Discrimination Claim Against Washington Post Revived Over Dissent

The District of Columbia Court of Appeals reinstated a lawsuit against The Washington Post and of its several editors

Felicia M. Sonmez, a national news reporter employed by The Washington Post, sued the Post and six of its editors in Superior Court for violations of the D.C. Human Rights Act and for the common law tort of negligent infliction of emotional distress. Her complaint asserted that the defendants unlawfully discriminated against her on the basis of both her status as a victim of a sexual offense and her gender by taking specific adverse employment actions against  her and by subjecting her to a hostile work environment; and that the defendants unlawfully retaliated against her after she protested their discriminatory actions.

Defendants moved to dismiss and for anti-SLAPP treatment 

The Superior Court denied the special motion to dismiss on the ground that Sonmez’s claims did not arise from speech triggering the protections of the Anti-SLAPP Act. However, the court granted the Rule 12(b)(6) motion, as it concluded, inter alia, that the complaint failed to plausibly allege that the defendants’ challenged actions were motivated by unlawful discrimination or that the defendants retaliated against her because she protested such discrimination. Sonmez has appealed the dismissal of her Human Rights Act claims; she has not appealed the dismissal of her common law cause of action. The defendants have cross-appealed the denial of their special motion to dismiss.

Held

In this opinion, we conclude that Sonmez’s claims do not arise from “acts in furtherance of the right of advocacy on issues of public interest” within the meaning of the Anti-SLAPP Act. We therefore affirm the denial of the special motion to dismiss her complaint. We also conclude that Sonmez’s complaint does plausibly allege that the defendants discriminatorily took certain adverse employment actions against her in violation of the Human Rights Act; these actions included, in particular, the imposition of restrictions on Sonmez’s reporting assignments and a negative performance evaluation that affected her compensation. However, we conclude that the complaint does not plausibly allege that the defendants subjected Sonmez to a hostile work environment or that they retaliated against her in violation of the Human Rights Act because she protested discriminatory treatment. We acknowledge the defense argument that the restrictions imposed on Sonmez’s writing assignments were editorial decisions made to ensure reader confidence in the objectivity of the Post’s reporting, and therefore were within the protection of the First Amendment. However, at this stage of the litigation, before discovery has commenced, we conclude it is premature to decide whether the Post’s stated reasons are supported by evidence and whether the defendants are entitled to invoke the First Amendment to justify their decisions. We leave that issue open at this time.

Accordingly, we reverse the dismissal of the count in Sonmez’s complaint charging the defendants with adverse action discrimination, while we affirm the dismissal of her hostile work environment and retaliation claims.

According to the allegations of the complaint, prior to coming to the Post

Before the Post hired Sonmez as a reporter, she worked as a journalist in Beijing, China, and was a member of the Foreign Correspondents Club of China (“FCCC”). The President of the FCCC was Jonathan Kaiman, a male journalist who was the Beijing Bureau Chief for the Los Angeles Times. Sonmez alleges that, on September 16, 2017, after the FCCC’s annual summer party, Kaiman sexually assaulted her “while she was too intoxicated to consent.” Three days later, Kaiman allegedly apologized to her for his behavior. Sonmez did not report the sexual assault to the police, and for some time she did not tell anyone about it.

The controversy involves her ban on reporting on the Supreme Court nomination of Brett Kavanaugh after publishing over 140 stories concerning claims of sexual misconduct

On September 16, 2018, the Post broke the news of Christine Blasey Ford’s sexual assault accusation against Judge Kavanaugh. Sonmez was assigned to report on the story along with two of her colleagues and to “anchor” the next day’s coverage. Although Sonmez “found it difficult to read about Ford’s accusations given her own history of assault,” she went for a walk around the block “to collect herself” and then returned to work on the assignment. The article that Sonmez cowrote appeared on the front page of the Post the next day. Sonmez received positive feedback from the Post’s Congress Editor for her work on the story.

But later

At the meeting, the editors informed Sonmez that she was barred from writing on the Kavanaugh story until further notice. (Sonmez refers to this restriction as the “first ban” imposed on her by the Post.) In explanation, the editors linked the “ban” to what Sonmez had told Wallsten the previous day about her initial reaction upon learning of the accusations against Judge Kavanaugh, which Ginsberg said were “too similar” to Sonmez’s allegations against Kaiman. The editors also expressed dissatisfaction with Sonmez’s statement regarding the L.A. Times investigation. Later, Ginsberg would claim the ban was ordered by the Post’s executive editor, Martin Baron, who did not interact with Sonmez directly during these events.

Later the ban was allegedly reimposed

In August 2019, Reason Magazine published an article about Kaiman and the sexual assault allegations that had been made against him. The article was highly critical of Sonmez and the other woman who had complained about Kaiman. It described the “injustice” Kaiman had suffered from the effect of their accusations on his life and career trajectory. The complaint states that after this article appeared, “dozens” of abusive and threatening messages targeting Sonmez were posted online. The messages included comments calling her “evil,” urging her to kill herself, and stating that if any women deserved to be raped, she and Kaiman’s other accuser did.

She responded with a number of Twitter posts

Up to this point, none of Sonmez’s editors had raised any objections to her Twitter posts. But the following day, September 4, 2019, Ginsberg and Montgomery informed Sonmez that the Post was again suspending her indefinitely from covering any #MeToo-related stories. Sonmez refers to this as the “second ban.” As in the case of the first ban, the complaint alleges that Ginsberg reportedly claimed it was Baron who made the decision to impose the second ban. Sonmez “vehemently protested the ban for essentially the same reasons” she had protested the earlier ban, but to no avail. Once again, Sonmez was forced to explain repeatedly to her assignment editors and colleagues that she was prohibited from covering #MeToorelated stories because she was a victim of a sexual offense and had spoken out.

Further alleged conduct followed her tweets after the death of Kobe Bryant

Sonmez alleges that due to the bans on her reporting and the other discriminatory conduct she endured, she suffered not only economic loss and deprivation of professional opportunities, but also constant humiliation and embarrassment, and considerable mental and emotional distress. “At various times,” Sonmez alleges, she “became severely depressed, developed intense anxiety and received treatment from therapists and psychiatrists who she continues to see,” and she was prescribed anti-depressant medications. She “also experienced physical pain, including severe pain in her jaw from grinding her teeth at night” and developed temporomandibular joint disorder requiring her to undergo two oral surgery procedures to relieve the pain. When the Post lifted the second ban, the Post’s Guild issued a statement that took note of its harsh impact on Sonmez. “We’re glad to see The Post reverse its harmful stance and allow our colleague Felicia Sonmez to do her job,” the Guild said. “But this decision,” it added, “came only after much public criticism and at the expense of Felicia’s mental health. The Post must do better.”

Judge Deahl dissented from the opinion authored by Senior Judge Glickman.

The Washington Post has a First Amendment right to decide what stories, and whose stories, it will publish. When the Post decided that it did not want to publish Felicia Sonmez’s work within the ambit of the #MeToo movement, it did not fire her, demote her, change her job title or her core responsibilities. It simply took her off the #MeToo beat and temporarily reassigned her to other breaking national news stories. She continued to write frontpage stories on topics like the COVID-19 pandemic, the 2020 presidential election, and President Trump’s impeachment trial. See, e.g., Phillip Rucker, Felicia Sonmez, and Colby Itkowitz, Trump Impeached, Wash. Post, Dec. 19, 2019, at A1. That reassignment was not an actionable “adverse employment action” under the 99 District’s Human Rights Act, the DCHRA, because it was not a “significant change in [her] employment status.” Kumar v. D.C. Water & Sewer Auth., A.3d 9, 17 (D.C. 2011). In concluding otherwise the majority walks into a novel and glaring First Amendment problem.

The messenger and the message

Lawyers should be especially attuned to this second point since it pervades our own profession. Parties frequently pick their advocates with considerations like race, gender, and political baggage in mind. Thurgood Marshall, who would go on to be this nation’s first black Supreme Court Justice, led the attack on school segregation when he argued the seminal case of Brown v. Board of Education, 347  U.S. 483 (1954), before the Supreme Court of the United States. More recently a transgender man, Chase Strangio, was selected by his client to argue before the Supreme Court in United States v. Skrmetti, 23-477 (argued Dec. 4, 2020), challenging Tennessee’s restrictions on medical treatments used for gender transitions. And it was not mere happenstance that Harvey Weinstein and Donald Trump both chose female advocates—Donna Rotunno and Alina Habba, respectively—to lead their defenses against sexual assault allegations. Each client’s choice of advocates was no doubt influenced by countless factors in those cases, and in each case they surely selected the advocate they believed to be best suited to represent them. But race, gender, and political affiliations can obviously play a role in the calculus of who is best to deliver a particular message, or defend a particular cause, and the First Amendment protects those considerations.

Courts are no different when selecting who is best to author an opinion. When the Supreme Court upheld the core of the Affordable Care Act in NFIB v. Sebelius, 567 U.S. 519 (2012), and later recognized a constitutional right to gay marriage in Obergefell v. Hodges, 576 U.S. 644 (2015), the lone Republican-appointed justices in the respective majorities—Chief Justice Roberts and Justice Kennedy—took the pen. When the Supreme Court upheld the University of Michigan Law School’s “affirmative action” policies in Grutter v. Bollinger, 539 U.S. 306 (2003), and struck down Virginia Military Institute’s male-only admission policy in United States v. 105 Virginia, 518 U.S. 515 (1996), it was no coincidence that those opinions were assigned to the first and second women to sit on the Supreme Court—Justices O’Connor and Ginsburg, respectively. All of those authorship decisions were part of the Court’s message, and that was not lost on the public. And your reaction to this dissenting opinion could well be affected by the fact that it is written by a Trump appointee—a “Trump judge,” to borrow a phrase—rather than an “Obama judge” or a “Biden judge.” That is why the media so regularly identifies the President who appointed a particular judge when reporting on their opinions, particularly when it wants to detract from an opinion’s force. That might be a lazy heuristic that I would rather be rid of, but I am not dense enough to believe it will not affect some readers’ views of this opinion’s merits. 

Thus far I have stated only what I take to be obvious: messengers, personal characteristics and all, can affect the message. I cannot tell if my colleagues agree with me about that because they sidestep the point by positing that “the Post’s editorial control over . . . [what] it chooses to publish is”—somehow—“not at issue” in this case. Ante at 94. I will now explain why it is not only at issue in, but resolves, this case. I will then try to diagnose where precisely my colleagues misstep in concluding otherwise.

At bottom

At bottom, the majority has not seriously engaged with the determinative First Amendment question in this case. The relevant question is whether the Post’s reassignment of Sonmez was an editorial judgment, that is, a judgment affecting the content of what went into its paper. And even when taking the facts in the light most favorable to Sonmez at this stage of the proceedings, it undoubtedly was.

I would affirm the trial court’s dismissal of Sonmez’s suit because her attacks on her reassignment off of the #MeToo beat run afoul of the First Amendment

Counsel for Plaintiff

Madeline Meth, Georgetown Law Appellate Courts Immersion Clinic, with whom Brian Wolfman and Esthena L. Barlow, Georgetown Law Appellate Courts Immersion Clinic, and Molly Bernstein, Elliott O’Brien, Jewelle Vernon, Daphne Assimakopoulos, Monica Kofron, and Chase Woods, student attorneys, were on the briefs, for appellant/cross-appellee.

(Mike Frisch)