The opinion of the court was delivered by: Rosemary M. Collyer United States District Court
The District of Columbia moves to dismiss, in part, the Second Amended Complaint filed by Plaintiffs Tonia L. Jones and Kenniss M. Weeks, who are female police officers in the D.C. Metropolitan Police Department. Plaintiffs complain of employment discrimination based on their sex (female) and sexual orientation (lesbian). Plaintiffs bring their claims under the District of Columbia Human Rights Act ("DCHRA"), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983. The District argues that certain DCHRA claims must be dismissed because Plaintiffs failed to give notice of their claims to D.C's Mayor, as required by the D.C. Code; that their claims under § 1983 must be dismissed because they are time barred; and that claims based on alleged violations of their First and Fifth Amendment rights must be dismissed because they are without merit. The District concedes that Plaintiffs' Title VII claims should proceed.
Plaintiffs ask the Court to consider documents that are outside the pleadings in evaluating whether they gave adequate notice of their DCHRA claims. The District concedes that the issue of notice under the DCHRA is ripe for resolution based upon the relevant documents.
Accordingly, the Court will deem the District's motion on that issue to be one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
The District's motion will be granted in part and denied in part. The Court concludes that forms submitted in the course of the Plaintiffs' employment were insufficient to satisfy the mandatory notice required by the D.C. Code for certain claims under the DCHRA. Consequently, Plaintiffs may only pursue claims for liquidated damages with respect to their claims of sex and sexual orientation discrimination regarding Officer Jones's non-promotion, Counts Two and Four, and hostile work environment based upon gender, Count Three, under the DCHRA. Finally, the District's motion will be granted with respect to Plaintiffs' constitutional claims, Counts Eleven through Thirteen.
Beginning in early 2006, Plaintiffs became squad-car partners for the Metropolitan Police Department ("MPD"), assigned to patrol the Seventh District ("7D"). They began a lesbian relationship in July 2006. In September 2006, they informed one of their supervisors, Sergeant Jon Podorski, of their relationship. Second Am. Compl. [Dkt. 3] ¶ 10 ("Compl."). At the time, Commander Joel Maupin was the Commander of 7D and Sergeant Yurell Washington was the supervisor of the midnight shift.*fn1 Id. ¶ 9. Plaintiffs allege that "[a]lmost immediately thereafter, the Sergeants began harassing them and subjecting them to a hostile working environment on a frequent and continuing basis," and subjected them to harassment and disparate treatment "due to their sexual orientation and gender." Id. ¶ 11. Plaintiffs complained to MPD in January 2007, and allege that thereafter their supervisors "blatantly retaliated against [them] for engaging in protected equal employment opportunity activity." Id. ¶ 12. Plaintiffs allege that the District's actions were "based upon sex discrimination and/or sexual orientation discrimination and/or retaliation." Id. ¶ 14.
The Second Amended Complaint*fn2 ("Complaint") alleges multiple instances of discrimination and harassment, starting with frequent comments "denigrating Plaintiffs' sexual orientation and lesbian relationship" and "harass[ing] the Plaintiffs based upon gendered stereotype about how women should act and look." Id. ¶¶ 15, 19. In addition, "Sergeants collectively harassed Plaintiffs about their work performance, leave and attendance, overtime requests, vehicle assignments, and work assignments" and imposed "unfair and unwarranted disciplinary action" in such a way that they were treated differently from male and heterosexual officers. Id. ¶ 33.
In support of their claims of gender discrimination, Plaintiffs allege they were called derogatory names based upon their sex, such as "drama queen," "the butch one," and the "the femme one" by Sergeants. Id. ¶¶ 20, 21. They also claim that Sergeant Washington made frequent comments "both to harass Plaintiffs about his perception of their roles in their lesbian relationship as well as to reflect his sex-based stereotyping of their appearance," id. ¶ 21, and that they were subjected to direct sexual comments and solicitations from male members of the MPD. Id. ¶ 23. Plaintiffs state that these types of harassing comments were made on a nearly daily basis from 2006 until the date their Complaint was filed. Id. ¶ 28.
Plaintiffs allege that they were not allowed to switch shifts in or around April 2007 because Commander Maupin issued a policy that officers could not switch shifts without a "body for a body." Id. ¶ 36. Plaintiffs claim this was a discriminatory policy because "heterosexual and male officers were allowed to change shifts without need for replacement." Id.
Plaintiffs also complain that they were subject to leave and attendance harassment unlike male officers, id. ¶¶ 53-54; and that Sergeant Podorski treated them differently than male and heterosexual officers when he refused to approve Plaintiffs' requests for overtime compensation and checked to see if Plaintiffs attended court appearances at the proper times. Id. ¶¶ 56-57. Plaintiffs allege that Sergeant Washington continued this pattern of checking in on Plaintiffs' whereabouts when they moved to the midnight shift in 7D and enforced leave policies in a discriminatory fashion. Id. ¶ 58.
Plaintiffs documented the alleged harassment in various ways. In October 2007, Plaintiffs filed MPD "Injury or Illness Reports," otherwise known as a PD 42 reports, describing stress-related injuries they suffered as a result of the conduct. Pls.' Opp'n [Dkt 7], Exs. 1, 2 [Dkt. 7-2, 7-3]. The Medical Services Division of MPD's Office of Human Resource Management issued determinations on October 30, 2007 and November 5, 2007 that such injuries were not work related. Id., Exs. 5, 6 [Dkt. 7-6, 7-7]. Plaintiffs also filed complaints (the "Internal EEO Complaints") based on sex and sexual orientation discrimination with the Equal Employment Opportunity Compliance Branch in MPD's Internal Affairs Division ("IAD") and gave statements regarding the alleged harassment and hostile work environment they suffered. Compl. ¶¶ 90, 119; Pls.' Opp'n at 14. On November 19, 2007, IAD decided not to investigate Plaintiffs' claims and informed them of their right to file a complaint with the D.C. Office of Human Rights ("OHR"). Id. ¶ 92. In addition, Officer Weeks filled out a PD 119 "Complainant/Suspect Statement,"detailing alleged harassing statements made by Sergeant Washington in January 2008 after she filed her complaints. Pls.' Opp'n at 13.
Plaintiffs filed charges with the OHR in March 2008, which ultimately found probable cause that both Plaintiffs "had established prima facie claims of sexual harassment, hostile work environment based on sexual orientation (lesbian), and reprisal." Compl. ¶ 123. The OHR charges were cross-filed with the Equal Employment Opportunity Commission. Id. ¶ 122.
Plaintiffs allege that they faced harassment, hostility and retaliation after they filed these complaints. Id. ¶ 93. Specifically, Officer Jones alleges that she was given a lowered performance evaluation in late 2007. Id. ¶ 96. She also alleges that Sergeant Podorski withheld this performance evaluation and she was unable to obtain a copy until February 2008. This delay prevented her from grieving her evaluation and the lowered evaluation made her ineligible to apply for a promotion to Detective Class. Id. ¶ 97. In addition, Plaintiffs claim that Sergeant Washington's January statements, that were the subject of Officer Weeks's PD 119, were a form of retaliation and that Officer Weeks was called the "EEO queen" frequently. Id. ¶ 105. Allegedly, the discrimination continued after Officer Weeks became a Detective in October 2008 in the form of discriminatory assignments and counseling from Sergeant Avis King. Id. ¶¶ 106-10. Finally, Plaintiffs allege that Commander Maupin denied Officer Jones numerous training opportunities throughout 2010. Id. ¶ 112.
Plaintiffs advance the following claims:
* Counts One and Two -- Sexual orientation discrimination in violation of the DCHRA;
* Counts Three and Four -- Sex discrimination in violation of the DCHRA;
* Counts Five and Six -- Sex discrimination in violation of Title VII of the Civil Rights Act of 1964;
* Counts Seven and Nine -- Retaliation for protected employment activity in violation of the DCHRA;
* Counts Eight and Ten -- Reprisal for protected EEO activity in violation of Title VII of the Civil Rights Act of 1964;
* Count Eleven -- Action under 42 U.S.C. § 1983 for violation of their First Amendment Rights;
* Count Twelve -- Action under 42 U.S.C. § 1983 for violation of their Fifth Amendment right to due process; and
* Count Thirteen -- Action under 42 U.S.C. § 1983 for violation of their Fifth Amendment right to equal protection of the law based upon sex discrimination.
The District moves to dismiss all but the Title VII claims set forth in Counts Five, Six, Eight and Ten and the DCHRA claims set forth in Counts One, Seven, and Nine.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1). A complaint must be sufficient "to give a defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3. "[A] complaint needs some information about the circumstances giving rise to the claims." Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original).
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, ...