United States District Court, District of Columbia
G. Sullivan, United States District Judge.
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.
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.
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.
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.
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. ¶
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.
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.
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.
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.
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.
Standard of Review
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,
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).
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”).
Exhaustion of Administrative Remedies for Title VII and DCHRA
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. 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.
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 ...