Ervin v. District of Columbia

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KAREN ERVIN, et al.,

Plaintiffs,

v. Civil Action No. 23-3678 (RDM)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs Karen Ervin, Brandy Smith, and Diana Walker, three employees of the

Metropolitan Police Department (“MPD”), bring this suit against the District of Columbia

alleging a widespread practice of sexual harassment and retaliation, condoned and facilitated by

the MPD’s Equal Employment Opportunity (“EEO”) office and others within the MPD. In

addition to asserting claims based on Plaintiffs’ own alleged experiences of sexual harassment

and retaliation, Plaintiffs Ervin and Smith also seek to bring claims on behalf of classes of MPD

employees and officers challenging the MPD’s alleged pattern or practice of permitting

systematic sexual harassment. See generally Dkt. 30 (2d Am. Compl.). The District moves to

dismiss in part, seeking dismissal of Plaintiffs’ individual retaliation claims brought under Title

VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq., and the D.C. Human Rights

Act (“DCHRA”), D.C. Code § 2-1401.01 et seq., as well as the class action claims. See

generally Dkt. 34. The District does not move to dismiss Plaintiffs’ individual claims of sexual

harassment brought under Title VII and the DCHRA.

For the following reasons, the Court will GRANT in part and DENY in part the

District’s partial motion to dismiss.

I. BACKGROUND

A. Factual Background

The Court accepts the following factual allegations, taken from Plaintiffs’ second

amended complaint, see Dkt. 30 (2d Am. Compl.), as true for the purpose of resolving the

pending motion to dismiss. See Gordon v. U.S. Capitol Police, 778 F.3d 158, 163–64 (D.C. Cir.

2015).

1. Ervin Allegations

Plaintiff Karen Ervin began working for the MPD as a civilian employee in 1998.1 Dkt.

30 at 16 (2d Am. Compl. ¶ 92). In 2008, when she was working in customer service in the

Second District, she was involuntarily transferred to the First District after filing an EEO

complaint against an MPD lieutenant and, despite her civilian employee status, was written up

for “conduct unbecoming an officer.”2 Id. at 16–17 (2d Am. Compl. ¶¶ 93–95). In 2020, Ervin

began working alongside MPD Lieutenant Andre Suber in the First District. Id. at 18 (2d Am.

Compl. ¶ 110). While a sergeant, Suber had previously been accused of sexual harassment by

his subordinate MPD Officer Tameka Hampton in 2007. Id. at 17 (2d Am. Compl. ¶ 99). After

Hampton reported Suber’s unwanted advances, Suber began to stalk and to intimidate her. Id.

(2d Am. Compl. ¶¶ 100–03). Hampton filed an EEO complaint through her union steward, as

well as a complaint through the D.C. Office of Human Rights. Id. at 17–18 (2d Am. Compl.

As described in the second amended complaint, the MPD has several classes of employees, including both sworn officers (who are members of the Fraternal Order of Police, Lodge #1, and covered by the MPD collective bargaining agreement), and civilian employees (who are governed by the D.C. employee manual). Dkt. 30 at 6–7 (2d Am. Compl. ¶ 22).

The second amended complaint alternatively refers to the MPD’s sub-units as both “divisions” and “districts.” For the sake of consistency, the Court will use “district,” which is also the term used on publicly available MPD websites.

¶¶ 104–106). The EEO case went nowhere after the MPD EEO office concluded that the claim

was unfounded. Id. at 18 (2d Am. Compl. ¶ 105). In contrast, Hampton’s D.C. Office of Human

Rights complaint resulted in a settlement under which Suber no longer served as Hampton’s

supervisor but faced no other discipline. Id. (2d Am. Compl. ¶¶ 106–07).

After Ervin and Suber began working together in the First District in 2020, Suber began

to harass Ervin in a similar manner. He “comment[ed] on [Ervin’s] physical appearance and

how much it pleased him,” and, around April–May 2020, he told Ervin that he no longer shared a

bedroom with his own wife and further attempted to “elaborate on the state of his own sex life.”

Id. at 18–19 (2d Am. Compl. ¶¶ 112, 114–17). “Ervin made clear that she was not interested in

pursuing any kind of personal or intimate exploration with [him],” at which point Suber “became

angry and hostile” and began adopting a “completely different,” “curt and harsh” tone with her.

Id. at 20 (2d Am. Compl. ¶ 121–22).

Following those interactions, Ervin and Suber had little contact for almost two years

owing to overlapping periods of injury/medical leave. Id. (2d Am. Compl. ¶¶ 123–25). In

February 2022, when they had both returned to work, however, Suber immediately resumed his

“cold, short, aggressive, sarcastic, and biting” communications style and commenced “a

campaign of tracking and harassing . . . Ervin” in an “almost identical” manner to his prior

treatment of Officer Hampton. Id. at 20–21 (2d Am. Compl. ¶¶ 125–28). Beyond tracking and

intimidating Ervin, he threatened to take (unspecified) disciplinary action against her, “putting

her on edge constantly,” and he would sit in his vehicle in the station parking lot “tracking her

movements” as she “came out of the station building” and “when she arrived at work.” Id. at 21

(2d Am. Compl. ¶¶ 130–31). One day in July 2022, when Ervin arrived slightly late to work, she

was docked an hour’s pay for tardiness, which Plaintiffs allege was attributable to Suber singling

her out for special monitoring and retaliation. Id. at 21–22 (2d Am. Compl. ¶¶ 133–38). That

same day, Ervin reported Suber to MPD Captain Kevin Harding, accusing him of sexual

harassment, bullying, and retaliation. Id. at 22 (2d Am. Compl. ¶ 139). After talking to Suber,

Harding spoke with Ervin and initially sought to make excuses for Suber’s behavior. Id. at 22–

23 (2d Am. Compl. ¶ 144). He ultimately agreed, however, to send an email to the MPD EEO

office, although that email focused on the reprimand for Ervin’s tardiness rather than the more

serious issue: Suber’s “serial sexual harassment.” Id. at 23 (2d Am. Compl. ¶¶ 145–46).

After hearing nothing for two weeks, Ervin followed up with Harding and was forwarded

an email exchange between Harding and Alphonso Lee, the Director of the MPD EEO office.

Id. (2d Am. Compl. ¶¶ 147–48). Lee had taken over the EEO office in 2017, working under

MPD Assistant Chief of Internal Affairs Wilfredo Manlapaz. Id. at 9 (2d Am. Compl. ¶ 39).

Plaintiffs allege that Lee, as a matter of office policy, “directed [his subordinates] to intentionally

undermine any complaints of sexual harassment filed by female employees.” Id. at 10 (2d Am.

Compl. ¶ 41). Beyond ordering EEO counselors/investigators to find “dirt” on complainants to

undermine their claims, Lee required that interviews with complainants be recorded and that the

counselors then play those recordings for persons named in complaints, “thus ensuring that word

would get out immediately about a complaint and encouraging and enabling retaliation against a

complainant.” Id. (2d Am. Compl. ¶¶ 45–46). Lee also instructed EEO investigators to look for

reasons to charge complainants with misconduct, which resulted in “many

complainants . . . find[ing] themselves the subject of [internal affairs] investigations immediately

after or in close proximity of time to filing EEO complaints.” Id. at 11 (2d Am. Compl. ¶ 49).

The MPD EEO office’s processing of Ervin’s complaint allegedly followed that pattern.

Ervin filed an EEO complaint in September 2022 and met with an EEO counselor for a

(recorded) interview, at which Ervin discussed Suber’s sexual advances and his retaliatory

stalking and monitoring. Id. at 23 (2d Am. Compl. ¶¶ 150–51). Even though Ervin was told that

the interview was confidential, details of her allegations soon spread among her MPD

colleagues. Id. at 24 (2d Am. Compl. ¶¶ 155, 158). Plaintiffs attribute this to Lee sharing the

content of her interview with Suber, as he routinely did for others named in EEO complaints. Id.

(2d Am. Compl. ¶¶ 156–57). Ervin was told that Suber was “on the war path” and “very angry”

about her EEO complaint, and she feared further retaliation. Id. at 24–25 (2d Am. Compl.

¶¶ 160–61). After the MPD EEO office dismissed her complaint—partly as untimely and partly

because Suber’s inappropriate comments had not been witnessed by third parties—Suber

“escalated his stalking behavior toward [Ervin], tracking her movements, appearing where she

was assigned without justification or basis, and asking others to monitor and report her activities

to find reasons to write her up for disciplinary action.” Id. at 25 (2d Am. Compl. ¶¶ 162, 165).

Ervin filed a charge with the Equal Employment Opportunity Commission (“EEOC”) in

November 2022, alleging that Suber was subjecting her to a hostile work environment because

she had rejected his sexual advances. Id. (2d Am. Compl. ¶ 167). Suber continued to “follow[]

and monitor[]” her in the following months. Id. (2d Am. Compl. ¶ 168). In January 2023, while

Ervin was in her car during her lunch break, “Suber pulled his cruiser up behind [her] car,

blocking her into her parking spot, and shined his spotlight into her car, which temporarily

blinded her.” Id. at 26 (2d Am. Compl. ¶ 170). Ervin was frightened by the incident, which she

believed was an attempt to intimidate her. Id. (2d Am. Compl. ¶¶ 172–73). Shortly afterwards,

Ervin wrote a letter to D.C. Mayor Muriel Bowser and to MPD leadership, “informing them of

the fact that MPD maintains a culture that tolerates the sexual harassment of Black women and

that she was being retaliated against because she rejected . . . Suber’s advances and because she

had engaged in protected activity.” Id. (2d Am. Compl. ¶ 174).

Ervin then received her first negative performance evaluation in over a decade in

February 2023, which she alleges was issued in retaliation for her reporting Suber’s behavior and

for her subsequent EEOC charge. Id. at 27 (2d Am. Compl. ¶ 180). Ervin appealed the

evaluation and succeeded in having it removed from her file. Id. (2d Am. Compl. ¶ 181). In

October 2023, Ervin applied for a promotion to an MPD Staff Assistant position. Id. (2d Am.

Compl. ¶ 182). Even though she was “by far the most experienced and qualified person who

applied for the position,” she was informed on January 4, 2024—a month after this lawsuit was

filed—that she had been passed over in favor of Kristen Cousins, who had 20 fewer years of

experience. Id. (2d Am. Compl. ¶¶ 183–85). Plaintiffs allege that this decision was made in

further retaliation for Ervin’s protected activity. Id. at 28 (2d Am. Compl. ¶ 187).

2. Smith Allegations

Plaintiff Brandy Smith joined the MPD as a cadet in 2019 and was assigned to the First

District as an officer in 2020.3 Id. (2d Am. Compl. ¶¶ 189–90). At the MPD academy, she was

subjected to bullying and sexual harassment, but her complaints were ignored. Id. (2d Am.

Compl. ¶¶ 191–94). Smith was serving in the First District when Suber returned to work

following his injury leave, at which point she became his next target. Id. at 29 (2d Am. Compl.

¶¶ 199–200). Suber began sexually harassing Smith by inviting her to his office for closed-door

meetings and then telling her “that he was no longer having sex with his wife and that his sexual

needs were not being met.” Id. (2d Am. Compl. ¶¶ 201–02). Suber also attempted to kiss Smith

Confusingly, the Second Amended Complaint gives both 2020 and 2021 dates for Smith’s start date in the First District. Dkt. 30 at 28–29 (2d Am. Compl. ¶¶ 190, 198).

in his office in January 2023, propositioned her to have sex in a conference room in February

2023, called her “at all hours of the day,” including when she was off duty, and stalked her

around the MPD office. Id. at 29–30 (2d Am. Compl. ¶¶ 204–07). Smith informed Suber that

she was not interested, at which point—as with Ervin—he turned hostile, began retaliating

against her “by writing her up for every little violation he could divine,” and directed his

subordinates to do the same. Id. at 30 (2d Am. Compl. ¶¶ 208–10). Suber also continued to

stalk her, denied her leave requests, and assigned her undesirable tasks. Id. (2d Am. Compl.

¶¶ 211–12). Smith required mental health counseling to deal with the stress from Suber’s

continued harassment. Id. at 31 (2d Am. Compl. ¶ 221).

Based on her understanding that the MPD EEO office had failed to respond to

employees’ complaints about Suber’s behavior in the past, Smith reached out to her union

representative to file an EEO complaint on her behalf in August 2023. Id. at 30–31 (2d Am.

Compl. ¶¶ 214–15, 223). MPD officers who were friendly with Suber then “started to ostracize

[her] for having filed a complaint.” Id. at 31 (2d Am. Compl. ¶ 225). By this time, however, the

MPD EEO office had been reorganized, with Lee reassigned to a new position and the

investigative and counseling functions moved to different MPD divisions. Id. at 31–32 (2d Am.

Compl. ¶¶ 226–28). With Lee no longer in a position to prevent an effective investigation, the

EEO office substantiated Smith’s sexual harassment claim. Id. at 32 (2d Am. Compl. ¶ 229).

Despite that determination, Smith continued to face hostile treatment from other MPD

officers. After this suit was filed, she was “cut off from working overtime [and] denied

important training opportunities,” even though she had previously been told that she would

receive Crisis Intervention Officer training and rifle training. Id. (2d Am. Compl. ¶¶ 233–34).

Her supervisors also began ordering her “to do menial tasks” and assigned her to unfavorable

patrol areas and other “dangerous assignments.” Id. at 32–33 (2d Am. Compl. ¶ 235). Finally,

in February 2024 (a few months after the commencement of this suit) Smith was involved in an

“incident” in which her vehicle was attacked and its window smashed. Id. at 33 (2d Am. Compl.

¶ 241). Smith experienced trauma following that incident and needed to take time off to manage

her stress, but the MPD denied her coverage for this work-related injury. Id. (2d Am. Compl.

¶¶ 238–40). Plaintiffs allege that Smith was unfairly “investigated” and detained by officers at

the scene, baselessly accused of “conduct unbecoming an officer and false statements,” and is

awaiting a hearing after being recommended for termination. Id. at 33–34 (2d Am. Compl.

¶¶ 237, 241, 243–45). Plaintiffs allege that the MPD response to the incident was contrived to

force Smith out of the MPD in retaliation for reporting and objecting to Suber’s sexual

harassment. Id. at 34 (2d Am. Compl. ¶ 247).

3. Walker Allegations

Plaintiff Diana Walker joined the MPD as a cadet in June 2018 and later trained as a

recruit officer. Id. (2d Am. Compl. ¶¶ 248–49). She experienced several incidents of sexual

harassment while serving at the MPD, including being asked on a date by the head of the MPD

academy following her academy graduation, being propositioned for sex at work by an MPD

detective, and being repeatedly propositioned and followed by MPD Sergeant Tracie Kenny. Id.

at 34–36 (2d Am. Compl. ¶¶ 252–65). Because she feared retaliation and knew that the MPD

tolerated such behavior, she did not report any of those incidents. Id. at 35–36 (2d Am. Compl.

¶¶ 256, 258–59, 263, 265). After going on maternity leave, Walker returned to work in January

2023 in the First District, where her direct supervisor was Lieutenant Yussouf Edwards. Id. at 36

(2d Am. Compl. ¶¶ 266–68). When he was alone with Walker, Edwards frequently made

sexually explicit comments and asked to touch her. Id. at 37 (2d Am. Compl. ¶¶ 272–75).

Walker repeatedly told Edwards that she was not interested and told him to stop, but the behavior

continued. Id. at 37–38 (2d Am. Compl. ¶¶ 276–82).

In May 2023, Walker experienced a “traumatic situation in which a civilian pulled . . . a

gun on her, and she feared for her life.” Id. at 38 (2d Am. Compl. ¶ 283). Because of the stress

of the incident, she required counseling and took time off work. Id. (2d Am. Compl. ¶¶ 284–85).

MPD Lieutenant Shade’ Harris, one of the First District’s senior officers, was assigned to write

an official report regarding the event. Id. at 36, 38 (2d Am. Compl. ¶¶ 268, 286). Plaintiffs

allege that this was procedurally irregular because Suber, not Harris, was the watch captain at the

time and should have been responsible. Id. at 38 (2d Am. Compl. ¶ 287). Harris’s report was

inaccurate (contradicting body camera footage of the event) and failed to include Walker’s own

description of what happened. Id. at 39 (2d Am. Compl. ¶¶ 288–89). Because of that “biased

and inaccurate” report, Walker’s time off following the incident was erroneously categorized as

not work-related, “which forced her to burn leave[] and disadvantaged her financially.” Id. (2d

Am. Compl. ¶ 290). Plaintiffs allege that, to retaliate against Walker, Suber directed Harris to

prepare the inaccurate report to prevent her from obtaining the paid leave to which she would

have been entitled had her absence been attributed to a work-related illness. Id. at 39–40 (2d

Am. Compl. ¶¶ 291, 300). When Walker objected, Harris refused to revise his report, and her

appeal was also unsuccessful. Id. at 40 (2d Am. Compl. ¶¶ 298–99, 302).

Following that incident, Walker also reached out to other (current and former) MPD

officers, who ultimately contacted Harding—the same MPD lieutenant to whom Ervin had

previously reported Suber’s sexual harassment. Id. at 39 (2d Am. Compl. ¶¶ 292–95). Harding

approached Walker to speak about her situation and—although Plaintiffs’ allegations are not

entirely clear—it appears that the two discussed not only Walker’s denied leave, but also the

prior sexual harassment by Edwards. Id. at 39–40 (2d Am. Compl. ¶¶ 294–96). Plaintiffs allege

that Harding, “or someone acting on his behalf,” then reached out to the MPD EEO office (at the

time still headed by Lee), which instructed Walker on how to file an EEO complaint. Id. at 40

(2d Am. Compl. ¶¶ 296–97).

B. Procedural History

Plaintiffs filed this suit against the District of Columbia in December 2023, asserting

individual claims for race and gender discrimination and retaliation under 42 U.S.C. § 1981,

Title VII, and the DCHRA. See generally Dkt. 1 (Compl.). After the District moved to dismiss

Plaintiffs’ complaint in its entirety, see Dkt. 9, Plaintiffs filed a consent motion representing that

they intended to amend their complaint to add additional Title VII and DCHRA claims (some of

which were not yet ripe, as Plaintiffs had yet to receive the right to sue letters from the EEOC)

and asking the Court to stay proceedings and toll the affected statute(s) of limitations, see Dkt.

11. The Court granted that motion, see Min. Order (Apr. 12, 2024), and Plaintiffs filed an

amended complaint in August 2024, see Dkt. 16 (Am. Compl.). In the amended complaint,

Plaintiffs asserted individual claims (brought by Smith and Ervin) for retaliation under Title VII

and the DCHRA, as well as class claims on behalf of female MPD employees and a subclass of

African American MPD employees for gender discrimination, retaliation, and race

discrimination under Title VII, the DCHRA, and Section 1981. See generally id.

This time, the District filed a partial motion to dismiss, see Dkt. 20, and the Court

permitted Plaintiffs to defer their motion for class certification until after the Court ruled on that

motion, see Min. Order (Oct. 28, 2024). The Court then dismissed the amended complaint

without prejudice under Federal Rules of Civil Procedure 8 and 12 at a hearing held on May 28,

2025. See Min. Entry (May 28, 2025); Dkt. 40 (transcript of the May 28, 2025, proceedings).

As the Court explained, even after efforts to clarify the matter with Plaintiffs’ counsel there

remained “quite a bit of confusion with respect to the gender-based claims [and] the nature of

those claims,” including whether Plaintiffs were alleging that the MPD EEO office had itself

engaged in discriminatory conduct or were instead challenging the alleged acts of harassment by

individual supervisors, as well as which specific incidents of retaliatory conduct Plaintiffs

claimed had violated the relevant statutes. Dkt. 40 at 52. The Court also noted that there was

“very little in the complaint at all about race” in support of Plaintiffs’ claims of race

discrimination. Id. The Court did, however, permit Plaintiffs to file an amended complaint with

“greater specific factual allegations” and a clearer tie between those allegations and Plaintiffs’

claims for relief under their various asserted causes of action. Id. at 52–53.

In response, Plaintiffs filed the now operative second amended complaint in August

2025. See Dkt. 30 (2d Am. Compl.). In this pleading, Plaintiffs abandon their allegations of race

discrimination and instead assert the following individual claims: First, Smith and Walker assert

claims for sexual harassment under Title VII (Counts I and II) and the DCHRA (Counts III and

IV). Id. at 41–42 (2d Am. Compl. ¶¶ 306–17). Second, Ervin, Smith, and Walker assert

individual claims for retaliation under Title VII (Counts V, VI, and VII) and the DCHRA

(Counts VIII, IX, and X), alleging that, in retaliation for their protected activity opposing sexual

harassment, they experienced both discrete actionable incidents of retaliation as well as a

retaliatory hostile work environment. Id. at 42–44 (2d Am. Compl. ¶¶ 318–29).

Plaintiffs also assert several class claims. Ervin seeks to represent a class of:

All civilian female employees who were subject to or affected by [the] MPD’s

EEO policies and practices, which had the effect of fostering a work

environment that allowed and enabled disparate treatment of female employees

via sexual harassment and retaliation, and denied them the protections of [the]

MPD’s proffered written policies.

Id. at 44 (2d Am. Compl. ¶ 330) (emphasis added). Smith seeks to represent an essentially

identical class of MPD sworn officer female employees who were similarly mistreated by the

MPD’s EEO policies and practices. Id. (2d Am. Compl. ¶ 331). In particular, Ervin asserts a

gender-based disparate treatment class claim under Title VII (Count XI) alleging that the MPD

EEO policies discriminated against women, that women’s complaints about retaliatory

harassment were not taken seriously, and that those policies created a hostile work environment

that encouraged sexual harassment and “create[d] disparate terms and conditions of employment

for women than men.” Id. at 47–49 (2d Am. Compl. ¶¶ 340–53). Ervin also asserts an identical

class claim under the DCHRA (Count XII). Id. at 49–50 (2d Am. Compl. ¶¶ 354–57). Smith

asserts equivalent class claims on behalf of Plaintiffs’ putative sworn officer female employee

class (Counts XIII and XIV). Id. at 50–52 (2d Am. Compl. ¶¶ 358–75). Plaintiffs request

$300,000 in damages for each Title VII claim, $750,000 in damages for each DCHRA claim,

further damages on behalf of the putative classes to be calculated following discovery, and

(largely unspecified) injunctive and declaratory relief. Id. at 52–53 (2d Am. Compl. ¶¶ 376–79).

Defendant once again moved to dismiss in part. See Dkt. 34. The District’s motion does

not challenge the legal sufficiency of Smith and Walker’s individual claims for sexual

harassment under Title VII and the DCHRA (Counts I–IV), but it asks that the Court dismiss the

individual retaliation claims and all of the class claims. Id. at 7–8.

II. LEGAL STANDARD

A proper complaint must contain sufficient factual material to “state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation modified). Rule 8

of the Federal Rules of Civil Procedure requires that the complaint contain a short and plain

statement of the grounds upon which the Court’s jurisdiction depends, a short and plain

statement of the claim showing that the pleader is entitled to relief, and a demand for the relief

the pleader seeks. Fed. R. Civ. P. 8(a). The purpose of the minimum standard of Rule 8 is to

give fair notice to the defendant of the claim being asserted, sufficient to prepare a responsive

answer, to prepare an adequate defense, and to determine whether the doctrine of res judicata

applies. Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977).

Motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) go beyond the

requirements of Rule 8 and “test[] the legal sufficiency of a complaint.” Browning v. Clinton,

292 F.3d 235, 242 (D.C. Cir. 2002). This examination requires the Court to “first ‘tak[e] note of

the elements a plaintiff must plead to state [the] claim’ to relief, and then determine whether the

plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that

is plausible on its face.’” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015)

(alterations in original and citation omitted) (quoting Iqbal, 556 U.S. at 675, 678). That “facial

plausibility” standard requires that “the plaintiff plead[] factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678. A plaintiff need not make “detailed factual allegations” to withstand a Rule 12(b)(6)

motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but “a complaint must contain

sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its

face,” Iqbal, 556 U.S. at 678 (citation modified). Thus, a complaint may survive a Rule 12(b)(6)

motion even if “recovery is very remote and unlikely,” but the facts alleged “must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56 (citation

modified).

III. ANALYSIS

A. Non-Complaint Materials

The Court begins with a threshold issue concerning the exhibits attached to Plaintiffs’

complaint. In addition to that complaint, Plaintiffs filed (first as an attachment to the complaint,

and then as errata in separate filings) declarations, under the penalty of perjury, from Rosemarie

Lucero, Harry Lee Carter, Jr., David L. Simmons, and Renae Lee. See Dkt. 30-1; Dkt. 31; Dkt.

32. Those declarations were originally filed in a separate case in this Court, Brinkley v. District

of Columbia, No. 21-cv-1537, in which another group of MPD employee plaintiffs (represented

by Plaintiffs’ same counsel in this case) brought a suit against the District alleging race, gender,

and age discrimination along with other claims. See generally 3d Am. Compl., Brinkley (D.D.C.

June 7, 2024), Dkt. 42. The declarants, who worked in the MPD EEO office under Lee’s

supervision, attest that Lee directed the EEO office to find ways to undermine employees who

filed EEO complaints, leaked information shared by complainants to third parties (including

persons named in EEO complaints), and bullied and retaliated against those in the EEO office

who objected. See generally Dkt. 32. Plaintiffs’ complaint in this action “reference[s] and

incorporate[s]” the allegations contained in those declarations “as if fully stated herein.” Dkt. 30

at 10 (2d Am. Compl. ¶ 44).

In its motion to dismiss, the District argues that the Court should decline to consider

those exhibits at the pleading stage because Plaintiffs’ reliance on the declarations’ “extraneous

and evidentiary material” violates Federal Rule of Civil Procedure 10. Dkt. 34 at 16–17. Rule

10 provides that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.” Fed. R. Civ. P. 10(c). In the District’s view, that provision’s

reference to a “written instrument” is limited, as the Second and Third Circuits have held, to “a

legal document that defines rights, duties, entitlements, or liabilities, such as a statute, contract,

will, promissory note, or share certificate,” rather than an affidavit. Dkt. 34 at 16–17 (quoting

Millers Cap. Ins., Co. v. Hydrofarm, Inc., No. 21-cv-321, 2022 WL 1773610, at *3 (D.D.C. June

1, 2022)); see also Smith v. Hogan, 794 F.3d 249, 254–55 (2d Cir. 2015) (holding that an

affidavit containing “a personal, narrative summary of [the plaintiff’s] experiences” did not

qualify as a “written instrument” under Rule 10(c)); Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d

Cir. 1989) (same). Plaintiffs, for their part, argue that the relevant declarations were not

proffered as “written instruments,” but instead as additional factual allegations cross-referenced

in the second amended complaint as authorized by Rule 10. Dkt. 38 at 8–9; see Fed. R. Civ. P.

10(c) (“A statement in a pleading may be adopted by reference elsewhere in the same pleading or

in any other pleading or motion.”).

The Court agrees with the District that the Federal Rules contemplate that Plaintiffs

should include factual allegations of the type contained in the disputed declarations in the body

of the complaint itself, rather than in narrative attachments labeled as exhibits. See Fed. R. Civ.

P. 10(b) (“A party must state its claims or defenses in numbered paragraphs, each limited as far

as practicable to a single set of circumstances.”). There is no reason that the assertions contained

in such narrative attachments could not be set forth as allegations in the body of the complaint,

which would avoid any question as to whether counsel’s certification under Rule 11 applies to

those allegations and would permit opposing counsel to comply with Rule 8’s requirement to

admit or deny each factual allegation. And to the extent that including the narrative assertions in

the complaint itself would run afoul of Rule 8’s requirement that the complaint contain “a short

and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2) (emphasis added), that is just the point;

incorporating lengthy attachments by reference undermines the purpose of Rule 8. But, as

Defendant acknowledges, the D.C. Circuit has never held that an affidavit or declaration cannot

qualify as a “written instrument” under Rule 10(c), see Dkt. 34 at 16, and decisions in this

District routinely consider “documents attached as exhibits or incorporated by reference in the

complaint” when resolving a motion to dismiss. Atchison v. U.S. Dist. Cts., 190 F. Supp. 3d 78,

93 (D.D.C. 2016) (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119

(D.D.C. 2011)); see also Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir.

2015) (“Federal Rule of Civil Procedure 10(c) permits a plaintiff to attach an exhibit to the

complaint, rendering the exhibit ‘part of the pleading for all purposes.’”).

More importantly, unlike in the cases that the District invokes, Plaintiffs are not using the

declarations to pursue “a legal theory that appears nowhere on the face of the [operative

complaint].” Smith, 794 F.3d at 255. The essential contentions of the declarations—that, under

Lee, the MPD EEO office worked to undermine and to discredit reports of discrimination—are

already included as factual allegations within Plaintiffs’ complaint. See, e.g., Dkt. 30 at 10–11

(2d Am. Compl. ¶¶ 45–48) (alleging that Lee “intervened in EEO investigations to ensure that

complainants were disbelieved,” played recordings of EEO interviews “for the targets of the

investigation, thus ensuring that word would get out immediately about a complaint and

encouraging and enabling retaliation against a complainant,” and “required his investigators to

probe the backgrounds of complainants to find reasons to discredit them and/or reasons to

investigate the complainants for misconduct”); id. at 48–49 (2d Am. Compl. ¶¶ 344–350)

(alleging that the MPD EEO office maintains a policy of violating complainants’ confidentiality,

“investigating,” “intimidating,” and “attacking the[] credibility” of female complainants, and

otherwise ignoring sexual harassment complaints). Even if the Court, therefore, were to ignore

the more detailed allegations of the MPD EEO office’s practices contained in the declarations, it

would not affect the disposition of the present motion because the Court would nonetheless

accept the equivalent allegations within the complaint itself and proceed on that basis.

Finally, Plaintiffs clearly incorporate each and every allegation contained in the

declarations “as if fully stated” in the complaint itself. Id. at 10 (2d Am. Compl. ¶ 44) (emphasis

added). On the Court’s reading, this assertion does not invite any ambiguity about which

allegations Plaintiffs (and Plaintiffs’ counsel) stand by and which they do not, and it brings the

declarations within the ambit of Rule 11. It follows that little would be gained by requiring

Plaintiffs to replead at this point in the litigation. In short, although far from a model for how

others should plead—or for how Plaintiffs’ counsel should plead in the future—the Court is

unpersuaded that counsel’s shortcut in this case makes a difference.

The same is not true, however, for Plaintiffs’ general reference to the allegations in a

third case in this Court, Carter v. District of Columbia, No. 22-cv-426. In that case, employees

of the MPD EEO office, also represented by Plaintiffs’ same counsel, have asserted claims

against the District for violations of a D.C. whistleblower protection statute as well as race and

gender discrimination. See generally Am. Compl., Carter (D.D.C. June 13, 2022), Dkt. 9. In the

second amended complaint in this action, Plaintiffs note the existence of that suit and then

“reference and incorporate all of the factual allegations outlined in [Carter], as if fully restated

herein.” Dkt. 30 at 10 (2d Am. Compl. ¶¶ 41–42). Unlike the declarations discussed above,

Plaintiffs do not attach a copy of the relevant allegations from Carter to their pleadings. Such a

cursory, undeveloped reference to “all of the factual allegations outlined” in a different case does

not comport with Plaintiffs’ obligations under Rule 8, as it fails to give Defendant “fair notice of

the claim being asserted” or a reasonable “opportunity to file a responsive answer” to the various

allegations included in the Carter litigation but not referenced in Plaintiffs’ complaint here.

Brown, 75 F.R.D. at 498. Even limiting Plaintiffs’ attempted “incorporation” to the amended

complaint in that action, it is difficult to believe that every allegation in the 469 paragraphs of

that complaint is relevant (and non-extraneous) to this case. The Court, accordingly, will not

consider the pleadings in the Carter case in resolving the pending motion to dismiss.4

B. Administrative Exhaustion

The District next argues that Plaintiffs’ Title VII retaliation claims should be dismissed

insofar as they rely on discrete incidents that Plaintiffs failed timely to raise before the EEOC.

Dkt. 34 at 17–19. Here, as in other portions of the motion to dismiss, the parties’ arguments are

hampered by the lack of clarity in Plaintiffs’ allegations. After devoting 40 pages to describing

Plaintiffs’ individual experiences working for the MPD, the complaint’s specific counts of

retaliation (Counts V–X) allege only that “[a]s a result of their protected activity, Plaintiffs were

subjected to serious retaliation, both in the form of prohibited personnel actions and in the form

of a hostile work environment,” without providing any additional guidance on which of the many

allegedly “prohibited personnel actions” discussed in the narrative portion of the complaint serve

to anchor Plaintiffs’ claims. Dkt. 30 at 43 (2d Am. Compl. ¶¶ 321, 327). In response to

Defendant’s argument that several of those (possibly) alleged acts of retaliation were not timely

exhausted, Dkt. 34 at 17–19, Plaintiffs unreasonably criticize the District for “confus[ing]

allegations that are included as a factual background with allegations upon which Plaintiffs seek

a specific remedy,” Dkt. 38 at 10. But Plaintiffs’ complaint itself makes no effort to distinguish

The Court likewise will not consider any additional factual allegations included in the various attachments to Plaintiffs’ opposition to the motion to dismiss, which appear to include filings from the Carter case as well as materials from related D.C. Superior Court litigation and administrative proceedings. See Dkts. 38-1, 38-2; see also Hawkins v. WMATA, 311 F. Supp. 3d 94, 109 (D.D.C. 2018) (“It is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.” (citation modified)).

the allegations intended “to help establish the background, context, and corporate culture of [the]

MPD” from those that actually “support Plaintiffs’ claims.” Id. In the absence of any such

differentiation, the District cannot be faulted for proceeding overinclusively.

As for the merits of the exhaustion issue, Title VII ordinarily requires a plaintiff to file an

EEOC charge “within one hundred and eighty days after the alleged unlawful employment

practice occurred.” 42 U.S.C. § 2000e-5(e)(1). Defendant, however, acknowledges that

Plaintiffs’ claims benefit from a more generous 300-day deadline pursuant to a work-sharing

agreement between the EEOC and the D.C. Office of Human Rights. Dkt. 34 at 17 (citing Slate

v. Pub. Def. Serv. for the Dist. of Columbia, 31 F. Supp. 3d 277, 294–95 (D.D.C. 2014)); see also

42 U.S.C. § 2000e-5(e)(1). Although there was previously “some disagreement in the case law

about whether an employee’s eventual lawsuit is limited to claims included in the administrative

complaint or whether the employee may also bring suit for ‘claims that are like or reasonably

related to the allegations’ in the complaint,” Achagzai v. Broad. Bd. of Governors, 170 F. Supp.

3d 164, 175 (D.D.C. 2016) (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995));

see also Webster v. Del Toro, 49 F.4th 562, 568 (D.C. Cir. 2022) (declining to decide whether

Park remains good law), it is now clear that “the ‘reasonably related’ rule no longer reflects the

state of the law,” Hargrove v. AARP, 205 F. Supp. 3d 96, 119 (D.D.C. 2016) (citation modified).

As the Supreme Court has emphasized, a plaintiff must file a timely EEOC charge for each

discrete retaliatory act she wishes to challenge. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 113 (2002). A claim for a retaliatory hostile work environment, by contrast, is timely so

long as the plaintiff files an EEOC charge that is timely with respect to “any act that is part of the

hostile work environment.” Id. at 118.

To the extent that Plaintiffs seek to assert claims based on incidents that Defendant

argues were not timely exhausted before the EEOC—as opposed to merely treating those

allegations as contextual—the Court declines to resolve the administrative exhaustion question

on the present posture. As the Court has previously explained, Title VII’s exhaustion

requirement is “an affirmative defense” and Plaintiffs, consequently, “are not required to plead

exhaustion.” Achagzai, 170 F. Supp. 3d at 174. The situation might be different if Defendant

could “identify[] allegations in the complaint that effectively conceded a failure to exhaust.” Id.

But the District identifies no such defect in this case. See Dkt. 34 at 17–19; see also Dkt. 30 at 5

(2d Am. Compl. ¶¶ 11–19) (alleging that Plaintiffs Ervin, Smith, and Walker filed EEOC

charges, received right to sue letters, and timely filed suit in this Court). As a result, the Court

cannot conclude that Plaintiffs’ “failure to exhaust is evident on the face of the complaint.”

Horsey v. U.S. Dep’t of State, 170 F. Supp. 3d 256, 265 (D.D.C. 2016). Nor has Defendant

moved in the alternative for summary judgment and presented a statement of undisputed material

facts pertaining to the exhaustion issue. Cf. Achagzai, 170 F. Supp. 3d at 174–75 (“[H]ad the

[defendant] simply moved to dismiss [under an exhaustion theory] . . . it would not be entitled to

prevail at this stage of the proceeding. [The defendant] went further, however, and also moved

for summary judgment [and] submitted evidence” in support of their motion.).

The District’s motion to dismiss attaches copies of Plaintiffs’ EEOC charges as exhibits

to the motion and asks the Court to determine the timeliness and proper scope of Plaintiffs’

claims by reference to those materials. See Dkts. 34-1, 34-2, 34-3, 34-4, 34-5, 34-6. The District

does not contend that Plaintiffs categorically failed to exhaust their administrative remedies or

that this suit was not timely filed; it argues only that Plaintiffs cannot pursue any claims based on

individual acts of retaliation that were not timely exhausted in those EEOC charges. See Dkt. 34

at 17. The Court agrees with that statement of law, but it will defer resolution of the underlying

question until the parties have provided a full record as to the nature and timing of the alleged

acts of retaliation that Plaintiffs seek to challenge and to Plaintiffs’ efforts to pursue their

administrative remedies.

C. Retaliation Claims

The District also moves to dismiss Plaintiffs’ Title VII and DCHRA retaliation claims.

“Retaliation claims under the DCHRA are analyzed using the same legal framework as federal

retaliation claims under Title VII.” Murphy v. District of Columbia, 390 F. Supp. 3d 59, 72

(D.D.C. 2019) (citation modified); see also Howard Univ. v. Green, 652 A.2d 41, 45 & n.3 (D.C.

1994). Plaintiffs’ allegations supporting their Title VII and DCHRA retaliation claims are

identical, see Dkt. 30 at 42–44 (2d Am. Compl. ¶¶ 318–29), and the parties do not distinguish

between the two statutes in their briefing on the motion to dismiss, see, e.g., Dkt. 34 at 19–20;

Dkt. 38 at 15. The Court will therefore consider Plaintiffs’ Title VII and DCHRA retaliation

claims together.

“To prove unlawful retaliation [under Title VII], a plaintiff must show: (1) that he

opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse

action against him; and (3) that the employer took the action ‘because’ the employee opposed the

practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012). At the pleading stage, a

plaintiff need not establish a prima facie case of retaliation, Bynum v. District of Columbia, 424

F. Supp. 3d 122, 129 (D.D.C. 2020), but must “allege[] facts that, taken as true, render [a] claim

of retaliation plausible,” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015).

Plaintiffs proffer two theories of retaliation in their complaint: first, that they experienced

discrete acts of retaliation and, second, that they were subjected to a retaliatory hostile work

environment. Dkt. 30 at 43 (2d Am. Compl. ¶¶ 321, 327). The Court addresses each in turn.

1. Acts of Retaliation

As with the issue of administrative exhaustion, the parties’ briefing on Plaintiffs’ claims

of individual acts of retaliation is confused owing to Plaintiffs’ failure to indicate in the operative

complaint which of the many incidents described therein allegedly qualify as materially adverse

actions. Lacking such guidance, the District understandably attempts to respond to each of the

events discussed in that pleading. See, e.g., Dkt. 34 at 20–22. Plaintiffs unreasonably criticize

the District for seeking to “dismiss[] claims Plaintiffs are not making” and then maintain,

without further explanation, that the complaint is “abundantly clear” as to which incidents are

alleged to constitute discrete acts of retaliation and which support Plaintiffs’ claims of a

discriminatory hostile work environment or are merely contextual background information. Dkt.

38 at 15.

Given this posture, the Court’s analysis proceeds as follows. In every instance in which

Plaintiffs simply do not respond to Defendant’s arguments concerning a specific act mentioned

in the complaint that Plaintiffs might—or might not—intend to treat as a discrete act of

retaliation, the Court will grant the motion to dismiss on the grounds that, either, Plaintiffs must

not intend to treat the act as a discrete act of retaliation, or Plaintiffs have forfeited that portion of

their claim. See Colindres v. U.S. Dep’t of State, 71 F.4th 1018, 1025 (D.C. Cir. 2023) (a party

forfeits an argument by failing to address it in an opposition to a motion to dismiss). For those

incidents in which Plaintiffs do respond, the Court will assess whether Plaintiffs have alleged

facts sufficient to state a plausible claim of retaliation.

a. Ervin

In the motion to dismiss, the District identifies five possible acts of retaliation:

(1) Ervin’s November 2022 negative performance evaluation; (2) her November 2022 loss of pay

for tardiness; (3) her monitoring by Suber (including the January 2023 incident where he pulled

up behind Ervin’s car and shined a spotlight into it); (4) her being subjected to threats of

discipline and investigations into her conduct; and (5) her denial of a promotion to Staff

Assistant. Dkt. 34 at 20. Plaintiffs’ opposition to the motion to dismiss addresses only the

promotion, Dkt. 38 at 16–17, and the Court will, as discussed above, grant the motion to dismiss

as to the other incidents.

As for the denial of the promotion, the District argues that Plaintiffs’ claim fails because

they have not “plausibly allege[d] that [Ervin] was either qualified for the position to which she

applied or more qualified than the selected applicant.” Dkt. 34 at 21. “To establish a prima facie

case of unlawful retaliation based on a failure to hire, [a] plaintiff must show . . . that he applied

for an available job and was qualified for that position.” Amiri v. Securitas Sec. Servs. USA, Inc.,

35 F. Supp. 3d 41, 46 (D.D.C. 2014). But, as the Court explained above, a plaintiff is not

required to make out a full prima facie case for retaliation at the pleading stage.

Here, Plaintiffs have alleged enough—albeit just enough—to give rise to a plausible

inference of retaliation and thus to survive the District’s motion to dismiss. The District argues

that Plaintiffs’ allegations that Ervin was “by far the most experienced and qualified person who

applied for the [Staff Assistant] position” are conclusory and need not be credited. Dkt. 30 at 27

(2d Am. Compl. ¶ 183); Dkt. 34 at 22. Although that contention is colorable, the Court must

read the complaint as a whole and in the most favorable light to Plaintiffs. In addition to alleging

in admittedly conclusory terms that Ervin was the most experienced and qualified candidate,

Plaintiffs also allege that she had twenty years more experience than the candidate who was

selected, that Ervin had previously spoken with MPD management about the position and been

told something to the effect that she was likely “in a good position to get the promotion,” that she

was nonetheless never even given the opportunity to interview, and that the promotion decision

was made shortly after Plaintiffs filed this suit. Dkt. 30 at 27 (2d Am. Compl. ¶¶ 183–86).

Taken together, these allegations suffice at this early stage of the proceeding.

Plaintiffs will need substantially more evidence to carry their burden at summary

judgment, but the Court will deny the motion to dismiss as to Ervin’s claim that the failure to

promote was retaliatory.

b. Smith

The District’s motion to dismiss identifies six possible bases for Smith’s retaliation

claims, including (1) her changes in assignments; (2) her denial of training opportunities; (3) her

denial of leave requests; (4) her denial of overtime opportunities; (5) “unspecified disciplinary

writeups;” and (6) the MPD’s response to the February 2024 incident where her vehicle was

attacked. Dkt. 34 at 22. Plaintiffs’ opposition discusses only the lost overtime opportunities,

Dkt. 38 at 17–18, and the Court will, accordingly, grant the motion to dismiss as to the other

incidents.

On the overtime issue, Plaintiffs allege, without any further detail, that “[o]nce the

instant lawsuit was filed, [Smith] was cut off from working overtime.” Dkt. 30 at 32 (2d Am.

Compl. ¶ 233). Plaintiffs do not allege a single instance in which Smith requested overtime but

was denied that opportunity, much less the date, location, or persons involved. Nor do they offer

any other contextual information about the alleged act of retaliation. Other than the perfunctory

allegation that Smith was denied overtime, Plaintiffs have thus failed to plead any “factual

details regarding the circumstances, occurrences, and events underlying the adverse employment

action[s]” that they seek to challenge. Badwal v. Bd. of Trs. of Univ. of D.C., 139 F. Supp. 3d

295, 311 (D.D.C. 2015) (citation modified). As a result, the Court cannot determine from the

complaint whether the alleged denial of overtime opportunities, however it was effected,

plausibly was undertaken in retaliation for this suit or for any other protected activity. Because

such a “naked assertion[] devoid of further factual enhancement” does not suffice to state a claim

for relief, the Court will grant the motion to dismiss as to Smith’s discrete acts of retaliation

claims. Iqbal, 556 U.S. at 678 (citation modified). The Court will do so, however, without

prejudice and will permit Plaintiffs promptly to file a third amended complaint that provides the

missing content.

c. Walker

The District’s motion to dismiss treats Walker’s discrete acts of retaliation claim as

proceeding from the allegedly inaccurate report of the May 16, 2026, incident, which resulted in

the misclassification of her absence, Dkt. 34 at 24–25, and Plaintiffs’ opposition also addresses

only that incident, Dkt. 38 at 18. Defendant assumes that the misclassification, which forced

Walker to use personal leave for an absence that would otherwise have been covered as a workrelated illness, qualifies as materially adverse but argues that Plaintiffs have not plausibly alleged

that this misclassification was causally related to Walker’s protected activity. Dkt. 34 at 25. The

Court agrees.

Although the precise timing is not entirely clear, the complaint alleges that sometime in

early May 2023, after MPD Lieutenant Edwards had made sexually explicit comments to Walker

and tried to touch her, she told him that “she was not interested in a romantic or sexual

relationship with him.” Dkt. 30 at 37–38 (2d Am. Compl. ¶¶ 272–82). She then experienced the

incident involving an armed civilian on or about May 16, 2023, and MPD Lieutenant Harris

wrote the allegedly inaccurate report of the incident on or about May 17. Id. at 38 (2d Am.

Compl. ¶¶ 283, 286). Plaintiffs’ theory appears to be that Suber ordered Harris to prepare the

inaccurate report to retaliate against Walker for her opposition to Edwards’s sexual harassment,

knowing that the report would unjustly cause Walker to lose coverage for her leave. See id. at 40

(2d Am. Compl. ¶ 300). But, as the District emphasizes, Plaintiffs do not allege, let alone

support with any specific factual allegations, that Harris or Suber had any knowledge of

Walker’s interactions with Edwards. Dkt. 34 at 25. Moreover, the only fact that Plaintiffs allege

in support of their supposition that Suber, rather than Harris (the listed author), was responsible

for the report’s conclusion, is that “Suber was the watch captain, and it was his duty to write up

the incident.” Dkt. 30 at 38 (2d Ad. Compl. ¶ 287). Given this context, mere temporal

proximity between Walker’s conversation(s) with Edwards and the subsequent report is not

enough to create a plausible inference that Suber was aware that Edwards had sexually harassed

Walker and that to retaliate against her for rebuffing Edward’s advances, Suber (who had his

own history of sexual harassment) ensured that Walker would be charged for taking time off, but

hid his involvement in this retribution by directing Harris to write a report that reached a

conclusion that Suber had pre-ordained. See Twombly, 550 U.S. at 555–56.

The Court will therefore grant the motion to dismiss as to Walker’s claims for individual

acts of retaliation.

2. Hostile Work Environment

In addition to their claims of discrete retaliatory actions, Plaintiffs also claim that they

were subjected to hostile work environments in retaliation for their protected activity. Dkt. 30 at

43 (2d Am. Compl. ¶¶ 321, 327). In their opposition to the motion to dismiss, Plaintiffs

withdrew Walker’s hostile work environment claims, but they continue to defend the allegations

by Ervin and Smith.5 Dkt. 38 at 19.

In several places, Plaintiffs’ opposition relies on exhibits attached to that brief to support Plaintiffs’ retaliatory hostile work environment claims. As explained above, the Court will not consider those materials in resolving the pending motion because they were not included as factual allegations in the operative complaint.

“To prevail on a hostile work environment claim, a plaintiff must show that his employer

subjected him to discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011) (“Baird I”) (citation

modified). In considering whether the alleged misconduct rises to the level of a hostile work

environment, the Court considers the “totality of the circumstances, including the frequency of

the [alleged] discriminatory conduct, its severity, its offensiveness, and whether it [allegedly]

interfere[d] with an employee’s work performance.” Baloch v. Kempthorne, 550 F.3d 1191,

1201 (D.C. Cir. 2008) (citation modified). The bar for demonstrating a hostile work

environment is “a high one.” Nichols v. Young, 248 F. Supp. 3d 1, 9 (D.D.C. 2017). The

analysis includes a subjective standard, which asks whether the plaintiff “subjectively

perceive[d] the environment to be abusive,” and an “objective” component, which is evaluated

“from the perspective of a reasonable person in the plaintiff’s position.” Peters v. District of

Columbia, 873 F. Supp. 2d 158, 188 (D.D.C. 2012) (citation modified) (first quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993); and then quoting Oncale v. Sundowner Offshore

Servs., 523 U.S. 75, 81 (1998)). As the Supreme Court has observed, the “demanding” standard

for hostility ensures that “Title VII does not become a general civility code” and serves to “filter

out complaints attacking the ordinary tribulations of the workplace.” Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (citation modified). A hostile work environment, if

demonstrated, can amount to a separate, actionable incident of unlawful retaliation under Title

VII. Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006).

a. Ervin

The District argues that Ervin fails to state a claim for a hostile work environment

because her allegations are largely conclusory and otherwise turn on general disagreements with

“work-related actions” by supervisors. Dkt. 34 at 27 (citing Brooks v. Grundmann, 851 F. Supp.

2d 1, 7 (D.D.C. 2012)). Ervin first alleges that, after she rejected Suber’s sexual advances

sometime around May 2020, Suber “became angry and hostile” and used a “curt and harsh” tone

with her. Dkt. 30 at 20 (2d Am. Compl. ¶ 122). Once the two were working together again in

February 2022 (following their overlapping periods of leave), Suber continued to employ a

“cold, short, aggressive, sarcastic, and biting” communication style, id. (2d Am Compl. ¶ 127);

“began a campaign of tracking and harassing [Ervin], placing himself in her presence as much as

possible,” id. at 21 (2d Am. Compl. ¶ 128); and “made threats to Plaintiff Ervin or to others

about disciplinary action he was planning to take against [her],” id. (2d Am. Compl. ¶ 130).

Later, after Ervin had engaged with the EEO process, Suber became “very angry” about her EEO

complaint, id. at 24 (2d Am. Compl. ¶ 160), and “escalated his stalking behavior toward [Ervin],

tracking her movements, appearing where she was assigned without justification or basis, and

asking others to monitor and report her activities to find reasons to write her up for disciplinary

action,” id. at 25 (2d Am. Compl. ¶ 165).

For the most part, those general allegations are conclusory and omit any details of any

individual instance of Suber’s harassing behavior. They fail to include the factual allegations

required plausibly to allege that Suber’s unspecified conduct was “sufficiently severe or

pervasive to alter the conditions of the victim’s employment.” Baird I, 662 F.3d at 1250

(citation modified). Merely “characteriz[ing] Defendant’s behavior” as harassing or

intimidating, without “alleg[ing] specific facts sufficient to support a hostile work environment

claim,” is not enough to carry Plaintiffs’ burden. Ahuja v. Detica, Inc., 742 F. Supp. 2d 96, 104

(D.D.C. 2010).

The complaint does, however, include some more concrete allegations relevant to Ervin’s

hostile work environment claim. Ervin alleges that Suber frequently sat in his car in the MPD

parking lot to track her arrival to work and then reported her for tardiness when she “was

uncharacteristically slightly late” on one occasion in July 2022. Dkt. 30 at 21 (2d Am. Compl.

¶¶ 131, 133). Then, after Ervin had filed an EEOC charge, Suber pulled his car behind her

during her lunch break on January 4, 2023, and shined a spotlight into her vehicle to “intimidate”

Ervin and to “sen[d] the message that [he] was still tracking [Ervin] and was watching her

actions.” Id. at 26 (2d Am. Compl. ¶¶ 170–72). Ervin also received a negative performance

evaluation in February 2023 (in which Suber does not appear to have played a direct role), id. at

27 (2d Am. Compl. ¶ 180), but succeeded in appealing it, id. (2d Am. Compl. ¶ 181), and she

was then denied the promotion to the Staff Assistant position, id. (2d Am. Compl. ¶ 185).

Beyond the conclusory characterizations of Suber’s unspecified behavior, Plaintiffs thus allege

that Suber monitored Ervin’s comings and goings from the parking lot, accurately reported her

for tardiness on one day in July 2022, and confronted her with a spotlight in January 2023; and

they further allege that Ervin received a negative performance evaluation (with no lasting

effects) in February 2023 and was denied a promotion.

These incidents, although troubling, are insufficient to make out a plausible claim of a

hostile work environment. The allegations related to the citation (and pay docking) for tardiness

and the negative performance evaluation (as well as the failure to promote, insofar as Plaintiffs

seek to use that incident to buttress a hostile work environment claim), involve “work-related

actions by supervisors,” which are typically insufficient for a hostile work environment claim.

Brooks, 851 F. Supp. 2d at 7 (citation modified). And the singular incident in the parking lot,

while plausibly “frighten[ing],” Dkt. 30 at 26 (2d Am. Compl. ¶ 173), and certainly creepy, is not

enough, without more, to allege a “pattern of behavior” amounting to a hostile work

environment, Tyes-Williams v. Whitaker, 361 F. Supp. 3d 1, 8 (D.D.C. 2019).

The Court will accordingly grant the motion to dismiss Ervin’s hostile work environment

claim.

b. Smith

The District offers similar arguments against Smith’s claim for a retaliatory hostile work

environment. Dkt. 34 at 27–28. Plaintiffs allege that, after Smith opposed Suber’s sexual

harassment, “he did a total 180-degree flip in terms of the way he treated her,” Dkt. 30 at 30 (2d

Am. Compl. ¶ 208), including by “writing her up for every little violation he could divine” and

directing his subordinates to do the same, id. (2d Am. Compl. ¶¶ 209–10). Suber also stalked

her, “denied [her] leave requests, [and] assigned her to undesirable tasks and duties.” Id. (2d

Am. Compl. ¶¶ 211–12). After she asked a union representative to file an EEO complaint, other

MPD officers “ostracize[d] [her] for having filed a complaint,” id. at 31 (2d Am. Compl. ¶ 225),

and, following her EEOC charge, she was denied overtime (as discussed above) as well as

training opportunities, despite having been “told that she would be the next person to go to Crisis

Intervention Officer training, and rifle training,” id. at 32 (2d Am. Compl. ¶ 234). Her

supervisors began “ordering Plaintiff to do menial tasks that others were spared, assigning her to

the least favorable areas to patrol, and most dangerous assignments, and hyper-scrutinizing

everything that she did.” Id. at 32–33 (2d Am. Compl. ¶ 235). Finally, Plaintiffs allege that

Smith was unfairly investigated for the February 2024 incident where her vehicle was attacked.

Id. at 33–34 (2d Am. Compl. ¶¶ 237–44).

As with Ervin, many of those allegations—such as the references to Suber stalking her,

being assigned undesirable tasks and assignments, being ostracized, and being subject to hyperscrutiny—are conclusory and insufficiently specified to give rise to a plausible inference that

Smith experienced a hostile work environment that materially altered her terms and conditions of

employment. The denial of Crisis Intervention Officer and rifle training opportunities, while

supported with more detailed factual allegations, also fail to clear the bar. Such incidents might

possibly support a claim for a discrete act of retaliation, see Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 69 (2006) (suggesting that exclusion from training activities that

“contribute[] significantly to the employee’s professional advancement” could support a

retaliation claim), but, as discussed above, Plaintiffs do not argue that the lost training

opportunities so qualify, Dkt. 38 at 17–18. Instead, they seek to rely on the trainings as part of a

hostile work environment claim. “[T]his jurisdiction,” however, “frowns on plaintiffs who

attempt to bootstrap their alleged discrete acts of retaliation into a broader hostile work

environment claim.” Boone v. MountainMade Found., 64 F. Supp. 3d 216, 240 (D.D.C. 2014)

(citation modified).

The same is true for Plaintiffs’ (largely unspecified) objections to the investigation of the

attack on Smith’s vehicle and for Plaintiffs’ apparent attempts in their opposition to the motion

to dismiss to connect Defendant’s alleged efforts to terminate Smith to the hostile work

environment claim before this Court. See Dkt. 38 at 23–24. Plaintiffs are free to argue that

Smith was terminated in retaliation for her protected activity, but that does not transform the

District’s alleged efforts to do so into a hostile work environment under the Harris standard.

Plaintiffs’ only remaining non-conclusory allegations—that Smith was denied two training

opportunities and, and a later point, investigated for conduct unbecoming an officer in

connection with the vehicle incident—do not amount to the pervasive “discriminatory

intimidation, ridicule, and insult” necessary to state a claim for a hostile work environment,

Kempthorne, 550 F.3d at 1201 (quoting Harris, 510 U.S. at 21).

The Court will accordingly grant the motion to dismiss as to Smith’s hostile work

environment claim as well.

D. Class Claims

Plaintiffs Ervin and Smith also assert four (essentially identical) class claims under both

Title VII and the DCHRA, brought on behalf of the MPD’s female civilian and sworn officer

employees, respectively, who have suffered sexual harassment and retaliation. See Dkt. 30 at 44,

47–52 (2d Am. Compl. ¶¶ 330–31, 340–75). Once again, the parties’ presentation of these

claims is complicated by Plaintiffs’ failure to elucidate the nature of their claims. As a

consequence, the District’s motion to dismiss and Plaintiffs’ response to the motion largely talk

past each other. Because Plaintiffs’ complaint does not present a single, coherent description of

the class claims at issue, the Court will begin by summarizing Plaintiffs’ allegations and will

then discuss their varying potential interpretations.

As discussed above, Ervin and Smith seek to represent classes of MPD employees “who

were subject to or affected by [the] MPD’s EEO policies and practices, which had the effect of

fostering a work environment that allowed and enabled disparate treatment of female employees

via sexual harassment and retaliation, and denied them the protections of [the] MPD’s proffered

written policies.” Id. at 44 (2d Am. Compl. ¶¶ 330–31). When outlining the alleged “[c]ommon

questions of law and fact” underpinning the class claims, Plaintiffs primarily focus on the work

of the MPD EEO office. Id. at 45 (2d Am. Compl. ¶ 334). Their identified common questions

include whether Lee’s management of the EEO office “violated the privacy of [complainants],

and encouraged retaliation against complainants;” “created a chilling effect [that] sabotaged

otherwise legitimate sexual harassment and retaliation claims;” “caused [the] MPD to reject

otherwise legitimate sexual harassment claims;” “caused female employees to be subjected to

sexually hostile work environments without recourse;” and ultimately “subjected [female

employees] to disparate terms and conditions of employment because of the work culture created

by the cumulative effect of [Lee’s] actions and directives.” Id. at 45–46 (2d Am. Compl. ¶ 334).

Plaintiffs state that the named Plaintiffs are representative of the putative class members

“because they were victimized by sexual harassers who were emboldened by [the] MPD’s EEO

policies and practices.” Id. at 46 (2d Am. Compl. ¶ 335).

Plaintiffs’ four enumerated class claims (Counts XI–XIV) are captioned “Disparate

Treatment Discrimination Based on Gender,” or “Disparate Treatment Based on Gender” in

violation of Title VII and the DCHRA. Id. at 47, 49–50, 52 (2d Am. Compl.). Taking Ervin’s

Title VII class claim (Count XI) as an example, as the four claims are generally identical,

Plaintiffs identify the MPD’s “EEO policies and practices, as described above, as specific

policies that discriminate against women” and allege that those policies “caus[ed] legitimate

complaints from women to be ignored and rejected.” Id. at 48 (2d Am. Compl. ¶¶ 342–43).

After discussing the alleged defects of the EEO office in more detail, including its violations of

complainants’ confidentiality and its efforts to investigate and undermine complainants,

Plaintiffs allege “that the cumulative effect of [the] MPD’s policies and practices[] created a

workplace environment in which men[] such as [Suber] were encouraged and emboldened to

engage in sexual harassment” and likewise “create[d] an environment where women are

devalued, ignored, intimidated and marginalized.” Id. at 48–49 (2d Am. Compl. ¶¶ 344–50).

Ervin further alleges “that the reason she endured retaliation and a hostile work environment at

[the] MPD after she rejected the sexual advances of her supervisor, is because of the cumulative

effect of [the] MPD’s EEO policies, which create disparate terms and conditions of employment

for women than men.” Id. at 49 (2d Am. Compl. ¶ 351). Finally, the complaint alleges that the

EEO office’s “policies and practices not only harmed those who complained, but they harmed

women who were too afraid or intimidated to complain as well.” Id. (2d Am. Compl. ¶ 352).

Given their breadth and lack of specificity, Plaintiffs’ class claims are subject to multiple

understandings. Perhaps the most natural reading, given the complaint’s repeated references to

the MPD’s EEO policies, is that Plaintiffs’ claims center on their alleged mistreatment by the

MPD EEO office. One possibility is that Plaintiffs allege that the EEO office failed to take their

complaints of sexual harassment seriously or effectively to investigate their complaints because

of their sex, subjecting them to adverse treatment based on a protected characteristic in violation

of Title VII and the DCHRA. See id. at 49 (2d Am. Compl. ¶ 351) (alleging that the MPD

Department’s policies “create[d] disparate terms and conditions of employment for women than

men”). The difficulty with this theory, however, is that Plaintiffs fail to identify the disparate

treatment—that is, the discrimination with respect to a term or condition of employment—that

the class members are alleged to have suffered because of their sex. They have not alleged that

men who complained of sexual harassment received a fair hearing before the EEO office, while

women did not. Instead, they simply allege that the office did not do its job. The job, of course,

was to prevent and to redress discrimination of all types. But the Court cannot conflate an

underlying claim of discrimination, which involves the denial of an employment opportunity or

benefit based on the victim’s sex, and a challenge to the work of the EEO office, which might

foster or permit the underlying discrimination to take place but which, at least as alleged, does

not itself distinguish between male and female victims. In other words, as far as the Court can

discern, Plaintiffs do not allege that the opportunity for a fair investigation of an EEO complaint

is the employment benefit at issue and that this benefit was denied based on the sex of the

employee.

This failure is particularly notable given that Plaintiffs’ class claims appear to include

Title VII pattern or practice claims. In a pattern or practice claim, a plaintiff may bring a class

action claim challenging disparate treatment by alleging “that an observed disparity is the

systemic result of an employer’s intentionally discriminatory practices.” Segar v. Smith, 738

F.2d 1249, 1267 (D.C. Cir. 1984). If a plaintiff can establish that such a discriminatory practice

“was the [defendant’s] standard operating procedure,” then every member of the protected class

subjected to that practice “will be presumptively entitled to relief.” Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 336, 362 (1977). Plaintiffs asserting such claims must bring them

in the posture of a class action, see Marcus v. Geithner, 813 F. Supp. 2d 11, 20 (D.D.C. 2011),

and typically must allege statistical evidence or analogous proof to make out a plausible claim of

a practice of disparate treatment, see Frazier v. Stanley, No. 16 Civ. 804, 2018 WL 11585450, at

*11 (S.D.N.Y. Nov. 29, 2018) (collecting cases). Plaintiffs have included no such evidence, be it

statistical or collections of anecdotes, that the MPD EEO office maintained a discriminatory

policy that disadvantaged female employees who brought EEO complaints relative to men who

did the same. To the contrary, the exhibits attached to Plaintiffs’ complaint suggest that the EEO

office displayed similar hostility to employees who brought claims based on disability, race, or

age rather than gender. Dkt. 30-1 at 13–17 (Carter Aff. ¶¶ 46–49, 61, 63, 71–72). Moreover,

those exhibits claim that, under Lee, the EEO office “did not allow a single claim of

discrimination or retaliation to be substantiated” on any grounds whatsoever, rather than singling

out female complainants in particular. Id. at 17 (Carter Aff. ¶ 73).

This leads to a second potential gloss on Plaintiffs’ class claims; perhaps Plaintiffs’ class

claims seek to challenge the EEO office’s failure properly to investigate their reports of sexual

harassment. The problem with such a claim, as the District emphasizes in the motion to dismiss,

is that Title VII does not provide a general cause of action to challenge “the responsiveness of

human resources departments.” Baird v. Gotbaum, 792 F.3d 166, 171 (D.C. Cir. 2015).

Plaintiffs are free to bring Title VII (or DCHRA) actions challenging the sex-based

discrimination and/or retaliation that they were subjected to as MPD employees, and they may

also challenge their employer’s failure to remediate such incidents as itself an act of

discrimination or retaliation. Id.; see also Baird I, 662 F.3d at 1249. Plaintiffs, however, do not

plausibly allege that the handling of their EEO complaints was discriminatory for the reasons

explained above, and do not frame any of their class claims as challenging retaliatory treatment

by the MPD EEO office.

Beyond those possibilities, Title VII does not create “an independent cause of action for

the mishandling of an employee’s discrimination complaints.” Douglas-Slade v. Lahood, 793 F.

Supp. 2d 82, 96 (D.D.C. 2011) (citation modified and collecting cases). At most, a competent

EEO office can provide the employer with an affirmative defense against a Title VII claim

challenging a sexually discriminatory practice, such as sexual harassment. See Taylor v. Solis,

571 F.3d 1313, 1318 (D.C. Cir. 2009). That does not render the absence of an effective EEO

process into a separate, actionable Title VII violation absent plausible allegations that the EEO

office’s failures were themselves discriminatory or retaliatory.

In their opposition to the District’s motion to dismiss—which, as discussed above, argues

that Plaintiffs have not plausibly alleged that the MPD EEO office disfavored female

complainants, and that Title VII does not otherwise provide for a general challenge to the EEO

office’s efficacy, see Dkt. 34 at 29—Plaintiffs seem to disclaim any direct challenge to the EEO

office’s treatment of their own sexual harassment complaints, see Dkt. 38 at 28 (“Plaintiffs are

not alleging that Defendant owed them investigation of their own claims.” (emphasis in

original)). Instead, Plaintiffs appear to characterize their class claims as focusing on their

mistreatment by their own supervisors and colleagues, with the EEO office’s failure to protect

them only being a contributory factor to the work culture that is the direct object of their claims.

Plaintiffs cite the D.C. Circuit’s opinion in Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981),

where the court held that an individual claim for sexual harassment was actionable under Title

VII if that harassment was the employer’s “standard operating procedure” and thereby created a

“substantially discriminatory work environment” that altered the plaintiff’s “conditions of

employment,” id. at 943–44 (citation modified); see Dkt. 38 at 25–28 (discussing Bundy).

It is uncontroversial that Plaintiffs may seek relief under Title VII for their own

experiences of sexual harassment. Indeed, Smith and Walker have brought individual claims for

sexual harassment in this case, see Dkt. 30 at 41–42 (2d Am. Compl. ¶¶ 306–17), which the

District has not sought to dismiss. But that does not resolve the nature of Plaintiffs’ separate

class claims. Insofar as Plaintiffs are contending that the complaint is best read to assert claims

on behalf of a class of MPD employees who were subject to sexual harassment by predatory

supervisors such as Suber (a reading that is, at a minimum, highly debatable), that

characterization only raises further difficulties.

First, as the District emphasizes, Plaintiffs have represented that Ervin, who is listed as

the class representative for the MPD civilian employee class claims, “does not bring allegations

of sexual harassment” based on her own experience at the MPD. Dkt. 38 at 12. In fact, it is

highly unlikely that Ervin could timely raise any claims at this juncture based on Suber’s sexual

harassment, which apparently ceased around May 2020. Dkt. 30 at 19–20 (2d Am. Compl.

¶¶ 115, 121–22). This failure would be fatal for any potential Title VII sexual harassment class

action claim spearheaded by Ervin, as Title VII requires that “at least one named plaintiff” timely

exhaust their administrative remedies to bring a class claim. Thomas v. Reno, 943 F. Supp. 41,

43 (D.D.C. 1996) (citing Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395

(D.C. Cir. 1988)).

Second, even if the Court were to construe the complaint as alleging that the MPD

maintained a pattern or practice of subjecting female employees to sexual harassment as a

“standard operating procedure,” Teamsters, 431 U.S. at 336, and were to assume that Ervin and

Smith could serve as named plaintiffs for such a claim, the Court would still dismiss the class

claims under Rule 12(b)(6). Beyond conclusory, undeveloped allegations that the MPD

“adopted a policy of total indifference to sexual harassment,” Dkt. 30 at 14 (2d Am. Compl.

¶ 74), the operative complaint contains only isolated allegations of sexual harassment (or

incidents possibly involving sexual harassment) over a period of sixteen years. Notably, some of

these events occurred before Lee’s tenure at the EEO office, which presents yet another

complication for Plaintiffs’ efforts to connect them to the EEO office’s practices involving

discrediting complainants that are discussed—and attributed to Lee—in their amended

complaint.

Specifically, Plaintiffs allege that an unnamed female officer complained about being

touched by an unnamed male officer at a firing range in Maryland in 2022, id. at 12 (2d Am.

Compl. ¶¶ 61–62); that Ervin filed an EEO complaint (for unspecified reasons) against an

unnamed lieutenant in 2008, id. at 16 (2d Am. Compl. ¶ 94); that Suber sexually harassed Officer

Hampton in 2007, id. at 17 (2d Am. Compl. ¶¶ 99–101); that Suber sexually harassed Ervin in

2020, id. at 18–19 (2d Am. Compl. ¶¶ 111–15); that Smith was sexually harassed by unnamed

cadets at the MPD academy around 2019, id. at 28 (2d Am. Compl. ¶ 193); that Suber sexually

harassed Smith around 2022–23, id. at 29 (2d Am. Compl. ¶¶ 200–05); that an unnamed training

officer made an unspecified “lewd comment” to Walker around 2019, id. at 34 (2d Am. Compl.

¶ 251); that Walker received social media messages from MPD Commander Ennis commenting

on her appearance and asking her on a date, id. at 34–35 (2d Am. Compl. ¶¶ 252–53); that

Walker was propositioned by an unnamed MPD detective in 2021, id. at 35 (2d Am. Compl.

¶ 257); that Walker was propositioned by MPD Sergeant Kenny at unspecified times, id. at 35–

36 (2d Am. Compl. ¶ 260–61); and that Walker was sexually harassed by Edwards around 2023,

id. at 37–38 (2d Am. Compl. ¶¶ 271–79). The Court does not doubt the seriousness of those

allegations and does not question that many of those incidents could potentially give rise to

individual claims for sexual harassment under Title VII or the DCHRA of the kind that Smith

and Walker have asserted in this litigation. But a Title VII pattern or practice claim requires

“more than the mere occurrence of isolated or accidental or sporadic discriminatory acts,” and

Plaintiffs must therefore allege facts that “give rise to a plausible inference of a regular practice”

of sexual harassment by MPD supervisors and colleagues. See Townsend v. United States, 236

F. Supp. 3d 280, 306 (D.D.C. 2017) (citation modified) (quoting Teamsters, 431 U.S. at 336).

Alleging around 10 incidents of sexual harassment (ranging from a lewd comment to physical

touching) involving a half-dozen perpetrators (many without any description or explanation

beyond a perfunctory allegation that the sexual harassment occurred) over a sixteen-year period

at an organization with hundreds of senior officers and thousands of other employees is not

sufficient to create a plausible inference that female employees across the MPD are subjected to

unlawful sexual harassment as a matter of course.6 See Frazier, 2018 WL 11585450, at *11–12

The Court takes judicial notice of the fact that, according to the MPD’s 2023 Annual Report, the police force included 2,647 officers and detectives, 375 sergeants, 130 lieutenants, 41 captains, and 35 commanders, in addition to civilian employees. Metropolitan Police Department, 2023 Annual Report 50 (2024), available at https://perma.cc/FTV7-3J9E.

(discussing how, for a larger organization, a higher number of alleged incidents is required

plausibly to allege a discriminatory pattern or practice).

Plaintiffs’ failure to state a claim based on an unlawful pattern of sexual harassment at

the MPD stands in sharp contrast to the allegations concerning the functioning of the MPD EEO

office. If the Court were asked to assess whether Plaintiffs plausibly had alleged that the EEO

office, as a standard operating procedure, refused to carry out good faith investigations of

complaints of discrimination and instead sought to discredit MPD employees who filed

complaints, its answer may well be different. But, as explained above, Title VII does not

recognize a cause of action for pattern or practice claims alleging that an EEO office was

incompetent or even actively malicious in its treatment of all complaints of discrimination.

Instead, Title VII permits Plaintiffs either to challenge the EEO office’s alleged practices as

discriminatory or retaliatory in and of themselves or to challenge the underlying misconduct

(while invoking the EEO office’s indifference to hold the agency responsible for the misdeeds of

individual employees). Plaintiffs have disclaimed the first theory, and their allegations fail to

state a pattern or practice claim with respect to the second theory.

Finally, the Court pauses to address one other potential framing of Plaintiffs’ class action

claims (albeit one not addressed in either party’s briefing). Portions of the operative complaint

arguably portray Plaintiffs’ injuries as stemming not from their sexual harassment, but from the

hostile treatment they experienced in retaliation for reporting sexual harassment to the EEO

office. See Dkt. 30 at 3 (2d Am. Compl. ¶ 5) (describing the class as including female

employees who were “retaliated against for opposing sexual harassment” and suffered “disparate

terms and conditions of employment due to Defendant’s hostility towards women who

complained of sexual harassment”); see also id. at 49 (2d Am. Compl. ¶ 351) (alleging, as part of

the class claim, that Ervin “endured retaliation and a hostile work environment at MPD after she

rejected the sexual advances of her supervisor . . . because of the cumulative effect of [the]

MPD’s EEO policies”). Rather than directly alleging an environment pervaded by sexual

harassment, then, Plaintiffs’ class claims might arguably be construed as alleging that a class of

women were subjected to hostile retaliatory treatment after they reported sexual harassment,

facilitated by the EEO office’s policy of leaking complainants’ information.

To be sure, this is not the most straightforward reading of Plaintiffs’ class claims, which,

among other things, are captioned as discrimination claims rather than retaliation claims. The

District’s motion to dismiss understandably does not address this theory, and Plaintiffs do not

reference it in their own opposition. But this framing does at least involve an (arguably)

identifiable MPD pattern or practice of targeting employees who made EEO complaints, which is

alleged to have been pervasive under Lee’s leadership.

The Court will, nonetheless, grant the motion to dismiss insofar as the second amended

complaint can be construed as asserting that claim. First, the Court has already dismissed

Plaintiffs’ claims of retaliatory hostile work environments (and most of Plaintiffs’ discrete acts

of retaliation claims), which complicates any effort to treat Ervin or Smith as named plaintiffs for

analogous class claims. Second, the complaint lacks adequate specificity as to the nature of any

retaliation experienced by any person at the MPD other than the three individual plaintiffs in this

case. It does not, as a consequence, give rise to a plausible inference that the MPD has

maintained a pattern or practice of subjecting employees who file EEO complaints to hostile

work environments, beyond the EEO office’s own failure properly to investigate their claims.

In conclusion, the Court reiterates that it does not question that Plaintiffs plausibly have

alleged that they experienced severe sexual harassment while serving in the MPD or that the

MPD EEO office failed to respond to their (and other) complaints in good faith. Nor should the

Court’s holding be read to suggest that Plaintiffs seeking to bring Title VII pattern or practice

claims must, before they have been given the opportunity to conduct discovery, include the

specific details of every alleged incident of sexual harassment. Here, however, Plaintiffs have

both failed to allege a pattern of similar incidents extending beyond the individual claims

presented in their complaint and, more seriously, to connect those additional incidents to any

colorable claim or legal theory asserted by the named plaintiffs in this matter. Plaintiffs do not

allege facts that might, for example, connect the few additional incidents mentioned in the

complaint—let alone any hypothetical pattern of pervasive sexual harassment at the MPD—to

the direct perpetrators’ understanding or belief that Lee would look the other way, thus

prompting them to engage in brazen misconduct. Indeed, as the preceding discussion should

make clear, it is difficult to discern from the second amended complaint precisely what MPD

pattern or practice Plaintiffs seek to connect to any pervasive discriminatory results they might

allege occurred. If Plaintiffs wish to proffer a third amended complaint that sufficiently

identifies an individual pattern or practice of the MPD that they wish to challenge on a classwide basis and that they can connect to a class-wide injury, and if they can explain why the

named Plaintiffs here are eligible to bring such a claim, they may promptly file a motion for

leave to amend.

The Court will therefore grant the motion to dismiss Plaintiffs’ class claims.

CONCLUSION

For the foregoing reasons, Defendant’s partial motion to dismiss, Dkt. 34, is hereby

GRANTED in part and DENIED in part.

SO ORDERED.

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

Date: July 24, 2026

Ervin v. District of Columbia

Authorities cited

Opinion · public domain