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Burrell v. Shepard

United States District Court, District of Columbia

July 27, 2018



          Emmet G. Sullivan, United States District Judge.

         Plaintiff Stefanie Burrell claims that, after she lodged a harassment complaint against her supervisor in the Superior Court of the District of Columbia, her colleagues created a hostile work environment and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et. seq., and the District of Columbia Human Rights Act (“DCHRA”), D.C. Code Ann. § 2-1402.21. She further claims that her constitutional right to equal protection under the law was violated pursuant to 42 U.S.C. § 1983 (“section 1983”). To vindicate these rights, Ms. Burrell filed the instant suit against two supervisors - Alicia Shepard and Daniel Cipullo — and the District of Columbia. Pending before the Court is defendants' motion to dismiss the amended complaint. Upon consideration of the amended complaint, defendants' motion, the response and reply thereto, and the applicable law, the Court GRANTS IN PART AND DENIES IN PART defendants' motion to dismiss.

         I. Background

         Ms. Burrell is an African-American woman who served as a calendar coordinator in the Criminal Division of the Superior Court of the District of Columbia (“Superior Court”). Am. Compl., ECF No. 10 ¶ 7. Ms. Burrell worked at the Superior Court from May 2, 1992 until she submitted her resignation letter on November 22, 2016. Id. ¶¶ 14, 133. She alleges that, during her tenure at the court, she “suffered from an ongoing pattern of discrimination toward African-American employees.” Id. ¶ 16.

         The first incident Ms. Burrell points to in support of her allegations occurred on July 25, 2005. Id. ¶ 18. On that date, a court security officer allegedly “made a sexual derogatory remark” that made Ms. Burrell “feel extremely uncomfortable.” Id. ¶ 18. Ms. Burrell reported the incident to the officer's supervisor and others, but “no action” regarding her complaint was taken. Id. ¶¶ 21-25.

         The second incident Ms. Burrell points to occurred more than ten years later, on March 23, 2016. Id. ¶ 29. On that date, Ms. Burrell alleges that Ms. Shepard — who was the Branch Chief of the Criminal Division and one of Ms. Burrell's supervisors — recorded a video on her cell phone in which she made “disparaging comments about the work ethic of her subordinates.” Id. ¶¶ 10, 29-38. In the course of filming this video, Ms. Burrell alleges that Ms. Shepard “focused the camera” on Ms. Burrell and made the following statement: “You so ignorant . . . whatever . . . whatever, I hate ignorant black folk, they get on my nerve.” Id. ¶ 37. Ms. Shepard then posted the video on multiple social media platforms where other Superior Court employees could see it. Id. ¶¶ 39-41. Upon seeing the video, one of Ms. Burrell's coworkers “took the video and reported it to the Clerk of the Court.” Id. ¶ 43. Although the Clerk and other supervisors in the Criminal Division were “fully aware of the video, ” Ms. Burrell asserts that “managerial personnel chose not to initiate any action against Shepard.” Id. ¶ 46.

         On April 4, 2016, Ms. Burrell filed a “bullying/harassment complaint” against Ms. Shepard and other Superior Court Criminal Division personnel with the Human Resources Division. Id. ¶ 47. Ms. Burrell also requested to be transferred or reassigned to another division. Id. ¶ 50. That request was denied because, according to the Deputy Director of Human Resources, transfers were only “done to satisfy an operational need of the Court.” Id. ¶ 51. The Deputy Director also informed Ms. Burrell that her complaint would be investigated and that the results would be sent to her and Daniel Cipullo, the Director of the Criminal Division, who “would determine the appropriate action, if any, to be taken.” Id. ¶¶ 11, 54. Ms. Burrell alleges that Mr. Cipullo has “been aware of, and perpetuated, discriminatory acts that create a hostile work environment” during his tenure at the Superior Court. Id. ¶ 103. For example, Mr. Cipullo allegedly “hired and promoted Caucasian individuals who are less qualified than similarly-situated African Americans”; “intentionally intimidated African-American female employees” by, for example, “aggressively” yelling at them; “ordered African-American employees to attend and perform menial tasks at judicial conferences, while similarly situated Caucasian employees have either been exempt or given professional roles”; and “assigned African-American female employees offices that are under construction, while giving similarly situated non-African-American employees offices that were not under construction.” Id. ¶¶ 105-109. According to Ms. Burrell, “numerous Superior Court Criminal Division employees filed internal grievances and EEOC Charges of Discrimination” against Mr. Cipullo based on claims of racial discrimination. Id. ¶ 104.

         Ms. Burrell alleges that, after she filed her complaint against Ms. Shepard, her coworkers and Ms. Shepard “refused to speak with her, ” making it difficult for her to perform her work duties and denying her access to a Branch Chief. Id. ¶¶ 56-57. Ms. Burrell claims that access to a Branch Chief is critical because it “allows employees the benefit of recognition, allows their ideas and suggestions to be heard, and strengthens their professional network within the workplace.” Id. ¶ 58.

         On April 18, 2016, Ms. Shepard sent an e-mail about the video incident to all of the employees in the Criminal Division. Id. ¶ 61. In the e-mail, Ms. Shepard wrote: “Over the years, we have all joked with each other regarding what it is we are doing during work hours; the comments in the video were simply one of those moments.” Id. 62. A few days later, Mr. Cipullo held a meeting with the Criminal Division employees to discuss the incident. Id. In the course of the meeting, several employees “stated that the video should not have been reported” and that any individual who was offended should have taken his or her concerns directly to Ms. Shepard. Id. ¶¶ 72-73. Mr. Cipullo purportedly “voiced his agreement with th[at] sentiment.” Id. ¶ 74. Later that same day, another Superior Court employee sent an email to the employees of the Criminal Division in which she admonished the individuals responsible for reporting the video. Id. ¶¶ 76-79. In addition, other employees “published derogatory comments about Burrell on Facebook” regarding her decision to file a complaint against Ms. Shepard. Id. ¶¶ 82-83. Ms. Burrell states that she was “intimidated by the constant statements from her coworkers and the sentiments expressed by Cipullo that she was wrong for filing a complaint alleging racial harassment and discrimination against her supervisor.” Id. ¶ 99. Ms. Burrell alleges that her experience made her “fearful of speaking out about any further incidents.” Id. ¶ 100.

         On May 10, 2016, Ms. Burrell was informed that her complaint against Ms. Shepard had been substantiated, and that a notice would be sent to Mr. Cipullo, who would then determine whether any action was warranted. Id. ¶¶ 88-89. Ms. Burrell claims that the only action taken by Mr. Cipullo was to assign Ms. Shepard to a program analyst position for a period of approximately five months. Id. ¶¶ 65, 91-92. In October 2016, Ms. Shepard returned to her position as Branch Chief of the Criminal Division and resumed her role as Ms. Burrell's immediate supervisor. Id. ¶¶ 92-93.

         In May or June 2016, Ms. Burrell requested “leave due to work related stress that was . . . caused by . . . the Shepard video and the backlash against Burrell for filing a complaint.” Id. ¶ 98. The Human Resources Director denied her request. Id. ¶ 102. In July 2016, Ms. Burrell was involved in a car accident and requested medical leave from Mr. Cipullo. Id. ¶¶ 121-122. She claims that, initially, she was only given “intermittent leave, ” which “detrimentally impacted her recovery.” Id. ¶¶ 123-124. It was not until September 2016 that she was approved for twelve weeks of medical leave under the Family Medical Leave Act. Id. ¶ 125. While on medical leave, Ms. Burrell learned that Ms. Shepard would be returning to her position as Branch Chief of the Criminal Division in October 2016. Id. ¶ 132. On November 22, 2016, Ms. Burrell submitted her resignation letter. Id. ¶ 133. She claims that she was “forced to resign due to the ongoing hostile work environment.” Id. ¶ 134.

         Based on these facts, Ms. Burrell asserts the following claims: (1)a race discrimination claim based on a hostile work environment under Title VII and the DCHRA against the District of Columbia (Count I), see ¶¶ 141-157; (2) a race discrimination claim based on a hostile work environment under the DCHRA against Ms. Shepard and Mr. Cipullo (Count II), see ¶¶ 158-167; (3) a retaliation claim under Title VII and the DCHRA against the District of Columbia (Count III), see ¶¶ 168-176; (4) a retaliation claim under the DCHRA against Mr. Cipullo (Count IV), see ¶¶ 177-186; and (5) equal protection claims pursuant to section 1983 against the District of Columbia, Mr. Cipullo, and Ms. Shepard (Counts V and VI), see ¶¶ 187-212. Defendants move to dismiss the amended complaint, arguing that Ms. Burrell's claims are “either untimely or facially implausible.” See Defs.' Mem. in Supp. of Mot. to Dismiss. Am. Compl. (“Defs.' Mem.”), ECF No. 12-1 at 6.

         II. Standard of Review

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell At. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While detailed factual allegations are not required, a complaint must contain “sufficient factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         When ruling on a Rule 12(b)(6) motion, the Court “may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). In so doing, the court must give the plaintiff the “benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

         III. Analysis

         Ms. Burrell alleges both discrimination and retaliation claims based on hostile work environment under Title VII and the DCHRA. Because the legal standards for establishing these claims under Title VII and the DCHRA are substantively the same, the Court will analyze Ms. Burrell's claims under these statutes together. See e.g., Carpenter v. Fed. Nat'l Mortg. Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999) (explaining that, “[i]n interpreting its Human Rights Act the District of Columbia . . . generally seems ready to accept the federal constructions of Title VII, given the substantial similarity between it and the D.C. Human Rights Act”).

         A. Exhaustion of Administrative Remedies for Title VII and DCHRA Claims

         Defendants argue that Ms. Burrell's Title VII and DCHRA race discrimination and retaliation claims must be dismissed because Ms. Burrell failed to exhaust her administrative remedies in a timely manner. See Defs.' Mem., ECF No. 12-1 at 11, 20. Specifically, defendants maintain that, at the earliest, Ms. Burrell signed a charge of discrimination on March 6, 2017, and therefore only conduct that took place 300 days before that date — i.e, after May 11, 2016 — can form the basis of plaintiff's claims. Id. at 11-13.[1] According to defendants, only the conduct alleged after May 11, 2016 is actionable under Title VII or the DCHRA. This conduct includes: a denial of Ms. Burrell's request to transfer to a different division, a delay in granting Ms. Burrell's request for medical leave, the fact that Ms. Shepard was reassigned as Ms. Burrell's supervisor, and Ms. Burrell's decision to resign. Id. at 13-14.

         Before commencing an action based on Title VII, a plaintiff must first exhaust her administrative remedies by filing a timely charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Lewis v. City of Chicago, Ill., 560 U.S. 205, 210 (2010). Generally, “a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period — 180 or 300 days — set forth in 42 U.S.C. § 2000e-5(e)(1).” Nat'l. Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). The lawsuit following the EEOC charge is “limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations.” Park v. Howard Univ., 71 ...

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