                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

DONNA BAKER-NOTTER,                               :
                                                  :
       Plaintiff,                                 :       Civil Action No.:       18-2499 (RC)
                                                  :
       v.                                         :       Re Document No.:        11
                                                  :
FREEDOM FORUM, INC.,                              :
                                                  :
       Defendant.                                 :

                                  MEMORANDUM OPINION

  GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AMENDED
                                   COMPLAINT

                                      I. INTRODUCTION

       Donna Baker-Notter is a former employee of Freedom Forum, Inc., a nonprofit

organization that operates the Newseum, a museum in Washington D.C. dedicated to journalism

and the First Amendment. Baker-Notter worked at the Newseum for most of the past three

decades, most recently as Senior Director of Operations. After her employment was terminated

in January 2017, she brought this action against the Defendant alleging nine counts of civil rights

violations. She alleges first that the Freedom Forum violated the Americans with Disabilities

Act (“ADA”), 42 U.S.C. §§ 12101 et seq., because she was fired as an act of retaliation in

response to her advocacy for ADA compliance at the Newseum. She likewise alleges that her

termination was an act of retaliation against her complaints about sex discrimination and equal

pay violations, and that it therefore violated Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. §§ 2000e et seq., the D.C. Human Rights Act (“DCHRA”), D.C. Code §§ 2–

1401.01 et seq., and the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. §§ 206 et seq. She also

alleges pay discrimination in violation of the EPA and DCHRA, as well as sex discrimination in


                                                  1
violation of Title VII and the DCHRA. Freedom Forum, Inc. has moved to dismiss all nine

counts of Baker-Notter’s Amended Complaint.

                               II. FACTUAL BACKGROUND 1

           A. Baker-Notter’s Background and Employment at the Freedom Forum

       Baker-Notter first worked for the Freedom Forum from 1989–2001, starting as a Grants

Assistant, and then, over the years, becoming an Operations Coordinator, Visitor Service

Manager and, eventually, Senior Operations Manager. Am. Compl. ¶¶ 16–18. She left the

Freedom Forum in 2001, but returned in 2007 as Senior Manager/Staffing and Training. Id.

¶¶ 18–21. Her supervisor, Jim Thompson, indicated to her “that she would be promoted to

Director of Operations in the near future,” but that she could not be rehired into that position

directly because it would be unfair to other Operations Department employees who had never

left the Freedom Forum. Id. ¶¶ 19–21. After her return, she was promoted two more times, first

in October 2010 to Director of Training and Volunteer Services, and again in July 2015 to Senior

Director of Operations, though she alleges that this second promotion “was a promotion in name

only.” Id. ¶¶ 22, 24. She never became Director of Operations.

       According to the Amended Complaint, Baker-Notter consistently advocated for making

the Newseum more accessible to patrons and employees with disabilities and, accordingly, more

compliant with the ADA. Prior to 2001, during her first period of employment with the Freedom

Forum, she drafted a document suggesting how the Newseum facility in Washington D.C.—

being planned at the time—could be made ADA compliant, but, upon her return in 2007, she

found her suggestions had not been considered. Id. ¶ 26. After she returned, she pointed out


       1
         On a motion to dismiss for failure to state a claim, the Court accepts as true the factual
allegations in the complaint and construes them liberally in the Plaintiff’s favor. See, e.g.,
United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).

                                                 2
numerous accessibility issues to Thompson and other officials, including too-heavy doors, a

conference room only accessible by stairs, and inadequate hallway clearances. Id. ¶¶ 27–39.

Her concerns were consistently disregarded. Id. In 2013, Baker-Notter was made the

Newseum’s ADA Compliance Officer, as part of a settlement agreement with the Department of

Justice. 2 Id. ¶ 40. Still she “met with resistance from senior management (VP and Senior VP

level) on many occasions when advocating on behalf of visitors and employees who had ADA

issues.” Id. ¶ 41. On one occasion, she was told that that “[a]ll of this ADA stuff is costing us

too much money and we don’t have the staff or the budget to do these things.” Id. ¶ 43. When

she asked that accommodations be made for guests or employees with disabilities, these were

denied and, on one occasion, she was told to “stay out of it.” Id. ¶¶ 44–54. She was instructed to

stop bringing up ADA compliance issues with other departments because, as Thompson

explained, “it was a ‘revenue issue that was seen as being more important by the higher ups than

wheelchair seating.’” Id. ¶ 60.

       Baker-Notter’s Amended Complaint also details what she refers to as a “‘good old boy’

culture in the Operations department.” Id. ¶ 69. Thompson would regularly go out to lunch or

out for drinks with male directors including Matt Borowsky, Nate Tucker, and Cory Leckey,

leaving out Baker-Notter, the only female director in the department. Id. ¶¶ 69–70, 72. Baker-

Notter, on the other hand, was the only director who was asked to take on secretarial duties when

Thompson’s secretary was out of the office. Id. ¶¶ 72–73. Baker-Notter found these requests

“misogynistic, embarrassing, and belittling,” and felt that Thompson’s attitude undermined her




       2
         See Press Release, Department of Justice, Justice Department Reaches Settlement with
Newseum to Improve Access for People with Disabilities (Dec. 6, 2013),
https://www.ada.gov/newseum/newseum-sa.htm.

                                                 3
with the male directors. Id. ¶¶ 74–75. In 2011, he gave her “[h]ousekeeping responsibilities,”

saying that “as a woman, she had a better eye.” Id. ¶ 114.

       The male directors in the Operations department also contributed to Baker-Notter’s

discomfort. Borowsky “created a toxic work environment” by complaining about having to

work with Baker-Notter. Id. ¶ 76. When she complained to Thompson about his behavior

toward her, “he told her in a misogynistic way, ‘be nice.’” Id. ¶ 77–78. He “treated her as

though she were the person causing problems at work, yet Mr. Borowsky’s behavior was

overlooked.” Id. ¶ 80. Leckey “was sarcastic and rude toward Ms. Baker-Notter,” he “told

employees and Ms. Baker-Notter’s subordinates that she was ‘incompetent,’” and, following her

promotion in July 2015, was heard “yelling that there was ‘no way in hell he would ever work

for a woman, especially Donna.’” Id. ¶¶ 115–20. Thompson “refused to intervene,” said that

Leckey “ha[d] a right to say what he thinks,” and reprimanded Baker-Notter for being “‘overly

aggressive,’ ‘over the top,’ or ‘emotional’ whenever she complained.” Id. ¶¶ 117–122.

       Baker-Notter never became Director of Operations, despite repeated promises. Id.

¶¶ 110–12. Instead of creating that position for her, Thompson promoted Baker-Notter and the

three aforementioned men—Borowsky, Tucker, and Leckey—all to the level of director, with

responsibilities divided. Id. ¶ 84. Although her job description eventually “contained a

reference to supervising other directors,” Baker-Notter never actually did this, and Thompson

told her that the other (male) directors “‘would be upset’ if they had to report to her.” Id. ¶ 131.

Instead of getting this promised supervisory role, Baker-Notter was burdened with additional

responsibilities that did not come with commensurate salary increases. “Thompson exploited

[her] by dangling promotions over her head to get her to take on additional work.” Id. ¶ 85.

When the Newseum in Washington D.C. opened in April 2008, for example, her responsibilities



                                                  4
increased substantially. Id. ¶ 88. She was given the Manager of Training’s workload, was put in

charge of the Volunteer Program, and, after a reorganization of the Facilities department, was

also responsible for “Housekeeping, Shipping & Receiving, Facilities . . . and management of the

sublease at 601 Penn Ave.” Id. ¶¶ 89-91. The ADA Compliance Officer role was also added, in

2013. Id. ¶¶ 40, 93. The male directors were not required to take on additional roles. Id. ¶ 94.

They “were allowed to socialize daily during work hours for extended periods of time . . . almost

always took lunch, rarely worked late, and had support staff.” Id. ¶ 98. When Baker-Notter

raised the disparity in workload with Thompson, he told her, “Life isn’t fair. Some people have

to work more than others.” Id. ¶ 97.

       In November 2014, at Thompson’s instruction, Baker-Notter compiled a “median salary

survey for the directors and manager[s] in the Operations department.” Id. ¶ 99. Given Baker-

Notter’s numerous responsibilities, the salary review revealed that “she was being grossly

underpaid by more than $40,000.00.” Id. ¶ 100. She raised this pay disparity with Thompson in

January 2015, 3 at which time he agreed to promote her to Senior Director of Operations with a

raise of $10,000. Id. ¶¶ 101–103. Thompson told her that she was “‘lucky’ to be getting even

that,” and Baker-Notter characterizes the elevation to Senior Director of Operations as “a

promotion in name only.” Id. ¶¶ 24, 103. Shortly after being promoted, in the summer of 2015,

Baker-Notter discovered that Leckey was still making almost $20,000 more than her, even

though she was overloaded with roles and he was not, and even though she was “allegedly” his




       3
         It is unclear from the Amended Complaint whether they also discussed the disparity in
November 2014. The Amended Complaint says that they “discovered” the disparity in
November, and that Baker-Notter “raised the . . . issue once again” in January, but it does not
explain exactly when it was first “raised.” See id. ¶¶ 100–01.

                                                5
supervisor. Id. ¶ 104–07. She raised this issue with Thompson, who told her that, “Cory

[Leckey] has a hard job.” Id. ¶ 105.

       In January 2017, Baker-Notter’s employment with the Freedom Forum was terminated.

Id. ¶ 135. No other director from the Operations department was terminated at this time. Id.

¶ 140. She was the only director who had complained about noncompliance with the ADA,

about gender discrimination, or about pay disparities. Id. ¶¶ 136, 140. She was also the only

director who was a woman. Id. ¶ 142. She had been an “exceptional employee.” Id. ¶ 138. The

Amended Complaint suggests that the Freedom Forum explained that her termination was due to

“financial challenges” or “budget constraints.” Id. ¶¶ 68, 141.

                                       B. Procedural History

       Baker-Notter filed a charge of discrimination on the basis of sex with the Equal

Opportunity Commission (“EEOC”) on July 31, 2017. Ex. A. to Def.’s Mot. Dismiss, ECF No.

11-2; see also Am. Compl. ¶ 11. She twice amended the EEOC charge, first in September 2017

to add allegations relating to equal pay, Am. Compl. ¶ 12, and again in June 2018 to add her

ADA retaliation claims, id. ¶ 13; see also Ex. 1 to Errata, ECF No. 14-1. The EEOC notified

Baker-Notter of her right to file a lawsuit in July 2018. Am. Compl. ¶ 14. Her Complaint was

filed in this Court on October 29, 2018. Compl., ECF No. 1. Freedom Forum moved to dismiss

the complaint for lack of subject matter jurisdiction and for failure to state a claim. Def.’s Mot.

Dismiss, ECF No. 5. Baker-Notter sought leave to amend her complaint, Pl.’s Mot. for Leave to

File First Am. Compl., ECF. No. 10, which this Court granted, Minute Order 3/26/2019.

       Baker-Notter’s Amended Complaint, the operative complaint for purposes of this order,

was filed on March 26, 2019. Am. Compl., ECF No. 12. Freedom Forum has again moved to




                                                 6
dismiss for lack of subject matter jurisdiction and for failure to state a claim. Mot. to Dismiss

Am. Compl., ECF No. 11 The motion is now ripe for decision.

                                          III. ANALYSIS

        The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate

likelihood of success on the merits, but rather tests whether a plaintiff has properly stated a claim

for which relief can be granted. It is not necessary for the plaintiff to plead all elements of her

prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14

(2002); Bryant v. Pepco, 730 F.Supp.2d 25, 28–29 (D.D.C. 2010).

        Nevertheless, “[t]o 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted); see also Harris v.

D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (requiring that a Title VII plaintiff

allege “facts that, taken as true, render his claim of retaliation [or discrimination] plausible”).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678.

A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume




                                                   7
the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550

U.S. at 555.

       “In determining whether a complaint fails to state a claim, [the Court] may consider only

the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Schl., 117 F.3d 621, 624 (D.C. Cir. 1997). In employment discrimination

cases, courts may, and often do, take judicial notice of EEOC charges and EEOC decisions. E.g.

Golden v. Mgmt. & Training Corp., 319 F. Supp. 3d 358, 366 n.2 (D.D.C. 2018).

                     A. Retaliation for ADA Protected Activity (Count I)

       “Before bringing suit in federal court, ADA plaintiffs, like those suing under Title VII,

must exhaust their administrative remedies by filing an EEOC charge and giving that agency a

chance to act on it.” Marshall v. Fed. Exp. Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (citing

42 U.S.C. § 12117(a) and Park v. Howard Univ., 71 F.3d 904, 907–09 (D.C. Cir. 1995)); see

also 42 U.S.C. § 12117(a) (incorporating sections of Title VII, including 42 U.S.C. § 2000e-5,

which requires exhaustion of administrative remedies). The EEOC charge limits the scope of a

later Complaint, because “a claimant may only challenge in federal district court those

allegations that were contained in the EEO complaint or those that are ‘like or reasonably related

to the allegations of the charge.’” Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 75 (D.C.

Cir. 2009) (quoting Park, 71 F.3d at 907 (quotations omitted) (Title VII case)). As under Title

VII, the exhaustion requirement also “serves the important purposes of giving the charged party

notice of the claim and narrowing the issues for prompt adjudication and decision.” Park, 71

F.3d at 907 (quotation and alteration omitted). “Although it is true that the administrative charge

requirement should not be construed to place a heavy technical burden on individuals untrained



                                                 8
in negotiating procedural labyrinths, it is also true that the requirement of some specificity in a

charge is not a mere technicality.” Id. (citations and quotations omitted).

        Here, Freedom Forum argues that Baker-Notter’s ADA retaliation claim should be

dismissed because it was not brought before the EEOC in a timely fashion. It styles this

argument as a motion under Rule 12(b)(1) to dismiss for lack of subject-matter jurisdiction.

However, “[a] motion to dismiss on the ground that a plaintiff failed to exhaust her

administrative remedies is properly analyzed under Rule 12(b)(6).” Jones v. Bush, 160 F. Supp.

3d 325, 337 (D.D.C. 2016) (Title VII case), aff’d, No. 16-5103, 2017 WL 2332595 (D.C. Cir.

Feb. 21, 2017). The D.C. Circuit has said that “issues concerning how a claimant participates in

[the EEOC] administrative process, both procedurally and substantively, are not of jurisdictional

moment,” when it comes to a claim under the Rehabilitation Act, Doak v. Johnson, 798 F.3d

1096, 1104 (D.C. Cir. 2015), and specifically that “administrative exhaustion requirements are

not jurisdictional” in Title VII cases, Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir. 2017). Just

recently, in a decision that came after Freedom Forum’s motion was filed, the Supreme Court

agreed that, for Title VII claims, the exhaustion of administrative remedies is not a jurisdictional

requirement, but instead a mandatory claim-processing rule. Fort Bend Cty. v. Davis, 139 S. Ct.

1843, 1850–51 (2019), and “[i]n recent years, the Court has undertaken to ward off profiligate

use of the term [‘jurisdiction’],” id. (quotation omitted). The term “jurisdiction” is no more

appropriate here, because Title I of the ADA incorporates procedures, including the exhaustion

requirement, directly from Title VII. See 42 U.S.C. § 12117; Marhsall, 103 F.3d at 1098. The

Court therefore construes this argument by the Freedom Forum as one under Rule 12(b)(6), for

failure to state a claim.




                                                  9
       If the ADA retaliation claim were never raised at all before the EEOC, dismissal on this

ground would obviously be required. The complication here is that, although Baker-Notter did

explicitly raise before the EEOC the theory of retaliation against her for advocating ADA

compliance at the Newseum, she did not do so until she amended her charge in June of 2018,

well after the 300-day period for filing a charge with the EEOC in the District of Columbia had

expired. 4 Am. Compl. ¶ 13; see also Ex. A to Errata, ECF No. 14-1 (Amended EEOC charge).

Baker-Notter’s original charge made no mention of disability or ADA compliance, aside from a

single sentence mentioning that, among several other listed responsibilities, Baker-Notter was

the Newseum’s ADA Compliance Officer. Ex. A. to Def.’s Mot. Dismiss ¶ 17, ECF No. 11-2

(Original EEOC Charge). In June 2018, she filed an amended charge statement which dedicated

fifteen paragraphs, spanning nearly seven pages, to disability discrimination and retaliation

claims. Ex. A to Errata, ECF No. 14-1. This was a significant addition, as Baker-Notter’s

original charge was only six pages in length.

       Under the relevant regulations, EEOC complainants filing charges against private entities

may amend their EEOC charges “to cure technical defects or omissions . . . or to clarify and

amplify allegations made therein.” 29 C.F.R. § 1601.12(b). 5 “Such amendments and

amendments alleging additional acts which constitute unlawful employment practices related to


       4
          Normally, 42 U.S.C. § 2000e-5(e)(1) provides for only a 180-day period for filing a
charge with the EEOC. In the District of Columbia, the EEOC has reached a work-sharing
agreement with the D.C. Office of Human Rights, which triggers an exception to this default rule
and allows for filing within 300 days of the alleged discrimination. See Griffin v. Acacia Life
Ins. Co., 925 A.2d 565, 568–69 & n.13 (D.C. 2007).
       5
         In their briefing, both parties mistakenly cite 29 C.F.R. § 1614.106(d), a regulation
which only governs EEOC complaints made against the federal government. The standard
governing amendment under that regulation is similar to the proper one. Compare id. (allowing
amendment “to include issues or claims like or related to those raised in the [original]
complaint”), with § 1601.12(b) (allowing amendments “related to or growing out of the subject
matter of the original charge”).

                                                10
or growing out of the subject matter of the original charge will relate back to the date the charge

was first received.” Id. Baker-Notter argues, essentially, that because EEOC officials allowed

her amendment, her ADA retaliation claims necessarily “related to or gr[ew] out of the subject

matter of the original charge,” and take the original charge’s filing date. Pl.’s Opp’n To Def.’s

Mot. Dismiss at 4, ECF No. 13. Freedom Forum, on the other hand, would have the Court

reevaluate on its own whether the ADA retaliation claims are sufficiently related to those in the

original EEOC charge to qualify for relation back. Def.’s Mot. Dismiss at 5–8, ECF No. 11-1.

Freedom Forum has the better of the argument on this point because this Court, like others, has

not ceded to EEOC investigators the power to interpret the federal code in such a binding

fashion.

       Courts frequently evaluate for themselves the relationships between discrimination

claims and charges originally filed with the EEOC. More often this analysis is required when a

Title VII or DCHRA suit has arguably added new theories of liability that were never presented

to the EEOC at all. In those kinds of cases, where the EEOC never heard about the later-added

claims, there is no question that the court must decide whether they are sufficiently related to the

original ones. E.g. Shipman v. Nat’l R.R. Passenger Corp. (AMTRAK), 241 F. Supp. 3d 114, 123

(D.D.C. 2017) (dismissing claims because they concerned “additional discriminatory acts . . . not

articulated in the administrative charge, . . . not reasonably related to the allegations in the

charge, and . . . not fall[ing] within the scope of any administrative investigation that can be

reasonably expected to follow”); Ivey v. District of Columbia, 949 A.2d 607, 615–16 (D.C. 2008)

(“[I]t is only logical to limit the permissible scope of the civil action to the scope of the EEOC

investigation which can reasonably be expected to grow out of the charge of discrimination.”

(quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).



                                                  11
       Fewer cases have dealt with the circumstance before the Court today, where the EEOC

allowed an amendment that, arguably, was not “related to or growing out of” the discrimination

outlined in the original charge. One Court of Appeals has addressed a case like this, and

concluded, as this Court does, that the EEOC’s willingness to allow an amendment is not

determinative because “permitting a late amendment . . . adding an entirely new theory of

recovery would eviscerate the administrative charge filing requirement altogether by depriving

the employer of adequate notice and resulting in a failure to investigate by the responsible

agency.” Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (quotations

omitted)). Here, at least, investigation was not a problem, but adequate notice was. When

claims are added to an EEOC charge after the expiration of the time for filing an EEOC charge,

the potential defendant is not on notice of those claims within the appropriate amount of time

and, thus, a crucial purpose of the administrative exhaustion requirement has gone unfulfilled.

See Park, 71 F.3d at 907 (“The administrative charge requirement serves the important purpose[]

of giving the charged party notice of the claim.”); see also Davis v. District of Columbia, 925

F.3d 1240, 1245 (D.C. Cir. 2019) (“[T]wo plaintiffs’ timely-filed [EEOC] charges put the

[defendant] Agency on notice of the claims and vicariously satisfied the exhaustion requirement

for the remaining [class] plaintiffs.”); Craig v. District of Columbia, 74 F. Supp. 3d 349, 367–68

(D.D.C. 2014) (finding, in a DCHRA case, that an administrative complaint did not toll the

statute of limitations for claims against a defendant not mentioned in that complaint).

Defendants will likely be surprised and unprepared by federal claims based on late-amended

EEOC charges containing new claims and new theories of liability. The fact that EEOC officials

were willing to expand the scope of their investigation at a late hour does nothing to mitigate the

fact that the defendant employer knew nothing about this claim for over 300 days.



                                                12
       Having concluded that the EEOC’s willingness to accept the amendment is not the end of

the story, the Court must next consider whether Baker-Notter’s ADA retaliation claims are

sufficiently similar to her original EEOC charge. If they are, then the late amendment may relate

to or grow out of the subject matter of the original charge, or, even if amendment was improper

because of the late date, the original filing may be read as having put the defendant on notice of

the later-added claim. This is a distinction without a real difference, as the same test applies

under either framing. In the more typical circumstance of a federal claim that was never brought

before the EEOC, courts apply a “‘like or reasonably related’ test,” based on the language of the

regulations, to compare the claims. Craig, 74 F. Supp. 3d at 362. The same test can be applied

to determine whether late-added claims brought via amended EEOC charge letter are sufficiently

related to those brought in an original timely filed EEOC charge. See Evans, 80 F.3d at 963

(applying the same test). Either way, the court is aiming at the same goal: “limit[ing] the

permissible scope of the civil action to the scope of the EEOC investigation [that] can reasonably

be expected to grow out of the charge of discrimination.” Craig, 74 F. Supp. 3d at 367 (quoting

Ivey, 949 A.3d at 615).

       Baker-Notter’s additional claims about disability retaliation do not “relate[] to or grow[]

out of” her original claims and therefore do not fulfill the administrative exhaustion requirement.

Id. at 367-68. The original EEOC charge, filed in July 2017, put Freedom Forum on notice that

it would need to defend against sex discrimination claims, not claims focused on retaliation

Baker-Notter faced because of her advocacy for ADA compliance. “[A] long line of cases

prohibits plaintiffs from ‘conflating ideologically distinct categories of discrimination for

purposes of meeting their exhaustion requirements.’” Bell v. Donley, 724 F. Supp. 2d 1, 9

(D.D.C. 2010); Casole v. Johanns, 577 F. Supp. 2d 138, 141–42 (D.D.C. 2008) (holding that a



                                                 13
plaintiff who asserted only gender discrimination and retaliation in his administrative complaint

had not exhausted administrative remedies with respect to a claim of discrimination based on

national origin); Sisay v. Greyhound Lines, Inc., 34 F. Supp. 2d 59, 64 (D.D.C. 1998) (reaching

the same conclusion for a plaintiff who had asserted only sex discrimination in an administrative

complaint). Even when a plaintiff reported an instance of discrimination to the EEOC and later

claimed that a second, ideologically distinct, category of discrimination was at play in the very

same incident, this Court did not credit the argument that the reporting of one type of

discrimination fulfilled the exhaustion requirement for the second. Bell, 724 F. Supp. 2d at 9.

(“Claims of ‘ideologically distinct categories’ of discrimination and retaliation . . . are not

‘related’ simply because they arise out of the same incident.”). Here, Baker-Notter’s additional

disability-based claims arise from retaliation resulting from an entirely new set of protected

activities, not presented in a timely fashion in the original EEOC charge.

       In short, Baker-Notter’s original EEOC charge did not focus on or even suggest that she

might have retaliation claims based on her ADA compliance work. By the summer of 2018,

when these new claims were added, it was too late to put Freedom Forum on notice, and the

amended claims are too different to relate back to the filing date of the original EEOC charge.

The EEOC investigators were willing to expand the scope of their investigation not withstanding

the novel theories and the late hour, but this Court is not bound by their flexibility and instead

must consider notice to defendants as well as the agency’s ability to investigate. And such a lack

of notice for more than 300 days may have real consequences such as the loss of evidence that

would have been preserved if adequate notice had been timely given. Baker-Notter thus failed to

exhaust her administrative remedies with regard to the ADA claim brought in Count I of the

complaint, and Freedom Forum’s motion to dismiss that Count is granted.



                                                  14
 B. Retaliation for Sex Discrimination and Pay Equality Activity (Counts IV, V, VIII, IX)

       Four of Baker-Notter’s claims—Counts IV, V, VIII, and IX—allege that her termination

was an act of retaliation against her for her complaints about sex discrimination and inequality of

pay. These Counts are brought under Title VII, the DCHRA, and the EPA. To make out a case

of unlawful retaliation under Title VII, a plaintiff must show: (1) that, by opposing a practice

made unlawful by Title VII, she engaged in a statutorily protected activity; (2) that her employer

took a materially adverse action against her; and (3) that there is a causal relationship between

the protected activity and the adverse action. Harris v. D.C. Water and Sewer Auth., 791 F.3d

65, 68 (D.C. Cir. 2015). The elements of a retaliation claim under the DCHRA and the EPA are

the same. Robinson v. Ergo Sols., LLC, 85 F. Supp. 3d 275, 281 n.4 (D.D.C. 2015); Hicks v.

Ass’n of Am. Med. Colls., 503 F. Supp. 2d 48, 51 & n.1, 53 n.4 (D.D.C. 2007).

       Freedom Forum’s argument for dismissal of all three claims focuses on the causation

element. This element of a retaliation claim may be established either by direct evidence or by

inference. Touvian v. District of Columbia, 330 F. Supp. 3d. 246, 255 (D.D.C. 2018); see also

Harris, 791 F.3d at 70. The initial burden for a plaintiff facing a motion to dismiss is therefore

not incredibly high, as “the plaintiff need only establish facts adequate to permit an inference of

retaliatory motive.” Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001). Nonetheless,

Freedom Forum says that Baker-Notter has not cleared this low bar because she has suggested

neither a direct connection nor enough facts to infer a motive. Baker-Notter’s Opposition does

not develop much by way of counterargument, instead stating in fairly conclusory fashion that a

causal relationship does, in fact, exist. Pl.’s Opp’n to Def.’s Mot. Dismiss at 7., ECF No. 13

       Freedom Forum is correct that Baker-Notter’s amended complaint contains no facts

suggesting that direct evidence of retaliation will be forthcoming as the case progresses. In her



                                                 15
complaint, and in her briefing on this motion, Baker-Notter merely states that, for example,

“[Freedom Forum] subjected [her] to retaliation for her engaging in protected activity,” Am.

Compl. ¶¶ 186, 197, or, in opposing the motion to dismiss, that, “there is a causal relationship

between the protected activity and the adverse employment action,” Pl. Opp’n to Def.’s Mot.

Dismiss at 7. It is well-established that this kind of “formulaic recitation of a cause of action’s

elements will not do” when it comes to defending against a Rule 12(b)(6) motion. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). As a result, even though the Court “assume[s] the

truth of all of plaintiffs’ plausibly pleaded allegations, and draw all reasonable inferences in their

favor” at this stage, Agnew v. Gov’t of D.C., 920 F.3d 49, 53 (D.C. Cir. 2019), the court is unable

to read the complaint so generously as to assume Baker-Notter’s proffered legal conclusion that a

direct causal relationship has been pled. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he

tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.”).

       In the absence of an alleged direct connection between Baker-Notter’s protected

complaints about sex and pay discrimination and her firing, the Court is left to look at what it can

infer. Baker-Notter does not say what circumstantial evidence the Court can expect to see or

what inferential connections the Court ought to draw. Her briefing on the question simply

restates the law and asserts that a causal relationship does in fact exist. Pl.’s Opp’n to Def.’s

Mot. Dismiss at 6–7. One possibility, frequently argued by plaintiffs in retaliation cases, is that

the Court ought to infer a causal connection based on circumstantial evidence concerning the

timing of the protected activity and the adverse employment action. See Singletary v. District of

Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003) (“[A] close temporal relationship may alone

establish the required causal connection.”); Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir.



                                                 16
1985). The only materially adverse action that Baker-Notter identifies as the basis for her

retaliation claim is her termination in January 2017. The latest-in-time protected action

involving sex and pay discrimination 6 that the Amended Complaint plausibly alleges is a series

of conversations between Baker-Notter and Thompson in June and July of 2015, around the time

that Baker-Notter was promoted to Senior Director of Operations and was given a $10,000 raise.

See Am. Compl. ¶¶ 99–106. If the Court assumes, for purposes of this motion, that these

conversations were protected activity, that means that the adverse action came approximately

eighteen months after the protected activity.

       Eighteen months is too much time to infer causation based solely on temporal proximity

in the absence of further evidence connecting the protected activity to the adverse action. The

Supreme Court has said that when timing is the only circumstantial evidence presented for a

causal connection, “the temporal proximity must be ‘very close.’” Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001). Although there is no “bright-line . . . rule,” Hamilton v.

Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012), cases in this Circuit have consistently rejected

gaps of well under a year as insufficiently close to give rise to an inference of causation. E.g.

Jones v. D.C. Water & Sewer Auth., 922 F. Supp. 2d 37, 42 (D.D.C. 2013) (“[T]his Circuit has

generally found that a two- or three-month-gap between the protected activity and the adverse

employment action does not establish the temporal proximity needed to prove causation.”);

Cooke v. Rosenker, 601 F. Supp. 2d 64, 88 (D.D.C. 2009) (“The case law supports the

conclusion that, as a matter of law, a six-month delay by itself is insufficient to demonstrate the


       6
          The Amended Complaint also says that the termination came “only a few months after
[Baker-Notter] went to Mr. Thompson to inquire about a reasonable accommodation request
from one of her co-workers” but, assuming this was a protected activity, it would be relevant
only for the ADA retaliation claim in Count I and would have no bearing on Counts IV, V, VIII,
or IX which are focused on sex discrimination and equal pay violations.

                                                 17
close temporal proximity necessary to infer a retaliatory motivation.”); see also Taylor v. Solis,

571 F.3d 1313, 1322 (D.C. Cir. 2009) (rejecting a period of “two and one-half months” and

citing with approval cases from other Circuits rejecting periods of only two months). To find an

implied causal connection for Baker-Notter would require disregarding the weight of this

precedent, and then going further still to view the January 2017 termination of Baker-Notter as

plausibly motivated by her protected activity some eighteen months prior. Absent further

evidence, the Court cannot bridge this gap.

       Without an obvious causal connection or some explanation of where one ought to be

inferred, the Court is unable to say that the Amended Complaint contains a plausible allegation

that Baker-Notter was fired because of her protected activity concerning sex discrimination and

pay inequality. Freedom Forum’s motion is therefore granted as to Counts IV, V, VIII, and IX,

and these claims are dismissed.

                               C. Pay Inequality (Counts VI, VII)

       The Equal Pay Act of 1963 makes it illegal for an employer to “discriminate . . . between

employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at

which [the employer] pays wages to employees of the opposite sex . . . for equal work on jobs

the performance of which requires equal skill, effort, and responsibility, and which are

performed under similar working conditions.” 29 U.S.C. § 206(d)(1). The statute makes some

exceptions, which defendants may argue as affirmative defenses, but these do not come into play

at the motion to dismiss stage. United States EEOC v. George Washington Univ., No. 17-cv-

1978, 2019 WL 2028398, at *4 (D.D.C. May 8, 2019). The DCHRA’s equal pay provisions are

comparable. See Hawley v. Blackboard, Inc., No. 03-cv-656, 2005 WL 513496, at *8 n.1

(D.D.C. Mar. 3, 2005) (“Claims of unequal pay under the DCHRA are governed by the standards



                                                18
of the Equal Pay Act.”); George Washington Univ. v. Violand, 940 A.2d 965, 979 (D.C. 2008)

(requiring proof of “equal work” requiring “equal skill, effort, and responsibility” under similar

conditions for a DCHRA pay discrimination claim). Baker-Notter says that she received less pay

and fewer benefits than “similarly-situated male employees who performed jobs which required

equal skill, effort, and responsibility, and which were performed under similar working

conditions.” Am. Compl. ¶ 207.

       Freedom Forum argues that Baker-Notter has not stated a claim for pay discrimination

under either law because she “utterly fails to plead facts sufficient to show that the skills, effort

and responsibilities required of her and her alleged male comparators were substantially equal.”

Def.’s Mot. Dismiss at 12. Freedom Forum cites a district court case in which a plaintiff

provided “no record evidence of [comparator] female employees’ titles, job duties, or

qualifications,” Johnson v. District of Columbia, 947 F. Supp. 2d 123, 132 (D.D.C. 2013), and an

out-of-Circuit appellate opinion affirming a district court’s ruling at trial on a motion for

judgment as a matter of law and stating that a comparator had to be analyzed “factor by factor,”

Wheatley v. Wicomico Cty., 390 F.3d 328, 334 (4th Cir. 2004). In so arguing, Freedom Forum

asks for too much. The pleading standard is not so high, and the level of detail pled by Baker-

Notter is not so low as Freedom Forum suggests, and the case law it cites does not have

mandatory precedential value in this Court. At the motion to dismiss stage, the plaintiff does not

have to “show” anything, but only to allege, with some plausibility, enough facts to make her

right to relief more than speculative. See Twombly, 550 U.S. at 555–56. She does not have to

establish every element of the prima facie case in her pleading. Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 511–14 (2002).




                                                  19
       The Amended Complaint consistently compares the treatment of Baker-Notter, who

worked as Director of Training and Volunteer Services, and later as Senior Director of

Operations, to the treatment of three male directors in the Operations department, Facilities

Director Cory Leckey, Security Director Nate Tucker, and Visitor Services / Admissions

Director Matt Borowsky. Only Leckey’s salary is discussed in detail, but in the context of the

complaint there can be no mistaking that, when the Amended Complaint references “similarly

situated male employees,” it means to refer to these other directors who worked in the

Operations Department. Am. Compl. ¶ 207. Their jobs were different, to be sure, but “jobs need

not be identical in every respect before the Equal Pay Act is applicable; the phrase ‘equal work’

does not mean that the jobs must be identical, but merely that they must be ‘substantially equal.’”

Laffey v. Nw. Airlines, Inc., 567 F.2d 429, 448–49 (D.C. Cir. 1976) (footnotes omitted). The

Amended Complaint explains that a “median salary survey for the directors and manager in the

Operations department” demonstrated that Baker-Notter was being underpaid by a calculable

amount—$40,000. Am. Compl. ¶¶ 99–100. This suggests that the jobs being surveyed were at

least comparable, and it provides the Court with some idea of what evidence Baker-Notter will

present. Baker-Notter will have to show more than just comparability in order to prove that the

male directors’ jobs were “substantially similar” to hers, but comparability is a starting point and

the fact that the salary comparison was compelling enough that Thompson gave Baker-Notter a

partial raise also bolsters her case. High-level managers working in discrete areas of

organizations will necessarily have different responsibilities from one another, and courts should

not require so much detail about similarity at the front end of a lawsuit as to make equal pay laws

largely inapplicable to this class of employees. If anything, Baker-Notter alleges that she did

more and had more responsibilities than the other directors, but was paid less nonetheless.



                                                 20
       On her equal pay claims, Baker-Notter has provided the Court with “a short and plain

statement of the claim,” and has given Freedom Forum fair notice of what she will be arguing.

See Fed. R. Civ. P. 8(a)(2). Accepting her allegations as true and granting all reasonable

inferences in her favor, the Court finds that she has alleged sufficient facts to make it plausible

that she performed “substantially similar” work requiring the same skill, effort, and

responsibility as the male directors. It will take much more detail to prove that all directors did

in fact have “substantially similar” jobs, but Baker-Notter has said enough that the Court cannot

dismiss her equal pay claims before giving her an opportunity to make this case. Freedom

Forum’s motion is therefore denied as to Counts VI and VII.

                              D. Sex Discrimination (Counts II, III)

       To prevail on an employment discrimination claim, a plaintiff must show that she

suffered an adverse employment action because of her race, color, religion, sex, or national

origin. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). DCHRA and Title

VII discrimination claims are analyzed under the same legal standard. Elhusseini v. Compass

Grp. USA, Inc., 578 F. Supp. 2d 6, 10 n.4 (D.D.C. 2008). It is undisputed that Baker-Notter, as a

woman, was a member of a protected class, and that she suffered an adverse employment action

in the form of her termination. The question before the Court on these Counts, then, is whether

her Amended Complaint alleges facts making plausible a causal relationship between her sex and

her firing—whether she has laid out a plausible case that she was fired because she was a

woman. The Court holds that she has.

       Baker-Notter’s Amended Complaint describes what she calls a “‘good old boy’ culture in

the Operations department,” in which the male directors were treated with more respect and

privilege by Thompson. Am. Compl. ¶¶ 69–81. Baker-Notter, by contrast, was tasked with



                                                 21
additional responsibilities that the male directors did not have to take on. Id. ¶¶ 82–98. These

included both additional substantive workloads and menial secretarial duties for Thompson that

male directors were never asked to handle. Id. ¶¶ 72–73, 92–94. Thompson criticized Baker-

Notter for “being ‘overly aggressive,’ ‘over the top,’ or ‘emotional’” when she complained about

the male directors’ treatment of her, Id. ¶ 122, and instructed Baker-Notter, but not to Borowsky,

to “be nice” in order to resolve their mutual conflict, Id. ¶¶ 78–79. One male director, Leckey,

said there was “no way in hell he would ever work for a woman, especially Donna.” Id. ¶ 120.

There is no suggestion that Leckey was involved in the decision to terminate Baker-Notter, but

the complaint establishes that Thompson took Leckey’s feelings into account in his own

decisionmaking: Baker-Notter’s job description indicated that she ought to have been

supervising other directors, but Thompson did not allow her because, he said, the male directors

would be upset. Id. ¶ 131. Thus, even if Thompson himself harbored no bias against women or

against Baker-Notter, the decision to terminate her may still have come about because she was a

woman, if he was taking the male directors’ views into account. And there is no suggestion that

anyone other than Thompson made the decision to pay Baker-Notter less than her male

counterparts even though she was working harder and had more responsibilities. In this context,

where male directors with at least roughly comparable positions were treated so differently from

Baker-Notter, and where at least some explicitly gender-based criticism had been leveled at her,

it is perfectly plausible that Baker-Notter was treated worse, and eventually terminated, because

she was a woman.

       The Amended Complaint suggests that the Freedom Forum explained Baker-Notter’s

termination by reference to “financial challenges” or “budget constraints,” Id. ¶¶ 68, 141, but this

explanation is inconsistent with the rest of the facts pled in the Amended Complaint, which the



                                                22
Court credits at this stage. Although financial challenges or budget constraints may explain why

a reduction in force was necessary, they do not explain why Baker-Notter, the only director who

was a woman, was chosen to be terminated over her male counterparts. According to Baker-

Notter, she was doing more work for less pay in comparison to the male directors—at least in

comparison to Leckey, who the Amended Complaint discusses in most detail. See id. ¶¶ 141.

As the Amended Complaint explains, if the Freedom Forum were looking to downsize the

operations department in the most efficient manner, why would it have made sense to fire Baker-

Notter, whose salary was lowest even though her workload was largest? It is at least plausible

that the answer is that she was fired at least in part because she was a woman, and so Freedom

Forum’s motion is denied as to Counts II and III.

                                     IV. CONCLUSION

       For the foregoing reasons, Defendant’s motion to dismiss (ECF No. 11) is GRANTED

IN PART AND DENIED IN PART. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.


Dated: September 23, 2019                                        RUDOLPH CONTRERAS
                                                                 United States District Judge




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