Allen-Brown v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SASHAY ALLEN-BROWN,

Plaintiff,

v. Civil Action No. 13-1341 (RDM)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION AND ORDER

Sashay Allen-Brown is a police officer with the District of Columbia’s Metropolitan

Police Department. Allen-Brown was lactating when she returned from maternity leave in 2011

and, accordingly, needed to express breast milk during work hours. Upon her return, she sought

a temporary assignment that would not require her to go on beat patrol because an officer on

patrol duty must wear a bullet-proof vest that can interfere with lactation by causing pain and

clogged milk ducts. Allen-Brown also complained to her supervisors that the designated location

for expressing milk at the police station was unclean. She alleges that the District of Columbia

discriminated and retaliated against her in violation of the Pregnancy Discrimination Act and

Title VII of the Civil Rights Act of 1964, as well as the D.C. Human Rights Act, when it placed

her on patrol duty and denied her request for a limited-duty accommodation shortly after she

complained about the lactation facility. She also alleges that the District violated the D.C.

Human Rights Act’s requirement that employers take affirmative steps to accommodate lactating

women.

The case is presently before the Court on the parties’ cross-motions for summary

judgment. The District of Columbia moves for summary judgment as to the discrimination and
retaliation claims. Dkt. 26. Allen-Brown cross-moves for summary judgment as to her D.C.-law

accommodation claim. Dkt. 28. For the reasons explained below, the Court DENIES both

motions.

I. BACKGROUND

Sashay Allen-Brown began working for the D.C. Metropolitan Police Department

(“MPD”) as a patrol officer in December 2006. Compl. ¶¶ 6–7. On March 7, 2011, she gave

birth to a son. Dkt. 27-9 at 3 (Pl.’s Dep. 27). When Allen-Brown returned to duty after her

maternity leave, she was still breastfeeding and thus needed to express milk at work two or three

times a day. Dkt. 27-1 at 2; Dkt. 27-3 at 2–3 (Pl.’s Statement of Facts ¶¶ 6, 12); Dkt. 27-8 at 3

(Pl.’s Dep. 19). It is undisputed that Allen-Brown was initially placed on limited-duty status

upon her return to work. Dkt. 27-1 at 2. According to the District of Columbia, this was in

accordance with its policy that a new mother is automatically granted limited duty for six weeks

following her resumption of work. Dkt. 26-1 at 3; Dkt. 26-2 at 1–2 (Def.’s Statement of

Undisputed Facts ¶¶ 3, 14); Dkt. 26-4 at 1 (policy statement).

When Allen-Brown first returned to work, she resumed a prior detail to the ID & Records

Office. Dkt. 27-9 at 3 (Pl.’s Dep. 27); Dkt. 27-8 at 3 (Pl.’s Dep. 19); Dkt. 28-4 at 3. At that

assignment, Allen-Brown was able to use a lactation room to express milk without any issues.

Dkt. 27-1 at 2. After a short period of time, however, Allen-Brown requested that she be

returned to “full duty status” in the Second District. Dkt. 28-12 at 3–4 (Pl.’s Dep. 20–21). She

hoped to be assigned to the night shift; her husband worked during the day, and she wanted to

avoid the need for outside help with childcare by working nights. Id.; Dkt. 27-13 (Pl.’s Dep. 24);

Dkt. 28-12 at 9 (Pl.’s Dep. 43).

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 Allen-Brown’s request to return to the Second District was granted, and she was sent to

the Police Academy for one to two weeks of “in-service training” and gun-range practice in

preparation for her return to full-duty status. Dkt. 27-1 at 2; Dkt. 28-12 at 3–4 (Pl.’s Dep. 20–

21). At the Academy, Allen-Brown used a designated lactation room to express milk once or

twice per day. Dkt. 28-12 at 5–6 (Pl.’s Dep. 22–23). The designated room was a conference

room with a clear window in each of the two doors to the room. Id. One window had paper

attached to it in an effort to cover it up, while the other window was in a door to a sergeant’s

office. Id. The sergeant’s door had a coat rack in front of it in an attempt to block the window;

no paper was used. Id. at 6 (Pl.’s Dep. 23). Allen-Brown was uncomfortable with the set-up

because one could still see through both of the windows. Id. She mentioned the situation to the

sergeant, who responded that “she would make sure no one would come in while [Allen-Brown]

was lactating.” Id.

Allen-Brown reported for duty in the Second District on May 2, 2011. Dkt. 27-10 at 4

(Pl.’s Dep. 25). She was assigned to the “midnight” shift, as she had hoped; she reported for roll

call around 9:50 p.m. and got off work around 6 or 7 a.m. Id. For the next several weeks, every

evening at roll call Allen-Brown was assigned to “station duty.” Dkt. 27-20 at 3 (Pl.’s Dep. 32).

Station duty is also known as “inside duty” and does not require the officer to wear a bullet-proof

vest. Dkt. 1-8 at 9 (MPD General Order 110.11); Dkt. 27-1 at 2; Dkt. 27-13 at 3 (Pl.’s Dep. 24).

By contrast, under the District’s uniform policy, absent a medical waiver, officers with a patrol-

duty assignment outside of the station must wear a bullet-proof vest, which the MPD General

Order on Uniforms and Equipment refers to as “soft-body armor.” Dkt. 1-8 at 9 (MPD General

Order 110.11).

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 At the time she returned to the Second District, Allen-Brown was still breastfeeding her

infant, then about two months old, and thus continued to need to express milk at work. Dkt. 27-1

at 2. At the Second District, the designated lactation room was a lounge area inside the women’s

restroom; a sign that said “lactating” was simply placed on the women’s restroom door. Dkt. 28-

12 at 7 (Pl.’s Dep. 29). Allen-Brown was concerned about the location and cleanliness of the

lounge because “everyone used it. Officers went there to take rest breaks or take naps . . . during

their break[s] . . . . [P]eople do [their] hair there, . . . it was an all-purpose room basically.” Id.

at 7–8 (Pl.’s Dep. 29–30). 1 Allen-Brown made several oral complaints about the facilities to

“various officials,” including Lieutenant Alesia Wheeler-Moore. Id.; see also Dkt. 27-19 at 5

(Pl.’s Dep. 68). When nothing was done in response, she decided to put her complaint in

writing. Dkt. 28-12 at 8 (Pl.’s Dep. 30). On June 9, 2011, Allen-Brown emailed Lieutenant

Wheeler-Moore and asked whom to contact about the cleanliness of the lactation room. Dkt. 1-7

at 2. She stated that “[t]he floor needs to be swept and mopped” and that “[o]n several

occasion[s][,] . . . there was hair all over the table and floor.” Id. She did not receive a response

until June 22, 2011. Id.; Dkt. 27-18 at 4 (Pl.’s Dep. 68).

Meanwhile, on June 12, 2011, Allen-Brown wrote to the Commander of the Second

District through her chain of command (an unidentified lieutenant and a captain) and requested

to be “detailed to the station.” Dkt. 1-9 at 2. Although it is unclear from the record what

precipitated this request, it appears that Allen-Brown sought to clarify that she would be assigned

to inside duty at the station until her son, then fourteen weeks old, was one year old. She

1 As one court has explained, “[u]se of a breast pump requires a private location because all
such pumps require a woman to expose her breasts in order to position the equipment properly
during the pumping process. It is not recommended that a restroom be used for expressing milk
due to the risk of infection.” Currier v. Nat’l Bd. of Med. Examiners, 965 N.E.2d 829, 836
(Mass. 2012).
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explained that she was “breast[]feeding and lactating” and that she was “unable to wear [her]

vest” because it was “extremely painful and could clog [her] ducts and slow down the production

of [her] milk supply.” Id. She further explained that she planned to breastfeed her son until he

was one year old. Id. Allen-Brown’s decision to breastfeed for the first year of her son’s life

was consistent with the District’s “Lactating Accommodation Policy,” promulgated in January

2011, which stated, among other things, that “[i]t is the policy of the MPD to provide reasonable

break time during work hours for a member to express breast milk for her nursing child for one

(1) year after the child’s birth.” Dkt. 28-7 at 2. The Commander for the Second District denied

Allen-Brown’s request for an accommodation. Dkt. 1-9 at 2. Although the record does not

reflect when the Commander made this decision, the Captain for the Second District apparently

forwarded Allen-Brown’s request to the Commander on June 15, 2011. Id. In any event, Allen-

Brown continued to be assigned to station duty on an ad hoc basis until June 23. Dkt. 27-20 at 3

(Pl.’s Dep. 32).

On June 22, 2011, Wheeler-Moore forwarded Allen-Brown’s email about the cleanliness

of the designated lactation area to Sergeant Wanda Fisher, and Fisher responded to Allen-Brown

that same morning. Dkt. 1-7 at 2. Fisher stated that Allen-Brown needed to comply with the

“process” for using the lactation room, including “advis[ing] [her] of the dates and time[s] that

[Allen-Brown] ha[d] previously used the lactating room” and “sign[ing] in and out on the

Lactation Request Form and Book” in the future. Id. According to Fisher, this would “provide[]

[Allen-Brown] the opportunity to have privacy while utilizing this room and give [Fisher] an

idea of how many times it is being used and how often it should be cleaned.” Id. She also stated

that “[t]he cleanliness of the room will be taken care of immediately” and that Allen-Brown

should “also feel free to let [her] know about issues of cleanliness” as they arose. Id. According

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to Allen-Brown, however, nothing about the condition of the room changed after Fisher

responded to the email. Dkt. 27-19 at 5 (Pl.’s Dep. 68).

Through June 22, “every sergeant that conducted roll call [at the Second District] [had]

placed [Allen-Brown] in the station because [she] was lactating.” Dkt. 27-20 at 3 (Pl.’s Dep.

32). But when Allen-Brown reported for roll call for the June 22–23 night shift—her first shift

following Fisher’s reply to her email—the sergeant on duty, Sergeant Phillips, assigned her to

patrol duty. Id. Allen-Brown responded that she worked inside the station and could not go

outside on patrol because she was lactating and could not wear her vest. Id. Sergeant Phillips

said “[o]kay” and ordered her to report to the Police and Fire Clinic. Id.

The next morning, on June 23, 2011, Allen-Brown reported to the clinic and was

examined by the doctor on duty, Dr. Rangamani Murthy. Id.; Dkt. 28-15 at 4; Dkt. 27-21 at 4

(Pl.’s Dep. 69). Dr. Murthy completed a “Limited Duty Certification Form” on which she stated

that Allen-Brown could work full-time but listed the following physical restrictions: “[l]ifting –

no greater than: 1–10 lbs;” “no outside patrol;” “chest, unable to wear the vest at all;” and

“officer cannot wear the protective vest.” Dkt. 28-15 at 2–3. During the clinic visit, Allen-

Brown received and signed a “Limited Duty Program Information Sheet.” Dkt. 28-12 at 10; Dkt.

27-21 at 5 (Pl.’s Dep. 70). That sheet listed her limited-duty assignment as “2D” and, among

other things, notified her of her obligation to report to her limited-duty assignment for work. Id.

The information sheet made no mention of any further procedures required to obtain approval for

a limited-duty status, id., although Allen-Brown was separately instructed to get a note from her

personal doctor, which she obtained on June 29 and provided to the Police and Fire Clinic at her

two-week follow-up appointment. Dkt. 27-23 at 3–4.

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 The day after Allen-Brown’s clinic visit, June 24, 2011, William B. Sarvis, Jr., the

Director of the Medical Services Branch of MPD, sent a memorandum to her acknowledging that

“[f]ollowing an examination by a Clinic Physician, a determination was made to change your

Medical Duty Status from ‘full duty’ to ‘limited duty’” because of “a condition not related to the

performance of your duties as a police officer.” Dkt. 1-11 at 2. Sarvis stated, however, that

“[n]otwithstanding your failure to complete the Request for Authorization to Participate in the

Limited Duty Program, I have reviewed your case and determined that you will not receive

authorization to participate in the limited duty work program.” Id. The memorandum provided

that “[e]ffective June 25, 2011,” Allen-Brown would “be placed in a chargeable sick status” until

such time as “the physicians at the Police & Fire Clinic determine that [she] may work in a full

duty capacity.” Id. Sarvis explained that if Allen-Brown lacked sufficient leave to cover her

absence, she would be placed on unpaid leave. Id. When Allen-Brown reported for duty that

night, Antonio Charland delivered the Sarvis memorandum to her. Id. Charland had been

copied on Fisher’s email to Allen-Brown about the conditions of the lactation room. Dkt. 1-7 at

2.

In a declaration submitted in this litigation, Sarvis explained that as Director of the

Medical Services Branch, he is “responsible for recommending to the Chief of Police” whether

an officer unable to perform the full range of police duties is capable of performing in a limited-

duty status. 2 Dkt. 26-5 at 1 (Sarvis Decl. ¶ 3). He stated that under District policy, he is

authorized to grant limited-duty status for 30 calendar days for a condition stemming from off-

the-job injuries—a condition described as Non Performance of Duty (“Non POD”) injury—“if

2 In her opposition to the District’s motion for summary judgment, Allen-Brown asserts that
Sarvis has no medical training, but she does not supply any supporting evidence for that
assertion. Dkt. 27-1 at 9.
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such a member requests [his] permission to join the Limited Duty Work Program by completing

a Non POD Limited Duty Request Form and provides the requisite supporting documentation

from a healthcare provider.” Id. at 2 (Sarvis Decl. ¶ 5) (emphasis added). Although under this

policy women are automatically granted limited duty if they gave birth in the previous six weeks,

Sarvis states that they “must follow the same procedure for requests for extensions of their

participation in the Non POD Limited Duty Program as other MPD members.” Id. (Sarvis Decl.

¶ 9). Under that procedure, “at least 10 days prior to” the expiration of an initial 30-day grant of

limited duty, “a MPD member may submit to [Sarvis] another Non POD Limited Duty Request

Form, including the requisite supporting documentation.” Id. (Sarvis Decl. ¶ 7). Sarvis would

then forward the request for an extension to the Chief of Police “or [her] designee” along with

his recommendation for a final determination. Id. (Sarvis Decl. ¶ 8).

Allen-Brown disputes whether officers were ever made aware of the policy on which

Sarvis’s declaration relies, Dkt. 27-3 at 2 (Pl.’s Statement of Facts ¶¶ 2–4), and, indeed, the

District concedes that “[i]t is uncertain when a member of the MPD would be given notice of this

purported separate application requirement for limited duty status.” Dkt. 29-1 at 2 (Def.’s

Statement of Disputed Facts ¶ 3). The policy outlined by Sarvis, moreover, differs from the

procedure for obtaining a limited-duty assignment set forth in an MPD General Order that

became effective on April 25, 2006. 3 See Dkt. 27-4. Under that General Order, limited-duty

3 The policy relied upon in Sarvis’s declaration is included in the record as an undated memo
from “Director[,] Medical Services Branch” to “MPD Member,” and requires that an officer
“who has sustained a NON POD injury or illness and wishes to participate in the limited duty
program must first request permission from the Director of the [Medical Services Branch] by
completing the accompanying forms with any/all supporting documentation from the member[’s]
private healthcare provider.” Dkt. 26-4 at 1. Sarvis’s declaration states that, as one of his duties,
he “provide[s] instructions on how to participate in the Non POD Limited Duty Work Program
to MPD members along with contact information for those who had any questions.” Dkt. 26-5 at
2 (Sarvis Decl. ¶ 4). At Sarvis’s deposition, he was asked how officers were informed of the
8
status is defined as a “[t]emporary status for members who are not able to perform the full range

of police duties because of injury/illness or other temporary medical disability, but are certified

by the Chief Physician as being capable of effectively performing certain types of work.” Id. at

4. According to this policy, an officer who sustains an off-duty injury or illness shall “[n]otify

an official of his/her organizational element, as soon as he/she is capable,” and shall “report to

the Clinic for a medical evaluation.” Id at 8. The policy further provides that:

If [an officer] is unable to perform the full range of police duties, the Clinic may
place the member in a limited duty status, regardless of whether the employee
requested the change. . . . The Chief Physician shall prepare a . . . Certification
for Limited Duty . . . . Limited duty status begins when the Chief Physician
certifies on the . . . [f]orm . . . that [an officer] is medically available for a limited
duty assignment.

Id. at 14 (emphases added). The General Order further provides that upon receipt of the Limited

Duty Certification, the officer is to notify the Watch Commander and report for duty. Id.

Relying on the General Order, Allen-Brown thus disputes Sarvis’s contention that she was

required to file a separate request for limited duty apart from obtaining a Certification for

Limited Duty from the clinic. 4 Dkt. 27-2 at 6 (Pl.’s Statement of Disputed Facts ¶ 19).

policy requiring a separate request for limited-duty status. He stated that he believed that the
policy was circulated in 2010, before he worked for the District, and that he “[couldn’t] answer”
why there was not an accompanying amendment to the General Orders reflecting the procedural
change. Dkt. 27-5 at 2 (Sarvis Dep. 35–37). He also stated that he believed that an officer
would be served with the policy at the time that the clinic notified the officer that he or she could
not work in a full-duty status, id. (Sarvis Dep. 37), and that this would been done by “the doctors
I’m pretty sure,” Dkt. 27-6 at 2 (Sarvis Dep. 44).

4 Allen-Brown also contends that the policy discussed in Sarvis’s declaration must be
disregarded because it was first produced in discovery on June 9, 2015 “long after discovery was
closed.” Dkt. 27-3 at 1 (Pl.’s Statement of Facts ¶ 1). But, in fact, the discovery deadline was
extended to June 9, 2015. May 26, 2015 Minute Order.
The parties do not address the applicability, if any, of the MPD’s separate policy providing
that “[f]emale police officers experiencing difficulty wearing the soft-body armor, due to
pregnancy, shall request a medical certificate, recommending placement on limited duty, from
9
 Although Sarvis’s June 24, 2011 memorandum provided that he was denying Allen-

Brown limited-duty authorization “notwithstanding [her] failure to complete the Request for

Authorization,” Dkt. 1-11 at 2, in his declaration, Sarvis states that he denied Allen-Brown

“authorization to participate in the Non POD limited duty program because she had never

applied for it,” Dkt. 26-5 at 3 (Sarvis Decl. ¶ 18). According to Sarvis, “[t]o [his] knowledge,

Officer Allen-Brown never made a request for an extension” and had “already worked in a

limited duty capacity for six weeks”—the period of automatic limited duty for a new mother

under the purportedly applicable policy. Id. (Sarvis Decl. ¶¶ 15–17).

Sarvis further declared that he “learned from the Police and Fire Clinic that Officer

Allen-Brown was unable to complete the full range of duties . . . [for] her position,” id. (Sarvis

Decl. ¶ 16), and that “[a]t the time [he] made [his] decision, [he] did not know that Officer Allen-

Brown had complained about the condition of the lactation room at the Second District,” id.

(Sarvis Decl. ¶ 19). In an earlier deposition, however, Sarvis stated that he “really [didn’t]

know” how the issue of Allen-Brown’s authorization for limited duty “made it to [his] desk”

after her visit to the clinic, and that he assumed that his lieutenant, who “tracked the information

on pregnant females,” brought it to his attention. Dkt. 27-6 at 2 (Sarvis Dep. 45). Finally,

Sarvis’s declaration stated that of 148 final determinations regarding extensions of Non POD

limited duty made during 2011, 137 extensions were denied (93%). Dkt. 26-5 at 3 (Sarvis Decl.

¶ 13). Of those, 77 were denied “on the basis that the MPD member did not make a request for

an extension.” Id. (Sarvis Decl. ¶¶ 13 –14).

their private doctor. The Director, Medical Services Division, shall place the member in a
limited duty status.” Dkt. 1-8 at 10 (emphasis added).
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 In accordance with Sarvis’s memorandum denying Allen-Brown limited-duty

authorization, Allen-Brown’s leave began on June 25, 2011. Dkt. 1-11 at 2. After her annual

leave ran out, she remained on unpaid leave for about eight months. Dkt. 27-22 at 4 (Pl.’s Dep.

36); Dkt. 28-12 at 9 (Pl.’s Dep. 43). Allen-Brown returned to work on full-duty status on April

17, 2012, after she finished breastfeeding. Dkt. 1-6 at 3. In the interim period, the Fraternal

Order of Police pursued a grievance on her behalf, which was denied. Dkt. 1-4; Compl. ¶ 23.

Allen-Brown also filed a charge with the Equal Employment Opportunity Commission

(“EEOC”), which issued a right-to-sue letter on June 10, 2013. Dkt. 1-5.

On September 5, 2013, Allen-Brown filed this action against the District and the MPD,

seeking damages, attorney’s fees and costs, and equitable relief for gender and pregnancy

discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Count

I), retaliation in violation of Title VII (Count II) and the First Amendment (Count III),

discrimination based on gender and family responsibilities in violation of D.C. Code § 2-1401.01

et seq. (Count IV), failure to provide accommodations for breastfeeding mothers and retaliation

in violation of D.C. Code § 2-1402.82 (Count V), and violations of 42 U.S.C. §§ 1981 and 1983

(Count VI). See Compl. ¶¶ 32–78. On July 7, 2014, Judge Amy Berman Jackson dismissed

MPD as a defendant and also dismissed Allen-Brown’s claims against the District under the First

Amendment and §§ 1981 and 1983. See Allen-Brown v. District of Columbia, 54 F. Supp. 3d 35,

37 (D.D.C. 2014).

On November 20, 2014, the case was randomly reassigned. Nov. 20, 2014 Minute Order.

On June 12, 2015, the only remaining defendant, the District, filed a motion for summary

judgment as to the discrimination and retaliation claims. Dkt. 26. On June 29, 2014, Allen-

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Brown filed a cross-motion for partial summary judgment as to the D.C.-law accommodation

claim. Dkt. 28.

II. ANALYSIS

Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact is

material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about

a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Liberty

Lobby, 477 U.S. at 248). “Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . . The

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his

favor.” Liberty Lobby, 477 U.S. at 255. Moreover, “summary judgment must be approached

with special caution in discrimination cases.” Stewart v. White, 61 F. Supp. 3d 118, 128 (D.D.C.

2014) (internal quotation marks omitted). That being said, the nonmoving party “is not relieved

of [the] obligation to support [his or her] allegations by affidavits or other competent evidence

showing that there is a genuine issue for trial.” Id. (internal quotation marks omitted) (first

alteration in original).

As a threshold matter, the Court rejects the District’s contention that the Court should

treat the District’s Statement of Undisputed Facts as conceded because Allen-Brown failed to

comply with the requirements of Local Rule 7(h). 5 See Dkt. 29 at 2–3. The District asserts that

5 As relevant here, Local Rule 7(h) requires that “[a]n opposition to such a motion shall be
accompanied by a separate concise statement of genuine issues setting forth all material facts as
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Allen-Brown violated this rule because in identifying her disagreements with the District’s

version of the facts, she submitted a Statement of Disputed Facts that incorporates by reference

parts of her simultaneously submitted Statement of Facts, instead of citing directly to the record

in the Statement of Disputed Facts. See Dkt. 27-2 (Pl.’s Statement of Disputed Facts); Dkt. 27-3

(Pl.’s Statement of Facts). Here, however, this deviation from the rule is relatively minor and

does not justify the harsh remedy that the District seeks. Both of Allen-Brown’s statements are

relatively short, the Statement of Disputed Facts cites to specific paragraphs of the Statement of

Facts, and the Statement of Facts in turn includes citations to the relevant portions of the record.

Contrary to the District’s assertion, Allen-Brown’s objections to the District’s Statement of

Undisputed Facts are readily ascertainable, even if the need to cross-reference the documents is

slightly cumbersome.

The Court, accordingly, denies the District’s request to treat its Statement of Material

Facts as conceded and turns to the merits of the parties’ cross-motions for summary judgment.

A. Discrimination Claims

In Count I, Allen-Brown alleges discrimination based on gender and pregnancy in

violation of Title VII, and in Count IV, she alleges discrimination based on gender and family

responsibilities in violation of the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01

et seq. Both counts are premised on Allen-Brown’s allegation that the MPD made

accommodations for other officers that “it was unwilling to make for [Allen-Brown], who had a

medical condition (lactation) related to pregnancy and childbirth.” Dkt. 27-1 at 5; Compl. ¶¶ 41,

61. The District moves for summary judgment as to both counts. Dkt. 26-1 at 6.

to which it is contended there exists a genuine issue necessary to be litigated, which shall include
references to the parts of the record relied on to support the statement.” D.D.C. Civ. R. 7(h)(1).
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 Under Title VII of the Civil Rights Act of 1964, a covered employer may not

“discriminate against any individual with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). 6 In

1978, Congress enacted the Pregnancy Discrimination Act (“PDA”) in response to the Supreme

Court’s holding in General Electric Co. v. Gilbert, 429 U.S. 125, 145–46 (1976), that an

employer’s exclusion of pregnancy-related disabilities from a benefit plan did not constitute

discrimination on the basis of sex. See Pub. L. No. 95-555, 92 Stat. 2076 (1978). 7

The PDA added two clauses to Title VII: The first specifies that “[t]he terms ‘because of

sex’ or ‘on the basis of sex’ [in Title VII] include, but are not limited to, because of or on the

basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k)(2). The

second provides that “women affected by pregnancy, childbirth, or related medical conditions

shall be treated the same for all employment-related purposes, including receipt of benefits under

fringe benefit programs, as other persons not so affected but similar in their ability or inability to

6 “Title VII places the same restrictions on . . . District of Columbia agencies as it does on
private employers.” George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005) (internal quotation
marks omitted).

7 In 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards
Act (“FLSA”) to require covered employers to provide:

(A) a reasonable break time for an employee to express breast milk for her
nursing child for 1 year after the child’s birth each time such employee has need
to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from
intrusion from coworkers and the public, which may be used by an employee to
express breast milk.

Pub. L. No. 111-148, § 4207, 124 Stat. 119, 577 (2010) (codified at 29 U.S.C. § 207(r)).
Allen-Brown has not alleged a FLSA claim.

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work.” Id. The DCHRA contains parallel language, see D.C. Code § 2-1401.05, and courts

apply the same standards to it as to Title VII and PDA claims, see, e.g., Wilkerson v. Wackenhut

Protective Servs., Inc., 813 F. Supp. 2d 61, 65–66 (D.D.C. 2011). The Court, accordingly, treats

the two discrimination claims together in the remainder of this section, as the parties did in their

briefs. See Dkt. 26-1 at 6; Dkt 27-1 at 5.

The Supreme Court recently clarified the standard for disparate-treatment claims under

the PDA in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015). In that case, the

plaintiff claimed that the United Parcel Service (“UPS”) violated Title VII and the PDA “in

refusing to accommodate her pregnancy-related lifting restriction.” Id. at 1344. The evidence

showed that “UPS had a light-duty-for-injury policy with respect to numerous other persons, but

not with respect to pregnant workers,” id. at 1347, and that it “accommodated several individuals

when they suffered disabilities that created work restrictions similar to [the plaintiff’s],” but not

all injured workers, id. Unsurprisingly, the plaintiff and UPS drew dramatically different

conclusions from this evidence. The plaintiff read the second clause of the PDA literally, so that

all that she needed to show was that UPS accommodated “one or two workers” who were

similarly situated in their ability or inability to work, regardless of their specific circumstances.

Id. at 1349. UPS, in contrast, argued that the second clause merely clarified the first clause

defining sex discrimination to include pregnancy discrimination and that a PDA plaintiff

asserting discrimination in accommodations would need to show that her employer had

discriminated against pregnant women “within a facially neutral category (such as those with off-

the-job injuries).” Id. (emphasis in original).

The Supreme Court declined to adopt either position. It concluded that the plaintiff’s

interpretation “prove[d] too much,” essentially adopting a “most-favored-nation” standard for

15
pregnancy accommodations. Id. Thus, under the plaintiff’s reading of the statute, if an employer

chose to accommodate a small group of employees engaged in “particularly hazardous jobs, or

those whose workplace presence is particularly needed, or those who have worked for the

company for many years,” it would also need to accommodate pregnant employees with the

same “ability or inability to work.” Id. at 1349–50. But the Court also concluded that UPS’s

construction of the statute was untenable, since it treated the second clause of the PDA as

surplusage and failed to give effect to Congress’s intent to “overturn Gilbert in full.” Id. at 1353.

As the Court explained, “‘the first clause of the [PDA] reflects Congress’s disapproval of the

reasoning in Gilbert,’” while “the second clause . . . ‘was intended to overrule the holding in

Gilbert and to illustrate how discrimination against pregnancy is to be remedied.’” Id. at 1353

(quoting California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 284–85 (1987)).

Having rejected both positions, the Court adopted a middle ground. It held that in a case

alleging a discriminatory failure to accommodate under the PDA, the initial steps of the

McDonnell Douglas framework apply as usual. Thus, in the absence of direct evidence of

discrimination, a plaintiff may make out a prima facie case of discrimination by showing that

“she belongs to the protected class, that she sought accommodation, that the employer did not

accommodate her, and that the employer did accommodate others ‘similar in the ability or

inability to work.’” Id. at 1354. The burden then shifts to the employer to come forward with a

“‘legitimate, nondiscriminatory’ reason[] for denying her accommodation.” Id. (quoting

McDonnell Douglas Corp. v. Green, 422 U.S. 792, 802 (1973)). Under the PDA, that

justification, however, “cannot consist simply of a claim that it is more expensive or less

convenient to add pregnant woman to the category of those . . . whom the employer

accommodates.” Id. If the employer proffers such a legitimate, non-discriminatory reason, the

16
burden then shifts back to the plaintiff to show that the employer’s asserted justification was, in

fact, pretextual. Id.

It is at this point in the analysis that the second clause of the PDA is given effect. In the

normal course of a Title VII case, and under the approach advocated by Justice Alito in his

separate opinion, see id. at 1356 (Alito, J., concurring in the judgment), a plaintiff can raise a

genuine issue of material fact about whether the asserted rationale was pretextual by, for

example, showing that the employer’s justification was not plausible, that it was contradicted by

other evidence, or that the employer offered shifting rationales, see, e.g., Geleta v. Gray, 645 F.3d

408, 413–15 (D.C. Cir. 2011); George, 407 F.3d at 413–15. To this, the Young majority added the

possibility that a PDA plaintiff “may reach a jury on [the issue of pretext] by providing sufficient

evidence that the employer’s policies impose a significant burden on pregnant workers, and that

the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the

burden.” Young, 135 S. Ct. at 1354. One way that a plaintiff might make this showing is by

producing “evidence that the employer accommodates a large percentage of nonpregnant

workers while failing to accommodate a large percentage of pregnant workers.” Id.

Applying this framework, the Court need not be detained with the initial question

whether Allen-Brown has established a prima facie case of discrimination. The District has

conceded, at least for present purposes, that the denial of a limited-duty accommodation qualifies

as an adverse employment action. Dkt. 26-1 at 6; see also Young, 135 S. Ct. at 1354. It focuses

instead on whether that adverse action was taken on the basis of Allen-Brown’s gender or the

fact that she was lactating. According to the District, it did not. It contends that Sarvis declined

to accommodate Allen-Brown because “she . . . never applied for” limited-duty status. Dkt. 26-5

at 3 (Sarvis Decl. ¶ 18). In support of this argument, the District points to statistics indicating

17
that the MPD declined to extend limited-duty status 93% of the time, and, in more than half of

those cases, it did so for the same reason that it claims it declined to grant limited-duty status to

Allen-Brown—because the officer did not request an extension. Id. (Sarvis Decl. ¶¶ 13–14).

Thus, although the District does not use this terminology, its defense is that it had a legitimate,

non-discriminatory reason for its action. See Brady v. Office of Sergeant at Arms, 520 F.3d 490,

493 (D.C. Cir. 2008) (“[B]y the time the district court considers an employer’s motion for

summary judgment . . . , the employer ordinarily will have asserted a legitimate, non-

discriminatory reason for the challenged decision—for example, through a declaration . . . from

the employer’s decisionmaker.” (emphasis added)).

In considering a summary judgment motion where the defendant has offered a legitimate,

non-discriminatory reason for the adverse employment action, a court must “skip ahead to the

third step” in the McDonnell Douglas framework. Wheeler v. Georgetown Univ. Hosp., 812

F.3d 1109, 1114 (D.C. Cir. 2016). As a result, “the question whether the employee actually

made out a prima facie case is no longer relevant and thus disappears and drops out of the

picture.” Brady, 520 F.3d at 493 (quotation marks and alterations omitted). “[T]he district court

need not—and should not—decide whether the plaintiff actually made out a prima facie case

under McDonnell Douglas.” Id. at 494 (emphasis in original). Rather, the controlling question

becomes whether the plaintiff has “produced sufficient evidence for a reasonable jury to find that

the employer’s asserted non-discriminatory reason was not the actual reason and that the

employer intentionally discriminated against [her] on a prohibited basis.” Adeyemi v. District of

Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). This approach does not pretermit

consideration of evidence relevant to the plaintiff’s prima facie case, but rather requires

consideration of “all the evidence,” including evidence about similarly situated comparators, the

18
veracity of the employer’s proffered justification, and pretext. Jones v. Bernanke, 557 F.3d 670,

677 (D.C. Cir. 2009) (quoting Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir.

2004)) (emphasis added).

As a result, the only relevant inquiry is whether Allen-Brown has produced sufficient

evidence for a reasonable jury to find that the MPD, in fact, discriminated against her based on

her gender or her pregnancy-related condition. But, unlike in the typical Title VII case, she can

carry that burden in one of two ways. She can produce “traditional” evidence that the reason

given by the MPD was a pretext for discrimination—that is, evidence that the MPD is “making

up or lying about the underlying facts,” Brady, 520 F.3d at 495, that its proffered reasons “have

changed over time,” Geleta, 645 F.3d at 413, or the like. Or, following Young, she could

produce “evidence that [the MPD’s] policies impose a significant burden on pregnant workers,

and that [its] ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the

burden, but rather—when considered along with the burden . . . —give rise to an inference of

intentional discrimination.” Young, 135 S. Ct. at 1354. As explained below, the Court concludes

that Allen-Brown has produced “traditional” evidence sufficient to raise disputed questions of

material fact as to whether the MPD’s proffered reason for denying her request for limited-duty

status was pretextual.

First, Sarvis’s June 12, 2015 declaration asserts that he denied Allen-Brown limited-duty

status because she failed to submit a Non POD Limited Duty Request Form to him. Dkt. 26-5 at

2–3 (Sarvis Decl. ¶¶ 5–9, 18). But, his memorandum to Allen-Brown denying her authorization

stated that “[n]otwithstanding your failure to complete the Request for Authorization to

Participate in the Limited Duty Program, I have reviewed your case and determined that you

will not receive authorization to participate in the limited duty work program.” Dkt. 1-11 at 2

19
(emphasis added). “Notwithstanding” means “in spite of” or “despite.” Notwithstanding,

Webster’s Third New International Dictionary, Unabridged (2016). Thus, the contemporaneous

evidence of Sarvis’s decision to deny Allen-Brown limited-duty status arguably contradicts his

subsequent statement—in a litigation document—that he denied her limited-duty status because

of her failure to complete the required paperwork. 8 It is possible, of course, that Sarvis did not

mean that he was disregarding Allen-Brown’s failure to complete the request form, and instead

meant to convey just the opposite—albeit inartfully. In light of the record, however, the Court

concludes that Sarvis’s intent and credibility present questions of fact for the jury.

Second, it is disputed whether the policy requiring officers to submit this additional

paperwork (a) superseded a seemingly contradictory General Order, compare Dkt. 27-4 at 14

(General Order) with Dkt. 26-4 at 1 (policy requiring further paperwork), and (b) was ever

promulgated to Allen-Brown or other officers. The District itself concedes that “[i]t is uncertain

when a member of the MPD would be given notice of this purported separate application

requirement for limited duty status.” Dkt. 29-1 at 2 (Def.’s Statement of Disputed Facts ¶ 3).

Whether a valid policy existed and was made known to Allen-Brown is material to the question

whether failure to comply with the policy was the District’s true reason for denying her limited-

duty status. Although the ultimate question is not whether the policy in fact existed or was

known to Allen-Brown, but rather “whether the [MPD] honestly and reasonably believed that

the” policy existed and was the reason for its denial of limited-duty status, see Brady, 520 F.3d at

496 (emphasis in original), the disputed questions of fact surrounding whether Allen-Brown was

required to submit additional paperwork to receive a limited-duty assignment are material to the

8 Moreover, as discussed below, it is not even clear that the District is correct that Sarvis was
the relevant decision maker.
20
latter issue. Cf. Young, 135 S. Ct. at 1356 (“[W]hen an employer claims to have made a decision

for a reason that does not seem to make sense, a factfinder may infer that the employer’s asserted

reason for its action is a pretext for unlawful discrimination.” (Alito, J., concurring in the

judgment) (emphasis omitted)).

Third, the evidence does not indisputably resolve the question who made the decision that

Allen-Brown should be denied limited-duty status, and, if it was not Sarvis, that fact might raise

sufficient doubt about the District’s stated reason for denying the request to support an inference

of improper motive. Moreover, if Sarvis was not the decision maker, that would leave the

question of the motivation of the actual decision maker unresolved. Although neither party

addresses the matter, it appears that on June 12, 2011, Allen-Brown wrote a memorandum to the

Commander of the Second District regarding her need to be assigned to duties inside the station

because she was lactating. Dkt. 1-9 at 2. Next to the Commander’s name on the memo,

someone—presumably, the Commander—wrote “denied.” Id. The Commander’s signature on

the memo is not dated, but the memo at least raises the question whether it was the Commander,

rather than Sarvis, who made the decision not to accommodate Allen-Brown. That hypothesis,

moreover, is further supported by Sarvis’s own statement that, under District policy, he was to

make a recommendation as to limited-duty status and the final determination would be made by

“the Chief of Police or [her] designee.” Dkt. 26-5 at 2 (Sarvis Decl. ¶ 8). Again, for present

purposes the Court need not—and should not—determine who made the decision. What matters

is that a reasonable jury might question the District’s account of what happened and why.

Much of the District’s argument relies on testimony from Sarvis that Allen-Brown was

treated like others in similar circumstances, thus bolstering the District’s contention that the

reason Sarvis gave is not pretextual. See Dkt. 26-1 at 6. According to the declaration Sarvis

21
submitted in support of the District’s motion, the MPD made 148 determinations “regarding

extensions for [non-performance of duty or “Non-POD”] limited duty.” Dkt. 26-5 at 3 (Sarvis

Decl. ¶¶ 13–14). Of these, the Department denied extensions of limited-duty status on 137

occasions—or 93% of the time. Id. (Sarvis Decl. ¶ 13). And the Department denied 77 of those

requests “on the basis that the MPD member did not make a request for an extension.” Id.

(Sarvis Decl. ¶ 14). Thus, according to Sarvis, Allen-Brown received the same treatment that the

overwhelming majority of other officers received, and she received that treatment for the same

reason that many others did—she failed to make “a request for an extension for Non POD

limited duty.” Id. (Sarvis Decl. ¶ 15).

Although the District’s argument appears to channel Young, as an initial matter, it is far

from clear that the District has identified the correct comparators in making such a claim. In

Young, for example, UPS’s approach—like the approach that the District seems to propose

here—would have compared “the accommodations an employer provides to pregnant women

with the accommodations it provides to others within a facially neutral category (such as those

with off-the-job injuries) to determine whether the employer has violated Title VII.” Young, 135

S. Ct. at 1349 (emphasis omitted). But the Supreme Court rejected that approach, explaining that

it would render the second clause added by the PDA irrelevant. Id. at 1352. In any event, Allen-

Brown certainly does not need to establish that the MPD accommodated similarly disabled men,

as the District suggests. See Dkt. 26-1 at 6 (“Plaintiff was not treated differently than similarly

situated male employees.”). That was precisely the line drawn in Gilbert, which Congress

displaced by adopting the PDA. See Young, 135 S. Ct. at 1353 (“In Gilbert, . . . the Court held

that the plan . . . did not discriminate on the basis of sex because there was no risk from which

22
men are protected and women are not. . . . The second clause [added to Title VII by the PDA] . . .

was intended to overrule the holding in Gilbert . . . .” (internal quotations and citations omitted)).

Moreover, to the extent that the District relies on that the fact that the vast majority of

MPD officers were denied extensions of their limited-duty status, see Dkt. 26-1 at 6, that fact,

standing alone, does little to bolster its asserted non-discriminatory rationale for denying Allen-

Brown’s extension. Although Young held that a “plaintiff can create a genuine issue of material

fact as to whether a significant burden exists by providing evidence that the employer

accommodated a large percentage of nonpregnant workers while failing to accommodate a large

percentage of pregnant workers,” 135 S. Ct. at 1354 (emphases added), it misreads Young to

assert that a plaintiff is required to show such disparities in order to survive summary judgment

in a pregnancy discrimination suit. Such evidence may be necessary, or at least helpful, where

the plaintiff seeks to show that “the employer’s policies impose a significant burden on pregnant

workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently

strong to justify the burden,” id., but here, Allen-Brown does not make such an argument or rely

on statistical disparities to support her claim of pretext.

Instead, Allen-Brown relies on “traditional” evidence to establish a genuine question of

material fact about the District’s proffered reason for denying her requested accommodation—

that is, whether the reason offered by the MPD is the real reason for the denial or simply a

pretext for discriminatory intent. In support of this argument, she points to the District’s own

evidence to show that eleven other MPD officers who sustained injuries or disabilities off the job

were, in fact, accommodated, while she was not, Dkt. 27-6 at 2 (Sarvis Decl. ¶¶ 13–14), and to

the evidence discussed above (supra pp. 19–21) to show that the non-discriminatory reason that

the District has proffered for its preferential treatment of these eleven officers is pretextual, see

23
Dkt. 27-1 at 7. Drawing “all justifiable inferences” in her favor, Steele, 535 F.3d at 255, the

Court concludes that “a reasonable jury [could] . . . find that the employer’s asserted non-

discriminatory reason was not the actual reason and that the employer intentionally discriminated

against [her] on a prohibited basis,” Adeyemi, 525 F.3d at 1226.

Resisting this conclusion, the District argued for the first time in its reply brief that

breastfeeding and lactation are not covered by the PDA and Title VII. Dkt. 29 at 3–4. As an

initial matter, the Court notes that the District’s failure to raise this issue until its reply brief

would, standing alone, provide a sufficient basis for the Court to reject the argument. See, e.g.,

Jones v. Mukasey, 565 F. Supp. 2d 68, 81 (D.D.C. 2008). But, even giving the District the

benefit of the doubt, the Court concludes that the argument fails on the merits.

In response to the Supreme Court’s Gilbert decision, 429 U.S. 125, the PDA amended

Title VII to define the phrases “because of sex” and “on the basis of sex” to include actions taken

“because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C.

§ 2000e(k)(2). The question, therefore, is whether “lactation” is a “medical condition[]”

“related” to “childbirth.” Id. As explained below, the Court concludes that it is.

Although the D.C. Circuit has yet to address this question, the Court finds the Fifth

Circuit’s analysis in EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013),

persuasive. As that court explained, although the PDA does not define “medical condition,”

medical dictionaries “broadly construe [this] term[]” to “include[] any physiological condition.”

Id. at 428–29 & n.4 (citing Joseph Segen, McGraw-Hill Concise Dictionary of Modern Medicine

405 (2006); The American Heritage Medical Dictionary (2007); Miller-Keane Encyclopedia &

Dictionary of Medicine, Nursing, and Allied Health (7th ed. 2003); Mosby’s Medical Dictionary

(8th ed. 2009)). Lactation, in turn, “is the physiological process of secreting milk from

24
mammary glands and is directly caused by hormonal changes associated with pregnancy and

childbirth. . . . It is undisputed . . . that lactation is a physiological result of being pregnant and

bearing a child.” Id. at 428; see also id. at 428 n. 4 (“Lactation is indisputably a condition

related to pregnancy.”). Thus, as a matter of plain language, the PDA applies to lactation.

Judges in other jurisdictions have similarly concluded that discrimination based on

lactation constitutes sex discrimination under the PDA, both prior to and in the wake of Houston

Funding II and Young. 9 For example, in Hicks v. City of Tuscaloosa, No. 13-2063, 2015 WL

6123209 (N.D. Ala. Oct. 19, 2015), the court considered a claim remarkably similar to that of

Allen-Brown. The plaintiff, a police officer, asserted that she was discriminated against when

she returned from maternity leave while still lactating. Id. at *19. She alleged that she was

denied a desk assignment and was instead assigned to patrol duty, id. at *20–21, during which

she would not be able to take regular breaks to express milk and would be required to wear a

bullet-proof vest that “would interfere with milk production or cause infection,” id. at *30. The

court denied the defendant’s motion for summary judgment on this claim, “agree[ing] [with the

Fifth Circuit] that lactating is a medical condition related to pregnancy and childbirth, and that

9 See, e.g., Gonzales v. Marriott Int’l, Inc., No. 15-3301, 2015 WL 6821303, at *11 (C.D. Cal.
Nov. 4, 2015) (holding plaintiff’s claim regarding denial of lactation accommodation survived
motion to dismiss pursuant to Young); Frederick v. New Hampshire, No. 14-403, 2015 WL
5772573, at *6 (D.N.H. Sept. 30, 2015) (stating that lactating mothers can, in certain
circumstances, make out a disparate treatment claim under the PDA); EEOC v. Vamco Sheet
Metals, Inc., No. 13-6088, 2014 WL 2619812, at *6 (S.D.N.Y. June 5, 2014) (granting motion to
intervene because intervenor “may be able to state a claim for disparate treatment under Title VII
based on discrimination in connection with her attempts to continue breastfeeding her infant”
under Houston Funding II); Falk v. City of Glendale, No. 12-925, 2012 WL 2390556, at *4 (D.
Colo. June 25, 2012) (positing that “if other coworkers were allowed to take breaks to use the
restroom while lactating mothers were banned from pumping, discrimination might exist” under
the PDA); Currier, 965 N.E.2d at 840 (construing Massachusetts Equal Rights Act and public
accommodation discrimination statutes to cover lactation because it “is inextricably linked to
pregnancy and thus sex linked”).
25
[under the PDA] a lactating employee may not be treated differently in the workplace from other

employees with similar abilities to work.” Id. at *19.

The EEOC has also adopted the position that lactation is protected by the PDA in its

enforcement guidance. See EEOC Guidance No. 915.003, Pregnancy and Related Issues (June

25, 2015), 2015 WL 4162723. As it explains, “[l]actation, the postpartum production of milk, is

a physiological process triggered by hormones.” Id. at *8. “To continue producing an adequate

milk supply and to avoid painful complications associated with delays in expressing milk, a

nursing mother will typically need to breastfeed or express breast milk using a pump” several

times during the workday. Id. (internal footnote omitted). Under the PDA and Title VII,

An employee must have the same freedom to address such lactation-related needs
that she and her co-workers would have to address other similarly limiting
medical conditions. For example, if an employer allows employees to change
their schedules or use sick leave for routine doctor appointments and to address
non-incapacitating medical conditions, then it must allow female employees to
change their schedules or use sick leave for lactation-related needs under similar
circumstances.

Finally, because only women lactate, a practice that singles out lactation
or breastfeeding for less favorable treatment affects only women and therefore is
facially sex-based. For example, it would violate Title VII for an employer to
freely permit employees to use break time for personal reasons except to express
breast milk.

Id. (internal footnotes omitted). The EEOC’s interpretation of the statute supplies “a body of

experience and informed judgment to which courts and litigants may properly resort for

guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

The contrary authority cited in the District’s reply brief, moreover, is inapposite or

unconvincing. See Dkt. 29 at 3–4. The Sixth Circuit’s decision in Derungs v. Wal-Mart Stores,

Inc., is inapposite, as it concerned the “specific provisions and legislative history of the Ohio

Public Accommodation statute.” 374 F.3d 428, 430 (6th Cir. 2003). And the Fourth Circuit’s

26
statement in Barrash v. Bowen that “[u]nder the [PDA] . . . , pregnancy and related conditions

must be treated as illnesses only when incapacitating,” 846 F.2d 927, 931 (4th Cir. 1988) (per

curiam), was subsequently disavowed by the same court as “dicta without any citation of

authority,” Notter v. Northern Hand Protection, 89 F.3d 829, at *5 (4th Cir. 1996) (per curiam)

(table). As the later Fourth Circuit decision correctly explained, “[t]he text of the [PDA]

contains no requirement that ‘related medical conditions’ be ‘incapacitating.’” Id.

Other cases cited by the District reason that “breastfeeding” is not covered under the

PDA because the statute “only provides protection based on the condition of the mother—not the

condition of the child.” Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492 (D. Colo. 1997);

see also McNill v. N.Y. City Dep’t of Correction, 950 F. Supp. 564, 571 (S.D.N.Y. 1996) (same);

Wallace v. Pyro Mining Co., 789 F. Supp. 867, 870 (W.D. Ky. 1990) (“Neither Title VII[] nor

the [PDA] intended to make it illegal for an employer to deny personal leave to a female worker

who requests it to accommodate child-care concerns.”), aff’d, 951 F.2d 351 (6th Cir. 1991) (per

curiam) (table); see also Notter, 89 F.3d at *5. These decisions are unpersuasive because

lactation is undeniably a “condition of the mother.” Indeed, this condition, left to itself, “can be

quite disabling[.] [W]hen a woman is unable to relieve the buildup of milk in the breasts, [the

result may be] breast and back pain, plugged ducts, and breast infection.” Nicole Kennedy

Orozco, Note, Pumping at Work: Protection from Lactation Discrimination in the Workplace, 71

Ohio St. L.J. 1281, 1314 (2010); see also Currier, 965 N.E. 2d at 836 (“A nursing mother . . .

should express breast milk . . . to maintain milk production and avoid engorgement, blockage of

milk ducts, galactoceles (milk retention cysts), mastitis (an infection of the breast caused by the

blocked milk ducts), and breast abscesses.”). The fact that this “medical condition” is at times a

result of a decision made by the mother to breastfeed does not mean that it is not a medical

27
condition or that it is unrelated to pregnancy. In any event, Allen-Brown’s claim is

distinguishable from the “condition of the child” cases upon which the District relies because

those cases involved mothers who were not physically disabled or prevented from working and

who sought to extend their maternity leave in order to breastfeed, whereas Allen-Brown sought

an accommodation based on a physical condition that limited her ability to work. 10

For the foregoing reasons, the District’s motion for summary judgment as to Counts I and

IV is DENIED.

B. Retaliation Claims

In Counts II and V, Allen-Brown alleges retaliation in violation of Title VII and the D.C.

Human Rights Act, respectively. 11 Compl. ¶¶ 43–51, 64–67. Both counts allege that Allen-

Brown was placed on patrol duty outside the station in retaliation for her complaints about the

condition of the lactation facility at the Second District. 12 Id. The District contends that it is

entitled to summary judgment as to both retaliation claims. Dkt. 26-1 at 6–9.

10 Compare Barrash, 846 F.2d at 929–30; Fejes, 960 F. Supp. at 1490; McNill, 950 F. Supp. at
567; Wallace, 789 F. Supp. at 868, with Dkt. 1-9 at 2 (Allen-Brown’s request for station
assignment because “[w]earing [her] [bullet-proof] vest is extremely painful and could clog [her]
ducts and slow down the production of [her] milk supply.”) and Dkt. 27-4 at 4; Dkt. 28-15 at 3
(District’s own doctor agreeing that this was a legitimate medical concern).
11 In the next section, the Court concludes that Count V also alleges a claim for a direct violation
of D.C. Code § 2-1402.82(d)(2), which imposes an affirmative duty on employers to make
reasonable efforts to provide a private, secure, and sanitary lactation room. See infra pp. 35–39.
“Although absence of segregation in the complaint doubtless complicates the court’s task, the
complication can presumably be cured by insistence on suitably targeted briefing, and is not an
independent ground for” treating the allegations as raising only discrete claims. Baird v. Gotbaum,
662 F.3d 1246, 1253 (D.C. Cir. 2011). See also Kelly v. LaHood, 840 F. Supp. 2d 293, 304 (D.D.C.
2012) (“A complaint need not necessarily use the words ‘hostile work environment’ in order to make
out a hostile-work-environment claim. . . . Indeed, ‘discrimination’ or ‘retaliation’ can ‘in principle
include[] a hostile work environment theory.’” (internal citation omitted) (second alteration in
original) (quoting Steele, 535 F.3d at 694)).
12Although Allen-Brown also raised concerns about the quality of the lactation facility at the
Academy and Counts II and V of the complaint could potentially be construed to encompass that
28
 Title VII prohibits an employer from “discriminat[ing] against any of [its] employees . . .

because [s]he has opposed any practice made an unlawful employment practice by this

subchapter.” 42 U.S.C. § 2000e–3(a). The DCHRA similarly prohibits “retaliat[ion] against . . .

any person in the exercise or enjoyment of, or on account of having exercised or enjoyed . . . any

right granted or protected under this chapter.” D.C. Code § 2-1402.61(a). “The elements of a

retaliat[ion] claim are the same under [the] DCHRA as under the federal employment

discrimination laws.” Beckwith v. Career Blazers Learning Ctr. of Washington, D.C., Inc., 946

F. Supp. 1035, 1041 (D.D.C. 1996).

“Evaluation of Title VII retaliation claims [based on circumstantial evidence] follows the

same [McDonnell Douglas] burden-shifting template as discrimination claims.” Holcomb v.

Powell, 433 F.3d 889, 901 (D.C. Cir. 2006). “To establish a prima facie case of retaliation, the

plaintiff must present evidence that (1) she engaged in activity protected by Title VII; (2) the

employer took an adverse employment action against her; and (3) the adverse action was

causally related to the exercise of her rights.” 13 Id. at 901–02. As with a discrimination claim,

once the defendant puts forth a legitimate, non-discriminatory reason for the adverse action, the

question whether the plaintiff has established a prima facie case drops out of the case. See Jones

v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). At that point, “the only question is the ‘ultimate

factual issue in the case’—‘discrimination vel non.’” Id. (quoting United States Postal Service

Bd. of Governors v. Aikens, 460 U.S. 711, 714–15 (1983)). In ruling on a motion for summary

objection in addition to her objection to the Second District facility, her brief in opposition to the
District’s motion for summary judgment is focused solely on her complaints regarding the
Second District facility. See Dkt. 27-1 at 8.
13 The standard for what constitutes an “adverse employment action” is lower with respect to a
retaliation claim than with respect to a discrimination claim. See Baird, 662 F.3d at 1249. This
distinction is irrelevant here, since the District concedes for purposes of summary judgment that
the denial of limited-duty status was an adverse employment action. See Dkt. 26-1 at 6.
29
judgment, the Court, accordingly, must determine whether there is “sufficient evidence for a

reasonable jury to infer retaliation.” Id. at 679.

The District argues that it is entitled to summary judgment on both of Allen-Brown’s

retaliation claims because she made her complaints about the condition of the lactation room to

her supervisors at the Second District, but “[t]hese supervisors did not make the decision about

[Allen-Brown’s] participation in the Non POD limited duty program.” Dkt. 26-1 at 7.

According to the District, “it is undisputed that William Sarvis, the official who made the

determination that [Allen-Brown] could not participate in the Non POD limited duty program,

did not know about [Allen-Brown’s] complaints.” Id. Allen-Brown responds that the closeness

in time between her supervisors’ acknowledgement of her complaint about the lactation room at

the Second District and the denial of limited-duty status “is sufficient to establish temporal

proximity for purposes of retaliation” and that she “is entitled to have Mr. Sarvis’ credibility

judged by a finder of fact.” Dkt. 27-1 at 4.

The Court agrees that the record establishes that there is a genuine dispute of material

fact on the retaliation issue. The District is, of course, correct that a reasonable jury could not

infer that the denial of limited-duty status to Allen-Brown was based on a retaliatory motive

unless the relevant decision makers were aware that she engaged in protected conduct. See

Jones, 557 F.3d at 679. “To survive summary judgment, however, [Allen-Brown] needn’t

provide direct evidence that [the decision maker] knew of [her] protected activity; [s]he need

only offer circumstantial evidence that could reasonably support an inference that they did.” Id.

One way to meet this burden is to provide evidence of temporal proximity. As the D.C. Circuit

has explained, where “‘the employer had knowledge of the employee’s protected activity, and

the adverse personnel action took place shortly after that activity,’” that showing is typically

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sufficient “‘to permit an inference of retaliatory motive.’” Id. (quoting Holcomb, 433 F.3d at

903) (emphasis in original). In some cases, temporal proximity might prove “insufficient to

permit an ultimate inference of retaliation” when considered in “the full context” of the case, but

where other evidence “discredit[s]” the employer’s asserted reason for taking the adverse action,

the court need not decide that issue. Id. at 680. Here, both evidence of temporal proximity and

evidence of pretext raise a genuine, material dispute of fact for the jury.

To start, Allen-Brown offers compelling temporal proximity evidence. On June 9, 2011,

after having made prior oral complaints, she lodged a written complaint about the District’s

lactation facility. Dkt. 1-7 at 2. This complaint was first acknowledged by a supervisor on June

22, 2011. Id.. When Allen-Brown arrived at the station that night for her next shift, she was

assigned to outside patrol duty for the first time since her return to work. Dkt. 27-20 at 3 (Pl.’s

Dep. 32). As she had previously informed her supervisors, moreover, she was unable to perform

this duty because she was lactating and, as a result, could not wear the required bullet-proof vest.

Id.; Dkt. 1-9 at 2. Then, even though the doctor who examined Allen-Brown at the MPD’s

clinic, Dr. Murthy, confirmed that Allen-Brown was unable to wear a vest because she was

lactating, Sarvis issued his memorandum denying Allen-Brown limited-duty status the following

day, on June 24. Dkt. 1-11 at 2. Drawing all justifiable inferences in Allen-Brown’s favor, see

Liberty Lobby, 477 U.S. at 255, a reasonable jury could infer from this rapid sequence of events

that Allen-Brown’s complaints about the lactation room caused the District’s decision to move

her from station duty, which accommodated her pregnancy-related medical condition, to patrol

duty, which did not.

Nor is the Court persuaded by the District’s contention that there is no evidence in the

record that would permit a reasonable jury to question Sarvis’s statement that he did not know

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about Allen-Brown’s complaint when he denied her limited-duty status. See Dkt. 29 at 1. First,

Sarvis initially stated in his deposition that he did not remember the circumstances surrounding

how he learned of the issue of Allen-Brown’s limited-duty status. Dkt. 27-6 at 2 (Sarvis Dep.

45). Only later did he declare that he learned of the matter from the Police and Fire Clinic and

that he did not know about Allen-Brown’s complaints about the designated lactation area when

he declined to grant her limited-duty status. Dkt. 26-5 at 3 (Sarvis Decl. ¶ 19). Second, the

record reflects that Sarvis had contact with at least one person who likely knew of Allen-

Brown’s complaint at the time that he denied her limited-duty status. Antonio Charland

delivered Sarvis’s memorandum from Sarvis to Allen-Brown, Dkt. 1-11 at 2, and Charland (as

well as others) had been copied on the email responding to Allen-Brown’s complaint about the

lactation room, Dkt. 1-7 at 2. Third, as the Court explained with respect to Allen-Brown’s

discrimination claim, there are disputed questions of material fact surrounding the explanation of

the denial of limited-duty status given by Sarvis. See supra pp. 19–21. To the extent that a jury

might doubt that explanation, it might more generally question the credibility of Sarvis’s

testimony. See Liberty Lobby, 477 U.S. at 255. In addition, as explained above, there is some

conflicting evidence about whether Sarvis was, in fact, the ultimate decision maker. See supra p.

21. Thus, the District’s contention that there is no genuine dispute of material fact about whether

the decision maker was aware of Allen-Brown’s complaint is unavailing. There are material

questions of disputed fact regarding (1) who made the decision to deny Allen-Brown limited-

duty status, (2) what that person or persons knew or did not know at the time, and (3) the basis

for the decision.

Finally, the District argues that it is entitled to summary judgment on Count II—the Title

VII retaliation claim—for the further reason that Allen-Brown did not engage in relevant

32
protected conduct when she complained about the condition of the lactation room. Dkt. 26-1 at

8–9. According to the District, Allen-Brown’s complaint about the lactation room did “not

challenge a practice that violates Title VII . . . because her complaints do not show women were

treated less favorably than men.” Id. at 8. Allen-Brown, in turn, argues that her complaint

implicated “the Pregnancy Discrimination Act’s prohibitions, the requirements of the Fair Labor

Standards Act [FLSA], and the District of Columbia Human Rights Act [DCHRA].” Dkt. 27-1

at 10.

Neither party poses the correct question. “To recover under the opposition clause [of

Title VII], the plaintiff must have been discriminated against for opposing a practice ‘made an

unlawful employment practice by” Title VII. King v. Jackson, 487 F.3d 970, 972 (D.C. Cir.

2007) (emphasis added). Accordingly, Allen-Brown’s contention that the condition of the

lactation room violated the FLSA or the DCHRA is insufficient to show that she is entitled to

relief. But the District is also wrong to suggest that Allen-Brown must show that her complaints

challenged an actual violation of Title VII. The relevant question, instead, is whether Allen-

Brown’s complaints were “based on [a] reasonable belief” that her rights under Title VII were

violated. Parker v. Baltimore & O. R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981).

There is little guidance in the case law on what this means, and the parties have not

briefed the issue. The case law does establish that “[a]n employer has . . . no legitimate interest

in retaliating against an employee for opposition per se” and that the “reasonable belief”

requirement protects employers “against malicious accusations and frivolous claims.” Id. But,

beyond that, the case law does not explain how the reasonableness inquiry operates. Would it be

enough, for example, for Allen-Brown to have subjectively believed that she had a legal right to a

suitable place to express milk, without reference to any particular law, as long as an objectively

33
reasonable argument could be made that Title VII law “was in an ‘unsettled state’” on the issue?

King, 487 F.3d at 973; cf. Parker, 652 F.2d at 1020 (“[A] layperson should not be burdened with

the ‘sometimes impossible task’ of correctly anticipating how a given court will interpret a

particular statute.”).

Because neither party has addressed whether Allen-Brown’s complaints were based on a

“reasonable” belief that the MPD’s actions violated Title VII, the Court cannot evaluate the

merits of the District’s defense. Indeed, on the present record, it is not even clear precisely what

Allen-Brown said in her various complaints. The parties, for example, have provided a copy of

an email that she sent to Lieutenant Wheeler-Moore, which complained about only the

cleanliness of the room, Dkt. 1-7 at 2, but other evidence suggests that Allen-Brown also

complained orally about a lack of privacy, Dkt. 28-12 at 7–8 (Pl.’s Dep. 29–30) (“Officers went

there to take rest breaks or to take naps . . . during their breaks if they were tired.”). But, to

prevail at summary judgment, the District must establish that there is no genuine dispute of

material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The

present record is disputed and incomplete, and the parties have not addressed the factual and

legal questions surrounding whether Allen-Brown “reasonably” believed that her complaints

implicated Title VII. The Court must, accordingly, deny the District’s motion for summary

judgment on both of Allen-Brown’s retaliation claims. If warranted, however, the District may

promptly renew its motion with respect to the Title VII claim, addressing the issues discussed

above. Given the overlap between Allen-Brown’s Title VII and DCHRA retaliation claims,

however, and the District’s failure to raise a similar defense with respect to Allen-Brown’s

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DCHRA retaliation claim,14 any further briefing on this issue need not and should not delay final

preparation for trial in this matter.

The District’s motion for summary judgment as to Counts II and V is, accordingly,

DENIED.

C. D.C. Code § 2-1402.82(d)(2) Claim

Allen-Brown cross-moves for partial summary judgment with respect to Count V. Dkt.

28. In that count, she alleges that the District violated D.C. Code § 2-1402.82(d)(2) by failing to

provide “priva[te], secur[e] or sanitary locations for breastfeeding mothers to express milk.

Compl. ¶ 66. Section 2-1402.82 was enacted as part of the Child’s Right to Nurse Human Rights

Amendment Act of 2007, which amended the DCHRA. 2007 District of Columbia Laws 17-58

(Act 17–132). As relevant here, the Right to Nurse Act provides that:

An employer shall make reasonable efforts to provide a sanitary room or other
location in close proximity to the work area, other than a bathroom or toilet stall,
where an employee can express her breast milk in privacy and security. The
location may include a childcare facility in close proximity to the employee’s
work location.

D.C. Code § 2-1402.82(d)(2). The statute defines “reasonable efforts” as “any effort that would

not impose an undue hardship on the operation of an employer’s business” and defines “undue

hardship” as “any action that requires significant difficulty or expense when considered in

relation to factors such as the size of the business, its financial resources, and the nature and

structure of its operation.” Id. § 2-1402.82(a).

14 The District presumably declined to make this argument with respect to Allen-Brown’s
DCHRA retaliation claim because the DCHRA—unlike Title VII—places an affirmative duty on
an employer to make reasonable efforts to accommodate a lactating mother without regard to
whether it provides accommodations to other similarly situated employees. See D.C. Code § 2-
1402.82(d)(2). Accordingly, regardless of whether Allen-Brown can proceed on her Title VII
retaliation claim, she can proceed on her parallel DCHRA retaliation claim.
35
 In January 2011, the MPD promulgated a “Lactating Accommodation Policy” to

implement the requirements of the Right to Nurse Act. Dkt. 28-7. That policy provided, among

other things, that “[r]estrooms shall not be designated as appropriate spaces for lactation

purposes.” Id. at 4. In March and June 2011, the District conducted inspections of its police

stations to determine whether they were in compliance with the policy. Dkt. 28-9 at 2; Dkt. 28-

10 at 3. As relevant here, the inspections found that the lactation room for the Second District

was, at the relevant time, located in the lounge area of a restroom. 15 Id. During discovery,

moreover, the District conceded that “the areas designated as lactation rooms in more than one

district or element are, in fact, in the ladies restroom, in violation of” the Lactating

Accommodation Policy. Dkt. 28-8 at 3. Subsequently, however, it refined its position, arguing

that “[t]he lactation room [at the Second District] was in a lounge area inside the restroom[.] [I]t

was not the restroom or a stall in the restroom.” Dkt. 29-1 at 3 (Def.’s Statement of Disputed

Facts ¶ 14) (emphasis added).

Against this backdrop, Allen-Brown argues that she is entitled to summary judgment

because it is undisputed that the Second District lactation facility was located inside a

restroom. 16 Dkt. 28-1 at 3–5. That contention, however, ignores the plain language of D.C.

Code § 2-1402.82(d)(2), which does not impose a categorical prohibition on the use of

bathrooms as lactation facilities, but rather mandates that “[a]n employer . . . make reasonable

15 Sarvis testified that in 2015, modifications to the Second District’s women’s restroom were
made so that the lactation room would be a separate, private room. Dkt. 28-11 at 3 (Sarvis. Dep.
107).
16 Although Allen-Brown’s complaint refers to other instances in which the District purportedly
failed to provide an adequate lactation room (including the use of paper to cover a window,
presumably at the Academy), Compl. ¶ 18, her motion for summary judgment focuses
exclusively on the lactation facility at the Second District, see generally Dkt. 28-1.

36
efforts to provide a sanitary room or other location in close proximity to the work area other than

a bathroom or toilet stall, where an employee can express her breast milk in privacy and

security.” (Emphasis added). The “reasonableness” of the employer’s efforts to provide an

appropriate place to express milk turns on the “difficulty or expense” of providing such a

location, id. § 2-1402.82(a)—a question necessarily bound up with the issue whether it was

proper for the Second District to designate the lounge area of a bathroom as the lactation room.

The present record says nothing about the expense of making changes, the financial resources of

the MPD, the availability of other space, or the proximity of that space to Allen-Brown’s work

area. Nor does it include a detailed description of how the “lounge area” was situated within the

restroom area. Because Allen-Brown has therefore failed to show a lack of any genuine dispute

regarding the “reasonableness” of the District’s actions, she has failed to carry her burden on

summary judgment. See Fed. R. Civ. P. 56(a).

Given this conclusion, the Court need not dwell on the District’s arguments that there is

no private cause of action for accommodation-related violations of the Right to Nurse Act and

that, in any event, Allen-Brown cannot recover any damages for the alleged violation of the Act

because she failed administratively to exhaust her claims for unliquidated damages in accordance

with D.C. Code § 12-309. See Dkt. 30 at 3–5. The District has not cross-moved for summary

judgment on these grounds, and neither argument raises a jurisdictional issue that this Court must

address sua sponte. But, in any event, the first contention is insubstantial, because the DCHRA

does, indeed, provide a private cause of action for “[a]ny person claiming to be aggrieved by an

unlawful discriminatory practice,” including by violations of the Right to Nurse Act. D.C. Code

§ 2-1403.16(a); see also id. § 2-1402.82(b) (“It shall be an unlawful discriminatory practice to

deny a woman any right provided under this section.”). As for the second contention, at an

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earlier stage in this litigation, the District withdrew a similar non-exhaustion argument on the

ground that “the requirement that District employees must first bring their [DCHRA and Right to

Nurse Act] claims to the Office of Human Rights has been eliminated from the statute.” Dkt. 13

at 5; see also D.C. Code § 2-1403.16(c). Although the District may have reconsidered that

concession, neither it nor Allen-Brown has briefed the question whether the amendment to the

statute is applicable to this case. Cf. Bowyer v. District of Columbia, 779 F. Supp. 2d 159, 165

(D.D.C. 2011) (holding that “the elimination of the pre-suit notice provision [of D.C. Code § 12-

309 for whistleblower claims] . . . is a procedural change, which must therefore be applied to

pending actions and claims”).

This, then, leaves only one final contention by the District as to Count V. In its

opposition to Allen-Brown’s motion for summary judgment, it asserts that “[t]he Court should

not allow Plaintiff to broaden her claims to include a claim of direct violation of D.C. Code § 2-

1402(d)(2) when her Complaint pled only retaliation.” Dkt. 30 at 3. The Court has already

rejected the District’s motion for summary judgment on Allen-Brown’s retaliation claims. See

supra pp. 28–35. But, in any event, the District is wrong that Count V does not allege a “direct

violation” of the Right to Nurse Act. In unmistakable terms, Count V cites to § 2-1402.82(d)(2)

and avers that “MPD did not provide privacy, security or sanitary locations for breastfeeding

mothers to express milk.” Compl. ¶¶ 65–66. Indeed, the District acknowledges as much. Dkt.

30 at 3 (“Plaintiff argues that . . . ‘the lactation facility at the work where she was assigned did

not meet’ [the] requirements [of § 2-1402.82(d)(2)].”). Allen-Brown’s complaint was clearly

“‘sufficient to put defendant[] on notice of [the] theor[ies] of recovery upon which [she] is

relying.’” Kelly, 840 F. Supp. 2d at 304 (quoting Overby v. Nat’l Ass’n of Letter Carriers, 595

F.3d 1290, 1297 (D.C. Cir. 2010)). The District’s attempt to recast Count V as solely a

38
retaliation claim therefore fails. See also pp. 28 n.11 (explaining that although segregation of the

complaint is preferable, a count may encompass more than one claim).

The Court, accordingly, DENIES Allen-Brown’s motion for partial summary judgment

on Count V.

III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendant’s motion for summary

judgment, Dkt. 26, is DENIED. It is further ORDERED that Plaintiff’s motion for partial

summary judgment, Dkt. 28, is DENIED.

The parties shall appear for a status conference on April 12, 2016 at 11 a.m. in

Courtroom 21. In advance of that status conference, on or before April 11, 2016, the parties

shall confer and shall jointly file a proposed schedule to govern further proceedings in this case.

SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
March 31, 2016

39