United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
S. CHUTKAN, UNITED STATES DISTRICT JUDGE
Danielle Shapiro, proceeding pro se, brings this
employment discrimination action against Howard University
and Howard University Hospital (collectively,
“Howard”). This matter is before the court on
Defendants' Motion to Dismiss (ECF No. 11) and supporting
memorandum (ECF No. 11-1, “Def.'s Mem.”).
Federal Rule of Civil Procedure 8, a plaintiff need only
provide a “short and plain statement of [her] claim
showing that [she] is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), that “give[s] the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (internal quotation
marks omitted). Here, Plaintiff's Complaint (ECF No. 1,
“Compl.”) is neither short nor plain. It is a
seven-page preprinted form titled “Complaint for
Employment Discrimination” with a 12-page typewritten
attachment titled “Complaint for Employment
Discrimination - Statement of Facts and Statement of
Claim” and three exhibits: Charge of Discrimination
(EEOC Charge No. 570-2017-01490), a declaration in support of
the EEOC charge, and EEOC's Dismissal and Notice of
Rights. The court must consider more than the
complaint, however. See Brown v. Whole Foods Mkt. Grp.,
Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (noting the
district court's obligation “to consider a pro se
litigant's complaint ‘in light of' all filings,
including filings responsive to a motion to dismiss”);
Schnitzler v. United States, 761 F.3d 33, 38 (D.C.
Cir. 2014) (noting “the district court's obligation
to construe a pro se plaintiff's filings liberally, and
to consider his filings as a whole before dismissing a
complaint”). Also before the court are Plaintiff's
245-page opposition (ECF No. 14, “Pl.'s
Opp'n”) consisting of a 42-page pleading and 39
exhibits totaling 203 pages, and her Surreply (ECF No.
While Plaintiff's submissions are not models of clarity,
they are not “an unintelligible rambling narrative of
allegations, ” as Defendants characterize them.
Def.'s Mem. at 4; see id. at 12.
reviewed the parties' submissions, the court concludes
that Plaintiff fails to state disparate treatment, hostile
work environment, constructive discharge and ADA claims upon
which relief can be granted. Because she does adequately
allege a retaliation claim, the court GRANTS Howard's
motion to dismiss in part and DENIES it in part.
Family Medicine Residency Program
offers postgraduate training to medical residents, the
standards for which the Accreditation Council for Graduate
Medical Education (“ACGME”) establishes.
Def.'s Mem. at 3; see Compl ¶ 11. One such
training program is Howard's Family Medicine Residency
Program. “[R]esidents are to learn through experiential
training, informal feedback, coaching and counseling
meetings, written evaluations . . ., and through formal
summative feedback, which is known as Milestones
Evaluations/Biannual Program Director's Meeting.”
Compl. ¶ 11. A resident must achieve “competency
in: professionalism; and interpersonal and communication
skills, ” among other areas. Def.'s Mem. at 3;
see id., Ex. 1 at 1.
American Board of Family Medicine (“ABFM”) sets
the standards for residents in the Family Medicine
Department, Def.'s Mem. at 3, among which is a strict
Residents are expected to perform their duties as resident
physicians for a minimum period of eleven months each
calendar year. Therefore, absence from the program for
vacation, illness, personal business, leave, etc. must not
exceed a combined total of one (1) month per academic year.
The ABFM defines one month as 21 working days or 30 calendar
days[.] Absence from residency education, in excess of one
month within the academic year (G-1, G-2 or G-3 year) must be
made up before the resident advances to the next training
level, and the time must be added to the projected date of
completion of the required 36 months of training.
Compl. ¶ 48 (emphasis removed). “There is no
carve-out in the ABFM guidelines for a resident's absent
days relating to any alleged infirmity, illness or
disability.” Def.'s Mem. at 4.
Howard University Employee Handbook (“Handbook”)
sets forth the “internal policies outlining the terms
and conditions of employment at Howard, ” including
“progressive discipline, ” id., starting
with a supervisor's informal counseling of an employee
whose performance, conduct or attendance shows “early
signs of problems, ” id., Ex. 2 (Handbook Sec.
12.01); Compl. ¶ 13. If informal counseling is ineffective,
the Handbook calls for formal disciplinary action in four
steps: Letter of Admonition; Letter of Warning and
Performance Improvement Plan (PIP); a Final Warning; and
Termination. See Def.'s' Mem., Ex. 2
(Handbook Sec. 12.02). Notwithstanding these provisions,
Howard “reserves the right to omit any or all of the
levels of discipline depending on the severity of the
offense.” Id., Ex. 2 (Handbook Sec. 12.00).
joined Howard's Family Medicine Residency Program on July
1, 2016, as a second-year resident. Compl. ¶ 1. She
“was the only Caucasian, Jewish American female in the
. . . program” at that time. Id. ¶ 2.
Plaintiff's supervisors included three chief residents
(two African born males and one Asian male). Id.
¶ 7. Her direct supervisor was Dr. Oladunni Filani
(African born male), Director of the Family Medicine Program.
Id.; Def.'s Mem. at 5. Dr. Mark Johnson (African
American male) was the Chair of the Family Medicine
Department, Compl. ¶ 7; Def.'s Mem. at 5, and
Plaintiff's academic advisor, Compl. ¶ 35.
on Plaintiff's “competency evaluations as well as
[her] performance in the ambulatory clinic, inpatient
services, and operating/procedure rooms, ” Def.'s
Mem., Ex. 3, she met “the requirements to advance to
the next . . . level of training within the Department of
Community and Family Medicine, ” id., Ex. 3.
By memorandum dated January 27, 2017, Dr. Filani notified
Plaintiff of Howard's “intention to renew [her]
Post Graduate Training contract for the 2017-2018 academic
training year beginning July 1, 2017.” Id.,
Ex. 3; Compl. ¶ 3. Renewal was “contingent upon
[her] continued demonstration of professional and medical
competence and the successful completion of the [2016-17]
academic year.” Def.'s Mem., Ex. 3.
Orientation, Holidays and Meetings
Plaintiff claims to have been singled out from the beginning.
She alleges she was not given “[i]mportant information
regarding orientation activities and onboarding
communications/materials, ” Compl. ¶ 8, and was
given “an expired and invalid meal ticket for the July
2016 orientation, ” id. ¶ 9. She
allegedly was excluded from Christmas holiday events,
id., and denied “[an] opportunity to attend
resident events, such as the welcome of new hires event in
July 2016, as [she] was intentionally put on call duty when
these events were scheduled, ” id. Plaintiff
alleges that she was subjected to “hateful
comments” about “Americans, the American
government, LGBT community, the Washington, DC African
American community, and other disenfranchised groups.”
Id. ¶ 10. And she “was not accommodated
for time off to observe high holy Jewish observances, ”
id., while directed “to work the Christian
holiday of Christmas because [she is] Jewish, ”
September 30, 2016, [Plaintiff] suffered a needle stick
injury and bodily fluid exposure while assisting the
Obstetrics and Gynecology Attending Physician . . . in
post-vaginal delivery surgical repair.” Id.
¶ 52. The attending physician allegedly instructed
Plaintiff to use her hands instead of a retractor, and while
sewing stitches on a patient with a venereal disease, he
stuck Plaintiff's finger. See id. ¶¶
52-53, 59. Plaintiff therefore had to take blood tests for
HIV and hepatitis, and retesting over the following 12 months
allegedly “caused [her] physical and emotional distress
and anguish.” Id. ¶ 59.
claims that this incident was an example of Howard's
“frighteningly sloppy procedures, ” id.
¶ 53, and she faulted Howard's investigation of the
incident as a “cover up for the fact that [it has] lax
cross-contamination policies creating a serious potential
hazard for the Hospital, ” id. ¶ 56.
Following the incident, Howard allegedly shared information
in Plaintiff's medical records without authorization,
id., and “penalized [her] for taking necessary
time off to tend to the medical needs [its] negligence posed,
” id. ¶ 58.
alleges that, on October 11, 2016, Dr. Filani “summoned
[her] to a meeting to discuss the sharps incident.”
Id. ¶ 60. The meeting allegedly “turned
into an interrogation, ” id., during which Dr.
Filani expressed his disbelief at Plaintiff's account of
the event. Id. Plaintiff also alleges that Dr.
Filani “provided insulting and negative feedback
stating that he or others are ‘walking on
eggshells' around [her].” Id.
alleges that there was a mandatory didactics meeting for all
residents on Wednesday mornings. Pl.'s Opp'n, Ex. 31
at 1. On November 9, 2016, Dr. Filani scheduled meetings at
10 a.m. and 11 a.m., and Plaintiff did not attend either
meeting, choosing “to only show up for call that
afternoon.” Id., Ex. 31 at 1-2.
to Plaintiff, Dr. Filani “singled [her] out” by
emailing her on November 9, 2016 regarding her failure to
attend these meetings, despite the fact that other residents
had also not attended. Compl. ¶ 15; see
Pl.'s Opp'n, Ex. 31 at 2. She responded “in
great detail that notice of the meeting was unclear and given
at . . . short notice.” Compl. ¶ 15. She
“was not aware of the meeting and so [she] was not
there.” Pl.'s Opp'n, Ex. 31 at 2. She asked Dr.
Filani to send her “detailed minutes” of the
meeting. Id., Ex. 31 at 2. Dr. Filani found
Plaintiff's explanation “unprofessional” and
told Plaintiff it was her “responsibility to find out
what was discussed not to request minutes to be
sent[.]” Id., Ex. 31 at 1. Dr. Filani
“[s]ubsequently . . . sent a written warning to
all of the residents noting that a
“few” residents had not attended the
meeting.” Compl. ¶ 15 (emphasis in original);
see Pl.'s Opp'n, Ex. 32.
Encounter with Dr. Johnson
Plaintiff claims that on December 8, 2016, she had “an
extremely uncomfortable awkward interaction with . . . Dr.
Mark Johnson.” Compl. ¶ 35. When Dr. Johnson
“was made the Department head, [Plaintiff] and several
others congratulated him by extending a hand for a simple
formal professional handshake.” Id. Rather
than shake Plaintiff's hand, Dr. Johnson allegedly
“pulled [her] close to him, chest to chest in a bear
hug wrapping his arms around [her] in an overly intimate
gesture.” Id. Plaintiff “was shocked,
stunned and taken aback, ” finding the gesture
“extremely unprofessional and unwelcome[.]”
Id. Thereafter, she avoided any private meeting with
Dr. Johnson. Id.
filed a complaint by email regarding the encounter with Dr.
Johnson on March 30, 2017, to the attention of “HR
Specialist.” Pl.'s Opp'n, Ex. 4 at 1-2;
see Compl. ¶ 35. Dr. Antwan-La'Mont Lofton,
Director, Employee Relations & Equal Employment
Opportunity at Howard's Office of Human Resources,
acknowledged receipt of the email on that same date.
Pl.'s Opp'n, Ex. 4 at 1.
Dr. Kolko and La Clínica
February 1, 2017, Dr. Joshua Kolko at La Clínica del
Pueblo, a maternity care clinic, received a telephone call
from a prenatal patient whose condition warranted hospital
admission. See Def.'s Mem., Ex. 4 at 1. Dr.
Kolko instructed his patient to proceed directly to Howard
University Hospital, and he contacted Plaintiff, the family
medical resident on call, to relay the patient's
information. Id., Ex. 4 at 1; Compl. ¶ 17.
Plaintiff alleges that she “appropriately triaged and
admitted the patient” and “contacted Dr. Somwaru,
the resident responsible for this . . . patient.”
Compl. ¶ 17. Dr. Somwaru allegedly “refused to
attend [the] birth despite being the responsible resident and
being told by the chief resident Dr. DeMata to do so.”
Id.; see id. ¶ 18.
Kolko emailed Dr. Filani on February 23, 2017, and told him
that during the February 1, 2017 call with Plaintiff, she
informed him that “she would not be involved in
deliveries[.]” Def.'s Mem., Ex. 4 at 1;
see Compl. ¶ 18. Dr. Kolko also told Dr. Filani
that in addition to Plaintiff's alleged refusal to tend
to the patient, Plaintiff had been absent from her clinic
rotation on December 1, 2016 and December 15, 2016.
Def.'s Mem., Ex. 4 at 1-2; see id., Ex. 7 at
about April 12, 2017, Plaintiff spoke to Dr. Kolko about the
February 1, 2017 incident. Compl. ¶ 19. She then sent
him a follow up email on April 13, 2017, in which she again
asserted that it was Dr. Somwaru who was responsible for the
patient, and denied having “missed or skipped . . . a
delivery assigned to [her].” Pl.'s Opp'n, Ex.
16. She also claimed that Dr. Kolko “misinterpreted
[their] conversation and relayed misinformation to the Howard
FM Residency Program, ” and she told Dr. Kolko that he
“should have talked to [her] before [he] made the
erroneous and slanderous written statements.”
Id., Ex. 16. She asked Dr. Kolko “to . . .
correct [his] statements . . . and rectify these
matters.” Id., Ex. 16.
Intern Chat Room
February 2017, Plaintiff learned that the interns “had
a chat room on a cyber communications application where
they would talk about [her].” Compl. ¶ 24. She
claims that “[m]anagement set up a smear campaign on a
cyber chat board, ” Pl.'s Opp'n at 31, where
plaintiff's “subordinates/interns . . . started
maligning [her] on this cyber application weirdly, ”
id. None of the interns “talked to [her] while
on duty . . . or at any time about any alleged concerns about
[her] supervisory role.” Compl. ¶ 26. Instead,
according to Plaintiff, the interns “collaborated on
writing a letter to launch allegations against [her].”
Id. ¶ 25; see Pl.'s Opp'n at
32. Plaintiff considered herself “bullied and
cyber-bullied, and subject to hostility[.]” Compl.
¶ 26, see Pl.'s Opp'n at 31-33.
February 2017, “residents sat for an in-person exam
held through a testing vendor's online website.”
Compl. ¶ 20. “Dr. Filani proctored the exam in
person.” Id. Plaintiff claims that Dr. Filani
was unable to score most of the exams because he was under
the misimpression that the residents' answers had not
been recorded. Pl.'s Opp'n, Ex. 10 at 2. Dr. Filani
told the residents to retake the exam, ” Compl. ¶
20, and he set the test “in tutor mode [to] give [the
residents] immediate feedback, ” Pl.'s Opp'n,
Ex. 10 at 1. He explained that “[t]he essence of the
test is not just . . . scores but also the avenue to provide
quick study material on topics . . . covered in the Board
review series.” Id., Ex. 10 at 1.
contacted the vendor's representative who allegedly
“refuted Dr. Filani's claim that the exam results
were lost.” Compl. ¶ 21; see Pl.'s
Opp'n, Ex. 10 at 1. She “learned that the results
were safely stored at the vendor's site.” Compl.
¶ 21. Plaintiff concluded that it was unnecessary to
retake the exam, and communicated this to her colleagues via
[A]ll 11 exams taken for FMRESIDENTS classroom activity on
2/22/17 went through and have associated scores. The company
actually guarantees that scores are recorded even when the
proctor closes the browser or computer! If you took the test
on this past Wednesday, the company has every score report in
their system. The company says there is no need for a retake
if you took it already when it was proctored this past
Wednesday. Good news!
Pl.'s Opp'n, Ex. 10 at 1-2.
claims that Dr. Filani responded in an email in which he
accused her of “instructing the other residents to
disregard his instructions.” Compl. ¶ 22. Dr.
Filani's email to Plaintiff stated:
On Weds 02/22/2017 I arranged a quarterly test for the
residents which you took and completed. I sent instructions
to all the residents informing them of an error with my
computer system that made it difficult for me to score them
and asked that the test be taken again . . . .
As of Friday 02/24/2017 I had already become aware that the
test scores were available but decided to allow a revision
for the residents by changing the mode of the test to allow
for immediate feedback. Thus I chose not to change the
directive that I had given to the residents.
I would like an explanation for why you felt it was
appropriate and necessary for you to give instructions to
residents not to take the test anymore thereby contradicting
my earlier given directive.
Pl.'s Opp'n, Ex. 11 at 1-2. Plaintiff deemed Dr.
Filani's accusation “false and ludicrous, ”
Compl. ¶ 22, and considered his “reaction and
manner in which he rebuked [her] uncalled for, ”
id. She felt that she had been “singled out
for insubordination, and [was] compelled to respond, ”
Pl.'s Opp'n at 15, by email on March 2, 2017, in
which she denied giving her fellow residents instructions or
contradicting Dr. Filani's instructions, of which she
claimed to be unaware. See id., Ex. 11 at 1.
Meeting with Dr. Lofton
Plaintiff met with Dr. Lofton on March 9, 2017 and
“raised many concerns about mistreatment, differential
treatment, and retaliation.” Compl. ¶ 30. She
claims that Dr. Lofton “assessed that [she] was
‘in a hostile work environment, ” id.,
and “recommended . . . ‘interim remedial action,
'” id. Although he was to meet with
Plaintiff again, he “made himself unavailable”
when she contacted him after receiving a Formal Warning on
March 9, 2017. Id.; see Pl.'s
Opp'n, Ex. 34.
March 9, 2017, shortly after her meeting with Dr. Lofton,
Plaintiff received a Formal Warning from Dr. Johnson by
email. Compl. ¶¶ 30, 12; see Pl.'s
Opp'n, Ex. 12 at 2. Dr. Johnson's letter noted
Plaintiff's “refusals to complete . . . work
assignments, insubordination, and failure to adhere to
program requirements concerning work assignments for
interns.” Pl.'s Opp'n, Ex. 12 at 2. He cited
the following conduct:
[R]efusing legitimate instructions to complete assignment at
La Clínica; informing La Clínica that [she
would] no longer be accepting Obstetric patient assignments
at that facility nor caring for patients in the Labor and
Delivery suite at the Hospital; instructing interns to report
to the Labor and Delivery suite; and failing to provide
proper oversight of interns assigned to [her], which poses a
potential risk to patient safety.
Id., Ex. 12 at 2. Dr. Johnson reminded Plaintiff of
her obligation “to be present at all assignments and
[to] complete all work as assigned by the Program
Director.” Id., Ex. 12 at 2. Invoking
“the requirements of the Family Medicine Program, the
House Staff Manual, and the applicable provisions of the
[collective bargaining agreement] covering the residents,
” Dr. Johnson advised Plaintiff that she “may not
refuse legitimate work instructions and assignments related
to [her] training and performance in the Residency
Program[.]” Id., Ex. 12 at 2. He warned her
that “[f]urther refusals to complete . . . work
assignments, insubordination, instructing interns to report
to Labor and Delivery, and failure to appropriately oversee
the interns assigned to [her] may result in further
disciplinary action up to and including termination from the
Residency Program.” Id., Ex. 12 at 2.
Plaintiff expressed her surprise at the Formal Warning in a
lengthy email to Dr. Johnson, in which she denied the conduct
charged. See id., Ex. 12 at 1. She denied having