UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) KAREN L. KIMMEL, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-797 (RWR) ) GALLAUDET UNIVERSITY, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Karen Kimmel brings this action against Gallaudet

University alleging retaliation in violation of Title VI of the

Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., retaliation,

disability discrimination, and hostile work environment in

violation of the District of Columbia Human Rights Act (“DCHRA”),

§ 2-1401.01 et seq., and tortious interference with prospective

business relations. Gallaudet has moved to dismiss the complaint

for failure to state claims upon which relief can be granted.

With reasonable inferences drawn in her favor, Kimmel has pled

facts sufficient to state claims and Gallaudet’s motion to

dismiss will be denied.

BACKGROUND

During the events relevant to the complaint, Kimmel was Dean

of the College of Liberal Arts, Sciences, and Technologies and a

fully tenured associate professor at Gallaudet, a higher -2-

education institution for the deaf.1 (Compl. ¶ 5.) Kimmel

“suffers from mild (right ear) and moderate (left ear) high

frequency hearing loss as a result of a degenerative and

hereditary hearing loss[,]” but “has not yet fully lost her

hearing.” (Id. ¶ 8.) She is proficient in American Sign

Language (“ASL”) and uses other various methods to reduce the

impact of her hearing loss and to improve her ability to

communicate, including the use of amplification and speech

reading. (Id.)

Kimmel alleges that there is a community at Gallaudet

identifiable as “Deaf Culture”2 that “rejects the notion of

deafness as a disability and embraces the idea of Deaf people as

an oppressed minority.” (Id. ¶ 9.) She further alleges that

Deaf Culture argues “that any deaf person can become Deaf by

embracing certain ideas and practices which themselves create

exclusion, hierarchy, and discrimination.” (Id.) As an example,

she contends that Deaf Culture “supports use only of ASL, which

is primarily used by white, Deaf, middle-class people.” (Id.)

Kimmel further alleges that in October 2006, Gallaudet

students, with the support of Gallaudet faculty, staff, and

1 Gallaudet is a private corporation created by acts of Congress and receives federal funding. (Compl. ¶¶ 2, 29.) 2 Kimmel contends that “capitalizing the word deaf (Deaf) signifies a culture rather than the physical condition of hearing loss.” (Compl ¶ 9.) -3-

alumni, staged “lawless and widely publicized sit-ins, blockades,

and protests against then-newly selected President” of Gallaudet,

Dr. Jane Fernandes. (Id. ¶ 13.) Kimmel asserts that “one of the

chief complaints of the protesters regarding Dr. Fernandes was

that she was ‘not Deaf enough.’” (Id. ¶ 14.)3 Kimmel contends

that she “openly supported Dr. Jane Fernandes and her beliefs in

support of non-discrimination against students who are not

members of Deaf Culture.” (Id. ¶ 17.) She alleges that, as a

result of her support for Fernandes and her not being Deaf

enough, she was “harassed by various Gallaudet faculty members

and other employees,” her job responsibilities were reduced, and

she was excluded from administrative decisions in which she

should have been included, and she was “the victim of defamatory

falsehoods spread by Gallaudet employees and agents.” (Id.

¶ 18.)

In addition, Kimmel contends that “[t]hroughout the course

of her administration as Dean, [she was] a supporter of deaf/Deaf

students, African-American and other minority students,” and [a]t

various times in the recent past, [she] engaged in protected

activity by voicing concerns and complaints over the

discriminatory and unfair treatment of” these students. (Id.

3 After the protests, Gallaudet’s Board of Trustees revoked Fernandes’ appointment as President. (Compl. ¶ 15.) Kimmel alleges that “there was no basis . . . for the revocation of Dr. Fernandes’ appointment” except “her being ‘not Deaf enough[.]” (Id.) -4-

¶¶ 11-12.) For example, she alleges that in 2005, she

“complained about the discriminatory treatment of a male African-

American student who was dismissed from Gallaudet before

undergoing learning disability testing after receiving poor

grades in mathematics.” (Id. ¶ 19.) Kimmel also alleges that in

2006, she challenged a mathematics department policy and actions

taken under the policy that she believed discriminated against

“students, including African-American and developmental students,

who were learning disabled, lacked sufficient math preparation

because they [were] deaf, and possessed a range of communication

skills from no signing to ASL[.]” (Id. ¶ 20.) Kimmel claims

that Gallaudet retaliated against her for these activities by

spreading falsehoods regarding her “character and actions as

Dean[,]” including in a November 2006 Washington Post article.

(Id. ¶ 21.)

Finally, Kimmel contends that she retained counsel who

informed Gallaudet that Kimmel might assert claims under the

federal and District of Columbia antidiscrimination laws. (Id.

¶ 22.) Kimmel alleges that after her counsel met with Gallaudet

regarding her potential claims, among other allegedly retaliatory

actions, Gallaudet reduced her job responsibilities as Dean and

informed her she would receive a merit pay raise that was lower

than expected. (Id. ¶¶ 23-26.) -5-

Kimmel’s complaint lists seven causes of action. Counts I

and II assert claims for retaliation under Title VI and the

DCHRA, respectively. In Counts III and IV, Kimmel alleges DCHRA

claims for disability discrimination and hostile work

environment. Counts V through VII assert intentional infliction

of emotional distress, tortious interference with prospective

business relations, and breach of contract claims under D.C. law.

Gallaudet has moved to dismiss all of Kimmel’s claims under

Federal Rule of Civil Procedure 12(b)(6) for failure to state

claims upon which relief can be granted.4

DISCUSSION

Under Rule 12(b)(6), a party may move to dismiss a complaint

for failure to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(6). “On review of a 12(b)(6) motion a

court ‘must treat the complaint’s factual allegations as true

. . . and must grant plaintiff the benefit of all inferences that

can be derived from the facts alleged.’” Holy Land Found. for

Relief & Dev. v. Ashcroft,

(D.C. Cir. 2003)

(quoting Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000)). “[A]n employment discrimination plaintiff

need not plead a prima facie case of discrimination.”

4 In her opposition to the defendant’s motion, Kimmel withdraws her emotional distress and breach of contract claims. (See Pl.’s Opp’n at 2.) In light of Kimmel’s abandonment of these claims, the defendant’s motion to dismiss Counts V and VII will be granted. -6-

Swierkiewicz v. Sorema N.A.,

(2002); see

Sparrow,

(concluding that an employment

discrimination complaint need not allege all elements of a prima

facie case at the initial pleading stage and states a claim by

merely saying “I was turned down for a job because of my race”

(citation and internal quotation marks omitted)). 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,

(2007) (quoting Bell Atlantic

Corp. v. Twombly,

(2007)).

I. DISABILITY DISCRIMINATION (COUNT III)

In her disability discrimination claim, Kimmel alleges that

“she was subjected to adverse action as a result of the nature

and extent of her disability,” specifically her being “not

completely deaf” and “using amplification, speech reading, and

ASL” to manage her hearing impairment. (Pl.’s Opp’n at 10;

Compl. ¶¶ 40-43.) Gallaudet argues that as Kimmel pleads it,

“[b]eing ‘not Deaf enough’ . . . ‘signifies a culture rather than

the physical condition of hearing loss[,]’” and “[b]ecause being

‘not Deaf enough’ is not a physical impairment, it cannot be a

disability under the DCHRA.” (Def.’s Mem. at 18-19 (quoting

Compl. ¶ 9).) -7-

The DCHRA is intended “to secure an end in the District of

Columbia to discrimination for any reason other than that of

individual merit[.]”

. It prohibits any

employer or educational institution from discriminating on the

basis of “race, color, religion, national origin, sex, age,

marital status, personal appearance, sexual orientation, gender

identity or expression, family responsibilities, genetic

information, disability, matriculation, or political affiliation

of any individual[.]”

(a); see

. The DCHRA defines a “disability” as a “physical or

mental impairment that substantially limits one or more of the

major life activities of an individual, having a record of such

an impairment, or being regarded as having such an impairment[.]”

(5)(A). There is no question that Kimmel’s

deafness is a disability under the DCHRA. However, Kimmel does

not allege that she was discriminated against simply because of

her deafness, but rather asserts that she has an actionable claim

for discrimination based on “her level of deafness . . . and the

manner in which she chooses to respond to her hearing

impairment[.]” (Pl.’s Opp’n at 10.)

“Given the substantial similarity between” Title VII and the

DCHRA, the District of Columbia relies on interpretations of

Title VII when interpreting DCHRA claims. Carpenter v. Fed.

Nat’l Mortgage Ass’n,

(D.C. Cir. 1999); see -8-

Estenos v. PAHO/WHO Fed. Credit Union,

(D.C.

2008) (noting that the D.C. Court of Appeals “follow[s] cases

construing Title VII in interpreting and applying the provisions

of the DCHRA when appropriate, that is, to the extent that the

acts use similar words and reflect a similar purpose (internal

quotation marks omitted)). In interpreting Title VII’s

prohibition on discrimination on the basis of sex, the Supreme

Court has repeatedly held that Title VII’s broad language

“‘evinces a congressional intent to strike at the entire spectrum

of disparate treatment of men and women in employment.’” Oncale

v. Sundowner Offshore Servs., Inc.,

(1998)

(quoting Meritor Savings Bank, FSB v. Vinson,

(1986) (citations and internal quotation marks omitted)); see

Price Waterhouse v. Hopkins,

(1989) (stating

that “‘[i]n forbidding employers to discriminate against

individuals because of their sex, Congress intended to strike at

the entire spectrum of disparate treatment of men and women

resulting from sex stereotypes’” (quoting Los Angeles Dep’t of

Water & Power v. Manhart,

, 707 n.13 (1978))). In

Price Waterhouse, the Court concluded that “we are beyond the day

when an employer [can] evaluate employees by assuming or

insisting that they match[] the stereotype associated with their

group[.]” 498 U.S. at 251. Thus, Price Waterhouse holds that

“[i]n the specific context of sex stereotyping, an employer who -9-

acts on the basis of a belief that a woman cannot be aggressive,

or that she must not be, has acted on the basis of gender.” Id.

at 250.

“After Price Waterhouse, courts [have] recognized a cause of

action under Title VII for discrimination based on failure to

conform to gender stereotypes.” Schroer v. Billington,

(D.D.C. 2006). As Schroer explained, Title

VII’s protection against sex stereotyping “creates space for

people of both sexes to express their sexual identity in

nonconforming ways.”

.

Like Title VII’s, the DCHRA’s stated goal to eliminate

“discrimination for any reason other than that of individual

merit,”

, evinces an intent to “strike at

the entire spectrum of disparate treatment” of individuals with

disabilities. Oncale,

(internal quotation marks

omitted). In this case, Kimmel’s allegation that she was

discriminated against because of the nature and extent of her

disability, including the ways in which she chose to respond to

her deafness, evokes a cause of action sufficiently analogous to

the sex stereotyping claim found actionable in Price Waterhouse.

Kimmel asserts that she was discriminated against because her

deafness or management of it did not conform to what was

preferred or accepted by the defendant. (See Compl. ¶¶ 9, 42;

Pl.’s Opp’n at 9-10.) A decision based on a prejudgment of what -10-

level of disability or what response to one’s disability is

acceptable or not acceptable is unlawful discrimination on the

basis of disability in the same manner as the decision based on

the stereotype that a female cannot be aggressive was found to be

unlawful discrimination on the basis of sex in Price Waterhouse.

See

. Although Kimmel’s allegation does not

suggest that she experienced discrimination solely because she

was deaf, but instead because of her particular kind of deafness

and approach to her disability, such an allegation nonetheless

alleges unlawful disability discrimination under the DCHRA.

Accordingly, Kimmel’s DCHRA disability discrimination claim will

not be dismissed.

II. RETALIATION (COUNTS I AND II)

In Counts I and II of her complaint, Kimmel asserts

retaliation claims under Title VI and the DCHRA, respectively.

A. Title VI

Kimmel contends that she has stated a claim under § 601 of

Title VI for retaliation based upon her complaints of

discriminatory treatment of African-American and other minority

students at Gallaudet. (See Pl.’s Opp’n at 3-4.) Section 601

provides that “[n]o person in the United States shall, on the

ground of race, color or national origin, be excluded from

participating in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal -11-

financial assistance.” 42 U.S.C. § 2000d. In Alexander v.

Sandoval,

(2001), the Supreme Court explained that

§ 601 contains a private cause of action under which “private

individuals may sue to enforce [their rights under the section]

and obtain both injunctive relief and damages.” Id. at 280. The

Court also recognized that § 601’s private cause of action is

limited, however, because § 601 “prohibits only intentional

discrimination.” See id.

While neither the Supreme Court nor the D.C. Circuit has

considered whether § 601’s private cause of action includes a

claim for retaliation, in Chandamuri v. Georgetown University,

(D.D.C. 2003), then-Judge Lamberth concluded

that “an action against retaliation is implicitly within the

scope of Title VI’s prohibition on intentional discrimination.”

. In reaching this conclusion, Chandamuri explains that

“the Supreme Court has stated that ‘the existence of a statutory

right implies the existence of all necessary and appropriate

remedies.’”

at 81 (quoting Franklin v. Gwinnett County Pub.

Sch.,

(1992) (citation omitted)). Applying this

tenet, the Supreme Court “has interpreted other anti-

discrimination statutes to include an implied right to be free

from retaliation.”

Chandamuri relies on the Court’s

decision in Sullivan v. Little Hunting Park, Inc.,

(1969), and Perry v. Sindermann,

(1972). Perry -12-

holds that a person has an implied cause of action under the

First and Fourteenth Amendments for retaliation because of the

exercise of one’s constitutionally protected speech or

associations because “if the government could deny a benefit to a

person because of [such speech or association], his exercise of

those freedoms would in effect be penalized and inhibited.”

. In Sullivan, the Supreme Court concluded that

contains an implied cause of action for

retaliation not simply for those who experience retaliation for

asserting their own rights under § 1982, but for those

individuals who experience retaliation for helping others assert

their rights under § 1982. See

. Construing this

precedent, Chandamuri adopts the conclusion of the Fourth Circuit

in Peters v. Jenney,

(4th Cir. 2003), that “the lack

of a specific prohibition of retaliation in Title VI does not

‘lead to an inference that Congress did not mean to prohibit

retaliation in § 601’ because ‘relevant precedent interpreting

similarly worded antidiscrimination statues’ construed

‘discrimination’ to include ‘retaliation.’” Chandamuri,

(quoting Peters,

.) “Based

exclusively on the Supreme Court’s previous decisions

5 Under § 1982, “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

. -13-

interpreting statutes that prohibit discrimination to also

prohibit retaliation, [Chandamuri] recognizes a private right of

action for retaliation for the exercise of § 601’s right to be

free from intentional discrimination.” Id.

The reasoning of Chandamuri and Peters is persuasive and

will be adopted. Thus, Kimmel may allege a retaliation claim

under § 601.6 To succeed on her retaliation claim, Kimmel must

ultimately prove that (1) she engaged in a protected activity,

(2) the defendant took a materially adverse action against her,

and (3) there was a causal connection between the protected

activity and the adverse action. Ginger v. District of Columbia,

(D.D.C. 2007). In the retaliation

context, a material adverse action is an action that “‘might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White,

(2006) (quoting Rochon v. Gonzales,

(D.C. Cir. 2006)). The determination of “whether a

particular employment action was materially adverse depends upon

the circumstances of the particular case, and should be judged

from the perspective of a reasonable person in the plaintiff’s

position, considering all the circumstances.” Robinson v.

6 As Kimmel concedes, because § 601 protects only intentional discrimination, Kimmel’s retaliation claim under Title VI is necessarily limited to alleged retaliation in response to her opposition to intentional discrimination. (See Pl.’s Opp’n at 3.) -14-

Winter,

(D.D.C. 2006) (internal quotations

omitted).

In her complaint, Kimmel alleges that she has “been a

supporter of . . . African-American and other minority

students[.]” (Compl. ¶ 11.) She further alleges that “[a]t

various times in the recent past, [she] engaged in protected

activity by voicing concerns and complaints over the

discriminatory and unfair treatment of . . . African-American and

other minority” students. (Id. ¶ 12.) Kimmel also contends that

she opposed a discriminatory policy of the Mathematics Department

“and specific actions taken by the Mathematics Department on the

basis of [the] policy.” (Id. ¶ 20.) She alleges that as a

result of her activities, Gallaudet retaliated against her by,

among other activities, spreading falsehoods about her to the

Washington Post. (Id. ¶ 32.) Although Kimmel’s alleged

protected activity is helping to assert minority students’ rights

under § 601, rather than asserting her own personal right under

the statute, under Sullivan, see

, Kimmel’s

alleged advocacy on behalf of minority students is a protected

activity sufficient to support a retaliation claim. Thus, at

this early stage, with her allegations, Kimmel has stated a claim

of retaliation under Title VI. -15-

B. Retaliation under the DCHRA (Count II)

Kimmel’s second cause of action asserts a claim for

retaliation in violation of the DCHRA. Under

-

1402.61, it is “an unlawful discriminatory practice to . . .

retaliate against” any person who exercised his or her rights

under the DCHRA or who “aided or encouraged any other person in

the exercise or enjoyment of any right granted or protected under

[the DCHRA].”

(a)-(b). For her DCHRA

retaliation claim, as with her Title VI retaliation claim,

Kimmel must show that (1) she engaged in a protected activity;

(2) she suffered an adverse action; and (3) there is a causal

connection between the two. Carpenter v. Federal Nat’l Mortgage

Ass’n,

, 235 n.3 (D.C. Cir. 1999).

Here, Kimmel alleges that Gallaudet unlawfully retaliated

against her because she (1) “expos[ed] discrimination against

African-American and developmental students,” including on one

occasion, by complaining about the discriminatory treatment of an

African-American male; (2) “aid[ed] and encourag[ed] Jane

Fernandes,” who Kimmel contends experienced discrimination; and

(3) after retaining legal counsel, notified Gallaudet that she

believed Gallaudet was discriminating against her. (Compl.

¶¶ 12, 22, 35.) She contends that, as a result of these

activities, Gallaudet retaliated against her by publicly

spreading false and defamatory information about her, reducing -16-

her job responsibilities, excluding her from participating in

administrative decisions in which she should have been included

as a Dean, and by denying her a higher merit pay raise. (See

Pl.’s Opp’n at 6-8; Compl. ¶¶ 23-26.) With reasonable inferences

drawn in Kimmel’s favor regarding at least her allegations that

she experienced retaliation as a result of her opposition to

discrimination against protected students, her support for

Fernandes, and her attempt to challenge her own discriminatory

treatment, the complaint states a claim for retaliation under the

DCHRA.

III. HOSTILE WORK ENVIRONMENT (COUNT IV)

Kimmel’s fourth cause of action alleges that she experienced

a hostile work environment in violation of the DCHRA. “When the

workplace is permeated with discriminatory intimidation,

ridicule, and insult . . . that is sufficiently severe or

pervasive enough to alter the conditions of the victim’s

employment and create an abusive working environment, Title VII

is violated.” Harris v. Forklift Sys., Inc.,

(1993) (internal quotation marks and citation omitted). “To

establish a prima facie case of hostile work environment,

plaintiff must demonstrate that: (1) she is a member of a

protected class; (2) she was subject to unwelcome harassment; (3)

the harassment occurred because of her . . . disability; (4) the

harassment affected a term, condition or privilege of employment; -17-

and (5) the employer knew or should have known of the harassment,

but failed to take any action to prevent it.” Kilby-Robb v.

Spellings,

(D.D.C. 2007); see Elam v.

Bd. of Tr. of the Univ. of the District of Columbia,

(D.D.C. 2007) (noting that “[t]he elements of a

DCHRA hostile work environment claim mirror the federal

requirements”).

Here, Kimmel alleges that Gallaudet subjected her to

harassment, including “defamatory comments and ostracization”

because she was not deaf/Deaf enough, and it negatively affected

the conditions of her employment. (Compl. ¶¶ 18, 47.) Kimmel

has stated a hostile work environment claim with respect to

harassment that occurred because of her disability.

IV. TORTIOUS INTERFERENCE (COUNT VI)

Count VI of the complaint asserts a claim for tortious

interference with prospective business relations. “To establish

a claim for tortious interference with economic advantage under

District of Columbia law, the evidence must show: (1) the

existence of a valid business relationship or expectancy, (2)

knowledge of the relationship or expectancy on the part of the

[defendant], (3) intentional interference inducing or causing a

breach or termination of the relationship or expectancy, and (4)

resultant damage.” Bennett Enters., Inc. v. Domino’s Pizza,

Inc.,

, 499 (D.C. Cir 1995). “The first element –- -18-

business expectancy –- must be commercially reasonable to

anticipate.” Browning v. Clinton,

(D.C. Cir.

2002) (internal quotation marks omitted). Gallaudet contends

that Kimmel has failed to state a tortious interference claim

because Kimmel has not specifically identified a third party with

whom she had an expectancy of a business relationship and has not

sufficiently asserted that Gallaudet intended to interfere with

any expectancy.

In her complaint, Kimmel alleges that Gallaudet tortiously

interfered with her “valid business expectancy that she would be

able to teach, and possibly also serve as an administrator, in

higher education until her retirement.” (Compl. ¶ 53.) She

further contends that “agents and employees of Gallaudet

intentionally interfered with this business expectancy by

spreading false and defamatory lies” about her to the Washington

Post and the NCAA, and that “[a]t least three potential sources

of prospective employment have disappeared” as a result of

Gallaudet’s actions.7 (Id. ¶¶ 53, 54.) Although Kimmel has not

7 In her opposition to Gallaudet’s motion, Kimmel also suggests that she bases her tortious interference claim on her valid “business expectancy of lifetime employment” at Gallaudet. (Pl.’s Opp’n at 12.) Under D.C. law, to state a claim for tortious interference, “a plaintiff must allege ‘business expectancies, not grounded on present contractual relationships, but which are commercially reasonable to anticipate.’” Dem. State Comm. of D.C. v. Bebchick,

(D.C. 1998) (quoting Carr v. Brown,

(D.C. 1978)); see McManus v. MCI Communications Corp.,

(D.C. 2000) (concluding that “it is axiomatic that an employer cannot -19-

specifically named each alleged potential source of prospective

employment or expressly asserted that Gallaudet had knowledge of

these expectancies, reasonable inferences can be drawn from

Kimmel’s factual assertions that Gallaudet acted intentionally,

and notice pleading does not require the complaint to specify the

entities with whom she had an expectancy. See Browning,

. Accordingly, Gallaudet’s motion to dismiss Kimmel’s

tortious interference claim will be denied.

CONCLUSION AND ORDER

Because Kimmel has abandoned her claims for intentional

infliction of emotion distress and breach of contract,

Gallaudet’s motion to dismiss these claims will be granted. With

reasonable inferences drawn in her favor, Kimmel has pled facts

sufficient to state claims against Gallaudet for retaliation

under Title VI; retaliation, disability discrimination, and

hostile work environment under the DCHRA; and tortious

interference with prospective business relations. Thus,

Gallaudet’s motion to dismiss will be denied as to these claims.

Accordingly, it is hereby

ORDERED that Gallaudet’s motion [2] to dismiss the complaint

be, and hereby is, GRANTED IN PART and DENIED IN PART. Kimmel’s

interfere with its own contract”). Thus, to the extent that Kimmel bases her tortious interfere claim on an alleged expectancy of continued employment at Gallaudet, she has not stated a claim entitling her to relief. -20-

intentional infliction of emotional distress and breach of

contract claims in Counts V and VII of the complaint are

DISMISSED. The motion is DENIED in all other respects.

SIGNED this 4th day of August, 2009.

________/s/_________________ RICHARD W. ROBERTS United States District Judge