ANAJE BOYD v. DISTRICT OF COLUMBIA
Civil Action No.: 22-3741 (RC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
January 29, 2024
Re Document No.: 11
GRANTING IN PART AND DENYING IN PART DEFENDANT‘S MOTION TO DISMISS
I. INTRODUCTION
Plaintiff Anaje Boyd brings the instant suit against the District of Columbia (“Defendant” or “the District“), alleging claims of hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII“),
The events giving rise to Boyd‘s complaint began in April of 2020. At that time, Boyd was working as “a firefighter and an emergency medical technician” for the District of Columbia Fire and Emergency Medical Services (“DC FEMS“)—a position she had held since 2011. Am. Compl. ¶¶ 1-2. Boyd alleges that, on the night of April 25, she awoke during her shift to find her supervisor, Lt. Antwan Jordan, “standing over her.” Id. ¶¶ 2, 31. Lt. Jordan told Boyd that “she had just been relieved of duty and that her Officer in Charge . . . was looking for her . . . . with [her] sexy ass.” Id. ¶ 32. Lt. Jordan then left the room, but he returned shortly thereafter to ask whether Boyd had “left anything on the ambulance.” Id. ¶ 33. When she replied that she had “left her go-bag,” he responded, “so you didn‘t leave this?” Id. ¶¶ 33-34. As he said this, he “forcibly put his hand down [Boyd‘s] shirt into her bra and squeezed her right breast.” Id. ¶ 34. Boyd “grabbed his hand and tried to remove it from her breast but” to no avail. Id. Instead, Lt. Jordan “attempted to grab her left breast” as well, before leaving the room for a second time. Id. “[S]haken by the assault,” Boyd then left the fire station. Id. ¶ 35. After she had left, she “felt something in her bra,” which turned out to be “two twenty-dollar bills.” Id. ¶ 36.
The next day, Boyd reported the incident to Lt. Martin McMahon, her “general supervisor.” Id. ¶ 38. Specifically, she told Lt. McMahon that Lt. Jordan had “sexually harassed her” and that “she wished to file an [Equal Employment Opportunity (“EEO“)] complaint.” Id. Lt. McMahon assured Boyd “that he was going to contact the EEO Office.” Id. ¶ 39.
On April 27, Boyd “filed a police report against Lt. Jordan with the Metropolitan Police Department.” Id. ¶ 40. That same day, she heard back from Lt. McMahon, who told Boyd that he had “attempted to contact the EEO office” but had been “instructed by Chief . . . Simister to
Acting in accordance with Lt. McMahon‘s “instructions,” Boyd sent an email to Mauro. Id. ¶ 44. Thereafter, the two had a conversation about Boyd‘s “complaint of sexual harassment and assault.” Id. ¶ 45. Boyd also told Mauro that she had filed a police report, to which Mauro responded with apparent “irrit[ation]” based on her “aggressive and curt” tone. Id. According to Boyd, throughout their conversation, Mauro did not inform Boyd that she was not, in fact, an EEO counselor. Id. ¶ 46. Nor did she “notify . . . Boyd of any other process or procedure for reporting harassment.” Id. ¶ 47. Instead, Mauro “affirmatively misled and improperly advised . . . Boyd that she could not pursue an EEO complaint” because she had already filed a police report. Id. ¶¶ 48-49. According to Mauro, this meant that Boyd needed to “wait” to file an EEO charge and “that there could not be an investigation into her harassment complaint while the criminal process was ongoing.” Id. ¶ 49. Taking Mauro at her word, Boyd “did not pursue a complaint of harassment at the time.” Id. ¶ 50.
Over a year passed. Then, in July of 2021, Boyd had a discussion with one of her coworkers, who suggested that Boyd speak with Cpt. Melonie Barnes, an “Investigator in the Office of Internal Affairs.” Id. ¶ 67. Boyd reached out to Cpt. Barnes, who assured Boyd that she would “look into the status” of Boyd‘s complaint of harassment. Id. ¶¶ 68-70. Over the course of that month, Boyd and Cpt. Barnes exchanged a few text messages regarding the status of Lt. Jordan‘s criminal proceedings. Id. ¶¶ 73-74. Then, in early August, Boyd emailed Cpt. Barnes to request an “exit letter” so that she could “bring [her] complaint to the [DC] [O]ffice of
Following their conversation, Boyd sent Cpt. Barnes an email asking Cpt. Barnes to explain “where in the fire department policy, rules or procedure[s]” it stated that Boyd could not file an “EEO complaint until the [criminal] trial is complete.” Id. ¶ 81. Cpt. Barnes responded with an email explaining that, unless Boyd had already filed an EEO complaint and “been through the counseling process” and “mediation,” she had not “started the EEO process per the DC Office of Human Rights.” Id. ¶ 82. Boyd replied, in relevant part, that she had been “under the impression” that she had filed an EEO complaint when she spoke to Mauro in April of 2020. Id. ¶ 83. Boyd also explained that she had not taken further action following her conversation with Mauro because Mauro had advised her that “no investigation could take place until the [criminal] case was over.” Id. Cpt. Barnes responded by informing Boyd that she was not aware of “any documentation from . . . Mauro or Lt. McMahon” stating that Boyd “want[ed] to file an EEO case.” See id. ¶ 84. She also told Boyd that she should “[r]each out to the [Assistant U.S. Attorney] that‘s prosecuting your case and ask her if you can file an EEO case now.” Id. And, although Cpt. Barnes later followed up with resources Boyd “may find helpful” while the criminal case was proceeding, Cpt. Barnes never provided information regarding “the DC FEMS policy that . . . allegedly [explained why] Boyd could not file an EEO complaint until her criminal case was over.” Id. ¶ 85.
Following her receipt of the EEOC‘s Notice, Boyd filed a complaint in this court, see Compl., ECF No. 1, which she later amended, see Am. Compl. Boyd‘s amended complaint alleges four counts of sexual harassment and retaliation under Title VII,
III. LEGAL STANDARD
The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim” to give the defendant fair notice of the claim and the grounds upon which it rests.
“In deciding a 12(b)(6) motion, a court may ‘consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.‘” Greer v. Bd. of Trs. of the Univ. of the D.C., 113 F. Supp. 3d 297, 304 (D.D.C. 2015) (citation omitted) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). “When the plaintiff alleges the filing of an administrative charge, that charge may be deemed incorporated into the complaint and the court can consider it on a motion to dismiss.” Id.; see also Koch v. Walter, 935 F. Supp. 2d 164, 171 (D.D.C. 2013).
IV. ANALYSIS
The District moves to dismiss Boyd‘s retaliation claims on two grounds. First, it argues that Boyd failed to exhaust her administrative remedies in relation to her claim of retaliation and that, therefore, her Title VII retaliation claim must be dismissed. See Def.‘s Mot. at 6. Second,
A. Exhaustion of Title VII Retaliation Claim
The District first argues that Boyd‘s Title VII retaliation claim should be dismissed for failure to exhaust administrative remedies because Boyd did not assert a retaliation claim in the charge of discrimination that she filed with the EEOC. Id. at 6. The Court agrees.
Among other things, Title VII “prohibit[s] employers from retaliating against employees for having engaged in activity protected by Title VII.” Rochon v. Gonzales, 438 F.3d 1211, 1217 (D.C. Cir. 2006); see
Even liberally construed, Boyd‘s EEOC complaint would not have put either the EEOC or her employer on notice that Boyd was asserting a retaliation claim. The reasons for this are twofold. First, the form that Boyd filed with the EEOC—which outlined and described her formal charge of discrimination—contained a list of checkable boxes from which Boyd was asked to identify the discriminatory acts on which her complaint was based. See Pl.‘s Opp‘n, Ex. 1, Pl.‘s Charge of Discrimination (“EEOC Charge“) at 4, ECF No. 13-3.3 Boyd checked boxes to indicate that she had been discriminated against on the basis of sex and that she had suffered sexual harassment. See id. She did not check the box for “retaliation.” See id.; see also Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 279 (D.D.C. 2011) (“Discrimination and retaliation claims are considered distinct types of claims that must be raised independently if the retaliation occurred prior to the filing of the administrative charge.“).
Here, Boyd‘s failure to check the “retaliation” box is not saved by her written explanation because that explanation provides no indication that she was pursuing a retaliation claim. For one thing, her written explanation does not mention retaliation at all. See Jones v. Ass‘n of Am. Med. Colls., No. 22-CV-1680, 2023 WL 2327901, at *6 (D.D.C. Mar. 2, 2023) (dismissing retaliation claim where plaintiff‘s administrative complaint did not use the words “retaliation” or “retaliatory“); Ahuja, 873 F. Supp. 2d at 227 (holding that plaintiff failed to exhaust retaliation claim where her EEOC charge was “devoid of any reference to retaliation“). Instead, it details the facts of Lt. Jordan‘s alleged sexual abuse and harassment, and then describes the reasons why Boyd did not file a formal charge of discrimination for over two years. See EEOC Charge at 4-5. Although Boyd‘s written narrative does mention that Mauro and Cpt. Barnes instructed her that she could not file an EEO complaint until the criminal proceedings against Lt. Jordan had concluded, see EEOC Charge at 5; see also Pl.‘s Opp‘n at 9 (arguing that the inclusion of these facts satisfies the exhaustion requirement), there is nothing in that narrative
Because Boyd‘s charge of discrimination did not contain “sufficient information” to put either the EEOC or her employer “on notice of [a retaliation] claim,” she has failed to exhaust her administrative remedies with regard to that claim. Crawford, 867 F.3d at 109. Her Title VII retaliation claim must, therefore, be dismissed.
B. Failure to State a Prima Facie Retaliation Claim Under Title VII or the DCHRA
The District separately contends that, even if Boyd administratively exhausted her Title VII retaliation claim, she has failed to state a prima facie case of retaliation under either Title VII or the DCHRA. The District argues that (1) Boyd did not suffer a materially adverse action sufficient to give rise to a retaliation claim and, (2) even if she did, she has failed to allege that her employer engaged in the challenged actions because of her protected conduct. See Def.‘s Mot. at 6-7. The Court will address the District‘s contentions in turn.
“To state a claim for retaliation under Title VII or the DCHRA, a plaintiff ‘must establish three elements: (1) that she made a charge or opposed an unlawful practice, (2) that the employer took a materially adverse action against her, and (3) that the employer took the action because of her protected conduct.‘”4 Jenkins v. District of Columbia, No. 17-CV-2730, 2023 WL 4183795, at *5 (D.D.C. June 26, 2023) (cleaned up) (quoting Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)). In the retaliation context, an action is materially adverse if it “could conceivably dissuade a reasonable worker from making or supporting a charge of discrimination.” Newton v. Off. of the Architect of the Capitol, 839 F. Supp. 2d 112, 116 (D.D.C. 2012); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also Siddique v. Macy‘s, 923 F. Supp. 2d 97, 107 n.10 (D.D.C. 2013) (explaining that the “materially adverse” standard set forth in Burlington Northern applies to claims of retaliation under the DCHRA). This standard casts a wider net than does the standard governing materially adverse actions in the discrimination context and, as such, “the universe of cognizable retaliatory actions is broader than that of discriminatory actions.” Swann v. Off. of Architect of Capitol, 73 F. Supp. 3d 20, 26-27 (D.D.C. 2014). That said, the universe “is not so broad as to allow the federal judiciary to sanction trivial harms or micromanage a supervisor‘s decisions.” Kelso v. McDonough, No. 19-CV-0722, 2021 WL 3856614, at *8 (D.D.C. Aug. 30, 2021).
Taking these allegations in order and viewing the well-pleaded facts in the light most favorable to Boyd, the Court has no trouble concluding that Mauro‘s and Cpt. Barnes‘s instructions to Boyd could constitute materially adverse employment actions. After all, through those instructions, Mauro and Cpt. Barnes actively “dissuaded and discouraged [Boyd] from filing an EEO complaint.” Trant v. Murray, 589 F. Supp. 3d 50, 58 (D.D.C. 2022) (finding that employer‘s attempts to “dissuade[] and discourage[] [plaintiff] from filing an EEO complaint” could “qualif[y] as a materially adverse action“). The District does not meaningfully contend otherwise, asserting only that Boyd must not have been dissuaded because she “is [now] pursuing her EEO claims.” Def.‘s Reply at 4. Of course, this ignores the fact that, based in large part on the instructions given by Mauro and Cpt. Barnes, Boyd delayed filing an EEO complaint for over two years. See Am. Compl. ¶¶ 44, 87, 91. But more to the point, the District “confuses
In contrast, Mauro‘s and Cpt. Barnes‘s alleged “refus[al] to conduct an investigation,” id. ¶¶ 121, 128, into Boyd‘s claim of sexual harassment is not an adverse action sufficient to support a retaliation claim.6 Other courts have held that, for a failure to investigate to constitute a materially adverse action, a plaintiff must explain how that failure led to “demonstrable harm” or “made it more difficult for her to pursue her claims with the EEOC or otherwise assert her rights.” Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 640-41 (10th Cir. 2012); see also
In sum, the Court concludes that Boyd has plausibly alleged that she suffered a materially adverse action when Mauro and Cpt. Barnes informed her that she could not file an EEO complaint while criminal proceedings against Lt. Jordan were pending. Conversely, Mauro‘s and Cpt. Barnes‘s alleged failure to investigate Boyd‘s harassment claims does not constitute a materially adverse action sufficient to give rise to a claim of retaliation.
Although Boyd has plausibly alleged that the instructions she received from Mauro and Cpt. Barnes regarding when she could file an EEO complaint constituted an adverse action, she has not plausibly alleged a causal link between those instructions and protected activity. In other words, Boyd has not alleged facts sufficient to create a plausible inference that Mauro and Cpt. Barnes gave those instructions because Boyd had engaged in protected activity.
Both Title VII and the DCHRA require a plaintiff to demonstrate “a causal link between the [plaintiff‘s] protected activity and the adverse employment action[s]” she suffered. Slate v. Pub. Def. Serv. for D.C., 31 F. Supp. 3d 277, 292 (D.D.C. 2014). In the context of Title VII, this element requires proof that a “desire to retaliate was [a] but-for cause of the challenged employment action.” Jones v. D.C. Water & Sewer Auth., No. 12-CV-1454, 2016 WL 659666, at *6 (D.D.C. Feb. 18, 2016) (emphasis deleted) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)). That is, a “plaintiff must show ‘that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.‘” Nunnally v. District of Columbia, 243 F. Supp. 3d 55, 67 (D.D.C. 2017) (quoting Nassar, 570 U.S. at 360). As for the DCHRA, it is not immediately clear whether a plaintiff is required to prove but-for causation or if, instead, she need only show that a desire to retaliate was a “motivating factor” behind the challenged action. See Mosleh v. Howard Univ., No. 19-CV-00339, 2020 WL 956527, at *7 (D.D.C. Feb. 27, 2020) (noting divergence in the DCHRA caselaw between but-for and motivating-factor causation tests); compare Jones, 2016 WL 659666, at *7 (“To date, D.C. courts have not required ‘but for’ causation, but instead have used a standard comparable to the ‘motivating factor’ test.“), with Nunnally, 243 F. Supp. 3d at 67 (applying “but-for” test).
For the foregoing reasons, Defendant‘s motion to dismiss (ECF No. 11) is GRANTED IN PART AND DENIED IN PART. Specifically, Defendant‘s motion is GRANTED to the extent that it seeks dismissal of Plaintiff‘s retaliation claims. The motion is DENIED to the extent that it seeks dismissal of Plaintiff‘s hostile work environment claims. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: January 29, 2024
RUDOLPH CONTRERAS
United States District Judge