allegations, the Court finds that plaintiff has
not pled that the District adopted a “policy of inaction” when
faced with knowledge that its agents may be violating
constitutional rights. Accordingly, the Court will DISMISS Count
VI of the amended complaint against the District for failure to
state a claim. 4
4 The Court also finds that plaintiff has not sufficiently
alleged a “pattern” of constitutional violations required to
state a section 1983 claim against a municipality. Although Ms.
Burrell alleges that the District’s failure to train employees
“on investigating and remedying racial harassment” led to
“racial harassment and discrimination permeating the workplace,”
Pl.’s Opp’n, ECF No. 13-1 at 29, her factual allegations in
this regard primarily focus on her own experience after
reporting the video filmed by Ms. Shepard, see, e.g., Am.
Compl., ECF No. 10 ¶ 206 (pointing to her supervisor’s “vocal
agreement” that the video should not have been reported and the
failure of supervisors to take action to protect plaintiff after
she reported the video or to address plaintiff’s coworkers who
made derogatory remarks). This falls short of pleading a
32
IV. CONCLUSION
For the reasons set forth in this Memorandum Opinion, the
defendants’ motion to dismiss Ms. Burrell’s amended complaint is
GRANTED IN PART AND DENIED IN PART. A separate Order accompanies
this Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 27, 2018
“pattern of similar constitutional violations” needed to state a
claim under either a “custom or policy” or “deliberate
indifference” theory. See., e.g., Patrick v. Dist. of Columbia,
179 F.Supp.3d 82, 87 (D.D.C. 2016)(a plaintiff “sufficiently
pleads a § 1983 [custom or policy] claim when his complaint
refers to specific incidents that plausibly show a custom or
pattern of behavior”; Connick, 563 U.S. at 62 (a pattern of
violations “by untrained employees” is “ordinarily necessary to
demonstrate deliberate indifference for purposes of failure to
train”)(citation and internal quotation marks omitted).
33