                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
                              __
                               )
OSCAR WILLIAMS                 )
                               )
               Plaintiff,      )
                               )
          v.                   ) Civil Action No. 17-1653 (EGS)
                               )
DISTRICT OF COLUMBIA,          )
                               )
               Defendant.      )
                               )


                       MEMORANDUM OPINION

    Plaintiff Oscar Williams brings this action alleging

defendant Metropolitan Police Department (“MPD”) discriminated

against him because of his sexual orientation, retaliated

against him, and created a hostile work environment in violation

of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e, et. seq., and the District of Columbia Human

Rights Act (“DCHRA”), D.C. Code Ann. § 2-1402.21. Specifically,

Mr. Williams alleges that MPD took a series of actions resulting

in his eventual termination after learning about Mr. Williams’

same-sex marriage. Pending before the Court is MPD’s motion to

dismiss the amended complaint. Upon consideration of the amended

complaint, MPD’s motion, the response and reply thereto, and the

applicable law, the Court GRANTS in part and DENIES in part

MPD’s motion to dismiss. Specifically, the Court finds that Mr.

Williams’ claims based on discrimination and retaliation may
     proceed, but that he has failed to adequately allege a claim

     based on hostile work environment.

I.     BACKGROUND

           Mr. Williams is a married gay man. Am. Compl., ECF No. 11 ¶

     6. In 2016, Mr. Williams applied for a Management Supervisory

     Service position of Supervisor at MPD. Id. ¶ 7. On or about May

     5, 2016, Mr. Williams was notified that he was hired for the

     position, and that the “background investigation unit” would

     contact him to begin the hiring process. Id. ¶¶ 8-9.

     Approximately two and a half months later, Mr. Williams received

     a call from MPD’s Human Resource Specialist Marie Dawkins who

     notified Mr. Williams that he had successfully passed the

     background investigation. Id. ¶ 16. Ms. Dawkins extended an

     offer of employment to Mr. Williams, which he accepted. Id. ¶

     18.

           In the course of that call, Mr. Williams asked Ms. Dawkins

     whether the salary associated with the position could be

     negotiated, noting that his “partner” had advised him that

     negotiation may be possible. Id. ¶¶ 19, 20. Ms. Dawkins asked

     what he meant by “partner,” and Mr. Williams informed her that

     he was gay. Id. ¶¶ 21-22. According to Mr. Williams, the

     conversation “soured quickly” at that point, and Ms. Dawkins

     told him that salary negotiations would “definitely not happen

     in this situation.” Id. ¶ 23. Mr. Williams subsequently

                                     2
contacted MPD’s Human Resource Department and complained to

Operations Manager Lennie Moore about the exchange with Ms.

Dawkins and her “offensive response.” Id. ¶ 24.

    On or about August 5, 2016, Mr. Moore contacted Mr.

Williams to advise him that there was a “mishandling of

paperwork,” that the supervisory position he was offered was

going to be reposted, and that he would need to re-apply and re-

interview. Id. ¶¶ 27-28. Mr. Moore also informed Mr. Williams

that, in the meantime, MPD would offer him a “non-competitive

career service appointment” position. Id. ¶ 29. Mr. Williams

“reluctantly” accepted the appointment until he could re-apply

for the supervisory position. Id. ¶ 30. Mr. Williams alleges

that, around the same time, another employee, Lamont Mahone, was

hired for a position identical to the supervisory position for

which Mr. Williams was initially hired. Id. ¶ 26. Mr. Williams

believes that Mr. Mahone is a heterosexual man. Id.

    On August 8, 2016, Mr. Williams met with Ms. Dawkins and

Human Resource Director Kathleen Crenshaw for orientation for

the non-competitive appointment position he accepted. Id. ¶ 31.

Mr. Williams alleges that, when he inquired about benefits for

his partner during an orientation session, he immediately

noticed “disdain and disgust in Ms. Dawkins’ body language,

tone, and voice in responding.” Id. ¶¶ 33-34. Moreover, Ms.

Dawkins “avoided interaction with Mr. Williams for the rest of

                               3
[that] day.” Id. ¶ 36. A few days later, Mr. Williams reported

the incident to Mr. Moore. Id. ¶ 37. In the course of this

conversation, Mr. Moore stated that Ms. Dawkins “was the person

who initially mishandled [Mr. Williams’] paperwork” and that she

was “not very fond” of gay men. Id. ¶¶ 38-40.

      On September 7, 2016, after Mr. Williams had begun working

in the non-competitive position, he received a call from Ms.

Dawkins regarding the supervisory position for which he had

initially applied. Id. ¶ 47. Ms. Dawkins explained that “all

interviews were cancelled” and that Mr. Williams would “receive

a call if they were rescheduled.” Id. ¶ 47. Mr. Williams

subsequently spoke to Mr. Moore, who reiterated that Ms. Dawkins

was “not friendly” toward gay men and stated that Ms. Dawkins

had “once again incorrectly handled the situation.” Id. ¶¶ 48-

50.

      On September 30, 2016, Mr. Williams’ immediate supervisor

instructed him to report to Human Resources. Id. ¶ 52. Upon

doing so, Mr. Williams was informed by Sergeant George Bernard

that his employment with MPD was terminated. Id. ¶¶ 52-53.

According to Sergeant Bernard, the purported reason for the

termination was because Mr. Williams was “not a DC resident when

he began employment and that ‘maybe’ the background check was

unsuccessful.” Id. ¶ 54. Notably, Mr. Williams alleges that the

reasons for termination provided by Sergeant Bernard were

                                4
      different than the ones listed in the written confirmation of

      his termination that he later received. Id. ¶¶ 57-59.

          Based on these facts, Mr. William claims that MPD

      discriminated against him — and eventually terminated him —

      because of his sexual orientation. Mr. Williams’s amended

      complaint alleges that MPD violated Title VII and the DCHRA by

      (1) discriminating against him on the basis of his sexual

      orientation, (2) retaliating against him after he complained to

      Human Resources, and (3) creating a hostile work environment.

      See Am. Compl., ECF No. 11 ¶¶ 63-98. MPD moved to dismiss

      plaintiff’s amended complaint, arguing that Mr. Williams failed

      to allege sufficient facts to state a claim for sex

      discrimination, retaliation or a hostile work environment. See

      Def.’s Mem. in Supp. of Mot. to Dismiss. Am. Compl. (“Def.’s

      Mem.”), ECF No. 13 at 7. MPD’s motion is now ripe and ready for

      the Court’s adjudication.

II.     LEGAL STANDARD

          A motion to dismiss pursuant to Federal Rule of Civil

      Procedure 12(b)(6) tests the legal sufficiency of a complaint.

      Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

      complaint must contain a “short and plain statement of the claim

      showing that the pleader is entitled to relief, in order to give

      the defendant fair notice of what the . . . claim is and the

      grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550

                                     5
       U.S. 544, 555 (2007) (internal quotation marks and citation

       marks omitted). “[W]hen ruling on a defendant's motion to

       dismiss [pursuant to Rule 12(b)(6)], a judge must accept as true

       all of the factual allegations contained in the complaint.”

       Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.

       Cir. 2009) (internal quotation marks omitted). In addition, the

       court must give the plaintiff the “benefit of all inferences

       that can be derived from the facts alleged.” Kowal v. MCI

       Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

           Despite this liberal pleading standard, to survive a motion

       to dismiss, a complaint “must contain sufficient factual matter,

       accepted as true, to state a claim to relief that is plausible

       on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

       (internal quotation marks omitted). A claim is facially

       plausible when the facts pled in the complaint allow the court

       to “draw the reasonable inference that the defendant is liable

       for the misconduct alleged.” Id. The standard does not amount to

       a “probability requirement,” but it does require more than a

       “sheer possibility that a defendant has acted unlawfully.” Id.

III.     ANALYSIS

           Mr. Williams alleges thee different claims under Title VII

       and the DCHRA based on (1) discrimination on the basis of sexual

       orientation, (2) retaliation; and (3) hostile work environment.

       Because the legal standards for establishing these claims under

                                      6
both Title VII and the DCHRA are substantively the same, see

e.g., Carpenter v. Federal Nat. Mortg. Ass’n, 165 F.3d 69, 72

(D.C. Cir. 1999) (explaining that, “[i]n interpreting its Human

Rights Act the District of Columbia . . . generally seems ready

to accept the federal constructions of Title VII, given the

substantial similarity between it and the D.C. Human Rights

Act”), the Court will analyze Mr. Williams’ claims under these

statutes together.

    To bring an actionable discrimination claim, a plaintiff

must allege that (1) he is a member of a protected class; (2) he

suffered an adverse employment action; and (3) the unfavorable

action gives rise to an inference of discrimination. See Stella

v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Easaw v. Newport,

253 F. Supp. 3d 22, 28 (D.D.C. 2017). A plaintiff need not plead

specific facts establishing a prima facie case of discrimination

at the motion to dismiss stage, but rather, need only allege

facts that “give the defendant fair notice of what the

plaintiff’s claim is and the grounds upon which it rests.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002).

Consistent with this principle, “courts in this Circuit have

consistently recognized the ‘ease with which a plaintiff

claiming employment discrimination can survive . . . a motion to

dismiss.’” Fennell v. AARP, 770 F. Supp. 2d 118, 127 (D.D.C.

2011) (citation omitted).

                               7
     MPD does not dispute that Mr. Williams is a member of a

protected class1 or that he suffered an adverse employment

action. Instead, the only dispute is whether Mr. Williams has

sufficiently alleged facts suggesting that any adverse action he

suffered was because of his sexual orientation. Specifically,

MPD argues that Mr. Williams has not alleged that the

individuals who made the decision to force plaintiff to reapply

for his supervisory position — and who decided, eventually, to

terminate plaintiff’s employment — were aware of his sexual

orientation. Def.’s Mem., ECF No. 13 at 11-12. MPD posits that

it is “implausible” that Ms. Dawkins, the human resources

specialist who purportedly is “not very fond” of gay men and

allegedly behaved in a discriminatory manner, “had the authority

to require Plaintiff to reapply” for the supervisory position.

Def.’s Mem., ECF No. 13 at 12. MPD’s arguments in this regard


1
     The Court notes that, while the DCHRA specifically
prohibits discrimination based on sexual orientation, D.C. Code
Ann. § 2-1402.21, courts are split as to whether sexual-
orientation discrimination is prohibited by Title VII, compare
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259
(1st Cir. 1999) (“Title VII does not proscribe harassment simply
because of sexual orientation”), with Hively v. Ivy Tech Cmty.
Coll. of Indiana, 853 F.3d 339, 351-52 (7th Cir. 2017) (en banc)
(“a person who alleges that she experienced employment
discrimination on the basis of her sexual orientation has put
forth a case of sex discrimination for Title VII purposes”). The
D.C. Circuit has not yet confronted this question. Because
defendant “assumes that Title VII’s prohibition against sex
discrimination encompasses claims based on sexual orientation,”
see Def.’s Mem., ECF No. 13 at 11 n.1, the Court need not decide
the issue at this time.
                                8
are unpersuasive. Questions about the scope of Ms. Dawkins’

authority and the depth of the terminating officials’ knowledge

regarding Mr. Williams’ sexual orientation raise “factual

question[s]” that are “not properly resolved at the motion-to-

dismiss stage when all reasonable inferences must be drawn to

the plaintiff’s benefit.” Abigail Alliance for Better Access to

Developmental Drugs v. von Eschenbach, 495 F.3d 695, 723 (D.C.

Cir. 2007).

    In any event, Mr. Williams provides considerable detail

with respect to his allegations in his amended complaint,

pointing to specific dates on which purportedly discriminatory

interactions occurred and naming specific individuals involved.

For example, Mr. Williams alleges that he was told that he

passed a background check and was offered a supervisory position

with the MPD. See Am. Compl., ECF No. 11 ¶¶ 8-18. He claims that

it was only after he told Ms. Dawkins that he was a gay man that

the conversation about his employment “soured,” and he claims

that it was Ms. Dawkins who “mishandled” the paperwork that led

to his supervisory position being reposted. Id. ¶¶ 22-23, 27-28,

38. He further alleges that another individual, who was a

heterosexual man, was hired for “an identical position” around

the same time. Id. ¶ 26. These factual allegations, if true,

make plaintiff’s claim “‘plausible on its face,’ and therefore

the allegations are sufficient to survive a motion to dismiss.”

                               9
Ryan-White v. Blank, 922 F. Supp. 2d 19, 29 (D.D.C. 2013).

Therefore, MPD’s motion to dismiss Mr. Williams’ discrimination

claims is denied.

    Likewise, Mr. Williams has sufficiently pled his

retaliation claims. To state a claim for retaliation under Title

VII and the DCHRA, a plaintiff must allege (1) that he engaged

in statutorily protected activity; (2) that he suffered a

materially adverse action by his employer; and (3) that a causal

link connects the two. Jones v. Bernanke, 557 F.3d 670, 677

(D.C. Cir. 2009). To survive a motion to dismiss, a plaintiff

need not plead all elements of his prima facie case.

Swierkiewicz, 534 U.S. at 515. Instead, at “this early stage of

the proceedings, [the] plaintiff can meet h[is] prima

facie burden of causation simply by alleging that the adverse

actions were caused by h[is] protected activity.’” Hoskins v.

Howard Univ., 839 F. Supp. 2d 268, 279–80 (D.D.C. 2012)

(citation omitted).

    MPD does not contest that Mr. Williams was engaging in a

statutorily protected activity or that he suffered a materially

adverse action. See Def.’s Mem., ECF No. 13 at 14-15. Instead,

MPD contends that Mr. Williams “fails to plausibly allege any

causal link between his protected activity and [MPD’s] allegedly

retaliatory conduct.” Def.’s Mem., ECF No. 13 at 14. According

to MPD, this is because Mr. Williams has not alleged that Ms.

                               10
Dawkins or the terminating officials knew that Mr. Williams had

engaged in a protected activity — i.e., making a complaint to

Human Resources. Id. In addition, MPD argues that Mr. Williams

has not alleged that any of the terminating officials knew about

Mr. Williams’ sexual orientation, and there is no “plausible

allegation that Dawkins made the decision to require [Mr.

Williams] to re-apply for the supervisory position or cancel his

scheduled interviews.” Id.

    MPD’s arguments are unavailing at the motion-to-dismiss

stage. The D.C. Circuit has held that a plaintiff is not

required to allege that a specific supervisor had knowledge of

protected activity to plead a claim for retaliation. See e.g.,

Hamilton v. Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012). In

Hamilton, the defendant argued that the plaintiff had failed to

show that the supervisor who took the adverse employment action

had knowledge of the plaintiff’s complaint to the agency. Id. at

1358. In reversing the district court’s decision to grant

summary judgment to the defendant on the plaintiff’s retaliation

claim, the D.C. Circuit explained that, at the prima facie

stage, “the fact that [the plaintiff] submitted the complaint to

the agency is sufficient.” Id.; see also Bartlette v. Hyatt

Regency, 208 F. Supp. 2d 311, 323 (D.D.C. 2016) (defendant’s

argument that plaintiff’s complaint was “deficient because it

does not allege that the supervisors involved in the

                               11
discrimination complaints were the same supervisors who engaged

in the retaliatory conduct” failed “because the law does not

require such a showing”).

    So here too. In his amended complaint, Mr. Williams states

that he complained multiple times to Mr. Moore, an Operations

Manager in MPD’s Human Resources Department, between July 2016

and September 2016. See Am. Compl., ECF No. 11 ¶¶ 24, 37-42, 48-

51. Mr. Williams specifically alleges that, on or about

September 7, 2016, he “told Mr. Moore that he believed that he

was being treated differently because he was gay.” Id. ¶ 51.

Less than four weeks later, on September 30, 2016, Mr. Williams

was terminated. Id. ¶¶ 52-53. The Court concludes that these

allegations are sufficient at this stage to plead a plausible

claim for retaliation. Cf. Harris v. D.C. Water & Sewer Auth.,

791 F.3d 65, 69 (D.C. Cir. 2015) (“under some circumstances,

temporal proximity between an employer's knowledge of protected

activity and an adverse personnel action may alone be sufficient

to raise an inference of causation”). Accordingly, MPD’s motion

to dismiss plaintiff’s retaliation claims is denied.

    On the other hand, the Court concludes that Mr. Williams

allegations — which are the same ones upon which his

discrimination and retaliation claims are based — are

insufficient to support his hostile work environment claim. To

state a claim under Title VII or the DCHRA based on a hostile

                               12
work environment, a plaintiff must allege facts establishing

that his “workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe

or pervasive to alter the conditions of the [plaintiff’s]

employment and create an abusive working environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and

internal quotation marks omitted). He must therefore establish

that “(1) he . . . is a member of a protected class; (2) he . .

. was subjected to unwelcome harassment; (3) the harassment

occurred because of the plaintiff's protected status; (4) the

harassment was severe to a degree which affected a term,

condition, or privilege of employment; and (5) the employer knew

or should have known about the harassment, but nonetheless

failed to take steps to prevent it.” Peters v. Dist. of

Columbia, 873 F. Supp. 2d 158, 189 (D.D.C. 2012). In evaluating

these factors, the “court looks to the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee's work performance.” Baloch v.

Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). This standard

is a demanding one, as Title VII is not intended to function as

a “general civility code” that regulates the “ordinary

tribulations of the workplace, such as the sporadic use of



                               13
abusive language, gender-related jokes, and occasional teasing.”

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

     Here, Mr. Williams claims that MPD created a hostile work

environment by “denying him the opportunity to negotiate for his

pay; mishandling his paperwork; requiring him to re-apply for

the position he was hired for; terminating any interviews he had

for that position; and subsequently terminating his employment.”

Am. Compl., ECF No. 11 ¶ 71. These allegations consist of

discrete instances of alleged discrimination or retaliation —

indeed, Mr. Williams relies on these very same allegations to

form the basis of his other claims. “[A]s a general matter,

courts in this Circuit frown on plaintiffs who attempt to

bootstrap their alleged discrete acts of retaliation into a

broader hostile work environment claim” and are “reluctant to

transform mere reference to alleged disparate acts of

discrimination against plaintiff into a hostile work environment

claim.” Dudley v. Wash. Metro. Area Transit Authority, 924 F.

Supp. 2d 141, 164 (D.D.C. 2013) (citations and internal

quotation marks omitted). Moreover, even in instances in which

courts have permitted a plaintiff to rely on “discrete acts that

the plaintiff claims . . . . are actionable on their own,” those

facts must be “sufficient to show that those decisions were part

of a severe and pervasive pattern of harassment.” Outlaw v.

Johnson, 49 F. Supp. 3d 88, 92 (D.D.C. 2014) (emphasis added).

                               14
      Here, Mr. Williams simply does not allege the type of

      “intimidation, ridicule, and insult” that is sufficiently

      “severe and pervasive” to state a hostile work environment

      claim. Therefore, MPD’s motion to dismiss plaintiff’s hostile

      work environment claim is granted.

IV.     CONCLUSION

          For the reasons set forth in this Memorandum Opinion, the

      defendant’s motion to dismiss plaintiff’s amended complaint is

      GRANTED in part and DENIED in part. A separate Order accompanies

      this Opinion.



        SO ORDERED.

      Signed:   Emmet G. Sullivan
                United States District Judge
                June 30, 2018




                                     15
