Sonmez v. WP Company, LLC

Notice: This opinion is subject to formal revision before publication in the Atlantic

and Maryland Reporters. Users are requested to notify the Clerk of the Court of

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 22-CV-0274 & 22-CV-0301

FELICIA M. SONMEZ,

APPELLANT/CROSS-APPELLEE,

V.

WP COMPANY LLC, D/B/A THE WASHINGTON POST, MARTIN BARON, CAMERON

BARR, TRACY GRANT, STEVEN GINSBERG, LORI MONTGOMERY, AND PETER

WALLSTEN, APPELLEES/CROSS-APPELLANTS.

Appeals from the Superior Court

of the District of Columbia

(2021-CA-002497-B)

(Hon. Anthony C. Epstein, Trial Judge)

(Argued November 16, 2023 Decided January 30, 2025)

Madeline Meth, Georgetown Law Appellate Courts Immersion Clinic, with

whom Brian Wolfman and Esthena L. Barlow, Georgetown Law Appellate Courts

Immersion Clinic, and Molly Bernstein, Elliott O’Brien, Jewelle Vernon, Daphne

Assimakopoulos, Monica Kofron, and Chase Woods, student attorneys, were on the

briefs, for appellant/cross-appellee.

Yaakov M. Roth, with whom Jacqueline M. Holmes and Joseph P. Falvey

were on the briefs, for appellees/cross-appellants.

Arthur B. Spitzer and Scott Michelman filed a brief on behalf of the American

Civil Liberties Union of the District of Columbia as amicus curiae.

2

Matthew K. Handley and Jim Davy filed a brief on behalf of the L.L. Dunn

Law Firm, PLLC, and the Maryland Coalition Against Sexual Assault as amici

curiae.

Filippo A. Raso, Allison Holt Ryan, and Alejandra Caraballo filed a brief on

behalf of Claire Goforth as amicus curiae.

Charles D. Tobin and Alia L. Smith filed a brief on behalf of the Boston Globe

Media Partners, LLC, E.W. Scripps Co., Los Angeles Times Communications LLC,

The Maryland-Delaware-DC Press Association, The National Association of

Broadcasters, The National Press Club, The National Press Club Journalism

Institute, National Review Institute, and Yelp Inc. as amici curiae.

Before BECKWITH and DEAHL, Associate Judges, and GLICKMAN, * Senior

Judge.

Opinion for the court by Senior Judge GLICKMAN.

Dissenting opinion by Associate Judge DEAHL, at page 98.

GLICKMAN, Senior Judge: Felicia M. Sonmez, a national news reporter

employed by The Washington Post, sued the Post and six of its editors in Superior

Court for violations of the D.C. Human Rights Act and for the common law tort of

negligent infliction of emotional distress. Her complaint asserted that the defendants

unlawfully discriminated against her on the basis of both her status as a victim of a

sexual offense and her gender by taking specific adverse employment actions against

*

Associate Judge AliKhan was originally assigned to this case. Following

her appointment to the U.S. District Court for the District of Columbia, effective

December 12, 2023, Senior Judge Glickman was assigned to take her place on the

panel.

3

her and by subjecting her to a hostile work environment; and that the defendants

unlawfully retaliated against her after she protested their discriminatory actions.

The defendants moved to dismiss the complaint pursuant to Superior Court

Civil Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In

addition, contending that Sonmez’s claims against them arose from acts in

furtherance of the right of advocacy on issues of public interest, the defendants filed

a “special motion to dismiss” Sonmez’s complaint under the District of Columbia

Anti-Strategic Lawsuits Against Public Participation Act (the “Anti-SLAPP Act”). 1

The Superior Court denied the special motion to dismiss on the ground that

Sonmez’s claims did not arise from speech triggering the protections of the Anti-

SLAPP Act. However, the court granted the Rule 12(b)(6) motion, as it concluded,

inter alia, that the complaint failed to plausibly allege that the defendants’

challenged actions were motivated by unlawful discrimination or that the defendants

retaliated against her because she protested such discrimination. Sonmez has

appealed the dismissal of her Human Rights Act claims; she has not appealed the

dismissal of her common law cause of action. The defendants have cross-appealed

the denial of their special motion to dismiss.

1

D.C. Code §§ 16-5501 to -5505.

4

In this opinion, we conclude that Sonmez’s claims do not arise from “acts in

furtherance of the right of advocacy on issues of public interest” within the meaning

of the Anti-SLAPP Act. We therefore affirm the denial of the special motion to

dismiss her complaint. We also conclude that Sonmez’s complaint does plausibly

allege that the defendants discriminatorily took certain adverse employment actions

against her in violation of the Human Rights Act; these actions included, in

particular, the imposition of restrictions on Sonmez’s reporting assignments and a

negative performance evaluation that affected her compensation. However, we

conclude that the complaint does not plausibly allege that the defendants subjected

Sonmez to a hostile work environment or that they retaliated against her in violation

of the Human Rights Act because she protested discriminatory treatment. We

acknowledge the defense argument that the restrictions imposed on Sonmez’s

writing assignments were editorial decisions made to ensure reader confidence in

the objectivity of the Post’s reporting, and therefore were within the protection of

the First Amendment. However, at this stage of the litigation, before discovery has

commenced, we conclude it is premature to decide whether the Post’s stated reasons

are supported by evidence and whether the defendants are entitled to invoke the First

Amendment to justify their decisions. We leave that issue open at this time.

5

Accordingly, we reverse the dismissal of the count in Sonmez’s complaint

charging the defendants with adverse action discrimination, while we affirm the

dismissal of her hostile work environment and retaliation claims.

I. The Facts Alleged in the Complaint

Sonmez’s highly detailed complaint alleges the following facts in support of

her Human Rights Act claims against The Washington Post and its editors.

A. Sonmez’s Background and Her Employment by The Washington Post

Before the Post hired Sonmez as a reporter, she worked as a journalist in

Beijing, China, and was a member of the Foreign Correspondents Club of China

(“FCCC”). The President of the FCCC was Jonathan Kaiman, a male journalist who

was the Beijing Bureau Chief for the Los Angeles Times. Sonmez alleges that, on

September 16, 2017, after the FCCC’s annual summer party, Kaiman sexually

assaulted her “while she was too intoxicated to consent.” Three days later, Kaiman

allegedly apologized to her for his behavior. Sonmez did not report the sexual

assault to the police, and for some time she did not tell anyone about it. But the

6

assault affected Sonmez profoundly; in the following months she struggled with

depression, anxiety, and trust issues.

In January 2018, another woman came forward and publicly accused Kaiman

of having coerced her into having sex with him while they were both working in

Beijing. In response to this accusation, both the FCCC Board and the L.A. Times

commenced inquiries into Kaiman’s conduct. Kaiman met with the FCCC Board on

January 11, 2018. The Board voted to oust Kaiman and he resigned from the

organization.

During that FCCC Board meeting, Kaiman denied being aware of any other

allegations of misconduct against him and said nothing about Sonmez’s allegations.

After the meeting, Sonmez confronted Kaiman about this denial and nondisclosure

of his assault against her. Kaiman then informed her that he had not revealed her

allegations to the L.A. Times either, and had instead said only that he had a recent

encounter with another woman who was “not happy.”

After hearing this, and moved by the example of the other woman who had

made a complaint, Sonmez “felt compelled” to speak out, and she reported her

allegations of sexual assault against Kaiman to both the FCCC and the L.A. Times.

On May 16, 2018, the L.A. Times announced that it had suspended Kaiman from his

job pending the outcome of its investigation. A representative of the L.A. Times

7

contacted Sonmez and asked her to participate in its investigation. There was news

coverage of Kaiman’s resignation from the FCCC and his suspension by the L.A.

Times.

Not long after the L.A. Times announcement, Sonmez interviewed for a

position with The Washington Post as a politics reporter with the breaking news

team. During her interview, the Post’s senior politics editor, Peter Wallsten, asked

her why she had decided to speak publicly about Kaiman’s sexual assault of her.

Sonmez explained that she wanted to counter her assailant’s misrepresentations and

to prevent him from harming other women.

The Post extended an offer of employment to Sonmez, which she accepted.

In June 2018, after she started working there, Wallsten asked her why she did not go

to the Beijing police after Kaiman assaulted her. Sonmez was “troubled” by the

question’s implication that her failure to file a report with the police raised doubt

about the allegation, and by Wallsten’s apparent lack of understanding regarding the

consequences she could have faced as a female foreign journalist had she claimed to

the Chinese police that another foreign journalist had sexually assaulted her.

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B. The First Reporting “Ban”

During her first three months with the Post, Sonmez wrote more than 140

news stories, including at least seven stories concerning claims of sexual

misconduct. There were no complaints about her reporting. During this period, on

August 30, 2018, Sonmez learned that the L.A. Times had concluded its

investigation and that Kaiman had resigned from the newspaper (though this had not

yet been announced publicly). Tracy Grant, the Post’s managing editor in charge of

staff development and standards, told Sonmez to expect to be attacked online and

suggested that she speak with the Post’s public communications team if she wanted

to prepare a public statement regarding the L.A. Times investigation. Sonmez

drafted a statement and submitted it to Grant, Wallsten, and the communications

team for their suggestions and approval. Grant assured Sonmez that the Post had

“no desire” to prohibit her from issuing the statement.

In the meantime, the Post was covering the Senate confirmation proceedings

regarding the nomination of then Judge (now Justice) Brett Kavanaugh to the

Supreme Court. On September 16, 2018, the Post broke the news of Christine Blasey

Ford’s sexual assault accusation against Judge Kavanaugh. Sonmez was assigned

to report on the story along with two of her colleagues and to “anchor” the next day’s

coverage. Although Sonmez “found it difficult to read about Ford’s accusations

9

given her own history of assault,” she went for a walk around the block “to collect

herself” and then returned to work on the assignment. The article that Sonmez co-

wrote appeared on the front page of the Post the next day. Sonmez received positive

feedback from the Post’s Congress Editor for her work on the story.

After the story was filed, Sonmez met with her editors to discuss her public

statement about the L.A. Times investigation and Kaiman’s resignation, which she

now proposed to issue. By this time, Grant and the Post’s lawyers had “signed off”

on the statement. Wallsten suggested some additional edits, and Sonmez revised her

statement in light of his feedback. Neither Wallsten nor Grant suggested that

Sonmez could face any job-related repercussions as a result of putting out the

statement.

During their meeting, Wallsten asked Sonmez how she was doing in light of

Ford’s sexual assault accusations. Sonmez said it had been difficult to read about

the accusations and that she had taken a walk around the block to regain her

composure, but that she then had returned to her office and resumed writing up the

news story “as usual.”

After her meeting with Wallsten, and with the Post’s apparent blessing,

Sonmez sent her revised statement about Kaiman and the L.A. Times investigation

to the L.A. Times and news outlets that had covered the allegations against Kaiman.

10

In the statement, Sonmez thanked the L.A. Times for “taking [her] allegation

seriously” and investigating Kaiman’s behavior. However, stating that the “response

of institutions” to women’s complaints is an “essential part” of “combatting sexual

misconduct,” Sonmez faulted the L.A. Times for not being “transparent about the

results of its investigation” and for not making “clear” whether Kaiman was fired or

had resigned voluntarily. “Above all,” Sonmez declared, “I stand in solidarity with

[the woman] who took the brave step of speaking out first, paving the way for others

to follow.”

After Sonmez notified her editors that she had sent out this statement,

Wallsten called her to a meeting the following morning with the Post’s national

editor, Steven Ginsberg, and its deputy national editor, Lori Montgomery. Sonmez

had been scheduled to appear on MSNBC that afternoon to discuss the latest news

in the Kavanaugh confirmation story, but Wallsten directed her to cancel her

appearance.

At the meeting, the editors informed Sonmez that she was barred from writing

on the Kavanaugh story until further notice. (Sonmez refers to this restriction as the

“first ban” imposed on her by the Post.) In explanation, the editors linked the “ban”

to what Sonmez had told Wallsten the previous day about her initial reaction upon

learning of the accusations against Judge Kavanaugh, which Ginsberg said were “too

11

similar” to Sonmez’s allegations against Kaiman. The editors also expressed

dissatisfaction with Sonmez’s statement regarding the L.A. Times investigation.

Later, Ginsberg would claim the ban was ordered by the Post’s executive editor,

Martin Baron, who did not interact with Sonmez directly during these events.

In a follow-up conversation that afternoon, Montgomery asked Sonmez why

she did not go to the police in Beijing to report Kaiman’s sexual assault.

Montgomery told Sonmez she was taught that a woman should “just say no” if a

man tries to assault her.

Sonmez perceived from the editors’ explanation and remarks that she was

being banned from covering one of the biggest stories of the year, despite her

capability and the undisputed quality of her work, because of her status as a victim

of a similar sexual offense. That afternoon she sent Ginsberg, Montgomery,

Wallsten, and Grant an email protesting the decision to “sideline[] [her] from this

story based on what happened to [her] in Beijing.” Because the editors had brought

up what she told Wallsten about her initial reaction on learning of Ford’s accusation,

Sonmez stressed that she “felt comfortable and well-equipped to report on” the

allegations objectively. “I never said that I was concerned about my ability to cover

the story fairly, or that I was struggling to be fair,” she wrote. “[W]hile it was

difficult to read the story, as it would be for any survivor of sexual assault, I prioritize

12

my responsibility as a journalist to be fair and impartial and ‘just do the work.’”

Sonmez emphasized that she had “made no statements about the merits of the

Kavanaugh case,” and that she had issued her public statement regarding the L.A.

Times investigation of Kaiman with her editors’ prior approval. Sonmez also

included links to recent news stories she had written that were related to the issue of

sexual misconduct and that evidenced the quality of her reporting on such matters.

That evening, Sonmez met with Ginsberg, Grant, and Cameron Barr, a

managing editor of the Post. They told her the ban would remain in place. Barr

accused Sonmez of being an “activist” who had “taken a side on the issue” of sexual

assault and was “trying to have it both ways” by publicly disclosing her own

victimization, criticizing news organizations like the L.A. Times, and continuing to

report on the topic. Ginsberg raised his voice and said it would present “the

appearance of a conflict of interest” if Sonmez continued reporting on the

Kavanaugh nomination or any other issues related to sexual misconduct. Barr

elaborated, saying “We don’t have reporters who make statements on issues they are

covering. We don’t want the external perception that we have an advocate covering

something she has experienced. The work you do intersects with what you

experienced in your life.” Grant added that the editors had to “protect the story,”

allegedly insinuating that Sonmez was “a threat to the Post’s ability to win prizes”

for its coverage of Ford’s accusations.

13

Sonmez drafted an email to the numerous reporters and editors with whom

she regularly worked to inform them of the writing restriction she was under and the

explanation she was given that the ban was imposed to avoid the appearance of a

conflict of interest. She sent the draft email to Ginsberg, Wallsten, and Montgomery

for their review. Ginsberg instructed her not to send it, and she did not do so. The

complaint alleges that “Sonmez was thereby forced to repeatedly explain, on the

numerous occasions when a story related to sexual assault presented itself, that she

was banned from covering such stories because she is a survivor of sexual assault

and has spoken out about her own experience.”

The next day, September 19, 2018, Sonmez received an email inquiry from a

reporter with the South China Morning Post who was writing a story about Kaiman.

The reporter told Sonmez that Kaiman claimed Sonmez had a crush on him, that his

sexual encounter with her in Beijing had been consensual, and that if it had truly

been non-consensual, Sonmez would have gone to the Chinese police. The reporter

sought Sonmez’s response. Sonmez found Kaiman’s assertions sickening. She

forwarded the email to her editors. Grant and Ginsberg told her the Post would not

advise her how to respond, but Wallsten informed Sonmez that he was “copying

others here who should also be up to speed on this and involved in the deliberations

regarding your response, as there are clear implications for the Post.” Grant and

Ginsberg then instructed Sonmez to take a few days off from work.

14

While she was on leave, Sonmez asked for clarification of the Post’s role in

connection with her response to Kaiman’s allegations against her. Grant replied that

the Post wanted to receive updates but that Sonmez would have to decide on her own

how she would respond. Sonmez’s leave of absence then was extended indefinitely,

adding to her distress and causing her to fear that her job was in jeopardy. In a phone

call on the evening of September 26, 2018, Grant chastised Sonmez for not having

included Kaiman’s assertions that their sexual encounter was consensual when she

initially reported her charges against him (which Sonmez did, of course, long before

she learned of Kaiman’s assertions from the South China Morning Post reporter).

Grant lectured Sonmez that “the only thing we have as journalists is our credibility

and our willingness to be transparent.” Sonmez responded that she was semi-

conscious during Kaiman’s assault and vehemently denied his characterization of

their encounter as consensual.

Sonmez was allowed to return to work on September 30, 2018, after Judge

Kavanaugh and Ford had finished testifying before the Senate Judiciary Committee.

In a meeting with Ginsberg, Wallsten, and Grant on October 2, Grant again brought

up Kaiman’s claims that their sexual encounter was consensual and expressed anger

at Sonmez’s attempt to explain to her colleagues in an email that she had been barred

from covering the Kavanaugh story to avoid any appearance of a conflict of interest.

Grant also said she wanted this to be the last discussion they had on the issue of

15

Sonmez’s assault. The next day, Grant emailed Sonmez. “Just to reiterate what we

discussed yesterday,” Grant wrote, “we feel it’s best for the public discussion of this

to be in the rear-view mirror. If you feel the need to respond/discuss further

publicly . . . doing so would potentially limit the stories you could handle.”

There is no indication that Sonmez disobeyed this injunction. Nonetheless,

on October 10, 2018, Ginsberg and Wallsten informed Sonmez that she was

prohibited from participating in any #MeToo-related coverage until the mid-term

elections were over. This expanded prohibition prevented Sonmez from working on

a number of stories, some of which were barely (if at all) related to sexual

misconduct. 2 The ban continued until it expired by its terms on the day of the mid-

term elections, November 7, 2018. After that date, Sonmez wrote approximately

two dozen stories relating to sexual misconduct or #MeToo.

Sonmez alleges that the extended prohibition in 2018 on her coverage of such

news stories was retaliatory, discriminatory, and “consistent with the unequal

treatment women experience at the Post in comparison to men.” According to the

2

For example, the complaint alleges, Sonmez was not allowed to write about

a United States Senator’s reelection campaign because the story involved a

campaign ad in which the Senator inappropriately identified survivors of sexual

abuse; or about a lieutenant governor’s resignation because the story involved

inappropriate comments the lieutenant governor had made to a woman.

16

complaint, the “vast majority of the Post’s department heads” historically have been

men, some of whom “manage their female subordinates based on outdated

stereotypes, including that women are unable to be as ‘objective’ as their male

colleagues because, inter alia, they are too emotional.” As an example of this in her

own experience, Sonmez alleges that when she was tasked with writing about a rally

at which then former President Trump unexpectedly “[made] derogatory statements

about Mr. Kavanaugh’s accuser[,]” Wallsten cautioned her to “write it straight,”

implying that she was “incapable of unbiased reporting.” This was “eerily similar,”

the complaint goes on to allege, to Martin Baron’s publicly reported response to a

suggestion that a female editor be added to an all-male team covering allegations of

sexual harassment against a prominent network television executive. The complaint

quotes a New York Magazine story on the episode (entitled “What Was the

Washington Post Afraid of?”) as stating that “Baron agreed [to the suggestion] but

added that all decisions about the story would be made strictly on the ‘basis of

journalism,’ which suggested that Baron believed that women were incapable of

editing a story involving sexual misconduct in an objective and unemotional

manner.”

17

C. Resumption of the Reporting “Ban” and Warning for Violation of

the Post’s Social Media Policy

Less than a year after the restriction on Sonmez’s reporting was lifted, the

editors decided to reimpose it. According to Sonmez’s complaint, this came about

as follows.

In August 2019, Reason Magazine published an article about Kaiman and the

sexual assault allegations that had been made against him. The article was highly

critical of Sonmez and the other woman who had complained about Kaiman. It

described the “injustice” Kaiman had suffered from the effect of their accusations

on his life and career trajectory. The complaint states that after this article appeared,

“dozens” of abusive and threatening messages targeting Sonmez were posted online.

The messages included comments calling her “evil,” urging her to kill herself, and

stating that if any women deserved to be raped, she and Kaiman’s other accuser did.

Sonmez informed her editors of the article and the personal attacks she was

receiving. On August 25, 2019, Sonmez submitted a request for correction of the

article to Reason Magazine. She posted this request on her Twitter account, which

identified her as a Post reporter, and thereafter “pinned” the post at the top of her

Twitter profile. On August 30, the website Jezebel posted its own article pointing

out what it claimed were errors and omissions in the Reason Magazine piece.

18

Two days later, on September 1, NPR’s “All Things Considered” program

posted a radio segment in which the host and guests discussed the Reason Magazine

article and the #MeToo movement. During the broadcast, Kaiman’s actions were

defended as “private encounters between two consenting adults,” and one of the

guests, herself a prominent magazine journalist, mischaracterized Sonmez’s

allegations and impugned her motives for speaking out against Kaiman. After the

broadcast, on September 3, 2019, this guest engaged in a Twitter exchange with

Sonmez directly and criticized her for ruining Kaiman’s life. This exchange

prompted another wave of online abuse of Sonmez by “dozens” of Twitter users.

Up to this point, none of Sonmez’s editors had raised any objections to her

Twitter posts. But the following day, September 4, 2019, Ginsberg and Montgomery

informed Sonmez that the Post was again suspending her indefinitely from covering

any #MeToo-related stories. Sonmez refers to this as the “second ban.” As in the

case of the first ban, the complaint alleges that Ginsberg reportedly claimed it was

Baron who made the decision to impose the second ban. Sonmez “vehemently

protested the ban for essentially the same reasons” she had protested the earlier ban,

but to no avail. Once again, Sonmez was forced to explain repeatedly to her

assignment editors and colleagues that she was prohibited from covering #MeToo-

related stories because she was a victim of a sexual offense and had spoken out.

19

A month later, on October 2, 2019, Ginsberg instructed Sonmez to clear all

future posts about her assault with her editors. The following day Ginsberg asked

her to remove her pinned tweet correcting the Reason Magazine article because, he

said, the tweet made him “uncomfortable.” Ginsberg did not suggest that the tweet

violated any Post policy or guideline. Sonmez resisted removing the tweet,

explaining that she kept it up to protect herself from the false statements being made

about her and to prevent further online attacks. Ginsberg persisted in urging Sonmez

to take down the tweet, telling her that if she removed it, the Post could allow her to

tweet responses to any future attacks. Sonmez explained that she was maintaining

the pinned tweet to prevent such attacks. But Ginsberg continued to press Sonmez

to remove it. Sonmez asked him whether he would put the request in writing.

Ginsberg, who then ended the conversation, never did so.

However, two weeks later, on October 17, 2019, Grant and Barr called

Sonmez to a meeting and issued her a written warning stating that she had violated

the Post’s Social Media Policy by defending herself with her pinned tweet calling

for correction of the Reason Magazine article. The warning stated that “reporters

should make every effort to remain in the audience, to be the stagehand rather than

the star, to report the news, not to make the news.” The warning further stated that

future infractions of the Social Media Policy would lead to Sonmez’s termination.

During the meeting, Grant belittled Sonmez’s concerns about the coverage of her

20

allegations against Kaiman as involving “errors real or imagined.” Grant also told

Sonmez to stop taking notes during the meeting because “our words could be used

against us.”

This was the first time that Sonmez’s editors claimed she had violated the

Social Media Policy (or any policy of the Post). Sonmez asked how she should

proceed, consistent with that policy, if she received further online attacks. The

editors did not give her any guidance.

On November 25, 2019, Sonmez and representatives of the Washington Post

Guild met with Grant and the Post’s attorney to discuss a grievance the Guild had

filed concerning Sonmez’s purported violation of the Social Media Policy. At the

meeting, Sonmez and the Guild requested written guidance on how Sonmez could

defend herself online without violating the policy, because the policy did not

specifically address the issue and Sonmez’s editors had made conflicting statements

on whether this was a personal or professional matter, whether Sonmez needed

approval to tweet, and whether the Post wanted or had the authority to control her

tweeted responses. Grant ended the meeting shortly after these questions were

raised, without answering them. The second ban remained in effect.

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D. The Second Alleged Violation of the Social Media Policy

Two months later, on January 26, 2020, Sonmez was at her desk in the

newsroom when news broke of basketball star Kobe Bryant’s death in a helicopter

crash. Sonmez posted on her Twitter feed a link, without any commentary, to a

Daily Beast article about allegations of sexual assault that were lodged against

Bryant in 2016. 3 Sonmez’s Twitter account and her work email were then

“inundated” with abusive messages, including threats of rape and murder. Sonmez

responded on Twitter that the barrage of threats “speaks volumes about the pressure

people come under to stay silent in these cases.”

Later that same afternoon, Baron sent Sonmez an email containing a

screenshot of her tweet with the link to the Daily Beast article, with the comment,

“Felicia. A real lack of judgment to tweet this. Please stop. You’re hurting this

institution by doing this.” Baron sent copies of his email to Grant, Ginsberg, and

Barr.

Meanwhile, Sonmez emailed Grant and Wallsten to inform them that she was

receiving threats by Twitter and email. Grant told her to delete her initial tweet and

3

The complaint alleges that “[p]osting articles from other news organizations

is a typical social media practice for journalists at the Post and in virtually all other

news organizations throughout the world.”

22

her responses and to refrain from “further discussion on social media of a story that

does not pertain to your coverage area.” Sonmez replied that she would delete the

tweets and asked what to do about the threats she was receiving, one of which

disclosed her home address (an act of “doxxing”). Grant responded that the Post’s

“Director of Social and Operations” could reach out to Twitter to get the doxxing

“taken care of” but said nothing else about ensuring Sonmez’s safety. Sonmez sent

another email to Grant in which she reiterated her need for “some further guidance

from the Post’s security team on what to do,” since she was “receiving a flood of

threats” and “[p]eople are now emailing me with my home address and telling me I

deserve to be raped/killed/etc.” In reply, Grant again instructed Sonmez to delete

her tweets (which Grant said she was “still seeing”), told Sonmez she was “not

helping her situation” and “in violation of a directive from a managing editor” by

keeping her tweets up, and said that “[t]he security protocol is not to respond to

threats.” Sonmez confirmed that she had deleted her tweets. Grant then thanked her

for doing so, suggested that Sonmez might “consider a hotel or a friend’s place for

this evening,” and said that she would be back in touch with Sonmez later.

It was apparent to Sonmez that Grant viewed the deletion of her tweets as

more urgent than the death and rape threats and doxxing that Sonmez was enduring.

The complaint alleges that “[i]nstead of contacting the Post’s security team, as is the

protocol when a reporter is threatened,” Grant simply advised Sonmez to ignore the

23

threats. However, Sonmez then reached out to the Director of Security herself and

copied him on her emails, and he offered her assistance. Fearing to go home,

Sonmez checked into a hotel.

Later that night, Grant called Sonmez again to inform her that she had been

placed on administrative leave (with pay) while the Post investigated whether her

tweets relating to Kobe Bryant had violated the Post’s Social Media Policy and

warranted disciplinary action. The Post announced this in a public statement that

was disseminated in stories appearing in the media and online. Grant was quoted in

one story as stating that Sonmez’s “tweets displayed poor judgment that undermined

the work of her colleagues.” Sonmez’s complaint alleges that “Sonmez, who was

living at a hotel and dealing with rape and murder threats, experienced severe

emotional distress and embarrassment” as a result of Grant’s public admonishment

and the Post’s actions, “all of which were taken because of her status as a victim of

a sexual offense.”

The Washington Post Guild quickly came to Sonmez’s defense in a letter to

Baron and Grant that was signed by over 300 Post employees and was shared with

the public via a link on Twitter. The letter stated the following:

We write to share our alarm and dismay that our

newsroom leaders have chosen to place Felicia Sonmez on

leave over a social media post, and to urge The Post to take

24

immediate steps to ensure the safety of our colleague. This

is not the first time that The Post has sought to control how

Felicia speaks on matters of sexual violence. Felicia

herself is a survivor of assault who bravely came forward

with her story two years ago. When articles attacking her

were published in other outlets, The Post did not release a

statement in support of one of its respected political

reporters. Instead, management issued a warning letter

against Felicia for violating The Post’s vague and

inconsistently enforced social media guidelines.

The following day, after Guild stewards and Sonmez met with Grant and Barr

to discuss the matter, Grant informed Sonmez that she had not violated the Post’s

Social Media Policy and that her suspension was lifted. That evening, Grant issued

a newsroom-wide memo, signed by Baron and Barr, which acknowledged that the

Post’s Social Media Policy needed to be updated because “individual cases that have

arisen in recent years indicate to us that further guidance is needed.” The memo also

assured the Post’s staff that “[w]e always endeavor to act quickly and thoroughly to

protect and defend our colleagues from intimidation and threats.”

The next month, the Post began to reevaluate its Social Media Policy and

Baron, Grant, and other editors held “social media conversations” with newsroom

employees to elicit their views. At one such meeting on February 20, 2020, an

employee asked Baron whether matters such as murder and sexual assault can be

viewed as issues with “two sides.” According to the complaint, Baron responded:

25

“Murder is evil, okay? . . . It’s when you get to the point of advocacy of certain

policies [that the line is crossed].”

E. Sonmez’s 2019 Performance Evaluation and the Continuation of

the Second Ban

In April 2020, Sonmez received a lower rating in her 2019 Performance

Evaluation, which resulted in a lower raise than she would have received otherwise.

The complaint alleges that, in a meeting the following month to discuss her

evaluation, Wallsten and Montgomery told Sonmez that the “basis” for her lower

rating was her “tweets defending herself from false claims related to her sexual

assault.” Sonmez again asked for clarity as to the prohibition on her writing about

sexual assault. Montgomery responded that there was “concern about an appearance

of a conflict on these issues.”

Meanwhile, the second ban was still in effect, and it prevented Sonmez from

covering a number of stories involving prominent individuals. In May 2020, after

Ginsberg confirmed that the ban would preclude Sonmez from covering allegations

then being made against Joe Biden, Sonmez protested, asserting in an email that it

was “simply discriminatory for the Post to bar one of its reporters from covering

sexual assault due to her identity as a sexual assault survivor who has publicly come

forward,” and that the ban was “humiliating” her before her editors and diminishing

26

her in comparison with her colleagues whose coverage areas were not so restricted.

Sonmez received no response to her protest.

Sonmez alleges the Post strongly supported other reporters (who were not

sexual assault victims) when they spoke out as she did, or were harassed as she was,

and did not curtail their reporting activity. As one example, her complaint cites the

Post’s backing of her colleague Michelle Ye Hee Lee, who was, like Sonmez, a

reporter on the Post’s National desk. Lee was the president of the Asian American

Journalists Association. According to Sonmez’s complaint, Lee reported on anti-

Asian hate crimes for the Post, and also frequently issued statements via social media

condemning such crimes and discussing the shortcomings in other news

organizations’ coverage of anti-Asian violence. Lee even appeared in person on a

CNN program to address that issue. But rather than criticize or rein in Lee’s

activities (as it had criticized and restricted Sonmez with respect to allegedly

comparable activity pertaining to sexual assault stories), the Post gave her a

prominent platform for carrying on her advocacy and publicly praised her work;

Wallsten, for example, tweeted that Lee was “a stellar journalist,” her leadership was

“an inspiration,” and he was “proud to call [her] a colleague.”

The complaint also cites the Post’s support for another colleague, Seung Min

Kim, when she was subjected, as Sonmez had been, to a barrage of threatening

27

messages sent to her inbox and Twitter feed. (This harassment of Kim allegedly was

sparked by an online photo of her confronting Senator Lisa Murkowski about

criticism the Senator had received.) In response to the harassment of Kim, her

editors Ginsberg, Wallsten, and Montgomery reached out to support her and publicly

defended her on Twitter and other platforms. Ginsberg, for example, tweeted that

“[n]o one should have to endure the racist, sexist, ill-informed comments that have

flooded her inbox.” During a March 2021 Town Hall meeting on “race, trust and

newsroom culture” held by senior editors Barr and Ginsberg with the newsroom

staff, Ginsberg reiterated the Post’s support of Kim and emphasized the importance

of defending reporters from harassment and giving them agency in handling it.

However, when a staffer asked about the editors’ failure to support and defend

Sonmez when she was similarly subjected to online harassment and threats, they

refused to discuss the difference in treatment. Barr dismissed the question saying

this was not the time to compare cases, but no editor claimed Sonmez’s situation

was materially distinguishable from Kim’s. After this event, Sonmez took several

days off, “as she was experiencing symptoms associated with post-traumatic

distress.”

The second ban on Sonmez’s reporting of sexual assault-related news stories

remained in effect for a year and a half. Then, on Sunday March 28, 2021, Politico

published a story about the ban. Sonmez posted a link to the story on Twitter and

28

tweeted, “I’m not planning on going anywhere. The Washington Post needs to do

better. I just want to do my job.” Sonmez added, “I’ve tried to keep my head down

and just do my job the best I can, despite having to take myself off sexual

assault-related stories at least once every week or two, sometimes even more often.”

She also wrote the following:

I faced no ban my first three months on the job. I

wrote #MeToo-related stories with no problem. It was

only once the Kavanaugh story broke in Sept. 2018 that

the editors enacted one. It was lifted several months later,

then reinstated in late 2019 when I was being attacked

online after the publication of a story about the man who

assaulted me. The ban has been in place ever since for

more than a year now . . . . If I am attacked online by an

army of misogynist trolls, that does not harm The

Washington Post any more than my awesome colleague

[Ms. Kim] harms the Post by facing a relentless swell of

racism online. Neither of us is less capable of doing our

job due to our identity.

On the following day, March 29, 2021, the Post lifted the second ban, effective

immediately, and allowed Sonmez to resume covering #MeToo-related news stories.

Sonmez alleges that due to the bans on her reporting and the other

discriminatory conduct she endured, she suffered not only economic loss and

deprivation of professional opportunities, but also constant humiliation and

embarrassment, and considerable mental and emotional distress. “At various times,”

Sonmez alleges, she “became severely depressed, developed intense anxiety and

29

received treatment from therapists and psychiatrists who she continues to see,” and

she was prescribed anti-depressant medications. She “also experienced physical

pain, including severe pain in her jaw from grinding her teeth at night” and

developed temporomandibular joint disorder requiring her to undergo two oral

surgery procedures to relieve the pain. When the Post lifted the second ban, the

Post’s Guild issued a statement that took note of its harsh impact on Sonmez. “We’re

glad to see The Post reverse its harmful stance and allow our colleague Felicia

Sonmez to do her job,” the Guild said. “But this decision,” it added, “came only

after much public criticism and at the expense of Felicia’s mental health. The Post

must do better.”

II. Procedural History

On July 21, 2021, Sonmez filed her complaint in Superior Court against the

Post and six of its editors (whom we shall refer to collectively as “the Post”). The

complaint asserted that the Post had (1) discriminated against her based on her status

as a victim of a sexual offense and/or her sex (primarily by imposing the two “bans,”

giving her an adverse performance evaluation, and suspending her pending a

determination of whether she had violated the Post’s Social Media Policy);

(2) subjected her to a hostile work environment, and (3) retaliated against her for her

protected activity in opposing the discriminatory treatment, all in violation of the

30

District of Columbia Human Rights Act. The complaint also asserted a claim of

negligent infliction of emotional distress under D.C. common law.

The Post filed a special motion to dismiss the complaint under the District of

Columbia Anti-SLAPP Act, in which it contended that Sonmez’s claims against the

“bans” arose from expressive conduct protected by that Act. When a defendant

makes such a prima facie showing under the Act, the burden shifts to the plaintiff to

proffer evidence showing a likelihood of success on the merits of her claims. The

Superior Court concluded, however, that the Anti-SLAPP Act did not apply to the

bans because a decision not to assign Sonmez to write certain stories was not an “act

in furtherance of the right of advocacy on issues of public interest” within the

meaning of the Act. Principally for that reason, the court denied the special motion

to dismiss even though Sonmez did not proffer any admissible evidence to show a

likelihood of success on the merits of her claims.

The Post also moved to dismiss Sonmez’s complaint pursuant to Civil

Rule 12(b)(6), for failure on its face to state a claim upon which relief could be

granted. The court granted this motion. It held, first, that Sonmez’s Human Rights

Act claims based on the first ban (which lasted from September to early November

2018) were time-barred by the one-year statute of limitations for actions under that

31

Act. 4 Sonmez does not dispute that her first-ban claims are time-barred and that

evidence relating to the first ban is admissible only as background evidence (but with

a qualification relating to her hostile work environment claim that we discuss

hereinbelow).

Second, the court held that Sonmez’s allegations of discriminatory treatment

and subjection to a hostile work environment failed to state a claim for relief because

the complaint did not plausibly allege that the Post took action against her for

unlawful discriminatory reasons, i.e., because of Sonmez’s status as a victim of

sexual assault or a woman. The court found that the factual allegations in the

complaint made it clear that “[t]he Post attributed all of the employment actions

about which Ms. Sonmez complains to her public statements, not to her victim status

or sex,” and that this “stated reason—avoiding the appearance or a perception of bias

by its reporters—is a basis . . . that does not implicate the DCHRA.”

4

In pertinent part, D.C. Code § 2-1403.16(a) states that “[a] private cause of

action pursuant to this chapter shall be filed in a court of competent jurisdiction

within one year of the unlawful discriminatory act,” subject to exceptions not

applicable here. The court ruled that Sonmez’s claims relating to the second ban,

which began on September 4, 2019 (more than a year before she filed her complaint),

were not similarly time-barred because the statute of limitations was tolled due to

the COVID-19 public health emergency for a period from March 18, 2020 through

March 30, 2021. This ruling also applies to Sonmez’s Human Rights Act claims

based on other actions taken during the period of the second ban, such as the April

2020 negative performance rating. The Post does not challenge this ruling.

32

Third, the court held that Sonmez’s allegations of unlawful retaliation did not

state a claim for relief because her complaint did not plausibly allege that her

objections to the bans qualified as protected opposition to violations of the Human

Rights Act or that her objections were causally linked to any adverse retaliatory acts

by the Post.

Because the court granted the Rule 12(b)(6) motion on those grounds, it stated

that it did not need to decide whether (1) the alleged bans and other challenged

actions constituted adverse employment actions sufficient to support a Human

Rights Act complaint; or (2) the alleged hostile aspects of her work environment

were severe and pervasive enough to affect a term or condition of her employment.

Lastly, the court ruled that the complaint did not state a plausible claim of

negligent infliction of emotional distress, in essence because the relationship

between a newspaper and its reporters is not a special relationship that necessarily

implicates the reporter’s emotional well-being or makes it especially likely that the

newspaper’s negligence would cause serious emotional distress to its reporters.

Sonmez does not appeal the dismissal of this claim.

Sonmez timely appealed the grant of the Post’s 12(b)(6) motion to dismiss.

The Post cross-appealed the denial of its Anti-SLAPP Act special motion to dismiss.

33

III. The Anti-SLAPP Act Special Motion to Dismiss

We consider first the trial court’s denial of the special motion to dismiss. The

court concluded that the motion failed as a matter of law to make the prima facie

showing, required by the Anti-SLAPP Act, 5 that Sonmez’s claims arose from an “act

in furtherance of the right of advocacy on issues of public interest” as that term is

defined in D.C. Code § 16-5501(1). Our review is de novo.6 For the following

reasons, we affirm that denial.

Anti-SLAPP Acts in this and other jurisdictions have been enacted to combat

so-called “strategic lawsuits against public participation” (SLAPPs), which are

commonly described as legally meritless “action[s] filed by one side of a political or

public policy debate aimed to punish or prevent the expression of opposing points

of view.” 7 Although the various state anti-SLAPP laws share that common goal,

they differ from our own law (and from each other), sometimes only

terminologically and sometimes very significantly in their scope and other ways.

For that reason, and because the District of Columbia Anti-SLAPP Act was not

modeled on any particular state’s law, we have said that we “decline” to “follow the

5

See D.C. Code. § 16-5502(b).

6

See Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1240 (D.C. 2016).

7

Id. at 1226 (quotation marks omitted).

34

precedent of other states” in this area in construing our Act. 8 Instead, we adhere to

“basic principles of statutory interpretation” followed in this jurisdiction and “look

to the plain language of the statute” to construe the D.C. Anti-SLAPP Act. 9

The special motion to dismiss is a statutory procedure adopted in our Act to

enable a SLAPP defendant to expeditiously and inexpensively defend against such

a meritless “suit that is filed, not to succeed, but to prevent or punish the defendant’s

speech or advocacy.” 10 It may appear difficult to see how that description could

apply to Sonmez’s lawsuit, but the question before us is whether her complaint is

subject to the specific terms of the Anti-SLAPP Act and its special motion to dismiss

procedure, which does not condition granting a special motion to dismiss on a

8

Saudi Am. Pub. Rels. Affs. Comm. v. Inst. for Gulf Affs., 242 A.3d 602, 611

(D.C. 2020). The bill that became the District of Columbia’s Anti-SLAPP Act was

modeled on a bill then pending in Congress (which was not enacted). See Council of

the District of Columbia, Committee on Public Safety and the Judiciary, Report on

Bill 18-893, “Anti-SLAPP Act of 2010” (Nov. 18, 2010) (“2010 Committee

Report”), at 4. (The 2010 Committee Report is available at

https://lims.dccouncil.gov/downloads/LIMS/23048/Committee_Report/B18-0893-

CommitteeReport1.pdf; https://perma.cc/NPS7-JG59 .)

9

Saudi Am. Pub. Rels. Affs. Comm., 242 A.3d at 611 (citing District of

Columbia v. Place, 892 A.2d 1108, 1111 (D.C. 2006)).

10

Mann, 150 A.3d at 1235 (internal citations and quotation marks omitted).

35

finding of an improper motive for the complaint. 11 Even so, in construing the

statutory procedure, we should do so in recognition of, and with an eye to

effectuating, its limited intended purpose.

A party filing a special motion to dismiss must “make[] a prima facie showing

that the claim at issue arises from an act in furtherance of the right of advocacy on

issues of public interest.” 12 The Anti-SLAPP Act defines an “act in furtherance of

the right of advocacy on issues of public interest” to mean:

(A) Any written or oral statement made:

(i) In connection with an issue under consideration or

review by a legislative, executive, or judicial body, or any

other official proceeding authorized by law; or

11

See Am. Stud. Ass’n v. Bronner, 259 A.3d 728, 748 (D.C. 2021) (explaining

that the Anti-SLAPP Act “does not call for inquiry into the plaintiff’s motives; it

focuses on the claim, not the claimant”).

12

D.C. Code § 16-5502(b). A “prima facie” showing is a showing sufficient

to establish the matter in question unless it is rebutted by the non-movant. See

Bronner, 259 A.3d at 744 n.57. If the requisite prima facie showing is made,

§ 16-5502(b) directs that “the motion shall be granted unless the responding party

demonstrates that the claim is likely to succeed on the merits, in which case the

motion shall be denied.” Subsection (d) provides that “[i]f the special motion to

dismiss is granted, dismissal shall be with prejudice.” Despite its name, the special

motion to dismiss is different from a Civil Rule 12(b)(6) motion to dismiss for failure

to state a claim on which relief can be granted. We have described the Anti-SLAPP

Act special motion to dismiss as “essentially an expedited summary judgment

motion,” except that it “imposes the burden on plaintiffs and requires the court to

consider the legal sufficiency of the evidence presented before discovery is

completed.” Id. at 741 & n.38 (quoting Mann, 150 A.3d at 1238 n.32).

36

(ii) In a place open to the public or a public forum in

connection with an issue of public interest; or

(B) Any other expression or expressive conduct that

involves petitioning the government or communicating

views to members of the public in connection with an issue

of public interest.[13]

“Thus,” we have said, “the movant must make a prima facie showing that the claim

at issue ‘arises from’ some form of speech—a ‘written or oral statement’ or other

‘expression or expressive conduct’—of the specified character.” 14 The term “arises

from” means that there must be a “substantial connection” between the statutorily

protected speech and the claim. 15 In other words, “the prima facie showing required

to support a special motion to dismiss a claim under the District of Columbia

Anti-SLAPP Act is a showing that the claim is based on the movant’s protected

activity, i.e., that such activity is an element of the challenged cause of action.” 16

13

D.C. Code § 16-5501(1). The Anti-SLAPP Act defines an “issue of public

interest” to “mean[] an issue related to health or safety; environmental, economic,

or community well-being; the District government; a public figure; or a good,

product, or service in the market place.” D.C. Code § 16-5501(3). The definition

goes on to state that “[t]he term ‘issue of public interest’ shall not be construed to

include private interests, such as statements directed primarily toward protecting the

speaker’s commercial interests rather than toward commenting on or sharing

information about a matter of public significance.” Id.

14

Bronner, 259 A.3d at 744.

15

Id. at 746.

16

Id. at 749.

37

The Post contends that Sonmez’s claims concerning the restrictions (“bans”)

on her coverage of #MeToo news arise from “expressive conduct” within the

meaning of Subsection 16-5501(1)(B) because those restrictions on Sonmez’s

assignments were acts of editorial discretion that enjoy protection under the First

Amendment and therefore should be viewed as “expressive conduct.” The trial court

rejected this argument, reasoning that (1) the Anti-SLAPP Act “does not reach as

broadly as the First Amendment”; and (2) the assignment decision in itself “is not

speech” within the “highly specific” definition of the class of acts shielded by the

Anti-SLAPP Act. In other words, the trial court found that the bans were not

“expressive conduct that involve[d] . . . communicating views to members of the

public in connection with an issue of public interest.”

We agree with the trial court on each of these two points. To begin with, as

we explained in Bronner, on their face the procedural protections provided by the

Anti-SLAPP Act are not coterminous with the broad coverage of the First

Amendment, but rather extend only to “certain categories of speech”:

D.C. Code § 16-5501(1) provides a highly specific

definition of the class of acts that the Anti-SLAPP Act

shields. It carefully limits that class to certain categories

of speech, with the identified aim of protecting “the right

of advocacy on issues of public interest.” The narrowness

and precision of the definition strongly indicates the

legislature did not intend the Act’s protections to stretch

too far. We are led to conclude that the party filing a

38

special motion to dismiss a claim must show that some

form of speech within the Anti-SLAPP Act’s protection

is the basis of the asserted cause of action. A legally

objectionable aspect of the protected speech itself—e.g.,

that the speech is defamatory or otherwise tortious, or

violates a contract’s prohibition—therefore must be the

subject of the claim or an element of the cause of action

asserted.[17]

The legislative history of the Anti-SLAPP Act confirms that not all conduct

protected by the First Amendment is entitled to the procedural protection afforded

by the Act. The initial draft of the Act was introduced in the Council of the District

of Columbia in Bill 18-893 as the “Anti-SLAPP Act of 2010.” 18 As proposed, the

new Act would have permitted a special motion to dismiss any claim arising from

“an act in furtherance of the right of free speech,” which was defined to include not

only written or oral statements but also “any other conduct in furtherance of the

exercise of the constitutional right to petition the government or the constitutional

right of free expression in connection with an issue of public interest.” 19 But at the

17

Id. at 746 (emphasis in the original).

18

See 2010 Committee Report, Attachment 1.

19

Id., Attachment 1 at 1-2.

39

behest of the ACLU, which submitted comments on the bill, this language was

modified in two pertinent respects. 20

First, the ACLU recommended that the Act not use the term “Act in

furtherance of the right of free speech” (emphasis added) to describe the conduct

protected by a special motion to dismiss. It explained that “the right of free speech,”

as commonly understood, had “a broader meaning than the meaning given in this

bill,” and that to “avoid confusion” between that common meaning and “the special,

narrower meaning given to it in this bill,” a different term would be preferable. The

ACLU suggested the term “Act in furtherance of the right of advocacy on issues of

public interest.” 21

Second, the ACLU suggested a corresponding revision of the Act’s definition

of protected nonverbal conduct so as not to require a court to “determine whether

given conduct is protected by the Constitution.” In lieu of the language in the bill

referencing the Constitution, the ACLU proposed that the “other” covered conduct

be defined as “[a]ny other expression or expressive conduct that involves petitioning

20

See id., Attachment 2, Testimony of the American Civil Liberties Union of

the Nation’s Capital by Arthur B. Spitzer, Legal Director, on Bill 18-893, the “Anti-

SLAPP Act of 2010.”

21

Id., Attachment 2, at 4.

40

the government or communicating views to members of the public in connection

with an issue of public interest.” 22

The Council accepted both these changes in Section 16-5501(1) of the Anti-

SLAPP Act. Taken together, the changes demonstrate that the Act does not provide

for a special motion to dismiss whenever the challenged conduct enjoys First

Amendment protection, but only for conduct described by the Act’s narrower

definition of an “act in furtherance.”

With regard to that definition, the Post suggests that where § 16-5501(1)(B)

uses the word “involves,” we should construe that word to mean “affects,” so that

the definition would cover any expression or expressive conduct that merely

“affects” activities of “petitioning the government or communicating views to

members of the public in connection with an issue of public interest.” We decline

to take that suggestion. It is true, as careful scrutiny of the full definition in an

unabridged dictionary will confirm, that the word “involve” can have many different

shades of meaning, depending on the context; and in some uncommon usages it can

22

Id., Attachment 2, at 5.

41

mean “affect.” 23 But in ordinary usage, the two words have materially different

meanings. Typically, the word “affect” as a verb is a broad term meaning to “act

upon” or “influence” something, while the word “involves” means “includes” (listed

in the dictionary as a synonym) or “employs.” 24 Section 16-5501(1)(B) plainly uses

the word “involves” in the latter sense to specify the two narrow subcategories of

expressive conduct to which the statute applies. Substituting the rather vague word

“affects” would dramatically and ambiguously enlarge the scope of the provision.

The Post makes no argument to justify construing “involves” to mean “affects” in

this context, and we see no justification for adopting such an uncommon

construction.

So we turn to consider whether the restrictions that the Post imposed on

Sonmez’s reporting assignments—the bans—constituted “expressive conduct” of

the specific kind specified in Subsection 16-5501(1)(B) of the Anti-SLAPP Act. As

relevant here, Subsection (B) imposes the minimum condition that such conduct

23

The Post cites Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 274

(1995) (“[S]uch an interpretation, linguistically speaking, is permissible. The

dictionary finds instances in which ‘involve’ and ‘affect’ sometimes can mean about

the same thing.” (citing 5 Oxford English Dictionary 466 (1st ed. 1933) (construing

a provision of the Federal Arbitration Act concerning “a contract evidencing a

transaction involving commerce”))).

24

See, e.g., the definitions of “involve” and “affect” in Webster’s Third New

International Dictionary of the English Language Unabridged (1993).

42

must “involve[] . . . communicating views to members of the public.” 25 The Act

does not protect “claims based on non-speech activities that are merely tangentially

related to protected speech.” 26 In addition, the requisite “public expression of

views” 27 must be “in connection with an issue of public interest.” But it is

undisputed that the Post imposed each of the “bans” on Sonmez without

communicating anything about them or the views underlying them to members of

25

See Fridman v. Orbis Bus. Intel. Ltd., 229 A.3d 494, 503 (D.C. 2020) (“In

order for Subsection B to apply, there must be evidence that appellees

‘communicat[ed] views to members of the public.’”); Fells v. Serv. Emp. Int’l Union,

281 A.3d 572, 580 (D.C. 2022) (“[S]etting aside the ‘issue of public interest’

language . . . it is clear that advocacy refers to anything that is expressive and

communicates views to members of the public.”).

Even in First Amendment jurisprudence, symbolic and other nonverbal

conduct is treated as equivalent to speech only when it is “inherently expressive,”

meaning that the conduct itself conveys an idea or message without the need of any

speech accompanying it. Rumsfeld v. F. for Acad. & Inst. Rts., Inc., 547 U.S. 47, 66

(2006), Texas v. Johnson, 491 U.S. 397, 404 (1989). See also Hurley v. Irish-Am.

Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) (explaining

that conduct is expressive and therefore protected by the First Amendment if a

reasonable person would interpret the conduct as some sort of message given the

context, even though “a narrow, succinctly articulable message is not a condition of

constitutional protection, which if confined to expressions conveying a

‘particularized message’ . . . would never reach the unquestionably shielded

painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of

Lewis Carroll”). (Unlike the Anti-SLAPP Act, though, the First Amendment does

also afford at least some protection to activities that are related to, but not equivalent

to, speech. See, e.g., Minneapolis Star & Trib. Co. v. Minnesota Comm’r of Revenue,

460 U.S. 575 (1983); Arcara v. Cloud Books, 478 U.S. 697, 704 (1986)).

26

Bronner, 259 A.3d at 747.

27

Fells, 281 A.3d at 580.

43

the public. Nor, of course, does Sonmez complain in her lawsuit about any such

public disclosure of the bans or the Post’s views relating to them; she complains

about the bans themselves. The mere institution of the bans inside the Post did not

amount to a communication of them to the public. 28 As the ACLU persuasively

argues in its amicus brief in support of Sonmez on the Anti-SLAPP Act issue,

A newspaper’s behind–the-scenes work of choosing

which reporter to assign to a story, to whatever extent it is

protected by the First Amendment, is not covered by the

Anti-SLAPP Act because the act of assigning a reporter

does not itself “communicat[e] views to members of the

public.” Indeed, it may never be known to the public at all:

the communication to the public—the byline of the

reporter who writes an article—conveys to the reader only

the name of the reporter who wrote the article, not that a

different reporter was considered for the article and passed

over for it, or that a reporter who had previously written

on that subject had been pulled off the beat rather than, for

instance, gone on vacation. 29

Accordingly, we hold that the trial court properly denied the special motion

to dismiss Sonmez’s complaint for failure of that motion to make the prima facie

28

Indeed, we understand from Sonmez’s complaint that there was no

announcement of the restrictions on her reporting inside the Post either, requiring

Sonmez herself to tell colleagues she was barred from working with them on stories

every time the bans applied.

Brief for the American Civil Liberties Union of the District of Columbia as

29

Amicus Curiae In Support of Cross-Appellee Sonmez on the SLAPP Issue, at 11.

44

showing that Sonmez’s claims arose out of an “act in furtherance of the right of

advocacy on issues of public interest” within the meaning of the Anti-SLAPP Act.

IV. The Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim on

Which Relief Can Be Granted

We review de novo a trial court’s dismissal of a complaint for failure to state

a claim on which relief can be granted. 30 In doing so, we must take the well-pleaded

factual allegations as true and construe the complaint in the light most favorable to

the plaintiff. 31 To survive a Rule 12(b)(6) motion to dismiss, a complaint need only

plead facts sufficient to state a claim that is “plausible on its face” rather than merely

speculative or conceivable. 32 Facial plausibility is not an onerous test; it “does not

impose a probability requirement at the pleading stage; it simply calls for enough

fact to raise a reasonable expectation that discovery will reveal evidence” supporting

the claim. 33 If the complaint satisfies that low bar, it “may proceed even if it strikes

a savvy judge that actual proof of those facts is improbable, and that a recovery is

very remote and unlikely.” 34

30

Williams v. District of Columbia, 9 A.3d 484, 488 (D.C. 2010).

31

See, e.g., Poola v. Howard Univ., 147 A.3d 267, 276 (D.C. 2016).

32

Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

33

Twombly, 550 U.S. at 556.

34

Id. (internal quotation marks omitted).

45

We consider first whether Sonmez’s complaint plausibly alleges that the Post

discriminated against her, in violation of the Human Rights Act, by taking adverse

actions on the basis of her status as a sexual assault victim or her sex. We then

address the plausibility of Sonmez’s allegations of hostile work environment and of

retaliation in violation of the Human Rights Act. Lastly, we address the Post’s

invocation of the First Amendment as a bar to Sonmez’s complaint regarding the

restrictions (“bans”) imposed on her reporting of news involving claims of sexual

misconduct.

A. Discrimination Based on Sonmez’s Status as a Sexual Assault

Victim or Her Gender

The Human Rights Act makes it “an unlawful discriminatory practice” for an

employer to take adverse action against an employee “wholly or partially” on the

basis of any of a number of protected attributes, including, as pertinent here, the

employee’s “sex” or “status as a victim . . . of . . . a sexual offense.” 35 There is no

dispute that, as Sonmez alleges in her complaint, she is (and at all relevant times

was) a member of both those protected classes.

The next question is whether Sonmez’s complaint adequately alleges that the

Post took sufficiently adverse actions against her to trigger the application of the

35

D.C. Code § 2-1402.11(a).

46

Human Rights Act. In relevant part, the Act declares it unlawful for an employer to

discriminate against an employee “with respect to his or her compensation, terms,

conditions, or privileges of employment,” or “to limit . . . his or her employees in

any way which would deprive or tend to deprive any individual of employment

opportunities, or otherwise adversely affect his or her status as an employee.” 36 This

court has understood this language to mean that a plaintiff must show that she

suffered “a significant change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits.” 37 Such a change arises only if the

employee suffers “materially adverse consequences or objectively tangible harm.” 38

36

D.C. Code § 2-1402.11(a)(1)(A).

37

Kumar v. District of Columbia Water & Sewer Auth., 25 A.3d 9, 17 (D.C.

2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

38

Barrett v. Covington & Burling LLP, 979 A.2d 1239, 1251 (D.C. 2009)

(quotation marks omitted); see also Cesarano v. Reed Smith LLP, 990 A.2d 455,

465, 467 (D.C. 2010). Sonmez cites Chambers v. District of Columbia, 35 F.4th 870

(D.C. Cir. 2022) (en banc), in which the D.C. Circuit overruled prior case law and

held that, under Title VII of the Civil Rights Act of 1964, once it has been established

that an employer discriminated against an employee in that employee’s “terms,

conditions, or privileges of employment” because of a protected characteristic, “the

analysis is complete” and the employee is not required to show any additional

requirement such as “objectively tangible harm.” Id. at 874-75. However, we are

obliged to adhere to the construction of the District of Columbia Human Rights Act

given in our prior decisions unless they are overturned by this court sitting en banc.

47

By contrast, purely subjective injuries, such as dissatisfaction with a reassignment,

public humiliation, or loss of reputation, are not adverse actions.” 39

Sonmez’s complaint charges that the following conduct constituted adverse

employment actions taken because of her status as a sexual assault victim or her sex:

“precluding and removing [her] from covering major stories involving sexual

misconduct, suspending her for posting an article about Kobe Bryant’s sexual assault

allegations, failing to offer her the Post’s security services when she was doxxed and

threatened with rape and murder and giving her a lower annual rating and less

compensation.”

The Post concedes (and we agree) that Sonmez’s allegations regarding the low

score she received in April 2020 for her 2019 performance evaluation, which

affected her compensation, satisfy the standard for an adverse employment action.

The complaint’s allegations concerning the second ban against coverage of stories

39

D.C. Dep’t of Pub. Works v. D.C. Off. of Hum. Rts., 195 A.3d 483, 491

(D.C. 2018) (internal quotation marks omitted). We are not addressing here the

elements of a hostile work environment claim. As we discuss infra, proof of

psychological injury is relevant to a showing that harassment was serious enough to

subject an employee to a hostile work environment, and under the Human Rights

Act such an employee may be compensated for “embarrassment, humiliation, and

indignity stemming from” the harassment. Fred A. Smith Mgmt. Co. v. Cerpe, 957

A.2d 907, 914 (D.C. 2008); see also Ivey v. District of Columbia, 46 A.3d 1101,

1110 (D.C. 2012).

48

involving sexual misconduct plausibly may satisfy that standard as well. As

described by Sonmez, the second ban lasted for a prolonged period and allegedly

meant that Sonmez “missed out on significant news stories . . . which would have

elevated her professional profile[.]” If the evidence Sonmez is able to marshal

supports that factual allegation, the second ban plausibly may qualify as a

deprivation of employment opportunities or a reassignment with significantly

different responsibilities resulting in materially adverse consequences (and not

merely humiliation or other “purely subjective injuries”) even though it did not

formally change her designation, salary, or benefits as a national news reporter or

preclude her from covering other significant news stories. “It is well-established

that an employee’s ‘reassignment with significantly different responsibilities’ can

constitute an adverse employment action if it has ‘materially adverse consequences

affecting the terms, conditions, or privileges of employment or future employment

opportunities such that a reasonable trier of fact could find objectively tangible

harm.’” 40

40

D.C. Dep’t of Pub. Works, 195 A.3d at 491 (quoting Douglas v. Donovan,

559 F.3d 549, 552 (D.C. Cir. 2009)). We therefore think it premature to conclude

now, as our dissenting colleague is prepared to conclude, that Sonmez’s

reassignment “was not an actionable ‘adverse employment action’ under the

District’s Human Rights Act . . .because it was not a ‘significant change’ in [her]

employment status.” Post at 98-99 (quoting Kumar, 25 A.3d at 17).

49

In these respects, we are satisfied that the complaint sufficiently alleges

adverse actions triggering the application of the Human Rights Act. On the other

hand, the complaint does not plausibly allege that Sonmez’s suspension in response

to her tweets concerning Kobe Bryant (which we consider together with the Post’s

public statement that the tweets “displayed poor judgment that undermined the work

of her colleagues”) had materially adverse consequences for her or otherwise met

the test for an adverse employment action serious enough to bring a claim of

unlawful discrimination within the purview of the Human Rights Act. Sonmez does

not allege that the suspension violated the terms of her employment. She was

maintained on paid leave, the suspension lasted only two days, and it ended with a

publicized determination that she did not violate the Social Media Policy and

deserved no sanction. Numerous courts have held that “a simple paid suspension is

not an adverse employment action.” 41

Lastly, while a failure to provide needed security services to which an

employee is entitled might amount to an adverse employment action, Sonmez’s

complaint does not plausibly allege that the Post actually did withhold such services

41

Davis v. Legal Servs. Ala., Inc., 19 F.4th 1261, 1266-7 (11th Cir. 2021)

(citing cases). We do not reject “the possibility that a paid suspension or

accompanying investigation carried out in an exceptionally unreasonable or dilatory

way may constitute an adverse employment action,” id. at 1266, but Sonmez’s

complaint does not raise that possibility.

50

when she received online threats. All the complaint says on the subject is that Grant

did not promptly contact the Post’s security team when Sonmez was threatened, and

instead urged Sonmez to ignore the threats, but that Sonmez nonetheless was in

touch the same day with the Director of Security. Notwithstanding the complaint’s

description of Grant’s disregard of protocol and seeming unconcern for Sonmez’s

safety, there are no particularized allegations that Sonmez was refused security

services or that they were unavailable to her; that there were security measures that

should have been offered or taken but were not; or that a lack of proper security

precautions led to any adverse consequences for Sonmez.

We turn now to whether the complaint plausibly alleges that the Post

discriminated against Sonmez on the basis of her status as a sexual assault victim or

her sex when it took the cognizably adverse employment actions against her—the

adverse performance evaluation and the second ban on her reporting news stories

involving claims of sexual misconduct.

A plaintiff can allege discrimination with direct or circumstantial evidence.

“Direct evidence of discrimination is evidence that, if believed by the fact finder,

proves the particular fact in question without any need for inference. . . [Such

evidence] includes any statement or written document showing a discriminatory

51

motive on its face.” 42 There is direct evidence when the employer overtly refers to

the employee’s protected trait when making the adverse employment decision. 43

In the present case, the complaint does not allege such overtly discriminatory

statements by any of the defendants linking the challenged personnel actions to a

prohibited motive, such as out-and-out admissions that Sonmez’s reporting was

restricted because she is a victim of a sexual offense or a woman. Sonmez argues

on appeal that certain alleged statements made by her editors did constitute direct

evidence of discriminatory motivation based on her protected status—specifically,

Barr’s statement to Sonmez (when imposing the first ban) that “[t]he work you do

intersects with what you have experienced in your life”; Ginsberg’s comment that

the accusations against Judge Kavanaugh were “too similar” to what Sonmez

experienced in Beijing; Ginsberg’s later remark that her pinned tweet regarding

errors in the Reason Magazine article made him “uncomfortable”; the assertion in

the warning she received that reporters should “remain in the audience”; and the

explanation she was given attributing her low performance score to her “tweets

defending herself” from the false claims related to her sexual assault. While these

alleged statements may support an inference of discriminatory intent, we do not

Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006)

42

(emphasis in original) (internal quotation marks omitted).

43

Mosleh v. Howard Univ., 2022 WL 898860, at *5 (D.D.C. 2022).

52

agree that they constitute direct evidence in themselves of discriminatory

motivation. None of the statements explicitly refers to Sonmez’s victimization or

sex as itself a reason for disadvantaging her (though, admittedly, the first two

statements in the list may be thought to come close) or otherwise clearly evinces a

discriminatory motive without any need for inference. 44

Sonmez also argues that the Post’s expressed legitimate motivation for its

bans—to avoid the appearance or perception of bias in its reporting that might be

created by Sonmez’s public stances and the publicity relating to her own

victimization—is a direct expression of a discriminatory motive. We disagree. The

proffered explanation is benign on its face, not explicitly about

punishing Sonmez on account of her protected status (nor, as she has suggested,

44

Cf. Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576-77 (D.C. Cir. 2013)

(holding that supervisor’s alleged statement to employee denied a raise—that, “[f]or

a young black man smart like you, we are happy to have your expertise; I think I’m

already paying you a lot of money”—constituted direct evidence of discriminatory

intent).

53

because she was responsible for a “disruption” at her workplace arising from that

status 45).

In the absence of direct evidence of a discriminatory motivation for an adverse

personnel action, an employee alleging a Human Rights Act violation may rely on

allegations of circumstantial facts from which a discriminatory motive may be

inferred. In considering whether Sonmez’s factual allegations suffice to support the

inference of such a motive, we must bear in mind that the question has been raised

not in a motion for summary judgment after the parties have had the opportunity to

engage in discovery, but at the outset of the case in a motion to dismiss the complaint

for failure to state a claim on its face. Where an employee’s claims of intentional

discrimination rely, at the summary judgment stage, on circumstantial rather than

direct evidence linking the personnel action to a proscribed motive, we evaluate the

claims utilizing the burden-shifting framework originally set forth by the Supreme

45

D.C. Code § 2-1402.11(c-1)(1)(C) specifies that it is an unlawful

discriminatory practice to take an adverse employment action against a victim of a

sexual offense “based wholly or partially on the fact that . . . [a]n individual caused

a disruption at the employee’s workplace or made a threat to an employee’s

employment, relating to . . . a sexual offense . . . of which the employee . . . was a

victim.” Sonmez posits that this prohibition encompasses an adverse employment

action attributable to her online harassment.

54

Court in McDonnell Douglas v. Green. 46 Under that framework, “the burden

initially is on the employee to make a prima facie showing of discrimination . . . by

a preponderance of the evidence.” 47 If the employee makes that showing, the burden

is on the employer to rebut it by producing “admissible evidence” of a non-

discriminatory motivation for the challenged personnel decision. 48 If the employer

does so, the burden shifts back to the employee, who “ordinarily must prove by a

preponderance of the evidence ‘both that the reason [offered by the employer] was

false, and that discrimination was the real reason.’” 49 Alternatively, “the employee

may prevail by proving that the employer’s action was motivated ‘partially’ by a

discriminatory reason, even if it also was motivated by permissible reasons not, in

themselves, pretextual.” 50 In the latter, “mixed motive” case, the employee need not

46

411 U.S. 792, 802 (1973); see Furline v. Morrison, 953 A.2d 344, 352 (D.C.

2008). The McDonnell Douglas test is inapplicable when the employee presents

direct evidence of discrimination. Id. at 352 n.21.

47

Furline, 953 A.2d at 352 (citing Hollins v. Fed. Nat’l Mortg. Ass’n 760

A.2d 563, 571 (D.C. 2000)). “Broadly speaking, ‘to state a prima facie claim of

disparate treatment discrimination, the plaintiff must establish 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.’” Id. at 352

n.24 (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).

48

Hollins, 760 A.2d at 571.

49

Furline, 953 A.2d at 353 (emphasis in original) (quoting Hollins, 760 A.2d

at 571).

50

Id. (quoting D.C. Code § 2-1402.11(a)).

55

show that the protected characteristic was a “but for” cause of the employer’s

adverse action, but only that it was “a substantial factor,” meaning “a significant

motivating factor bringing about the employer’s decision.” 51 Conversely, the

employer may defeat such a showing with proof that the illicit motive was

insignificant, i.e., that the employer would have taken the same personnel action for

non-discriminatory reasons alone. 52

Here, however, it is premature to require either party to proffer probative

evidence. To survive the Rule 12(b)(6) motion to dismiss her Human Rights Act

claim, Sonmez merely needed to plead facts that, when taken as true and construed

in her favor, “provide a reason to believe” or “support a plausible inference” that her

status as a victim of a sex offense or her sex was a substantial motivating factor in

adverse actions taken against her by the Post. 53 This pleading burden was less than

the showing of “specific facts establishing a prima facie case of discrimination” that

a plaintiff must make to survive a motion for summary judgment; nor, at this stage,

was Sonmez required, in advance of discovery, to refute the employer’s defenses as

51

Rose v. United Gen. Contractors, 285 A.3d 186, 196-97 (D.C. 2022)

(quotation marks omitted).

52

See id. at 197 n.7 (citing Harris v. City of Santa Monica, 294 P.3d 49, 72

(Cal. 2013)); Furline, 953 A.2d at 353 n. 28.

53

Morris v. District of Columbia, 313 A.3d 545, 550-51 (D.C. 2024) (quoting

Poola, 147 A.3d at 280).

56

pretextual (though factual allegations contradicting or undermining the employer’s

assertion of a legitimate motivation may suffice to defeat the motion to dismiss). 54

In short, “at the pleadings stage of an employment discrimination case, a plaintiff

has a ‘minimal burden’ of alleging facts ‘suggesting an inference of discriminatory

motivation.’” 55 To quote Twombly, Sonmez was required to plead “only enough

54

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 510, 511 (2002) (“The

prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a

pleading requirement.”); see also Twombly, 550 U.S. at 569-70, 586 (“[I]t should go

without saying in the wake of Swierkiewicz that a heightened production burden at

the summary judgment stage does not translate into a heightened pleading burden at

the complaint stage”) (Stevens, J., dissenting); Brown v. Sessoms, 774 F.3d 1016,

1023 (D.C. Cir. 2014) (“[a]t the motion to dismiss stage, the district court cannot

throw out a complaint even if the plaintiff did not plead the elements of a prima facie

case”) (citation omitted); Easaw v. Newport, 253 F. Supp. 3d 22, 26-27 (D.D.C.

2017) (“At the motion to dismiss stage, . . . an employment discrimination plaintiff

need not anticipate legitimate, non-discriminatory reasons that may be proffered by

the employer for the adverse employment action nor allege pretext to survive a

motion to dismiss.”); Savignac v. Jones Day, 486 F. Supp. 3d 14, 30 (D.D.C. 2020)

(“Where, as here, the defendant has proffered a legitimate non-discriminatory

rationale for its actions—such as poor work performance—the plaintiff can survive

a motion to dismiss by alleging that the employer’s proffered reasons for the adverse

employment actions were false, or that she was treated differently from similarly-

situated employees outside the protected class.") (Internal citations, quotation marks,

and brackets omitted).

55

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015)

(emphasis in original) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311

(2d Cir. 2015)).

57

facts” as would suffice to “nudge[] [her] claims across the line from conceivable to

plausible.” 56

The trial court held that the factual allegations in Sonmez’s complaint do not

support a plausible inference either that the Post’s stated reason (as referenced in the

complaint) was false or that discrimination was the real reason for the bans the Post

imposed on her and the other employment actions she challenged. 57 If anything, the

court concluded, the alleged facts make it “affirmatively implausible” that Sonmez’s

victim status or gender was a reason for the Post’s decisions. “Most importantly,”

the court said, Sonmez alleged that “the Post hired her knowing that she was a victim

of sexual assault and had publicly identified herself as a victim of sexual assault, and

with this knowledge, the Post assigned her to stories involving sexual misconduct

(including the Kavanaugh story)—until she made public statements that could be

perceived as associating herself with the #MeToo movement as a victim herself.”

The court reasoned that “the only plausible inference” from Sonmez’s allegations is

56

Twombly, 550 U.S. at 570; Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(“[s]pecific facts are not necessary” to survive a motion to dismiss).

57

Among those actions, the court specifically listed Sonmez’s two-day

suspension with pay after her tweet concerning Kobe Bryant; a humiliating public

statement by the Post that Sonmez had displayed poor judgment that undermined the

work of her colleagues; the Post’s alleged failure to respond to her request for

security services when she was hit with a barrage of threats; and her lowered

performance rating and consequently reduced compensation.

58

that “the Post’s concern about the appearance of partiality raised by her public

advocacy triggered the bans” and motivated the other challenged actions. That

reason—“avoiding the appearance or a perception of bias by its reporters”—is a

basis that “does not implicate” the Human Rights Act, the court held.

We agree that the factual allegations of the complaint can be understood to

support the inference that the Post was motivated by legitimate concerns about

Sonmez’s objectivity and the appearance of bias in reporting on news stories

involving disputed allegations of sexual assault because of her public statements

about sexual assault. However, as has been explained, at this stage Sonmez does not

have the burden of rebutting the Post’s explanations as pretextual or insufficient.

Moreover, viewing the complaint as we must, in the light most favorable to Sonmez,

we find it does contain factual allegations that, taken all together, do plausibly cast

doubt on the Post’s claimed legitimate motives. And even if those motives were

genuine, her factual allegations plausibly suggest that discrimination on the basis of

Sonmez’s protected status also was a motivating factor.

To begin with, in addition to the editors’ statements that Sonmez argues

amount to direct evidence of discriminatory animus, the complaint alleges several

other instances in which Sonmez’s editors said things to her that inferably evinced

hostility, skepticism, or criticism based on her status as a victim of a sexual assault

59

or gender-based stereotypes. 58 These include the occasions when Wallsten allegedly

asked Sonmez why she spoke out publicly about her assault and why she did not

report it to the police in Beijing, and when Montgomery allegedly also asked Sonmez

why she did not go to the police and commented that she was taught a woman should

“just say no” if a man tries to assault her. 59 It is widely recognized that comments

such as these are reflective of sex-based stereotypes—that not immediately reporting

58

If an employer’s inappropriate response to an employee’s being raped was

based on the employee’s sex (i.e., the employer’s reaction was driven by animus

against women or they would have treated a male rape victim better than a female

rape victim), that inappropriate response could be both discrimination based on

status as a victim of a sexual offense and discrimination based on sex. See Fuller v.

Idaho Dep’t of Corr., 865 F.3d 1154, 1167 n.13 (9th Cir. 2017) (“[A]n employer’s

actions undertaken because of a rape (whether in or outside of the workplace) might

give rise to a reasonable inference of discrimination because of sex.”) (internal

quotations omitted).

59

These and some of the other factual allegations we cite were in connection

with the Post’s actions in taking Sonmez off the story of the accusations against

Judge Kavanaugh. As the parties agree, a claim based directly on those actions is

time-barred. However, those actions still may be relevant for understanding the

motives of the same editors in imposing the second ban and in its other subsequent

actions, which were not time-barred when Sonmez filed her complaint.

60

or sufficiently resisting a sexual assault undermines the complainant’s credibility

and is proof that the assault did not occur or was not really assault. 60

We also put in this category of statements suggesting stereotypical bias and

hostility the allegations that Grant skeptically belittled Sonmez’s concern to correct

errors (“real or imagined,” Grant called them) in the Reason Magazine article that

publicly disparaged Sonmez’s motives in accusing Kaiman of sexually assaulting

her; that Grant chastised Sonmez for not having included Kaiman’s claim that his

60

See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (explaining

that it is sex discrimination for an employer to penalize an employee for failing to

act according to sexist stereotypes and stating that remarks at work based on sex

stereotypes can be evidence that gender played a part in a particular employment

decision). See, e.g., Battle v. United States, 630 A.2d 211, 217 (D.C. 1993)

(acknowledging the prevalence of outdated “assumptions that sexual offense victims

are generally lying and that the victim’s failure to report the crime promptly is

inconsistent with the victim’s current statement that the assault occurred”); State v.

Hill, 578 A.2d 370, 374-77 (N.J. 1990) (discussing how the law has long been shaped

by the “sexist expectation[]” that delay in reporting rape undermines credibility,

when in fact many cases of rape are not reported or are reported late because of

women’s fears about “the receptiveness of police, prosecutors, juries, and even

friends and employers to a report that she was raped.”); Kebede v. Ashcroft, 366 F.3d

808, 811 (9th Cir. 2004) (rejecting the stereotype that delay in reporting rape

undermines credibility); see also Kimberly Peterson, Victim or Villain?: The Effects

of Rape Culture and Rape Myths on Justice for Rape Victims, 53 Val. U. L. Rev.

467, 475-77 (2019) (describing as “prominent myths” the beliefs that “(1) victims

often lie about being raped; (2) victims invite rape by their behaviors and actions;

and (3) victims have a responsibility to protect themselves from rape”; and

explaining the reasons why many sexual assault victims choose not to report the

assaults); Janet A. Findlater, Reexamining the Law of Rape, 86 Mich. L. Rev. 1356,

1361-63 (1988) (discussing the stereotype that women who do not sufficiently resist

assault are not really rape victims).

61

sexual encounter with her was consensual when she informed the L.A. Times and

the FCCC that Kaiman had assaulted her; that Ginsberg essentially told Sonmez he

believed the accusations against Judge Kavanaugh were “too similar” to Sonmez’s

own experience, and too upsetting to her, for them to count on Sonmez to report on

the Kavanaugh story with the necessary fairness and objectivity; that Wallsten felt it

necessary to remind Sonmez (a well-regarded reporter of breaking national news

stories) that she needed to “write[] straight” a story concerning derogatory comments

by President Trump about Judge Kavanaugh’s accuser; and that Baron reportedly

felt it necessary to insist, when he agreed to assign a female editor to cover a report

involving sexual harassment allegations, that all decisions about the story be made

strictly on the “basis of journalism.” 61 In the absence of other explanations, such

statements as these plausibly suggest the stereotypical belief that women who

61

The allegation in the complaint regarding Baron’s ambiguous non-answer

when asked in a meeting with newsroom employees whether murder and sexual

assault are issues with “two sides” is also suggestive.

62

complain about rape are untrustworthy and that women cannot be objective even

when discussing another woman’s complaint of sexual assault or abuse. 62

Striking, too, and for much the same reasons, are the allegations that Barr

accused Sonmez to her face of being an “activist” who had “taken a side on the

issue” of sexual assault and was “trying to have it both ways” by publicly disclosing

her own victimization, criticizing news organizations like the L.A. Times for lack of

transparency, and then continuing to report on the topic (or seeking to continue to

do so). Significantly, Barr did not fault the quality of Sonmez’s reporting, and his

alleged reference to Sonmez being an “activist” on the “the issue” of sexual assault

is confounding; that a victim of sexual assault stands up for her own rights, criticizes

an inadequate inquiry into her own victimization, and objects to having her

opportunities curtailed because she did so, does not make her an “activist” or

constitute significant evidence of disqualifying bias. The statement Sonmez had

made at that point (which her editors had pre-approved) did not state a position on a

62

See Hill, 578 A.2d at 376 (discussing long-held prejudices that women who

complained about rape were deranged, emotional, and untrustworthy and therefore

needed additional examination and stringent timeliness requirements when making

claims against assailants); cf. State v. Funk, 799 N.W.2d 421, 436 (Wisc. 2011)

(explaining that “the fact that a juror has been a victim of sexual assault does not

make him or her per se biased against the defendant in a sexual assault case”); see

also Abshire v. State, 642 So. 2d 542, 543-45 (Fla. 1994) (vacating guilty verdict

and death penalty because of improper use of peremptory strikes against women

because “they tend to be more, more emotional than the other people”).

63

general “issue” relating to the #MeToo movement; rather, it mostly referred to

Sonmez’s own alleged assault by Kaiman and its investigation. (While Sonmez did

note that institutions play a role in combatting sexual misconduct, that was hardly

controversial; as the Post agrees in its brief on appeal, “everyone condemns sexual

assault.”) Sonmez did not express solidarity with sexual assault complainants in

general, but only with the other woman with whom she shared the same assailant

and whose example encouraged Sonmez herself to come forward. Based on her

allegations, Sonmez was not an “activist” and would not likely have been perceived

as one solely on the basis of her public statement.

Add to this the editors’ alleged assertion, included in the written warning they

gave Sonmez, that by defending herself from false or misleading allegations in the

Reason Magazine article and reacting to personal attacks online, she was actively

trying to be “the star” and “to make the news.” So far as appears from the complaint,

the Post’s editors had no good reason to disbelieve Sonmez’s sexual assault claim,

and they never identified such a reason. And there is no suggestion (nor has the Post

claimed) that the content of Sonmez’s pinned Twitter post contained general

advocacy regarding #MeToo, rather than just a factual response to specific

mischaracterizations of her own report of rape and her motives.

64

A reasonable fact finder fairly could infer that the editors’ alleged concern

with Sonmez’s objectivity based on her public statements was pretextual, and that

Barr’s alleged denunciation of a sexual assault victim and the rhetoric of the warning

given Sonmez were so unjustified in the circumstances as to be indicative of

stereotypical bias against women who claim to have been sexually assaulted.

The complaint also contains other factual allegations that reasonably could

suggest pretext by undercutting the Post’s professed concern that Sonmez’s public

statements about her sexual assault would endanger the perceived objectivity of its

reporting on #MeToo matters.

First, when the L.A. Times concluded its investigation of Kaiman and he

resigned, Grant allegedly told Sonmez to expect online attacks and encouraged

Sonmez to prepare a public statement with the Post’s help. Even though Sonmez’s

editors knew she had been writing news stories dealing with sexual misconduct

issues, and even after Sonmez had filed a story on the accusations against Judge

Kavanaugh (for which she had received positive feedback), the Post reviewed and

approved Sonmez’s statement. And no one suggested to Sonmez that issuing it

would raise issues of her objectivity in reporting on sexual misconduct stories or

preclude her assignment to such stories.

65

Second, per the facts alleged in the complaint, when Sonmez’s editors initially

explained to her why she was being taken off the Kavanaugh story, they did not say

it was because she had taken a side on the “issue” of sexual assault, that her reporting

on that issue would present the appearance of a conflict of interest, that it was

necessary for the Post to avoid the perception that it had an advocate reporting on an

issue she had experienced, or anything like that. According to the complaint, it was

only after Sonmez objected in writing to the stereotypical assumption of her

incapacity to handle the reporting given her own experience that the editors revised

their explanation and (after Barr questionably denounced Sonmez as a biased

“activist”) Ginsberg first raised the concern with “the appearance of a conflict of

interest.”

Barr then elaborated that “[w]e don’t have reporters who make statements on

issues they are covering. We don’t want the external perception that we have an

advocate covering something she has experienced.” The complaint effectively

alleges that this assertion was untrue, and not just because the editors, aware that

Sonmez had covered #MeToo stories, approved her public statement regarding the

L.A. Times investigation of Kaiman. The complaint also cites the Post’s support for

Sonmez’s colleague, Michelle Ye Hee Lee. Although Lee is an Asian-American

who spoke out publicly against anti-Asian discrimination and violence (and

criticized the news media’s inadequate coverage of such harassment), the Post

66

allowed her to continue reporting on anti-Asian violence and to appear on CNN to

discuss the subject. The contrast with the Post’s treatment of Sonmez is stark.

Instead of telling Lee that “we don’t have reporters who make statements on issues

they are covering” and that she was acting as “an activist” who “took a side on the

issue” and created “the appearance of a conflict of interest,” the editors praised Lee

as a “stellar journalist” because of her advocacy on issues of anti-Asian hate. This

disparate treatment could plausibly suggest discrimination based on Sonmez’s

protected characteristics—while the Post (in at least some publicized instances)

considered having a certain identity and speaking out against discrimination and

violence against that identity as a source of credibility in its reporters, it considered

being a female sex assault victim and speaking out against discrimination against

such victims to have the opposite effect.

Moreover, the complaint also alleges that Grant objected when Sonmez

understandably wanted to convey the “conflict of interest” explanation to her

colleagues in order to explain why she was taken off the Kavanaugh story—an

objection that reasonably could be viewed as casting doubt on the veracity of the

rationale and suggesting there was, in truth, something improper about the ban.

Other allegations also could plausibly suggest that editors knew their actions were

wrongful and therefore tried to keep their real motives hidden. For example, when

Ginsberg asked Sonmez to take down her pinned post because it made him

67

“uncomfortable,” he allegedly refused to put his request in writing, did not cite any

company policy about objectivity or social media, and did not explain the reason he

was uncomfortable with the post. Later, Grant allegedly told Sonmez to stop taking

notes at a meeting about her purported Social Media Policy violation because “our

words could be used against us.” How so, exactly?

Third, the complaint alleges that the Post discontinued the “first ban”

immediately after the November 2018 mid-term elections, allowing Sonmez to

resume covering #MeToo-related news stories despite her supposed conflict of

interest. The seeming inconsistency of this decision, which the Post (allegedly)

made without explaining it, also raises a question as to the actual motivation behind

the ban. If the motive genuinely was to avoid an appearance of bias in reporting on

#MeToo matters, it is hard to see why the conclusion of the elections dispelled that

concern.

Fourth, the complaint alleges that in August 2019, after Sonmez posted her

request for correction of the Reason Magazine article on her Twitter account, none

of her editors indicated that her post violated the Post’s Social Media Policy or was

problematic for any reason. It was only ten days later, on September 4, after Sonmez

was criticized by a prominent writer and defender of Kaiman, and Sonmez then

started receiving online abuse from some Twitter users who supported Kaiman and

68

blamed his accusers, that Ginsberg and Montgomery reimposed the ban on Sonmez’s

coverage of any #MeToo-related topics. The editors still did not say or imply that

Sonmez had violated any Post policy. These allegations may be taken to suggest

that Sonmez’s pinned tweet and her speech about her victimization were insufficient

to motivate the ban, and that it was only when that speech triggered disruptive sex

victim-based abuse that the editors decided to ban Sonmez from reporting on news

stories involving sexual victimization. Sonmez plausibly alleges that this

contravened the Human Rights Act provision making it an unlawful discriminatory

practice to impose an adverse employment action on an employee because outside

individuals “caused a disruption at the employee’s workplace . . . relating to . . . a

sexual offense.” 63

Fifth, the complaint alleges that it was one month later, in October 2019, that

Ginsberg instructed Sonmez to remove her posted tweet seeking correction of the

Reason Magazine article (because it made him “uncomfortable”) and to clear all

future contemplated posts about her assault with her editors in advance. Since this

63

D.C. Code § 2-1402.11(c-1)(1)(C). Sonmez also argues that an employer

cannot justify a discriminatory practice as necessary to cater to customers’

discriminatory preferences. See Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77

(9th Cir. 1981); see also D.C. Code § 2-1401.03 (“[A] ‘business necessity’ exception

cannot be justified by . . . the preferences of co-workers, employers, customers or

any other person.”).

69

took place after Sonmez was again barred from covering #MeToo-related news, it

would seem it had nothing to do with preserving the appearance of objectivity in her

coverage of such news. Moreover, it appears from the complaint that Ginsberg never

had any valid objection to Sonmez’s defensive post. Although Sonmez later was

given a written warning that she had violated the Post’s Social Media Policy by

defending herself online, her complaint alleges that the policy did not address her

conduct and was being enforced arbitrarily and disparately. 64 This allegation was

substantiated. The Washington Post Guild protested the Post’s resort to its “vague

and inconsistently enforced” Social Media Policy to “control” Sonmez both in the

October 2019 warning she received and when the Post later publicly shamed Sonmez

for (supposedly) violating the policy by her tweets concerning Kobe Bryant. Within

two days of the latter incident, the Post quietly concluded that Sonmez’s tweets in

fact did not violate the Social Media Policy. (But the Post nonetheless did not retract

its public admonishment of Sonmez or apologize to her.) In the absence of a valid

explanation for twice invoking the inapplicable Social Media Policy against

Sonmez, a plausible inference is that its invocation was pretextual, and that the

64

As previously discussed, the explanation given to Sonmez in the warning—

that “reporters should make every effort to remain in the audience, to be the

stagehand rather than the star, to report the news, not to make the news”—appears

to be unconnected with the Social Media Policy and so inappropriate to the defensive

conduct at issue that, in itself, it plausibly suggests a discriminatory motivation was

at work.

70

underlying motive in each instance was a discriminatory animus against women and

victims of sexual assault.

Sixth, Sonmez thereafter was told that she received a lower performance

rating because she had defended herself online from the allegations in the Reason

Magazine article. Here, too, the justification for the adverse action is elusive given

that Sonmez did not violate the Post’s Social Media Policy, leaving the plausible

inference of a discriminatory animus at work.

Seventh, the complaint alleges that the Post abruptly lifted the “second ban”

after it received publicity in Politico. It is reasonable to think that the Post would

not have done this if it truly was concerned about preserving readers’ confidence in

the objectivity of Sonmez’s reporting on #MeToo-related matters.

For the above reasons, we conclude that Sonmez’s complaint does not fail to

state a plausible claim that the defendants took adverse employment actions against

her wholly or partially because she is a woman and/or a victim of sexual assault.

Counts I and II of the complaint, which allege such discrete discriminatory actions,

should not have been dismissed for facial insufficiency.

71

B. Subjection of Sonmez to a Hostile Work Environment

Count IV of Sonmez’s complaint alleges that the defendants also violated the

Human Rights Act by subjecting her to a hostile work environment through

discriminatory harassment and abuse. The trial court dismissed this count for the

same reason it dismissed Counts I and II, that the complaint’s factual allegations did

not support an inference of discriminatory intent on the part of the defendants. Since

we conclude otherwise, we cannot uphold the dismissal of Count IV on that ground.

However, the Post contends that Count IV was properly dismissed as a matter of law

on a different ground (which the defendants raised in the trial court but which that

court found it unnecessary to reach); namely, that the complaint does not plausibly

allege harassment severe or pervasive enough to amount to a hostile work

environment in violation of the Human Rights Act. We proceed to address this

contention, for as an appellate court, we may affirm the trial court “on any valid

72

ground, and need not follow the same mode of analysis” as the trial court

employed. 65

There is a “fundamental difference” between a claim based on a discrete

discriminatory act and a hostile work environment claim, which is based on “a series

of separate acts” of harassment (none of which needs be actionable on its own) that

“collectively constitute one unlawful employment practice.” 66 To assert a hostile

work environment claim under the Human Rights Act, as under Title VII, an

employee must plausibly allege that she was subjected to “severe or pervasive”

harassment based on her membership in a protected class. 67 The series of acts giving

rise to the alleged hostile environment must be of such severity or pervasiveness as

65

Baird v. Gotbaum, 792 F.3d 166, 171 (D.C. Cir. 2015) (upholding dismissal

of complaints for failure to state a claim of retaliatory hostile work environment

rather than on the grounds of issue preclusion and untimeliness that the trial court

relied on; quotation marks omitted); see also, e.g., Exec. Sandwich Shoppe, Inc. v.

Carr Realty Corp., 749 A.2d 724, 735 n.14 (D.C. 2000) (“It is well settled that an

appellate court may affirm a decision for reasons other than those given by the trial

court.”).

66

Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 889-90 (D.C. 2003) (en

banc) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)

(quotation marks omitted)).

67

See id. at 888 (stating that in order to state a viable hostile work environment

claim, a plaintiff must demonstrate that (1) she is a member of a protected class,

(2) she was subjected to unwelcome harassment, (3) the harassment was based on

membership in the protected class, and (4) the harassment is severe and pervasive

enough to affect a term, condition or privilege of employment).

73

to “alter the conditions of [the victim’s] employment and create an abusive working

environment,” to the degree that the workplace is “permeated [with] discriminatory

intimidation, ridicule, and[/or] insult,” 68 or is otherwise transformed into a

comparably toxic, discriminatory milieu on a day-to-day basis. The plaintiff must

“demonstrate both an objectively hostile or abusive environment, i.e., one that a

reasonable person would find hostile or abusive, and a subjective perception by the

plaintiff that the environment is abusive.” 69 In determining whether alleged

harassing conduct was severe or pervasive, we must look at “all the circumstances,

including the frequency of the discriminatory conduct, its severity, whether it is

68

D.C. Dep’t of Pub. Works v. D.C. Off of Hum. Rts., 195 A.3d 483, 495 (D.C.

2018) (brackets, ellipses, quotation marks, and citations omitted); see also, e.g.,

Lively, 830 A.2d at 889 (quoting Daka, Inc. v. Breiner, 711 A.2d 86, 93 (D.C. 1998)).

69

Lively, 830 A.2d at 889. (quoting Daka, Inc., 711 A.2d at 93). Hostile work

environment plaintiffs are not required, however, to prove that they suffered “actual

psychological injury.” Id.

74

physically threatening or humiliating, or [instead] a mere offensive utterance; and

whether it interferes with an employee’s work performance.” 70

The severity/pervasiveness requirement is meant to be “demanding” and to

“filter out complaints attacking ‘the ordinary tribulations of the workplace’”;

“conduct must be extreme to amount to a change in the terms and conditions of

employment.” 71 Thus, as numerous cases have held, a plaintiff typically must allege

more than obnoxious “offhand comments,” “isolated incidents,” “sporadic use of

abusive language,” and the like. 72 Similarly, “[a]llegations of undesirable job

assignments or modified job functions” and lowered performance evaluations are

70

Id. at 890 (quotation marks omitted). We recognize that there are rare cases

in which a single egregious act or incident by itself can be enough to establish a

hostile work environment. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C.

Cir. 2013) (opining that a supervisor’s use of “a deeply offensive racial epithet when

yelling at [an employee] to get out of the office . . . might well have been sufficient

to establish a hostile work environment” without more); Rodgers v. W.-S. Life Ins.

Co., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly alter

the conditions of employment and create an abusive working environment . . . than

the use of an unambiguously racial epithet . . . by a supervisor in the presence of his

subordinates.” (Internal quotation marks and citation omitted)). We do not perceive

the present case to fall in this exceptional category.

71

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation

omitted).

72

Id.; see also, e.g., Baird v. Gotbaum, 792 F.3d 166, 171 (D.C. Cir. 2015)

(“occasional name-calling, rude emails, lost tempers and workplace disagreements

[constitute] the kind of conduct courts frequently deem uncognizable under Title

VII”).

75

ordinarily insufficient to plead the requisite degree of severity to show that the

plaintiff was subjected to a hostile work environment, upsetting to an employee as

they may well be. 73 And although allegations of discrete acts of discrimination or

retaliation may support a claim of actionable adverse employment actions in

themselves, such allegations ordinarily do not support a hostile work environment

claim unless they also are “connected to a pervasive pattern of severe harassment.” 74

We agree with the Post that Sonmez’s well-pleaded factual allegations,

accepted at this stage as true, fall short of meeting the foregoing requirements for

73

Houston v. SecTek, Inc., 680 F. Supp. 2d 215, 225 (D.D.C. 2010); see also,

e.g., Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.C.C. 2009) (“Nor can the

removal of important assignments, lowered performance evaluations, and close

scrutiny of assignments by management be characterized as sufficiently intimidating

or offensive in an ordinary workplace context.”); Munro v. LaHood, 839 F. Supp.

2d 354, 366 (D.D.C. 2012) (“[C]ourts typically do not find these types of ‘work-

related actions by supervisors’ to be sufficient for a hostile work environment claim”

(citations omitted)); Hussain v. Gutierrez, 593 F. Supp. 2d 1, 7 (D.D.C. 2008)

(“[C]omplaints over undesirable job responsibilities and office arrangements do not

support a hostile work environment cause of action.”); Laughlin v. Holder, 923 F.

Supp. 2d 204, 216, 221 (D.D.C. 2013) (dismissing hostile work environment claim

alleging denial of promotion and bonuses, interference with job duties, and

manipulation of performance reviews).

74

Massaquoi v. District of Columbia, 81 F. Supp. 3d 44, 53 (D.D.C. 2015);

see also Nurriddin, 674 F. Supp. 2d at 94 (dismissing plaintiff’s hostile work

environment claim because plaintiff only sought “to transform his challenges to

discrete acts of alleged discrimination or retaliation . . . into a hostile work

environment claim by combining those events with a series of ordinary workplace

difficulties”).

76

pleading that she endured a hostile work environment. 75 To begin with, the

complaint does not allege that the Post or any of its employees subjected her to

“intimidation, ridicule, or insult” or anything resembling such abuse. The complaint

cites only a few isolated questions or remarks relating to her sexual assault during

the three-year period covered by the complaint—for example, that Wallsten and

Montgomery asked why she did not report Kaiman’s assault to the police, and that

Grant chastised her for not acknowledging that Kaiman claimed their sexual

encounter was consensual. In addition, in support of her hostile work environment

claim, Sonmez cites her two-day investigatory suspension with pay after her tweet

about Kobe Bryant (which resulted in Sonmez’s prompt exoneration) and Grant’s

publicly reported statement that her tweets “displayed poor judgment,” along with

the disciplinary warning and lower performance evaluation that she received. We

do not minimize these discrete offensive incidents, and we acknowledge that in some

cases a multitude of individually small instances of hostility can add up to create an

intolerable situation for an employee. Nonetheless, we are not persuaded that the

75

“[A] hostile work environment claim concerns a single unlawful practice

which is treated as an individual whole for purposes of the limitations period, even

if an initial portion of that claim accrued outside the limitations period.” Lively, 830

A.2d at 892. Accordingly, in assessing the sufficiency of Sonmez’s allegations, we

take into account alleged components of her hostile work environment claim that

occurred early in her tenure at the Post and outside the one-year statute of limitations

governing claims under the Human Rights Act, such as the first ban on her coverage

of the Kavanaugh story and other #MeToo-related matters.

77

complaint plausibly alleges that the cited actions in this case, taken together, were

severe or pervasive enough to transform Sonmez’s workplace into what is

understood to be a hostile work environment.

Of course, we also must take into consideration the two periods when Sonmez

was precluded from covering news stories involving claims of sexual misconduct.

As we have explained, the complaint plausibly alleges that these “bans” were, by

themselves, discriminatorily motivated adverse actions in violation of the Human

Rights Act. But that does not mean the bans contributed meaningfully to the creation

of a hostile work environment. While the limited curtailment of her writing

assignments certainly was unwelcome to Sonmez and allegedly denied her the

opportunity to report on some important stories, it was not stigmatizing or carried

out in an abusive or otherwise toxic manner. Moreover, the assignment limitations

did not alter Sonmez’s compensation, benefits, hours, or basic job responsibilities.

Sonmez remained a full-time reporter in good standing on the national breaking

political news team, and there is no allegation that she was barred from covering

significant stories as a general matter. Although Sonmez alleges (and we accept as

true for present purposes) that the bans caused her stress and humiliation because

they “requir[ed] her to repeatedly explain to her colleagues that she was unable to

write stories because she was a victim of a sexual offense,” the bans were not

78

objectively severe or pervasive enough to contribute to the creation of what is meant

by a hostile work environment. 76

Finally, Sonmez argues that the third-party harassment, threats and abuse on

Twitter that she experienced and describes in her complaint contributed to the

creation of a hostile workplace environment, along with the alleged failure of the

Post to offer her its security services when she was doxxed and her safety was

threatened. As the Post points out, Sonmez did not present an argument of employer

liability for the abusive actions of third parties online to the trial court, and “[w]e

ordinarily do not consider issues raised for the first time on appeal.” 77 But exercising

our discretion to consider the contention, we find it deficient. We see no basis on

which to hold an employer liable for online harassment of an employee by unrelated

third parties that the employer did not provoke, sanction, or have the ability to

prevent or control. This is simply not a case in which the employer could be held

liable for third-party harassment occurring in its workplace because it knew or

should have known of the harassment and had the ability to take prompt remedial

76

Cf. Baird v. Gotbaum, 792 F.3d 166, 172 (D.C. Cir. 2015) (holding that

although plaintiff alleged that her employer’s actions “took a serious toll on her

emotional and physical health,” that fact was “insufficient on its own” because the

challenged actions did not satisfy the objective standard for severity and

pervasiveness).

77

Sewell v. Walker, 278 A.3d 1175, 1177 (D.C. 2022) (citation omitted).

79

action to end it but neglected to do so. 78 And as we have already explained, the

factual allegations of Sonmez’s complaint fail to substantiate her claim that the Post

withheld its security services when it learned that she was threatened online after she

posted her tweet relating to Kobe Bryant. All the complaint alleges is that Sonmez

stayed safe at a hotel and was in touch that evening with the security department. It

does not allege any failure on the part of that department nor, indeed, anything the

department did or failed to do to protect her.

For the foregoing reasons, we affirm the trial court’s dismissal of Count IV,

the hostile work environment count in Sonmez’s complaint, for failure to state a

claim on which relief can be granted.

C. Retaliation Against Sonmez

The Human Rights Act makes it unlawful for an employer to retaliate against

an employee who “has opposed any practice” of unlawful discrimination. 79 An

employee may plead such a retaliation claim by alleging in her complaint that (1) she

78

See Freeman v. Dal-Tile Corp., 750 F.3d 413, 422-23 (4th Cir. 2014)

(adopting “a negligence standard for analyzing an employer’s liability for third-party

harassment under Title VII[,]” and holding that “an employer is liable under Title

VII for third parties creating a hostile work environment if the employer knew or

should have known of the harassment and failed to take prompt remedial action

reasonably calculated to end the harassment” (quotation marks omitted)).

79

D.C. Code § 2-1402.61(b).

80

engaged in protected activity by opposing or complaining about employment

practices that are unlawful under the Act; (2) her employer took an adverse

personnel action against her; and (3) there was a causal connection between the

protected activity and the adverse action. 80

To satisfy the first requirement, the employee need only have had “a

reasonable good faith belief that the practice she opposed” was prohibited by the

Human Rights Act. 81 But “the onus is on the employee to clearly voice her

opposition to illegal discrimination; a vague charge of discrimination will not

support a subsequent retaliation claim.” 82 “It is not enough for an employee to object

to favoritism, cronyism, violation of personnel policies, or mistreatment in general,

without connecting it to membership in a protected class, for such practices, however

repugnant they may be, are outside the purview of the DCHRA.” 83 Similarly, the

80

Vogel v. District of Columbia Off. of Plan., 944 A.2d 456, 463 (D.C. 2008).

“Such a prima facie showing gives rise to a presumption that the employer’s conduct

was unlawful, which the employer may rebut by articulating a legitimate reason for

the employment action at issue.” Id.

81

Grant v. May Dep’t Stores Co., 786 A.2d 580, 586 (D.C. 2001); see also

Propp v. Counterpart Int’l, 39 A.3d 856, 863 (D.C. 2012) (“An employee is

protected from retaliation even if the employer’s conduct alleged to be

discriminatory is lawful, so long as the employee reasonably believed the employer’s

action was discriminatory.”).

82

Vogel, 944 A.2d at 465 (internal quotation marks and footnote omitted).

83

Id. at 464.

81

use of words like “bias,” “prejudice,” and “hostile work environment,” if “untethered

to an allegation that the conduct occurred because of membership in a protected

class, is not enough to transform a workplace complaint into protected activity.” 84

“[T]he [employee] must alert the employer that she is lodging a complaint about

allegedly [unlawful] discriminatory conduct. Employer awareness that the

employee is engaged in protected activity is thus essential to making out a prima

facie case of retaliation.” 85

The second requirement of an adverse personnel action by the employer is

satisfied if “a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” 86 Thus,

it is said that “a materially adverse action for . . . a retaliation claim . . . encompasses

a broader range of actions” than the term “adverse action” does for discrimination

claims. 87

84

Clemmons v. Acad. for Educ. Dev., 107 F. Supp. 3d 100, 130 (D.D.C. 2015).

85

Howard Univ. v. Green, 652 A.2d 41, 46 (D.C. 1994) (footnote omitted).

86

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal

quotation marks omitted).

87

Richardson v. Petasis, 160 F. Supp. 3d 88, 134 (D.D.C. 2015).

82

The third causal connection requirement is satisfied if the employer’s actions

were “motivated in substantial part by retaliatory reasons, even if they were

motivated also by legitimate business reasons.” 88 In the absence of direct evidence

of retaliation, “[t]he causal connection between the protected activity and the adverse

employment action can be established indirectly with circumstantial evidence, for

example, by showing that the protected activity was followed by discriminatory

treatment[.]” 89 Protected activity can be followed by discriminatory treatment when

the allegations show temporal proximity, 90 a pattern of antagonism, 91 or that the

employee was treated differently after the protected conduct. 92

88

District of Columbia v. Bryant, 307 A.3d 443, 452 (D.C. 2024) (quoting

Propp v. Counterpart Int’l, 39 A.3d 856, 870 (D.C. 2012) (emphasis omitted)).

89

Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).

90

Temporal proximity between an employee’s exercise of rights and the

employer’s alleged retaliation can alone be sufficient to plead causation. Nicola v.

Wash. Times Corp., 947 A.2d 1164, 1175 (D.C. 2008). On the other hand, “temporal

proximity, though often an indicator of causation, is not a required element of a

retaliation claim, particularly at this stage of the proceedings.” Dave v. Lanier, 606

F. Supp. 2d 45, 52-53 (D.D.C. 2009) (emphasis added).

91

“[R]epeated, escalating acts of retaliation,” such as “internal complaints”;

“threats that [the employee] would be terminated”; and “formal action . . . to reduce

[her] duties” can constitute a pattern of antagonism supporting an inference of

causation. Payne v. District of Columbia, 4 F. Supp. 3d 80, 90 (D.D.C. 2013)

(vacated on other grounds).

92

“[W]here an employer treats an employee differently after she asserts her

rights . . . than before she had done so, a retaliatory motive may be inferred.”

Cantrell v. Nissan N. Am., Inc., 145 Fed. App’x. 99, 105-06 (6th Cir. 2005).

83

Sonmez claims she plausibly alleged that the Post retaliated against her for

opposition to unlawful discrimination that she voiced on three occasions. The first

occasion was in September 2018, when, in an email to her editors, she objected to

being removed from covering the Kavanaugh story “based on what happened to me

in Beijing” (meaning her sexual assault). At that time, however, sexual assault

victims were not a protected class under the Human Rights Act. 93 Nor did Sonmez

assert or profess to believe that discrimination against sexual assault victims was

unlawful when she raised her objection. It seems clear that Sonmez did not say

enough to alert her employer that she was objecting to discrimination based on a

protected characteristic. 94 But we need not decide that issue, because even if we

were to conclude that Sonmez’s email was protected activity, this claim of retaliation

fails for a different reason.

93

As the trial court noted, it was only in 2019 that the Act was amended to

prohibit discrimination against victims of sexual assault. See Employment

Protections for Victims of Domestic Violence, Sexual Offenses, and Stalking

Amendment Act of 2018, § 2(a), D.C. Law 22-281 (effective April 11, 2019).

94

Sonmez has argued that discrimination against female victims of sexual

assault is a subcategory of gender discrimination, which the Human Rights Act does

prohibit. Whatever the merits of that argument, it does not persuade us that her

September 2018 email, which said nothing about gender or sex discrimination, made

her editors aware that she was objecting on that basis. But as we say, this retaliation

claim fails for another reason.

84

In rejecting a retaliation claim based on Sonmez’s September 2018 objection,

the trial court observed that Sonmez did not allege any retaliatory actions during the

two months between that objection and the termination of the first ban on November

7, 2018. However, Sonmez’s complaint can be read to imply that it was after she

sent her email that her editors extended the first ban to apply to other news involving

sexual misconduct claims besides the Kavanaugh story. We suppose that extension

would suffice to constitute a sufficiently adverse action to support a retaliation claim.

In any event, though, as the trial court also ruled, any plausible claim of retaliation

for Sonmez’s objection in September 2018 was time-barred by the applicable one-

year statute of limitations when she filed her complaint in Superior Court in July

2021. While Sonmez’s complaint about the institution of the second ban was not

time-barred at that point, we agree with the trial court that “it is not plausible to infer

that the Post imposed the second ban because of Ms. Sonmez’s complaints about the

first ban about a year earlier, given that the Post had ended the ban and assigned her

to #MeToo-related stories in the meantime.”

Sonmez next claims that her objection to the second ban on September 4,

2019, constituted protected activity that led to retaliatory adverse actions. 95

95

As the trial court noted, Sonmez alleges that she again protested the second

ban in May 2020, but she does not allege an adverse employment action after that

date.

85

Sonmez’s complaint alleges only that, upon being informed that the Post was

reimposing the ban, she “vehemently protested the ban for essentially the same

reasons she protested the first ban.” Although this allegation is vague, we are

prepared to accept that—since it does reference the earlier protest—it passes muster

for the purpose of establishing (at the pleading stage) that Sonmez complained that

the Post was discriminating against her based on her status as a sexual assault victim.

And by this time the Human Rights Act had been amended to prohibit discrimination

against victims of sexual assault.

Even so, as the trial court concluded, Sonmez did not allege facts supporting

a plausible inference of a causal connection between her objection to the second ban

and any subsequent adverse actions by the Post. Sonmez cites as causally related

adverse actions (1) the written warning she received on October 17, 2019, for

(supposedly) violating the Post’s Social Media Policy by maintaining her pinned

tweet to defend herself from false accusations regarding her sexual assault; (2) the

insufficient security protection she allegedly received after her Kobe Bryant post on

January 26, 2020; and (3) the low performance rating she received in April 2020 that

affected her compensation. While it is plausible that the threat of each of those

measures by an employer would dissuade a reasonable employee from making a

charge of discrimination and therefore the measures should be viewed as adverse

actions sufficient to amount to retaliation, we cannot reasonably infer the necessary

86

causal nexus between Sonmez’s opposition to the second ban as discriminatory and

any of those adverse actions. 96

First, while Sonmez was given the warning only a month and a half after she

objected to the second ban, her complaint itself states that the Post issued the warning

not because of her protest, but because of her subsequent refusal to take down her

August 25, 2019, Twitter post responding to the Reason Magazine article. The

warning itself cited that pinned tweet as the basis for its issuance. The complaint

specifically alleges that “the Post disciplined Ms. Sonmez for making herself the

‘star’ of her own sexual assault and for criticizing other news organizations” by

posting the tweet. The complaint does not plausibly suggest that Sonmez’s objection

to the second ban was a reason for the warning.

The complaint also specifically alleges that “[t]he basis for the low

[performance] score was Ms. Sonmez’s tweets defending herself from false claims

related to her sexual assault,” not her objection approximately nine months earlier

96

Sonmez also alleges that, a month after she opposed the second ban, the

Post increased its scrutiny of her use of social media. We are not persuaded that this

allegation describes a materially adverse employment action. In addition, we do not

overlook other actions taken by the Post against Sonmez, such as her two-day

suspension after she posted about Kobe Bryant. We are satisfied that none of those

are plausibly alleged to be causally related to Sonmez’s objection to the imposition

of the second ban.

87

to the imposition of the second ban. Here too, and even setting aside the considerable

time that passed between the objection and the adverse performance review, 97 the

complaint does not plausibly allege a causal connection between the two events.

As to the allegedly insufficient security protection provided to Sonmez by the

Post, we agree with the trial court that “there is not close [enough] temporal

proximity between her complaint about the second ban in September 2019

and . . . the Post’s actions in the wake of her tweet about Kobe Bryant in late January

2020” to plausibly infer causality, especially given the intervening events. 98 No

plausible causal linkage is evident from the factual allegations in Sonmez’s

complaint.

Finally, Sonmez contends that her refusal in October 2019 to take down her

pinned tweet at Ginsberg’s urging constituted protected activity that led to the

97

We do not agree that temporal proximity is necessary to infer a causal

connection to the performance review. Because it was an annual review, the adverse

action was presumably as close to the protected activity as was possible for that type

of action. See Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (explaining

that an inference of causation is strengthened when the adverse action is taken at the

“first actual opportunity”).

98

See Johnson v. District of Columbia, 935 A.2d 1113, 1120 (D.C. 2007) (“a

stretch of four months realistically cannot constitute temporal proximity in the

ordinary sense of that phrase”); Vogel, 944 A.2d at 462 (where five months passed

between the employee’s complaint and termination, “a nexus between the two events

could not be inferred from their temporal proximity alone”).

88

warning two weeks later that she was violating the Post’s Social Media Policy and

to the Post’s subsequent adverse actions. Sonmez argues that her refusal to remove

the tweet was an expression of opposition to a hostile work environment, inasmuch

as she told Ginsberg that she was using her tweet to “protect herself” against “false

statements” and “to prevent future attacks.” However, Sonmez’s explanation about

the protective purpose of the pinned tweet did not make her refusal to remove it

protected activity. While the pinned post itself may have “voiced her opposition to

illegal discrimination” (though not on the part of her employer), refusing to remove

the post did not clearly communicate to her employer a belief that she was being

subjected to illegal discrimination based on her membership in a protected class. 99

Therefore, that refusal was not protected activity. 100

99

See Vogel, 944 A.2d at 465.

100

Sonmez also argues that her refusal to remove the tweet was protected

activity because it was opposition to the Post’s unlawful punishment of her for the

disruption caused by the online harassment. But Sonmez never said she refused to

take down her post because of the Post’s unlawful treatment (regardless of whether

that treatment actually was or could have seemed unlawful). Rather, Sonmez

opposed taking down the post because of unlawful treatment by third-party Twitter

users and the errors in the Reason Magazine article. She never indicated that she

was keeping up the post because (as she puts it in her brief on appeal) she “opposed

[the Post’s] discrimination against her based on the disruption [online] abuse caused

at work.” In sum, nothing about Sonmez’s opposition to taking down the post would

have put her employer on notice that she was complaining about the Post’s illegal

discrimination based on workplace disruption, rather than complaining about the

third-party causes of that workplace disruption. Therefore, again, Sonmez’s refusal

to take down her pinned post was not protected activity.

89

D. Protection Accorded the Post’s Editorial Judgments by the First

Amendment

The Post contends that Sonmez’s Human Rights Act claims also are barred by

the First Amendment. 101 Specifically, the Post asserts that we must affirm the

dismissal of Sonmez’s complaint under Civil Rule 12(b)(6) because “[e]ven if

Sonmez could state the elements of her DCHRA claims, applying D.C. law to

prohibit the specific conduct at issue—namely, The Post’s editorial decisions about

the types of stories to assign to Sonmez in light of her public advocacy—would

violate The Post’s First Amendment rights.” For the following reasons, we conclude

(1) that even if the Post is correct, this contention would support only a partial

dismissal of Sonmez’s claims; and (2) it is premature at this pre-discovery stage of

the proceeding to decide whether the First Amendment precludes the Human Rights

Act claims to which it might apply.

As to the first point, by its terms the Post’s contention applies only to

Sonmez’s challenges to the restrictions on her coverage of news stories involving

charges of sexual misconduct. We do not see that the Post’s argument applies to

101

“[W]here the undisputed facts conclusively establish an affirmative

defense as a matter of law[,]” a motion to dismiss on that ground may be granted.

Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 613 (6th Cir. 2009).

90

Sonmez’s other claims of illegal discriminatory mistreatment, such as the

performance evaluation that allegedly had an adverse impact on her compensation.

Turning to the second point, the Post states in its brief on appeal that in

asserting a First Amendment right to limit a reporter’s assignments, it “is not

claiming immunity from the DCHRA or other important anti-discrimination

statutes.” The Post states that “it is firmly committed to those statutes.” In this

respect, the Post’s position (as we understand it) appears to coincide with

longstanding precedent that the First Amendment affords news organizations “no

special immunity from the application of general laws,” nor any “special privilege

to invade the rights and liberties of others.” 102 Broadly speaking, the Supreme Court

has deemed it “clear that a government regulation [impinging on the freedom of

102

Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937) (holding that news

organization did not have a right under the First Amendment to discharge an editorial

employee on account of his union activity and agitation for collective bargaining,

where the employee’s right to engage in such activity was protected by the National

Labor Relations Act); see also, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 669

(1991) (citing the “well-established line of decisions holding that generally

applicable laws do not offend the First Amendment simply because their

enforcement against the press has incidental effects on its ability to gather and report

the news”); Wilson v. Cable News Network, Inc., 444 P.3d 706, 720 (Cal. 2019)

(“[I]n the area of press freedoms, it has long been established that the First

Amendment does not guarantee a news organization absolute control over who may

write, report, or even edit on its behalf.”) (citing cases).

91

speech under the First Amendment] is sufficiently justified if it is within the

constitutional power of the Government; if it furthers an important or substantial

governmental interest; if the governmental interest is unrelated to the suppression of

free expression; and if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of that interest.” 103 On its

face, a government regulation protecting employees, including newspaper reporters,

from invidious discrimination on the basis of race, gender, or other protected

characteristics or statuses is a good candidate for satisfying this test.

A relevant and informative application of these principles to discrimination

against a newspaper reporter is found in one of the cases on which the Post itself

relies, Passaic Daily News v. NLRB. 104 In that case, the D.C. Circuit upheld the

NLRB’s determination that the Passaic Daily News had unlawfully discriminated

against one of its reporters when the newspaper, motivated by anti-union bias,

canceled the reporter’s regular weekly column. The newspaper argued that the First

Amendment precluded the NLRB from challenging its putatively “editorial”

decision and from inquiring into its motives for discontinuing the column. 105 But in

103

United States v. O’Brien, 391 U.S. 367, 377 (1968); see also, e.g., Moody

v. NetChoice, LLC, 144 S. Ct. 2383, 2407 (2024).

104

736 F.2d 1543 (D.C. Cir. 1984).

105

Id. at 1555-56.

92

accordance with “the principles set forth in Associated Press,” the D.C. Circuit

rejected that argument and proceeded to address the terms of an appropriate order to

remedy the newspaper’s unlawful treatment of the reporter. 106 The NLRB had

ordered the newspaper to resume publishing the reporter’s weekly column. The court

held that this directive was constitutionally infirm, for as the Supreme Court held in

Miami Herald Pub. Co. v Tornillo, 107 First Amendment principles generally do not

permit the government to compel a newspaper to publish what the newspaper

chooses to withhold. But that did not mean the First Amendment exempted the

Passaic Daily News from all governmental scrutiny of its editorial decisions or

excused the newspaper from having to comply with anti-discrimination laws when

its actions could be categorized as editorial judgments. (Indeed, the Supreme Court

itself has cautioned that its “holdings that neither a State nor the Federal Government

may dictate what may or may not be printed neither expressly nor impliedly suggest

that the editorial process is immune from any inquiry whatsoever.” 108) Accordingly,

the D.C. Circuit remanded the case to the NLRB for it to “invoke any specific,

106

Id. at 1556-59.

107

418 U.S. 241, 254, 258 (1971).

108

Herbert v. Lando, 441 U.S. 153, 168 (1979).

93

alternate remedies” for the discriminatorily canceled reporter that would be

consistent with First Amendment principles. 109

Thus, in evaluating the Post’s First Amendment challenge to Sonmez’s

complaint, we agree with this statement by the Supreme Court of California (in

another case on which the Post has relied):

Not every staffing decision a news organization makes—

even with respect to those who write, edit, or otherwise

produce content—enjoys constitutional protection. As a

general rule, application of laws prohibiting racial and

other forms of discrimination will leave the organization

with “the full freedom and liberty” to “publish the news as

it desires it published.” . . . It follows that, also as a general

rule, a legal challenge to a particular staffing decision will

have no substantial effect on the news organization’s

ability to speak on public issues[.][110]

109

Passaic Daily News, 736 F.2d at 1559. The court did not undertake to

identify what “specific, alternate remedies” were open to the NLRB.

110

Wilson, 444 P.3d at 721 (citing Associated Press, 301 U.S. at 133); see also

Hausch v. Donrey of Nev., Inc., 833 F. Supp. 822, 832 (D. Nev. 1993) (rejecting

newspaper’s First Amendment defense to editor’s employment discrimination claim

based on failure to promote, because application of antidiscrimination laws did not

burden the newspaper’s “ability to control the content and character” of its message).

In the present case, the Post’s editorial control over what it chooses to publish is not

at issue; as Sonmez concedes, had the bans not been imposed on her, anything she

wrote would still have been subject to the review and approval of her editors.

94

In the present case, the Post’s editorial control over the substantive and

stylistic content of the articles that it chooses to publish is not at issue; as Sonmez

concedes, had the bans not been imposed on her, anything she wrote would still have

been subject to the review and approval of her editors. Moreover, those editors

raised no objections to the contents of the news stories Sonmez wrote. Rather, the

Post’s expressed editorial concern is with a byline identifying Sonmez as a reporter

of certain news stories in view of her personal experience and public stance as a

sexual assault victim. And the Post’s stated position is not that its restrictions on

Sonmez’s reporting are constitutionally immune from all judicial scrutiny, or that it

is generally free to discriminate against its reporters in violation of the Human Rights

Act, but rather that the First Amendment “bars judicial intervention” when “a

plaintiff bases a claim specifically on how a newspaper has applied journalistic

standards to protect its content and preserve public trust in its impartiality and

objectivity.” Thus, the Post grounds its First Amendment argument on its assertion

that it barred Sonmez from covering #MeToo stories not for discriminatory reasons,

95

but genuinely and reasonably in the interests of “preventing the appearance of bias

resulting from her public advocacy.” 111

111

Our dissenting colleague argues that because the choice of author

sometimes may affect what a news story communicates or how its readers receive

it, the First Amendment exempts newspapers and their editors from having to

comply with anti-discrimination laws when assigning stories to reporters, and courts

may not inquire into whether such assignments were motivated by invidious

discriminatory animus. It is unclear why it is thought that conclusion follows from

its premise, and the conclusion lacks precedential support. But according to the

dissent, the Post therefore was free to discriminate against Sonmez in restricting her

reporting assignments, even absent any genuine concern about her objectivity,

impartiality, conflict of interest, or qualifications, and even though the Human

Rights Act prohibited such discrimination.

We disagree. The defense position is contrary to longstanding precedent in

this area, which we have cited above, confirming that the First Amendment does not

override general laws prohibiting discrimination in employment. The dissent errs in

viewing its position as a corollary of Tornillo’s holding that the First Amendment

protects a newspaper’s freedom to decide what it will or will not publish. While the

First Amendment secures the right to speak and write in favor of even the most

odious and unlawful discrimination, it does not secure a right to practice such

discrimination in employment, even under the guise of exercising editorial judgment

that indirectly affects the content of what is published. Binding precedent

establishes that, while the exercise of editorial judgment in putting out a newspaper

is indeed protected to a considerable extent under the First Amendment, it is not

protected to the same extent as the newspaper’s speech itself.

We do not understand the Post to have espoused or adopted the dissent’s

radical position in this appeal. The Post does not contend that it had a First

Amendment right to restrict Sonmez’s reporting assignments because she is a sexual

assault victim or a woman (and of course the Post denies that it did so for those

reasons). Rather, as we discuss above, the Post argues that its editors had a

nondiscriminatory reason based on Sonmez’s public stance for restricting her

assignments. That is the contention we proceed to address.

96

Like the trial court, we recognize that the Post’s asserted motivation—

ensuring that the perceived impartiality of its news reporting is not compromised by

a reporter’s conflict of interest arising from her public statements—is a non-

discriminatory reason for its assignment decisions. We do not deny that “[a]

fundamental goal of . . . a news publication[] is to appear objective in the eyes of its

readers.” 112 And we recognize that the First Amendment affords protection to

editorial decisions that are motivated by such goals. 113

However, what actually motivated the Post editors to impose the bans on

Sonmez is a factual question—a disputed one at this preliminary stage of the trial

112

Nelson v. McClatchy Newspapers, 936 P.2d 1123, 1124-25 (Wash. 1997)

(en banc); see also Newspaper Guild of Greater Phila., Local 10 v. NLRB, 636 F.2d

550, 560 (D.C. Cir. 1980) (“At least with respect to most news publications,

credibility is central to their ultimate product and to the conduct of the enterprise.”).

113

See Nelson, 936 P.2d at 1125, 1129-32 (holding that while state law

prohibits an employer from discriminating against an employee because the

employee refuses to abstain from political activity, the First Amendment precludes

application of that prohibition to a newspaper’s reassignment of a reporter for

violation of its ethics code, which “define[d] conflicts of interest to include all

situations in which readers might be led to believe that the news reporting is biased,

including situations in which reporters participate in high profile political activity”);

see also Moody, 144 S. Ct. at 2402 (stating that “[a]n entity ‘exercis[ing] editorial

discretion in the selection and presentation’ of content is ‘engage[d] in speech

activity’” protected by the First Amendment (citation omitted)); Newspaper Guild,

636 F.2d at 560 (“[E]ditorial control and the ability to shield that control from

outside influences are within the First Amendment’s zone of protection and therefore

entitled to special consideration.”).

97

court proceedings, given our conclusion that Sonmez’s complaint plausibly alleges

that discriminatory motivations underlay the bans. This disputed factual question

cannot be resolved on the pleadings alone (which, we note, is a limitation the dissent

appears to overlook). The issue will be ripe for

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