Tennant v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DENISE TENNANT,
Plaintiff,
Civil Action No. 19-2949 (BAH)
v.
Chief Judge Beryl A. Howell
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiff Denise Tennant, a former Probation Officer in the Court Social Services
Division (“CSSD”) of the Superior Court of the District of Columbia, has sued her former
employer under Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 2000e et seq., the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., alleging discrimination and retaliation
based on sex and her disabilities, and interference with her FMLA rights in a five-count
complaint, Compl., ECF No. 1. Defendant has moved to dismiss three of those five counts,
under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim on which relief can be
granted. See Def.’s Mot. to Partially Dismiss Pl.’s Compl. (“Def.’s Mot.”), ECF No. 7. For the
reasons explained below, defendant’s motion is denied.
I. BACKGROUND
Plaintiff worked as a CSSD probation officer for almost nine years, from March 29,
2010, until her December 3, 2018 termination, and never received a rating of less than
commendable performance. Compl. ¶¶ 12–13.1 As a probation officer, plaintiff “supervised
1
While the Complaint states plaintiff’s termination date to be December 3, 2018, Compl. ¶ 12, which date is
confirmed in her opposition to the pending motion, see Pl.’s Mem. of Points & Auths. in Opp’n to Def.’s Mot.
(“Pl.’s Opp’n”), at 17, ECF No. 8, the complaint also suggests other termination dates, see, e.g. Compl. ¶ 74 (noting
juveniles charged with or convicted of criminal offenses [and] conducted home curfew visits and
school visits.” Id. ¶ 18. Over her tenure with CSSD, plaintiff conducted that work from several
different offices. As relevant to this action, between March 2014 and December 3, 2018,
plaintiff was assigned to the Northeast Regional Office’s Leaders of Today in Solidarity (LOTS)
Balanced and Restorative Justice Center (“BARJ”). Id. ¶ 17. This assignment was “in addition
to . . . her juvenile caseload.” Id. ¶ 19. Plaintiff describes BARJ as a “healthy and secure
environment for juvenile offenders to attend after-school activities, including group and
individual counseling,” educational programs and mentorship events. Id. Her duties included
helping juvenile participants develop their social skills, overseeing the juveniles’ mentors and
tutors, and even preparing meals. Id. Plaintiff complains about several incidents that occurred
while she was assigned to BARJ, as described below.
A. The Anthony Brooks Incident
Sometime in 2016, plaintiff and one of her supervisors, Acting Supervisory Probation
Officer Stephanie Lea, saw a CSSD-affiliated mentor, Anthony Brooks, behaving
inappropriately with a 14-year-old juvenile. Id. ¶ 24. Plaintiff reported her concerns to several
people, including her “immediate supervisor[],” id. ¶ 17, Supervisory Probation Officer
Lawrence Weaver, id. ¶ 24, and Shelia Roberson-Adams, the Program Manager/Assistant
Deputy Director for the entire Northeast Regional Office, id. ¶¶ 17, 24. For her part, Lea “wrote
a memorandum documenting her concerns about Mr. Brooks’ inappropriate actions.” Id. ¶ 24.
According to plaintiff, those concerns fell on deaf ears. Id. Indeed, after Lea authored her
memorandum, she was demoted and replaced. Id.plaintiff received “Final Determination” of her termination on November 26, 2018); id. ¶ 75 (noting that following
appeal of her termination “a final decision on Plaintiff’s termination was issued on May 15, 2019”).
2
In “August or September 2017,” plaintiff received a call from the father of the juvenile
with whom plaintiff had witnessed Brooks acting inappropriately. Id. ¶ 25. The father reported
that Brooks had engaged in “sexual conduct” with his daughter. Id. Not long after, in September
2017, Brooks was arrested and charged with “criminal offenses involving sexual abuse of a
minor.” Id. As Brooks’ prosecution began, Terri Odom, CSSD’s Director, instructed plaintiff
not to cooperate voluntarily with the authorities. Id. ¶¶ 15, 26. In October 2017, plaintiff
received a subpoena from the Office of the United States Attorney for the District of Columbia
directing her to meet with the Assistant United States Attorneys (“AUSAs”) prosecuting Brooks’
case. Id. ¶ 27. Plaintiff alerted her supervisor Weaver, who explained that, if she wanted,
someone from the Superior Court’s general counsel’s office would accompany her to any
meeting with the prosecuting authorities. Id. Plaintiff declined and told Weaver “that she was
comfortable meeting with the AUSA without the Court’s general counsel present.” Id. ¶ 28.
Plaintiff alleges that this did not sit well with Odom, who “angrily told Plaintiff that she did not
like how Plaintiff had handled the situation,” and ordered plaintiff to “report to the Court’s
general counsel’s office the next day to provide a full accounting of the information that she had
provided” to the authorities. Id. Plaintiff did so.2 Nevertheless, plaintiff claims Odom “several
times expressed” dissatisfaction over plaintiff’s cooperation with prosecuting authorities and
informed plaintiff that “the Brooks criminal proceedings reflected poorly on the [Superior] Court
and the CSSD in particular.” Id. ¶ 31.
The investigation was a source of tension between plaintiff and Odom, and contributed to
plaintiff’s medical problems as well. Specifically, plaintiff alleges that she suffers from “post-
traumatic stress disorder” (“PTSD”) as a result of sexual abuse she suffered as a child and later
2
In May 2018, plaintiff received a second subpoena, this time directing her to testify at Brooks’ trial.
Compl. ¶ 30. That trial never occurred, as Brooks apparently pled guilty. Id.3
as an adult in 2006. Id. ¶ 9. Plaintiff claims that, upon learning of the sexual abuse involved in
the Brooks incident, she “began experiencing issues with her PTSD, including anxiety,
depression, panic attacks and headaches.” Id. ¶ 32.
B. Plaintiff’s Supervisor Makes Inappropriate Sexual Comments
Plaintiff’s problems at work were not limited to the Brooks investigation. In November
2017, her “immediate supervisor[],” id. ¶ 17, Weaver engaged plaintiff in conversation while the
two were at work, id. ¶ 34. Unsolicited, Weaver told plaintiff that he had begun having sex with
prostitutes when he was in the military and, after being married, he continued to have sex with
prostitutes. Id. Plaintiff was “shocked and offended” and told Weaver that “his comments were
inappropriate and left his presence.” Id. According to plaintiff, this was not the first time
Weaver had “ma[de] . . . inappropriate remarks about females” in her presence. Id. ¶ 33. For
instance, plaintiff recalls Weaver saying in a 2016 meeting that, to break up a fight between two
female juveniles, he “had to slam that bitch.” Id. Plaintiff also asserts that on another occasion,
as CSSD staff attempted to restrain a female juvenile, Weaver stated “[y]ou are a bunch of
pussies.” Id. According to plaintiff, Weaver’s November 2017 comments about sex with
prostitutes triggered symptoms of her PTSD, causing “anxiety, depression, panic attacks and
headaches.” Id. ¶ 35.
A few months later, in January 2018, plaintiff was off duty when she received a call from
Weaver asking her to accompany him as he dropped off a juvenile. Id. ¶ 36. “[A]nxious and
worried” on account of Weaver’s November 2017 comments, plaintiff refused and told Weaver
that “she was off duty and,” in any event “she had another commitment.” Id. Weaver responded
that she was being “insubordinate.” Id. Shortly thereafter, plaintiff discussed the incident with
another of her “immediate supervisors,” Acting Supervisory Probation Officer Lisa McCants, id.4
¶¶ 17, 37. Plaintiff explained to McCants why she had declined Weaver’s request to join him
and specifically described Weaver’s November 2017 conversation and that she now “felt very
uncomfortable working with him.” Id. ¶ 37. She also divulged that “Weaver’s comments were
causing issues with her PTSD and anxiety,” id. ¶ 38, and ultimately “requested a transfer from
under [Weaver’s] supervision.” Id. ¶ 37. McCants responded by assuring plaintiff that “she was
a good, valued employee” and that “she could report to her, rather than” Weaver. Id. ¶ 38.
Although “McCants told plaintiff that she would speak to . . . Weaver about his behavior,”
plaintiff alleges that McCants “attempted to excuse or minimize” his comments. Id. According
to plaintiff, McCants did not report Weaver’s conduct to Assistant Deputy Director Roberson-
Adams and “no effective corrective actions were taken.” Id. In fact, plaintiff asserts that
Weaver “[s]ubsequently . . . continued to make inappropriate comments that were sexual in
nature.” Id.C. A New Health Condition Causes Plaintiff’s Increased Absences
Plaintiff’s work issues were compounded when, in January 2018, she was diagnosed with
adenomyosis. Id. ¶ 39.3 According to plaintiff, adenomyosis is “a debilitating physical
condition that affects multiple physical and mental activities, including, but not limited to,
walking, sitting, lifting, breathing and working.” Id. ¶ 8. The condition “causes severe pain that
adversely affects Plaintiff’s ability to work, focus and concentrate.” Id. In March 2018, two
months after plaintiff’s diagnosis, she informed McCants that she suffered from adenomyosis
3
Both plaintiff in her complaint and defendant in its briefing consistently refer to “andeomyosis.” See, e.g.,
Compl. ¶ 8; Def.’s Mem. of Points & Auths. Supp. Def.’s Mot. (“Def.’s Mem.”), at 3, ECF No. 7. In plaintiff’s
charge of discrimination submitted to the Equal Employment Opportunity Commission (“EEOC”), however, she
explains that “adenomyosis” is among her disabilities. Def.’s Mot., Ex. 1 at 2, ECF No. 7-1. The spelling in
plaintiff’s EEOC charge appears to be correct and is thus used throughout this opinion. Compare Adenomyosis,
Merriam-Webster.com Medical Dictionary, https://www.merriam-webster.com/medical/adenomyosis (last visited
Aug. 3, 2020), with Andeomyosis, Merriam-Webster.com Medical Dictionary, https://www.merriam-
webster.com/medical/andeomyosis (“The word you’ve entered isn’t in the medical dictionary.”) (last visited Aug. 3,
2020).
5
and described its effects. Id. ¶ 39. One day, in May 2018, plaintiff was experiencing “severe
pain from her” adenomyosis, so she called in sick “[c]onsistent with CSSD practices.” Id. ¶ 40.
The same day, Robert Smith, a male probation officer with no disabilities failed to appear for his
shift without reporting sick or requesting a day off. Id. Plaintiff alleges that Weaver rebuked
and criticized her for calling in sick but did not discipline Smith in any way. Id.The next month, on June 2, 2018, plaintiff and a male co-worker were on duty at BARJ.
As no youth were present at the facility that day, plaintiff and her co-worker asked McCants for
permission to leave early. Id. ¶ 42. McCants responded “okay,” and plaintiff and her co-worker
left for the day. Id. On July 12, 2018, however, Weaver recommended a 10-day suspension for
plaintiff’s actions on June 2, without recommending a suspension for her co-worker. Id. ¶ 43.
On August 7, 2018, plaintiff appealed the proposed suspension to CSSD Director Odom. Id.
¶ 44. At a meeting one week later with Odom and McCants about the proposed suspension,
plaintiff told both supervisors about her disabilities, which she explained were the reason she
was frequently reporting off from work. Id. ¶ 45. She also told McCants and Odom that her
PTSD had been exacerbated by Weaver’s November 2017 comments about prostitutes and that
her physician had recommended that she take FMLA leave. Id. During the meeting, Odom
agreed to lower the proposed suspension to a letter of reprimand. Id.Following that meeting, in mid-August 2018, plaintiff asked for the appropriate forms to
request intermittent FMLA leave, which she and her physician completed in early September of
that year. Id. ¶¶ 46–47. After she submitted the completed forms, plaintiff was approved for
“continuous and intermittent FMLA leave.” Id. ¶ 47.
On August 25, 2018, plaintiff again met with Odom and McCants, but this time both
Weaver, and CSSD Deputy Director Malcolm Woodland were also present. Id. ¶ 48. While the
6
complaint is unclear as to what precipitated this meeting, plaintiff explains that she told all of the
staff present about Weaver’s November 2017 comments and that she found them “offensive and
unwelcome.” Id. Plaintiff noted that she had reported Weaver’s conduct to McCants in January
2018, and McCants acknowledged receiving this report but admitted that she had never spoken
to him about his conduct, despite having promised to do so. Id. In plaintiff’s telling, Odom was
unimpressed and “blandly told Plaintiff that she and . . . Weaver needed to find a way to get
along.” Id.D. The Juvenile Incident and Plaintiff’s Termination
On September 19, 2018, both plaintiff and Weaver were on duty at BARJ when Weaver,
“without provocation or explanation,” threw a stress ball at a 13-year-old female juvenile whom
plaintiff calls “JN.” Id. ¶ 49. This caused JN to become “highly agitated.” Id. ¶ 50. After
dinner that evening, JN “demanded a second juice box” from plaintiff. Id. ¶ 51. When plaintiff
told her that she could not have a second juice box, JN ignored her and took one from the cooler
anyway. Id. Plaintiff asked JN repeatedly to return the juice box and not to open it. Id. ¶ 52. JN
ignored these directions, too. Id. She “opened the juice box and advanced aggressively to hit
Plaintiff.” Id. Plaintiff attempted to restrain JN by holding her wrist and simultaneously reached
around JN’s shoulder to attempt to grab the juice box. Id. JN squeezed the juice box in
plaintiff’s face and ran away down a hallway. Id. She tripped as she was running and was
“restrained by [a] Court security officer.” Id. ¶ 53. Plaintiff felt that she had been assaulted and
“asked the Court security to detain JN and to call” the police to report the assault. Id. Officers
arrived at the scene and plaintiff described what had happened. Id. ¶ 54. She was asked to report
to the District of Columbia’s Office of the Attorney General (“OAG”) the next day for a follow-
up interview. Id. ¶ 55. JN was taken into custody. Id. ¶ 54. Before she left BARJ that night,
7
plaintiff sent an e-mail to both Weaver and McCants informing them of the incident. Id. ¶ 57.
The next day, plaintiff “prepared an incident report” and sent it to both McCants and Weaver.
Id. She also reported to OAG as directed by police officers the night before and again “truthfully
recounted the previous evening’s events.” Id. ¶ 58.
Neither McCants nor Weaver discussed the JN incident with plaintiff until September 25,
when she met with McCants, Weaver, and Roberson-Adams. Id. ¶¶ 60–61. At the meeting,
plaintiff described in detail her actions during the JN incident while Roberson-Adams asked
questions and, according to plaintiff, listened only “partially.” Id. ¶ 61. Although plaintiff
explained how she had held JN’s wrist in order to keep JN from hitting her and how she had
reached around JN’s shoulder in an effort to retrieve the juice box in her hand, “Roberson-
Adams apparently failed to capture that explanation in the notes that she was entering in her
laptop computer.” Id.That evening, after the meeting had concluded, Roberson-Adams sent plaintiff follow-up
questions via e-mail, many of which plaintiff felt she had already answered at the meeting. Id.
¶ 62. The message was sent to plaintiff’s work e-mail address. Id. Plaintiff called in sick on
both September 26 and 27 owing to “cramping from her [adenomyosis], anxiety and panic
attacks,” and, consequently, missed both Roberson-Adams’ September 25 e-mail and another e-
mail Roberson-Adams sent on September 27. Id. ¶¶ 63–64. On her return to work on September
28, 2018, plaintiff saw Roberson-Adams’ e-mails for the first time, but did not respond. Id. ¶ 65.
During her shift that day, Weaver “questioned her about her whereabouts” and “interrogated” her
about an entry she had made in a Superior Court computer system on September 26, when she
was supposedly on sick leave. Id. Weaver also “expressed doubts that Plaintiff accurately had
recorded her activities” in that same system for work she completed on September 20, 2018. Id.8
Plaintiff explained that her entries were accurate. Id. Following what plaintiff calls Weaver’s
“baseless accusations,” she became ill and reported off as sick for the remainder of her shift. Id.The next day, September 29, 2018, while plaintiff was on duty at BARJ, Roberson-
Adams demanded plaintiff send her written answers to the questions in her September 25 e-mail.
Id. ¶ 67. Plaintiff did not respond to the e-mail until October 1, 2018. Id. ¶ 68. Roberson-
Adams responded “expressing skepticism concerning[] Plaintiff’s explanations.” Id. That same
day, plaintiff met with CSSD Director Odom to discuss the JN incident. Id. ¶ 69. Plaintiff
asserts that Odom showed her video of the incident which “verified” plaintiff’s account of
events. Id. Nonetheless, “Odom accused Plaintiff of assaulting JN,” a charge which plaintiff
“adamantly denied.” Id. Plaintiff complained that she had been “provided no training on how to
de-escalate situations involving belligerent, non-compliant juveniles.” Id. Indeed, according to
plaintiff, she and other probation officers had “frequently . . . pleaded with CSSD managers to be
provided training and written policies and procedures to enable them to better manage juveniles’
behavior,” especially in “situations involving non-compliant and aggressive juveniles.” Id. ¶ 22.
Ultimately, on October 9, 2018, plaintiff was issued a letter of reprimand. Id. ¶ 70.
Moreover, plaintiff was “assessed two . . . hours of AWOL” for leaving work early back on June
2, 2018. Id. On October 22, Roberson-Adams recommended plaintiff’s termination and, on
October 24, Odom issued a notice of intent to recommend termination. Id. ¶¶ 71–72. Plaintiff
responded on October 31 “disput[ing] vigorously the basis for her proposed termination,” but
nevertheless received a “Final Determination” terminating her employment on November 26,
2018. Id. ¶¶ 73–74. Plaintiff appealed her termination and was given an evidentiary hearing on
March 25 and 27, 2019, but to no avail. Id. ¶ 75. Her termination was affirmed on May 15,
2019. Id.9
As her internal appeal of her termination was pending, plaintiff filed a charge of
discrimination with the EEOC on January 7, 2019. Id. ¶ 76; see also Def.’s Mot., Ex. 1 (“EEOC
Charge”), ECF No. 7-1.4 On her EEOC charge cover sheet, plaintiff marked boxes indicating
that she was charging “discrimination based on” sex, disability, and retaliation. EEOC Charge at
1. The EEOC chose not to take action and plaintiff received a “Dismissal and Notice of Rights”
from the EEOC on July 3, 2019. Compl. ¶ 6. On October 1, 2019, plaintiff filed the instant suit
alleging (1) discrimination on the basis of her sex (Count I), id. ¶¶ 85–92; (2) retaliation in
violation of Title VII (Count II), id. ¶¶ 93–101; (3) discrimination on the basis of her disabilities
(Count III), id. ¶¶ 102–09; (4) retaliation in violation of the ADA (Count IV), id. ¶ 110–21; and
(5) interference with the exercise of her FMLA rights (Count V), id. ¶ 122–29. She requests,
inter alia, $300,000 in damages. Id. at 25. As noted, pending before the Court is defendant’s
motion to dismiss Counts II, III, and IV, pursuant to Federal Rule of Civil Procedure 12(b)(6),
for failure to state a claim. See Def.’s Mem. of Points & Auths. Supp. Def.’s Mot. (“Def.’s
Mem.”), ECF No. 7. That motion is now ripe for review.
I. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), 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) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). A facially plausible claim pleads facts that are not “‘merely consistent with’ a
defendant’s liability” but that “allow[] the court to draw the reasonable inference that the
4
At the motion to dismiss stage, consideration of “matters outside the pleadings” typically requires that the
motion instead be “treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(b)(6). That conversion,
however, is not triggered by consideration of “documents incorporated into the complaint by reference [or] matters
of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
As defendant points out, and plaintiff does not contest, the charge of discrimination plaintiff filed with the EEOC is
“incorporated by reference into the complaint,” Def.’s Mem. at 1 n.1, and thus may be considered in resolving the
pending motion for partial dismissal.
10
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir.
2012). In deciding a motion under 12(b)(6), the court must consider the whole complaint,
accepting all factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555.
Courts do not, however, “assume the truth of legal conclusions, nor do [they] ‘accept inferences
that are unsupported by the facts set out in the complaint.’” Arpaio v. Obama, 797 F.3d 11, 19
(D.C. Cir. 2015) (alteration in original) (internal citation omitted) (quoting Islamic Am. Relief
Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)).
II. DISCUSSION
Defendant moves to dismiss plaintiff’s claim, in Count II, that she was the victim of
“unlawful retaliation in violation of . . .Title VII,” Compl. at 20 (capitalization altered); her
claim, in Count III, that she suffered “discrimination in violation of . . . the ADA,” id. 21
(capitalization altered); and her claim, in Count IV, that she was the victim of “unlawful
retaliation in violation of . . . the ADA,” id. at 22 (capitalization altered). As the analytical
framework for defendant’s bid to dismiss Counts II and IV are nearly identical, those two counts
are discussed first, before turning to Count III.
A. Count II Survives
Title VII’s retaliation provision makes “unlawful” action by an “employer to discriminate
against” an employee “because he has opposed any practice made an unlawful employment
practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).
Phrased disjunctively, Title VII thus protects two kinds of conduct from an employer’s
retaliatory acts: (1) opposition to “practice[s] made” unlawful by Title VII; and
11
(2) “participat[ion] in any manner” in proceedings related to Title VII. Id. To maintain a
retaliation claim successfully, plaintiff “must show” that (1) she “engaged in” one of those two
kinds of “statutorily protected activit[ies]”; (2) that she “suffered a materially adverse action” at
defendant’s hands; and (3) that a “causal link connects” the protected activity and the adverse
action. Howard R. L. Cook & Tommy Shaw Found. ex rel. Black Emps. of the Lib. of Cong. v.
Billington, 737 F.3d 767, 772 (D.C. Cir. 2013). At the motion to dismiss stage, plaintiff’s
“complaint must ‘contain sufficient factual matter, accepted as true,’ to plausibly establish those
three elements.” Id. (quoting Iqbal, 556 U.S. at 678).
Defendant asserts that plaintiff’s complaint falls short of establishing the first and third
elements. According to defendant, (1) “plaintiff has not alleged any protected activity under
Title VII,” Def.’s Mem. at 7 (capitalization altered); and (2) in any event, “plaintiff has not
alleged a causal connection between any allegedly protected act and her reprimand or
termination,” id. at 11 (capitalization altered). Each of defendant’s challenges to Count II is
addressed in turn.
1. Plaintiff Has Adequately Alleged Protected Conduct under Title VII
To satisfy the first element of her retaliation claim, plaintiff maintains that both Odom
and Roberson-Adams recommended her termination in retaliation for “opposing unlawful
employment practices and participating in” what she terms “EEO activities.” Compl. ¶ 95.
Specifically, plaintiff says she was fired because she “participat[ed] in the Brooks criminal
investigation and oppos[ed] . . . Weaver’s offensive and harassing sexual comments about
prostitutes.” Id. ¶ 94. She also notes that she “engaged in further protected activities when she
filed her Charge of Discrimination with the EEOC.” Id. ¶ 97.
12
Defendant first takes issue with plaintiff’s allegation that she “engaged in protected
activities” when she “participat[ed] in the Brooks criminal investigation.” Id. ¶ 94. In
defendant’s view, Brooks’ actions were not practices “made unlawful by” by Title VII and,
moreover, the investigation into his misconduct was not “an investigation, proceeding, or hearing
under” Title VII. 42 U.S.C. § 2000e-3(a); see also Def.’s Mem. at 8–9. No matter how
vociferously plaintiff opposed Brooks’ conduct and no matter how active she was in the
investigation into his misdeeds, defendant argues that such opposition and participation could not
trigger Title VII’s retaliation provisions. Plaintiff does not respond to this argument and has
therefore conceded that her participation in the investigation of and opposition to Brooks’
conduct were not protected activities. See Pl.’s Opp’n at 15 (focusing entirely on plaintiff’s
“vociferous[] oppos[ition to] what she considered inappropriate sexual comments and
harassment by . . . Weaver”); see also Damarcus S. v. Dist. of Columbia, 190 F. Supp. 3d 35, 48
(D.D.C. 2016) (explaining that when a party “does not respond to [an] argument,” the argument
is “deemed conceded” (citing DIRECTV, Inc. v. FCC, 110 F.3d 816, 829 (D.C. Cir. 1997)).
Remaining, then, is defendant’s argument that plaintiff’s conduct following Weaver’s
November 2017 comments does not constitute protected activity under Title VII. Defendant’s
challenge in this regard is difficult to pin down. Initially, defendant relegates to a footnote the
argument that plaintiff’s allegations are insufficient because she did “not allege that she believed,
much less stated, that Weaver’s isolated comments constituted any type of unlawful
discrimination.” Def.’s Mem. at 9 n.5. Following plaintiff’s concession that her participation in
the Brooks investigation did not trigger Title VII’s retaliation protection, defendant’s focus
shifted to plaintiff’s opposition to Weaver’s comments. In reply, defendant again argues that
plaintiff’s allegations are insufficient because she “never alleged she believed that Weaver’s
13
isolated comments violated Title VII, much less that she told Weaver or anyone else that she
believed they did.” Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”), at 2, ECF No. 10. In addition,
defendant asserts that, even if plaintiff had expressed her subjective belief that she was opposing
conduct made unlawful by Title VII, she had “not alleged specific facts that, if true, would show
that” her belief was reasonable. Id. at 3. Defendant thus appears to mount a two-pronged attack
on this aspect of plaintiff’s complaint: (1) plaintiff has failed to allege she believed she was
opposing a Title VII violation and failed to tell anyone that she believed Weaver’s conduct
violated Title VII; and (2) even if she had, her subjective belief that Weaver’s comments violated
Title VII was unreasonable.
Defendant’s apparent contention that, in order to constitute protected activity, plaintiff
was required to voice her belief that Weaver’s comments violated Title VII finds no support in
fact or, for that matter, in law. Indeed, the Supreme Court has made clear that “ostensibly
disapproving account[s] of sexually obnoxious behavior” are “covered by the opposition clause”
of Title VII’s retaliation provision. Crawford v. Metro. Gov’t of Nashville and Davidson Cnty.,
Tenn., 555 U.S. 271, 276 (2009). Plaintiff in this case alleges that she gave just such
“disapproving account[s]” of what she perceived to be “sexually obnoxious behavior” on no less
than three occasions. Id. In January 2018, plaintiff told McCants that after “her November 2017
conversation” with Weaver about his activities with prostitutes, “she felt very uncomfortable
working with him and requested a transfer.” Compl. ¶ 37. On August 14, 2018, when plaintiff
met with McCants and Odom after Weaver had recommended her suspension, she told them both
that her PTSD symptoms had been exacerbated by Weaver’s comments. Id. ¶ 45. Finally, in a
meeting with McCants, Odom, Weaver, and CSSD Deputy Director Woodland on August 25,
2018, plaintiff again “described [Weaver’s] November 2017 comments” and expressed that she
14
found the comments both “offensive and unwelcome.” Id. ¶ 48. Defendant may be right that
plaintiff nowhere alleges that she said the magic words “I believe Weaver’s comments violated
Title VII,” but nothing in Title VII required her to do so. Cf. Crawford, 555 U.S. at 277 (noting
that merely “standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker
for discriminatory reasons” would constitute opposition). She need only have expressed her
opposition to the conduct, which she adequately alleges she did by repeatedly complaining to her
superiors that she found Weaver’s comments “offensive and unwelcome.” Compl. ¶ 48.
Defendant’s second contention that even if plaintiff believed she was opposing unlawful
conduct, her belief was unreasonable, is similarly unavailing. Although the opposition clause of
Title VII’s retaliation provision states that it protects only employees who have “opposed [a]
practice made an unlawful employment practice” by Title VII, 42 U.S.C. § 2000e-3(a), the D.C.
Circuit has “interpreted this phrase as extending to a practice that the employee reasonably and
in good faith believed was unlawful under the statute,” even if the practice was not actually a
violation of the anti-discrimination law, McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir.
2012) (emphasis omitted) (citing George v. Leavitt, 407 F.3d 405, 417 (D.C. Cir. 2005) and
Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981)). If, however, the
practice a plaintiff opposes “is not one that could reasonably and in good faith be regarded as
unlawful under Title VII, this element is not satisfied.” Id. (citing Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 271 (2001)). Defendant maintains that “[e]ven if Plaintiff found
Weaver’s November 2017 statements about prostitutes offensive,” it was not reasonable to
believe that those comments constituted a violation of Title VII. Def.’s Reply at 2–3.
Defendant relies on George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005), in which case a
black woman alleged that her co-workers “made insulting and demeaning statements to her,”
15
including telling her “go back to Trinidad” and to “go back to where [she] came from.” Id. at
408 (alteration in original). The woman reported each of these incidents to her supervisor. Id.She was ultimately terminated. Id. at 409. She sued, claiming, inter alia, that she had been
subjected to a hostile work environment and that she had been retaliated against for making her
complaints. On summary judgment, the Circuit rejected both claims. Id. at 416–17. First
addressing her hostile work environment claim, the Circuit explained that, although Title VII is
violated “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment,” no such violation occurs unless the allegedly
harassing conduct is truly “extreme.” Id. at 416 (first quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 78 (1998), then quoting Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998)). Indeed, “simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to” Title VII violations. Id. (quoting Faragher, 524 U.S. at
788). The Circuit determined that the allegedly harassing acts about which the plaintiff
complained were “[a]t best . . . exactly the sort of ‘isolated incidents’ that the Supreme Court has
held cannot form the basis for a Title VII violation.” Id. at 417. Moving on to her retaliation
claim, the Circuit held that “the incidents of which [the plaintiff] complained could not
reasonably be thought to constitute an abusive working environment in violation of Title VII,”
and her retaliation claim was thus doomed. Id.
Defendant’s reliance on George is misplaced. That case was an appeal from the grant of
summary judgment, a far different procedural posture than this one. In the employment
discrimination context, the Supreme Court has time and again cautioned against allowing the
“evidentiary standard[s]” used to evaluate motions for summary judgment like the one at issue in
16
George, to morph into “rigid pleading standard[s]” at the motion to dismiss stage. Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 510–12 (2002). While a summary judgment plaintiff may be
required to “establish[] a prima facie case” of discrimination, id. at 511, which, for retaliation
claims includes “showing . . . that [she] engaged in statutorily protected activity,” Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009), a plaintiff resisting a motion to dismiss need not
“establish” anything. At the motion to dismiss stage, a plaintiff need only plead facts that could
“plausibly” establish the elements of a retaliation claim. Billington, 737 F.3d at 772. This sets
the instant inquiry apart from the one the Circuit undertook in George, which was uninterested in
the plausibility of the plaintiff’s claims, but rather asked whether the elements of a prima facie
case had in fact been established.
The relevant standard here is far less exacting. Plaintiff’s complaint need not establish
that the conduct she opposed was unlawful. Since one way to engage in protected activity is to
oppose “a practice that [she] reasonably and in good faith believed was unlawful” under Title
VII, McGrath, 666 F.3d at 1380 (emphasis omitted), the question to be answered on the instant
motion is: Has plaintiff alleged “sufficient factual matter, accepted as true,” Iqbal, 556 U.S. at
678, plausibly to establish the reasonableness of her belief regarding Weaver’s comment
violating Title VII?
The answer to that question is “yes.” Plaintiff explains that she considered Weaver’s
November 2017 comments about his exploits with prostitutes to be “inappropriate” and
expressed her belief that the comments amounted to “harassment by her immediate supervisor.”
Pl.’s Opp’n at 15. Plaintiff thus appears to suggest that Weaver’s comments created a hostile
work environment in violation of Title VII. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
66 (1986) (“[A] plaintiff may establish a violation of Title VII by proving that discrimination
17
based on sex has created a hostile or abusive work environment.”). Defendant attempts to brush
off the incident as merely a single “offensive utterance” that fails to “satisfy Title VII’s
demanding standard” to establish a hostile work environment. Def.’s Reply at 2 (quoting
George, 407 F.3d at 416). True enough, “cases in which a single incident can create a hostile
work environment are rare[,] . . . [b]ut saying that a single incident of workplace conduct rarely
can create a hostile work environment is different from saying that a single incident never can
create a hostile work environment.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579 (D.C. Cir.
2013) (emphasis in original) (Kavanaugh, J., concurring). As already explained above,
moreover, plaintiff need not establish or even plausibly allege that Weaver’s comments fall in
the narrow class of meritorious single-incident hostile work environment claims. Instead, she
need only allege facts to establish that her belief those comments violated Title VII was plausibly
reasonable. Plaintiff has alleged that her immediate supervisor, unsolicited, regaled her with
stories of his past and ongoing exploits with prostitutes. That she might reasonably and in good
faith believe that such an incident was “sufficiently severe” so as to “create a hostile work
environment” is doubtless plausible. Id. Plaintiff has thus done enough to allege that she
engaged in activity protected by Title VII’s retaliation provision.
2. Plaintiff Has Adequately Alleged a Causal Connection between Her
Title VII Protected Activity and Her Termination
Defendant next takes aim at the third element of a Title VII retaliation claim: whether
plaintiff has plausibly alleged that a “causal link connects” her protected activity and the adverse
action she suffered. Billington, 737 F.3d at 772. Specifically, defendant contends that the
adverse actions suffered by plaintiff are too temporally “remote” from her protected activities
and plaintiff has failed to allege any “other causal connection.” Def.’s Mem. at 11–12. Plaintiff
responds that “there was close temporal proximity between [her] protected activities and the
18
materially adverse actions taken against her,” and even if not, “there are additional indicia of
causality” contained in her complaint. Pl.’s Opp’n at 17–18.
“It is well established that evidence of a pattern of antagonism following closely on the
heels of protected activity and related to the challenged employment action may establish the
causation element of a Title VII plaintiff’s” retaliation claim. Allen v. Johnson, 795 F.3d 34, 46
(D.C. Cir. 2015) (citing Hamilton v. Geithner, 666 F.3d 1344, 1357–59 (D.C. Cir. 2012)). The
precise point in time when an adverse action becomes too temporally remote to, on its own, raise
an inference of causation is not fixed. Nevertheless, “the Supreme Court has recognized that the
cases that accept mere temporal proximity . . . as sufficient evidence of causality to establish a
prima facie case uniformly hold that the temporal proximity must be very close” and cited
“approvingly cases where three- and four-month intervals were found insufficient.” Pueschel v.
Chao, 955 F.3d 163, 167 (D.C. Cir. 2020) (internal quotation marks and alteration omitted)
(quoting Breeden, 532 U.S. at 273).
In order to measure the temporal proximity between plaintiff’s protected activities and
the adverse actions she allegedly suffered, the dates of each must be determined. As discussed
above, plaintiff has adequately alleged that she engaged in protected activities on three
occasions. First in January 2018, Compl. ¶ 37, next on August 14, 2018, id. ¶ 45 and finally on
August 25, 2018, id. ¶ 48. The parties dispute, however, which actions taken by plaintiff’s
superiors were “materially adverse.” Billington, 737 F.3d at 772; compare Def.’s Mem. at 11
(identifying “four allegedly retaliatory acts” all occurring in “October and November 2018”)
with Pl.’s Opp’n at 17 (explaining that plaintiff’s superiors “rebuked [her] in May 2018,” see
Compl. ¶ 40, “recommended her for a 10-day suspension on July 12, 2018,” see id. ¶ 43, and
then recommended and effectuated her termination in October and November of 2018). They
19
agree, or at least do not dispute, that when plaintiff was “issued a letter of reprimand” on October
9, 2018, she suffered an adverse action. Def.’s Mem. at 11; Pl.’s Opp’n at 17. Two of plaintiff’s
alleged protected activities thus occurred less than two months prior to an action the defendant
concedes was adverse. See Hamilton, 666 F.3d at 1358 (indicating that it is the protected activity
that occurs latest in time that matters for the calculation of temporal proximity). Plaintiff’s
superiors recommended her termination not long after that reprimand, Compl. ¶¶ 71–72, and her
termination was completed a few weeks later, id. ¶ 74.
The temporal proximity between protected activity and adverse action alleged in
plaintiff’s complaint could plausibly establish a causal link between the two. Indeed, a two-
month gap between protected activity and a defendant’s “first step toward [an] adverse action”
was held to be sufficient to meet a plaintiff’s summary judgment burden in a retaliation case.
Hamilton, 666 F.3d at 1358–59. If a showing “is sufficient to satisfy a plaintiff’s burden of
establishing a prima facie case at the summary judgment stage,” that showing “is certainly
enough to survive a motion to dismiss.” Harris v. Dist. of Columbia Water & Sewer Auth., 791
F.3d 65, 69 (D.C. Cir. 2015) (citing Swierkiewicz, 534 U.S. 506).
Even if the two-month period between plaintiff’s complaints about Weaver’s comments
and her reprimand were not enough plausibly to establish causality, plaintiff’s complaint
contains other allegations that buttress a potential causal link. For instance, plaintiff alleges that
“[d]uring her tenure as a” probation officer, her “performance frequently was rated as ‘Exceeds
Expectations’ and Plaintiff never was rated as less than ‘Commendable.’” Compl. ¶ 13. She
also alleges that she was told “she was a good, valued employee.” Id. ¶ 38. Such allegations are
circumstantial evidence of causation because they plausibly discredit one of the “most common
legitimate reasons for termination: performance below the employer’s legitimate expectations.”
20
Harris, 791 F.3d at 69 (internal quotation marks omitted) (quoting George, 407 F.3d at 412).
Moreover, plaintiff’s complaint contains a list of three male co-workers who, she alleges, did not
engage in protected activities. According to plaintiff, when these individuals assaulted juveniles
in their care—as plaintiff was alleged to have done—none were disciplined. Compl. ¶ 78. These
comparators also help to make out a plausible causal link, because, if they are accepted as true,
they cast doubt on another possible legitimate reason for plaintiff’s termination, namely the
incident with JN.
***
Count II of plaintiff’s complaint adequately alleged both that she engaged in protected
activities and a causal link between those activities and her reprimand and termination. Given
that defendant does not dispute that plaintiff suffered an adverse action, her complaint contains
“sufficient factual matter, accepted as true, to plausibly establish” the three elements of a
retaliation claim. Billington, 737 F.3d at 772. Plaintiff has thus done enough to shepherd Count
II of her complaint past defendant’s motion to dismiss.
B. Count IV Survives
Count IV of plaintiff’s complaint alleges that she suffered “unlawful retaliation in
violation of the . . . ADA.” Compl. at 22 (capitalization altered). Like Title VII, the ADA
contains a retaliation provision. Also like Title VII, the ADA’s retaliation provision makes it
unlawful to “discriminate against any individual because such individual has opposed any act or
practice made unlawful” by the ADA or “because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing” under the
ADA. 42 U.S.C. § 12203(a). The three elements of an ADA retaliation claim are identical to
those necessary to state a Title VII retaliation claim. See Smith v. Dist. of Columbia, 430 F.3d
21450, 455 (D.C. Cir. 2005) (listing the “three elements of a prima facie case of [ADA] retaliation”
as (1) the plaintiff has “engaged in protected activity”; (2) the plaintiff “was subjected to adverse
action by the employer”; and (3) “there existed a causal link between the adverse action and the
protected activity” (internal quotation marks and citation omitted)).
With respect to her ADA retaliation claim, plaintiff asserts that, “[b]etween January 2018
and December 2018,” she “oppose[d] the interference with her rights protected by the ADA by
informing” her superiors “of her protected disabilities, as well as [by] making formal and
informal complaints of disability discrimination to Defendant’s representatives, including”
defendant’s human resources office, Odom, Roberson-Adams, Weaver and McCants. Compl.
¶ 111. Defendant challenges the sufficiency of plaintiff’s pleading of her ADA retaliation claim
on three grounds, contending that plaintiff (1) has not exhausted her ADA retaliation claim;
(2) has not adequately alleged that she engaged in protected activities; and (3) has failed to allege
a causal link between any alleged protected activity and the adverse employment action she
suffered. Def.’s Mem. at 9–13. Those challenges to Count IV are addressed seriatim.
1. Plaintiff Has Exhausted Her ADA Retaliation Claim
Before a plaintiff may make an ADA claim in federal court, she “must exhaust [her]
administrative remedies by filing an EEOC charge and giving that agency a chance to act on it.”
Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (citing 42 U.S.C.
§ 12117(a) (explaining that the enforcement procedures applicable to Title VII claims also apply
to ADA claims)). Plaintiff did so on January 7, 2019. Compl. ¶ 5; see also EEOC Charge at 1.
Five months later plaintiff’s EEOC charge was dismissed, Compl. ¶ 6, giving her the right to file
suit, 42 U.S.C. § 2000e-5(f)(1) (explaining that if an EEOC charge “is dismissed by the
Commission” the “person claiming to be aggrieved” may file suit “within ninety days” of
22
receiving notice of such dismissal). An ADA lawsuit “following the EEOC charge,” however,
“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)
(internal quotation marks omitted) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th
Cir. 1994)). A claim is “reasonably related” to an EEOC charge if, “at a minimum” it would
“arise from the administrative investigation that can reasonably be expected to follow the charge
of discrimination.” Haynes v. Dist. of Columbia Water & Sewer Auth., 924 F.3d 519, 526–27
(D.C. Cir. 2019). This exhaustion requirement serves to “give the agency an opportunity to
resolve the claim administratively before the employee files her complaint in district court.” Id.
at 527 (internal quotation marks and alterations omitted) (quoting Payne v. Salazar, 619 F.3d 56,
65 (D.C. Cir. 2010)).
Defendant’s argument that “[n]othing in the extensive declaration that Plaintiff filed with
her EEOC charge alleges retaliation for activities protected by the ADA,” appears premised on
the assertion that plaintiff failed to allege adequately that she engaged in activities protected by
the ADA. Def.’s Mem. at 13. This misconstrues the exhaustion inquiry. The question is not
whether plaintiff adequately alleged retaliation for activities protected by the ADA in her EEOC
charge, but rather whether the factual allegations in the EEOC charge would have set the EEOC
down the path to “uncover[ing] evidence relevant to [plaintiff’s] . . . discrimination claims” in
any resulting investigation. Haynes, 924 F.3d at 528. There are several indications that
plaintiff’s EEOC charge would have done just that. For one, when the EEOC charge form asked
plaintiff for the basis of her charge of discrimination, she checked the boxes for “sex,”
“disability,” and finally, “retaliation.” EEOC Charge at 1. This immediately sets plaintiff’s
charge apart from those at issue in cases relied on by defendant. Def.’s Mem. at 13 (citing
23
Jouanny v. Embassy of Fr. in the U.S., 280 F. Supp. 3d 3, 7 (D.D.C. 2017) (finding plaintiff
failed to exhaust retaliation claim when she “marked the box for ‘Age,’ but not the box for
‘Retaliation’”) and Grosdidier v. Chairman, Broad. Bd. of Governors, 774 F. Supp. 2d 76, 97
(D.D.C. 2011) (finding plaintiff did not exhaust a race discrimination claim when “she did not
list race as a basis for her claims on her . . . EEO complaint”)).
Moreover, plaintiff’s EEOC charge contained the facts upon which she bases her ADA
retaliation claim in the instant suit. As explained in more detail below, plaintiff claims that she
engaged in protected activity when “she disclosed her medical conditions to . . . McCants” and
when she “requested an accommodation by requesting a transfer away from [Weaver’s]
supervision.” Pl.’s Opp’n at 16. Defendant may disagree that these actions amounted to
protected activity, but cannot deny that the EEOC charge contains nearly identical allegations.
EEOC Charge at 3 (Plaintiff declaring “I . . . told Lisa that I was having issues with my anxiety”
and that “I felt uncomfortable working with Lawrence, and I wanted to transfer”). Although
plaintiff’s focus when she filed her charge may have been on the retaliation she believed she
suffered “for complaining about [Weaver’s] sexual comments,” EEOC Charge at 5, her current
ADA retaliation claim doubtless “grow[s] out of [the] allegations” in her EEOC charge, Haynes,
924 F.3d at 526 (quoting Park, 71 F.3d at 907). She has thus exhausted her ADA retaliation
claim.
2. Plaintiff Has Adequately Alleged Protected Activity under the ADA
As with the Title VII retaliation claim, defendant contends that plaintiff has failed to
allege adequately that she engaged in conduct protected by the ADA’s retaliation provision. In
the main, defendant takes issue with plaintiff’s allegation that she engaged in protected activities
24
by “informing [her superiors] of her protected disabilities.” Compl. ¶ 111.5 According to
defendant “[t]he ADA is clear that disclosing a medical condition is not a protected act.” Def.’s
Mem. at 10. Plaintiff does not respond to this argument and has thus conceded her opportunity
to do so. Damarcus S., 190 F. Supp. 3d at 48. Instead, plaintiff responds by arguing that she
engaged in protected activities when she “requested an accommodation by requesting a transfer
away from [Weaver’s] supervision” in a January 2018 meeting with McCants. Pl.’s Opp’n at
16.6
The D.C. Circuit has joined its “sister circuits in holding that the act of requesting in good
faith a reasonable accommodation is a protected activity under” the ADA. Solomon v. Vilsack,
763 F.3d 1, 15 & n.6 (D.C. Cir. 2014) (collecting cases). Plaintiff’s allegations plausibly
establish that she made such a good faith request. As she puts it, she told “McCants that . . .
Weaver’s comments were causing issues with her PTSD and anxiety” and “requested a transfer
from under his supervision.” Compl. ¶¶ 37–38. The ADA defines “reasonable accommodation”
as including “job restructuring,” “reassignment,” and “other similar accommodations.” 42
U.S.C. § 12111(9)(B). A transfer from the supervision of an individual whose presence
exacerbates plaintiff’s alleged disability could certainly constitute a reasonable accommodation.
5
Defendant also takes issue with plaintiff’s allegation that she made “formal and informal complaints of
disability discrimination” to CSSD officials. Compl. ¶ 111. Defendant claims that “the narrative portion of
[plaintiff’s] complaint . . . does not mention any formal complaints of disability discrimination and says nothing
about when the alleged complaints were made or what specifically she complained about.” Def.’s Mem. at 10 n.6.
Plaintiff does not respond to this argument. See Pl.’s Opp’n at 16. Although plaintiff’s complaint details numerous
occasions on which she “informed” her superiors of her alleged medical conditions, see, e.g., Compl. ¶¶ 39, 45,
defendant is correct that nothing suggests plaintiff ever made a formal or informal complaint about disability
discrimination to CSSD staff.
6
Plaintiff suggests that she also requested an accommodation in an August 2018 meeting with Odom and
McCants, citing paragraph 45 of her complaint. Pl.’s Opp’n at 16. That paragraph, however, indicates only that
plaintiff “informed . . . Odom and . . . McCants of her physical and mental conditions” and “explained that her
anxiety, depression and panic attacks, as well as her PTSD had been exacerbated by . . . Weaver’s comments about
having sex with prostitutes.” Compl. ¶ 45. Although she told Odom and McCants “that her physician
recommended that she take FMLA leave,” this is not the same as requesting an accommodation for her alleged
disabilities during that meeting. Id.25
Defendant does not disagree, but instead takes issue with whether plaintiff’s request was made in
good faith by noting that, in her opposition brief, she includes the statement that she “has not
alleged that [her medical] conditions can be ameliorated by effecting a transfer.” Pl.’s Opp’n at
20. Plaintiff made this statement in response to the suggestion by defendant, described in more
detail below, see infra Part III.C, that plaintiff’s disabilities were caused by her workplace and
that they “would abate if [she] worked somewhere else.” Def.’s Mem. at 15 (quoting Belton v.
Snyder, 249 F. Supp. 3d 14, 24–25 (D.D.C. 2017)). The context of plaintiff’s statement thus
clarifies that she was not arguing that a transfer would have been an ineffective accommodation,
but was instead simply stating that a different job would not heal or resolve her PTSD. Nothing
in plaintiff’s filings calls into doubt plaintiff’s good faith in making her transfer request.
Finally, defendant argues that plaintiff’s contention that her transfer request was in fact a
request for an accommodation is nothing more than an attempt to “amend her complaint in [her]
opposition brief.” Def.’s Reply at 3. To be sure, in describing Count IV, plaintiff focused on the
fact that she “inform[ed] [her supervisors] of her protected disabilities” and “made formal and
informal complaints of disability discrimination,” but plaintiff’s contention that she requested an
accommodation does not amend her complaint, as it relies entirely on the factual allegations
contained therein. Compl. ¶ 111. More clarity in her description of Count IV may have been
desirable, but plaintiff’s complaint, in describing her transfer request, has alleged sufficient
factual matter, accepted as true, plausibly to establish that she engaged in ADA protected
activities.
3. Plaintiff Has Adequately Alleged a Causal Link between Her
Protected Conduct and an Adverse Action
Finally, defendant again takes aim at the existence of a causal link vel non between
plaintiff’s alleged protected activities and the adverse actions plaintiff suffered. As with
26
plaintiff’s Title VII retaliation claim, defendant remains myopically focused on its perceived lack
of temporal proximity. See Def.’s Reply at 4. The standard for determining whether an ADA
complaint plausibly alleges a causal link between protected conduct and an adverse action is
identical to the one applied to Title VII cases, so that ground need not be reploughed. See
Mogenhan v. Napolitano, 613 F.3d 1162, 1165 (D.C. Cir. 2010) (explaining that the “anti-
retaliation provisions” of Title VII and the ADA “are indistinguishable”). Plaintiff’s single act
of ADA protected activity is certainly more temporally remote to any potential adverse action
than plaintiff’s Title VII protected activities. Her transfer request was made in January 2018,
Compl. ¶ 37, and though defendant seems to concede that Weaver’s recommended 10-day
suspension in July 2018 was materially adverse, see Def.’s Reply at 4, that still leaves six months
between the two events. Nevertheless, as explained above, plaintiff’s complaint contains more
than a mere allegation of temporal proximity. See supra Part III.A.2. She also alleges that she
received nothing but positive performance reviews and describes how similarly situated male
employees who had not engaged in protected activities were not disciplined for their physical
encounters with juveniles in their care. Id.; see also Compl. ¶¶ 13, 78.
The lengthier temporal distance between plaintiff’s ADA-protected activity and an
adverse action may make her allegation of retaliation less likely, but it does not take the claim
out of the realm of the plausible. Harris, 791 F.3d at 69 (holding that a gap of five months, when
pled alongside allegations that would help rebut “common legitimate reasons for” adverse
actions was “enough to survive a motion to dismiss” (internal quotation marks omitted)). Count
IV of plaintiff’s complaint survives defendant’s motion to dismiss.
27
C. Count III Survives
Finally, defendant moves to dismiss Count III of plaintiff’s complaint, which alleges that
plaintiff was the victim of “discrimination in violation of . . . the ADA.” Compl. at 21
(capitalization altered). Specifically defendant urges “this Court [to] dismiss Plaintiff’s disability
discrimination claim . . . because she has not alleged a qualifying disability.” Def.’s Mem. at 14.
The ADA defines a disability as “a physical or mental impairment that substantially
limits one or more major life activities . . . a record of such impairment; or . . . being regarded as
having such an impairment.” 42 U.S.C. § 12102(1). The kinds of major life activities that must
be substantially limited in order for a disability to qualify “include, but are not limited to, . . .
walking, standing, lifting, bending, . . . concentrating, thinking, communicating, and working.”
Id. § 12102(2). As evident from the statutory text, “[m]erely having an impairment does not
make one disabled for purposes of the ADA. Claimants also need to demonstrate that the
impairment limits a major life activity.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,
195 (2002) (overturned by statute on other grounds); see also Haynes v. Williams, 392 F.3d 478,
481–82 (D.C. Cir. 2004) (“[A] plaintiff is disabled under the ADA if: (1) he suffers from an
impairment; (2) the impairment limits an activity that constitutes a major life activity under the
Act; and (3) the limitation is substantial.”). At the motion to dismiss stage, plaintiff need not
“demonstrate” that limitation, but plead facts, accepted as true, that could plausibly make that
demonstration.
Plaintiff alleges that she has two disabilities. First, she states that she has adenomyosis,
which is a physical condition she alleges affects “multiple physical and mental activities,
including, but not limited to, walking, sitting, lifting, breathing and working.” Compl. ¶ 8. Her
adenomyosis also “causes severe pain that adversely affects Plaintiff’s ability to work, focus and
28
concentrate.” Id. Second, plaintiff alleges that she also “suffers from post-traumatic stress
disorder,” which “stem[s] from childhood sexual abuse and a 2006 sexual assault by a dentist.”
Id. ¶ 9. As a result, she “regularly experiences anxiety, depression and panic attacks” that “affect
her ability to work, communicate, focus and concentrate.” Id. As described above, her PTSD
“can be triggered by workplace stressors.” Id.
Defendant posits two reasons why plaintiff’s complaint does not adequately allege a
qualifying disability. First, according to defendant, “[p]laintiff offers nothing more than
conclusory descriptions of” her alleged disabilities “that copy the language of the ADA and its
implementing regulations.” Def.’s Mem. at 14. Second, with respect to plaintiff’s allegation of
PTSD, defendant maintains that “if workplace-specific stressors, such as her interactions with
her supervisor, exacerbate Plaintiff’s post-traumatic stress disorder . . . , then Plaintiff does not
have a qualifying disability.” Id. at 15. Defendant is wrong on both counts.
As to defendant’s first reason, although plaintiff’s description of which “major life
activities” her disabilities impact includes many from the list of representative examples
provided by the ADA, compare Compl. ¶¶ 8–9 with 42 U.S.C. § 12102(2)(A), her complaint is
replete with examples of how both her PTSD and adenomyosis “substantially limit[]” her ability
to engage in those activities. 42 U.S.C. § 12102(1)(A). For example, after learning the details of
the Brooks incident, “Plaintiff began experiencing issues with her PTSD, including anxiety,
depression, panic attacks and headaches.” Compl. ¶ 32. She began suffering similar symptoms
following Weaver’s 2017 comments about his exploits with prostitutes. Id. ¶ 35. As for the
effects of her adenomyosis, “[i]n May 2018, Plaintiff was in severe pain” as a result of the
condition and was forced to call in sick to work. Id. ¶ 40. She was similarly unable to work on
September 26 and 27, 2018 owing in part to “cramping from her [adenomyosis].” Id. ¶ 63.
29
Moreover, plaintiff alleges that she reported to Odom and McCants that both of her disabilities
“were causing her to have to report off frequently from work.” Id. ¶ 45. Far from conclusory,
these specific examples of plaintiff’s disabilities interfering with her ability to work substantiate
her claim that those disabilities “substantially limit[] one or more major life activities.” 42
U.S.C. § 12102(1).
Defendant’s second reason—that plaintiff’s PTSD is not a qualifying disability because
the symptoms of that disorder are exacerbated by “workplace-specific stressors,” Def.’s Mem. at
15—similarly fails. The cases on which defendant relies for that strange proposition, which is
abandoned in reply, offer no support. Indeed, each of those cases considers circumstances in
which an alleged disability was entirely caused by the plaintiff’s specific workplace and would
“abate if [the plaintiff] worked elsewhere.” Belton, 249 F. Supp. 3d at 25; see also Franklin v.
Pepco Holdings, Inc., 875 F. Supp. 2d 66, 71 (D.D.C 2012) (plaintiff’s “stress” that was “caused
by events” at her workplace was not a qualifying disability). Here, by contrast, plaintiff does not
allege that her PTSD is caused by her specific workplace, but that her PTSD, caused by
childhood trauma and trauma she suffered outside of work, has made certain aspects of her job
more difficult. Compl. ¶¶ 9, 45. Indeed, the most recent amendments to the ADA’s definition of
disability make clear that “[a]n impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D). That
workplace stressors trigger episodic symptoms of plaintiff’s PTSD does not disqualify that
disorder as a disability under the ADA. Moreover, EEOC regulations make clear that “it should
be easily be concluded” that “post-traumatic stress disorder” is in the class of impairments that
“will, at a minimum substantially limit . . . major life activities.” 29 C.F.R. § 1630.2(j)(3)(iii).
Just so.
30
In sum, neither of defendant’s arguments for dismissal of Count III of plaintiff’s
complaint are availing. Thus, Count III also survives this motion to dismiss.
III. CONCLUSION
For the foregoing reasons, defendant’s partial motion to dismiss is denied. An Order
consistent with this Memorandum Opinion will be entered contemporaneously.
Date: August 3, 2020
__________________________
BERYL A. HOWELL
Chief Judge
31