United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge
Sashay Allen-Brown is a police officer with the District of Columbia's Metropolitan Police Department. Allen-Brown was lactating when she returned from maternity leave in 2011 and, accordingly, needed to express breast milk during work hours. Upon her return, she sought a temporary assignment that would not require her to go on beat patrol because an officer on patrol duty must wear a bullet-proof vest that can interfere with lactation by causing pain and clogged milk ducts. Allen-Brown also complained to her supervisors that the designated location for expressing milk at the police station was unclean. She alleges that the District of Columbia discriminated and retaliated against her in violation of the Pregnancy Discrimination Act and Title VII of the Civil Rights Act of 1964, as well as the D.C. Human Rights Act, when it placed her on patrol duty and denied her request for a limited-duty accommodation shortly after she complained about the lactation facility. She also alleges that the District violated the D.C. Human Rights Act's requirement that employers take affirmative steps to accommodate lactating women.
The case is presently before the Court on the parties' cross-motions for summary judgment. The District of Columbia moves for summary judgment as to the discrimination and retaliation claims. Dkt. 26. Allen-Brown cross-moves for summary judgment as to her D.C.-law accommodation claim. Dkt. 28. For the reasons explained below, the Court DENIES both motions.
Sashay Allen-Brown began working for the D.C. Metropolitan Police Department ("MPD") as a patrol officer in December 2006. Compl. ¶¶ 6-7. On March 7, 2011, she gave birth to a son. Dkt. 27-9 at 3 (Pl.'s Dep. 27). When Allen-Brown returned to duty after her maternity leave, she was still breastfeeding and thus needed to express milk at work two or three times a day. Dkt. 27-1 at 2; Dkt. 27-3 at 2-3 (Pl.'s Statement of Facts ¶¶ 6, 12); Dkt. 27-8 at 3 (Pl.'s Dep. 19). It is undisputed that Allen-Brown was initially placed on limited-duty status upon her return to work. Dkt. 27-1 at 2. According to the District of Columbia, this was in accordance with its policy that a new mother is automatically granted limited duty for six weeks following her resumption of work. Dkt. 26-1 at 3; Dkt. 26-2 at 1-2 (Def.'s Statement of Undisputed Facts ¶¶ 3, 14); Dkt. 26-4 at 1 (policy statement).
When Allen-Brown first returned to work, she resumed a prior detail to the ID & Records Office. Dkt. 27-9 at 3 (Pl.'s Dep. 27); Dkt. 27-8 at 3 (Pl.'s Dep. 19); Dkt. 28-4 at 3. At that assignment, Allen-Brown was able to use a lactation room to express milk without any issues. Dkt. 27-1 at 2. After a short period of time, however, Allen-Brown requested that she be returned to "full duty status" in the Second District. Dkt. 28-12 at 3-4 (Pl.'s Dep. 20-21). She hoped to be assigned to the night shift; her husband worked during the day, and she wanted to avoid the need for outside help with childcare by working nights. Id.; Dkt. 27-13 (Pl.'s Dep. 24); Dkt. 28-12 at9 (Pl.'sDep. 43).
Allen-Brown's request to return to the Second District was granted, and she was sent to the Police Academy for one to two weeks of "in-service training" and gun-range practice in preparation for her return to full-duty status. Dkt. 27-1 at 2; Dkt. 28-12 at 3-4 (Pl.'s Dep. 20-21). At the Academy, Allen-Brown used a designated lactation room to express milk once or twice per day. Dkt. 28-12 at 5-6 (Pl.'s Dep. 22-23). The designated room was a conference room with a clear window in each of the two doors to the room. Id. One window had paper attached to it in an effort to cover it up, while the other window was in a door to a sergeant's office. Id. The sergeant's door had a coat rack in front of it in an attempt to block the window; no paper was used. Id. at 6 (Pl.'s Dep. 23). Allen-Brown was uncomfortable with the set-up because one could still see through both of the windows. Id. She mentioned the situation to the sergeant, who responded that "she would make sure no one would come in while [Allen-Brown] was lactating." Id.
Allen-Brown reported for duty in the Second District on May 2, 2011. Dkt. 27-10 at 4 (Pl.'s Dep. 25). She was assigned to the "midnight" shift, as she had hoped; she reported for roll call around 9:50 p.m. and got off work around 6 or 7 a.m. Id. For the next several weeks, every evening at roll call Allen-Brown was assigned to "station duty." Dkt. 27-20 at 3 (Pl.'s Dep. 32). Station duty is also known as "inside duty" and does not require the officer to wear a bullet-proof vest. Dkt. 1-8 at 9 (MPD General Order 110.11); Dkt. 27-1 at 2; Dkt. 27-13 at 3 (Pl.'s Dep. 24). By contrast, under the District's uniform policy, absent a medical waiver, officers with a patrol-duty assignment outside of the station must wear a bullet-proof vest, which the MPD General Order on Uniforms and Equipment refers to as "soft-body armor." Dkt. 1-8 at 9 (MPD General Order 110.11).
At the time she returned to the Second District, Allen-Brown was still breastfeeding her infant, then about two months old, and thus continued to need to express milk at work. Dkt. 27-1 at 2. At the Second District, the designated lactation room was a lounge area inside the women's restroom; a sign that said "lactating" was simply placed on the women's restroom door. Dkt. 28-12 at 7 (Pl.'s Dep. 29). Allen-Brown was concerned about the location and cleanliness of the lounge because "everyone used it. Officers went there to take rest breaks or take naps . .. during their break[s] .... [P]eople do [their] hair there, ... it was an all-purpose room basically." Id. at 7-8 (Pl.'s Dep. 29-30).Allen-Brown made several oral complaints about the facilities to "various officials, " including Lieutenant Alesia Wheeler-Moore. Id.; see also Dkt. 27-19 at 5 (Pl.'s Dep. 68). When nothing was done in response, she decided to put her complaint in writing. Dkt. 28-12 at 8 (Pl.'s Dep. 30). On June 9, 2011, Allen-Brown emailed Lieutenant Wheeler-Moore and asked whom to contact about the cleanliness of the lactation room. Dkt. 1-7 at 2. She stated that "[t]he floor needs to be swept and mopped" and that "[o]n several occasions][, ] .. . there was hair all over the table and floor." Id. She did not receive a response until June 22, 2011. Id.; Dkt. 27-18 at 4 (Pl.'s Dep. 68).
Meanwhile, on June 12, 2011, Allen-Brown wrote to the Commander of the Second District through her chain of command (an unidentified lieutenant and a captain) and requested to be "detailed to the station." Dkt. 1-9 at 2. Although it is unclear from the record what precipitated this request, it appears that Allen-Brown sought to clarify that she would be assigned to inside duty at the station until her son, then fourteen weeks old, was one year old. She explained that she was "breastfeeding and lactating" and that she was "unable to wear [her] vest" because it was "extremely painful and could clog [her] ducts and slow down the production of [her] milk supply." Id. She further explained that she planned to breastfeed her son until he was one year old. Id. Allen-Brown's decision to breastfeed for the first year of her son's life was consistent with the District's "Lactating Accommodation Policy, " promulgated in January 2011, which stated, among other things, that "[i]t is the policy of the MPD to provide reasonable break time during work hours for a member to express breast milk for her nursing child for one (1) year after the child's birth." Dkt. 28-7 at 2. The Commander for the Second District denied Allen-Brown's request for an accommodation. Dkt. 1-9 at 2. Although the record does not reflect when the Commander made this decision, the Captain for the Second District apparently forwarded Allen-Brown's request to the Commander on June 15, 2011. Id. In any event, Allen-Brown continued to be assigned to station duty on an ad hoc basis until June 23. Dkt. 27-20 at 3 (Pl.'s Dep. 32).
On June 22, 2011, Wheeler-Moore forwarded Allen-Brown's email about the cleanliness of the designated lactation area to Sergeant Wanda Fisher, and Fisher responded to Allen-Brown that same morning. Dkt. 1-7 at 2. Fisher stated that Allen-Brown needed to comply with the "process" for using the lactation room, including "advis[ing] [her] of the dates andtime[s] that [Allen-Brown] ha[d] previously used the lactating room" and "sign[ing] in and out on the Lactation Request Form and Book" in the future. Id. According to Fisher, this would "provide [Allen-Brown] the opportunity to have privacy while utilizing this room and give [Fisher] an idea of how many times it is being used and how often it should be cleaned." Id. She also stated that "[t]he cleanliness of the room will be taken care of immediately" and that Allen-Brown should "also feel free to let [her] know about issues of cleanliness" as they arose. Id. According to Allen-Brown, however, nothing about the condition of the room changed after Fisher responded to the email. Dkt. 27-19 at 5 (Pl.'s Dep. 68).
Through June 22, "every sergeant that conducted roll call [at the Second District] [had] placed [Allen-Brown] in the station because [she] was lactating." Dkt. 27-20 at 3 (Pl.'s Dep. 32). But when Allen-Brown reported for roll call for the June 22-23 night shift-her first shift following Fisher's reply to her email-the sergeant on duty, Sergeant Phillips, assigned her to patrol duty. Id. Allen-Brown responded that she worked inside the station and could not go outside on patrol because she was lactating and could not wear her vest. Id. Sergeant Phillips said "[o]kay" and ordered her to report to the Police and Fire Clinic. Id.
The next morning, on June 23, 2011, Allen-Brown reported to the clinic and was examined by the doctor on duty, Dr. Rangamani Murthy. Id.; Dkt. 28-15 at 4; Dkt. 27-21 at 4 (Pl.'s Dep. 69). Dr. Murthy completed a "Limited Duty Certification Form" on which she stated that Allen-Brown could work full-time but listed the following physical restrictions: "[l]ifting -no greater than: 1-10 lbs;" "no outside patrol;" "chest, unable to wear the vest at all;" and "officer cannot wear the protective vest." Dkt. 28-15 at 2-3. During the clinic visit, Allen-Brown received and signed a "Limited Duty Program Information Sheet." Dkt. 28-12 at 10; Dkt. 27-21 at 5 (Pl.'s Dep. 70). That sheet listed her limited-duty assignment as "2D" and, among other things, notified her of her obligation to report to her limited-duty assignment for work. Id. The information sheet made no mention of any further procedures required to obtain approval for a limited-duty status, id., although Allen-Brown was separately instructed to get a note from her personal doctor, which she obtained on June 29 and provided to the Police and Fire Clinic at her two-week follow-up appointment. Dkt. 27-23 at 3-4.
The day after Allen-Brown's clinic visit, June 24, 2011, William B. Sarvis, Jr., the Director of the Medical Services Branch of MPD, sent a memorandum to her acknowledging that "[f]ollowing an examination by a Clinic Physician, a determination was made to change your Medical Duty Status from 'full duty' to 'limited duty'" because of "a condition not related to the performance of your duties as a police officer." Dkt. 1-11 at2. Sarvis stated, however, that "[notwithstanding your failure to complete the Request for Authorization to Participate in the Limited Duty Program, I have reviewed your case and determined that you will not receive authorization to participate in the limited duty work program." Id. The memorandum provided that "[effective June 25, 2011, " Allen-Brown would "be placed in a chargeable sick status" until such time as "the physicians at the Police &Fire Clinic determine that [she] may work in a full duty capacity." Id. Sarvis explained that if Allen-Brown lacked sufficient leave to cover her absence, she would be placed on unpaid leave. Id. When Allen-Brown reported for duty that night, Antonio Charland delivered the Sarvis memorandum to her. Id. Charland had been copied on Fisher's email to Allen-Brown about the conditions of the lactation room. Dkt. 1-7 at 2.
In a declaration submitted in this litigation, Sarvis explained that as Director of the Medical Services Branch, he is "responsible for recommending to the Chief of Police" whether an officer unable to perform the full range of police duties is capable of performing in a limited-duty status. Dkt. 26-5 at 1 (Sarvis Decl. ¶ 3). He stated that under District policy, he is authorized to grant limited-duty status for 30 calendar days for a condition stemming from off-the-job injuries-a condition described as Non Performance of Duty ("Non POD") injury-"if such a member requests [his] permission to join the Limited Duty Work Program by completing a Non POD Limited Duty Request Form and provides the requisite supporting documentation from a healthcare provider." Id. at 2 (Sarvis Decl. ¶ 5) (emphasis added). Although under this policy women are automatically granted limited duty if they gave birth in the previous six weeks, Sarvis states that they "must follow the same procedure for requests for extensions of their participation in the Non POD Limited Duty Program as other MPD members." Id. (Sarvis Decl. ¶ 9). Under that procedure, "at least 10 days prior to" the expiration of an initial 30-day grant of limited duty, "a MPD member may submit to [Sarvis] another Non POD Limited Duty Request Form, including the requisite supporting documentation." Id. (Sarvis Decl. ¶ 7). Sarvis would then forward the request for an extension to the Chief of Police "or [her] designee" along with his recommendation for a final determination. Id. (Sarvis Decl. ¶ 8).
Allen-Brown disputes whether officers were ever made aware of the policy on which Sarvis's declaration relies, Dkt. 27-3 at 2 (Pl.'s Statement of Facts ¶¶ 2-4), and, indeed, the District concedes that "[i]t is uncertain when a member of the MPD would be given notice of this purported separate application requirement for limited duty status." Dkt. 29-1 at2(Def's Statement of Disputed Facts ¶ 3). The policy outlined by Sarvis, moreover, differs from the procedure for obtaining a limited-duty assignment set forth in an MPD General Order that became effective on April 25, 2006. See Dkt. 27-4. Under that General Order, limited-duty status is defined as a "[temporary status for members who are not able to perform the full range of police duties because of injury/illness or other temporary medical disability, but are certified by the Chief Physician as being capable of effectively performing certain types of work." Id. at 4. According to this policy, an officer who sustains an off-duty injury or illness shall "[n]otify an official of his/her organizational element, as soon as he/she is capable, " and shall "report to the Clinic for a medical evaluation." Id. at 8. The policy further provides that:
If [an officer] is unable to perform the full range of police duties, the Clinic may place the member in a limited duty status, regardless of whether the employee requested the change. . . .The Chief Physician shall prepare a . . . Certification for Limited Duty .... Limited duty status begins when the Chief Physician certifies on the . . . [f]orm . . . that [an officer] is medically available for a limited duty assignment.
Id. at 14 (emphases added). The General Order further provides that upon receipt of the Limited Duty Certification, the officer is to notify the Watch Commander and report for duty. Id.
Relying on the General Order, Allen-Brown thus disputes Sarvis's contention that she was required to file a separate request for limited duty apart from obtaining a Certification for Limited Duty from the clinic. Dkt. 27-2 at 6 (Pl.'s Statement of Disputed Facts H 19).
Although Sarvis's June 24, 2011 memorandum provided that he was denying Allen-Brown limited-duty authorization "notwithstanding [her] failure to complete the Request for Authorization "Dkt. 1-11 at 2, in his declaration, Sarvis states that he denied Allen-Brown "authorization to participate in the Non POD limited duty program because she had never applied for it, " Dkt. 26-5 at 3 (Sarvis Decl. ¶ 18). According to Sarvis, "[t]o [his] knowledge, Officer Allen-Brown never made a request for an extension" and had "already worked in a limited duty capacity for six weeks"-the period of automatic limited duty for a new mother under the purportedly applicable policy. Id. (Sarvis Decl. ¶¶ 15-17).
Sarvis further declared that he "learned from the Police and Fire Clinic that Officer Allen-Brown was unable to complete the full range of duties . . . [for] her position, " id. (Sarvis Decl. ¶ 16), and that "[a]t the time [he] made [his] decision, [he] did not know that Officer Allen-Brown had complained about the condition of the lactation room at the Second District, " id. (Sarvis Decl. ¶ 19). In an earlier deposition, however, Sarvis stated that he "really [didn't] know" how the issue of Allen-Brown's authorization for limited duty "made it to [his] desk" after her visit to the clinic, and that he assumed that his lieutenant, who "tracked the information on pregnant females, " brought it to his attention. Dkt. 27-6 at 2 (Sarvis Dep. 45). Finally, Sarvis's declaration stated that of 148 final determinations regarding extensions of Non POD limited duty made during 2011, 137 extensions were denied (93%). Dkt. 26-5 at 3 (Sarvis Decl. ¶ 13). Of those, 77 were denied "on the basis that the MPD member did not make a request for an extension." Id. (Sarvis Decl. ¶¶ 13 -14).
In accordance with Sarvis's memorandum denying Allen-Brown limited-duty authorization, Allen-Brown's leave began on June 25, 2011. Dkt. 1-11 at 2. After her annual leave ran out, she remained on unpaid leave for about eight months. Dkt. 27-22 at 4 (Pl.'s Dep. 36); Dkt. 28-12 at 9 (Pl.'s Dep. 43). Allen-Brown returned to work on full-duty status on April 17, 2012, after she finished breastfeeding. Dkt. 1-6 at 3. In the interim period, the Fraternal Order of Police pursued a grievance on her behalf, which was denied. Dkt. 1-4; Compl. ¶ 23. Allen-Brown also filed a charge with the Equal Employment Opportunity Commission ("EEOC"), which issued a right-to-sue letter on June 10, 2013. Dkt. 1-5.
On September 5, 2013, Allen-Brown filed this action against the District and the MPD, seeking damages, attorney's fees and costs, and equitable relief for gender and pregnancy discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Count I), retaliation in violation of Title VII (Count II) and the First Amendment (Count III), discrimination based on gender and family responsibilities in violation of D.C. Code §2-1401.01 et seq. (Count IV), failure to provide accommodations for breastfeeding mothers and retaliation in violation of D.C. Code § 2-1402.82 (Count V), and violations of 42 U.S.C. §§ 1981 and 1983 (Count VI). See Compl. ¶¶ 32-78. On July 7, 2014, Judge Amy Berman Jackson dismissed MPD as a defendant and also dismissed Allen-Brown's claims against the District under the First Amendment and §§ 1981 and 1983. See Allen-Brown v. District of Columbia, 54 F.Supp.3d 35, 37 (D.D.C. 2014).
On November 20, 2014, the case was randomly reassigned. Nov. 20, 2014 Minute Order. On June 12, 2015, the only remaining defendant, the District, filed amotion for summary judgment as to the discrimination and retaliation claims. Dkt. 26. On June 29, 2014, Allen- Brown filed a cross-motion ...