UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) STEFANIE BURRELL, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-1837 (EGS) ) ALICA SHEPARD, DANIEL CIPULLO, ) and the DISTRICT OF COLUMBIA, ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff 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”),

. She further

claims that her constitutional right to equal protection under

the law was violated pursuant to

(“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.

I. Background

Ms. 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.

. She alleges that, during her

tenure at the court, she “suffered from an ongoing pattern of

discrimination toward African-American employees.”

.

The first incident Ms. Burrell points to in support of her

allegations occurred on July 25, 2005.

. On that date, a

court security officer allegedly “made a sexual derogatory

remark” that made Ms. Burrell “feel extremely uncomfortable.”

. Ms. Burrell reported the incident to the officer’s

supervisor and others, but “no action” regarding her complaint

was taken.

.

The second incident Ms. Burrell points to occurred more

than ten years later, on March 23, 2016.

. 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.”

2

. 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.”

. Ms. Shepard then posted the video on

multiple social media platforms where other Superior Court

employees could see it.

. Upon seeing the video, one

of Ms. Burrell’s coworkers “took the video and reported it to

the Clerk of the Court.”

. 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.”

.

On 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.

.

Ms. Burrell also requested to be transferred or reassigned to

another division.

. 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.”

. 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.”

. Ms. Burrell alleges that Mr.

3 Cipullo has “been aware of, and perpetuated, discriminatory acts

that create a hostile work environment” during his tenure at the

Superior Court.

. 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.”

. 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.

.

Ms. 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.

.

Ms. Burrell claims that access to a Branch Chief is critical

because it “allows employees the benefit of recognition, allows

4 their ideas and suggestions to be heard, and strengthens their

professional network within the workplace.”

.

On April 18, 2016, Ms. Shepard sent an e-mail about the

video incident to all of the employees in the Criminal Division.

. 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.”

. A few days later, Mr. Cipullo held a

meeting with the Criminal Division employees to discuss the

incident.

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.

. Mr. Cipullo

purportedly “voiced his agreement with th[at] sentiment.”

. 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.

. In addition, other employees “published derogatory

comments about Burrell on Facebook” regarding her decision to

file a complaint against Ms. Shepard.

. 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.”

. Ms. Burrell

5 alleges that her experience made her “fearful of speaking out

about any further incidents.”

.

On May 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.

. 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.

. 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.

.

In May 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.”

. The Human Resources Director denied her request.

. In July 2016, Ms. Burrell was involved in a car accident

and requested medical leave from Mr. Cipullo.

.

She claims that, initially, she was only given “intermittent

leave,” which “detrimentally impacted her recovery.”

¶¶ 123-

124. It was not until September 2016 that she was approved for

twelve weeks of medical leave under the Family Medical Leave

Act.

. While on medical leave, Ms. Burrell learned that

Ms. Shepard would be returning to her position as Branch Chief

6 of the Criminal Division in October 2016.

. On November

22, 2016, Ms. Burrell submitted her resignation letter.

. She claims that she was “forced to resign due to the

ongoing hostile work environment.”

.

Based 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.

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). A

7 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,

(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,

(2009).

When 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.,

(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.,

(D.C. Cir. 1994).

III. Analysis

Ms. 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,

(D.C. Cir. 1999) (explaining that, “[i]n

8 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”).

A. Exhaustion of Administrative Remedies for Title VII and DCHRA Claims

Defendants 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. 1 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.

1 In support of their arguments, defendants point to (1) an unsigned EEOC Charge of Discrimination dated March 6, 2017; (2) a signed Amended EEOC Charge of Discrimination dated May 23, 2017; and (3) a Notice of Charge of Discrimination sent to the Superior Court dated June 16, 2017. See Defs.’ Mem. Exs. 1-3, ECF Nos. 12-3, 12-4, 12-5. Although defendants urge the Court to consider only the signed charge from May 23, 2017 in its timeliness analysis, defendants concede that “[i]t is possible that Plaintiff signed some earlier original charge that the EEOC forwarded to her on March 6, 2017.” Defs.’ Mem., ECF No. 12-1 at 13. Accordingly, for purposes of this motion to dismiss, the Court will assume that the initial EEOC charge was signed on March 6, 2017. 9 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.

Before 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.,

(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,

(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.,

(D.C. Cir. 1995). Specifically, a

plaintiff's claims “must arise from the administrative

investigation that can reasonably be expected to follow the

charge of discrimination.”

Because “[a] hostile work environment claim is composed of

a series of separate acts that collectively constitute ‘one

unlawful employment practice,’” the timeliness analysis for

those claims is different than claims involving discrete acts.

10 Morgan,

. For a hostile work environment claim to

be timely, “the employee need only file a charge within . . .

300 days of any act that is part of the hostile work

environment.” Singletary v. Dist. of Columbia,

(D.C. Cir. 2003) (emphasis in the original); see also Morgan,

(“A charge alleging a hostile work environment

claim . . . will not be time barred so long as all acts which

constitute the claim are part of the same unlawful employment

practice and at least one act falls within the time period.”).

Likewise, because this Circuit describes retaliatory hostile

work environment claims “in terms of the discrimination

standard,” a retaliation claim based on allegations of a hostile

work environment is timely “as long as just one of the alleged

acts compromising the hostile work environment” fall within the

statutory time period and the acts are part of the same unlawful

employment practice.” Bergbauer v. Mabus,

(D.D.C. 2013).

Here, defendants’ arguments are premised on the assumption

that Mr. Burrell’s claims are based on a number of separate,

discrete acts of discrimination. See Defs.’ Mem., ECF No. 12-1

at 13-14. A fair reading of Ms. Burrell’s amended complaint,

however, makes clear that she is alleging that she was subjected

to repeated acts of discriminatory intimidation and insult

purportedly as a result of filing a complaint about her

11 supervisor. See, e.g., Am. Compl., ECF No. 10 ¶ 143 (“During the

period that Burrell has been employed at the Superior Court, the

workplace has been permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe and pervasive

enough to alter the conditions of her employment, and has

created an abusive working environment.”); id. ¶ 147 (providing

examples of conduct “that created a hostile work environment”);

id.¶ 159 (relying primarily on the allegations set forth in

Count I for Count II). Moreover, Ms. Burrell clarified in her

opposition brief that she “brings her race discrimination claims

under a theory of a hostile work environment.” Pl.’s Opp’n, ECF

No. 13-1 at 11. She further states that she has pled her

retaliation claims “based upon both discrete adverse actions and

a hostile work environment.” Id.

Thus, assuming arguendo that defendants are correct that

Ms. Burrell’s claims are timely only if the allegedly

discriminatory conduct took place after May 11, 2016, the Court

finds that Ms. Burrell has plainly alleged acts that took place

after that date as part of her discrimination and retaliation

claims based on a hostile work environment. Those acts include,

for example, defendants’ refusal to transfer or reassign Ms.

Burrell to a different division so that she would not have to

“interact with Shepard and others who were discriminating

against her or might retaliate against her” for lodging the

12 complaint. Am. Compl., ECF No. 10 ¶¶ 50, 90. They also include

Ms. Burrell’s allegations that, after she made her complaint

about Ms. Shepard, Ms. Shepard would “admonish, mock and

belittle her” anytime she asked for any “assistance or

clarification” regarding her work duties. Id. ¶¶ 92-95, 115. Ms.

Burrell also alleges that the Superior Court denied her request

for leave due to work-related stress and delayed in granting her

request for medical leave after she was injured in a car

accident. Id. ¶¶ 98-102, 121-125. Taking these allegations

together and construing the amended complaint in a light

favorable to Ms. Burrell, the Court finds that Ms. Burrell has

plausibly alleged that she was subjected to a hostile work

environment, which may also have been a form of retaliation for

her decision to file a harassment complaint. Because Ms. Burrell

is able to “adequately link” the alleged retaliatory attacks

that occurred after May 11, 2016 to other acts occurring before

May 11, 2016, those acts are not time barred. See Baird v.

Gotbaum,

(D.C. Cir. 2011).

Defendants also argue that Ms. Burrell’s DCHRA claims are

untimely for the same reasons. Defs.’ Mem. , ECF No. 12-1 at 13.

As defendants acknowledge, the statute of limitations for

plaintiff’s DCHRA claims was tolled by the filing of her EEOC

charge. See Defs.’ Mem., ECF No. 12-1 at 13 (citing

(a)). Here, assuming Ms. Burrell first filed her EEOC

13 charge on March 6, 2017, she may pursue any DCHRA claims that

accrued on or after March 6, 2016. As explained above, Ms.

Burrell has sufficiently alleged facts in support of a hostile

work environment claim and retaliation claim within that time.

For all these reasons, the Court declines to dismiss Ms.

Burrell’s hostile work environment and retaliation claims on

timeliness grounds at this juncture.

B. Hostile Work Environment Claim

Defendants next argue that, even if Ms. Burrell’s

allegations are timely, “they fail because Plaintiff has not

sufficiently alleged that she was subject to a hostile work

environment, or any other adverse action, because of her race or

her sex.” Defs.’ Mem., ECF No. 12-1 at 14.

For starters, defendants’ argument that Counts I and II

should be dismissed because Ms. Burrell has not alleged an

“adverse personnel action” fail. The requirement that a

plaintiff must allege “a significant change in employment

status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision

causing a significant change in benefits,” see Defs.’ Mem., ECF

No. 12-1 at 14 (quoting Ndzerre v. Wash. Metrop. Area Transit.

Auth., No. 15-1229,

, at *4 (D.D.C. August 16,

2017)), only applies to claims of discrimination, not hostile

work environment claims.

14 To state a claim under Title VII or the DCHRA based on a

hostile work environment, a plaintiff must allege facts

establishing that her “workplace is permeated with

discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the

[plaintiff’s] employment and create an abusive working

environment.” Harris v. Forklift Sys., Inc.,

(1993) (citations and internal quotation marks omitted). In

evaluating a hostile work environment claim, the “court looks to

the totality of the circumstances, including the frequency of

the discriminatory conduct, its severity, its offensiveness, and

whether it interferes with an employee's work performance.”

Baloch v. Kempthorne,

(D.C. Cir. 2008). This

standard is a demanding one, as Title VII is not intended to

function as a “general civility code” that regulates the

“ordinary tribulations of the workplace, such as the sporadic

use of abusive language, gender-related jokes, and occasional

teasing.” Faragher v. City of Boca Raton,

(1998). Nonetheless, depending on the circumstances, a single

incident may be sufficient to establish a hostile work

environment. See Ayissi-Etoh v. Fannie Mae,

(D.C. Cir. 2013) (employer’s alleged use of “a deeply offensive

racial epithet when yelling at [the plaintiff] to get out of his

office” may have been enough to state a claim based on a hostile

15 work environment). Moreover, conduct that is “severe or

pervasive” is sufficient to state a hostile work environment

claim. Faragher,

(emphasis added, internal

quotation marks omitted).

In support of her hostile work environment claim, Ms.

Burrell points to the video in which Ms. Shepard allegedly

stated that she “hate[s] ignorant black folk.” Am. Compl., ECF

No. 10 ¶¶ 37, 147(b). She also points to the following examples

of “acts and omissions that created a hostile work environment”:

(1) Ms. Shepard’s mistreatment of her when she sought

clarification or assistance in performing her work duties; (2)

Mr. Cipullo permitting other employees to admonish her for

reporting the video incident; (3) Mr. Cipullo permitting other

employees to discourage individuals from reporting incidents

like the video; (4) Mr. Cipullo’s “vocal agreement” with the

statements of other employees discouraging reporting incidents

like that of the video; (5) isolating her for speaking out about

the video; (6) social media posts by other employees harassing

her for speaking out about the video; (7) Mr. Cipullo’s decision

to replace Ms. Shepard with another supervisor who also had a

known history of racial harassment and discrimination; (8)

allowing Ms. Shepard to return to her position as Branch Chief;

(9) Human Resources’ and Mr. Cipullo’s denial of her transfer

requests; (10) Human Resources denying her request for leave due

16 to work-related stress; (11) Mr. Cipullo’s decision affording

her only intermittent leave when she was injured in a car

accident; (12) an alleged instance of sexual harassment in 2005;

and (13) Mr. Cipullo’s and Human Resources’ refusal to

investigate other instances of racial harassment, bullying, and

discrimination. Id. ¶¶ 147(a)-(n).

Construing these allegations in the light most favorable to

Ms. Burrell, the Court concludes that her hostile work

environment claims survive defendants’ motion to dismiss.

Although defendants make a number of arguments as to why

particular incidents or allegations are insufficient to create a

hostile work environment, the Court “is obliged to consider the

whole picture, not just particular pixels, in assessing whether

a host of incidents amount to a pervasive pattern of hostility

and ridicule.” Gilliard v. Gruenberg,

(D.D.C. 2018) (citation and internal quotation marks omitted).

Although Ms. Burrell does not point to any conduct that is

particularly severe, the Court is persuaded that she has alleged

sufficient facts to plausibly support her claim that the

purportedly discriminatory conduct was sufficiently pervasive.

See, e.g., Holmes-Martin v. Leavitt,

(D.D.C. 2008) (plaintiff’s allegations that supervisor’s

“hostility [toward her] manifested itself through isolation,

subjection to public ridicule and harmful treatment” were

17 sufficient to survive a motion to dismiss); Ali v. Dist. of

Columbia,

(D.D.C. 2010) (denying motion

to dismiss the plaintiff's hostile work environment claim even

though “it [was] unlikely that [the plaintiff's] claims of

discrimination will ultimately prove meritorious”).

Defendants also argue that, “even if the alleged conduct of

Plaintiff’s coworkers were sufficiently severe to constitute

harassment . . . defendants would not be liable unless Plaintiff

could show that they were negligent in controlling working

conditions.” Defs.’ Reply, ECF No. 14 at 4; see also Ayissi-Etoh

v. Fannie Mae,

(D.C. Cir. 2013) (“To establish

liability when a plaintiff is harassed by his or her co-workers,

the plaintiff must prove that the employer was at least

negligent in not preventing or correcting the

harassment.”)(emphasis in original). Here, however, plaintiff’s

claim rests, at least in part, on allegations that she was

harassed by her supervisors. In such circumstances, “the

employer is vicariously liable for a supervisor’s actions,

except when no tangible adverse employment action has been taken

and the employer proves an affirmative defense.” Ayissi-Etoh,

. Here, Ms. Burrell has sufficiently alleged

that she was harassed by supervisors and that her employer

failed to take sufficient remedial action in response to her

complaints. See, e.g., Am. Compl. ¶¶ 44, 81, 91, 127.

18 Accordingly, the Court declines to dismiss Ms. Burrell’s hostile

work environment claims at this stage of the proceedings.

C. Retaliation Claim

Defendants next argue that Ms. Burrell’s retaliation claims

fail because she has not alleged any “materially adverse action”

taken by the District or Mr. Cipullo. Defs.’ Mem., ECF No. 12-1

at 20. According to defendants, “[a]lthough unpleasant and

potentially embarrassing to Plaintiff, criticisms from coworkers

on email and social media are not materially adverse actions.”

Id. at 21. Defendants also insist that the denial of Ms.

Burrell’s transfer request and the denial of her request for

medical leave are not materially adverse actions. Id. at 22.

To state a claim for retaliation under Title VII and the

DCHRA, a plaintiff must allege that she suffered a “materially

adverse action” because she “brought or threatened to bring a

discrimination claim.” See Baloch v. Kempthorne,

(D.C. Cir. 2008). A retaliatory act is “materially adverse”

if “a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Burlington Northern & Santa Fe

Railway Co. v. White,

(2006). For example,

depending on the context, “[a] schedule change in an employee’s

work schedule” or exclusion of an employee “from a weekly

19 training lunch” could deter a reasonable employee from

complaining and therefore might be actionable.

.

Here, Ms. Burrell alleges a number of retaliatory actions

taken after she complained about Ms. Shepard’s video. For

example, she claims that her coworkers refused to speak to her,

“making it very difficult for her to perform her assigned

tasks.” Am. Compl., ECF No. 10 ¶ 56. Some coworkers purportedly

made derogatory comments about Ms. Burrell on social media,

while another sent an email to Superior Court employees

questioning “the heart and motive” of any person who would

report Ms. Shepard. Id. ¶¶ 76-79, 82. Ms. Burrell contends that

these incidents made her “fearful of speaking out about any

further incidents of racial harassment, bullying and

discrimination.” Id. ¶ 100. She further claims that Human

Resources and Mr. Cipullo refused to take any corrective or

disciplinary actions against those harassing Ms. Burrell. Id. ¶¶

84, 86-87.

Ms. Burrell further claims that Ms. Shepard, who continued

to be her supervisor, refused to speak with her, thereby denying

her “access to a Branch Chief.” Id. ¶ 57. According to Ms.

Burrell, the ability to speak to her supervisor one-on-one 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 work place.”

20 Id. ¶ 58. In addition, Ms. Burrell claims that, whenever she

asked for assistance with or clarification of her workplace

duties, Ms. Shepard would “admonish, mock and belittle her.” Id.

¶ 115. Despite this behavior, Mr. Cipullo refused to grant Ms.

Burrell’s request to be transferred or reassigned to another

division in Superior Court. Id. ¶ 97.

Finally, Ms. Burrell claims that Human Resources denied her

request for leave based on work-related stress. Id. ¶ 102. She

further claims that Mr. Cipullo denied her request for full

medical leave after she suffered injuries in a car accident. Id.

¶¶ 122-23. She contends that denial of her request for full

medical leave “detrimentally impacted her recovery” from her

injuries. Id. ¶ 124.

Here, construing the allegations in the light most

favorable to Ms. Burrell, the Court cannot conclude that she has

not alleged any adverse action as a matter of law. As other

courts in this Circuit have explained, under certain

circumstances, a denial of leave can constitute materially

adverse action. See, e.g., Nurriddin v. Bolden,

(D.D.C. 2009) (declining to dismiss retaliation claim

where denial of leave had a financial impact on plaintiff);

Hussain v. Principi,

(D.D.C. 2004)

(“denial of medical leave might each be an adverse action in

some circumstances”).

21 Moreover, as Ms. Burrell notes, a hostile work environment

can give rise to a retaliation claim under Title VII. See

Hussain v. Nicholson,

(D.C. Cir. 2006). To

prevail on such a claim, a plaintiff must show that her employer

subjected her to “discriminatory intimidation, ridicule, and

insult” of such sever[ity] or pervasive[ness] [as] to alter the

conditions of [her] employment and create an abusive working

environment.”

(citation and internal quotation marks

omitted). 2 Here, for the same reasons that her hostile work

environment claim survives, the Court finds that Ms. Burrell’s

claim for retaliation based on hostile work environment also

survives. Therefore, the Court declines to dismiss Ms. Burrell’s

retaliation claims. 3

2 It is unclear whether the same standard applies to both discriminatory and retaliatory hostile work environment claims. See Bergbauer v. Mabus,

(D.D.C. 2013) (explaining that courts in our circuit “do not appear to have reconsidered the retaliatory harassment standard in light of Burlington Northern,” finding that “[a] good argument” could be made that courts should do so, but applying the older, more stringent standard set forth in Hussain v. Nicholson,

(D.C. Cir. 2006)). Because the Court concludes that Ms. Burrell’s claim survives under the standard set forth in Hussain, it would necessarily survive under the less stringent standard articulated in Burlington Northern. 3 To the extent Ms. Burrell alleges a claim for constructive discharge, see Pl.’s Opp’n, ECF No. 13-1 at 21, the Court finds that she has not stated a claim. After all, a claim for constructive discharge requires “something more” than a hostile work environment claim alone. Penn. State Police v. Suders,

(2004); see also Bishopp v. Dist. of Columbia,

(D.C Cir. 1986) (“A finding of constructive discharge requires a finding of intentional discrimination plus 22 D. Section 1983 Claims

To state a claim under section 1983, a plaintiff must

establish that she was deprived of “a right secured by the

Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.” Am. Mfrs.

Mut. Ins. Co. v. Sullivan,

, 49–50 (1999). Ms.

Burrell alleges that she was denied her right to be free from

racial discrimination under the Equal Protection Clause of the

Fifth Amendment. See Am. Compl., ECF No. 10 ¶¶ 187-212. A

plaintiff may allege an equal protection violation if “he or she

received differential treatment by the government due to

membership in a protected class, such as one based on race,

national origin, or gender.” Kelley v. Dist. of Columbia,

(D.D.C. 2012).

To state a claim for intentional discrimination under the

Equal Protection Clause, a plaintiff “must plead and prove that

the defendant acted with discriminatory purpose.” Ashcroft v.

Iqbal,

(2009). “[P]urposeful discrimination

requires more than ‘intent as volition or intent as awareness of

a finding of aggravating factors that suggest that the complainant was driven to quit.”) (emphasis added). “The kinds of situations where courts have upheld constructive-discharge findings tend to involve extreme mistreatment or thinly veiled (or even overt) threats of termination.” Kalinoski v. Gutierrez,

(D.D.C. 2006). The allegations here do not point to any “aggravating factors” and do not rise to the level of “extreme mistreatment.” 23 consequences.’ It instead involves a decision maker’s

undertaking a course of action “‘because of,’ not merely ‘in

spite of,’ [the action's] adverse effects upon an identifiable

group.” Id. at 676-77 (citation and internal quotation marks

omitted).

Defendants argue that Ms. Burrell’s constitutional claims

against Ms. Shepard and Mr. Cipullo fail because she has not

sufficiently alleged that they engaged in “purposeful

discrimination” and, in any event, they are entitled to

qualified immunity. Defendants also argue that Ms. Burrell’s

claims against the District of Columbia fail because she has not

alleged sufficient facts to state a claim for municipal

liability under section 1983. Defs.’ Mem., ECF No. 12-1 at 23-

27. The Court evaluates each argument in turn.

1. Ms. Burrell’s Section 1983 Claims Against the Individual Defendants

To state a claim under section 1983, a plaintiff must

allege the violation of a right secured by the Constitution and

must show that the alleged deprivation was committed by a person

acting under color of state law. See West v. Atkins,

(1988).

Ms. Burrell argues that she has sufficiently pled her

section 1983 claims against Mr. Cipullo and Ms. Shepard because

she alleges that they both intentionally discriminated against

24 her on the basis of her race. Pl.’s Opp’n, ECF No. 13-1 at 25-

27. Defendants argue that Ms. Burrell’s claims must be dismissed

because she “has not alleged any constitutional violation”

committed by either defendant. Defs.’ Mem., ECF No. 12 at 24-25.

For the reasons set forth below, the Court finds that, although

plaintiff’s section 1983 claim against Mr. Cipullo must be

dismissed, her claim against Ms. Shepard survives.

With respect to Mr. Cipullo, the Court finds that

plaintiff’s allegations are insufficient to set forth a claim

based on an equal protection violation. Plaintiff makes a series

of allegations relating to Mr. Cipullo’s history of acting with

racial animus toward employees that he supervised. See, e.g.,

Am. Compl., ECF No. 10 ¶ 104 (claiming that “numerous Superior

Court Criminal Division employees filed internal grievances and

EEOC Charges of Discrimination against Cipullo, which alleged

racial discrimination and a hostile work environment”); id. ¶ 107

(alleging that “Cipullo prevented an African-American female

employee from being able to leave her office while he

aggressively yelled at her”); id. ¶ 108 (“Cipullo has 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 at

the conferences”); id. ¶ 109 (“Cipullo has assigned African-

American female employees offices that are under construction,

25 while giving similarly-situated non-African- American employees

offices that were not under construction”). She does not,

however, allege that Mr. Cipullo took any action with respect to

her that was animated by racial bias. See, e.g., Rodriguez v.

Dist. of Columbia,

(D.D.C. 2015)

(dismissing the plaintiff’s section 1983 equal protection claim

because she did not allege any facts suggesting that “the

individual defendants took action against her because of, not

merely in spite of, her membership in a protected class”).

In her opposition, Ms. Burrell points to Mr. Cipullo’s

decision to deny her request for a transfer, his failure to take

action against Ms. Shepard for the substantiated complaint

related to the video incident, his expression of agreement with

another employee who stated that it was wrong that Ms. Burrell

had reported Ms. Shepard, and his failure to take actions

against Ms. Burrell’s coworkers for their purportedly harassing

behavior. Pl.’s Opp’n, ECF No. 13-1 at 26. As an initial matter,

the complaint states that Mr. Cipullo did take some action in

response to the video incident: he called a meeting to discuss

the incident and he transferred Ms. Shepard to a different

position for a period of time. See Am. Compl., ECF No. 10 ¶¶ 64-

65. In her amended complaint, plaintiff does not allege that any

of the other actions taken by Mr. Cipullo were “because of” her

race. See, e.g., Rodriguez,

(“There are

26 no factual allegations in the second amended complaint that

connect plaintiff's race, national origin, or disability to the

adverse employment decisions of which she complains.”).

With respect to Ms. Shepard, however, the Court finds that

plaintiff has sufficiently alleged that Ms. Shepard treated her

differently from similarly-situated employees with a

discriminatory intent or purpose. In particular, Ms. Burrell

alleges that Ms. Shepard used racially derogatory language —

i.e., “I hate ignorant black folk, they get on my nerve” —

toward her in the course of filming the video on her cell phone.

Am. Compl., ECF NO. 10 ¶¶ 29-38. In addition, Ms. Burrell

alleges that, subsequent to the video incident, Ms. Shepard

refused to speak with her, ignored and isolated her, and would

“admonish, mock, and belittle her.” Id. ¶¶ 57, 60, 115. The use

of racially-charged language, coupled with Ms. Shepard’s alleged

persistent harassment of Ms. Burrell, is sufficient to state a

claim for a violation of the Equal Protection Clause. Cf. Watson

v. Div. of Child Support Servs.,

(11th

Cir. 2014) (offensive or derogatory statements may violate equal

protection guarantees if they “are so pervasive as to amount to

racial harassment or are accompanied by some other conduct that

deprives a person of the equal protection of the laws”).

Defendants argue that, even if Ms. Burrell does state an

equal protection claim, that claim would still fail because Ms.

27 Shepard is entitled to qualified immunity. Defs.’ Mem., ECF No.

12-1 at 25-26. The Supreme Court has held that “government

officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald,

(1982). Courts

approach qualified immunity claims through a two-step analysis:

(1) whether the alleged facts show that the individual's conduct

violated a statutory or constitutional right; and (2) whether

that right was clearly established at the time of the incident.

Saucier v. Katz,

, 200 (2001). When determining

whether a right was “clearly established,” “[t]he contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson v. Creighton,

(1987).

As set forth above, the Court concludes that Ms. Burrell

has articulated a violation of her Fifth Amendment rights.

Additionally, there can be no question that freedom from racial

discrimination is “clearly established” under the Constitution.

See Caldwell v. Caesar,

(“Defendant

Caesar does not claim he would be entitled to immunity if he is

found to have discriminated against Plaintiff because of his

race. Any such claim would be frivolous.”). Accordingly, the

28 Court declines to dismiss plaintiff’s section 1983 claim against

Ms. Shepard on qualified-immunity grounds at this stage of the

proceedings.

2. Plaintiff’s Section 1983 Claims Against the District of Columbia

Finally, defendants argue that Ms. Burrell’s section 1983

claim against the District of Columbia must be dismissed for

failure to state a claim. Defs.’ Mem., ECF No. 12 at 26-27.

A municipality “can be found liable under section 1983 only

where the municipality itself causes the constitutional

violation at issue.” City of Canton, Ohio v. Harris,

(1989) (emphasis in the original). The District, as a

municipality, see D.C. Code § 1–102, is subject to liability

under section 1983 only “when an official policy or custom

causes the [plaintiff] to suffer a deprivation of [a]

constitutional right,” Carter v. Dist. of Columbia,

(D.C. Cir. 1986).

A plaintiff may rely on four basic categories of municipal

action in alleging that the municipality causes the

constitutional violation: (1) express municipal policy; (2)

adoption by municipal policymakers; (3) custom or usage; and (4)

deliberate indifference.” Hunter v. Dist. of Columbia,

(D.D.C. 2011). In addition, the municipal

action must be the moving force behind the alleged

29 constitutional violation. Carter,

(citing

Monell, 436 U.S. at 694); see also Pembaur v. City of

Cincinnati,

(1986) (“[M]unicipal liability

under § 1983 attaches where—and only where—a deliberate choice

to follow a course of action is made from among various

alternatives by the official or officials responsible for

establishing final policy with respect to the subject”). In

cases like this one that do not involve express policies, a

plaintiff must still allege a course of action deliberately

pursued by the city, “as opposed to an action taken unilaterally

by a nonpolicymaking municipal employee.” City of Oklahoma v.

Tuttle,

(1985) (Brennan, J., concurring). The

plaintiff must also allege “an affirmative link between the

[city's] policy and the particular constitutional violation

alleged.”

at 823 & n.8. Moreover, a city is not required “to

take reasonable care to discover and prevent constitutional

violations” but rather, must simply “not adopt a policy of

inaction” when “faced with actual or constructive knowledge that

its agents will probably violate constitutional rights.” Warren

v. Dist. of Columbia,

(D.C. Cir. 2004).

Here, Ms. Burrell claims that the District has a “custom

and policy” of racially discriminating against African-American

Superior Court employees. Pl.’s Opp’n, ECF No. 13-1 at 28-29;

Am. Compl., ECF No. 10 ¶ 202. She further alleges that the

30 District acted with “deliberate indifference” in not training

its Human Resources department and supervisors in the Criminal

Division “on investigating and responding to allegations of

racial harassment and discrimination.” Pl.’s Opp’n, ECF No. 13-1

at 28-29; see also Am. Compl., ECF No. 10 ¶¶ 204, 206. Despite

these allegations, the Court finds that Ms. Burrell has not

sufficiently pled that the District had a “policy of inaction”

or acted with “conscious disregard for the consequences of their

action” to trigger municipal liability. Connick, 563 U.S. at 61-

62. To the contrary, Ms. Burrell acknowledges in her amended

complaint that a number of actions were taken in response to her

complaint about the video posted by Ms. Shepard. For example, on

April 18, 2016, Ms. Shepard sent an e-mail about the incident to

all Superior Court Criminal Division employees in which she

stated that she took “full responsibility for [her] actions” and

asked those who were offended to “forgive” her. Pl.’s Opp’n Ex.

1D, ECF No. 13-4 at 32. In that same email, Ms. Shepard also

explained that she had “learned the hard way that there is a

court policy that exists stating that we are prohibited from

taking video and audio recording . . . without prior

authorization” and that violation of the policy “can result in

corrective action.” Id. Two days later, Mr. Cipullo held a

meeting with all of the employees in the Criminal Division to

discuss the incident. Am. Compl., ECF No. 10 ¶ 64. At that

31 meeting, Mr. Cipullo explained that another employee would

“replace Shepard” as Branch Chief. Id. ¶ 65; see also id. ¶ 91

(“the only remedial action that has been taken by Cipullo in

connection with the substantiated bullying finding against

Shepard was her temporary reassignment”). In addition, Ms.

Burrell states that, on May 10, 2016, a representative from the

Human Resources Division informed her that her bullying

complaint against Ms. Shepard had been “substantiated” and that

actions would be take in accordance with court policy. Id. ¶¶

88-89.

Given these allegations, the Court finds that plaintiff has

not pled that the District adopted a “policy of inaction” when

faced with knowledge that its agents may be violating

constitutional rights. Accordingly, the Court will DISMISS Count

VI of the amended complaint against the District for failure to

state a claim. 4

4 The Court also finds that plaintiff has not sufficiently alleged a “pattern” of constitutional violations required to state a section 1983 claim against a municipality. Although Ms. Burrell alleges that the District’s failure to train employees “on investigating and remedying racial harassment” led to “racial harassment and discrimination permeating the workplace,” Pl.’s Opp’n, ECF No. 13-1 at 29, her factual allegations in this regard primarily focus on her own experience after reporting the video filmed by Ms. Shepard, see, e.g., Am. Compl., ECF No. 10 ¶ 206 (pointing to her supervisor’s “vocal agreement” that the video should not have been reported and the failure of supervisors to take action to protect plaintiff after she reported the video or to address plaintiff’s coworkers who made derogatory remarks). This falls short of pleading a 32 IV. CONCLUSION

For the reasons set forth in this Memorandum Opinion, the

defendants’ motion to dismiss Ms. Burrell’s amended complaint is

GRANTED IN PART AND DENIED IN PART. A separate Order accompanies

this Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge July 27, 2018

“pattern of similar constitutional violations” needed to state a claim under either a “custom or policy” or “deliberate indifference” theory. See., e.g., Patrick v. Dist. of Columbia,

(D.D.C. 2016)(a plaintiff “sufficiently pleads a § 1983 [custom or policy] claim when his complaint refers to specific incidents that plausibly show a custom or pattern of behavior”; Connick, 563 U.S. at 62 (a pattern of violations “by untrained employees” is “ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train”)(citation and internal quotation marks omitted). 33