UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PRATEEK DAVE, :
:
Plaintiff, : Civil Action No.: 08-0856 (RMU)
:
v. : Document Nos.: 2, 5
:
CATHY LANIER et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANT LANIER ’S MOTION TO DISMISS;
ORDERING FURTHER BRIEFING ON THE ADA AND REHABILITATION ACT CLAIMS; DENYING
DEFENDANT DISTRICT OF COLUMBIA ’S MOTION TO DISMISS THE TITLE VII CLAIM
I. INTRODUCTION
This matter comes before the court on the defendant’s motion to dismiss.1 The plaintiff, a
former cadet at the District of Columbia Metropolitan Police Department Institute of Police
Science (“IPS”), alleges discrimination and retaliation under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101 et seq.; the Rehabilitation Act, 29 U.S.C. §§ 791 et seq.; and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The defendant, the District of
Columbia, moves to dismiss the ADA and Rehabilitation Act claims under Federal Rule of Civil
Procedure 12(b)(6) for failure to sufficiently state a claim of disability discrimination. The
defendant further moves to dismiss the Title VII retaliation claim under Rule 12(b)(6) for failure
to state a claim. In light of recent changes to the ADA, the court orders further briefing on the
plaintiff’s ADA and Rehabilitation Act claims. And because, at this stage in the proceedings, the
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Defendant Cathy Lanier has also moved to dismiss. Def. Lanier’s Mot. to Dismiss. Because the
plaintiff has stated that he does not oppose Defendant Lanier’s motion to dismiss, the court
grants it. See Pl.’s Resp. Accordingly, for the purposes of this Memorandum Opinion, “the
defendant” shall refer to the District of Columbia.
plaintiff has sufficiently pled his Title VII retaliation claim, the court denies the defendant’s
motion to dismiss as to this claim.
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff, an Indian American male, was a cadet at IPS from September 2004 until
September 2006. Compl. ¶¶ 5, 6. The plaintiff alleges that during a training exercise in
November 2004, a trainer of Hispanic descent pushed him down a hill, causing injury to his
shoulder. Id. ¶ 6. Believing that the trainer’s conduct was motivated by discriminatory animus,
the plaintiff complained about the incident to the defendant. Id. Following the incident, the
plaintiff was placed on limited duty or sick leave for five months to receive treatment for his
shoulder, which included Cortisone shots but no surgery. Id.
The plaintiff alleges that after he returned to work, the defendant retaliated against him
for reporting the incident. Id. ¶ 7. The alleged retaliation included giving him only academic
work supplemented by physical training, training him with a lower-level class, making sarcastic
remarks about his abilities and withholding specialized training necessary for graduation from
IPS. Id. As a result of the repetitious physical training, the plaintiff developed asthma, resulting
in an additional one to two months of sick leave. Id. While cadets normally graduate from the
academy in six months, the plaintiff spent two years at the academy and did not graduate. Id. ¶ 8.
In September 2006, the defendant issued the plaintiff a letter of termination from IPS. Id. ¶ 9.
After his termination, the plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), which subsequently issued him a right to sue letter. Id. ¶ 10. The
plaintiff filed the instant complaint on May 19, 2008. See generally Compl. The defendant has
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moved to dismiss, arguing that the plaintiff fails to sufficiently plead any of his claims. See
generally Def.’s Mot. The plaintiff opposes the motion. See generally Pl.’s Opp’n. The court
now turns to the parties’ arguments.
III. ANALYSIS
A. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain
statement of the claim, giving the defendant fair notice of the claim and the grounds upon which
it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing
FED . R. CIV . P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice
pleading is made possible by the liberal opportunity for discovery and the other pre-trial
procedures established by the Rules to disclose more precisely the basis of both claim and
defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48
(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his
prima facie case in the complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or
“plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134,
136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).
Yet, the plaintiff must allege “any set of facts consistent with the allegations.” Bell Atl.
Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007) (abrogating the oft-quoted language from
Conley, 355 U.S. at 45-56, instructing courts not to dismiss for failure to state a claim unless it
appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”);
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Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)
(affirming that “a complaint needs some information about the circumstances giving rise to the
claims”). While these facts must “possess enough heft to ‘sho[w] that the pleader is entitled to
relief,’” a complaint “does not need detailed factual allegations.” Twombly, 127 S. Ct. at 1964,
1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual
allegations – including mixed questions of law and fact – as true and draw all reasonable
inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67
(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.
2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the
court need not accept as true inferences unsupported by facts set out in the complaint or legal
conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.
Cir. 2004); Browning, 292 F.3d at 242.
B. The Court Orders Further Briefing on the ADA and Rehabilitation Act Claims
In September 2008, Congress passed the ADA Amendments Act of 2008 (“the Act”),
which establishes that past Supreme Court decisions have too narrowly defined “the broad scope
of protection intended to be afforded by the ADA.” Pub. L. No. 110-25, 122 Stat. 3553
(effective Jan. 1, 2009). More specifically, the Act expressly disavows the Supreme Court’s
interpretation of the ADA in two leading cases, Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). Id.
(determining that Toyota Motor Manufacturing established a more limited interpretation of
“substantially limits” and “major life activity” than Congress intended and that Sutton too
narrowly limited the interpretation of “regarded as” disabled and improperly weighed the impact
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of mitigating measures on the determination of whether an individual is disabled). The Act,
therefore, alters the legal landscape applicable in the instant action. In light of these changes, the
court orders further briefing by the parties on the plaintiff’s ADA and Rehabilitation Act claims.
C. The Court Denies the Defendant’s Motion to Dismiss the Title VII Retaliation Claim
1. Legal Standard for a Retaliation Claim
To prevail on a claim of retaliation, a plaintiff must follow the McDonnell Douglas
framework. Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003)
(applying the McDonnell Douglas framework to a Title VII retaliation claim); Duncan v. Wash.
Metro. Area Transit Auth., 214 F.R.D. 43, 49-50 & n.8 (D.D.C. 2003) (applying the McDonnell
Douglas framework to a Rehabilitation Act retaliation claim). The Supreme Court explained the
framework as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a
prima facie case of [retaliation]. Second, if the plaintiff succeeds in proving the
prima facie case, the burden shifts to the defendant “to articulate some legitimate,
[non-retaliatory] reason for the employee’s rejection” . . . . Third, should the
defendant carry this burden, the plaintiff must then have an opportunity to prove by
a preponderance of the evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for [retaliation] . . . . The ultimate
burden of persuading the trier of fact that the defendant intentionally [retaliated]
against the plaintiff remains at all times with the plaintiff.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations omitted)
(quoting McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in
a statutorily protected activity, (2) a reasonable employee would have found the challenged
action materially adverse, and (3) there existed a causal connection between the protected activity
and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-
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69 (2006); see also Scott v. Kempthorne, 2006 WL 1980219, at *3 (10th Cir. July 17, 2006). The
plaintiff’s burden is not great: he “merely needs to establish facts adequate to permit an inference
of retaliatory motive.” Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).
If the employer successfully presents a legitimate, non-retaliatory reason for its actions,
“the presumption raised by the prima facie is rebutted and drops from the case.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citation omitted); Brady v. Office of the
Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 494 (D.C. Cir. 2008) (noting
that “the prima facie case is a largely unnecessary sideshow”). Upon such a showing by the
defendant, the district court need resolve only one question: “Has the employee produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-[retaliatory]
reason was not the actual reason and that the employer intentionally [retaliated] against the
employee on the basis of race, color, religion, sex, or national origin?” Brady, 520 F.3d at 494.
In other words, did the plaintiff “show both that the reason was false, and that . . . [retaliation]
was the real reason.” Weber, 494 F.3d at 186 (alterations in original and internal quotations
omitted) (quoting St. Mary’s Honor Ctr., 509 U.S. at 515). The court must consider whether the
jury could “infer [retaliation] from the plaintiff’s prima facie case and any other evidence the
plaintiff offers to show that the actions were [retaliatory] or that the non-[retaliatory] justification
was pretextual.” Smith v. District of Columbia, 430 F.3d 450, 455 (2005) (quoting Murray v.
Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005)). The court should assess the plaintiff’s challenge
to the employer’s explanation in light of the totality of the circumstances of the case. Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998).
The strength of the plaintiff’s prima facie case, especially the existence of a causal
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connection, can be a significant factor in his attempt to rebut the defendant’s legitimate non-
retaliatory reason for the adverse action. See Aka, 156 F.3d at 1289 n.4 (stating that “a prima
facie case that strongly suggests intentional discrimination may be enough by itself to survive
summary judgment”); Laurent v. Bureau of Rehab., Inc., 544 F. Supp. 2d 17, 23 n.5 (D.D.C.
2008) (holding that the plaintiff cannot establish pretext because “she is unable to show any
causal connection”); Meadows v. Mukasey, 2008 WL 2211434, at *5-6 (D.D.C. May 29, 2008)
(holding that the plaintiff demonstrated pretext in part by establishing a causal connection). The
plaintiff may establish a causal connection “by showing that the employer had knowledge of the
employee’s protected activity, and that the [retaliatory] personnel action took place shortly after
that activity.” Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (quoting Mitchell v.
Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)); accord Clark County Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (noting that the temporal connection must be “very close”: a three- or four-
month period between an adverse action and protected activity is insufficient to show a causal
connection, and a 20-month period suggests “no causality at all”).
2. The Plaintiff Has Pled a Legally Cognizable Claim of Retaliation
The plaintiff alleges that his trainer “treated him in a discriminatory manner” by pushing
him down a hill during a training exercise in November 2004. Compl. ¶¶ 6, 18. The plaintiff
further asserts that when he complained about the trainer’s discriminatory conduct, the defendant
retaliated against him by characterizing him as poor cadet, refusing to advance him at the
academy, subjecting him to disparate conditions and ultimately terminating him from the police
academy. Id. ¶ 22. The defendant moves to dismiss the Title VII claims on the grounds that the
action was not adverse and, in any case, that there is no temporal connection between the
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plaintiff’s complaint and the defendant’s allegedly retaliatory conduct. See generally Def.’s Mot.
The court addresses each of these arguments in turn.
The defendant first avers that the plaintiff fails to state that any of the allegedly retaliatory
conduct constituted an adverse personnel action. Def.’s Mot. at 9. The plaintiff, on the other
hand, maintains that he has met his burden at this stage of the proceedings by alleging that the
defendant engaged in adverse employment actions against him. Pl.’s Opp’n at 5-7. An “‘adverse
employment action’ is ‘a significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing
significant change in benefits.’” Douglas v. Donovan, 2009 WL 673569, at *1 (D.C. Cir. Mar.
17, 2009) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); Taylor v. Small,
350 F.3d 1286, 1293 (D.C. Cir. 2003)). Actions short of firing, including “[d]ischarge,
demotion, or undesirable reassignment,” can constitute adverse employment actions. Amiri v.
Stoladi Prop. Group, 407 F. Supp. 2d 119, 125 (D.D.C. 2005) (citing Burlington Indus., 524
U.S. at 765).
As a preliminary matter, the court notes that in the retaliation context, the term “adverse
action” “encompass[es] a broader sweep of actions than those in a pure discrimination claim.”
Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008). Thus, “[r]etaliation claims are
‘not limited to discriminatory actions that affect the terms and conditions of employment’ and
may extend to harms that are not workplace-related or employment-related so long as ‘a
reasonable employee would have found the challenged action materially adverse.’” Id. (quoting
Burlington N., 548 U.S. at 64, 68). The plaintiff here alleges that the defendant created a change
in his employment status by placing him in a lower-level training class, denying him training
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opportunities necessary for graduation and ultimately firing him. Compl. ¶¶ 7-9, 18. These acts
may fall under the categories established by Burlington Industries, including failure to promote,
reassignment with significantly different responsibilities and firing. See Burlington Indus., 524
U.S. at 761.2
The cases that the defendant cites regarding whether denial of training may be considered
an adverse employment action are inapposite for two reasons: first, they occurred at the summary
judgment stage or beyond, after the plaintiffs had been allowed to develop their claims through
the discovery process. See Def.’s Mot. at 11-12. And second, because the plaintiff in the instant
action was employed as a cadet, training opportunities were more central to his professional
advancement than they are in a typical employment scenario. Coleman v. District of Columbia,
2006 WL 2434926, at *6 (D.D.C. Aug. 22, 2006) (citing Burlington N., 548 U.S. at 68) (denying
in part the defendant’s motion for summary judgment because the plaintiff, a fire department
cadet, alleged that the defendant retaliated against her by denying her training classes and
subjecting her to unwarranted discipline). Thus, the court determines that the acts alleged by the
plaintiff may be considered “adverse” and therefore rejects the defendant’s contention to the
contrary.
In addition, the defendant argues that there is no temporal proximity between the
plaintiff’s report of the incident with the trainer and his termination nearly two years later. Def.’s
Mot. at 7-9. The plaintiff counters that he has pled facts from which causation can be inferred.
Pl.’s Opp’n at 5-7. To establish a causal connection, an employer must have had knowledge of
2
This Circuit recently noted that at the summary judgment stage, employment actions of this type
would be “conclusively presumed to be adverse employment actions, even if any alleged harm is
speculative.” Douglas v. Donovan, 2009 WL 673569, at *2 (D.C. Cir. Mar. 17, 2009).
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the employee’s protected act and must have taken an adverse personnel action as a result of the
protected act. Cones, 199 F.3d at 521. The defendant cites several cases in which courts have
determined that a time lapse of even a few months between the protected activity and the alleged
retaliatory act failed to give rise to an inference of causation. Def.’s Mot. at 7-9. But here, while
the plaintiff does not specify the exact interval between the protected activity and the allegedly
retaliatory acts, drawing all reasonable inferences in the plaintiff’s favor, the complaint suggests
that these adverse acts began soon after he returned from sick leave and occurred regularly until
he was ultimately terminated. Compl. ¶¶ 6-9; Pl.’s Opp’n at 5 (claiming that after the incident
the defendant gave the plaintiff only academic work, subjected him to rigorous physical training,
required him to train with a lower class, made sarcastic remarks about his abilities, prevented
him from obtaining specialized training necessary for graduation and ultimately terminated him
from the academy).
Furthermore, temporal proximity, though often an indicator of causation, is not a required
element of a retaliation claim, particularly at this stage of the proceedings. Swierkiewicz, 534
U.S. at 511-14 (holding that the plaintiff need not plead all elements of his prima facie case in the
complaint); Beckham v. Nat’l R.R. Passenger Corp., 590 F. Supp. 2d 82, 89 (D.D.C. 2008)
(denying the defendant’s motion to dismiss based on lack of temporal proximity because the
plaintiff had satisfied her burden at that early stage of the proceedings); see also Beard v.
Preston, 576 F. Supp. 2d 93, 105-06 (D.D.C. 2007) (stating that a lack of temporal proximity
alone does not mandate a grant of summary judgment). Accordingly, even if the court were to
conclude that the plaintiff had failed to sufficiently plead temporal proximity, the plaintiff would
still meet the burden necessary to overcome a motion to dismiss. Rochon v. Gonzalez, 438 F.3d
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1211, 1220 (D.C. Cir. 2000) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114
(D.C. Cir. 2000) (observing that “in order to survive a motion to dismiss, all [the] complaint has
to say . . . is ‘the [defendant] retaliated against me because I engaged in protected activity’”));
Vance v. Chao, 496 F. Supp. 2d 182, 187 (D.D.C. 2007) (holding that “[a]t this early stage of the
proceedings, plaintiff can meet her prima facie burden of causation simply by alleging that the
adverse actions were caused by her protected activity”). As a result, the court holds that the
plaintiff has made out a legally cognizable claim of retaliation by contending that he engaged in a
protected activity by reporting the trainer’s allegedly discriminatory conduct and that in response
to his complaint, the defendant retaliated against him by subjecting him to materially adverse
actions. See Burlington N., 548 U.S. at 67-69. Accordingly, the court denies the defendant’s
motion to dismiss the plaintiff’s Title VII retaliation claim.
IV. CONCLUSION
For the foregoing reasons, the court grants defendant Lanier’s motion to dismiss and
denies defendant District of Columbia’s motion to dismiss the plaintiff’s Title VII claim.
Further, in light of the ADA Amendments Act of 2008, the court orders further briefing on the
plaintiff’s ADA and Rehabilitation Act claims against defendant District of Columbia. An Order
consistent with this Memorandum Opinion is separately and contemporaneously issued this 27th
day of March, 2009.
RICARDO M. URBINA
United States District Judge
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