By Robert Margolis, J.D.
Employee pled causation for retaliation claims both by temporal proximity (two months) and because similarly situated employees were treated differently.
A former District of Columbia probation officer has sufficiently pled claims for discrimination and retaliation under Title VII and the Americans With Disabilities Act ("ADA") against her employer a federal district court in Washington, D.C., has held. Despite the employer’s contention, the employee’s complaints to her immediate supervisor about another supervisor’s inappropriate remarks was protected activity under Title VII. Further, her request for a transfer from the supervisor who allegedly harassed her and triggered her PTSD satisfied the protected activity requirement for her ADA retaliation claim (Tennant v. District of Columbia, August 3, 2020, Howell, B.).
Four incidents. The employee is a former Probation Officer in the Court Social Services Division ("CSSD") of the Superior Court of the District of Columbia. She worked for the employer for almost nine years, before her termination in December 2018, never receiving a rating of less than commendable performance.
While working on an assignment at a particular location from March 2014 through the time of her termination, several events occurred. First, she reported to superiors an incident of improper behavior toward a juvenile by a mentor affiliated with her employer. When that mentor in 2017 was charged criminally for sexually abusing the juvenile, the employee was told by a superior not to cooperate with the authorities. When the employee said she would provide information (and rejected the employer’s offer to have its general counsel sit in with her when meeting with criminal authorities), her superiors became angry. In addition, she suffered PTSD from this incident, since she too was a victim of sexual assault as a minor.
Second, her "immediate supervisor" made a series of sexually inappropriate remarks to her. This further triggered her PTSD. Later, when he invited her to accompany him as he dropped off a juvenile, she declined, stating she was off-duty. He called her insubordinate. She reported this incident, along with the prior comments to another "immediate supervisor." No corrective actions were taken, and inappropriate sexual comments continued.
Third, in January 2018, the employee was diagnosed with adenomyosis, which the employee alleged to be "a debilitating physical condition that affects multiple physical and mental activities, including, but not limited to, walking, sitting, lifting, breathing, and working." She disclosed the condition to her superiors, and when she took absences, was reprimanded (by the supervisor who had made the inappropriate remarks) and recommended for suspension, even though other employees (healthy), were not given those consequences when taking absences. She later asked for, and was granted, continuous and intermittent FMLA leave.
Fourth, the employee was involved in an incident with a juvenile where she contends she had to restrain the juvenile to avoid being assaulted. Though she reported the incident, the employer acted skeptical about her side of the story, her supervisor made "baseless" accusations against her, and she ultimately was accused of assaulting the juvenile, leading to her termination.
Lawsuit. She sued the employer under Title VII, the ADA, and the FMLA alleging discrimination and retaliation based on sex and her disabilities, and interference with her FMLA rights. The employer moved to dismiss the claims for Title VII retaliation, and ADA discrimination and retaliation. The court denied the motion in its entirety.
Title VII retaliation. The employer contended that the employee neither alleged (1) protected activity; nor (2) that even if protected activity were alleged, any causal connection between that activity and her termination. The court rejected both arguments.
First, the employee alleged that she engaged in protected activities by "opposing unlawful employment practices," including the sexually offensive and harassing comments by her superior. She also said that she was retaliated against for participating in the criminal investigation of the sexual assault of a juvenile. Finally, she cited her filing of an EEOC charge as protected activity. The employer argued that participation in the criminal investigation is not the type of conduct that is within Title VII’s protections. Since the employee did not respond to that argument, the court found that the employee conceded that this activity is not protected by Title VII against retaliation. But the court found the allegations of the other protected activities to be sufficient. The court rejected the employer’s argument that to be protected activity, an employee has to voice a belief that conduct she is reporting violates Title VII, finding no support in the law for it. The employee needed only to express her opposition to the conduct, the court held, which her complaint does allege.
The employer also argued that the employee did not reasonably believe that the conduct she complained about violated Title VII, relying on summary judgment cases where the employee had not established the requirement for a claim in the D.C. Circuit that the employee "reasonably believe" the conduct complained of violated Title VII. The court found the employee to have made allegations from which the reasonable belief could be inferred, which is all that is necessary on a motion to dismiss. She alleged that the sexual remarks were inappropriate and amounted to harassment. This supports the inference of a hostile work environment under Title VII (even though single-incident hostile work environment cases are rare), the court reasoned.
As to causation, the employee relied on temporal proximity. While the parties disputed both the dates of protected acts and the dates of adverse activities, allegations that protected acts occurred as late as August 2018 and that a letter of reprimand was issued to her in October 2018 (followed closely thereafter by her termination) was sufficient to plead temporal proximity, the court held. The court cited other cases finding a two-month gap between protected activity and the first step toward an adverse action to satisfy causation via temporal proximity.
ADA retaliation. The employee alleged that between January and December 2018, she "oppose[d] the interference with her rights" by informing superiors "of her protected disabilities, as well as [by] making formal and informal complaints of disability discrimination" to the employer’s human resources office and her superiors. The employer argued the claim should be dismissed because (1) she has not exhausted her ADA retaliation claims; (2) she did not allege protected activities; and (3) no causal link between protected activity and any adverse employment action.
The employer contended that she failed to exhaust her ADA retaliation claim because her EEOC charge did not adequately allege ADA retaliation. The court rejected this argument, holding that what matters under governing law is whether "the factual allegations in the EEOC charge would have set the EEOC down the path to ‘uncover[ing] evidence relevant to [plaintiff’s] . . . discrimination claims.’" By checking boxes in the EEOC intake form for "disability" and "retaliation," she met this requirement, the court held.
While simply disclosing her medical condition is not protected activity sufficient to trigger a retaliation claim, the employee also sought a reasonable accommodation, a transfer away from the supervision by the employee who made the sexually harassing remarks. This can trigger a claim where, as here, the supervisor’s misconduct exacerbates the employee’s disability (through PTSD, stress, and anxiety). Thus, the good faith request for an accommodation sufficed for the protected activity element, the court held.
As for causation, while the request for accommodation occurred some six months prior to an adverse action, the employee did not rely entirely on temporal proximity. Instead, she alleged that she was reprimanded for absences while other employees without physical maladies who took absences were not. She also alleges that she received nothing but positive reviews, yet was terminated. Under the circumstances, her claim was plausible, the court held.
ADA discrimination. Because the employee provided specific allegations that her conditions— PTSD and adenomyosis—affected her ability to perform work activities, the court rejected the employer’s argument that her complaint was conclusory. She alleged how the PTSD flared up after the supervisor’s sexual comments and how she could not work as a result. She also alleged that the adenomyosis caused her pain that prevented her from working.
The case is No. 1:19-cv-02949-BAH.
Attorneys: Nathaniel D. Johnson (The Johnson Law Office) for Denise Tennant. Cara J. Spencer, Office of the Attorney General, for District of Columbia.
Companies: District of Columbia
Cases: Discrimination SexualHarassment DisabilityDiscrimination Retaliation GCNNews DistrictofColumbiaNews
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