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Kimmel v. Gallaudet University

August 4, 2009

KAREN L. KIMMEL, PLAINTIFF,
v.
GALLAUDET UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Karen Kimmel brings this action against Gallaudet University alleging retaliation in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., retaliation, disability discrimination, and hostile work environment in violation of the District of Columbia Human Rights Act ("DCHRA"), § 2-1401.01 et seq., and tortious interference with prospective business relations. Gallaudet has moved to dismiss the complaint for failure to state claims upon which relief can be granted. With reasonable inferences drawn in her favor, Kimmel has pled facts sufficient to state claims and Gallaudet's motion to dismiss will be denied.

BACKGROUND

During the events relevant to the complaint, Kimmel was Dean of the College of Liberal Arts, Sciences, and Technologies and a fully tenured associate professor at Gallaudet, a higher education institution for the deaf.*fn1 (Compl. ¶ 5.) Kimmel "suffers from mild (right ear) and moderate (left ear) high frequency hearing loss as a result of a degenerative and hereditary hearing loss[,]" but "has not yet fully lost her hearing." (Id. ¶ 8.) She is proficient in American Sign Language ("ASL") and uses other various methods to reduce the impact of her hearing loss and to improve her ability to communicate, including the use of amplification and speech reading. (Id.)

Kimmel alleges that there is a community at Gallaudet identifiable as "Deaf Culture"*fn2 that "rejects the notion of deafness as a disability and embraces the idea of Deaf people as an oppressed minority." (Id. ¶ 9.) She further alleges that Deaf Culture argues "that any deaf person can become Deaf by embracing certain ideas and practices which themselves create exclusion, hierarchy, and discrimination." (Id.) As an example, she contends that Deaf Culture "supports use only of ASL, which is primarily used by white, Deaf, middle-class people." (Id.)

Kimmel further alleges that in October 2006, Gallaudet students, with the support of Gallaudet faculty, staff, and alumni, staged "lawless and widely publicized sit-ins, blockades, and protests against then-newly selected President" of Gallaudet, Dr. Jane Fernandes. (Id. ¶ 13.) Kimmel asserts that "one of the chief complaints of the protesters regarding Dr. Fernandes was that she was 'not Deaf enough.'" (Id. ¶ 14.)*fn3 Kimmel contends that she "openly supported Dr. Jane Fernandes and her beliefs in support of non-discrimination against students who are not members of Deaf Culture." (Id. ¶ 17.) She alleges that, as a result of her support for Fernandes and her not being Deaf enough, she was "harassed by various Gallaudet faculty members and other employees," her job responsibilities were reduced, and she was excluded from administrative decisions in which she should have been included, and she was "the victim of defamatory falsehoods spread by Gallaudet employees and agents." (Id. ¶ 18.)

In addition, Kimmel contends that "[t]hroughout the course of her administration as Dean, [she was] a supporter of deaf/Deaf students, African-American and other minority students," and [a]t various times in the recent past, [she] engaged in protected activity by voicing concerns and complaints over the discriminatory and unfair treatment of" these students. (Id. ¶¶ 11-12.) For example, she alleges that in 2005, she "complained about the discriminatory treatment of a male African-American student who was dismissed from Gallaudet before undergoing learning disability testing after receiving poor grades in mathematics." (Id. ¶ 19.) Kimmel also alleges that in 2006, she challenged a mathematics department policy and actions taken under the policy that she believed discriminated against "students, including African-American and developmental students, who were learning disabled, lacked sufficient math preparation because they [were] deaf, and possessed a range of communication skills from no signing to ASL[.]" (Id. ¶ 20.) Kimmel claims that Gallaudet retaliated against her for these activities by spreading falsehoods regarding her "character and actions as Dean[,]" including in a November 2006 Washington Post article. (Id. ¶ 21.)

Finally, Kimmel contends that she retained counsel who informed Gallaudet that Kimmel might assert claims under the federal and District of Columbia antidiscrimination laws. (Id. ¶ 22.) Kimmel alleges that after her counsel met with Gallaudet regarding her potential claims, among other allegedly retaliatory actions, Gallaudet reduced her job responsibilities as Dean and informed her she would receive a merit pay raise that was lower than expected. (Id. ¶¶ 23-26.)

Kimmel's complaint lists seven causes of action. Counts I and II assert claims for retaliation under Title VI and the DCHRA, respectively. In Counts III and IV, Kimmel alleges DCHRA claims for disability discrimination and hostile work environment. Counts V through VII assert intentional infliction of emotional distress, tortious interference with prospective business relations, and breach of contract claims under D.C. law. Gallaudet has moved to dismiss all of Kimmel's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state claims upon which relief can be granted.*fn4

DISCUSSION

Under Rule 12(b)(6), a party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). "On review of a 12(b)(6) motion a court 'must treat the complaint's factual allegations as true... and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)). "[A]n employment discrimination plaintiff need not plead a prima facie case of discrimination."

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002); see Sparrow, 216 F.3d at 1115 (concluding that an employment discrimination complaint need not allege all elements of a prima facie case at the initial pleading stage and states a claim by merely saying "I was turned down for a job because of my race" (citation and internal quotation marks omitted)). A plaintiff need only provide a "short and plain statement of [her] claim showing that [she] is entitled to relief," Fed. R. Civ. P. 8(a)(2), that "'give[s] the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

I. DISABILITY DISCRIMINATION (COUNT III)

In her disability discrimination claim, Kimmel alleges that "she was subjected to adverse action as a result of the nature and extent of her disability," specifically her being "not completely deaf" and "using amplification, speech reading, and ASL" to manage her hearing impairment. (Pl.'s Opp'n at 10; Compl. ΒΆΒΆ 40-43.) Gallaudet argues that as Kimmel pleads it, "[b]eing 'not Deaf enough'... 'signifies a culture rather than the physical condition of hearing loss[,]'" and "[b]ecause being 'not Deaf ...


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