# Sonmez v. WP Company, LLC

> District of Columbia Court of Appeals · January 30, 2025

URL: https://www.frixlaw.com/law-library/cases/10790515

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** January 30, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10790515

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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
any formal errors so that corrections may be made before the bound volumes go
to press.

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.
8

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.
21

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10790515. Public record. Not legal advice.