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Baker-Notter v. Freedom Forum, Inc.

United States District Court, District of Columbia

September 23, 2019

DONNA BAKER-NOTTER, Plaintiff,
v.
FREEDOM FORUM, INC., Defendant.

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT RE DOCUMENT NO. 11

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Donna Baker-Notter is a former employee of Freedom Forum, Inc., a nonprofit organization that operates the Newseum, a museum in Washington D.C. dedicated to journalism and the First Amendment. Baker-Notter worked at the Newseum for most of the past three decades, most recently as Senior Director of Operations. After her employment was terminated in January 2017, she brought this action against the Defendant alleging nine counts of civil rights violations. She alleges first that the Freedom Forum violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., because she was fired as an act of retaliation in response to her advocacy for ADA compliance at the Newseum. She likewise alleges that her termination was an act of retaliation against her complaints about sex discrimination and equal pay violations, and that it therefore violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., the D.C. Human Rights Act (“DCHRA”), D.C. Code §§ 2– 1401.01 et seq., and the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. §§ 206 et seq. She also alleges pay discrimination in violation of the EPA and DCHRA, as well as sex discrimination in violation of Title VII and the DCHRA. Freedom Forum, Inc. has moved to dismiss all nine counts of Baker-Notter’s Amended Complaint.

         II. FACTUAL BACKGROUND[1]

         A. Baker-Notter’s Background and Employment at the Freedom Forum

         Baker-Notter first worked for the Freedom Forum from 1989–2001, starting as a Grants Assistant, and then, over the years, becoming an Operations Coordinator, Visitor Service Manager and, eventually, Senior Operations Manager. Am. Compl. ¶¶ 16–18. She left the Freedom Forum in 2001, but returned in 2007 as Senior Manager/Staffing and Training. Id. ¶¶ 18–21. Her supervisor, Jim Thompson, indicated to her “that she would be promoted to Director of Operations in the near future, ” but that she could not be rehired into that position directly because it would be unfair to other Operations Department employees who had never left the Freedom Forum. Id. ¶¶ 19–21. After her return, she was promoted two more times, first in October 2010 to Director of Training and Volunteer Services, and again in July 2015 to Senior Director of Operations, though she alleges that this second promotion “was a promotion in name only.” Id. ¶¶ 22, 24. She never became Director of Operations.

         According to the Amended Complaint, Baker-Notter consistently advocated for making the Newseum more accessible to patrons and employees with disabilities and, accordingly, more compliant with the ADA. Prior to 2001, during her first period of employment with the Freedom Forum, she drafted a document suggesting how the Newseum facility in Washington D.C.- being planned at the time-could be made ADA compliant, but, upon her return in 2007, she found her suggestions had not been considered. Id. ¶ 26. After she returned, she pointed out numerous accessibility issues to Thompson and other officials, including too-heavy doors, a conference room only accessible by stairs, and inadequate hallway clearances. Id. ¶¶ 27–39. Her concerns were consistently disregarded. Id. In 2013, Baker-Notter was made the Newseum’s ADA Compliance Officer, as part of a settlement agreement with the Department of Justice.[2] Id. ¶ 40. Still she “met with resistance from senior management (VP and Senior VP level) on many occasions when advocating on behalf of visitors and employees who had ADA issues.” Id. ¶ 41. On one occasion, she was told that that “[a]ll of this ADA stuff is costing us too much money and we don’t have the staff or the budget to do these things.” Id. ¶ 43. When she asked that accommodations be made for guests or employees with disabilities, these were denied and, on one occasion, she was told to “stay out of it.” Id. ¶¶ 44–54. She was instructed to stop bringing up ADA compliance issues with other departments because, as Thompson explained, “it was a ‘revenue issue that was seen as being more important by the higher ups than wheelchair seating.’” Id. ¶ 60.

         Baker-Notter’s Amended Complaint also details what she refers to as a “‘good old boy’ culture in the Operations department.” Id. ¶ 69. Thompson would regularly go out to lunch or out for drinks with male directors including Matt Borowsky, Nate Tucker, and Cory Leckey, leaving out Baker-Notter, the only female director in the department. Id. ¶¶ 69–70, 72. Baker-Notter, on the other hand, was the only director who was asked to take on secretarial duties when Thompson’s secretary was out of the office. Id. ¶¶ 72–73. Baker-Notter found these requests “misogynistic, embarrassing, and belittling, ” and felt that Thompson’s attitude undermined her with the male directors. Id. ¶¶ 74–75. In 2011, he gave her “[h]ousekeeping responsibilities, ” saying that “as a woman, she had a better eye.” Id. ¶ 114.

         The male directors in the Operations department also contributed to Baker-Notter’s discomfort. Borowsky “created a toxic work environment” by complaining about having to work with Baker-Notter. Id. ¶ 76. When she complained to Thompson about his behavior toward her, “he told her in a misogynistic way, ‘be nice.’” Id. ¶ 77–78. He “treated her as though she were the person causing problems at work, yet Mr. Borowsky’s behavior was overlooked.” Id. ¶ 80. Leckey “was sarcastic and rude toward Ms. Baker-Notter, ” he “told employees and Ms. Baker-Notter’s subordinates that she was ‘incompetent, ’” and, following her promotion in July 2015, was heard “yelling that there was ‘no way in hell he would ever work for a woman, especially Donna.’” Id. ¶¶ 115–20. Thompson “refused to intervene, ” said that Leckey “ha[d] a right to say what he thinks, ” and reprimanded Baker-Notter for being “‘overly aggressive, ’ ‘over the top, ’ or ‘emotional’ whenever she complained.” Id. ¶¶ 117–122.

         Baker-Notter never became Director of Operations, despite repeated promises. Id. ¶¶ 110–12. Instead of creating that position for her, Thompson promoted Baker-Notter and the three aforementioned men-Borowsky, Tucker, and Leckey-all to the level of director, with responsibilities divided. Id. ¶ 84. Although her job description eventually “contained a reference to supervising other directors, ” Baker-Notter never actually did this, and Thompson told her that the other (male) directors “‘would be upset’ if they had to report to her.” Id. ¶ 131. Instead of getting this promised supervisory role, Baker-Notter was burdened with additional responsibilities that did not come with commensurate salary increases. “Thompson exploited [her] by dangling promotions over her head to get her to take on additional work.” Id. ¶ 85. When the Newseum in Washington D.C. opened in April 2008, for example, her responsibilities increased substantially. Id. ¶ 88. She was given the Manager of Training’s workload, was put in charge of the Volunteer Program, and, after a reorganization of the Facilities department, was also responsible for “Housekeeping, Shipping & Receiving, Facilities . . . and management of the sublease at 601 Penn Ave.” Id. ¶¶ 89-91. The ADA Compliance Officer role was also added, in 2013. Id. ¶¶ 40, 93. The male directors were not required to take on additional roles. Id. ¶ 94. They “were allowed to socialize daily during work hours for extended periods of time . . . almost always took lunch, rarely worked late, and had support staff.” Id. ¶ 98. When Baker-Notter raised the disparity in workload with Thompson, he told her, “Life isn’t fair. Some people have to work more than others.” Id. ¶ 97.

         In November 2014, at Thompson’s instruction, Baker-Notter compiled a “median salary survey for the directors and manager[s] in the Operations department.” Id. ¶ 99. Given Baker-Notter’s numerous responsibilities, the salary review revealed that “she was being grossly underpaid by more than $40, 000.00.” Id. ¶ 100. She raised this pay disparity with Thompson in January 2015, [3] at which time he agreed to promote her to Senior Director of Operations with a raise of $10, 000. Id. ¶¶ 101–103. Thompson told her that she was “‘lucky’ to be getting even that, ” and Baker-Notter characterizes the elevation to Senior Director of Operations as “a promotion in name only.” Id. ¶¶ 24, 103. Shortly after being promoted, in the summer of 2015, Baker-Notter discovered that Leckey was still making almost $20, 000 more than her, even though she was overloaded with roles and he was not, and even though she was “allegedly” his supervisor. Id. ¶ 104–07. She raised this issue with Thompson, who told her that, “Cory [Leckey] has a hard job.” Id. ¶ 105.

         In January 2017, Baker-Notter’s employment with the Freedom Forum was terminated. Id. ¶ 135. No other director from the Operations department was terminated at this time. Id. ¶ 140. She was the only director who had complained about noncompliance with the ADA, about gender discrimination, or about pay disparities. Id. ¶¶ 136, 140. She was also the only director who was a woman. Id. ¶ 142. She had been an “exceptional employee.” Id. ¶ 138. The Amended Complaint suggests that the Freedom Forum explained that her termination was due to “financial challenges” or “budget constraints.” Id. ¶¶ 68, 141.

         B. Procedural History

         Baker-Notter filed a charge of discrimination on the basis of sex with the Equal Opportunity Commission (“EEOC”) on July 31, 2017. Ex. A. to Def.’s Mot. Dismiss, ECF No. 11-2; see also Am. Compl. ¶ 11. She twice amended the EEOC charge, first in September 2017 to add allegations relating to equal pay, Am. Compl. ¶ 12, and again in June 2018 to add her ADA retaliation claims, id. ¶ 13; see also Ex. 1 to Errata, ECF No. 14-1. The EEOC notified Baker-Notter of her right to file a lawsuit in July 2018. Am. Compl. ¶ 14. Her Complaint was filed in this Court on October 29, 2018. Compl., ECF No. 1. Freedom Forum moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. Def.’s Mot. Dismiss, ECF No. 5. Baker-Notter sought leave to amend her complaint, Pl.’s Mot. for Leave to File First Am. Compl., ECF. No. 10, which this Court granted, Minute Order 3/26/2019.

         Baker-Notter’s Amended Complaint, the operative complaint for purposes of this order, was filed on March 26, 2019. Am. Compl., ECF No. 12. Freedom Forum has again moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Mot. to Dismiss Am. Compl., ECF No. 11 The motion is now ripe for decision.

         III. ...


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