Citations
- 369 F. Supp. 3d 49
Full opinion text
REGGIE B. WALTON, United States District Judge
The plaintiffs filed this civil action, using the pseudonyms Jane Does 1 to 5, against George Washington University ("GW") and Kyle Renner, a GW employee being sued in his capacity as GW's General Operations Manager and the plaintiffs' supervisor (collectively, "the defendants"), pursuant to the District of Columbia's Human Rights Act ("D.C. Human Rights Act"), D.C. Code §§ 2-1401 -1404.04 (2001), alleging that the defendants (1) created a hostile work environment ("Count I"), (2) retaliated against them for their complaints of sexual harassment ("Count II"), (3) discriminated against them because of their gender ("Count III"), and (4) aided and abetted the discriminatory and retaliatory conduct ("Count IV"). First Amended Complaint And Jury Demand ("Am. Compl.") ¶¶ 116, 123, 133, 140. The plaintiffs bring an additional three claims against GW for (1) negligent training and supervision ("Count V"); (2) indifference to sexual harassment in violation of Title IX of the Education Amendments Act of 1972 ("Title IX"), 20 U.S.C. §§ 1681 - 88 (2018) ("Count VI"); and (3) retaliation in violation of Title IX ("Count VII"). Am. Compl. ¶¶ 145, 149-50, 160. Currently before the Court are (1) the Defendants' Motion to Dismiss All Claims of Plaintiffs Jane Doe 1 and Jane Doe 3 and All Plaintiffs' Claims in Counts III and V of the Complaint ("Defs.' Mot."), (2) the Defendants' Motion to Dismiss the First Amended Complaint ("Defs.' 2d Mot."), and (3) the Plaintiffs' Motion for Leave to Proceed with the Pseudonyms Jane Does 1-5 ("Pls.' Mot."). Upon careful consideration of the parties' submissions, the Court concludes for the reasons below that the defendants' motion to dismiss the Complaint must be denied as moot, the plaintiffs' motion for leave to proceed pseudonymously should be granted, and the defendants' motion to dismiss the Amended Complaint must be granted in part and denied in part.
I. BACKGROUND
All five plaintiffs are female undergraduate students who attend GW. Am. Compl. ¶¶ 24, 37, 46, 71, 83. During the time period relevant to their claims against the defendants, the plaintiffs worked in various roles at the Institute for International Economic Policy ("IIEP"), see id., which is located within the Elliott School of International Affairs at GW, id. ¶ 17. Emerson Jones, one of the alleged perpetrators of the harassing conduct who is not a party to this action, was also employed by the IIEP in a supervisory position. Id. ¶ 19. When Jones began working at the IIEP, all of the plaintiffs, with the exception of Jane Doe 1, were already working there. See id. ¶¶ 24, 37, 71, 85. Later in the fall of 2017, Jane Doe 1 began her employment at the IIEP. See id. ¶ 46. The following are the plaintiffs' relevant allegations.
A. Jones's Alleged Conduct
According to the plaintiffs, beginning in March 2017, IIEP staff members complained to Renner about Jones's behavior. See id. ¶ 91. These complaints were allegedly largely ignored by Renner by his silencing of female complainants. See id. In general, Jones would purportedly "frequently brag in the workplace about his sexual exploitation of the women in the workplace." Id. ¶ 34. For example, Jones allegedly "publicly announced to the IIEP staff members his sexual rating of the female coworkers from best to worse." Id. ¶ 32. On another occasion, he purportedly described one of the women he raped as "a dead fish because she was so drunk." Id.
Jones was also allegedly verbally abusive to women employed in the IIEP. On one occasion, Jane Doe 2's coworker purportedly informed her that "Jones had been 'degrading' Jane Doe 2." Id. ¶ 33. In addition, Jane Doe 5 contends that she personally "observed Jones shut down a female coworker after the female coworker requested that Jones stop verbally harassing her." Id. ¶ 86. Jones allegedly became extremely aggressive, belittled her, and told the female coworker that she needed to stop being "emotional" and to get "used to this type of behavior in a work environment." Id. Jane Doe 5 also contends that she heard "Jones talk to other coworkers in the workplace about women in a sexually demeaning way and has heard Jones brag about his sexual experiences." Id. ¶ 87.
"The female workers, including Jane Doe 5, felt extremely uncomfortable around Jones due to his aggressive behavior and misogynistic comments." Id. ¶ 85. According to Jane Doe 5, Jones would intentionally refer to the female employees by "the incorrect names claiming that all the women in the office are the same." Id. ¶ 88. He also allegedly referred to new female staff members as his "new office crush[es]." Id. ¶ 42.
1. Jane Doe 1
Less than a month after Jane Doe 1 started working at the IIEP, Jones allegedly began harassing her. On October 1, 2017, she contends that Jones sent her a text message stating, "oh my god you're so hot." Id. ¶ 48. Within a week, on October 6, 2017, Jones allegedly asked Jane Doe 1 to come to his house, but she refused. Id. ¶ 49. According to Jane Doe 1, later that month, "[o]n October 26, 2017, [she] learned that Jones had threatened to kill her female coworker," which made Jane Doe 1 fearful of Jones. Id. ¶ 50. And on November 9, 2017, Jane Doe 1 contends that she received a text message from a female coworker, asking Jane Doe 1 if Jones had left the office. See id. ¶ 51. Jane Doe 1 represents that the coworker told her that she was hiding from Jones in fear that he would sexually assault her. See id.
Two days prior to an upcoming performance, Jane Doe 1 contends that she told Jones that she was "stressed about her [ ] performance." Id. ¶ 52. Jones allegedly asked if he could attend the performance, but Jane Doe 1 represents that she told him no. See id. On December 9, 2017, Jones allegedly sent Jane Doe 1 a text message, "containing a picture of [Jane Doe 1] during her performance." Id. ¶ 53. Apparently, despite Jane Doe 1's objections, Jones had attended the performance. See id. Three days later, Jones purportedly again asked Jane Doe 1 on a date, which she refused. Id. ¶ 54.
On December 19, 2017, Jane Doe 1 filed a complaint with Renner regarding Jones's behavior. See id. ¶ 58. After Jane Doe 1 "described Jones'[s] behavior toward her, and [ ] stated that one of her female coworkers had been raped[,] Renner responded, 'sometimes you need to work with people that you don't necessarily get along with.' " Id. On December 21, 2017, a Title IX investigator contacted Jane Doe 1 by email in response to her complaint, but allegedly "took no action beyond that email and failed to conduct any independent investigation beyond reaching out to the complainant." Id. ¶ 63. On January 30, 2018, Jane Doe 1 allegedly heard "Jones openly discuss[ing] his sexual exploits in the workplace," and began "demean[ing] the women he 'slept with.' " Id. ¶ 64.
Following Jane Doe 1's December 19, 2017 initial complaint to Renner, she contends that Jones "deliberately and intentionally increased his hostility towards her." Id. ¶ 66. For example, on February 1, 2018, Jane Doe 1 contends that "Jones treat[ed her] with hostility and harassed her as she quietly did her work." Id. Immediately thereafter, Jane Doe 1 represents that she observed Jones and Renner discussing something in Renner's office. See id."As a result, Jane Doe 1's supervisor told her that she was not allowed to work the event that evening even though the event was understaffed." Id.
On February 7, 2018, "Jane Doe 1 requested that she be demoted to [e]vent staff so that she would not have to interact with Jones anymore."Id. ¶ 67. "Jane Doe 1 was also given the option of working from home." Id. ¶ 68. Two days later, Jane Doe 1 met with the GW's Assistant Director for Sexual Assault Prevention and Response for the Office for Diversity, Equity, and Community Engagement ("ODECE"), and reported "Jones'[s] sexual harassment and sexual assault of Jane Doe 5." Id. ¶ 99. On March 6, 2018, Jane Doe 1 learned that her complaint to the ODECE would be treated as "student-on-student harassment," "rather than 'staff-on-staff harassment' even though the harassment was occurring in the IIEP workplace." Id. ¶¶ 99, 105.
On April 2, 2018, Jane Doe 1 contends that she was constructively discharged, having been "forced to resign out of her fear of interacting with Jones in the IIEP office." Id. ¶ 69.
2. Jane Doe 2
In May 2017, "Jones [allegedly] asked Jane Doe 2 to come over to his apartment." Id. ¶ 26. According to Jane Doe 2, "[o]nce there, Jones ignored Jane Doe 2's objections [to sexual activity] and sexually assaulted her." Id."Jane Doe 2 [contends that although she] tried to push Jones off of her ... [and] told him to stop multiple times, ... Jones raped Jane Doe 2." Id.
Throughout the fall of 2017, "Jones [allegedly] continued to torment Jane Doe 2." Id. ¶ 31. On one occasion, Jane Doe 2 contends that Jones told her that he would "never stick [his] dick into the pool of IIEP ever again." Id. Jones also purportedly "told Jane Doe 2's faculty supervisors and her coworkers" that he and Jane Doe 2 had sex. Id. ¶ 33.
On February 2, 2018, Jane Does 2 and 3 met with Renner. See id. ¶ 97. "Jane Doe 2 told Renner ... that Jones had raped her" and two other girls in the IIEP office. Id. Jane Doe 2 "also gave Renner a written statement that detailed Jones'[s] sexually hostile conduct and misogynistic comments in the workplace." Id. Renner responded that he would "talk to the Title IX office to see what he should do." Id. Renner then "recommended that Jane Doe 2 work from home." Id. On February 11, 2018, Jane Doe 2 observed Jones in the office and emailed Renner, stating, "I was wondering if we could have a follow-up meeting. Let me know if you are free soon." Id. ¶ 100. However, Renner purportedly never responded to Jane Doe 2's email. See id. Instead, during Jane Doe 2's professional development meeting with Renner on February 23, 2018, she contends that "Renner told [her] that to 'follow-up' on her complaint about Jones, there was nothing [he] could do because his 'hands were tied.' " Id. ¶ 101. Jane Doe 2 represents that she requested that Renner fire Jones, but Renner repeatedly responded that his "hands were tied" and that "Jane Doe 2 had to file an 'official complaint with the Title IX office.' " Id. According to Jane Doe 2, she "complained that it was unacceptable that ... she had to work beside the man [who] raped her." Id. Renner allegedly concluded the meeting by "stating that Jane Doe 2 should work from home and go to therapy." Id.
On March 7, 2018, Jane Doe 2 informed Renner in writing that "four female employees 'and I want to discuss how we feel unsafe in the office.' " Id. ¶ 106. Two days later, the plaintiffs, including Jane Doe 2, met with Renner. See id. ¶ 107.
During this meeting, each of the [p]laintiffs detailed the sexual harassment they were exposed to in the workplace, Jones'[s] sexual assaults on female staff members, Jones'[s] demeaning treatment of the female staff members, and Jones'[s] threat to kill a female staff member. The [p]laintiffs also read written statements prepared by two other girls. The [p]laintiffs told Renner that at least 11 female staff members had been impacted by Jones'[s] hostile conduct. The [p]laintiffs told Renner that they felt unsafe working with Jones.
Id. Renner allegedly responded that "he needed to utilize the 'correct mechanisms' to terminate Jones," but when pressed by the plaintiffs, he could not identify the "mechanisms." Id. Renner allegedly "stated that he did not want to ask Jones to work from home," id., and "instead asked the [p]laintiffs to work from home," id. Jane Does 1, 3, 4, and 5 provide consistent accounts of what Jane Doe 2 said transpired at the March 9, 2017 meeting with Renner.
"On March 26, 2018, Jane Doe 2 [contends that she] was constructively discharged by GW." Id. ¶ 35. In her resignation letter to Renner, Jane Doe 2 wrote that "[w]orking in the recent months at [the] IIEP has been a terrible experience," that the IIEP's "inability or unwillingness to protect [her] ... from a clear and imminent threat has been disheartening," and that "after putting forth so many months of fighting for my safety and seeing little to nothing happening, I am no longer willing to work under the [IIEP]." Id. ¶ 109.
The next day, Jane Doe 2 received a phone call from the Director of the IIEP, Maggie Chen. Id. ¶ 110. Director Chen allegedly told Jane Doe 2 that she "asked Renner what he did to fire Jones, and Renner said 'nothing.' " Id. According to Director Chen, after she requested human resources to fire Jones, human resources responded that "this is not a [human resources] issue, it is a Title IX issue." Id. Director Chen also "complained to GW's Title IX [o]ffice[,] which stated '[it] would need formal complaints from each of the victims,' and that it could not take any action until after the judiciary council completed its investigation." Id. Finally, Director Chen "complained to GW's Office of the General Counsel, which reiterated that the complaints would need to be processed by the Title IX [o]ffice." Id. When Director Chen indicated that "she had 'cause to terminate [Jones],' the General Counsel's Office said 'that's not fair to Jones.' " Id. Director Chen "was told that until [Jones] ha[d] his due process, there [was] nothing [she] could do." Id. (first alteration in original). Director Chen also allegedly informed Jane Doe 2 "that there is 'absolutely no training' on sexual harassment." Id.
"On April 2, 2018, Jane Doe 2 met with Jen Alexander-Smith from the Office of Student Rights and Responsibilities at GW ('Student Rights Office')." Id. ¶ 113. According to Jane Doe 2, "[t]he Student Rights Office stated that it had learned of the [p]laintiffs' complaints on March 31, 2018." Id. The Student Rights Office allegedly stated that "it is prohibited from becoming involved in [workplace] problems," and that it has "no policies in place regarding student problems in the workplace" and "absolutely no policy for harassment of students in the workplace." Id."The Student Rights Office further admitted that it had never received any complaint from [the] Title IX [office] or Renner about Jones'[s] misconduct." Id. The Student Rights Office stated "that according to [the] Title IX [office], it had not yet started an investigation because it had not received a 'formal' complaint." Id.
3. Jane Doe 3
According to Jane Doe 3, a number of her coworkers confided in her about Jones's "sexual misconduct and inappropriate conduct in the office," id. ¶ 77, and in her position as Digital Communications and Social Media Team Lead, Jane Doe 3 contends that she became aware that Jones had assaulted three female employees in the office, see id. Jane Doe 3 represents that she received two written complaints in a suggestion box about Jones's "sexually hostile behavior." Id. One female employee purportedly complained to Jane Doe 3 that "Jones had been asking underage female workers to 'get drunk' with him after work." Id. Jane Doe 3 also allegedly received complaints "that Jones had been discussing his sexual encounter with Jane Doe 2 [ ] in the IIEP office." Id. ¶ 78.
Jane Doe 3 contends that she filed at least four formal complaints with her supervisors about Jones's sexual harassment and assaults. See id. ¶ 79. On February 2, 2018, Jane Does 2 and 3 met with Renner to discuss Jones's conduct toward Jane Doe 2. See id. ¶ 97. On February 28, 2018, Jane Doe 3 met with Renner and told him that "she believed Jane Doe 2 would be quitting [the] IIEP because [Renner] would not take action in response to her complaint." Id. ¶ 103. Renner allegedly responded that "his 'hands were tied' " and "it was 'a difficult situation.' " Id.
On March 30, 2018, Jane Doe 3 "encountered Renner on GW's campus." Id. ¶ 112. According to Jane Doe 3, "Renner stated that he was 'very concerned that [the plaintiffs'] group chat with the eleven [victims] was spreading misinformation and that [the plaintiffs] were making the situation worse.' " Id.
4. Jane Doe 4
On September 30, 2017, Jane Doe 4 was at a nightclub with other IIEP staff when "Jones [allegedly] bought ... Jane Doe 4[ ] an excessive number of alcoholic drinks." Id. ¶ 43. Later, Jones allegedly asked Jane Doe 4 to come back to his apartment, and because he "was older than her and her boss at [the] IIEP, [Jane Doe 4 contends that she] felt she had no choice." Id."At Jones'[s] apartment, Jane Doe 4 slipped in and out of consciousness, as she was [ ] grossly intoxicated." Id. According to While Jane Doe 4, while she was "inebriated and unresponsive [ ], Jones took off her clothes, climbed on top of her[,] and raped [her]." Id. She also contends that "[t]he next morning, she awoke to Jones, again, attempting to rape her." Id.
After purportedly raping Jane Doe 4, the Amended Complaint represents that "Jones bragged in the workplace about his encounter to Jane Doe 4's coworkers." Id. ¶ 44. "He [allegedly] made humiliating, derogatory sexual comments about Jane Doe 4 to her coworkers and the faculty members working in the IIEP." Id. Purportedly, Jones "publicly ranked Jane Doe 4 among the other females in the office that he had victimized." Id. ¶ 44.
5. Jane Doe 5
In April 2017, "Jane Doe 5 [represents that she] attended a party in a GW dorm room that was hosted by her IIEP coworker." Id. ¶ 90. When the party ended, Jones allegedly "pressured Jane Doe 5 to leave with him," and "Jones began [to] assault [her] in the car." Id. According to Jane Doe 5, when she arrived at Jones's house, "she 'blacked out' and lost consciousness. She then came in and out of consciousness as Jones aggressively raped her." Id.
B. Renner's Alleged Conduct
Renner, the individual purportedly "authorized to receive complaint[s] regarding workplace misconduct and [to] institute corrective measures," id. ¶ 57, allegedly "was also involved in his own workplace misconduct." Id. ¶ 61. He purportedly made misogynistic and "derogatory comments about women in the workplace, such as disparaging 'women's studies.' " Id. ¶ 62. In addition, Renner allegedly tried to cover up Jones's misconduct by "brush[ing] aside the complaints made by [the p]laintiffs and others" rather than "report[ing] Jones to the police or to the University" because Jones and Renner were allegedly "close friends." Id. ¶ 60.
Moreover, Renner would allegedly touch Jane Doe 1 and 3. According to Jane Doe 1, during her employment, on multiple occasions, "Renner touch[ed] the small of Jane Doe 1's back while in the workplace, without her permission." Id. ¶ 61. Renner would also allegedly subject Jane Doe 3 to sexually hostile conduct. See id. ¶ 73. He would purportedly "touch Jane Doe 3's arm or shoulder" while walking beside her, and while Jane Doe 3 was working at her computer, "Renner [would] frequently reach[ ] over [ ] Jane Doe 3 to type on her keyboard while she remain[ed] seated." Id. He also allegedly "routinely commented on [ ] Jane Doe 3's clothing in the office." Id. The plaintiffs also contend that "Renner gave preferential treatment to Jane Doe 3's co-team leader," id., and "would dismiss Jane Doe 3's recommendations in front of the staff, and instead request input from [her] male co-team leader," id. ¶ 75. On one occasion, "during Jane Doe 3's professional development meeting, Renner [allegedly] asked Jane Doe 3 when she intended to get married and have kids." Id. ¶ 76. He also allegedly "asked several female employees this question during their professional development meetings." Id.
C. This Lawsuit
On May 10, 2018, the plaintiffs filed their Complaint in the Superior Court of the District of Columbia. On June 13, 2018, the defendants removed the case to this Court pursuant to 28 U.S.C. § 1441(a), (c) (2018). See Notice of Removal (Corrected) at 2-4. Thereafter, the defendants filed their motion to dismiss the Complaint for failure to state a claim. See generally Defs.' Mot. Instead of opposing the motion, the plaintiffs amended their Complaint. See generally Am. Compl. The defendants have now moved to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the basis that the plaintiffs failed to obtain leave to sue using pseudonyms. See Defs.' 2d Mem. at 13-15. The plaintiffs subsequently filed their motion seeking leave from the Court "to continue to proceed anonymously as Jane Does 1-5 throughout the remainder of this case." Pls.' Mem. at 1. These last two filings are the subject of this memorandum opinion.
II. LEGAL STANDARDS
A. Motion For Leave To Proceed with Pseudonyms
Federal Rule of Civil Procedure 10(a) requires that a complaint state all of the names of the parties. Fed. R. Civ. P. 10(a). "Disclosure of the parties' identities furthers the public interest in knowing the facts surrounding judicial proceedings." Doe v. Cabrera, 307 F.R.D. 1, 4 (D.D.C. 2014) (Walton, J.) (quoting Nat'l Ass'n of Waterfront Emp'rs v. Chao, 587 F.Supp.2d 90, 99 (D.D.C. 2008) ).
The "rare dispensation" of allowing parties to proceed pseudonymously is only justified in the "critical case," or the "unusual case," ... include[ing] those in which "identification creates a risk of retaliatory physical or mental harm," those in which "anonymity is necessary to preserve privacy in a matter of [a] sensitive and highly personal nature," and those in which the anonymous party would be compelled to admit criminal behavior or be subject to punishment by the state.
Qualls v. Rumsfeld, 228 F.R.D. 8, 10-11 (D.D.C. 2005) ; accord W. Coast Prods., Inc. v. Does 1-5829, 275 F.R.D. 9, 12 (D.D.C. 2011) ("[F]ederal courts generally allow parties to proceed anonymously ... when anonymity is necessary to protect a person from harassment, injury, ridicule, or personal embarrassment."). Personal embarrassment is normally not a sufficient basis for permitting anonymous litigation. See Chao, 587 F.Supp.2d at 100.
"[I]t is within the discretion of the district court to grant the 'rare dispensation' of anonymity." United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) ). In exercising this discretion, the Court has "a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted." Id."As part of this inquiry, the court should take into account the risk of unfairness to the opposing party, as well as the customary and constitutionally-embedded presumption of openness in judicial proceedings." Id. (internal quotation marks omitted). "[I]t is the litigant seeking to proceed under pseudonym that bears the burden to demonstrate a legitimate basis for proceeding in that manner," Qualls, 228 F.R.D. at 13, and "motions to proceed under pseudonym should be granted sparingly," Doe v. U.S. Dep't of State, Civ. Action No. 1:15-01971, 2015 WL 9647660, at *2 (D.D.C. Nov. 3, 2015).
B. Motion to Dismiss
A Rule 12(b)(6) motion tests whether a complaint "state[s] a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss [under Rule 12(b)(6) ], 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).
In evaluating a motion to dismiss under Rule 12(b)(6), "the Court must construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). While the Court must "assume [the] veracity" of any "well-pleaded factual allegations" in a complaint, conclusory allegations "are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). Also, the Court need not accept "legal conclusions cast as factual allegations," or "inferences drawn by [the] plaintiff if those inferences are not supported by the facts set out in the complaint." Hettinga, 677 F.3d at 476. 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." E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
III. ANALYSIS
A. The Plaintiffs' Motion For Leave To Proceed with the Pseudonyms Jane Does 1 to 5
Although the District of Columbia Circuit has not yet adopted a test for evaluating a request to proceed pseudonymously, members of this Court have adopted a five-factor test "in balancing the interests involved." See, e.g., Sandberg v. Vincent, 319 F.Supp.3d 422, 426 (D.D.C. 2018) ; see also Roe v. Bernabei & Wachtel PLLC, 85 F.Supp.3d 89, 96 (D.D.C. 2015) ; Cabrera, 307 F.R.D. at 5 ; Chao, 587 F.Supp.2d at 99. These factors are:
[ (1) ] [w]hether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; [ (2) ] whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; [ (3) ] the ages of the persons whose privacy interests are sought to be protected; [ (4) ] whether the action is against a governmental or private party; and [ (5) ] the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
Sandberg, 319 F.Supp.3d at 426 (quoting James, 6 F.3d at 238 ). The Court will address each factor in turn in assessing whether to grant the plaintiffs' motion.
1. Whether the Use of Pseudonyms Will Preserve Privacy in a Matter of a Sensitive and Highly Personal Nature
The plaintiffs maintain that "[b]ecause this case involves claims of multiple sexual assaults, involving multiple plaintiffs, this case is sensitive and highly personal in nature for the [p]laintiffs." Pls.' Mem. at 3 (quoting Cabrera, 307 F.R.D. at 6 ). The defendants respond that this case does not involve a matter of a sensitive and highly personal nature for two reasons: (1) "Jane Does 1 and 3 do not allege that they were sexually assaulted" or that Jones "ever touched them improperly, or threatened them," Defs.' Opp'n at 6; and (2) although the remaining plaintiffs have alleged they have been raped, this lawsuit does not involve a "brutal rape" involving "graphic details," id. at 7.
As an initial matter, the Court agrees with the defendants that "[s]exual harassment is not typically considered a matter so highly personal as to warrant proceeding by pseudonym." Bernabei, 85 F.Supp.3d at 96. However, although Jane Does 1 and 3 were subjected to sexual harassment and not assault, the remaining plaintiffs do in fact allege that they were sexually assaulted. Am. Compl. ¶¶ 26, 43, 90. Therefore, because courts generally allow a plaintiff to litigate under a pseudonym in cases containing allegations of sexual assault on the basis that they concern highly sensitive and personal subjects, see Cabrera, 307 F.R.D. at 5 ; Doe v. De Amigos, LLC, Civ. Action No. 11-1755 (ABJ), 2012 WL 13047579, at *2 (D.D.C. Apr. 30, 2012), the need for anonymity is particularly great in this case because the IIEP is a "small" office, Pls.' Mem. at 3, and "[d]isclosure of the identity of any of the [p]laintiffs would necessarily lead to the disclosure of the identities [of all the plaintiffs]," id.
The defendants claim that because "all five [p]laintiffs are already well known in the IIEP office through [the p]laintiffs' own communications at meetings and on social media," Defs' Opp'n at 7, "the use of the true names of Jane Doe 1 and Jane Doe 3 in the lawsuit would [not] allow anyone to better guess the true identities of the other [p]laintiffs beyond the information already available," id. However, because the "extent of [these] disclosures does not reel in the public at large," Cabrera, 307 F.R.D. at 9 n.14 (citation omitted), the Court must "grant[ ] anonymity to protect against [public] disclosure" and preserve the privacy of sexual assault victims. De Amigos, LLC, 2012 WL 13047579, at *2.
The defendants also contend that "this case is unlike Bernabei because that was a suit against the alleged perpetrator of a brutal rape, in which the complaint included 'highly personal' matter[s] such as 'graphic details of the alleged rape, including multiple references to the plaintiff's genitalia and her hospital examination,' " Defs.' Opp'n at 7, while "the claims in this case are not made against the alleged perpetrator ...; no similarly 'graphic' details of the alleged sexual assaults are pled in the [Amended] Complaint; and the primary issue is not liability for the alleged rapes themselves," id. at 7-8. Although the Court acknowledges that the plaintiffs' Amended Complaint "is not against [their] assailant ... but is instead at least one step removed" from the alleged incidents of sexual assault, Bernabei, 85 F.Supp.3d at 97, the Court agrees with the plaintiffs that it is "anticipated that the details of the sexual assaults will be relevant to this lawsuit in light of [the p]laintiffs' Title IX claims," Pls.' Reply at 2; but see Bernabei, 85 F.Supp.3d at 97, and nevertheless recognizes the "strong [public] interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes," De Amigos, LLC, 2012 WL 13047579, at *2 ; see also Doe v. Penzato, Civ. Action No. 10-5154 (MEJ), 2011 WL 1833007, at *3 (N.D. Cal. May 13, 2011) ("Given [the p]laintiff's allegations of sexual assault, the Court finds that these reasons tend to favor allowing her to proceed anonymously."); Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 (E.D.N.Y. 2006) ("[T]he public generally has a strong interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes."); Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Pa. 2001) (granting anonymity to sexual assault victim).
Accordingly, this factor weighs in favor of the plaintiffs proceeding pseudonymously.
2. Whether There is a Risk of Retaliatory Physical or Mental Harm
The defendants argue that the plaintiffs "do not even suggest that they face 'retaliatory'
physical or mental harm by either of the [d]efendants." Defs.' Opp'n at 8 (quoting Qualls, 228 F.R.D. at 12 ). The defendants further contend that "exaggerated assertions" offered by the plaintiffs "should not be credited by the Court, especially since no affidavit was provided by Jane Does 1 or 3, or any mental-health provider," id. at 9, and that the plaintiffs have offered "nothing to support their claim [as to Jane Does 2, 4, and 5,] that the disclosure of their identities would exacerbate th[eir psychological] 'trauma,' " id. Although the Court agrees with the defendants that the plaintiffs bear the burden to demonstrate a "legitimate basis" for proceeding under pseudonyms, see Defs.' Opp'n at 9; Qualls, 228 F.R.D. at 13, the Court finds that the plaintiffs have demonstrated that this factor weighs in their favor.
A showing of either a risk of retaliatory physical harm or a risk of mental harm weighs in favor of granting a plaintiff anonymity in a proceeding involving allegations of sexual assault. See De Amigos, LLC, 2012 WL 13047579, at *2 ("Although there is no indication that [the plaintiff's] identification poses a risk of retaliatory harm, such publicity could exacerbate the psychological harm that she has already experienced[.]"). A plaintiff need not show both a risk of retaliatory physical harm and mental harm-either is sufficient. See id."Courts generally find a risk of retaliatory harm in cases where the moving party provides evidence that psychological damage or violent threats are anticipated if a party's identity is disclosed." J.W. v. District of Columbia, 318 F.R.D. 196, 200 (D.D.C. 2016) (citations omitted).
Here, the Court finds that public disclosure of the plaintiffs' true identities is likely to result in psychological harm. See Cabrera, 307 F.R.D. at 6 ("A showing of either a risk of retaliatory physical harm or a risk of mental harm weighs in favor of granting a plaintiff anonymity in a proceeding involving allegations of sexual assault." (internal citation omitted) ). The plaintiffs have alleged that each Jane Doe has already suffered and continues to suffer depression of varying degrees, anxiety, panic attacks, and social isolation. See Am. Compl. ¶¶ 36, 45, 70, 82, 92. Furthermore, the plaintiffs allege that Jane Does 1 and 2 remain fearful that they will encounter their assailant, Pls.' Mem. at 4 (citing Am. Compl. ¶¶ 36, 70), and that Jane Does 3, 4, and 5 continue to remain uncomfortable in the IIEP office and feel their relationships with their coworkers and supervisors have been impaired, see id. at 4-5. Contrary to the defendants' assertions, the plaintiffs have shown a possibility of psychological harm from having their identity disclosed.
In addition, the Court agrees that "[p]ublic disclosure of [the p]laintiffs' private identities will compound and exacerbate the psychological trauma they have already suffered, especially in the age of the internet." Id. at 5 (citing Cabrera, 307 F.R.D. at 7 ). Compelling the plaintiffs to identify themselves by name on every court filing would make the plaintiffs' names "indefinitely available to the public," Cabrera, 307 F.R.D. at 6-7, which, "especially in the Internet age, could subject the plaintiff[s] to future unnecessary interrogation, criticism, or psychological trauma," id. Therefore, "[o]ut of grave concern that the Court could exacerbate any psychological issues the plaintiff[s are] currently experiencing, the Court finds that this factor weighs in favor of anonymity." Id. at 7.
3. Whether the Plaintiff's Privacy Interests Require the Protection of Pseudonyms in Light of Age
Where victims are not minors, courts are generally less inclined to let the alleged victim proceed in litigation under a pseudonym. See Yaman v. U.S. Dep't of State, 786 F.Supp.2d 148, 153 (D.D.C. 2011) (citing Doe # 1 v. Von Eschenbach, Civ. Action No. 06-2131 (RMC), 2007 WL 1848013, at *2 (D.D.C. June 27, 2007) ); see also De Amigos LLC, 2012 WL 13047579, at *2 (recognizing that children are more vulnerable than adults and so children need more protection of their privacy interests). Here, the plaintiffs are not minors, nor were they minors when the alleged incidents occurred. See Am. Compl. ¶¶ 24, 37, 46, 71, 83.
The plaintiffs nevertheless argue that this factor "favors allowing [them] to pursue this lawsuit as Jane Does" because they "have just reached the age of majority, and are young, vulnerable college students." Pls.' Mem. at 5. Furthermore, the plaintiffs allege that "[d]isclosure of their identities could have irreversible harm to their ability to get into graduate schools and their career prospects." Id. And, it is true that "young adult college student[s] may be more susceptible to scrutiny from peers than an older adult would be." De Amigos LLC, 2012 WL 13047579, at *2. However, while "[a] young person who has attained legal adulthood may have room to grow in maturity, [they] still [have] surpassed the age at which protected status is typically accorded." Sandberg, 319 F.Supp.3d at 429. As the defendants correctly note, without further evidence, the plaintiffs' positions as to this factor is "pure speculation, and is unsupported by any facts or logic." Defs.' Opp'n at 10. Therefore, this factor does not favor the plaintiffs' use of pseudonyms. See, e.g., Cabrera, 307 F.R.D. at 7 ("Where victims are not minors, courts are generally less inclined to let the alleged victim proceed in litigation under a pseudonym."); Yaman, 786 F.Supp.2d at 153 (concluding that a court is more likely to allow pseudonymous litigation when it involves the privacy interests of minor children).
4. Whether the Action is Against a Governmental or a Private Party
In assessing whether pseudonymous litigation is appropriate, courts should also consider whether an accused defendant is a governmental entity or a private party. This consideration is "significant because governmental bodies do not share the concerns about reputation that private individuals have when they are publicly charged with wrongdoing." De Amigos LLC, 2012 WL 13047579, at *3 (internal quotation marks and citation omitted); see also Yaman, 786 F.Supp.2d at 153 (finding action brought against private party weighs against anonymity). This factor weighs against allowing the plaintiffs to use pseudonyms because the defendants are private litigants, who presumably have concerns about their respective reputations.
The plaintiffs concede that "this factor may not support [their] use of pseudonyms." Pls.' Mem. at 5-6. Nevertheless, they claim that GW "is the second largest employer in the District of Columbia" and that "GW is current[ly] being investigated by the Department of Education for Title IX violations, such as those alleged in this case." Id. And for these reasons, they argue that "given its size as an institution and the mere facts that it is already under investigation for Title IX violations," there is a "lesser concern that its reputation will be damaged." Id. at 6. The Court is not persuaded by these arguments. Neither GW's size, nor any other investigations that may be taking place impact the potential for reputational damage from this litigation. Therefore, this factor also weighs against the plaintiffs' use of pseudonyms.
5. Whether Permitting the Use of Pseudonyms is Unfair to the Defendants
"Courts generally find little to no risk of unfairness to an accused defendant in sexual assault cases where discovery does not appear to be inhibited by the plaintiff's desire to proceed anonymously." Cabrera, 307 F.R.D. at 8 (collecting cases). The defendants argue that this factor "strongly supports the [d]efendants' position because of the public statements of [the p]laintiffs' counsel." Defs.' Opp'n at 10. The defendants claim that allowing the plaintiffs to proceed pseudonymously will make "witnesses [ ] likely to be reluctant to come forward ... to testify truthfully in ways that support the defendants[,]" id. at 11, and that they will be "prejudiced ... to the extent that [the d]efendants are limited in using [the p]laintiffs' actual names in third-party subpoenas, depositions, and interviews," id."But this is nothing more than conjecture at best." Cabrera, 307 F.R.D. at 8.
The Court concludes that this factor weighs in favor of anonymity because it would not be unfair to the defendants if the plaintiffs continued under pseudonyms for pretrial purposes. The identities of the plaintiffs are already known to the defendants from the plaintiffs' reports to Renner, the ODECE, and other GW employees. See Am. Compl. ¶¶ 58, 97, 99, 101, 103, 107, 110, 113. Furthermore, the defendants would not be prejudiced during discovery. See De Amigos LLC, 2012 WL 13047579, at *3 (finding any unfairness in conducting third-party discovery "minimal" to the defendant where the plaintiff "already disclosed her identity" to the defendant). The defendants have already started to conduct discovery and have collected email correspondence involving two of the Jane Does. See Defs.' 2d Mem., Exhibit ("Ex.") A (Email from Jane Doe 3 to GW's Title IX office); id., Ex. B (Email from Jane Doe 3 to Director Chen); id., Ex.C (Email from a Title IX Investigator to a Jane Doe).
The defendants rely on this Court's decision in Cabrera in support of their argument. As the defendants correctly state, this Court in Cabrera was not dissuaded from permitting the plaintiff to proceed anonymously by "the concerns of unfair publicity ... because (1) the defendant's counsel publicly responded to the allegations, and (2) the plaintiff had not 'shared' the details of the assault with more than " 'a few close friends and family members.' "
Defs.' Opp'n at 11 (quoting Cabrera, 307 F.R.D. at 9 n.14 ). As an initial matter, as in Cabrera, the Court is "deeply concerned and troubled by the public statement made by the plaintiff[s' counsel]-presumably with the plaintiff[s'] consent-to the media after the plaintiff[s] filed the complaint." Cabrera, 307 F.R.D. at 9. And, the defendants suggest that the absence of the two "elements" found to be convincing in Cabrera should dissuade the Court from permitting the plaintiffs to proceed anonymously. However, the defendants' reliance on Cabrera to support this argument is misguided because, contrary to their suggestion, both "elements" exist in the present case. Although the "[d]efendants' counsel has made no public comments," Defs.' Opp'n at 11, the defendants themselves have responded in the media, see Defs.' Opp'n, Ex. A (Washington Post article); id. Ex. B (Washington Post article and three anonymous comments); id., Ex. C (GW Hatchet article). The Court finds that by their statements to the media, the defendants have vitiated their right to claim media coverage as unfairly prejudicial. In addition, the defendants argue that unlike the plaintiff in Cabrera, who told no one about the assault "[a]side from a very few close friends and family members," Cabrera, 307 F.R.D. at 9 n.14, the plaintiffs here have "freely shared their allegations with a group of eleven co-workers," Defs.' Opp'n at 11. However, the "extent of [these] disclosures does not reel in the public at large, and these disclosures ... were necessary to help [the plaintiffs] cope and move on." Cabrera, 307 F.R.D. at 9 n.14 (citation omitted). Therefore, like in Cabrera, the Court is not dissuaded from permitting the plaintiffs in this case to proceed anonymously because despite the media coverage, the plaintiffs' identities have not been revealed to the public by the media. Accordingly, "the [plaintiffs'] interest[s] in maintaining [their] anonymity remains a valid concern. Id. at 9. Because the defendants have not demonstrated that they will be prejudiced at this stage of the litigation by permitting the plaintiffs to proceed anonymously, this factor weighs in favor of allowing the Plaintiffs to proceed under the pseudonyms of Jane Does 1 to 5.
Accordingly, considering the sensitive and highly personal nature of this case; the risk of psychological harm to the plaintiffs if the plaintiffs' names are made public; and the minimal, if any, unfairness that the plaintiffs' anonymity would cause the defendants, the Court finds that the plaintiffs have demonstrated a legitimate basis for proceeding anonymously and will permit the five plaintiffs to proceed under the pseudonyms Jane Does 1 to 5 throughout the pretrial stages of this case. However, "if [ ] a trial is ultimately needed to resolve th[e] dispute[s in this case], then the defendant[s'] ability to receive a fair trial will likely be compromised if the Court allows the plaintiff[s] to continue using [ ] pseudonym[s]." Cabrera, 307 F.R.D. at 10 (footnote omitted) (citation omitted). Therefore, "if this case proceeds to trial, the plaintiff[s] will not be allowed to use [ ] pseudonym[s]." Id. at 10 (citation omitted). Because the Court concludes that the plaintiffs may proceed at this time under the pseudonyms Jane Does 1 to 5, the Court denies as moot the defendants' motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and turns to the defendants' Rule 12(b)(6) motion.
B. The Defendants' Motion to Dismiss
1. Count I - Hostile Work Environment in Violation of the D.C. Human Rights Act
The defendants move to dismiss the hostile work environment claims of only Jane Does 1 and 3, arguing that the plaintiffs' allegations do not rise to the level of extreme conduct necessary for viable hostile work environment claims. See Defs.' 2d Mem. at 17-21. The Court disagrees and finds that the plaintiffs have pleaded sufficient allegations from which the Court can plausibly infer that Jane Does 1 and 3 were subjected to a hostile work environment.
To establish a prima facie case for a hostile work environment claim, a plaintiff must show:
(1) that [s]he is a member of a protected class, (2) that [s]he has been subjected to unwelcome harassment, (3) that the harassment was based on membership in the protected class, and (4) that the harassment is severe and pervasive enough to affect a term, condition, or privilege of employment.
Campbell-Crane & Assocs., Inc. v. Stamenkovic, 44 A.3d 924, 933 (D.C. 2012) (quoting Daka, Inc. v. Breiner, 711 A.2d 86, 92 (D.C. 1998) ). "When an employee sues an employer under the [D.C. Human Rights Act] for the discriminatory actions of a fellow employee, the plaintiff-employee must also present sufficient proof to hold the employer liable under the doctrine of respondeat superior." Daka, 711 A.2d at 92 n.15 (citing Howard Univ. v. Best, 484 A.2d 958, 982-83 (D.C. 1984) ). "Although a plaintiff need not plead a prima facie case of hostile work environment in the complaint, the 'alleged facts must support such a claim.' " McKeithan v. Boarman, 803 F.Supp.2d 63, 69 (D.D.C. 2011) (quoting Middlebrooks v. Godwin Corp., 722 F.Supp.2d 82, 90-91 & n.6 (D.D.C. 2010) ). In order to defeat a Rule 12(b)(6) motion, the plaintiffs are "not required to allege each element of their claim in their Complaint," Tucker v. Howard Univ. Hosp., 764 F.Supp.2d 1, 9-10 (D.D.C. 2011), but rather are required to "plead factual content" that would allow the Court "to draw the reasonable inference that the defendant[s]
[are] liable for the misconduct alleged," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
A work environment is considered "hostile" only when it is "permeated with 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." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (internal quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ). In determining whether a work environment is sufficiently "hostile," the Court must look at the totality of circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. 367.
In support of their argument for dismissal, the defendants cite a number of cases from this district, but those cases are either legally or factually inapposite. The defendants chiefly rely on Tucker v. Johnson, 211 F.Supp.3d 95 (D.D.C. 2016) ; Kennedy v. Nat'l R.R. Passenger Corp., 139 F.Supp.3d 48 (D.D.C. 2015) ; Lancaster v. Vance-Cooks, 967 F.Supp.2d 375 (D.D.C. 2013) ; Bergbauer v. Mabus, 934 F.Supp.2d 55 (D.D.C. 2013) ; Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83 (D.D.C. 2007) ; and Carter v. Greenspan, 304 F.Supp.2d 13, 25 (D.D.C. 2004), to support their claim that "[f]ar worse allegations have been found insufficient to state a hostile-environment claim," see Defs.' 2d Mem. at 17-18. However, the defendants ignore a critical difference between the appropriate standards governing motions to dismiss and motions for summary judgment that courts are required to apply in evaluating whether an alleged hostile work environment falls within the scope of the D.C. Human Rights Act. In fact, the district courts in some of the cases cited by the defendants were not deciding motions to dismiss-which only require that factual allegations be plausible such that they raise the "right to relief above the speculative level," Twombly, 550 U.S. at 555, 127 S.Ct. 1955, but rather were resolving motions for summary judgement, see Tucker, 211 F.Supp.3d at 98-99 ; Kennedy, 139 F.Supp.3d at 56 ; Bergbauer, 934 F.Supp.2d at 68 ; Akonji, 517 F.Supp.2d at 89 ; see also Lancaster, 967 F.Supp.2d at 379 (applying motion for summary judgment standard although the defendant moved to dismiss, or in the alternative, for summary judgment); Carter, 304 F.Supp.2d at 17 (same), which are granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The remaining cases cited by the defendants as exemplars of hostile work environment claims that have been dismissed at the motion to dismiss stage are factually inapposite to this case. The Court agrees with the plaintiffs that those cases were dismissed because they "did not allege a specific, severe, and pervasive hostile work environment," Pls.' Opp'n at 11, but instead "relied on vagaries, insinuations, and circumstances that fell well below the allegations made by Jane Doe[ ] 1," id. Here, in reviewing the totality of the circumstances, the Court finds that the plaintiffs, at the motion to dismiss stage, have satisfied their burden that the alleged conduct was sufficiently severe and pervasive such that it created a hostile work environment. Cf. Holmes-Martin v. Leavitt, 569 F.Supp.2d 184, 193 (D.D.C. 2008) (denying motion to dismiss hostile-work-environment claim because the plaintiff "alleged some conduct in support of her claim" and noting that the plaintiff must plead facts that "support," not "establish," that claim)
With respect to Jane Doe 1, the Amended Complaint alleges several instances of harassment based on her gender by Jones and Renner within a seven-month period. First, it states that in October 2017, Jones texted Jane Doe 1 at 2:18 a.m., stating, "oh my god you're so hot." Am. Compl. ¶ 48. Jones thereafter allegedly invited Jane Doe 1 to come to his house and after she declined, purportedly stated "maybe we could go out another time." Id. ¶ 49. Second, the Amended Complaint asserts that in December 2017 Jones attended Jane Doe 1's performance "over [her] protestations that he not," id. ¶ 53, and then "again asked Jane Doe 1 on a date," a request that she also declined, id. ¶ 54. Third, it claims that Jones "openly discussed his sexual exploits in the workplace." Id. ¶ 64. The Amended Complaint also alleges that Renner, on multiple occasions, "touch[ed] the small of Jane Doe 1's back ... without her permission," id. ¶ 61, and that the "touch was sexual and inappropriate," id. Assuming the truth of the plaintiffs' allegations and viewing them in the light most favorable to the plaintiffs as the Court is required to do, the Court finds that these allegations plausibly support Jane Doe 1's claim that Jones's and Renner's conduct was "sufficiently severe or pervasive to alter the conditions of the [Jane Doe 1's] employment and create[d] an abusive working environment." Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks and citation omitted). Accordingly, the Court declines to dismiss Jane Doe 1's hostile work environment claim at this stage of the proceedings.
With respect to Jane Doe 3, the Amended Complaint alleges that Renner subjected Jane Doe 3 to a hostile work environment by (1) touching her "arm or shoulder," Am. Compl. ¶ 73; (2) "frequently [ ] reach[ing] over [ ] [her] to type on her keyboard while she remain[ed] seated," id.; (3) "routinely comment[ing] on [ ] [her] clothing," id.; (4) dismissing "Jane Doe 3's recommendations in front of the staff" and instead "gave preferential treatment to [her male] co-team leader," id. ¶ 75; and (5) on one occasion, asking "Jane Doe 3 when she intended to get married and have kids," id. ¶ 76. While the Court notes that these allegations are concededly neither specific nor severe, the plaintiffs allege a series of incidents that, considered together and accepted as true, are "sufficiently continuous and concerted to be considered pervasive." Akonji, 517 F.Supp.2d at 98 (citing Carrero v. N.Y.C. Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989) ); see also Burrell v. Shepard, 321 F.Supp.3d 1, 13 (D.D.C. 2018). Therefore, the Court concludes that Renner's conduct was sufficiently pervasive to produce a "constructive alteration in the terms or conditions of [Jane Doe 3's] employment," Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ; see also Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014) (explaining that severity and pervasiveness "are complementary factors and often go hand-in-hand, but a hostile work environment claim c[an] be satisfied with one or the other"). Accordingly, the Court must deny the defendants' motion to dismiss with respect to Jane Doe 3's hostile work environment claim as well.
2. Count II - Retaliation in Violation of the D.C. Human Rights Act
The D.C. Human Rights Act provides:
It shall be an unlawful discriminatory practice to coerce, threaten, retaliate against, or interfere with any person in the exercise or enjoyment of, or on account of having exercised or enjoyed, or on account of having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected under this chapter.
D.C. Code § 2-1402.61(a). To establish a prima facie case of retaliation under the D.C. statute, a plaintiff must show "(1) that [s]he engaged in a statutorily protected activity; (2) that [s]he suffered a materially adverse action by h[er] employer; and (3) that a causal link connects the two." Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). As another member of this Court has explained:
[T]here is a difference between "adverse actions" that support a claim for discrimination and "materially adverse actions" that support a claim for retaliation. Unlike discriminatory actions, retaliatory actions need not be employment-related or even occur in the workplace, nor must they result in "a materially adverse change in the terms or conditions of one's employment." Nonetheless, the alleged retaliatory action must produce "an injury or harm." The injury or harm must be "material," meaning that it could "dissuade a reasonable worker from making or supporting a charge of discrimination."
Nurriddin v. Bolden, 40 F.Supp.3d 104, 116 (D.D.C. 2014) (internal alterations and citations omitted); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Although actions that result in objectively tangible harm are certainly more likely to dissuade a reasonable worker from pursuing a claim than "petty slights, minor annoyances, and simple lack of good manners," Burlington N., 548 U.S. at 68, 126 S.Ct. 2405, "the significance of any given act of retaliation," and therefore its potential to deter discrimination complaints, "will often depend upon the particular circumstances," id. at 69, 126 S.Ct. 2405. Thus, under certain circumstances, an action may be materially adverse even if no tangible harm results. See Mogenhan v. Napolitano, 613 F.3d 1162, 1165-66 (D.C. Cir. 2010) (applying Title VII retaliation claim standard to an Americans with Disabilities Act claim).
To establish a causal connection between the engagement in a protected activity and the retaliatory action-in the absence of direct evidence-a plaintiff may show "that the employer had knowledge of the employee's protected activity, and that the discriminatory [or retaliatory] personnel action took place shortly after that activity." Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000). While mere temporal proximity between an employee's protected activity and the retaliatory action can sometimes raise an inference of causation, such proximity must be "very close." Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that the temporal connection must be "very close": a three- or four-month period between an adverse action and protected activity is insufficient to show a causal connection, and a twenty-month period suggests "no causality at all"). Although "neither the Supreme Court nor the [this Circuit] has established a bright-line three-month rule," Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C. Cir. 2012), this Circuit has found that such a gap between the protected activity and the adverse employment action negates the temporal proximity needed to prove causation, see Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009) (rejecting interval of two and a half months as establishing temporal proximity "on the record [in this case]").
Although the Amended Complaint contains only one count of retaliation, within that count, the plaintiffs allege that they suffered four discrete acts of retaliation, see Am. Compl. ¶ 123 ("[The d]efendants retaliated against [the p]laintiffs by forcing them to work from home, disciplining them, reducing their hours, and terminating them from their employment with GW."), and also that they were subjected to a hostile work environment as retaliation for engaging in protected activity, see id. ¶ 124 (alleging that "[t]he harassing, reckless, wrongful, willful[,] and malicious treatment of the [p]laintiffs ... is retaliation with[in] the meaning of the D.C. Human Rights Act."). The defendants challenge the plaintiffs' retaliation claims on the basis that the alleged actions do not constitute materially adverse actions. Defs.' 2d Mem. at 23-28. Because "each retaliatory adverse [ ] decision constitutes a separate actionable 'unlawful employment practice,' " Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Court will analyze each alleged act of retaliation in turn to determine whether any of the acts amounts to a materially adverse action sufficient to state a retaliation claim.
a. Requests for the Plaintiffs to Work from Home
The plaintiffs assert that during their March 9, 2018 meeting with Renner regarding Jones's behavior, Renner "asked the [p]laintiffs to work from home," Am. Compl. ¶ 107, which they contend constituted retaliation, see Pls.' Opp'n at 18-20, 23. The defendants argue in response that "even if [the plaintiffs] had been required to work from home temporarily ..., that would not be ... a 'materially adverse action,' given that there is no allegation that the [p]laintiffs' duties, compensation, or benefits would have changed in any way." Defs.' 2d Mem. at 23 (citations omitted). The Court agrees with the defendants that asking an employee to work from home-without more-is not an adverse action per se. See id. at 23; cf.
Hornsby v. Watt, 217 F.Supp.3d 58, 66-67 (D.D.C. 2016) (holding that "the decision not to reinstate [the p]laintiff from paid administrative leave immediately ... was not a materially adverse action because it did not cause him any objectively tangible harm"); Walker v. Johnson, 501 F.Supp.2d 156, 172 (D.D.C. 2007) (finding that being sent home on paid administrative leave is not an adverse action because the plaintiff could not show objectively tangible harm resulting from the paid leave); see also Franklin v. Potter, 600 F.Supp.2d 38, 72 (D.D.C. 2009) (finding that "being sent home without pay ... would satisfy a prima facie case for a