UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JANE DOE 1, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 18-1391 (RBW)
)
THE GEORGE WASHINGTON )
UNIVERSITY, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
The plaintiffs filed this civil action, using the pseudonyms Jane Does 1 to 5, against
George Washington University (“GW”) and Kyle Renner, a GW employee being sued in his
capacity as GW’s General Operations Manager and the plaintiffs’ supervisor (collectively, “the
defendants”), pursuant to the District of Columbia’s Human Rights Act (“D.C. Human Rights
Act”), D.C. Code §§ 2-1401–1404.04 (2001), alleging that the defendants (1) created a hostile
work environment (“Count I”), (2) retaliated against them for their complaints of sexual
harassment (“Count II”), (3) discriminated against them because of their gender (“Count III”),
and (4) aided and abetted the discriminatory and retaliatory conduct (“Count IV”). First
Amended Complaint And Jury Demand (“Am. Compl.”) ¶¶ 116, 123, 133, 140. The plaintiffs
bring an additional three claims against GW for (1) negligent training and supervision (“Count
V”); (2) indifference to sexual harassment in violation of Title IX of the Education Amendments
Act of 1972 (“Title IX”), 20 U.S.C. §§ 1681–88 (2018) (“Count VI”); and (3) retaliation in
violation of Title IX (“Count VII”). Am. Compl. ¶¶ 145, 149–50, 160. Currently before the
Court are (1) the Defendants’ Motion to Dismiss All Claims of Plaintiffs Jane Doe 1 and Jane
Doe 3 and All Plaintiffs’ Claims in Counts III and V of the Complaint (“Defs.’ Mot.”), (2) the
Defendants’ Motion to Dismiss the First Amended Complaint (“Defs.’ 2d Mot.”), and (3) the
Plaintiffs’ Motion for Leave to Proceed with the Pseudonyms Jane Does 1–5 (“Pls.’ Mot.”).
Upon careful consideration of the parties’ submissions, 1 the Court concludes for the reasons
below that the defendants’ motion to dismiss the Complaint must be denied as moot, 2 the
plaintiffs’ motion for leave to proceed pseudonymously should be granted, and the defendants’
motion to dismiss the Amended Complaint must be granted in part and denied in part.
I. BACKGROUND
All five plaintiffs are female undergraduate students who attend GW. Am. Compl. ¶¶ 24,
37, 46, 71, 83. During the time period relevant to their claims against the defendants, the
plaintiffs worked in various roles at the Institute for International Economic Policy (“IIEP”), see
id., which is located within the Elliott School of International Affairs at GW, id. ¶ 17. Emerson
Jones, one of the alleged perpetrators of the harassing conduct who is not a party to this action,
was also employed by the IIEP in a supervisory position. Id. ¶ 19. When Jones began working
at the IIEP, all of the plaintiffs, with the exception of Jane Doe 1, were already working there.
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Defendants’ Memorandum in Support of [the Defendants’] Motion to Dismiss the First Amended
Complaint (“Defs.’ 2d Mem.”); (2) the Plaintiffs’ Memorandum of Points and Authorities in Opposition to [the]
Defendants’ Motion to Dismiss [the] First Amended Complaint (“Pls.’ Opp’n”); (3) the Defendants’ Reply
Memorandum in Further Support of [the Defendants’] Motion to Dismiss the First Amended Complaint (“Defs.’
Reply”); (4) the [Plaintiffs’] Statement of Points and Authorities in Support of [the] Plaintiffs’ Motion for Leave to
Proceed with the Pseudonyms Jane Does 1–5 (“Pls.’ Mem.”); (5) the Defendants’ Opposition to [the] Plaintiffs’
Motion for Leave to Proceed with the Pseudonyms Jane Does 1–5 (“Defs.’ Opp’n”); and (6) the [Plaintiffs’] Reply
Brief in Support of [the] Plaintiffs’ Motion for Leave to Proceed with the Pseudonyms Jane Does 1–5 (“Pls.’
Reply”).
2
The defendants filed a motion to dismiss the Complaint in its entirety as to Jane Does 1 and 3, as well as Counts III
and V as to the remaining plaintiffs, for failure to state a claim. “This motion became moot when [the] plaintiff[s]
filed [their] [ ] Amended Complaint and therefore will be denied.” Baltierra v. W. Va Bd. of Med., 253 F. Supp. 2d
9, 14 (D.D.C. 2003) (Walton, J.).
2
See id. ¶¶ 24, 37, 71, 85. Later in the fall of 2017, Jane Doe 1 began her employment at the
IIEP. See id. ¶ 46. The following are the plaintiffs’ relevant allegations.
A. Jones’s Alleged Conduct
According to the plaintiffs, beginning in March 2017, IIEP staff members complained to
Renner about Jones’s behavior. See id. ¶ 91. These complaints were allegedly largely ignored
by Renner by his silencing of female complainants. See id. In general, Jones would purportedly
“frequently brag in the workplace about his sexual exploitation of the women in the workplace.”
Id. ¶ 34. For example, Jones allegedly “publicly announced to the IIEP staff members his sexual
rating of the female coworkers from best to worse.” Id. ¶ 32. On another occasion, he
purportedly described one of the women he raped as “a dead fish because she was so drunk.” Id.
Jones was also allegedly verbally abusive to women employed in the IIEP. On one
occasion, Jane Doe 2’s coworker purportedly informed her that “Jones had been ‘degrading’ Jane
Doe 2.” Id. ¶ 33. In addition, Jane Doe 5 contends that she personally “observed Jones shut
down a female coworker after the female coworker requested that Jones stop verbally harassing
her.” Id. ¶ 86. Jones allegedly became extremely aggressive, belittled her, and told the female
coworker that she needed to stop being “emotional” and to get “used to this type of behavior in a
work environment.” Id. 3 Jane Doe 5 also contends that she heard “Jones talk to other
coworkers in the workplace about women in a sexually demeaning way and has heard Jones brag
about his sexual experiences.” Id. ¶ 87.
3
The plaintiffs also allege that, on one occasion, after a female coworker “stood up to Jones . . . to address his
misogynistic conduct,” Jones shouted at her and stated that she would “have to get used to things like that if [she]
ever want[ed] to be successful in a work environment.” Am. Compl. ¶ 41. However, it is unclear whether the
plaintiffs are referencing the same occurrence. Because of the similarities of Jones’s statements, the Court will
construe it as the same incident.
3
“The female workers, including Jane Doe 5, felt extremely uncomfortable around Jones
due to his aggressive behavior and misogynistic comments.” Id. ¶ 85. According to Jane Doe 5,
Jones would intentionally refer to the female employees by “the incorrect names claiming that all
the women in the office are the same.” Id. ¶ 88. He also allegedly referred to new female staff
members as his “new office crush[es].” Id. ¶ 42.
1. Jane Doe 1
Less than a month after Jane Doe 1 started working at the IIEP, Jones allegedly began
harassing her. On October 1, 2017, she contends that Jones sent her a text message stating, “oh
my god you’re so hot.” Id. ¶ 48. Within a week, on October 6, 2017, Jones allegedly asked
Jane Doe 1 to come to his house, but she refused. Id. ¶ 49. According to Jane Doe 1, later that
month, “[o]n October 26, 2017, [she] learned that Jones had threatened to kill her female
coworker,” which made Jane Doe 1 fearful of Jones. Id. ¶ 50. And on November 9, 2017, Jane
Doe 1 contends that she received a text message from a female coworker, asking Jane Doe 1 if
Jones had left the office. See id. ¶ 51. Jane Doe 1 represents that the coworker told her that she
was hiding from Jones in fear that he would sexually assault her. See id.
Two days prior to an upcoming performance, 4 Jane Doe 1 contends that she told Jones
that she was “stressed about her [ ] performance.” Id. ¶ 52. Jones allegedly asked if he could
attend the performance, but Jane Doe 1 represents that she told him no. See id. On December 9,
2017, Jones allegedly sent Jane Doe 1 a text message, “containing a picture of [Jane Doe 1]
during her performance.” Id. ¶ 53. Apparently, despite Jane Doe 1’s objections, Jones had
4
It is unclear from the Amended Complaint what is being referenced by the term “performance,” e.g., the
performance of a job or non-job related activity, or an evaluation of Jane Doe 1’s performance.
4
attended the performance. See id. Three days later, Jones purportedly again asked Jane Doe 1
on a date, which she refused. Id. ¶ 54.
On December 19, 2017, Jane Doe 1 filed a complaint with Renner regarding Jones’s
behavior. See id. ¶ 58. After Jane Doe 1 “described Jones’[s] behavior toward her, and [ ] stated
that one of her female coworkers had been raped[,] Renner responded, ‘sometimes you need to
work with people that you don’t necessarily get along with.’” Id. On December 21, 2017, a
Title IX investigator contacted Jane Doe 1 by email in response to her complaint, but allegedly
“took no action beyond that email and failed to conduct any independent investigation beyond
reaching out to the complainant.” Id. ¶ 63. On January 30, 2018, Jane Doe 1 allegedly heard
“Jones openly discuss[ing] his sexual exploits in the workplace,” and began “demean[ing] the
women he ‘slept with.’” Id. ¶ 64.
Following Jane Doe 1’s December 19, 2017 initial complaint to Renner, she contends
that Jones “deliberately and intentionally increased his hostility towards her.” Id. ¶ 66. For
example, on February 1, 2018, Jane Doe 1 contends that “Jones treat[ed her] with hostility and
harassed her as she quietly did her work.” Id. Immediately thereafter, Jane Doe 1 represents that
she observed Jones and Renner discussing something in Renner’s office. See id. “As a result,
Jane Doe 1’s supervisor told her that she was not allowed to work the event that evening even
though the event was understaffed.” Id.
On February 7, 2018, “Jane Doe 1 requested that she be demoted to [e]vent staff so that
she would not have to interact with Jones anymore.” Id. ¶ 67. “Jane Doe 1 was also given the
option of working from home.” Id. ¶ 68. Two days later, Jane Doe 1 met with the GW’s
Assistant Director for Sexual Assault Prevention and Response for the Office for Diversity,
Equity, and Community Engagement (“ODECE”), and reported “Jones’[s] sexual harassment
5
and sexual assault of Jane Doe 5.” Id. ¶ 99. On March 6, 2018, Jane Doe 1 learned that her
complaint to the ODECE would be treated as “student-on-student harassment,” “rather than
‘staff-on-staff harassment’ even though the harassment was occurring in the IIEP workplace.”
Id. ¶¶ 99, 105.
On April 2, 2018, Jane Doe 1 contends that she was constructively discharged, having
been “forced to resign out of her fear of interacting with Jones in the IIEP office.” Id. ¶ 69.
2. Jane Doe 2
In May 2017, “Jones [allegedly] asked Jane Doe 2 to come over to his apartment.”
Id. ¶ 26. According to Jane Doe 2, “[o]nce there, Jones ignored Jane Doe 2’s objections [to
sexual activity] and sexually assaulted her.” Id. “Jane Doe 2 [contends that although she] tried
to push Jones off of her . . . [and] told him to stop multiple times, . . . Jones raped Jane Doe 2.”
Id.
Throughout the fall of 2017, “Jones [allegedly] continued to torment Jane Doe 2.”
Id. ¶ 31. On one occasion, Jane Doe 2 contends that Jones told her that he would “never stick[
his] dick into the pool of IIEP ever again.” Id. Jones also purportedly “told Jane Doe 2’s faculty
supervisors and her coworkers” that he and Jane Doe 2 had sex. Id. ¶ 33.
On February 2, 2018, Jane Does 2 and 3 met with Renner. See id. ¶ 97. “Jane Doe 2 told
Renner . . . that Jones had raped her” and two other girls in the IIEP office. Id. Jane Doe 2
“also gave Renner a written statement that detailed Jones’[s] sexually hostile conduct and
misogynistic comments in the workplace.” Id. Renner responded that he would “talk to the Title
IX office to see what he should do.” Id. Renner then “recommended that Jane Doe 2 work from
home.” Id. On February 11, 2018, Jane Doe 2 observed Jones in the office and emailed Renner,
stating, “I was wondering if we could have a follow-up meeting. Let me know if you are free
6
soon.” Id. ¶ 100. However, Renner purportedly never responded to Jane Doe 2’s email. See id.
Instead, during Jane Doe 2’s professional development meeting with Renner on February 23,
2018, she contends that “Renner told [her] that to ‘follow-up’ on her complaint about Jones,
there was nothing [he] could do because his ‘hands were tied.’” Id. ¶ 101. Jane Doe 2 represents
that she requested that Renner fire Jones, but Renner repeatedly responded that his “hands were
tied” and that “Jane Doe 2 had to file an ‘official complaint with the Title IX office.’” Id.
According to Jane Doe 2, she “complained that it was unacceptable that . . . she had to work
beside the man [who] raped her.” Id. Renner allegedly concluded the meeting by “stating that
Jane Doe 2 should work from home and go to therapy.” Id.
On March 7, 2018, Jane Doe 2 informed Renner in writing that “four female employees
‘and I want to discuss how we feel unsafe in the office.’” Id. ¶ 106. Two days later, the
plaintiffs, including Jane Doe 2, met with Renner. See id. ¶ 107.
During this meeting, each of the [p]laintiffs detailed the sexual harassment they
were exposed to in the workplace, Jones’[s] sexual assaults on female staff
members, Jones’[s] demeaning treatment of the female staff members, and
Jones’[s] threat to kill a female staff member. The [p]laintiffs also read written
statements prepared by two other girls. The [p]laintiffs told Renner that at least
11 female staff members had been impacted by Jones’[s] hostile conduct. The
[p]laintiffs told Renner that they felt unsafe working with Jones.
Id. Renner allegedly responded that “he needed to utilize the ‘correct mechanisms’ to terminate
Jones,” but when pressed by the plaintiffs, he could not identify the “mechanisms.” Id. Renner
allegedly “stated that he did not want to ask Jones to work from home,” id., and “instead asked
the [p]laintiffs to work from home,” id. Jane Does 1, 3, 4, and 5 provide consistent accounts of
what Jane Doe 2 said transpired at the March 9, 2017 meeting with Renner.
“On March 26, 2018, Jane Doe 2 [contends that she] was constructively discharged by
GW.” Id. ¶ 35. In her resignation letter to Renner, Jane Doe 2 wrote that “[w]orking in the
7
recent months at [the] IIEP has been a terrible experience,” that the IIEP’s “inability or
unwillingness to protect [her] . . . from a clear and imminent threat has been disheartening,” and
that “after putting forth so many months of fighting for my safety and seeing little to nothing
happening, I am no longer willing to work under the [IIEP].” Id. ¶ 109.
The next day, Jane Doe 2 received a phone call from the Director of the IIEP, Maggie
Chen. Id. ¶ 110. Director Chen allegedly told Jane Doe 2 that she “asked Renner what he did to
fire Jones, and Renner said ‘nothing.’” Id. According to Director Chen, after she requested
human resources to fire Jones, human resources responded that “this is not a [human resources]
issue, it is a Title IX issue.” Id. Director Chen also “complained to GW’s Title IX [o]ffice[,]
which stated ‘[it] would need formal complaints from each of the victims,’ and that it could not
take any action until after the judiciary council completed its investigation.” Id. Finally,
Director Chen “complained to GW’s Office of the General Counsel, which reiterated that the
complaints would need to be processed by the Title IX [o]ffice.” Id. When Director Chen
indicated that “she had ‘cause to terminate [Jones],’ the General Counsel’s Office said ‘that’s not
fair to Jones.’” Id. Director Chen “was told that until [Jones] ha[d] his due process, there [was]
nothing [she] could do.” Id. (first alteration in original). Director Chen also allegedly informed
Jane Doe 2 “that there is ‘absolutely no training’ on sexual harassment.” Id.
“On April 2, 2018, Jane Doe 2 met with Jen Alexander-Smith from the Office of Student
Rights and Responsibilities at GW (‘Student Rights Office’).” Id. ¶ 113. According to Jane Doe
2, “[t]he Student Rights Office stated that it had learned of the [p]laintiffs’ complaints on March
31, 2018.” Id. The Student Rights Office allegedly stated that “it is prohibited from becoming
involved in [workplace] problems,” and that it has “no policies in place regarding student
problems in the workplace” and “absolutely no policy for harassment of students in the
8
workplace.” Id. “The Student Rights Office further admitted that it had never received any
complaint from [the] Title IX [office] or Renner about Jones’[s] misconduct.” Id. The Student
Rights Office stated “that according to [the] Title IX [office], it had not yet started an
investigation because it had not received a ‘formal’ complaint.” Id.
3. Jane Doe 3
According to Jane Doe 3, a number of her coworkers confided in her about Jones’s
“sexual misconduct and inappropriate conduct in the office,” id. ¶ 77, and in her position as
Digital Communications and Social Media Team Lead, Jane Doe 3 contends that she became
aware that Jones had assaulted three female employees in the office, see id. Jane Doe 3
represents that she received two written complaints in a suggestion box about Jones’s “sexually
hostile behavior.” Id. One female employee purportedly complained to Jane Doe 3 that “Jones
had been asking underage female workers to ‘get drunk’ with him after work.” Id. Jane Doe 3
also allegedly received complaints “that Jones had been discussing his sexual encounter with
Jane Doe 2 [ ] in the IIEP office.” Id. ¶ 78.
Jane Doe 3 contends that she filed at least four formal complaints with her supervisors
about Jones’s sexual harassment and assaults. See id. ¶ 79. On February 2, 2018, Jane Does 2
and 3 met with Renner to discuss Jones’s conduct toward Jane Doe 2. See id. ¶ 97. On
February 28, 2018, Jane Doe 3 met with Renner and told him that “she believed Jane Doe 2
would be quitting [the] IIEP because [Renner] would not take action in response to her
complaint.” Id. ¶ 103. Renner allegedly responded that “his ‘hands were tied’” and “it was ‘a
difficult situation.’” Id.
9
On March 30, 2018, Jane Doe 3 “encountered Renner on GW’s campus.” Id. ¶ 112.
According to Jane Doe 3, “Renner stated that he was ‘very concerned that [the plaintiffs’] group
chat with the eleven [victims] was spreading misinformation and that [the plaintiffs] were
making the situation worse.’” Id.
4. Jane Doe 4
On September 30, 2017, Jane Doe 4 was at a nightclub with other IIEP staff when “Jones
[allegedly] bought . . . Jane Doe 4[] an excessive number of alcoholic drinks.” Id. ¶ 43. Later,
Jones allegedly asked Jane Doe 4 to come back to his apartment, and because he “was older than
her and her boss at [the] IIEP, [Jane Doe 4 contends that she] felt she had no choice.” Id. “At
Jones’[s] apartment, Jane Doe 4 slipped in and out of consciousness, as she was [ ] grossly
intoxicated.” Id. According to While Jane Doe 4, while she was “inebriated and unresponsive [
], Jones took off her clothes, climbed on top of her[,] and raped [her].” Id. She also contends
that “[t]he next morning, she awoke to Jones, again, attempting to rape her.” Id.
After purportedly raping Jane Doe 4, the Amended Complaint represents that “Jones
bragged in the workplace about his encounter to Jane Doe 4’s coworkers.” Id. ¶ 44. “He
[allegedly] made humiliating, derogatory sexual comments about Jane Doe 4 to her coworkers
and the faculty members working in the IIEP.” Id. Purportedly, Jones “publicly ranked Jane
Doe 4 among the other females in the office that he had victimized.” Id. ¶ 44.
5. Jane Doe 5
In April 2017, “Jane Doe 5 [represents that she] attended a party in a GW dorm room that
was hosted by her IIEP coworker.” Id. ¶ 90. When the party ended, Jones allegedly “pressured
Jane Doe 5 to leave with him,” and “Jones began [to] assault [her] in the car.” Id. According to
Jane Doe 5, when she arrived at Jones’s house, “she ‘blacked out’ and lost consciousness. She
then came in and out of consciousness as Jones aggressively raped her.” Id.
10
B. Renner’s Alleged Conduct
Renner, the individual purportedly “authorized to receive complaint[s] regarding
workplace misconduct and [to] institute corrective measures,” id. ¶ 57, allegedly “was also
involved in his own workplace misconduct.” Id. ¶ 61. He purportedly made misogynistic and
“derogatory comments about women in the workplace, such as disparaging ‘women’s studies.’”
Id. ¶ 62. In addition, Renner allegedly tried to cover up Jones’s misconduct by “brush[ing] aside
the complaints made by [the p]laintiffs and others” rather than “report[ing] Jones to the police or
to the University” because Jones and Renner were allegedly “close friends.” Id. ¶ 60.
Moreover, Renner would allegedly touch Jane Doe 1 and 3. According to Jane Doe 1,
during her employment, on multiple occasions, “Renner touch[ed] the small of Jane Doe 1’s
back while in the workplace, without her permission.” Id. ¶ 61. Renner would also allegedly
subject Jane Doe 3 to sexually hostile conduct. See id. ¶ 73. He would purportedly “touch Jane
Doe 3’s arm or shoulder” while walking beside her, and while Jane Doe 3 was working at her
computer, “Renner [would] frequently reach[ ] over [ ] Jane Doe 3 to type on her keyboard while
she remain[ed] seated.” Id. He also allegedly “routinely commented on [] Jane Doe 3’s clothing
in the office.” Id. The plaintiffs also contend that “Renner gave preferential treatment to Jane
Doe 3’s co-team leader,” id., and “would dismiss Jane Doe 3’s recommendations in front of the
staff, and instead request input from [her] male co-team leader,” id. ¶ 75. On one occasion,
“during Jane Doe 3’s professional development meeting, Renner [allegedly] asked Jane Doe 3
when she intended to get married and have kids.” Id. ¶ 76. He also allegedly “asked several
female employees this question during their professional development meetings.” Id.
11
C. This Lawsuit
On May 10, 2018, the plaintiffs filed their Complaint in the Superior Court of the District
of Columbia. On June 13, 2018, the defendants removed the case to this Court pursuant to
28 U.S.C. § 1441(a), (c) (2018). See Notice of Removal (Corrected) at 2–4. Thereafter, the
defendants filed their motion to dismiss the Complaint for failure to state a claim. See generally
Defs.’ Mot. Instead of opposing the motion, the plaintiffs amended their Complaint. See
generally Am. Compl. The defendants have now moved to dismiss the Amended Complaint for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the basis that the plaintiffs failed
to obtain leave to sue using pseudonyms. See Defs.’ 2d Mem. at 13–15. The plaintiffs
subsequently filed their motion seeking leave from the Court “to continue to proceed
anonymously as Jane Does 1–5 throughout the remainder of this case.” Pls.’ Mem. at 1. These
last two filings are the subject of this memorandum opinion.
II. LEGAL STANDARDS
A. Motion For Leave To Proceed with Pseudonyms
Federal Rule of Civil Procedure 10(a) requires that a complaint state all of the names of
the parties. Fed. R. Civ. P. 10(a). “Disclosure of the parties’ identities furthers the public interest
in knowing the facts surrounding judicial proceedings.” Doe v. Cabrera, 307 F.R.D. 1, 4 (D.D.C.
2014) (Walton, J.) (quoting Nat’l Ass’n of Waterfront Emp’rs v. Chao, 587 F. Supp. 2d 90, 99
(D.D.C. 2008)).
12
The “rare dispensation” of allowing parties to proceed pseudonymously is only
justified in the “critical case,” or the “unusual case,” . . . include[ing] those in
which “identification creates a risk of retaliatory physical or mental harm,” those
in which “anonymity is necessary to preserve privacy in a matter of [a] sensitive
and highly personal nature,” and those in which the anonymous party would be
compelled to admit criminal behavior or be subject to punishment by the state.
Qualls v. Rumsfeld, 228 F.R.D. 8, 10–11 (D.D.C. 2005); accord W. Coast Prods., Inc. v. Does 1–
5829, 275 F.R.D. 9, 12 (D.D.C. 2011) (“[F]ederal courts generally allow parties to proceed
anonymously . . . when anonymity is necessary to protect a person from harassment, injury,
ridicule, or personal embarrassment.”). Personal embarrassment is normally not a sufficient
basis for permitting anonymous litigation. See Chao, 587 F. Supp. 2d at 100.
“[I]t is within the discretion of the district court to grant the ‘rare dispensation’ of
anonymity.” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting
James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)). In exercising this discretion, the Court has
“a judicial duty to inquire into the circumstances of particular cases to determine whether the
dispensation is warranted.” Id. “As part of this inquiry, the court should take into account the
risk of unfairness to the opposing party, as well as the customary and constitutionally-embedded
presumption of openness in judicial proceedings.” Id. (internal quotation marks omitted). “[I]t is
the litigant seeking to proceed under pseudonym that bears the burden to demonstrate a
legitimate basis for proceeding in that manner,” Qualls, 228 F.R.D. at 13, and “motions to
proceed under pseudonym should be granted sparingly,” Doe v. U.S. Dep’t of State, Civ. Action
No. 1:15-01971, 2015 WL 9647660, at *2 (D.D.C. Nov. 3, 2015).
B. Motion to Dismiss
A Rule 12(b)(6) motion tests whether a complaint “state[s] a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6)], a
13
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw [a] reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must construe the
complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be
derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(internal quotation marks omitted). While the Court must “assume [the] veracity” of any “well-
pleaded factual allegations” in a complaint, conclusory allegations “are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Also, the Court need not accept “legal conclusions cast as factual
allegations,” or “inferences drawn by [the] plaintiff if those inferences are not supported by the
facts set out in the complaint.” Hettinga, 677 F.3d at 476. 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 [the Court] may take judicial notice.” E.E.O.C. v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
III. ANALYSIS
A. The Plaintiffs’ Motion For Leave To Proceed with the Pseudonyms Jane Does 1 to 5
Although the District of Columbia Circuit has not yet adopted a test for evaluating a
request to proceed pseudonymously, members of this Court have adopted a five-factor test “in
balancing the interests involved.” See, e.g., Sandberg v. Vincent, 319 F. Supp. 3d 422, 426
14
(D.D.C. 2018); see also Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89, 96 (D.D.C. 2015);
Cabrera, 307 F.R.D. at 5; Chao, 587 F. Supp 2d at 99. These factors are:
[(1)] [w]hether the justification asserted by the requesting party is merely to avoid
the annoyance and criticism that may attend any litigation or is to preserve
privacy in a matter of a sensitive and highly personal nature; [(2)] whether
identification poses a risk of retaliatory physical or mental harm to the requesting
party or even more critically, to innocent non-parties; [(3)] the ages of the persons
whose privacy interests are sought to be protected; [(4)] whether the action is
against a governmental or private party; and [(5)] the risk of unfairness to the
opposing party from allowing an action against it to proceed anonymously.
Sandberg, 319 F. Supp. 3d at 426 (quoting James, 6 F.3d at 238). The Court will address each
factor in turn in assessing whether to grant the plaintiffs’ motion.
1. Whether the Use of Pseudonyms Will Preserve Privacy in a Matter of a Sensitive
and Highly Personal Nature
The plaintiffs maintain that “[b]ecause this case involves claims of multiple sexual
assaults, involving multiple plaintiffs, this case is sensitive and highly personal in nature for the
[p]laintiffs.” Pls.’ Mem. at 3 (quoting Cabrera, 307 F.R.D. at 6). The defendants respond that
this case does not involve a matter of a sensitive and highly personal nature for two reasons: (1)
“Jane Does 1 and 3 do not allege that they were sexually assaulted” or that Jones “ever touched
them improperly, or threatened them,” Defs.’ Opp’n at 6; and (2) although the remaining
plaintiffs have alleged they have been raped, this lawsuit does not involve a “brutal rape”
involving “graphic details,” id. at 7.
As an initial matter, the Court agrees with the defendants that “[s]exual harassment is not
typically considered a matter so highly personal as to warrant proceeding by pseudonym.”
Bernabei, 85 F. Supp. 3d at 96. However, although Jane Does 1 and 3 were subjected to sexual
harassment and not assault, the remaining plaintiffs do in fact allege that they were sexually
assaulted. Am. Compl. ¶¶ 26, 43, 90. Therefore, because courts generally allow a plaintiff to
15
litigate under a pseudonym in cases containing allegations of sexual assault on the basis that they
concern highly sensitive and personal subjects, see Cabrera, 307 F.R.D. at 5; Doe v. De Amigos,
LLC, Civ. Action No. 11-1755 (ABJ), 2012 WL 13047579, at *2 (D.D.C. Apr. 30, 2012), the
need for anonymity is particularly great in this case because the IIEP is a “small” office, Pls.’
Mem. at 3, and “[d]isclosure of the identity of any of the [p]laintiffs would necessarily lead to
the disclosure of the identities [of all the plaintiffs],” id.
The defendants claim that because “all five [p]laintiffs are already well known in the IIEP
office through [the p]laintiffs’ own communications at meetings and on social media,” Defs’
Opp’n at 7, “the use of the true names of Jane Doe 1 and Jane Doe 3 in the lawsuit would [not]
allow anyone to better guess the true identities of the other [p]laintiffs beyond the information
already available,” id. However, because the “extent of [these] disclosures does not reel in the
public at large,” Cabrera, 307 F.R.D. at 9 n.14 (citation omitted), the Court must “grant[ ]
anonymity to protect against [public] disclosure” and preserve the privacy of sexual assault
victims. De Amigos, LLC, 2012 WL 13047579, at *2.
The defendants also contend that “this case is unlike Bernabei because that was a suit
against the alleged perpetrator of a brutal rape, in which the complaint included ‘highly personal’
matter[s] such as ‘graphic details of the alleged rape, including multiple references to the
plaintiff’s genitalia and her hospital examination,’” Defs.’ Opp’n at 7, while “the claims in this
case are not made against the alleged perpetrator . . . ; no similarly ‘graphic’ details of the
alleged sexual assaults are pled in the [Amended] Complaint; and the primary issue is not
liability for the alleged rapes themselves,” id. at 7–8. Although the Court acknowledges that the
plaintiffs’ Amended Complaint “is not against [their] assailant . . . but is instead at least one step
removed” from the alleged incidents of sexual assault, Bernabei, 85 F. Supp. 3d at 97, the Court
16
agrees with the plaintiffs that it is “anticipated that the details of the sexual assaults will be
relevant to this lawsuit in light of [the p]laintiffs’ Title IX claims,” Pls.’ Reply at 2; but see
Bernabei, 85 F. Supp. 3d at 97, and nevertheless recognizes the “strong [public] interest in
protecting the identities of sexual assault victims so that other victims will not be deterred from
reporting such crimes,” De Amigos, LLC, 2012 WL 13047579, at *2; see also Doe v. Penzato,
Civ. Action No. 10-5154 (MEJ), 2011 WL 1833007, at *3 (N.D. Cal. May 13, 2011) (“Given
[the p]laintiff’s allegations of sexual assault, the Court finds that these reasons tend to favor
allowing her to proceed anonymously.”); Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 (E.D.N.Y.
2006) (“[T]he public generally has a strong interest in protecting the identities of sexual assault
victims so that other victims will not be deterred from reporting such crimes.”); Doe v. Evans,
202 F.R.D. 173, 176 (E.D. Pa. 2001) (granting anonymity to sexual assault victim).
Accordingly, this factor weighs in favor of the plaintiffs proceeding pseudonymously.
2. Whether There is a Risk of Retaliatory Physical or Mental Harm
The defendants argue that the plaintiffs “do not even suggest that they face ‘retaliatory’
physical or mental harm by either of the [d]efendants.” Defs.’ Opp’n at 8 (quoting Qualls, 228
F.R.D. at 12). The defendants further contend that “exaggerated assertions” offered by the
plaintiffs “should not be credited by the Court, especially since no affidavit was provided by Jane
Does 1 or 3, or any mental-health provider,” id. at 9, and that the plaintiffs have offered “nothing
to support their claim [as to Jane Does 2, 4, and 5,] that the disclosure of their identities would
exacerbate th[eir psychological] ‘trauma,’” id. 5 Although the Court agrees with the defendants
5
The defendants rely on Qualls to support these arguments. However, Qualls does not assist the defendants. In
Qualls, the district court did not permit the plaintiffs to proceed under pseudonyms because the plaintiff alleged only
“fears of embarrassment or vague, unsubstantiated fears of retaliatory actions by higher-ups.” Qualls, 228 F.R.D. at
12. Here, the Court finds that the plaintiffs, although they have not offered declarations or affidavits, have alleged
more than “fears of embarrassment or vague, unsubstantiated fears of retaliatory actions by higher-ups.” Id. In
addition, the Court does not agree with the defendants that an affidavit from an expert is necessary for the Court to
(continued . . .)
17
that the plaintiffs bear the burden to demonstrate a “legitimate basis” for proceeding under
pseudonyms, see Defs.’ Opp’n at 9; Qualls, 228 F.R.D. at 13, the Court finds that the plaintiffs
have demonstrated that this factor weighs in their favor.
A showing of either a risk of retaliatory physical harm or a risk of mental harm weighs in
favor of granting a plaintiff anonymity in a proceeding involving allegations of sexual assault.
See De Amigos, LLC, 2012 WL 13047579, at *2–4 (“Although there is no indication that [the
plaintiff’s] identification poses a risk of retaliatory harm, such publicity could exacerbate the
psychological harm that she has already experienced[.]”). A plaintiff need not show both a risk
of retaliatory physical harm and mental harm—either is sufficient. See id. “Courts generally
find a risk of retaliatory harm in cases where the moving party provides evidence that
psychological damage or violent threats are anticipated if a party’s identity is disclosed.” J.W. v.
District of Columbia, 318 F.R.D. 196, 200 (D.D.C. 2016) (citations omitted).
Here, the Court finds that public disclosure of the plaintiffs’ true identities is likely to
result in psychological harm. See Cabrera, 307 F.R.D. at 6 (“A showing of either a risk of
retaliatory physical harm or a risk of mental harm weighs in favor of granting a plaintiff
anonymity in a proceeding involving allegations of sexual assault.” (internal citation omitted)).
The plaintiffs have alleged that each Jane Doe has already suffered and continues to suffer
depression of varying degrees, anxiety, panic attacks, and social isolation. See Am. Compl. ¶¶
36, 45, 70, 82, 92. Furthermore, the plaintiffs allege that Jane Does 1 and 2 remain fearful that
they will encounter their assailant, Pls.’ Mem. at 4 (citing Am. Compl. ¶¶ 36, 70), and that Jane
Does 3, 4, and 5 continue to remain uncomfortable in the IIEP office and feel their relationships
(. . . continued)
find the plaintiffs face a risk of retaliatory physical or mental harm. See Cabrera, 307 F.R.D. at 7 n.10 (“[E]ven
without relying on the affidavit . . . , the Court finds that this factor favors anonymity.”).
18
with their coworkers and supervisors have been impaired, see id. at 4–5. Contrary to the
defendants’ assertions, the plaintiffs have shown a possibility of psychological harm from having
their identity disclosed.
In addition, the Court agrees that “[p]ublic disclosure of [the p]laintiffs’ private identities
will compound and exacerbate the psychological trauma they have already suffered, especially in
the age of the internet.” Id. at 5 (citing Cabrera, 307 F.R.D. at 7). Compelling the plaintiffs to
identify themselves by name on every court filing would make the plaintiffs’ names “indefinitely
available to the public,” Cabrera, 307 F.R.D. at 6–7, which, “especially in the Internet age, could
subject the plaintiff[s] to future unnecessary interrogation, criticism, or psychological trauma,”
id. Therefore, “[o]ut of grave concern that the Court could exacerbate any psychological issues
the plaintiff[s are] currently experiencing, the Court finds that this factor weighs in favor of
anonymity.” Id. at 7. 6
3. Whether the Plaintiff’s Privacy Interests Require the Protection of Pseudonyms in
Light of Age
Where victims are not minors, courts are generally less inclined to let the alleged victim
proceed in litigation under a pseudonym. See Yaman v. U.S. Dep’t of State, 786 F. Supp. 2d
148, 153 (D.D.C. 2011) (citing Doe #1 v. Von Eschenbach, Civ. Action No. 06-2131 (RMC),
2007 WL 1848013, at *2 (D.D.C. June 27, 2007)); see also De Amigos LLC, 2012 WL
13047579, at *2 (recognizing that children are more vulnerable than adults and so children need
more protection of their privacy interests). Here, the plaintiffs are not minors, nor were they
minors when the alleged incidents occurred. See Am. Compl. ¶¶ 24, 37, 46, 71, 83.
6
Even if the defendants’ arguments with respect to this factor are correct, “the Court places less weight on this
factor, because [the p]laintiffs have already satisfied the first factor and shown that this case involves a matter of a
sensitive and highly personal nature.” J.W., 318 F.R.D. at 200–01 (internal quotation marks and citation omitted).
19
The plaintiffs nevertheless argue that this factor “favors allowing [them] to pursue this
lawsuit as Jane Does” because they “have just reached the age of majority, and are young,
vulnerable college students.” Pls.’ Mem. at 5. Furthermore, the plaintiffs allege that
“[d]isclosure of their identities could have irreversible harm to their ability to get into graduate
schools and their career prospects.” Id. And, it is true that “young adult college student[s ]may
be more susceptible to scrutiny from peers than an older adult would be.” De Amigos LLC,
2012 WL 13047579, at *2. However, while “[a] young person who has attained legal adulthood
may have room to grow in maturity, [they] still [have] surpassed the age at which protected
status is typically accorded.” Sandberg, 319 F. Supp. 3d at 429. As the defendants correctly
note, without further evidence, the plaintiffs’ positions as to this factor is “pure speculation, and
is unsupported by any facts or logic.” Defs.’ Opp’n at 10. Therefore, this factor does not favor
the plaintiffs’ use of pseudonyms. See, e.g., Cabrera, 307 F.R.D. at 7 (“Where victims are not
minors, courts are generally less inclined to let the alleged victim proceed in litigation under a
pseudonym.”); Yaman, 786 F. Supp. 2d at 153 (concluding that a court is more likely to allow
pseudonymous litigation when it involves the privacy interests of minor children).
4. Whether the Action is Against a Governmental or a Private Party
In assessing whether pseudonymous litigation is appropriate, courts should also consider
whether an accused defendant is a governmental entity or a private party. This consideration is
“significant because governmental bodies do not share the concerns about reputation that private
individuals have when they are publicly charged with wrongdoing.” De Amigos LLC, 2012 WL
13047579, at *3 (internal quotation marks and citation omitted); see also Yaman, 786 F. Supp.
2d at 153 (finding action brought against private party weighs against anonymity). This factor
weighs against allowing the plaintiffs to use pseudonyms because the defendants are private
litigants, who presumably have concerns about their respective reputations.
20
The plaintiffs concede that “this factor may not support [their] use of pseudonyms.” Pls.’
Mem. at 5–6. Nevertheless, they claim that GW “is the second largest employer in the District of
Columbia” and that “GW is current[ly] being investigated by the Department of Education for
Title IX violations, such as those alleged in this case.” Id. And for these reasons, they argue that
“given its size as an institution and the mere facts that it is already under investigation for Title
IX violations,” there is a “lesser concern that its reputation will be damaged.” Id. at 6. The
Court is not persuaded by these arguments. Neither GW’s size, nor any other investigations that
may be taking place impact the potential for reputational damage from this litigation. Therefore,
this factor also weighs against the plaintiffs’ use of pseudonyms.
5. Whether Permitting the Use of Pseudonyms is Unfair to the Defendants
“Courts generally find little to no risk of unfairness to an accused defendant in sexual
assault cases where discovery does not appear to be inhibited by the plaintiff’s desire to proceed
anonymously.” Cabrera, 307 F.R.D. at 8 (collecting cases). The defendants argue that this
factor “strongly supports the [d]efendants’ position because of the public statements of [the
p]laintiffs’ counsel.” 7 Defs.’ Opp’n at 10. The defendants claim that allowing the plaintiffs to
proceed pseudonymously will make “witnesses [ ] likely to be reluctant to come forward . . . to
testify truthfully in ways that support the defendants[,]” id. at 11, and that they will be
“prejudiced . . . to the extent that [the d]efendants are limited in using [the p]laintiffs’ actual
names in third-party subpoenas, depositions, and interviews,” id. “But this is nothing more than
conjecture at best.” Cabrera, 307 F.R.D. at 8.
7
The defendants also argue that this factor supports their position because of the shrill content and vilification in the
Amended Complaint. Defs.’ Opp’n at 10. However, because the defendants do not sufficiently support this
argument with legal authority, the Court cannot conclude that the defendants are entitled to a favorable finding on
that basis.
21
The Court concludes that this factor weighs in favor of anonymity because it would not
be unfair to the defendants if the plaintiffs continued under pseudonyms for pretrial purposes.
The identities of the plaintiffs are already known to the defendants from the plaintiffs’ reports to
Renner, the ODECE, and other GW employees. See Am. Compl. ¶¶ 58, 97, 99, 101, 103, 107,
110, 113. Furthermore, the defendants would not be prejudiced during discovery. See De
Amigos LLC, 2012 WL 13047579, at *3 (finding any unfairness in conducting third-party
discovery “minimal” to the defendant where the plaintiff “already disclosed her identity” to the
defendant). The defendants have already started to conduct discovery and have collected email
correspondence involving two of the Jane Does. See Defs.’ 2d Mem., Exhibit (“Ex.”) A (Email
from Jane Doe 3 to GW’s Title IX office); id., Ex. B (Email from Jane Doe 3 to Director Chen);
id., Ex.C (Email from a Title IX Investigator to a Jane Doe).
The defendants rely on this Court’s decision in Cabrera in support of their argument. As
the defendants correctly state, this Court in Cabrera was not dissuaded from permitting the
plaintiff to proceed anonymously by “the concerns of unfair publicity . . . because (1) the
defendant’s counsel publicly responded to the allegations, and (2) the plaintiff had not ‘shared’
the details of the assault with more than “‘a few close friends and family members.’” Defs.’
Opp’n at 11 (quoting Cabrera, 307 F.R.D. at 9 n.14). As an initial matter, as in Cabrera, the
Court is “deeply concerned and troubled by the public statement made by the plaintiff[s’
counsel]—presumably with the plaintiff[s’] consent—to the media after the plaintiff[s] filed the
complaint.” Cabrera, 307 F.R.D. at 9. And, the defendants suggest that the absence of the two
“elements” found to be convincing in Cabrera should dissuade the Court from permitting the
plaintiffs to proceed anonymously. However, the defendants’ reliance on Cabrera to support this
argument is misguided because, contrary to their suggestion, both “elements” exist in the present
22
case. Although the “[d]efendants’ counsel has made no public comments,” Defs.’ Opp’n at 11,
the defendants themselves have responded in the media, see Defs.’ Opp’n, Ex. A (Washington
Post article); id. Ex. B (Washington Post article and three anonymous comments); id., Ex. C
(GW Hatchet article). The Court finds that by their statements to the media, the defendants have
vitiated their right to claim media coverage as unfairly prejudicial. In addition, the defendants
argue that unlike the plaintiff in Cabrera, who told no one about the assault “[a]side from a very
few close friends and family members,” Cabrera, 307 F.R.D. at 9 n.14, the plaintiffs here have
“freely shared their allegations with a group of eleven co-workers,” Defs.’ Opp’n at 11.
However, the “extent of [these] disclosures does not reel in the public at large, and these
disclosures . . . were necessary to help [the plaintiffs] cope and move on.” Cabrera, 307 F.R.D.
at 9 n.14 (citation omitted). Therefore, like in Cabrera, the Court is not dissuaded from
permitting the plaintiffs in this case to proceed anonymously because despite the media
coverage, the plaintiffs’ identities have not been revealed to the public by the media.
Accordingly, “the [plaintiffs’] interest[s] in maintaining [their] anonymity remains a valid
concern. Id. at 9. Because the defendants have not demonstrated that they will be prejudiced at
this stage of the litigation by permitting the plaintiffs to proceed anonymously, this factor weighs
in favor of allowing the Plaintiffs to proceed under the pseudonyms of Jane Does 1 to 5.
Accordingly, considering the sensitive and highly personal nature of this case; the risk of
psychological harm to the plaintiffs if the plaintiffs’ names are made public; and the minimal, if
any, unfairness that the plaintiffs’ anonymity would cause the defendants, the Court finds that the
plaintiffs have demonstrated a legitimate basis for proceeding anonymously and will permit the
five plaintiffs to proceed under the pseudonyms Jane Does 1 to 5 throughout the pretrial stages of
this case. However, “if [ ] a trial is ultimately needed to resolve th[e] dispute[s in this case], then
23
the defendant[s’] ability to receive a fair trial will likely be compromised if the Court allows the
plaintiff[s] to continue using [] pseudonym[s].” 8 Cabrera, 307 F.R.D. at 10 (footnote omitted)
(citation omitted). Therefore, “if this case proceeds to trial, the plaintiff[s] will not be allowed to
use [ ] pseudonym[s].” 9 Id. at 10 (citation omitted). Because the Court concludes that the
plaintiffs may proceed at this time under the pseudonyms Jane Does 1 to 5, the Court denies as
moot the defendants’ motion to dismiss for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), and turns to the defendants’ Rule 12(b)(6) motion.
B. The Defendants’ Motion to Dismiss
1. Count I – Hostile Work Environment in Violation of the D.C. Human Rights Act
The defendants move to dismiss the hostile work environment claims of only Jane Does 1
and 3, arguing that the plaintiffs’ allegations do not rise to the level of extreme conduct
necessary for viable hostile work environment claims. See Defs.’ 2d Mem. at 17–21. 10 The
Court disagrees and finds that the plaintiffs have pleaded sufficient allegations from which the
Court can plausibly infer that Jane Does 1 and 3 were subjected to a hostile work environment.
8
The Court’s reason for this position is that permitting parties to proceed to trial with the use of pseudonyms
potentially conveys overtly, or at least subliminally, the Court’s perception that significant harm has been sustained
in requiring the concealment of the plaintiffs’ true identities. And because the Court cannot in any way suggest to a
jury that it favors one side over the other, the possible advantage obtained through judicially authorized use of
pseudonyms cannot be condoned.
9
The Court emphasizes that granting the plaintiffs’ motion is necessarily a preliminary determination, requiring the
Court to make the decision based on the plaintiffs’ allegations and submissions to the Court. This ruling should not
be read to suggest that the Court may not reverse its position on anonymity should circumstances change, warranting
a different result. In that regard, counsel and the parties themselves should appreciate that the Court will not tolerate
attempts to gain an advantage through the use of the media, including social media. Therefore, should the parties,
their counsel, or others acting on their behalf, cause further unnecessary dissemination of public comment about this
case, the Court’s position on the plaintiffs’ anonymity, both at the pretrial and trial stages, may change.
10
The defendants do not dispute whether the plaintiffs have sufficiently pleaded the remaining elements of a hostile
work environment claim. See generally Defs.’ 2d Mem. at 15–21. Therefore, the Court will address only the
defendants’ argument regarding the fourth element of a hostile work environment claim—whether the alleged
conduct was severe and pervasive.
24
To establish a prima facie case for a hostile work environment claim, a plaintiff must
show:
(1) that [s]he is a member of a protected class, (2) that [s]he has been subjected to
unwelcome harassment, (3) that the harassment was based on membership in the
protected class, and (4) that the harassment is severe and pervasive enough to
affect a term, condition, or privilege of employment.
Campbell-Crane & Assocs., Inc. v. Stamenkovic, 44 A.3d 924, 933 (D.C. 2012) (quoting Daka,
Inc. v. Breiner, 711 A.2d 86, 92 (D.C. 1998)). 11 “When an employee sues an employer under the
[D.C. Human Rights Act] for the discriminatory actions of a fellow employee, the plaintiff-
employee must also present sufficient proof to hold the employer liable under the doctrine of
respondeat superior.” Daka, 711 A.2d at 92 n.15 (citing Howard Univ. v. Best, 484 A.2d 958,
982–83 (D.C. 1984)). “Although a plaintiff need not plead a prima facie case of hostile work
environment in the complaint, the ‘alleged facts must support such a claim.’” McKeithan v.
Boarman, 803 F. Supp. 2d 63, 69 (D.D.C. 2011) (quoting Middlebrooks v. Godwin Corp., 722 F.
Supp. 2d 82, 90–91 & n.6 (D.D.C. 2010)). In order to defeat a Rule 12(b)(6) motion, the
plaintiffs are “not required to allege each element of their claim in their Complaint,” Tucker v.
Howard Univ. Hosp., 764 F. Supp. 2d 1, 9–10 (D.D.C. 2011), but rather are required to “plead
factual content” that would allow the Court “to draw the reasonable inference that the
defendant[s] [are] liable for the misconduct alleged,” Iqbal, 556 U.S. at 678.
A work environment is considered “hostile” only when it is “permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” Oncale v.
11
In deciding the plaintiffs’ claims arising under the D.C. Human Rights Act, the Court, at times, will rely upon
decisions of the federal courts in Title VII cases because it is well-established that the D.C. Human Rights Act and
Title VII claims are analyzed using the same legal standards. See e.g., Elhusseini v. Compass Grp. USA, Inc., 578
F. Supp. 2d 6, 10 n.4 (D.D.C. 2008) (collecting cases).
25
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (internal quotation marks omitted)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In determining whether a work
environment is sufficiently “hostile,” the Court must look at the totality of circumstances,
including “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris, 510 U.S. at 23.
In support of their argument for dismissal, the defendants cite a number of cases from this
district, but those cases are either legally or factually inapposite. The defendants chiefly rely on
Tucker v. Johnson, 211 F. Supp. 3d 95 (D.D.C. 2016); Kennedy v. Nat’l R.R. Passenger Corp.,
139 F. Supp. 3d 48 (D.D.C. 2015); Lancaster v. Vance-Cooks, 967 F. Supp. 2d 375 (D.D.C.
2013); Bergbauer v. Mabus, 934 F. Supp. 2d 55 (D.D.C. 2013); Akonji v. Unity Healthcare, Inc.,
517 F. Supp. 2d 83 (D.D.C. 2007); and Carter v. Greenspan, 304 F. Supp. 2d 13, 25 (D.D.C.
2004), to support their claim that “[f]ar worse allegations have been found insufficient to state a
hostile-environment claim,” see Defs.’ 2d Mem. at 17–18. However, the defendants ignore a
critical difference between the appropriate standards governing motions to dismiss and motions
for summary judgment that courts are required to apply in evaluating whether an alleged hostile
work environment falls within the scope of the D.C. Human Rights Act. In fact, the district
courts in some of the cases cited by the defendants were not deciding motions to dismiss—which
only require that factual allegations be plausible such that they raise the “right to relief above the
speculative level,” Twombly, 550 U.S. at 555, but rather were resolving motions for summary
judgement, see Tucker, 211 F. Supp. 3d at 98–99; Kennedy, 139 F. Supp. 3d at 56; Bergbauer,
934 F. Supp. 2d at 68; Akonji, 517 F. Supp. 2d at 89; see also Lancaster, 967 F. Supp. 2d at 379
(applying motion for summary judgment standard although the defendant moved to dismiss, or in
26
the alternative, for summary judgment); Carter, 304 F. Supp. 2d at 17 (same), which are granted
only “if 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); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The remaining cases cited by the defendants as exemplars of
hostile work environment claims that have been dismissed at the motion to dismiss stage are
factually inapposite to this case. 12 The Court agrees with the plaintiffs that those cases were
dismissed because they “did not allege a specific, severe, and pervasive hostile work
environment,” Pls.’ Opp’n at 11, but instead “relied on vagaries, insinuations, and circumstances
that fell well below the allegations made by Jane Doe[] 1,” id. Here, in reviewing the totality of
the circumstances, the Court finds that the plaintiffs, at the motion to dismiss stage, have
satisfied their burden that the alleged conduct was sufficiently severe and pervasive such that it
created a hostile work environment. Cf. Holmes–Martin v. Leavitt, 569 F. Supp. 2d 184, 193
(D.D.C. 2008) (denying motion to dismiss hostile-work-environment claim because the plaintiff
12
See e.g., Walden v. Patient-Centered Outcomes Research Inst., 177 F. Supp. 3d 336, 344–45 (D.D.C. 2016)
(finding that merely receiving a negative performance evaluation, being assigned to a performance improvement
plan, receiving an increased workload, missing physical therapy, and getting paid-time off were insufficient to allege
the extreme conduct required to state hostile work environment claim under the D.C. Human Rights Act); McCaskill
v. Gallaudet Univ., 36 F. Supp. 3d 145, 156 (D.D.C. 2014) (concluding that “one confrontation with a coworker,
unspecified ‘abuse’ at meetings, and one threatening letter from a faculty member (about which nothing more is
alleged)” did not support the plaintiff’s contention that she was subjected to conduct “sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive working environment.” (citation
omitted)); Munro v. LaHood, 839 F. Supp. 2d 354, 365–66 (D.D.C. 2012) (holding that the plaintiff’s allegations
that he was “yelled at,” placed on a performance improvement plan, received unfavorable feedback, told he could
not submit any more assignments, and placed on a performance opportunity period were not “sufficient to establish
that these acts were severe or pervasive enough to constitute a hostile work environment”); Nurriddin v. Bolden, 674
F. Supp. 2d 64, 93–95 (D.D.C. 2009) (finding that allegations that management “passed him over for performance
awards, lowered his performance evaluations, unfairly reprimanded and criticized him, made disparaging remarks
about his EEO complaints, closely scrutinized his work, refused him a window cubicle, removed some of his duties,
[ ] denied his requests to travel or otherwise failed to provide support for his work with staffing and funding[,] . . .
opposed his career advancement[,] . . . denied many of his leave requests[,] and engaged in a series of discussions to
end his eligibility for workers' compensation and to terminate his employment at NASA” did not amount to
“intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of . . . employment
and create an abusive working environment” (citations omitted)).
27
“alleged some conduct in support of her claim” and noting that the plaintiff must plead facts that
“support,” not “establish,” that claim)
With respect to Jane Doe 1, 13 the Amended Complaint alleges several instances of
harassment based on her gender by Jones and Renner within a seven-month period. 14 First, it
states that in October 2017, Jones texted Jane Doe 1 at 2:18 a.m., stating, “oh my god you’re so
hot.” Am. Compl. ¶ 48. Jones thereafter allegedly invited Jane Doe 1 to come to his house and
after she declined, purportedly stated “maybe we could go out another time.” Id. ¶ 49. Second,
the Amended Complaint asserts that in December 2017 Jones attended Jane Doe 1’s performance
“over [her] protestations that he not,” id. ¶ 53, and then “again asked Jane Doe 1 on a date,” a
request that she also declined, id. ¶ 54. Third, it claims that Jones “openly discussed his sexual
exploits in the workplace.” Id. ¶ 64. The Amended Complaint also alleges that Renner, on
multiple occasions, “touch[ed] the small of Jane Doe 1’s back . . . without her permission,” id. ¶
61, and that the “touch was sexual and inappropriate,” id. Assuming the truth of the plaintiffs’
13
“The scope of [the] plaintiff[s’] hostile work environment claim based on gender . . . exclude[s] claims that bear
no correlation to [the] plaintiff[s’] gender.” Whorton v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d
334, 350 (D.D.C. 2013). Therefore, because, as framed in the Amended Complaint, the plaintiffs’ allegation that
“[f]ollowing [Jane Doe 1’s] initial complaint to Renner, Jones intentionally increased his hostility toward[] her,”
Am. Compl. ¶ 66, by “treating [her] with hostility and harass[ing] her as she quietly did her work,” id., and by
“disparag[ing] Jane Doe 1 to her supervisor,” id., have not in any way been tied to Jane Doe 1’s gender, the Court
will exclude the consideration of such allegation from Jane Doe 1’s hostile work environment claim based on her
gender. The Court will address this allegation, however, as part of Jane Doe 1’s retaliation claim based on a hostile
work environment, infra.
14
The Court generally agrees with the defendants that comments made by Jones or Renner “outside Jane Doe 1’s
presence, or directed at others, do not support a hostile-environment claim.” Defs.’ 2d Mem. at 21; see also
Clemmons v. Acad. for Educ. Dev., 107 F. Supp. 3d 100, 117 (D.D.C. 2015) (Although “second-hand gossip may be
. . . unpleasant to hear, [ ] it lacks the severity or pervasiveness necessary to affect the terms or conditions of
employment and to give rise to an environment that is subjectively and objectively hostile.”); Rattigan v. Gonzales,
503 F. Supp. 2d 56, 78–81 (D.D.C. 2007) (holding that comments made outside the plaintiff’s presence did not give
rise to an actionable hostile work environment); Nurriddin v. Goldin, 382 F. Supp. 2d 79, 108 (D.D.C. 2005)
(“When [ ] statements are not made directly to a plaintiff, generally a hostile environment cannot be established.”)
aff’d sub nom. Nurriddin v. Griffin, 222 F. App’x 5, 5–6 (D.C. Cir. 2007); Lester v. Natsios, 290 F. Supp. 2d 11, 31
(D.D.C. 2003) (“Conduct directed at others rather than at [the] plaintiff . . . is less indicative of a hostile work
environment.”). However, even if the Court does not consider the allegations regarding what Jane Doe 1
experienced second-hand, the Court nonetheless finds that the plaintiffs’ remaining allegations with respect to Jane
Doe 1’s hostile work environment claim—which must be accepted as true—rise to the level of severe and pervasive
treatment sufficient to alter the conditions of Jane Doe 1’s employment.
28
allegations and viewing them in the light most favorable to the plaintiffs as the Court is required
to do, the Court finds that these allegations plausibly support Jane Doe 1’s claim that Jones’s and
Renner’s conduct was “sufficiently severe or pervasive to alter the conditions of the [Jane Doe
1’s] employment and create[d] an abusive working environment.” Harris, 510 U.S. at 21
(internal quotation marks and citation omitted). Accordingly, the Court declines to dismiss Jane
Doe 1’s hostile work environment claim at this stage of the proceedings.
With respect to Jane Doe 3, the Amended Complaint alleges that Renner subjected Jane
Doe 3 to a hostile work environment by (1) touching her “arm or shoulder,” Am. Compl. ¶ 73;
(2) “frequently [ ] reach[ing] over [ ] [her] to type on her keyboard while she remain[ed] seated,”
id.; (3) “routinely comment[ing] on [ ] [her] clothing,” id.; (4) dismissing “Jane Doe 3’s
recommendations in front of the staff” and instead “gave preferential treatment to [her male] co-
team leader,” id. ¶ 75; and (5) on one occasion, asking “Jane Doe 3 when she intended to get
married and have kids,” id. ¶ 76. 15 While the Court notes that these allegations are concededly
neither specific nor severe, the plaintiffs allege a series of incidents that, considered together and
accepted as true, are “sufficiently continuous and concerted to be considered pervasive.” Akonji,
517 F. Supp. 2d at 98 (citing Carrero v. N.Y.C. Housing Auth., 890 F.2d 569, 577 (2d Cir.
1989)); see also Burrell v. Shepard, 321 F. Supp. 3d 1, 13 (D.D.C. 2018). Therefore, the Court
concludes that Renner’s conduct was sufficiently pervasive to produce a “constructive alteration
in the terms or conditions of [Jane Doe 3’s] employment,” Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 752 (1998); see also Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014)
(explaining that severity and pervasiveness “are complementary factors and often go hand-in-
hand, but a hostile work environment claim c[an] be satisfied with one or the other”).
15
For the reasons already discussed above, the Court will only consider the allegations that Jane Doe 3 experienced
first-hand and those that are sufficiently tied to Jane Doe 3’s gender.
29
Accordingly, the Court must deny the defendants’ motion to dismiss with respect to Jane Doe 3’s
hostile work environment claim as well.
2. Count II – Retaliation in Violation of the D.C. Human Rights Act
The D.C. Human Rights Act provides:
It shall be an unlawful discriminatory practice to coerce, threaten, retaliate
against, or interfere with any person in the exercise or enjoyment of, or on
account of having exercised or enjoyed, or on account of having aided or
encouraged any other person in the exercise or enjoyment of any right granted or
protected under this chapter.
D.C. Code § 2-1402.61(a). To establish a prima facie case of retaliation under the D.C. statute, a
plaintiff must show “(1) that [s]he engaged in a statutorily protected activity; (2) that [s]he
suffered a materially adverse action by h[er] employer; and (3) that a causal link connects the
two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). As another member of this Court
has explained:
[T]here is a difference between “adverse actions” that support a claim for
discrimination and “materially adverse actions” that support a claim for
retaliation. Unlike discriminatory actions, retaliatory actions need not be
employment-related or even occur in the workplace, nor must they result in “a
materially adverse change in the terms or conditions of one’s employment.”
Nonetheless, the alleged retaliatory action must produce “an injury or harm.” The
injury or harm must be “material,” meaning that it could “dissuade a reasonable
worker from making or supporting a charge of discrimination.”
Nurriddin v. Bolden, 40 F. Supp. 3d 104, 116, 2014 WL 1648517, at *6 (D.D.C. 2014) (internal
alterations and citations omitted); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 57 (2006). Although actions that result in objectively tangible harm are certainly more likely
to dissuade a reasonable worker from pursuing a claim than “petty slights, minor annoyances,
and simple lack of good manners,” Burlington N., 548 U.S. at 68, “the significance of any given
act of retaliation,” and therefore its potential to deter discrimination complaints, “will often
depend upon the particular circumstances,” id. at 69. Thus, under certain circumstances, an
30
action may be materially adverse even if no tangible harm results. See Mogenhan v. Napolitano,
613 F.3d 1162, 1165–66 (D.C. Cir. 2010) (applying Title VII retaliation claim standard to an
Americans with Disabilities Act claim).
To establish a causal connection between the engagement in a protected activity and the
retaliatory action—in the absence of direct evidence—a plaintiff may show “that the employer
had knowledge of the employee’s protected activity, and that the discriminatory [or retaliatory]
personnel action took place shortly after that activity.” Cones v. Shalala, 199 F.3d 512, 521
(D.C. Cir. 2000). While mere temporal proximity between an employee’s protected activity and
the retaliatory action can sometimes raise an inference of causation, such proximity must be
“very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (noting that the temporal
connection must be “very close”: a three- or four-month period between an adverse action and
protected activity is insufficient to show a causal connection, and a twenty-month period
suggests “no causality at all”). Although “neither the Supreme Court nor the [this Circuit] has
established a bright-line three-month rule,” Hamilton v. Geithner, 666 F.3d 1344, 1357–58 (D.C.
Cir. 2012), this Circuit has found that such a gap between the protected activity and the adverse
employment action negates the temporal proximity needed to prove causation, see Taylor v.
Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009) (rejecting interval of two and a half months as
establishing temporal proximity “on the record [in this case]”).
Although the Amended Complaint contains only one count of retaliation, within that
count, the plaintiffs allege that they suffered four discrete acts of retaliation, see Am. Compl. ¶
123 (“[The d]efendants retaliated against [the p]laintiffs by forcing them to work from home,
disciplining them, reducing their hours, and terminating them from their employment with
GW.”), and also that they were subjected to a hostile work environment as retaliation for
31
engaging in protected activity, 16 see id. ¶ 124 (alleging that “[t]he harassing, reckless, wrongful,
willful[,] and malicious treatment of the [p]laintiffs . . . is retaliation with[in] the meaning of the
D.C. Human Rights Act.”). The defendants challenge the plaintiffs’ retaliation claims on the
basis that the alleged actions do not constitute materially adverse actions. Defs.’ 2d Mem. at 23–
28. Because “each retaliatory adverse [ ] decision constitutes a separate actionable ‘unlawful
employment practice,’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), the
Court will analyze each alleged act of retaliation in turn to determine whether any of the acts
amounts to a materially adverse action sufficient to state a retaliation claim.
a. Requests for the Plaintiffs to Work from Home
The plaintiffs assert that during their March 9, 2018 meeting with Renner regarding
Jones’s behavior, Renner “asked the [p]laintiffs to work from home,” Am. Compl. ¶ 107, which
they contend constituted retaliation, see Pls.’ Opp’n at 18–20, 23. The defendants argue in
response that “even if [the plaintiffs] had been required to work from home temporarily . . . , that
would not be . . . a ‘materially adverse action,’ given that there is no allegation that the
[p]laintiffs’ duties, compensation, or benefits would have changed in any way.” 17 Defs.’ 2d
Mem. at 23 (citations omitted). The Court agrees with the defendants that asking an employee to
16
The plaintiffs contend that the defendants’ “retaliation against the [p]laintiffs has continued since the filing of this
lawsuit,” Pls.’ Opp’n at 26, because the “[d]efendants are opposing [the p]laintiffs’ efforts to proceed anonymously
in this lawsuit,” id. However, this argument has no merit because the defendants’ filing a motion to dismiss and
opposition of the plaintiffs’ motion for leave to proceed anonymously can be attributed to a “legitimate non-
discriminatory reason for its actions”—exercising their rights pursuant to the Federal Rules of Civil Procedure and
this Court’s Local Rules to file a motion to dismiss and an opposition to any motions filed by the plaintiffs. See
Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). “Such a legitimate reason breaks the causal
connection between the first two elements” and defeats any retaliation claim that the plaintiffs are suggesting.
Peters v. District of Columbia, 873 F. Supp. 2d 158, 201 (D.D.C. 2012).
17
The Court notes that the plaintiffs need not allege, as the defendants suggest, that the plaintiffs’ “duties,
compensation, or benefits would have changed in any way.” Defs.’ 2d Mem. at 23. “The concept of ‘adverse
action’ in the retaliation context is broader than in the discrimination context and can encompass harms unrelated to
employment or the workplace ‘so long as “a reasonable employee would have found the challenged action
materially adverse.”’” Franklin v. Potter, 600 F. Supp. 2d 38, 66 (D.D.C. 2009) (quoting Burlington N., 548 U.S. at
68).
32
work from home—without more—is not an adverse action per se. 18 See id. at 23; cf. Hornsby v.
Watt, 217 F. Supp. 3d 58, 66–67 (D.D.C. 2016) (holding that “the decision not to reinstate [the
p]laintiff from paid administrative leave immediately . . . was not a materially adverse action
because it did not cause him any objectively tangible harm”); Walker v. Johnson, 501 F. Supp.
2d 156, 172 (D.D.C. 2007) (finding that being sent home on paid administrative leave is not an
adverse action because the plaintiff could not show objectively tangible harm resulting from the
paid leave); see also Franklin v. Potter, 600 F. Supp. 2d 38, 72 (D.D.C. 2009) (finding that
“being sent home without pay . . . would satisfy a prima facie case for a materially adverse
action”).
The plaintiffs have alleged no “objectively tangible harm” that they specifically suffered
by being requested to work from home. 19 Cf. Hornsby, 217 F. Supp. 3d at 67 (“Because a period
of paid administrative leave does not, in and of itself, constitute a materially adverse action, [the
p]laintiff must allege specific, additional facts from which the Court could infer that this short
extension of his paid administrative leave caused him objectively tangible harm.”). Without
more, the Court cannot conclude that a “reasonable employee would have found the challenged
action materially adverse.” Id. at 68. Accordingly, the Court concludes that the request for the
plaintiffs to work from home does not rise to the level of an adverse employment action as
18
The plaintiffs claim that “the forced relocation is by itself a material adverse action.” Pls.’ Opp’n at 20 (citing
Loya v. Sebelius, 840 F. Supp. 2d 245, 253 (D.D.C. 2012)). However, in addition to the record not supporting their
characterization that they were forced to work from home, the plaintiffs, unlike the plaintiff in Loya, fail to allege
how being asked to work from home injured them.
19
Although, with respect to Jane Doe 1, the plaintiffs argue in their opposition to the motion to dismiss that
“[f]orcing Jane Doe 1 to work from home . . . was a materially adverse employment action” because it “isolated her
from her coworkers, interfered with the performance of her job responsibilities, and reflected poorly on her job
performance with her faculties supervisors,” Pls.’ Opp’n at 19 (citing Am. Compl. ¶ 70), they fail to allege in their
Amended Complaint that these harms were specifically caused by Renner’s request that Jane Doe 1 work from
home, which is fatal to Jane Doe 1’s claim, see St. Francis Xavier Parochial Sch., 117 F.3d at 624 (noting that the
Court, in ruling on a Rule 12(b)(6) motion to dismiss, “may consider only the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial
notice.”).
33
contemplated by the D.C. Human Rights Act because they fail to allege any facts supporting the
inference that this request resulted in any objectively tangible harm. Therefore, the Court must
grant the defendants’ motion to dismiss the plaintiffs’ retaliation claim based on Renner’s
request that the plaintiffs work from home.
b. Disciplinary Action
The defendants also argue that the plaintiffs do not allege that they were ever actually
disciplined. See Defs.’ 2d Mem. at 23–28. The plaintiffs do not specifically identify the actions
that they view as the retaliatory disciplinary actions taken against them by the defendants;
however, they do argue in their opposition that a number of Renner’s statements that “attempted
to discourage Jane Doe 3 and the [p]laintiffs from pursuing their complaints of harassment,” Am.
Compl. ¶ 112, were materially adverse, see Pls.’ Opp’n at 18, 21, 25. Although it is unclear
whether the plaintiffs view these statements as the retaliatory disciplinary actions taken against
them, the Court will construe them as such and address each alleged statement in turn.
First, the plaintiffs allege that on December 19, 2017, after Jane Doe 1 filed a complaint
with Renner about “Jones’[s] behavior toward her[,] . . . Renner responded, ‘sometimes you need
to work with people that you don’t necessarily get along with.’” Am. Compl. ¶ 58. This
statement, which was allegedly made by Renner, an individual in a supervisory position, in
response to Jane Doe 1 divulging that “she felt unsafe working with Jones,” id., was not only
insensitive but also dismissive and would dissuade a reasonable person who was experiencing
sexually harassing behavior from complaining again. Consequently, the Court concludes that, in
light of the circumstances in which it was made, a reasonable jury could infer that this statement
suffices to show that Jane Doe 1 suffered an adverse employment action. See Burlington N., 548
U.S. at 69 (“[T]he significance of any given act of retaliation will often depend upon the
34
particular circumstances. Context matters.”); see also Oncale, 523 U.S. at 81–82 (“The real
social impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships[.]”).
Second, the plaintiffs allege that on February 23, 2018, during a meeting with Jane Doe
2, “Renner told [her] that to ‘follow-up’ on her complaint about Jones, there was nothing [he]
could do because his ‘hands were tied.’” Am. Compl. ¶ 101. The plaintiffs represent that Jane
Doe 2 requested that Renner fire Jones, but Renner allegedly repeatedly responded that his
“hands were tied” and that she “should work from home and go to therapy.” Id. Although
Renner’s purported instruction that Jane Doe 2 “go to therapy,” id., is analogous to receiving a
“counseling letter,” which this Circuit has found insufficient to constitute an adverse
employment action if it contains “no abusive language, but rather job-related constructive
criticism,” Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008), the circumstances in
this case require a different outcome. Renner’s statement in response to Jane Doe 2 complaining
that “she had to work beside the man [who] raped her,” Am. Compl. ¶ 101, was not constructive
in any manner, but rather, as the plaintiffs argue, “demeaning, insulting, and ridiculing,” Pls.’
Opp’n at 21. As a result, the Court finds that this statement, at the motion to dismiss stage, is
sufficient to support an inference that the statement would deter a reasonable person from
complaining of discrimination.
Third, the plaintiffs allege that on March 30, 2018, Renner told Jane Doe 3 that the
plaintiffs were “spreading misinformation” and “making the situation worse.” Am. Compl. ¶
112. The plaintiffs argue that Renner’s response of “accus[ing] the [p]laintiffs,” Pls.’ Opp’n at
25, “discouraged [them] from pursuing their complaints of harassment,” id. The Court agrees
with the plaintiffs and concludes that they have sufficiently pleaded that Renner’s accusatory
35
response could dissuade a reasonable person from complaining of discrimination. However,
because the plaintiffs do not allege that Jane Does 1, 2, 4, or 5 had knowledge of Renner’s
statement to Jane Doe 3 that the plaintiffs were “spreading misinformation” and “making the
situation worse,” Am. Compl. ¶ 112, the Court finds that these statements can be considered to
have been a materially adverse action only with respect to Jane Doe 3, who was the only plaintiff
with knowledge of Renner’s statements. See id.
Lastly, the plaintiffs argue that “GW retaliated against Jane Doe 4 by trying to silence
her,” Pls.’ Opp’n at 25 (citing Am. Compl. ¶ 4), and that Renner ignored Jane Doe 5’s
complaints of “being raped by Jones, harassed, and ridiculed in the workplace, . . . and silenced
the female complainants,” Pls.’ Opp’n at 25 (citing Am. Compl. ¶ 92). However, the plaintiffs
fail to allege specific facts regarding how Renner specifically attempted to silence Jane Does 4
and 5. Instead, the Amended Complaint makes broad conclusory allegations that the defendants
attempted to silence the plaintiffs, see Am. Compl. ¶ 4 (“GW retaliated against the [p]laintiffs for
complaining of the sexually hostile workplace and attempted to silence them”), and “the female
complainants,” 20 Am. Compl. ¶ 91 (“IIEP staff members have complained about Jones to Renner
since March 2017, but Renner ignored those complaints and silenced the female complainants.”).
Therefore, because the plaintiffs have failed to sufficiently plead facts in the Amended
Complaint that support the claim that Renner attempted to silence Jane Does 4 and 5, the Court
concludes that the allegation that the defendants disciplined Jane Does 4 and 5 in retaliation for
lodging complaints against Jones cannot form the basis of a retaliation claim. Accordingly, the
20
It is unclear from the Amended Complaint whether “female complainants” refers to the plaintiffs or to women
other than the plaintiffs. However, even if the Court construes all reasonable inferences in the light most favorable
to the plaintiffs, as it must, this allegation would nevertheless be insufficient to support the claims of Jane Does 4
and 5 because it fails to show how Renner specifically attempted to silence them.
36
Court must grant the defendants’ motion to dismiss the retaliation claims of Jane Does 4 and 5
that the defendants disciplined them in retaliation for complaining about Jones’s behavior.
c. Reduction of Hours
The defendants also move to dismiss the plaintiffs’ claim that the defendants retaliated
against the plaintiffs for filing complaints against Jones by reducing their hours of work. See
Defs.’ 2d Mem. at 23–28. As an initial matter, the plaintiffs do not allege any facts that would
support their claim that the hours of Jane Does 2, 4, and 5 were actually reduced. Therefore, the
Court grants the defendants’ motion to dismiss the retaliation claims of Jane Does 2, 4, and 5
based on the allegation that the defendants reduced their hours and addresses only the plaintiffs’
retaliation claims pertaining to Jane Does 1 and 3 as to this specific alleged adverse action. With
respect to Jane Doe 1, the plaintiffs allege that “[f]ollowing [Jane Doe 1’s] initial complaint to
Renner, Jones deliberately and intentionally increased his hostility” toward Jane Doe 1 and
“disparaged [her] to her supervisor, . . . [who] told her that she was not allowed to work the event
that evening even though the event was understaffed,” Am. Compl. ¶ 66, and that “[t]his was all
in retaliation for Jane Doe 1’s complaint to Renner,” 21 id. The defendants argue that this
allegation is “insufficient to support [Jane Doe 1’s] retaliation claim,” Defs.’ 2d Mem. at 25,
because the reason Jane Doe 1 was told that “she was not allowed to work the event that evening
even though the event was understaffed,” Am. Compl. ¶ 66, was “Jones’[s] disparagement on
February 1, 2018, and not Jane Doe 1’s prior report to [ ] Renner on December 19, 2017 of [ ]
Jones’[s] alleged misconduct,” id. The Court disagrees with the defendants that “the [Amended]
21
The defendants argue that the allegation that “[t]his was all in retaliation for Jane Doe 1’s complaint to Renner,”
Am. Compl. ¶ 66, “contradicts the earlier part of the paragraph (attributing the change to [ ] Jones’[s]
disparagement), and is a conclusory, ‘threadbare’ allegation that is insufficient to support the retaliation claim,”
Defs.’ 2d Mem. at 25 n.10 (citation omitted). However, the plaintiffs’ legal conclusion is supported by its preceding
factual allegations, of which the Court assumes the veracity, as it must, and determines that they plausibly give rise
to an entitlement to relief. See Iqbal, 556 U.S. at 679.
37
Complaint itself indicates that [the] retaliation was not the ‘but for’ cause of the work
assignment.” 22 Defs.’ 2d Mem. at 25. Construing, as it must, all reasonable inferences in the
light most favorable to the plaintiffs, the Court finds that these allegations are sufficiently
plausible to establish that Jane Doe 1 suffered an adverse employment action when Renner did
not allow Jane Doe 1 to work the evening event. 23 See Burlington N., 548 U.S. at 72.
With respect to Jane Doe 3, the defendants argue that although she alleges that she chose
to “cut back significantly on her hours,” Am. Compl. ¶ 81, she “does not allege that the
[d]efendants required or asked her to do so,” Defs.’ 2d Mem. at 23. The Court agrees with the
defendants. The plaintiffs allege that “the work environment grew more hostile for Jane Doe 3
after she became an advocate for the other female workers,” Pls.’ Opp’n at 24 (citing Am.
Compl. ¶ 81), and “[a]s a result, she significantly cut back her hours at the office, which
adversely affected her work performance as she was unable to interact with her team directly or
her faculty supervisor and prevented her from performing her job duties, thereby impacting the
terms and conditions of her employment,” id. (internal quotation marks and citation omitted).
Based on these allegations, the defendants are correct that Jane Doe 3, by independently reducing
the hours she decided to work, did not suffer a “materially adverse action by h[er] employer.”
Jones, 557 F.3d at 677 (emphasis added). Accordingly, with respect to Jane Doe 3, the plaintiffs
22
The Court also disagrees with the defendants that “the [Amended] Complaint alleges that an unnamed
‘supervisor’ (not necessarily [ ] Renner) did not allow her to work,” and that the complaint “cannot be rewritten to
state that the cause of the work non-assignment was retaliation by [ ] Renner,” Defs.’ Reply at 11. Construing, as it
must, all reasonable inferences in the light most favorable to the plaintiffs, the Court finds that the unnamed
supervisor could have been Renner.
23
The defendants also argue that “the [Amended] Complaint’s factual allegations do not present any ‘plausible’
basis for the conclusory speculation that [ ] Jones knew” of Jane Doe 1’s initial report to Renner, Defs.’ 2d Mem. at
26, and that consequently, “as a matter of law[,] he could not have retaliated for Jane Doe 1’s protected action when
he was unaware of it,” id. However, the defendants are mistaken in arguing that “Jones could not have retaliated for
Jane Doe 1’s protected action when he was unaware of it,” id., because the plaintiffs maintain that “after Jane Doe 1
complained to Renner, Renner [and not Jones] retaliated against Jane Doe 1 by telling ‘her that she was not allowed
to work the event that evening,” Pls.’ Opp’n at 18 (emphasis added). Therefore, this component of the defendants’
argument in misguided.
38
have failed to plead sufficient facts from which a reasonable fact finder could “draw [a]
reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
In sum, the Court concludes that the plaintiffs have not pleaded sufficient facts to state a
claim for retaliation under the D.C. Human Rights Act with respect to Jane Does 2, 3, 4, and 5
based on the allegation that the defendants reduced their hours, but that a reasonably jury could
find that the defendants’ refusal to allow Jane Doe 1 to work the evening event constituted a
materially adverse action taken in retaliation for her protected activity. Therefore, the motion to
dismiss is granted with respect to the retaliation claims of Jane Does 2, 3, 4, and 5 that the
defendants retaliated against them by reducing their hours, but is denied as to Jane Doe 1.
d. Creation of a Hostile Work Environment
This Circuit has recognized that a hostile work environment can amount to a materially
adverse action and therefore can satisfy the second element of a retaliation claim. See Baird v.
Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011); Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.
Cir. 2006). To prevail on a retaliation claim based on a hostile work environment, a plaintiff
must show that the defendant subjected the plaintiff to “discriminatory intimidation, ridicule, and
insult” of such “sever[ity] and pervasive[ness] [as] to alter the condition of [a person’s]
employment and create an abusive working environment.” Harris, 510 U.S. at 21 (citation
omitted). A plaintiff may rely on discrete acts that “may not be actionable on [their] own” but
become actionable due to their “cumulative effect” to establish the existence of a hostile work
environment. See Morgan, 536 U.S. at 122. However, the constituent acts must be adequately
linked and collectively meet the required hostile work environment standard (i.e., they must be
sufficiently severe or pervasive). See Baird, 662 F.3d at 1251.
39
The plaintiffs allege that the “harassing, reckless, wrongful, willful and malicious
treatment . . . by the [d]efendants solely because [they] made complaints of sexual harassment
and objected to discriminatory conduct . . . is retaliation with the meaning of the D.C. Human
Rights Act.” 24 Am. Compl. ¶ 124. They further assert that “GW took no remedial measures in
response to [the p]laintiffs’ complaints,” id. ¶ 126, and that “[i]nstead[,] the hostile environment
continued,” id. The defendants, in response, argue that the plaintiffs have failed to allege that
they were subjected to increased hostility after they complained about Jones’s behavior to
Renner. See Defs.’ 2d Mem. at 24–25, 27, 28. They also argue that, with respect to Jane Does 1,
2, and 3, the plaintiffs have failed to show that Jones had knowledge of the plaintiffs’ protected
activity in order to establish a causal connection for a retaliation claim. See id. at 24–25, 28; see
also Defs.’ Reply at 11–12. The Court disagrees with the defendants and finds that the plaintiffs
have pleaded sufficient factual allegations for a reasonable jury to infer that the plaintiffs were
subjected to a hostile work environment in retaliation for complaining about Jones’s alleged
inappropriate behavior.
As an initial matter, the Court must first address the defendants’ argument that the
plaintiffs, with respect to Jane Does 1, 2, and 3, have failed to show that Jones had knowledge of
their protected activity in order to establish a causal connection for a retaliation claim. See id. at
24–25, 28; see also Defs.’ Reply at 11–12. Because, at the motion to dismiss stage, the hurdle of
alleging a causal link is not a high one, see Jones v. Bernanke, 685 F. Supp. 2d 31, 40 (D.D.C.
24
The case law of this Circuit is unclear as to whether a plaintiff is required to plead a claim of retaliatory hostile
work environment separate and apart from a hostile work environment claim or retaliation claim. Compare Brooks,
748 F.3d at 1278–79 (refusing to consider the merits of the plaintiff’s “discrete-acts retaliation claim” because the
plaintiff “neglected to allege [such] claim in her complaint” and “conflated the purported discrete retaliation claim
with a retaliatory hostile work environment claim—two distinct theories of relief”), with Hussain, 435 F.3d at 366
(evaluating whether the plaintiff’s allegations sufficed to show that he was subjected to a hostile work environment
that amounted to retaliation although the complaint did not separately allege such a claim). Nevertheless, the Court,
construing all inferences in favor of the plaintiffs, as it is required to do, will consider the plaintiffs’ retaliation claim
based on the creation of a hostile work environment.
40
2010), the Court finds that all of the plaintiffs have satisfied their burden by alleging that they
were subjected to “harassing, reckless, wrongful, willful and malicious treatment . . . by the
[d]efendants solely because [they] made complaints of sexual harassment and objected to
discriminatory conduct.” Am. Compl. ¶ 124 (emphasis added); see also Rochon v. Gonzales,
438 F.3d 1211, 1220 (D.C. Cir. 2006) (observing that “in order to survive a motion to dismiss,
‘all [the] complaint has to say’ is ‘the Government retaliated against me because I engaged in
protected activity’”) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir.
2000)); accord Beckham v. Nat’l R.R. Passenger Corp., 590 F. Supp. 2d 82, 89 (D.D.C. 2008)
(denying the defendant’s motion to dismiss a retaliation claim because the plaintiff “satisfied her
burden by alleging that she was denied benefits because of her opposition to actions made
unlawful by Title VII”); Vance v. Chao, 496 F. Supp. 2d 182, 187 (D.D.C. 2007) (denying the
defendant’s motion to dismiss because “[a]t this early stage of the proceedings, [the] plaintiff can
meet her prima facie burden simply by alleging that the adverse actions were caused by her
protected activity”). As to each Jane Doe, the Court will only consider the alleged adverse
actions taken after the respective date when she first complained about Jones’s behavior since
“no materially adverse actions taken before that date could have been because of having engaged
in protected activity.” Whorton v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d 334,
351 (D.D.C. 2013) (emphasis in original).
The Court next addresses the defendants’ argument that “[c]ourts have [ ] only treated a
hostile environment as retaliatory if its intensity or character changes after protected activity.”
Defs.’ Reply at 10. The defendants rely on a number of cases to suggest that in order to establish
a retaliation claim based on a hostile work environment, the plaintiffs must allege “that the work
environment became ‘more hostile’ toward the plaintiff[s] after [their] complaints,” Defs.’ 2d
41
Mem. at 25 (citing Peters v. District of Columbia, 873 F. Supp. 2d 158, 202 (D.D.C. 2012)); see
also Defs.’ Reply at 10 (citing Hussain, 435 F.3d at 366; Jones v. District of Columbia, 314 F.
Supp. 3d 36, 68 (D.D.C. 2018); Hammel v. Marsh USA Inc., 206 F. Supp. 3d 219, 239 (D.D.C.
2016)), and that “[i]f it were otherwise, a claim for retaliation would lack the required ‘causal
connection’ and ‘motivational link’ between the protected activity and the materially adverse
action that ‘is the very essence of a retaliation claim,’” id. However, these cases cannot be read
to suggest that a retaliation claim based on a hostile work environment requires a showing that
the work environment became more hostile as a result of an employee’s protected activity. In
addition, contrary to the defendants’ argument, a claim for retaliation would not lack the required
causal connection so long as the plaintiffs can prove that the “protected activity was the but-for
cause of the alleged adverse action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362
(2013). Therefore, the Court concludes that the plaintiffs need not show that they were subjected
to increased hostility, as the defendants suggest, but rather must show only that the discrete “acts
giving rise to a hostile work environment claim [ ] collectively meet the independent
requirements of that claim (i.e., be ‘sufficiently severe or pervasive,’ and [ ] [are] adequately
connected to each other (i.e., ‘all acts which constitute the claim are part of the same unlawful
employment practice,’ as opposed to being an array of unrelated discriminatory or retaliatory
acts.” Baird, 662 F.3d at 1252 (citations omitted). And at the motion to dismiss stage in this
case, the Court finds that the plaintiffs have met their burden and shall address in turn the
allegations supporting each Jane Doe’s claim of retaliation based on a hostile work environment.
The plaintiffs allege a number of instances from which the Court can reasonably infer
that the plaintiffs were subjected to a hostile work environment after their complaints were
lodged. As to Jane Doe 1, the Amended Complaint alleges that “[f]ollowing [Jane Doe 1’s]
42
initial complaint to Renner, Jones deliberately and intentionally increased his hostility towards
her.” Am. Compl. ¶ 66. More specifically, the plaintiffs claim that Jones “treat[ed] Jane Doe 1
with hostility and harass[ed] her as she quietly did her work,” id., and “disparage[ed] Jane Doe 1
to her supervisor,” id. Because the plaintiffs have “alleged some conduct in support of [Jane Doe
1’s] claim,” Holmes–Martin v. Leavitt, 569 F. Supp. 2d 184, 193 (D.D.C. 2008), and because the
plaintiffs do not claim to have exhaustively alleged all of the instances of Jones’s hostility
toward Jane Doe 1, see Am. Compl. ¶ 66 (using the phrase “[f]or instance,” which signals an
example), the Court finds that the plaintiffs have sufficiently pleaded facts that support Jane Doe
1’s retaliation claim based on a hostile work environment at the motion to dismiss stage.
The plaintiffs also sufficiently allege a retaliation claim based on a hostile work
environment that is plausible on its face with respect to Jane Does 2, 4, and 5. The plaintiffs
allege that Jones had a “sexual rating system of the women he raped,” Am. Compl. ¶ 32,
“publicly announced to the IIEP staff members his sexual rating of the female coworkers from
best to worse,” id., and “described one of the women he raped as ‘a dead fish because she was so
drunk,’” id. In addition, the plaintiffs allege that Jones “would frequently brag in the workplace
about his sexual exploitation of the women in the workplace,” id. ¶ 34, that he “bragged about
the number of partners (e.g. victims) he had,” id., and that he “would publicly torment and
degrade his victims,” id. Specifically, with respect to Jane Doe 2, the plaintiffs allege that “Jones
told Jane Doe 2’s faculty supervisors and her coworkers” that the two had sex. Id. ¶ 33. As to
Jane Doe 4 in particular, the plaintiffs allege that “after raping Jane Doe 4, Jones bragged in the
workplace about his encounter to Jane Doe 4’s coworkers,” id. ¶ 44, that he “made humiliating,
derogatory sexual comments about Jane Doe 4 to her coworkers and the faculty members
working in the IIEP,” id., and that he “publicly ranked Jane Doe 4 among the other females in
43
the office that he had victimized,” id. Lastly, specifically concerning Jane Doe 5, the Amended
Complaint alleges that “since Jane Doe 5 complained to Renner about Jones’[s] assault and
harassing conduct, Renner has viewed Jane Doe 5 in a sexualized manner[,] which impacted her
ability to perform her job.” Id. ¶ 92. Concededly, these factual allegations regarding the
existence of a retaliatory hostile work environment lack specificity as to when certain events
occurred, and critically, whether certain events occurred after Jane Does 2, 4, and 5 complained.
Nevertheless, the Court is required to construe the facts in the light most favorable to the
plaintiffs and grant all reasonable inferences arising from those facts. See Hettinga, 677 F.3d at
476. The Court, accordingly, infers that these incidents occurred after Jane Does 2, 4, and 5
lodged their respective complaints. Thus, the Court finds that, when considered in the aggregate,
these allegations are sufficiently “severe” and “pervasive” to move beyond “the ordinary
tribulations of the workplace,” see Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998),
and concludes that the plaintiffs have sufficiently alleged facts that could be probative of the
existence of a retaliatory hostile work environment with respect to Jane Does 2, 4, and 5.
Lastly, the plaintiffs allege facts that allow the Court to infer that Jane Doe 3 suffered a
hostile work environment after she complained to Renner. 25 The plaintiffs claim that “Jane Doe
25
The plaintiffs also argue that “[b]y leaving Jane Doe 3 completely helpless to respond to her female coworkers’
complaints of sexual assault and harassment, [the defendants] violated the statutory retaliation provision of the [D.C.
Human Rights Act],” Pls.’ Opp’n at 23, and that “[b]y ignoring Jane Doe’s complaints of discrimination filed on
behalf of her female subordinates, [the d]efendants ‘coerced’ Jane Doe 3 into allowing the hostile work environment
to continue to exist for her subordinates, when she had a duty as a supervisor to address those complaints,” id. at 24.
They also opine that “[b]y ignoring, and/or covering up, Jane Doe 3’s complaints of a hostile work environment
filed on behalf of her coworkers, [the d]efendants ‘required’ Jane Doe 3 to ‘interfere’ and ‘intimidate’ those
coworkers that had complained of discrimination.” Id. at 23–24. However, as noted earlier, Federal Rule of Civil
Procedure 8(a)(2) requires the plaintiffs to plead “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.” Twombly, 550 U.S. at 555. The plaintiffs, however, fail to allege facts in their Amended Complaint that
would have put the defendants on notice that they intended to pursue claims under D.C. Code § 2-1402.61(b).
Therefore, because the plaintiffs cannot “present[] new factual allegations in [their] opposition to the defendant[s’]
motion to dismiss,” Reeves v. Fed. Bureau of Prisons, 885 F. Supp. 2d 384, 388 n.4 (D.D.C. 2012), the Court cannot
consider the facts now offered in support of these arguments, see Kingman Park Civic Ass’n v. Gray, 27 F. Supp. 3d
(continued . . .)
44
3 has begun to fear for her safety since she has been an advocate for the other female workers,”
id. ¶ 81, which resulted in Jane Doe 3 “avoiding the office as much as possible and cutting back
significantly on her hours,” id., which adversely affected Jane Doe 3 “as she was unable to
interact with her team directly or her faculty supervisor” and to “perform[] her job duties,
thereby impacting the terms and conditions of her employment,” Pls.’ Opp’n at 24 (citing Am.
Compl. ¶ 82). The plaintiffs also contend that “because Jane Doe 3 had to protect her co-
workers from Jones, she was forced to take their shifts at events and spend more time with Jones;
a man she found anxiety-inducing.” Am. Compl. ¶ 82. All of these allegations, when considered
collectively, suggest that Jane Doe 3 was subjected to a hostile work environment after she
complained about Jones’s behavior to Renner.
In sum, the Court finds that the plaintiffs have sufficiently pleaded facts that support their
position that they were subjected to a hostile work environment in retaliation for reporting
Jones’s behavior to Renner. Accordingly, the Court denies the defendants’ motion to dismiss
the plaintiffs’ retaliation claim based on a hostile work environment.
e. Constructive Discharge
The plaintiffs also allege that the defendants retaliated against them by “terminating them
from their employment with GW.” Am. Compl. ¶ 123. Because the Court agrees with the
defendants that the plaintiffs do not allege that Jane Does 3, 4, and 5 were terminated, see Defs.’
2d Mem. at 23, 28; see also Am. Compl. ¶¶ 35, 69 (alleging that only Jane Does 1 and 2 were
constructively discharged), it grants the defendants’ motion to dismiss the retaliation claims of
Jane Does 3, 4, and 5 based on the allegation that they were terminated in retaliation for
(. . . continued)
171, 179 (D.D.C. 2014), aff’d on other grounds sub nom. Kingman Park Civic Ass’n v. Bowser, 815 F.3d 36 (D.C.
Cir. 2016).
45
complaining and addresses only the defendants’ arguments with respect to Jane Does 1 and 2.
The defendants argue that the allegation that Jane Doe 1 was constructively discharged on April
2, 2018, “does not support a retaliation claim because the alleged constructive discharge was not
supported by well pled allegations.” Defs.’ 2d Mem. at 26 (internal quotation marks omitted).
They also argue that Jane Doe 2 has “not shown that she had no option but to end her
employment, and was not constructively terminated as a matter of law.” Id. at 27–28 (internal
quotation marks and citation omitted). The defendants contend that “‘something more’ than . . .
a hostile work environment” is required to support a constructive discharge claim. Defs.’ Reply
at 10 (quoting Walden v. Patient-Centered Outcomes Research Inst., 177 F. Supp. 3d 336, 346
(D.D.C. 2016)).
To establish a retaliation claim based on constructive discharge, “a plaintiff must show
that []she was retaliated against because of []her [protected] activity and that retaliation
constituted intolerable working conditions in which a reasonable person in similar circumstances
would have felt compelled to resign.” Downey v. Isaac, 622 F. Supp. 1125, 1133 (D.D.C. 1985),
aff’d, 794 F.2d 753 (D.C. Cir. 1986). “The mere existence of workplace discrimination is
insufficient to make out a constructive discharge claim.” Veitch v. England, 471 F.3d 124, 130
(D.C. Cir. 2006). Rather, a plaintiff must prove that “aggravating factors,” beyond just
discrimination, forced her to leave her employment. Dashnaw v. Pena, 12 F.3d 1112, 1115 (D.C.
Cir. 1994).
Here, the plaintiffs have pleaded sufficient facts that support that Jane Does 1 and 2 were
constructively discharged in retaliation for complaining about Jones’s behavior. The plaintiffs
allege that Jane Doe 1 was “forced to resign out of her fear of interacting with Jones,” Am.
Compl. ¶ 69, and that Jane Doe 2, in her resignation letter to Renner, wrote that “[w]orking in the
46
recent months at [the] IIEP has been a terrible experience,” that the IIEP’s “inability or
unwillingness to protect [her] . . . from a clear and imminent threat has been disheartening,” and
that “after putting forth so many months of fighting for my safety and seeing little to nothing
happening, I am no longer willing to work under the [IIEP].” Id. ¶ 109. At this stage in the
litigation, these facts, taken in conjunction with the Court’s conclusion in Part III.A.2.d. of this
Memorandum Opinion, supra, that Jane Does 1 and 2 were subjected to hostility in their work
environment as a result of their respective complaints to Renner, support the inference that this
hostility “constituted intolerable working conditions in which a reasonable person in similar
circumstances would have felt compelled to resign.” Downey, 622 F. Supp. at 1133. Therefore,
the Court denies the defendants’ motion to dismiss the retaliation claims of Jane Does 1 and 2
that they were constructively discharged in retaliation for lodging their complaints.
3. Count III – Gender Discrimination in Violation of the D.C. Human Rights Act
The plaintiffs claim that the defendants discriminated against them because of their
gender. See Am. Compl. ¶ 133. The defendants argue that “[the p]laintiffs’ claim of [ ] gender
discrimination is based almost entirely on the same allegations of a hostile work environment
that form the basis of the [D.C. Human Rights Act] hostile-environment claim in Count I.”
Defs.’ 2d Mem. at 29. According to the defendants, “duplicative claims of a hostile work
environment are unnecessary.” Id. (internal citations omitted). The defendants also argue that
the remaining allegations that “are not based on hostile-environment allegations” fail to state a
claim. 26 Id. at 30. The Court will address each of the defendants’ argument in turn.
26
The Amended Complaint also alleges that the defendants discriminated against the plaintiffs on the basis of their
gender by
subjecting them to a hostile work environment . . . ; subjecting them to sexually suggestive
remarks, and sexually suggestive touching . . . ; subjecting them to a workplace environment
where they were forced to silently endure sexual advances and sexual advancement to maintain
(continued . . .)
47
As to the defendants’ first argument, the Court disagrees with the defendants and finds
that the plaintiffs’ gender discrimination claims are not duplicative of their hostile work
environment claims. “A court may dismiss duplicative claims in its discretion.” WMI
Liquidating Trust v. FDIC, 110 F. Supp. 3d 44, 59 (D.D.C. 2015) (Walton, J.). “Claims are
duplicative when they stem from identical allegations, that are decided under identical legal
standards, and for which identical relief is available.” Id. (internal quotation marks omitted).
The standards for establishing discrimination and hostile work environment claims are not
identical. As stated earlier, to state a hostile work environment claim under the D.C. Human
Rights Act, a plaintiff must show:
(1) that [s]he is a member of a protected class, (2) that [s]he has been subjected to
unwelcome harassment, (3) that the harassment was based on membership in the
protected class, and (4) that the harassment is severe and pervasive enough to
affect a term, condition, or privilege of employment.
Campbell-Crane, 44 A.3d at 933. By contrast, to state a claim for gender discrimination under
the D.C. Human Rights Act, a plaintiff must allege that
(1) she is a member of a protected class, (2) she suffered an adverse employment
action, and (3) the unfavorable action gives rise to an inference of discrimination,
that is, an unfair inference that her employer took the action because of her
membership in a protected class.
(. . . continued)
their positions; subjecting them to a workplace environment where regular and pervasive
comments were made demeaning women in general; subjecting them to a workplace environment
with regular and persistent unwelcome sexual advances, requests for sexual favors, verbal and
physical harassment . . . ; failing to take Plaintiffs’ complaints of sexual harassment and hostile
work environment seriously . . . ; creating a workplace where women are subordinate to men and
subject to physical touching, demeaning, and insulting comments.”
Am. Compl. ¶ 133. However, the defendants have not moved to dismiss these gender discrimination claims.
Therefore, the Court will only address the defendants’ arguments with respect to the allegations that the defendants
discriminated against the plaintiffs on the basis of their gender by “subjecting them to different terms and conditions
of their employment – specifically advising them to work from home – because of their gender; [and] providing due
process rights to men (specifically to Jones) greater than those afforded to Plaintiffs because of their gender; and
implementing and executing Title IX investigations and procedures differently for female students because of their
gender.” Id.
48
Miles v. Univ. of the D.C., Civ. Action No. 12-378, 2013 WL 5817657, at *13 (D.D.C. Oct. 30,
2013) (Walton, J.) (citations omitted). Although claims for a hostile work environment and for
gender discrimination contain some similar elements, they are not “decided under identical legal
standards.” WMI Liquidating Trust, 110 F. Supp. 3d at 59; see also Lester v. Natsios, 290 F.
Supp. 2d 11, 33 (D.D.C. 2003) (“Discrete acts constituting discrimination or retaliation claims,
therefore, are different in kind from a hostile work environment claim that must be based on
severe and pervasive discriminatory intimidation or insult.”). Here, the plaintiffs’ gender
discrimination and hostile work environment claims cannot be “decided under identical legal
standards,” WMI Liquidating Trust, 110 F. Supp. 3d at 59, and therefore, the Court will deny the
defendants’ motion to dismiss Count III of the Amended Complaint as duplicative of Count I.
The defendants also argue that the plaintiffs’ remaining allegations that “are not based on
hostile environmental allegations . . . are insufficient to state a claim.” Defs.’ 2d Mem. at 30.
Specifically, they contend that although the Amended Complaint alleges that the defendants
“provided ‘due process rights to men (specifically to Jones) greater than those afforded to [the
p]laintiffs because of their gender; and implemenet[ed] and execut[ed] Title IX investigations
and procedures differently for female students because of their gender,’” id. (citing Am. Compl.
¶ 133), “there are no allegations anywhere in the [Amended] Complaint to support these patently
conclusory claims, and no allegations that female students engaged in sexual harassment that
created a hostile work environment for men,” id., and therefore, “[t]hese threadbare contentions
fail to state a claim,” id. (internal quotation marks and citation omitted). The Court agrees that
these conclusory statements are insufficient to allow the Court to “draw [a] reasonable inference
that the defendant[s] [are] liable” for gender discrimination. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). Although the plaintiffs argue that the Amended Complaint alleges
49
that “men in the IIEP office were treated more favorably as a result of their gender,” Pls.’ Opp’n
at 27, and that “the rights of men (Jones’[s] due process rights and Tile IX rights) were placed
above the rights of women,” id. at 28, the plaintiffs not only fail to identify in the Amended
Complaint any due process rights that are implicated but also fail to explain the Title IX
investigations and procedures that the defendants allegedly implemented and executed
differently for female students. Without alleging such facts, the Court must grant the defendants’
motion to dismiss as to these allegations because the Amended Complaint, as currently drafted,
does not “give the defendant[s] fair notice of what the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555.
The defendants also contend that the allegation that the plaintiffs “were subjected to
‘different terms and conditions of their employment’ when they were advised to ‘work from
home’ pending termination procedures” also fails to state a claim 27 because “without a change in
duties or compensation, an order that an employee work from home is not an adverse
employment action,” Defs.’ 2d Mem. at 30 (internal quotation marks and citation omitted), and
therefore, “there can be no gender-discrimination claim,” id. at 31 (citation omitted). Because
the Court has already concluded that requesting that the plaintiffs work from home is not alone a
materially adverse action sufficient to sustain the plaintiffs’ retaliation claim, see Part III.A.2.a.,
supra, and because “[t]he concept of ‘adverse action’ in the retaliation context is broader than in
the discrimination context and can encompass harms unrelated to employment or the
27
The defendants also argue that this allegation also fails to state a claim because the allegation that the plaintiffs
were “offered the option to work from home after registering concerns for their safety does not create an inference
that [the d]efendants “took the action because of” [the p]laintiffs’ gender,” Defs.’ 2d Mem. at 30 (citation omitted),
but “[r]ather, it only shows that an accommodation was offered to persons who expressed concerns for their safety,
and there is no allegation that anyone who expressed concerns for their safety—male or female—was not offered the
same option,” id. (citation omitted). However, because the Court finds that the request to work from home is not an
adverse action, the Court need not address whether a causal connection between the protected activity and the
alleged material adverse action can be established.
50
workplace,” Franklin, 600 F. Supp. 2d at 66, the Court finds that requesting that the plaintiffs
work from home is not alone an adverse action sufficient to sustain the plaintiffs’ discrimination
claim. Therefore, the Court also grants the defendants’ motion to dismiss this component of the
plaintiffs’ gender discrimination claim, to the extent that the plaintiffs seek to rely on the
allegations that the defendants provided “due process rights to men (specifically to Jones) greater
than those afforded to [the p]laintiffs because of their gender; and implemenet[ed] and
execut[ed] Title IX investigations and procedures differently for female students because of their
gender,’” Am. Compl. ¶ 133, and that the plaintiffs were subjected to different terms and
conditions of their employment when they were asked to work from home, id.
4. Count IV – Aiding and Abetting in Violation of the D.C. Human Rights Act
The defendants argue that the plaintiffs’ aiding and abetting claim should be dismissed
because “it is entirely duplicative of Counts I ([]hostile environment) and II ([]retaliation)[.]”
Defs.’ 2d Mem. at 31. The Court disagrees.
As noted earlier, “[a] court may dismiss duplicative claims in its discretion.” WMI
Liquidating Trust, 110 F. Supp. 3d at 59. And again, “[c]laims are duplicative when they ‘stem
from identical allegations, that are decided under identical legal standards, and for which
identical relief is available.’” Id.
In Count I, the plaintiffs claim that “GW and Renner fostered, accepted, ratified, and/or
otherwise failed to prevent or to remedy a hostile work environment that included, among other
things, severe and pervasive harassment of [the p]laintiffs because of their gender.” Am. Compl.
¶ 117. Count II alleges that “[the d]efendants retaliated against [the p]laintiffs by forcing them to
work from home, disciplining them, reducing their hours, and terminating them from their
employment with GW.” Id. ¶ 123. Count II further alleges that “GW took no remedial measures
in response to [the p]laintiffs’ complaints. Instead[,] the hostile environment continued and grew
51
worse as more unsuspecting women were preyed upon by Jones.” Id. ¶ 126. In Count IV, the
plaintiffs contend that because “Renner and GW knew or should have known about Jones[’s] and
Renner’s discriminatory and retaliatory conduct in violation of the [D.C. Human Rights Act] and
failed to stop it,” Am. Compl. ¶ 139, they “unlawfully aided and abetted the discriminatory and
retaliatory conduct” in violation of D.C. Code § 2-1402.62, id. ¶140. The Court finds that the
different legal theories advanced in Counts I and II and Count IV do not constitute “identical
allegations,” and therefore, it will deny the defendants’ motion to dismiss Count IV as
duplicative of Counts I and II. See DTCC Data Repository (U.S.) LLC v. U.S. Commodity
Futures Trading Comm’n, 25 F. Supp. 3d 9, 19 (D.D.C. 2014).
The defendants also argue that “if the claims of Jane Does 1 and 3 in Count I are
dismissed and all [of the p]laintiffs’ claims in Count II are dismissed, the corresponding ‘aiding
and abetting’ claims should also be dismissed,” Defs.’ 2d Mem. at 32, because “an individual
cannot be liable under the aiding and abetting provision absent an underlying direct violation of
the [D.C. Human Rights Act],” id. (citing Richardson v. Petasis, 160 F. Supp. 3d 88, 138 (D.D.C.
2015)). Because the Court does not agree entirely with the defendants “that [the p]laintiffs’
[D.C. Human Rights Act] claims in Counts I and II[] should be dismissed for failure to state a
claim,” id., and is not granting the defendants’ motion to dismiss the hostile work environment
claims and the retaliation claims in its entirety, the Court denies the defendants’ motion to
dismiss as to this theory of liability as well.
5. Count V – Negligent Training, Supervision, and Retention
The plaintiffs allege that GW negligently breached its duty to train and supervise its
employees. Am. Compl. ¶ 145. Because of these failings, the plaintiffs allege that “[i]t was
foreseeable to [ ] GW that the failure to train its employees, including Renner and Jones, would
result in [ ] sexual harassment in the IIEP office and [would] cause harm to its employees[.]” Id.
52
¶ 146. The defendants counter that the plaintiffs’ claims regarding negligent training and
supervision should be dismissed because “the tort of negligent supervision applies only to
common law causes of action.” Defs.’ 2d Mem. at 32.
The District of Columbia Court of Appeals held that “a common law claim of negligent
supervision may be predicated only on common law causes of action or duties otherwise
imposed by the common law. A claim that an employer negligently supervised an employee
who has sexually harassed a co-employee does not transmute sexual harassment into a common
law tort.” Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 576–77 (D.C. 2007) (holding that a
“negligent supervision claim cannot be predicated on the [D.C. Human Rights Act]) (citations
omitted). “This is not to say that a claim for negligent supervision cannot be based on a separate
common law tort, which might also be grounds for a statutory claim under the [D.C. Human
Rights Act].” Id. at 577. For example, sexual harassment “may include misconduct by a co-
employee that is independently actionable under the common law, such as battery or intentional
infliction of emotional distress.” Id. “Thus[,] a negligent supervision claim could lie in a sexual
harassment case if supported by a viable claim of independent tortious conduct as recognized at
common law.” Id.
The plaintiffs contend that their “negligent training and supervision claims are not
predicated on the [D.C. Human Rights Act], but instead [on] the common law torts of battery,
assault, and intentional infliction of emotional distress committed by . . . Jones.” Pls.’ Opp’n at
30. However, like the employee in Griffin, the plaintiffs have failed to plead any common law
causes of action. See generally Am. Compl. Accordingly, the plaintiffs did not predicate their
53
negligent training and supervision claim on a common law cause of action, the Court must
therefore grant the defendants’ motion to dismiss Count V of the Amended Complaint. 28
6. Count VI – GW’s Indifference to Sexual Harassment in Violation of Title IX
The plaintiffs claim that “GW created and/or subjected [the p]laintiffs to a hostile
educational environment in violation of Title IX.” Am. Compl. ¶ 150. They contend that the
“sex-based harassment endured by [the p]laintiffs was so severe, pervasive, and objectively
offensive [such] that it deprived [the p]laintiffs of access to educational opportunities or benefits
provided by GW.” Id. ¶ 149. In response, the defendants argue that the plaintiffs fail to show
that Jane Does 1 and 3 “suffered from harassment ‘so severe, pervasive, and objectively
offensive’ to bar them from an educational opportunity,” Defs.’ 2d Mem. at 35, and that they do
“not claim ‘deliberate indifference’ to [ ] Renner’s alleged harassment of Jane Does 1 and 3,” id.
at 33.
Title IX prohibits sex discrimination by recipients of federal education funding. See
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). The statute provides that “[n]o
person in the United States shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C. § 1681(a). As the Supreme Court observed,
“Title IX implies a private right of action to enforce its prohibition on intentional sex
discrimination. In subsequent cases, we have defined the contours of that right of action.”
Jackson, 544 U.S. at 173. A university may be liable for damages under Title IX for
discrimination in the form of student-on-student harassment if the plaintiff shows that (1) the
28
Because Count V is dismissed, the Court will not address the defendants’ additional argument that the plaintiffs
failed to show that GW knew or should have known of Jones’ assaults prior to a report being made. Defs.’ 2d Mem.
at 33.
54
university had “actual knowledge” of the sexual harassment or discrimination; (2) the university
“exercise[d] substantial control over both the sexual harasser and the context in which the known
harassment occur[red]”; (3) the sexual harassment complained of was “so severe, pervasive, and
objectively offensive that it can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school”; and (4) the university was “deliberately
indifferent to [the known acts of] sexual harassment.” Davis v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 643–51 (1999). “[A] damages remedy will not lie [against a university] under Title
IX,” however, unless a plaintiff can demonstrate that “an official who at minimum ha[d]
authority to address the alleged discrimination and to institute corrective measures on the
[university]’s behalf ha[d] actual knowledge of the discrimination in the [university]’s programs
and fail[ed] adequately to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290
(1998). “The university’s response—or failure to respond—moreover, ‘must amount to
deliberate indifference to discrimination.’” Cavalier, 306 F. Supp. 3d at 25–26 (quoting Gebser,
524 U.S. at 290).
For the same reasons that the Court already concluded that Jane Does 1 and 3 were
subjected to severe or pervasive harassment for the purposes of their hostile work environment
claim, 29 see Part III.A.1., supra, the Court finds that the plaintiffs have plausibly pleaded
allegations from which the Court can infer that Jane Does 1 and 3 were subjected to conduct “so
29
The Title IX standard for a hostile educational environment has been held by a former member of this Court as
equivalent to the Title VII standard for a hostile work environment, see Pinkney v. Robinson, 913 F. Supp. 25, 32
(D.D.C. 1996) (considering “Title VII principles to review the plaintiff’s claim of Title IX liability” for a hostile
work environment and finding that the “same rules should apply to determine liability”), which itself is analogous to
the standard under the D.C. Human Rights Act, see e.g., Elhusseini, 578 F. Supp. 2d at 10 n.4.
55
severe, pervasive, and objectively offensive” that would bar them from educational
opportunities. 30 Davis, 526 U.S. at 651.
As further grounds for challenging the sustainability of the plaintiffs’ Title IX claims, the
defendants also argue that the plaintiffs do “not allege that [GW] was deliberately indifferent to
the alleged harassment of Jane Does 1 and 3 by [ ] Renner.” Defs.’ 2d Mem. at 36. They
contend that “[e]ven if such a claim had been made, it would be deficient because there is no
allegation that any [GW] manager above [ ] Renner, with authority to take corrective measures,
had actual knowledge of his alleged conduct, as required.” Id. (internal quotation marks and
citations omitted). The plaintiffs respond that the Amended Complaint “contains 21 paragraphs
of allegations of GW’s deliberate indifference to the complaints of sexual harassment and sexual
assault by Jones.” Pls.’ Opp’n at 32 (citing Am. Compl. ¶¶ 93–114). However, contrary to the
plaintiffs’ belief, the defendants are contesting the plaintiffs’ allegations—or lack thereof—
regarding GW’s knowledge of Renner’s harassing conduct, not Jones’s. The defendants are
correct that “Count VI is based entirely on the alleged conduct of [ ] Jones, and not on any
alleged harassment by [ ] Renner.” Defs.’ 2d Mem. at 35. The Amended Complaint states that
“GW and its officials had actual knowledge of sexual assaults and harassment committed by
Jones, and the resulting harassment of [the p]laintiffs created by GW’s failure to investigate and
discipline Jones in a timely manner.” Am. Compl. ¶ 151 (emphasis added). The plaintiffs fail to
allege that GW had any knowledge about Renner’s alleged inappropriate conduct toward Jane
Does 1 and 2. See e.g., Am. Compl. ¶¶ 61, 73. Therefore, the Court will grant the defendants’
30
The Court notes that the plaintiffs have sufficiently pleaded that the alleged harassment affected their terms of
employment, as well as their educational opportunities. See Am. Compl. ¶¶ 36, 45, 70, 82, 92.
56
motion to dismiss the plaintiffs’ Title IX deliberate indifference claim as to Jane Does 1 and 3,
but only with respect to Renner’s alleged conduct. 31
7. Count VII – GW’s Retaliation in Violation of Title IX
The defendants argue that the plaintiffs “allege in a vague and conclusory fashion that
they were all denied ‘their rights under Title IX.’” 32 Defs.’ 2d Mem. at 37 (quoting Am. Compl.
¶ 160) (footnote added). 33 They contend that the plaintiffs’ Title IX retaliation should be
dismissed for three reasons: (1) “there are no specific allegations in the [Amended] Complaint to
show that the claimed ‘rights’ were denied to any of the [p]laintiffs,” id. at 38; (2) “[t]here is
simply no factual allegation in the [Amended C]omplaint which suggests a causal connection
31
In their reply to the plaintiffs’ opposition, the defendants raise several arguments for the first time regarding
whether GW had actual knowledge of any alleged harassment of Jane Doe 1 by Jones. See Defs.’ Reply at 19. In
their motion to dismiss itself, the defendants only argue that the plaintiffs do “not allege that [GW] was deliberately
indifferent to the alleged harassment of Jane Does 1 and 3 by [ ] Renner,” Defs.’ 2d Mem. at 36 (emphasis added),
and not Jones. Therefore, in accordance with the “well-settled prudential doctrine that courts generally will not
entertain new arguments first raised in a reply brief,” Lewis v. District of Columbia, 791 F. Supp. 2d 136, 139 n.4
(D.D.C. 2011), the Court will “ignore those arguments in resolving the [defendants’] motion [to dismiss].” Baloch
v. Norton, 517 F. Supp. 2d 345, 348 n.2 (D.D.C. 2007).
32
The plaintiffs assert denial of the following fifteen “rights” (“Title IX rights”):
(a) Respectful treatment throughout the process, regardless of outcome; (b) University counseling
services; (c) Be informed about the student judicial process on an ongoing basis; (d) Access case
file within legal parameters; (e) A no contact order with the other party throughout the process; (f)
To have an advisor of your choosing present with you during any and all phases of the
investigation and hearing; (g) A thorough, prompt, and equitable investigation and resolution of a
complaint; (h) Opportunity to submit a written statement addressing the allegations and to provide
evidence and witnesses; (i) Be informed of the university’s code of conduct for students, faculty,
and staff, including anticipated timelines and possible outcomes of a complaint; (j) Request
protective measures, remedies, support, and resources; (k) Protection against retaliation from any
university staff or student; (l) A free forensic exam from a Sexual Assault Nurse Examiner; (m)
The option to notify law enforcement, independent of campus process; (n) Receive assistance
modifying academic or housing situation; and, (o) Not to have to interact face-to-face with the
respondent at any time during the process.
Am. Compl. ¶ 160.
33
The defendants also argue that the plaintiffs “do not indicate a legal source of the claimed rights[,] Title IX does
not list any of these rights in the statute, and no private cause of actions has been recognized for the enforcement of
Title IX regulations or administrative guidances.” Defs.’ 2d Mem. at 38 (internal quotation marks omitted) (citing
Gebser, 524 U.S. at 292). However, as indicated by the Supreme Court, “[r]etaliation against a person because that
person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title
IX’s private cause of action.” Jackson, 544 U.S. at 173 (emphasis added).
57
between the act of reporting the sexual harassment and the school’s alleged failure to respond
appropriately,” id. at 39 (alterations in original) (citation omitted); and (3) “the alleged retaliation
includes [the] same acts or omissions which [the p]laintiffs allege constituted ‘deliberate
indifference’ to sexual harassment, with no attempt to show that [the] acts or omissions occurred
because of [the p]laintiffs’ complaints,” id. The Court will address each in turn.
“Retaliation against a person because that person has complained of sex discrimination is
another form of intentional sex discrimination encompassed by Title IX’s private cause of
action.” Jackson, 544 U.S. at 173. To state a claim for Title IX retaliation, a plaintiff must allege
that the defendant is a recipient of federal funding and that the defendant retaliated against the
plaintiff “because [s]he complain[ed] of sex discrimination.” Id. at 174. “Beyond this, neither
the Supreme Court nor [this] Circuit has outlined the precise contours of a Title IX retaliation
claim.” Cavalier, 306 F. Supp. 3d at 36. “Various decisions from this district and from other
circuits, however, ‘have generally held’ that Title VII’s retaliation standard governs,” id., and
this Court has no reason not to take the same position. Under that standard, a plaintiff must show
that: “[(1)] she made a charge or opposed a practice made unlawful by Title IX, [(2)] that the
university took a materially adverse action against her, and [(3)] that the university took the
action because of her protected conduct.” Id. Where there is no direct evidence of retaliation, a
plaintiff must show “that there was a causal link” between the protected activity and adverse
action. Id.
The defendants first argue that the plaintiffs’ Title IX retaliation claim should be
dismissed because “there are no specific allegations in the [Amended] Complaint to show that
the claimed ‘rights’ were denied to any of the [p]laintiffs.” Defs.’ 2d Mem. at 38. To the extent
that the plaintiffs allege that the defendants retaliated against them by denying the plaintiffs their
58
Title IX rights, the Court agrees that the allegations following the Count itself are deficient
because the plaintiffs fail to sufficiently plead facts that would support their conclusion.
However, because the plaintiffs “reallege and incorporate by reference the allegations contained
in the proceeding paragraphs” of the Amended Complaint, Am. Compl. ¶ 159, the Court finds
that they have preserved the “five adverse actions” alleged in support of their retaliation claims
under the D.C. Human Rights Act, which are as follows:
“(1) forc[ing] them to work from home; (2) subject[ing] them to an increasingly
hostile work environment[, by] forcing them to work in close proximity to their
assaulter or harasser; (3) reassign[ing] Jane Doe 1’s job responsibilities; (4)
ridicul[ing] them by stating Jane Doe 2 should go to therapy; and ([5])
threaten[ing] them by accusing them of “spreading misinformation” and “making
the situation worse.”
Pls.’ Opp’n at 36.
The defendants, in their reply to the plaintiffs’ opposition, argue that “[i]n the alternative,
the Title IX retaliation claims described for the first time in the [o]pposition would be
insufficient—had they actually been plead—for the same reasons as the [D.C. Human Rights
Act] retaliation claims.” Defs.’ Reply at 21. They also argue that “[t]here is simply no factual
allegation in the [Amended C]omplaint which suggests a causal connection between the act of
reporting the sexual harassment and the school’s alleged failure to respond appropriately,” 34
Defs.’ 2d Mem. at 39 (alterations in original) (citation omitted). However, for the reasons
already set forth in Part III.A.2. of this Memorandum Opinion, supra, the adverse actions that the
plaintiffs have sufficiently pleaded to establish their retaliation claims under the D.C. Human
Rights Act are also sufficient to support their Title IX retaliation claim.
34
It is not entirely clear whether the defendants intend their second argument to contest the causal connection
requirement; however, the Court construes it as such because, contrary to the defendants’ argument, the plaintiffs
need not show a causal connection between the act of reporting the sexual harassment “and the school’s alleged
failure to respond appropriately,” Defs.’ 2d Mem. at 39, but rather the specific alleged retaliatory acts, which in this
case is not the “school’s alleged failure to respond appropriately,” as the defendants suggest, id.
59
With respect to the defendants’ third argument that the plaintiffs’ Title IX retaliation
claim must be dismissed because “the alleged retaliation includes [the] same acts or omissions
which [the p]laintiffs allege constituted ‘deliberate indifference’ to sexual harassment, with no
attempt to show that [the] acts or omissions occurred because of [the p]laintiffs’ complaints,”
Defs.’ 2d Mem. at 39, the Court disagrees with the defendants. In support of their argument, the
defendants suggest that the principles that applied in Cavalier apply here. See Defs.’ Mem at
39–40. However, this case does not implicate the same facts that existed in Cavalier. In
Cavalier, the defendant argued that the alleged retaliatory action were “not retaliatory at all;
rather[,] they are the same conduct on which [the plaintiff] bases her Title IX-deliberate
indifference claim.” Cavalier, 306 F. Supp. 3d at 37. The district court in Cavalier held that to
the extent the plaintiff “lumps all of her allegations together, without attempting to delineate
which ‘adverse actions’ were taken in response to her complaints [ ] which alleged deficiencies
in the University’s response to the alleged assault, the Court agrees that her claims are either
circular or too vague to satisfy [Federal] Rule [of Civil Procedure] 8.” Id. Here, the plaintiffs
sufficiently separate their allegations as to which adverse actions were taken in response to their
complaints and the adverse actions upon which they base their Title IX-deliberate indifference
claim, which do not overlap. Therefore, for the same reasons that the Court, in Part III.A.2. of
this Memorandum Opinion, supra, granted in part and denied in part the defendants’ motion to
dismiss the plaintiffs’ retaliation claims under the D.C. Human Rights Act, the Court denies the
motion with respect to the claims of Jane Does 1, 2, and 3 that the defendants retaliated against
them by disciplining them, with respect to Jane Doe 1’s claim that the defendants retaliated
against her by reducing her hours, with respect to all of the plaintiffs’ claims that a hostile work
environment can amount to retaliation, and with respect to the claims of Jane Does 1 and 2 that
60
the defendants retaliated against them by forcing them to resign. The defendants’ motion to
dismiss is granted in all other respects regarding the plaintiffs’ Title IX retaliation claims. 35
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must deny the defendants’ motion
to dismiss the original Complaint as moot in light of the plaintiffs’ filing of the Amended
Complaint. The Court also concludes that it must grant the plaintiffs’ motion for leave to
proceed under the pseudonyms Jane Does 1 to 5, but only during the pretrial components of the
case. Moreover, the Court concludes that it must deny the defendants’ motion to dismiss the
Amended Complaint for lack of subject matter jurisdiction as moot in light of the Court’s
granting of the plaintiffs’ motion for leave to proceed during all pretrial proceedings with the
pseudonyms Jane Does 1 to 5.
In addition, the Court concludes that it must grant in part and deny in part the defendants’
motion to dismiss for failure to state a claim. Specifically, as to the plaintiffs’ claims in Counts
II and VII, the Court concludes that it must grant the motion with respect to all plaintiffs’ claims
based on Renner’s alleged relocation request, the claims of Jane Does 4 and 5 based on Renner’s
alleged disciplinary statements, the claims of Jane Does 2, 3, 4, and 5 based on Renner’s alleged
reduction of their hours, and the claims of Jane Does 3, 4, and 5 that the defendants retaliated
against them by forcing them to resign. The Court also concludes that it must grant the
defendants’ motion to dismiss as to Count III with respect to the plaintiffs’ gender discrimination
claim based on the alleged denial of the plaintiffs’ due process rights, unequal implementation of
35
Specifically, the motion to dismiss is granted with respect to the plaintiffs’ retaliation claim based on Renner’s
request that the plaintiffs work from home, with respect to the claims of Jane Does 4 and 5 that the defendants
retaliated against them by disciplining them, with respect to the claims of Jane Does 2, 3, 4, and 5 that the
defendants retaliated against them by reducing their hours, and with respect to the claims of Jane Does 3, 4, and 5
that the defendants retaliated against them by forcing them to resign. The motion is also granted to the extent that
the plaintiffs allege that the defendants retaliated against them by denying them their Title IX rights.
61
Title IX, and Renner’s suggestion that the plaintiffs work from their homes. The Court also
concludes that it must grant the defendants’ motion to dismiss Count V. The Court further
concludes that it must grant the defendants’ motion to dismiss the Title IX-deliberate
indifference claims of Jane Does 1 and 3 in Count VI based on Renner’s alleged conduct. The
Court further concludes that it must also grant the defendants’ motion to dismiss the plaintiffs’
Title IX-retaliation claim in Count VII with respect to alleged retaliation in the form of denial of
their Title-IX rights. Finally, the Court concludes that the defendants’ motion to dismiss is
denied in all other respects.
Accordingly, the Court will grant in part and deny in part the defendants’ motion to
dismiss.
SO ORDERED this 27th day of March, 2019. 36
REGGIE B. WALTON
United States District Judge
36
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
62