Motley-Ivey v. District of Columbia Metropolitan Police Department

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KIMBERLI MOTLEY-IVEY,

Plaintiff,

v. Civil Action No. 09-cv-571 (RLW)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Kimberli Motley-Ivey (“Motley”) is an officer with the District of Columbia

Metropolitan Police Department. Through this action, she asserts a number of employment-

based claims largely stemming from the time she was assigned to the Police Department’s

Harbor Patrol Division. Motley brings suit against the District of Columbia (the “District”) and

three of her superior officers in their individual capacities, Assistant Chief Alfred Durham

(“Asst. Chief Durham”), Lieutenant Paul Niepling (“Lt. Niepling”), and Sergeant Dale Poskus

(“Sgt. Poskus”) (collectively, the “Officer Defendants”). In her Fourth Amended Complaint,

Motley asserts the following causes of action: Hostile Work Environment under Title VII of the

Civil Rights Act of 1964 (“Title VII”) and the D.C. Human Rights Act (“DCHRA”) (Counts I

and III); Retaliation under Title VII and the DCHRA (Counts II and IV); Gender Discrimination

under Title VII and the DCHRA (Counts VI and VII); Intentional Infliction of Emotional

Distress (Count V); and claims under 42 U.S.C. § 1983 (Count VIII). 1 This matter is presently

before the Court on Defendants’ Motion for Summary Judgment (Dkt. No. 42).

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Counts III, IV, VII, and VIII are asserted against all defendants; Count V is brought

against the Officer Defendants only; and Counts I, II, and VI are pled solely against the District.

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Upon careful consideration of the parties’ briefing, the entire record in this action, and the

arguments of counsel during hearings on February 4 and 7, 2013, the Court concludes, for the

reasons set forth herein, that Defendants’ Motion will be GRANTED IN PART and DENIED

IN PART. For purposes of this ruling, the Court will assume that the reader is familiar with the

factual assertions and arguments made by the parties and will not recite those again here.

ANALYSIS

A. Standard of Review

Summary judgment is appropriate when the moving party demonstrates that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore

v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of material fact, the

nonmoving party must demonstrate—through affidavits or other competent evidence, FED. R.

CIV. P. 56(c)(1)—that the quantum of evidence “is such that a reasonable jury could return a

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

Anderson, 477 U.S. at 248). While the Court views all facts in the light most favorable to the

nonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434,

436 (D.C. Cir. 2004), the nonmoving party must nevertheless provide more than “a scintilla of

evidence” in support of its position, Anderson, 477 U.S. at 252. But “[i]f material facts are at

issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not

available.” Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

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B. Motley’s Claims Under the DCHRA and Title VII for Hostile Work Environment,

Retaliation, and Gender Discrimination (Counts I, II, III, IV, VI and VII).

Before turning to the merits of Motley’s claims under the DCHRA and Title VII, the

Court first deals with a number of timeliness challenges mounted by Defendants as to both

categories of claims. First, Defendants attack Motley’s DCHRA claims as untimely on several

grounds, arguing that: (1) to the extent Motley’s claims against the District are based on acts

occurring prior to September 14, 2010, those claims are barred by D.C. Code § 12-309; (2) to the

extent Motley’s DCHRA claims against any defendant are based on acts occurring prior to

March 26, 2008, those claims are time-barred by the DCHRA’s one-year statute of limitations;

and (3) the DCHRA’s “election of remedies” doctrine precludes Motley from relying on any acts

occurring prior to August 7, 2006. In addition, with respect to some aspects of Motley’s claims

against the District under Title VII, Defendants argue that she failed to properly exhaust her

administrative remedies with the Equal Employment Opportunity Commission (“EEOC”). The

Court addresses these arguments in turn.

1. Exhaustion Under D.C. Code § 12-309

It is well settled that a plaintiff cannot maintain an action against the District of Columbia

for unliquidated damages “unless, within six months after the injury or damage was sustained,

the claimant . . . has given notice to the Mayor of the District of Columbia of the approximate

time, place, cause, and circumstances of the injury or damages.” D.C. CODE § 12-309.

“[W]ritten notice under § 12-309 is a condition precedent to filing suit against the District,”

Tucci v. District of Columbia, 956 A.2d 684, 695 (D.C. 2008), and the D.C. Court of Appeals has

expressly held that § 12-309’s notice requirements apply to claims for unliquidated damages

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under the DCHRA brought against the District, Owens v. District of Columbia, 993 A.2d 1085,

1089 (D.C. 2010).

In this case, Motley sent a § 12-309 letter to Mayor Vincent Gray on March 14, 2011,

advising of her intention to assert claims against the District of Columbia. (Dkt. No. 42-17).

Defendants do not dispute this fact, but they argue that, given the timing of Motley’s letter, § 12-

309 bars her from pursuing DCHRA claims against the District that are premised on acts

occurring prior to September 14, 2010—i.e., more than six months prior to her letter. Motley

contends otherwise, citing to the U.S. Supreme Court’s decision in National Railroad Passenger

Corp. v. Morgan, 536 U.S. 101, 115 (2002), and arguing that the “continuing violation” doctrine

permits her to rely upon allegations reaching as far back as 1994, when she was first assigned to

Harbor Division. However, the Court finds Motley’s reliance on Morgan misplaced, at least

with respect to the issue of her compliance with § 12-309.

In this respect, neither side provided the Court with any authority squarely addressing

whether the continuing violation doctrine applies to exhaustion under D.C. Code § 12-309, and

based on the Court’s own research, it appears that neither the D.C. Court of Appeals nor our

Circuit has spoken to the issue. But in this Court’s view, the continuing violations doctrine—a

principle impacting statute of limitations issues, see, e.g., Keohane v. United States, 699 F.3d

325, 329 (D.C. Cir. 2012) (“Under the continuing violation doctrine, the statute of limitations

begins to run only after the date of the last injury.”)—finds no application in the context of

exhaustion under § 12-309. The D.C. Court of Appeals has repeatedly explained that § 12-309

“is not, and does not function as, a statute of limitations.” E.g., Brown v. District of Columbia,

853 A.2d 733, 736-37 (D.C. 2004). Rather, “Section 12-309 was purely a notice provision

specifically designed to avoid, as applied to the District, the pitfalls of the statute of limitations.”

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Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C. 1981). It instead operates as a

“departure from the common law concept of sovereign immunity” and a “condition precedent” to

filing suit against the District that must “be strictly construed.” Id.; see also Barnhardt v.

District of Columbia, 8 A.3d 1206, 1214 (D.C. 2010) (characterizing § 12-309 as a “condition of

a waiver of sovereign immunity by the District of Columbia”). Moreover, under § 12-309, “the

six-month clock begins to run from the moment the plaintiff sustains the injury, not from the

moment a cause of action accrues.” Owens, 993 A.2d at 1090 (quoting District of Columbia v.

Dunmore, 662 A.2d 1356, 1359 (D.C. 1995)).

Therefore, under D.C. Code § 12-309, Motley can only pursue her DCHRA claims

against the District to the extent they are premised on acts occurring within the six-month period

preceding her letter to the Mayor—i.e., from September 14, 2010 through March 14, 2011.

2. The DCHRA’s One-Year Statute of Limitations

Defendants next argue that some of Motley’s DCHRA claims against both the District

and the Officer Defendants are partially time-barred by the one-year statute of limitations set

forth in D.C. Code § 2-1403.16(a). More specifically, they argue that her discrimination and

retaliation claims under the DCHRA are untimely to the extent they are premised on discrete acts

occurring prior to March 26, 2008—more than one year before Motley filed suit on March 26,

2009. In her opposition, Motley does not dispute that her DCHRA claims are subject to the one-

year limitations period under D.C. Code § 2-1403.16(a). Instead, she again cites to the Supreme

Court’s decision in Morgan, and argues that her claims are covered by the continuing violations

theory. But in Morgan, the Supreme Court actually held that the continuing violation doctrine

does not apply to claims of discrete discriminatory or retaliatory acts under Title VII. Morgan,

536 U.S. at 113. The D.C. Court of Appeals has expressly extended this analysis to claims of

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discrete discriminatory or retaliatory acts under the DCHRA. Cesarano v. Reed Smith, LLP, 990

A.2d 455, 463-65 (D.C. 2010) (“[D]iscrete discriminatory acts are not actionable if time barred,

even when they are related to acts alleged in timely filed charges.”); see also Barrett v.

Covington & Burling LLP, 979 A.2d 1239, 1248-49 (D.C. 2009). Thus, Motley’s reliance on the

continuing violation doctrine, at least in connection with her gender discrimination and

retaliation claims, is unavailing. Under Morgan and its progeny, she can only proceed with her

gender discrimination and retaliation claims under the DCHRA to the extent they are premised

on acts occurring on or after March 26, 2008, and to the extent that those discrete acts were

properly exhausted at the administrative level.

Motley’s hostile work environment claims under the DCHRA, on the other hand, present

a different scenario, but the Court does not understand Defendants to be arguing that her hostile

work environment claims are limited to acts occurring on or after March 26, 2008, and in fact,

Defendants expressly confirm as much in the reply brief. (Dkt. No. 45 (“Defs.’ Reply”) at 4-5).

But to remove all doubt, the Court agrees that Morgan upheld the applicability of the continuing

violation doctrine to hostile work environment claims under Title VII, Morgan, 536 U.S. at 121,

and that analysis has been expressly extended to hostile work environment claims under the

DCHRA, see Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890 (D.C. 2003). Put another

way, “if an act contributing to the [hostile work environment] claim occurs within the filing

period, the entire time period of the hostile environment may be considered by the court for the

purposes of determining liability.” Id. In this case (and as explained infra), Motley’s hostile

work environment claims are essentially premised on Defendants’ issuance of allegedly

unjustified and disproportionate disciplinary actions against her, as compared to her male

colleagues. Because at least some of the disciplinary actions that comprise Motley’s hostile

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work environment claim fall within the applicable statutory period, she may properly rely on

other instances of allegedly discriminatory discipline that fall outside that time period in

pursuing her hostile work environment claims under the DCHRA.

3. The Election of Remedies Doctrine

As a final attack on the timeliness of Motley’s DCHRA claims, Defendants argue that

Motley cannot proceed with any DCHRA claim that occurred prior to August 7, 2006, because

she elected to proceed with those claims before the D.C. Office of Human Rights (“OHR”),

which investigated and issued a determination on these claims. In this regard, Defendants are

correct that the DCHRA generally “requires complainants to choose between an administrative

or a judicial forum in which to pursue their claims,” such that “where one opts to file with the

[D.C. Office of Human Rights], he or she generally may not also file a complaint in court”

raising the same claims. Carter v. District of Columbia, 980 A.2d 1217, 1223 (D.C. 2009).

Here, Motley does not dispute that the claims raised in her September 2004 charge of

discrimination were filed with OHR and were investigated by OHR. She also does not dispute

that, on August 7, 2006, OHR issued a probable cause determination letter as to those claims.

(Dkt. No. 49-1 (“Compiled Facts”), Pl.’s Facts at ¶ 17). 2 Despite this, Motley argues that she

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Where practical, the Court cites to the parties’ “Compiled Statement of Material

Undisputed Facts, Responses, and Replies” when referencing evidence in the case. (See Dkt.

No. 49-1). However, given the overwhelming failure of both sides to comply with the Court’s

Order in preparing this statement—as discussed with counsel at length during the hearings on

this Motion—in many cases, the parties’ statement proved woefully unhelpful to the Court, and

the Court finds it necessary to cite directly to evidence in the record in some instances. The

Court reiterates that, as both sides were expressly cautioned and admonished during recent

hearings, any future noncompliance with the directives of this Court—or with the Federal Rules

of Civil Procedure or the Court’s Local Rules more generally—will not be tolerated.

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can still proceed with those claims because, as she sees it, OHR never rendered a “finding on the

merits.” (Dkt. No. 44 (“Pl.’s Opp’n”) at ECF p. 22).

There are two statutory exceptions to the election of remedies doctrine under the

DCHRA: (1) if “OHR dismissed the complaint for ‘administrative convenience,’” or (2) if “the

complainant withdraws her OHR complaint before OHR has decided it.” Carter, 980 A.2d at

1223. Motley does not argue that she withdrew her complaint with OHR. Instead, she contends

that, after OHR rendered its probable cause determination, it referred any further action to the

EEOC pursuant to a worksharing agreement. In essence, Motley appears to argue that OHR’s

deferral to the EEOC amounted to a dismissal for “administrative convenience.” To be sure,

Motley’s briefing on this issue leaves a great deal to be desired. But during oral argument,

Motley’s counsel rightly pointed out that her initial charge was cross-filed with both OHR and

the EEOC. (See Dkt. No. 42-19). In addition, following oral argument, Motley belatedly filed

with the Court a copy of the right-to-sue notice issued by the EEOC for Charge No.

10C200400347, which advised Motley that she “ha[d] the right to institute a civil action” on the

claims set forth in her charge. (Dkt. No. 50-1). 3 It is true that “when the OHR invokes the

automatic termination provision of the worksharing agreement for complaints filed originally

with the EEOC, that ruling constitutes a dismissal on the ground of administrative convenience

under the statute.” Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 574 (D.C. 2007); see also

Ibrahim v. Unisys Corp., 582 F. Supp. 2d 41, 46-47 (D.D.C. 2008). And while Motley did not

present any documentation confirming that OHR formally referred Motley’s charge to the EEOC

for resolution, Defendants do not dispute her assertions in this respect, and the subsequent right-

to-sue notice she received from the EEOC lends considerable support to her argument.

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The Court notes that Defendants have not objected to the belatedness of Motley’s

submission.

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Accordingly, at this stage and on the present record, the Court concludes that Motley has at least

raised a triable issue of fact as to whether her original charge was dismissed by OHR for

“administrative convenience,” and declines to hold that the election of remedies doctrine bars

certain aspects of her DCHRA claims. 4

4. Exhaustion of Remedies as to Title VII Claims

Under Title VII, plaintiffs “must timely exhaust their administrative remedies before

bringing their claims to court,” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (internal

quotations omitted), and “a timely administrative charge is a prerequisite to initiation of a Title

VII action in the District Court,” Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir.

1985). A charge with the EEOC “shall be filed within 180 days after the alleged unlawful

employment practice occurred,” although that window is extended to 300 days when the plaintiff

“initially institutes proceedings with a State or local agency,” such as the D.C. Office of Human

Rights. 42 U.S.C. § 2000e-5(e)(1). In the instant case, there is no dispute that the 300-day

window governs the exhaustion of Motley’s claims.

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The evidence the parties presented to the Court surrounding this issue was scant—the

Court did not have the benefit of reviewing OHR’s docket or case file for the particular charge,

nor did Motley present any documentary evidence confirming that OHR decided not to pursue

any further action on that charge. But the Court’s reading of the OHR’s probable cause

determination indicates that, if the District declined to pursue conciliation efforts at that stage,

the matter would proceed to a summary determination or a hearing on the merits within OHR.

(Dkt. No. 42-18). Neither side presented any evidence suggesting that either of those outcomes

transpired. Instead, Motley argues—and Defendants do not meaningfully contest—that OHR

refrained from any further action on Motley’s claims and referred the resolution of her charge to

the EEOC, which issued a right-to-sue notice on December 30, 2008. As such, and based on the

present record, the Court declines to hold that the election of remedies doctrine bars some

portion of Motley’s claims. However, to the extent that Defendants obtain additional evidence or

information suggesting that OHR did not dismiss Motley’s charge for “administrative

convenience”—e.g., based on the docket sheet or case file from OHR with respect to that

particular charge—Defendants may renew this argument through an appropriate motion in

limine, and the Court will take another look at this particular issue, if warranted.

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From there, Defendants first argue that, based on the content of Motley’s initial

discrimination charge filed on September 20, 2004, she did not properly exhaust any claims that

arose prior to November 2003. The Court agrees. Motley herself limited the scope of her claims

in the narrative portion of that discrimination charge, asserting that her co-workers and

supervisors had subjected her to a hostile work environment “[f]rom November 2003 to the

present.” (Dkt. No. 42-19). While Motley now contends, in conclusory fashion, that her charge

addressed a “continuing pattern of harassment dating back to September 2001,” her own written

summary in the charge itself belies that assertion. Accordingly, the Court finds that Motley

failed to properly exhaust any Title VII claims occurring prior to November 2003.

After her initial charge, Motley subsequently filed three additional charges with the

EEOC, on March 16, 2007, October 27, 2009, and March 21, 2011. (Dkt. Nos. 42-20, 42-21, &

42-22). With respect to those charges, Defendants cite to Morgan and argue that Motley’s

claims in this case must necessarily be limited to the “discrete acts” identified in each charge.

Defendants are partly correct. As to Motley’s gender discrimination and retaliation claims under

Title VII, Morgan and its progeny required her to exhaust her administrative remedies with

respect to each “discrete act.” Morgan, 536 U.S. at 122; Baird v. Gotbaum, 662 F.3d 1246, 1251

(D.C. Cir. 2012). Motley can therefore only base those claims on the discrete acts expressly set

forth and exhausted in her various EEOC charges.

However, as the Court already explained, a different analysis applies to Motley’s claims

for hostile work environment. As the D.C. Circuit recently explained, “[b]oth incidents barred

by the statute of limitations and ones not barred can qualify as part of the same actionable hostile

environment claim . . . if they are adequately linked into a coherent hostile environment claim—

if, for example, they involve the same type of employment actions, occur relatively frequently,

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and are perpetrated by the same managers.” Baird, 662 F.3d at 1251 (quoting Morgan, 536 U.S.

at 120-21). According to Motley, her hostile work environment claims are premised on

Defendants’ use of “unjustified disciplinary actions,” which she contends were imposed in a

discriminatory manner on account of her gender. Insofar as her EEOC charges encompass these

allegations to some extent, and expressly set forth at least a few examples of this allegedly

disproportionate discipline, Motley may be able to properly rely on similar allegations of

disproportionate discipline in pursuing her hostile work environment claims, even if not

explicitly exhausted through her EEOC charges.

With those issues resolved, the Court now turns to the merits of Motley’s claims under

both the DCHRA and Title VII.

5. Motley’s Hostile Work Environment Claims

Under Title VII, an employer cannot create or condone “a hostile or abusive work

environment if the harassment is sufficiently abusive to affect a term, condition, or privilege of

employment.” Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1122 (D.C. Cir. 2002). To

prevail on a hostile work environment claim, a plaintiff must show that her employer subjected

her to “discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive

to alter the conditions of the victim’s employment and create an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 65, 67 (1986)); see also Barbour v. Browner, 181 F.3d 1342, 1347-48 (D.C. Cir.

1999). Moreover, “hostile behavior . . . cannot support a claim of hostile work environment

unless there exists some linkage between the hostile behavior and the plaintiff’s membership in a

protected class.” Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009). To determine whether

a hostile work environment exists, the court looks to the totality of the circumstances, including

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the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance. See Faragher v. City of Boca Raton, 524 U.S.

775, 787-88 (1998). Because “the legal standard for establishing discrimination under the

DCHRA is substantively the same as under Title VII,” the Court considers Motley’s hostile work

environment claims under Title VII and the DCHRA coextensively. Elhusseini v. Compass

Group USA, Inc., 578 F. Supp. 2d 6, 18 (D.D.C. 2008) (citing Sparrow v. United Air Lines Inc.,

216 F.3d 1111, 1114 (D.C. Cir. 2000)).

In seeking summary judgment on Motley’s hostile work environment claims, Defendants

focus their arguments on Motley’s allegations of diffuse interactions with her male coworkers

and a series of purportedly inappropriate comments and remarks. In turn, Defendants argue that

those allegations fall short of the “severe or pervasive” showing necessary to maintain a viable

hostile work environment claim. (Dkt. No. 42 (“Defs.’ Mem.”) at 27-30). But based on

Motley’s opposition briefing, it seems that Defendants misunderstand the basis for her claims.

According to Motley, her hostile work environment claims are premised on Defendants’ practice

of imposing “unjustified disciplinary action” against her that was “continuous, concerted and

pervasive,” and that was allegedly disproportionate to the discipline imposed on her male

colleagues. (Pl.’s Opp’n at ECF p. 25). The Court need not identify each and every incident

raised by Motley to resolve this motion, but some of the incidents Motley identifies include:

• Being investigated for an incident when she had difficulty docking a boat in

February 2008, and apparently being recommended for adverse disciplinary

action, while the two male officers involved in the incident received only

“official reprimands” (Compiled Facts, Pl.’s Facts at ¶¶ 27-28); 5

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The Court notes that Motley not only alleges that she was disciplined more frequently

than her male colleagues, but she also contends that the discipline she received (typically in the

form of “adverse actions”) was more severe than that imposed on male officers (typically in the

form of “corrective actions”). According to Motley’s statement of facts, “corrective actions”—

which include “PD 750s,” “dereliction reports,” “official reprimands,” and “letters of

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• Being cited for adverse action for willfully disobeying an order to clear out

her lockers in April 2008, despite seeking further guidance from her male

commanding officers concerning their directive (Id., Pl.’s Facts at ¶¶ 32-35);

• Being cited for adverse action for “conduct unbecoming” and suspended for 3

days without pay in May 2008, after she questioned Sgt. Poskus about coming

in late to work (Id., Pl.’s Facts at ¶¶ 36-39); and

• Being cited for adverse action for negligence and suspended for 2 days

without pay in July 2010, for leaving the keys in a boat docked at the

Georgetown Harbor, despite the fact that the investigation revealed that

leaving the keys in a boat was common practice within the Harbor Division

(Id., Pl.’s Facts at ¶¶ 61-66).

Notably, a pattern of allegedly undeserved, excessive, and/or disproportionate discipline can

form the basis for a viable hostile work environment claim, at least where the plaintiff provides

credible evidence that the alleged justification underlying that pattern of discipline is unlawful

discrimination. See, e.g., Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 40-41 (1st Cir. 2003)

(finding sufficient evidence to support jury’s finding of hostile work environment where, among

other allegations, the plaintiff “received undeserved or excessive discipline on multiple occasions

over a roughly two year period”); Wise v. Ferreiro, 842 F. Supp. 2d 120, 126-27 (D.D.C. 2012)

(denying motion to dismiss hostile work environment claim where, among other allegations,

plaintiff alleged that he was subjected to “threats of discipline based on false accusations”). 6

prejudice”—apparently do not trigger any immediate employment consequences, but simply

remain in an officer’s personnel file for 2 years; by contrast, “adverse actions” are more severe

and can lead to suspension, fines, reductions of pay, reductions in rank, and/or termination.

(Compiled Facts, Pl.’s Facts at ¶ 21-24). Defendants do not credibly dispute her characterization

of the difference between the two overall categories of discipline. In addition, the evidence cited

by Motley in support of these contentions is testimony from one of Defendants’ own witnesses,

Sgt. Poskus. (See Dkt. No. 42-5 at ECF p. 15-16).

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The Court is mindful that, in some instances, particular disciplinary actions taken against

Motley might also constitute actionable adverse actions for purposes of her discrimination and

retaliation claims under Title VII or the DCHRA, where, for instance, Motley was suspended

without pay, or suffered some other type of tangible employment consequences. However, as

the D.C. Circuit recently made clear, this does not preclude Motley from relying on those same

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In reply, Defendants do not offer any credible argument as to how the scope of discipline

Motley describes falls short of the “severe or pervasive” threshold necessary to sustain her

hostile work environment claim. Instead, they simply argue that Asst. Chief Durham was not

involved in any of those disciplinary actions, and that Motley does not dispute that she was

involved in the activity she was accused of. (Defs.’ Reply at 8). But those arguments largely

miss the mark. In short, Motley has raised a genuine issue of fact as to whether the discipline

imposed against her, when considered as a whole, was sufficiently “severe or pervasive,” and she

has adduced sufficient evidence from which a reasonable jury might conclude that those

disciplinary actions were motivated by her gender, given the comparative discipline (or lack

thereof) levied against her male colleagues.

Accordingly, the Court will deny summary judgment as to Motley’s hostile work

environment claims against the District of Columbia, under both the DCHRA and Title VII

(Counts I and III). In addition, given Lt. Niepling’s and Sgt. Poskus’ apparent involvement in

Motley’s disciplinary actions—whether through initiating investigations, issuing adverse actions,

and/or reviewing and recommending particular disciplinary actions—the Court will permit

Motley’s hostile work environment claims under the DCHRA (Count III) against Lt. Niepling

and Sgt. Poskus to proceed to trial.

incidents—where considered with other disciplinary actions, as a whole—to support her hostile

work environment claims:

[W]e find no authority for the idea that particular acts cannot as a matter of law

simultaneously support different types of Title VII claims, and of course, plaintiffs are

free to plead alternative theories of harm that might stem from the same allegedly

harmful conduct. Thus, although a plaintiff may not combine discrete acts to form a

hostile work environment claim without meeting the required hostile work environment

standard, neither can a court dismiss a hostile work environment claim merely because it

contains discrete acts that the plaintiff claims (correctly or incorrectly) are actionable on

their own.

Baird, 662 F.3d at 1252; see also Peters v. District of Columbia, 873 F. Supp. 2d 158, 195

(D.D.C. 2012); Herbert v. Architect of the Capitol, 839 F. Supp. 2d 284, 300 (D.D.C. 2012).

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Motley’s DCHRA hostile work environment claims against Asst. Chief Durham,

however, are a different matter. Motley does not present any evidence to establish that Asst.

Chief Durham was involved in any of the disciplinary actions that form the basis for her hostile

work environment claims. Indeed, it is undisputed that he was only assigned to Harbor Patrol

from 2000 through 2005, years before the instances of discipline that Motley highlights through

her opposition brief. (Compiled Facts, Defs.’ Facts at ¶ 1). At best, the only allegation that

implicates Asst. Chief Durham is Motley’s speculative assertion that, when he first arrived at

Harbor in 2000, she believed that he wanted her to “befriend him in a way that, probably in a

sexual way, that [she] would be taken care of there.” (Pl.’s Opp’n at ECF p. 25). This type of

singular, discrete incident—even if Motley’s speculative testimony were credited—falls far short

of the requisite “severe or pervasive” benchmark necessary to pursue a hostile work environment

claim. 7 Thus, Motley’s DCHRA hostile work environment claim against Asst. Chief Durham

(through Count III) will be dismissed.

6. Motley’s Gender Discrimination and Retaliation Claims

Under both Title VII and the DCHRA, claims of gender discrimination and retaliation are

evaluated pursuant to the familiar, three-part burden-shifting test articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must establish a prima facie

case. For her discrimination claims, Motley must establish that: “(1) she is a member of a

7

During oral argument, Motley’s counsel also claimed that Asst. Chief Durham created or

contributed to a hostile work environment by allegedly initiating an investigation into Motley’s

overtime pay while on sick leave, in February 2010. Upon review of the evidence that Motley

cites in support of this assertion, however, it appears that Asst. Chief Durham’s involvement in

that investigation—which ultimately did not result in any adverse consequences to Motley—was

substantially more limited than Motley suggests. (See Dkt. No. 42-13 at ECF p. 21). But even

viewing that evidence in the light most favorable to Motley, this singular incident is neither

“severe” nor “pervasive,” and cannot form the basis for a hostile work environment claim.

15

protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action

gives rise to an inference of discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir.

2007). As to her retaliation claims, Motley’s prima facie case consists of demonstrating: “(1)

that [s]he engaged in statutorily protected activity; (2) that [s]he suffered a materially adverse

action by [her] employer; and (3) that a causal link connects the two.” Jones v. Bernanke, 557

F.3d 670, 677 (D.C. Cir. 2009). Thereafter, the burden shifts to Defendants to articulate a

“legitimate, nondiscriminatory reason” for the challenged employment action(s). McDonnell

Douglas, 411 U.S. at 802-04; Wiley, 511 F.3d at 155. Finally, Motley “must be afforded the

opportunity to prove” that Defendants’ proffered motive “was not its true reason, but was a

pretext for discrimination.” Barnette v. Chertoff, 453 F.3d 513, 516 (D.C. Cir. 2006).

In seeking summary judgment, Defendants principally attack Motley’s ability to establish

a prima facie case as to both categories of claims, arguing that many of the issues Motley

complains about do not constitute actionable adverse actions, including: (1) Motley’s co-

workers’ alleged use of abusive language; (2) the “notice of termination” Motley received in

September 2010, given that it was only a “recommendation” and that she was never actually

terminated; (3) Motley’s alleged lack of training opportunities; and (4) Motley’s receipt of poor

performance evaluations. (Defs.’ Mem. at 31-34). In large part, Motley does not contest these

arguments, but her opposition briefing does identify a list of allegedly adverse actions that she

challenges through her discrimination and retaliation claims. (Pl.’s Opp’n at ECF pp. 27-28).

However, not all of those actions were properly exhausted during the administrative process with

the EEOC, consistent with the Court’s earlier analysis. Rather, the only discrete claims that were

both specifically exhausted and identified in Motley’s opposition are:

• the July 2010 “neglect of duty” charge for leaving the keys in a boat, pursuant

to which Motley was suspended for 2 days without pay; and

16

• the September 2010 charges and “notice of termination,” pursuant to which

Motley was stripped of her police powers, suspended without pay for 10 days,

and transferred to the Property Division and assigned administrative work.

(Pl.’s Opp’n at ECF pp. 27-28). Thus, the Court considers only these incidents in evaluating

Motley’s gender discrimination and retaliation claims. 8

The D.C. Circuit has explained that, to qualify as an adverse employment action, “[a]n

employee must experience 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.” Douglas v. Preston, 559 F.3d 549, 552 (D.C. Cir. 2009).

While “false accusations without negative employment consequences” are not actionable adverse

actions, Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002), disciplinary actions that result

in suspensions without pay, as here, clearly constitute adverse employment actions, Holbrook v.

Reno, 196 F.3d 255, 263 (D.C. Cir. 1999); Saint-Jean v. District of Columbia, 844 F. Supp. 2d

16, 21 (D.D.C. 2012). Accordingly, the above-listed incidents—both of which involved

suspensions without pay—fall within the universe of actionable adverse actions and can

legitimately underlie Motley’s claims.

As a result, and because Motley presents sufficient evidence from which a reasonable

jury could conclude that those disciplinary actions were motivated by her gender, as already

discussed, the Court finds that Motley states a prima facie case for gender discrimination.

Although Defendants argue that these actions were based upon reasonable, non-discriminatory

motives, Motley has come forward with sufficient evidence to survive summary judgment on the

8

Motley also identified the following incidents as “adverse actions” in her opposition

briefing: (1) a 2003 adverse action for neglect of duty; (2) a July 2008 adverse action for neglect

of duty; (3) a sub-par November 2008 performance evaluation; and (4) an April 2012 charge of

discipline. (Pl.’s Opp’n at ECF pp. 27-28). But because Motley did not exhaust her claims with

respect to these incidents through any of her charges to the EEOC, (see Dkt. Nos. 42-19, 42-20,

42-21, 42-22), they cannot form the basis for her gender discrimination or retaliation claims.

Morgan, 536 U.S. at 122; Baird, 662 F.3d at 1251.

17

question of whether those explanations are pretextual and were instead motivated by some

discriminatory animus against Motley as a female officer.

Therefore, Motley’s gender discrimination claims against the District under Title VII

(Count VI) and the DCHRA (Count VII) shall proceed, but shall be limited in scope to the July

2010 charge related to the boat incident and the September 2010 charge and “notice of

termination” surrounding Motley’s conduct in Superior Court. 9 Further, insofar as the record

establishes that Lt. Niepling initiated the investigation into the September 2010 charges that led

to Motley’s “notice of termination,” her gender discrimination claim under the DCHRA against

Lt. Niepling survives in this respect as well. However, since Motley presents no evidence that

either Asst. Chief Durham or Sgt. Poskus had any involvement in either of these incidents, her

gender discrimination claims against those two individuals under the DCHRA will be dismissed.

Turning to Motley’s retaliation claims, the Court finds that Motley fails to raise a genuine

issue of material fact suggesting that those actions (or any of the other allegedly improper acts

she attributes to Defendants) were motivated by retaliation for Motley having engaged in some

type of protected activity. In fact, she does not even identify the potentially “protected activity”

that she claims incited a retaliatory motive on the part of Defendants. 10 Instead, her opposition

9

Motley’s gender discrimination claims shall also be limited in scope by the Court’s

earlier analysis concerning Defendants’ timeliness challenges, including exhaustion under D.C.

Code § 12-309 and the impact of the applicable statute(s) of limitation. See Sections B.1–B.4,

supra. To this end, and as set forth in the Court’s accompanying Order, the parties shall, along

with their other meet and confer obligations prior to the pretrial conference, meet and confer

regarding the appropriate scope of all of Motley’s remaining claims, to identify the allegedly

adverse actions the jury can properly consider in evaluating her various causes of action against

the remaining defendants.

10

Based on the allegations in her Fourth Amended Complaint, the Court presumes that

Motley would have relied on the charges of discrimination she filed with the EEOC and OHR as

the underlying “protected activity” in support of her retaliation claims. But Motley failed to

include even a passing reference in her opposition briefing confirming as much.

18

briefing exclusively argues that Defendants actions were motivated by her gender—alleging that

she was treated differently than her “male counterparts.” At most, she summarily asserts that

“there is no basis for summary judgment on the discrimination and retaliation claims.” (Pl.’s

Opp’n at ECF pp. 27-28). But Motley fails to advance any substantive arguments, let alone

arguments supported by competent evidence, as to how Defendants’ alleged conduct was

retaliatory. As a result, the Court will dismiss Motley’s retaliation claims under both Title VII

(Count II) and the DCHRA (Count IV) as against all defendants.

C. Motley’s IIED Claims (Count V)

As alleged in her Fourth Amended Complaint, Motley’s IIED claims are expressly pled

against the Officer Defendants—Asst. Chief Durham, Lt. Niepling, and Sgt. Poskus—and not

against the District of Columbia. (Dkt. No. 29 (“Fourth Am. Compl.”) at ¶¶ 67-69 (Count V)). 11

But in seeking summary judgment, Defendants aver that “the District is entitled to judgment as a

matter of law as to Plaintiff’s IIED claim,” arguing that Motley failed to provide adequate notice

of an IIED claim to the Mayor of the District of Columbia, as required by D.C. Code § 12-309.

(See Defs.’ Mem. at 20) (emphasis added). Other than this argument, Defendants do not assert

that Motley’s IIED claims fail on any other grounds—for example, by arguing that the

underlying conduct was not sufficiently extreme or outrageous to sustain her claims. Nor do

Defendants advance any arguments whatsoever as to why Motley’s IIED claims against the

Officer Defendants should be dismissed. But perhaps even more surprising is the fact that

Motley did not point out the faults in Defendants’ arguments in her opposition briefing; instead,

11

Moreover, looking back to Motley’s First, Second and Third Amended Complaints, (Dkt.

Nos. 10, 14, & 25), her IIED claims have always been pled against the Officer Defendants only,

and not the District. In fact, elsewhere in their Motion, Defendants expressly recognize as

much. (See Defs.’ Mem. at 4) (“Defendants Durham, Niepling and Poskus have been named as

defendants as to Counts III, IV, V, VII and VIII.”).

19

she essentially bought into their approach, arguing only that § 12-309 does not require the

specificity that Defendants suggest, and that she was not required to explicitly reference an

“IIED” claim in her letter to the Mayor. Given all this, the briefing on Motley’s IIED claims

from both sides was unnecessary and unhelpful. But at the end of the day, the fact remains that

Defendants did not move for summary judgment in favor of the Officer Defendants. However,

the Court will dismiss Motley’s IIED claim as against Asst. Chief Durham, given that Motley’s

underlying claims against Asst. Chief Durham—whether for hostile work environment, gender

discrimination, or retaliation—cannot be sustained. 12

D. Motley’s Claims under 42 U.S.C. § 1983 (Count VIII)

42 U.S.C. § 1983 “provides for a damage action against ‘any person who, under color of

[the law] . . . of any State . . . or the District of Columbia, subjects, or causes to be subjected, any

citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws.’” Parker v. District of Columbia, 850 F.2d 708, 716 (D.C. Cir.

1988) (quoting 42 U.S.C. § 1983). In this case, Motley’s § 1983 claims are premised on her

assertion that Defendants “have had a long standing, persistent policy at the Harbor Unit of

favoring sworn male officers over female officers.” (Fourth Am. Compl. at ¶ 80). She alleges

that pursuant to this “policy,” Defendants’ “discriminatory and retaliatory treatment” toward her

violated her rights under the Fifth Amendment to the Constitution. (Id. at ¶ 81).

Dealing first with Motley’s claim against the District of Columbia, a municipality cannot

be held liable under § 1983 based on “principles of respondeat superior, but only for

constitutional torts arising from ‘action pursuant to official municipal policy.’” Triplett v.

12

In addition, because Motley does not allege an IIED claim against the District of

Columbia, the Court need not reach the issue of whether Motley’s letter to the Mayor of D.C.

satisfied the notice requirements of § 12-309 for purposes of an IIED claim.

20

District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (quoting Monell v. N.Y.C. Dep’t v.

Social Servs., 436 U.S. 658, 691 (1978)). “The only acts that count (though they may include

inaction giving rise to or endorsing a custom) are one by a person or persons who have ‘final

policymaking authority [under] state law.’” Id. (quoting Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989)). As explained by our Circuit:

There are a number of ways in which a “policy” can be set by a municipality to

cause it to be liable under § 1983: [1] the explicit setting of a policy by the

government that violates the Constitution; [2] the action of a policy maker within

the government; [3] the adoption through a knowing failure to act by a policy

maker of actions that are so consistent that they have become “custom”; or [4]

the failure of the government to respond to a need (for example, training of

employees) in such a manner as to show “deliberate indifference” to the risk that

not addressing the need will result in constitutional violations.

Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (internal citations omitted).

In seeking summary judgment in favor of the District, Defendants argue that, because the only

“policy makers” for the Metropolitan Police Department are the Mayor of D.C. and the Chief of

Police, and because neither of those individuals committed any of the acts about which Motley

complains, she cannot establish liability under § 1983 on the part of the District. (Defs.’ Mem. at

37-40). Defendants read the law too narrowly. It is true that these facts would preclude liability

under the first and second approaches outlined above, but Motley’s claim is not grounded in

either of those theories. Instead, she seems to rely on the latter approaches, contending that

Chief Lanier’s inaction triggers liability on the part of the District. Unfortunately for Motley,

however, her claim fares no better on those grounds.

Instead, her opposition briefing simply contends, in purely conclusory fashion, that her

supervisors’ allegedly discriminatory actions “had become so widespread and embedded that

Chief Lanier must have known and sanctioned it, especially given that her second in command is

defendant Durham.” (Pl.’s Opp’n at ECF p. 29). Other than this bald assertion, Motley provides

21

absolutely no evidentiary support in the record to implicate Chief Lanier or to otherwise

demonstrate that the District’s alleged conduct was driven by an official policy, as she must.

FED. R. CIV. P. 56(c). Nevertheless, based on the Court’s own review, and when viewing the

evidence in the light most favorable to Motley, as the Court must, the record demonstrates that,

at most, Chief Lanier was aware of a single incident of potentially-unjustified disciplinary action

against Motley. After being cited for “Conduct Unbecoming” in late 2008, Motley appealed hat

adverse action (which would have resulted in a 3-day suspension) to the Chief’s office;

ultimately, Chief Lanier rescinded the adverse action, and Motley suffered no disciplinary

consequences as a result. (See Dkt. No. 42-12 at ECF p. 1-2). Otherwise, Motley cannot point to

any other evidence in the record to suggest that Chief Lanier knew about—let alone ignored—

any other complaints or concerns raised by Motley about allegedly unjustified or discriminatory

discipline. 13 This one instance, without more, hardly establishes that Chief Lanier “knowingly

ignored a practice that was consistent enough to constitute custom.” Jones v. Horne, 634 F.3d

588, 601 (D.C. Cir. 2011); Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).

Nor does it establish “deliberate indifference” on the part of the District, particularly given that

Chief Lanier actually rescinded the only instance of discipline that appears to have come to her

attention. Warren, 353 F.3d at 39 (“Deliberate indifference . . . is determined by analyzing

whether the municipality knew or should have known of the risk of constitutional violations, but

did not act.”); Baker, 326 F.3d at 1306. Thus, because Motley failed to come forward with

sufficient evidence to raise a genuine dispute as to whether a District custom or policy caused the

13

The Court observes that some of the other adverse actions and disciplinary notices that

Motley received indicated that she had the option to appeal the decision to the Chief of Police’s

office. But other than the single instance discussed above, Motley does not allege that she did

so, nor is there any other indication in the record suggesting as much.

22

claimed violation of her constitutional rights, her § 1983 claim against the District will be

dismissed.

Motley also advances § 1983 claims against the Officer Defendants, contending that their

allegedly discriminatory conduct resulted in a violation of her due process and equal protection

rights under the Fifth Amendment to the Constitution. (Fourth Am. Compl. at ¶¶ 78-82). In

seeking summary judgment in favor of the Officer Defendants on these claims, the only

argument mounted by Defendants is that Motley cannot establish the predicate constitutional

violation to support her allegations. (Defs.’ Mem. at 37). Put another way, and as summarized

by Defendants’ counsel during oral argument, Defendants argue that Motley’s Title VII and

DCHRA claims cannot form the underlying legal deprivation to sustain her § 1983 claims.

However, Defendants interpret Motley’s § 1983 claims too restrictively. Motley does not rely

solely on her statutory claims to form the basis of her § 1983 claims; she also alleges that the

Officer Defendants’ allegedly discriminatory conduct amounted to an independent and

freestanding violation of her equal protection rights under the Constitution. Thus, contrary to

Defendants’ argument, Motley’s constitutional claims do not hinge entirely on her statutory

claims, either under the DCHRA or Title VII. See Singletary v. District of Columbia, 351 F.3d

519, 529-30 (D.C. Cir. 2003) (reversing dismissal of claim under § 1983 where district court

failed to consider whether allegations of discrimination constituted a denial of equal protection,

separate and apart from any potential violation of Title VII); see also Hamilton v. District of

Columbia, 720 F. Supp. 2d 102, 110-12 (D.D.C. 2012) (“Because plaintiffs assert violations of

their constitutional rights under the Fifth Amendment, their . . . § 1983 claims are unaffected by

the avenues of relief set up by Title VII, including their failure to exhaust administrative

remedies under Title VII.”). And given that the legal standards underlying constitutional

23

employment discrimination claims brought through § 1983 essentially parallel those of claims

under the DCHRA and Title VII, see, e.g., Oates v. District of Columbia, 824 F.2d 87, 90-91

(D.C. Cir. 1987), the Court concludes that Motley has come forward with sufficient evidence

entitling her to present her claims to a jury.

As a final matter, Defendants contend that Motley’s § 1983 claims are barred, at least in

part, by the applicable statute of limitations. Our Circuit has held that § 1983 claims are

governed by the residual three-year statute of limitations set forth in D.C. Code § 12-308(8).

Singletary, 351 F.3d at 530 n.11; Earle v. District of Columbia, Case No. 11-7078, __ F.3d __,

2012 U.S. App. LEXIS 26550, at *12, 2012 WL 6720357, at *3 (D.C. Cir. Dec. 28, 2012).

Motley concedes as much. However, as should be familiar by this point, Motley invokes

Morgan and the continuing violation doctrine in an effort to salvage a greater portion of her

claims under § 1983. (Pl.’s Opp’n at ECF p. 24). On this issue, neither Motley nor Defendants

proffered authority that squarely addresses whether the continuing violation doctrine applies to §

1983 claims, and the D.C. Circuit recently declined to resolve this precise question. Earle, 2012

WL 6720357, at *4 (“We need not decide whether the continuing violation doctrine applies to

section 1983 claims because Earle does not prevail under this theory, assuming arguendo it

applies.”). However, a number of other circuits have applied Morgan’s reasoning to § 1983

claims, 14 as have several other judges in this District. Jones v. District of Columbia, 879 F.

Supp. 2d 69, 82-83 (D.D.C. 2012) (Collyer, J.); Turner v. District of Columbia, 383 F. Supp. 2d

157, 168 (D.D.C. 2005) (Urbina, J.). Based on the reasoning espoused in those cases, this Court

14

See Ayala-Sepulveda v. Municipality of San German, 671 F.3d 24, 30 n.6 (1st Cir. 2012);

O’Connor v. City of Newark, 440 F.3d 125, 127-29 (3d Cir. 2006); Sharpe v. Cureton, 319 F.3d

259, 267-68 (6th Cir. 2003); Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1036 n.18

(7th Cir. 2003); Carpinteria Valley Farms, Ltd. v. Cnty. of Santa Barbara, 344 F.3d 822, 829

(9th Cir. 2003).

24

joins with the First, Third, Sixth, Seventh, and Ninth Circuits—along with other Judges on this

bench—in concluding that the reasoning of Morgan and its progeny applies to claims under §

1983. Thus, all discrete acts that Motley alleges occurred prior to March 26, 2006—more than

three years before she initiated this action—are time-barred and cannot support her § 1983 claim

under a traditional discrimination analysis. However, to the extent Motley argues that

Defendants’ creation of a hostile work environment through a pattern of discriminatory

discipline violated her constitutional rights, she may properly rely on disciplinary acts that fall

outside of the limitations period in pursuing this theory against the Officer Defendants.

Finally, while Motley’s § 1983 claims against Lt. Niepling and Sgt. Poskus survive, the

Court will dismiss Motley’s § 1983 claim against Asst. Chief Durham in keeping with its earlier

analysis. Simply stated, Motley fails to raise a triable issue of fact from which a jury could

conclude that Asst. Chief Durham discriminated against her on the basis of her gender—whether

in the form of a discrete discriminatory act or through the alleged creation of a hostile work

environment. That claim will therefore be dismissed.

CONCLUSION

For the foregoing reasons, the Court concludes that Defendants’ Motion for Summary

Judgment must be GRANTED IN PART and DENIED IN PART. An appropriate Order

accompanies this Memorandum Opinion.

Digitally signed by Judge Robert L.

Wilkins

Date: February 14, 2013 DN: cn=Judge Robert L. Wilkins,

o=U.S. District Court, ou=Chambers

of Honorable Robert L. Wilkins,

email=RW@dc.uscourt.gov, c=US

Date: 2013.02.14 10:13:18 -05'00'

ROBERT L. WILKINS

United States District Judge

25