UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
YVETTE WILLIAMS )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1930 (EGS)
)
SHAUN DONOVAN, SECRETARY, )
U.S. DEPARTEMENT OF HOUSING AND )
HUMAN DEVELOPMENT )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Ms. Yvette Williams brings this action alleging that
defendant Sean Donovan, in his official capacity as Secretary,
U.S. Department of Housing and Urban Development (the
Department), violated the Rehabilitation Act (Act), 29 U.S.C. §
791, et seq., by discriminating against her based on her
disabilities. In Count 1 of her Amended Complaint, Ms. Williams
alleges that the Department discriminated against her because of
her disabilities based on a series of events that culminated in
her termination. Am. Compl., ECF No. 18 ¶ 43. In Count 2, Ms.
Williams alleges that the Department denied her a reasonable
accommodation for her disability. Id. ¶¶ 44-45. In Count 3, Ms.
Williams alleges that the Department terminated her in
retaliation for engaging in protected Equal Employment
Opportunity (EEO) activity. Id. ¶¶ 46-47.
1
Before the Court is the Department’s Motion to Dismiss
Counts 1 and 3 of the Amended Complaint for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6), or
in the alternative for Summary Judgment on Counts 1, 2 and 3
pursuant to Federal Rule of Civil Procedure Rule 56.
Upon consideration of the motion, the response thereto, the
applicable law, and the entire record, the Department’s Motion
to Dismiss is GRANTED IN PART AND DENIED IN PART, and the
Department’s Motion for Summary Judgment is DENIED without
prejudice.
I. Background
As this matter is before the Court on the Department’s
Motion to Dismiss, the Court assumes the following facts alleged
in the Amended Complaint to be true and grants Ms. Williams the
benefit of all reasonable inferences deriving from the Amended
Complaint.
Ms. Williams began working for the Department in August
2008 as a Federal Career Intern. Am. Compl., ECF No 18 ¶ 6. In
this capacity, she performed rotational assignments until she
was permanently assigned to the Office of Executive Secretariat
(OES) in July 2010 as a correspondence specialist performing
mail room duties. Id. ¶ 6. Ms. Williams was in this position
until February 4, 2012, the effective date of her removal from
her position. Id.
2
Ms. Williams has a number of physical disabilities –
Adenomyosis, Psoas Syndrome and Lumbar Scoliosis – which
substantially limit her ability to sit, stand, walk, and sleep.
Id. ¶ 7. Ms. Williams also experiences episodes of severe pain –
including pain in her back, hip, leg, and foot, that are
exacerbated by sitting, standing, and by stress. Id. This pain
affects her ability to sleep and also her ability to function
after she is unable to sleep. Id. Finally, the pain causes Ms.
Williams to vomit, resulting in her need to be close to a
restroom. Id. Despite these disabilities, Ms. Williams was able
to perform the essential functions of her job with reasonable
accommodations. Id. ¶ 8.
Ms. Williams successfully completed her internship on
August 18, 2010. Id. ¶ 9. On December 6, 2010, Ms. Williams met
with her supervisors and was informed that she would not receive
a promotion to GS-12 due to her absences. Id. ¶ 10. Ms. Williams
alleges that all of her absences were approved as either Family
Medical Leave Act (FMLA) or annual leave. Id. Ms. Williams
further alleges that her performance throughout her internship
had consistently been rated “outstanding.” Id.
On December 14, 2010, Ms. Williams received an official
reprimand as a result of allegedly rude and discourteous
behavior during the December 6, 2010 meeting. Id. ¶ 11. Ms.
Williams states that at that meeting she “respectfully
3
questioned her supervisor’s decision not to promote her by
pointing out her performance rating and the fact that all of
her absences had been approved.” Id. Ms. Williams alleges that
this official reprimand was used to support the ultimate
decision to remove her from her position. Id.
Also on December 14, 2010, Ms. Williams’ supervisor ceased
allowing her to work an alternative work schedule, requiring her
to work on a fixed schedule Monday through Friday. Id. ¶ 12.
Ms. Williams alleges that her supervisor knew that she had an
alternative work schedule based on the recommendation of her
doctor that she telework at least two days per week. Id. Ms.
Williams states that she needed a flexible schedule so that she
could seek medical treatment and alleges that “similarly-
situated non-disabled co-workers were permitted to continue
working on an alternative work schedule.” Id. ¶¶ 12-13.
On January 13, 2011, Ms. Williams received a performance
appraisal of “excellent.” Id. ¶ 15. Ms. Williams states that she
had received an “outstanding” rating the previous year. Id. Ms.
Williams alleges that the “[d]efendant considered this
performance rating in her decision to remove [her] from her
position and federal service.” Id.
On February 11, 2011, Ms. Williams’ supervisor informed her
that as of February 14, 2011, she would perform filing duties
rather than mail room duties. Id. ¶ 17.
4
In March 2011, Ms. Williams “took leave under the Family
and Medical Leave Act to care for her father who was suffering
from end stage renal failure.” Id. ¶ 19. At that time, she also
submitted a request to telework to her supervisor. Id. ¶ 20. In
April 2011, Ms. Williams provided a letter from her doctor
supporting her request to telework. Id. ¶ 21. Ms. Williams’ FMLA
leave expired on April 18, 2011. Id. ¶ 22. On April 20, 2011,
Ms. Williams’ “request to telework was denied, her request for
leave without pay (LWOP) was denied, and she was placed on
absent without [official] leave [AWOL].” Id. ¶ 23.
On June 27, 2011, a memorandum was issued instructing Ms.
Williams to return to work by July 11, 2011. Id. ¶ 26. On July
12, 2011, Ms. Williams submitted a request for reasonable
accommodation – that she be allowed to telework – to the
Employee Assistance Program office. Id. ¶ 27. 1 On July 22, 2011,
Ms. Williams “received a notice of proposed removal based on
1 Ms. Williams’ request to telework was denied on November 7,
2011. Id. ¶ 30. On November 16, 2011, the Reasonable
Accommodation Committee (RAC) met to make a final decision on
this request. Id. ¶ 31. Ms. Williams informed the RAC that she
was waiting for the results of recent [Magnetic Resonance
Imagings] and that she could provide updated medical
documentation to the RAC when she received the results. Id. ¶
32. The RAC agreed to postpone their decision and gave her until
November 18, 2011 to provide additional medical documentation to
the Committee. Id. ¶ 33. Ms. Williams was unable to obtain the
documentation until December 9, 2011, and was told that her case
was closed and she could not submit the documentation. Id. ¶ 34.
On December 23, 2011, the RAC upheld the denial of her request.
Id. ¶ 35.
5
AWOL, failure to follow directive, and failure to follow
instruction.” Id. ¶ 28. Ms. Williams returned to work on August
1, 2011. Id. ¶ 29.
With regard to her EEO activity, Ms. Williams contacted an
EEO counselor on January 18, 2011 “regarding her non-promotion,
official reprimand, removal of alternative work schedule, and
performance appraisal.” Id. ¶ 16. Thereafter, on March 3, 2011,
Ms. Williams filed a formal complaint in which she alleged
“disability discrimination and retaliation for requesting
reasonable accommodations based on her non-promotion, official
reprimand, removal of alternative work schedule, and performance
appraisal.” Id. ¶ 18. On May 13, 2011, Ms. Williams “amended her
formal complaint to include the February 11, 2011 reassignment
of job duties, April 20, 2011 denial of reasonable accommodation
to telework, and the April 20, 2011 denial of LWOP.” Id. ¶ 24.
On February 6, 2012, Ms. Williams “contacted an EEO officer
regarding the December 23, 2011 denial of reasonable
accommodation to telework and the February 4, 2012 removal” and
on April 9, 2012, she “filed a formal complaint alleging
disability discrimination and retaliation based on the December
23, 2011 denial of reasonable accommodation and her February 4,
2012 removal.” Id. ¶¶ 40-41.
6
Ms. Williams alleges that she exhausted her administrative
remedies by filing these two complaints of discrimination with
the Department. Id. ¶¶ 2-3.
On January 31, 2012, Ms. Williams was removed from her
position effective February 4, 2012. Id. ¶ 6.
II. Legal Standards
A. Standards of Review
1. Federal Rule of Civil Procedure 12(b)(6)
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). To survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility
requires that “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Detailed factual
allegations are not required, but the plaintiff is required to
provide “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation,” id., and must plead enough facts “to
raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. “Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
7
that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do
not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679.
When ruling on a Rule 12(b)(6) motion, the court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002).
The court “must accept as true all of the factual allegations
contained in the complaint,” Atherton v. D.C. Office of the
Mayor, 567 F.3d 672, 681 (D.C.Cir.2009)(quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)), and must construe the complaint
liberally in the plaintiff’s favor, granting the plaintiff the
benefit of all reasonable inferences deriving from the
complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.
Cir.1994). However, the court need not “accept inferences drawn
by plaintiffs if such inferences are unsupported by the facts
set out in the complaint. Nor must the court accept legal
conclusions cast in the form of factual allegations.” Id.
Further, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
8
suffice.” Iqbal, 556 U.S. at 678. Only a claim that “states a
plausible claim for relief survives a motion to dismiss.” Id. at
679.
2. Federal Rule of Civil Procedure 56
Summary judgment is appropriate when the moving party has
shown that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir.2002). A material fact is one that is capable of
affecting the outcome of the litigation. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists
where the “evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id. A court considering a
motion for summary judgment must draw all “justifiable
inferences” from the evidence in favor of the nonmovant. Id. at
255.
“[S]ummary judgment is premature unless all parties have ‘had
a full opportunity to conduct discovery.’” Convertino v. Dept.
of Justice, 684 F.3d 93, 99 (D.C.Cir.2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). It is
particularly important that litigants in discrimination cases
have the opportunity to engage in discovery. Gray v. Universal
Serv. Admin. Co., 581 F.Supp.2d 47, 57 (D.D.C.2008)(dismissing
9
defendant’s motion for summary judgment in the alternative
without prejudice in an employment discrimination case to allow
the parties the opportunity to conduct full discovery); Gordon
v. Napolitano, 786 F.Supp.2d 82, 86 (D.D.C.2011)(declining to
dismiss plaintiff’s claims or convert the motion to one for
summary judgment in an employment discrimination case because
plaintiff had not yet had the benefit of discovery).
3. Discrimination Under the Rehabilitation Act
The Rehabilitation Act provides that “[n]o otherwise
qualified individual with a disability” may be discriminated
against by a federal agency “solely by reason of her or his
disability.” 29 U.S.C. § 794(a). 2 The two essential elements of a
discrimination claim under the Act are that (i) the plaintiff
suffered an adverse employment action (ii) because of her
disability. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.
Cir.2008). 3 An adverse employment action is “a significant change
2 The Act “expressly incorporates the standards of the [Americans
with Disabilities Act] for claims of employment discrimination.”
Rosier v. Holder, 833 F.Supp.2d 1, n.1 (D.D.C.2011)(internal
citations omitted).
3 Generally, to establish a prima facie case of discrimination, a
plaintiff must demonstrate that: “(1) [she] is a member of a
protected class; (2) [she] has suffered an adverse employment
action; and (3) the unfavorable action gives rise to an
inference of discrimination.” Czekalski v. Peters, 475 F.3d 360,
364 (D.C.Cir.2007)(quoting George v. Leavitt, 407 F.3d 405, 412
(D.C.Cir.2005)). “At the motion to dismiss stage, however, a
plaintiff need not prove a prima facie case.” Munro v. LaHood,
839 F.Supp.2d 354, 360 (D.D.C.2012)(citations omitted).
10
in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing significant change in
benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.
2003)(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998)(pinpoint cite omitted in original).
With regard to the causation element of a Rehabilitation
Act claim, “courts have found that the presence of the word
‘solely’ [in the Act] means that the causation element of
intentional discrimination and retaliation claims brought under
[the Rehabilitation] Act cannot be satisfied by a motivating
factor test; rather, the applicable analysis is the traditional
‘but-for’ causation standard.” Drasek v. Burwell, 121 F.Supp.3d
143, 154 (D.D.C.2015)(citing Gard v. U.S. Dep’t of Educ., 752
F.Supp.2d 30, 35–36 (D.D.C.2010). At the motion to dismiss
stage, however, the court does not need “to undertake a ‘full
causation analysis’ in determining whether plaintiff has stated
a claim.” Badwal v. Board of Trustees of the University of
District of Columbia, 139 F.Supp.3d 295, 311 (D.D.C.2015)(citing
Nurriddin v. Bolden, 674 F.Supp.2d 64, 90 (D.D.C.2009). “Merely
alleging that the employer's proffered reasons for the adverse
employment actions is false may support an inference of
discrimination sufficient to survive a motion to dismiss.”
Nurriddin, 674 F.Supp.2d at 90(citing George v. Leavitt, 407
11
F.3d 405, 412 (D.C.Cir.2005)(reversing district court for
requiring plaintiff to support prima facie case with evidence
that she was treated differently than similarly situated
employees not part of the protected class because “[e]limination
of [employer's legitimate] reasons ... is sufficient, absent
other explanation, to create an inference that the decision was
a discriminatory one”).
Under the standard set forth in Iqbal, to survive a motion
to dismiss, Ms. Williams’ complaint needs to “contain[]
sufficient factual matter” from which the Court can “draw the
reasonable inference” that the Department discriminated against
her because of her disabilities and thus violated the Act.
Iqbal, 556 U.S. at 678.
IV. Analysis
A. Count 1
As a preliminary matter, the Court notes that the
Department does not dispute that Ms. Williams has adequately
alleged that she has a disability. See generally Def.’s Mot. to
Dismiss, ECF No. 20. In Count 1, Ms. Williams alleges that the
[d]efendant violated the Rehabilitation Act by
discriminating against [her] on the basis of
her disabilities, its record of her
disabilities, and its perception of her as
disabled, when it denied her a promotion,
issued her an official reprimand, removed her
from an alternative work schedule, issued her
a performance rating of excellent, assigned
her a different set of duties, denied her
12
requests to telework, charged her AWOL, and
removed her from her position.
Am. Compl., ECF No. 18 ¶ 43.
In support of its Motion to Dismiss Count 1, the Department
asserts that Ms. Williams was removed from her position because
of chronic absences and undependability – in particular, when
her removal was proposed in 2011, she had been out of the office
for seven months of an eleven month period. Def.’s Mot. to
Dismiss, ECF No. 20-1 at 1-2. The Department argues that under
controlling law, the following actions do not constitute adverse
employment actions: official reprimand, ending Ms. Williams’ AWS
schedule, changing Ms. Williams’ job duties, and Ms. Williams’
performance appraisal rating. Id. at 7–11. The Department
further argues that all claims within Count 1 should be
dismissed because Ms. Williams has failed to allege facts that
make it plausible that the Department took these actions because
of Ms. Williams’ alleged disabilities. Id. at 11-17.
Ms. Williams responds that the Department has not contested
that the denial of a promotion was an adverse action, that the
official reprimand materially affected the terms and conditions
of her employment because it was considered when the decision to
end her employment was made, that removal from AWS was an
adverse action because she needed AWS due to her disability and
similarly-situated non-disabled co-workers were permitted an AWS
13
schedule, and that removal constitutes an adverse employment
action. Pl.’s Opp’n, ECF No. 21 at 4-5.
The Department replies that because Ms. Williams did not
respond to its argument that neither changing Ms. Williams’ job
duties nor Ms. Williams’ performance appraisal constitute
adverse employment actions, she has conceded that they do not.
Def.’s Reply, ECF No. 24 at 3-4.
1. Whether Ms. Williams suffered adverse employment
actions
The Department does not dispute that Ms. Williams suffered
an adverse employment action when it denied her a promotion,
charged her AWOL, and removed her from her position. See
generally Def.’s Mot. to Dismiss, ECF No. 20-1. Ms. Williams,
for her part, does not respond to the Department’s argument that
the change in duties or her performance appraisal rating are not
adverse actions. See generally, Pl.’s Opp’n, ECF No. 21. Ms.
Williams has therefore conceded that the change in her duties
and her performance appraisal rating were not adverse employment
actions. See Hopkins v. Women's Div., Gen. Bd. of Global
Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003), aff'd, 98 Fed.
Appx. 8 (D.C.Cir.2004)(“It is well understood in this Circuit
that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff
14
failed to address as conceded.”) (citations omitted).
Accordingly, the Court will GRANT the Motion to Dismiss as to
the claims for change in duties and performance appraisal. At
issue, then, is whether the official reprimand and ending Ms.
Williams’ AWS schedule constitute adverse employment actions.
Official Reprimand. Ms. Williams alleges that the official
reprimand was used to support the decision to remove her from
her position. Am. Compl., ECF No. 18 ¶ 11. The Department argues
that the official reprimand itself was not an adverse employment
action and so must be dismissed. Def.’s Mot. to Dismiss, ECF No.
20 at 8-9. However, the cases the Department cite to support
this point support the opposite conclusion-–that because she was
removed from her position in part allegedly because of the
reprimand, the reprimand does constitute an adverse employment
action. See Stewart v. Evans, 275 F.3d 1126, 1136 (D.C.Cir.
2002)(“This Court has held that formal criticisms or reprimands,
without additional disciplinary action such as a change in
grade, salary, or other benefits, do not constitute adverse
employment actions. Plaintiff has not alleged that the report of
the Cordoba matter in any way affected her job performance
ratings or the conditions of her employment. Because this report
had no effect on Ms. Stewart's pay, benefits, or privileges, it
cannot be considered an adverse employment action under Title
VII.”)(internal citations omitted); Weng v. Solis, 960 F.Supp.2d
15
239, 247 (D.D.C.2013)( “Plaintiff does not present any evidence
that the Warning Memorandum affected her grade, salary, or
benefits. Nor does she demonstrate that the Memorandum affected
the terms, conditions, or privileges of her employment or future
employment opportunities. Without such evidence, a reasonable
trier of fact cannot conclude that she “suffered objectively
tangible harm” as a result of the Warning Memorandum”).
Accordingly, Ms. Williams has sufficiently alleged that the
official reprimand constituted an adverse employment action.
Alternative Work Schedule (AWS). Ms. Williams alleges that
her supervisor removed her from AWS and required her to work a
Monday to Friday fixed schedule despite knowing that she had an
AWS based on the recommendation of her doctor that that she
telework at least two days per week. Am. Compl., ECF No. 18 ¶
12. Ms. Williams also alleges that she needed a flexible
schedule so that she could seek medical treatment. Id. The
Department, relying principally on Hunter v. District of
Columbia, F.Supp.2d 364, 373 (D.D.C.2012), argues that this
court has repeatedly held that ending an AWS schedule does not
constitute an adverse employment action. Def.’s Mot. to Dismiss,
ECF No. 20 at 9. In Hunter, in the context of ruling on a motion
for summary judgment, the court found, as a matter of law, that
the plaintiff had not suffered an adverse employment action when
“there [wa]s no showing that defendant’s denial of [plaintiff’s]
16
application for the AWS program affected his employment status.”
Hunter, F.Supp.2d at 373. Ms. Williams cites no legal authority
in support of her assertion that removing her from her
alternative work schedule was due to her disability because
“similarly situated non-disabled co-workers were permitted to
work an AWS.” Pl.’s Opp’n, ECF No. 21 at 5.
Ms. Williams has not alleged any facts from which the Court
could infer that ending her AWS constituted an adverse
employment action because it affected her employment status. See
generally Am. Compl., ECF No. 18. The only facts that Ms.
Williams has alleged regarding this claim are that her doctor
had recommended that she telework at least two days per week and
that she needed a flexible schedule that allowed her to seek
medical treatment. Am. Compl., ECF No. 18 ¶ 12. Ms. Williams has
conclusorily alleged that similarly-situated non-disabled co-
workers were permitted to work an AWS schedule, Id. ¶ 13, but
this is relevant to whether Ms. Williams has sufficiently
alleged that she suffered an adverse employment action because
of her disability, and not whether the ending of AWS constituted
an adverse employment action. The Court recognizes that Ms.
Williams was removed from her position, which was an adverse
employment action, a little over a year after she was removed
from AWS. Ms. Williams alleges that her notice of proposed
removal was “based on AWOL, failure to follow directive, and
17
failure to follow instruction.” Am. Compl., ECF No. 18 ¶ 28.
Thus, Ms. Williams does not allege that ending her AWS affected
her removal from her position. Because Ms. Williams has alleged
no facts from which the Court could infer that ending her AWS
affected her employment status, the Court will GRANT the Motion
to Dismiss the AWS claim in Count 1.
2. Whether Ms. Williams suffered adverse employment
actions because of her disability
The Department argues that all claims within Count 1 should
be dismissed because Ms. Williams has failed to allege facts
that make it plausible that the Department took these actions
because of Ms. Williams’ alleged disabilities. Def.’s Mot. to
Dismiss, ECF No. 20 at 11-17. The claims that have not already
been dismissed in Count 1 are: (1) the official reprimand; (2)
denial of promotion; (3) charge of AWOL; (4) denial of requests
to telework; and (5) removal. Ms. Williams alleges that the
Department discriminated against her on the basis of her
disabilities when it took each of these actions. Am. Compl., ECF
No 18 ¶ 43.
Official Reprimand. Ms. Williams alleges that
[o]n December 14, 2010, Plaintiff received an
official reprimand for allegedly rude and
discourteous behavior during the December 6,
2010 meeting in which Plaintiff had
respectfully questioned her supervisor’s
decision not to promote her by pointing out
her performance rating and the fact that all
of her absences had been approved[.]
18
Defendant considered this official reprimand
and used it in support of the decision to
remove Plaintiff from her position and federal
service.
Am. Compl., ECF No. 18 ¶ 11. The Department argues that based on
the sole factual allegation regarding the official reprimand in
the Amended Complaint, the “[p]laintiff asks the Court to draw
the inference that Defendant purposefully discriminated against
her on the basis of her disabilities simply because she received
a reprimand for rude and discourteous behavior in front of three
witnesses, when she asserts that she had in fact been
respectful.” Def.’s Mot. to Dismiss, ECF No. 20-1 at 13. The
Department maintains that this is not a reasonable inference
and, quoting Iqbal, argues that Ms. Williams has “merely pleaded
a sheer possibility that defendant has acted unlawfully.” Id. In
response, Ms. Williams does not point to any factual allegations
in the Complaint that support her claim that she was
discriminated against her on the basis of her disabilities when
she was issued the formal reprimand. Pl.’s Opp’n, ECF No. 21 at
4.
Ms. Williams’ Amended Complaint is completely devoid of
factual matter that would support her claim that the Department
discriminated against her based on her disabilities when it
issued the official reprimand. See generally Am. Compl., ECF No.
18. Rather, the only allegation regarding this claim is that she
19
was reprimanded because of rude and discourteous behavior.
Moreover, although Ms. Williams asserts that she was respectful,
she does not allege that the reason her employer gave -- rude
and discourteous behavior – was false. See Nurriddin, 674
F.Supp.2d at 90. Ms. Williams has therefore failed to “state a
claim to relief that is plausible on its face.” Iqbal, 556 U.S.
at 678 (internal citations omitted). Accordingly, the Court will
GRANT the Motion to Dismiss the official reprimand claim in
Count 1 of the complaint.
Denial of Promotion. Ms. Williams alleges that she was
discriminated against on the basis of her disabilities when she
was denied a promotion. Am. Compl., ECF No. 18 ¶ 7. The
Department argues that Ms. Williams’ allegations regarding the
denial of promotion constitute a legal conclusion that the Court
need not assume to be true. Def.’s Mot. to Dismiss, ECF No. 20-1
at 11. Further, the Department argues that Ms. Williams’ factual
allegations related to this claim provide no support for her
“allegation that she was denied a promotion on the basis of her
disability.” Id. at 12. Ms. Williams responds that she has
sufficiently alleged facts to support her claim because she has
alleged that the reason her supervisor gave for failing to
promote her – her absences – is false and that the real reason
she was not promoted was because of her disabilities “because
her absences were all approved and her work performance during
20
this time was satisfactory based on her outstanding performance
evaluations.” Pl.’s Opp’n, ECF No 21 at 4-5. The Department
replies that Ms. Williams has failed to adequately allege a
causal link between her disability and the denial of promotion
and therefore fails to state a claim. See Def.’s Reply, ECF No.
24 at 6.
Contrary to Ms. Williams’ assertion, she does not allege in
her Amended Complaint that the reason given for not promoting
her was false. See Am. Compl., ¶¶ 9-10, 43. Rather, Ms. Williams
has alleged that (1) she was informed she would not be promoted
due to her absences; (2) her performance had consistently been
rated “outstanding”; (3) her absences had been approved; and (4)
the Department discriminated against her on the basis of her
disabilities when it denied the promotion. Id. ¶¶ 10, 43. Ms.
Williams asserts that the reasons that were given were false in
her opposition to the Department’s Motion to Dismiss. Pl.’s
Opp’n, ECF No 21 at 4-5. Where a plaintiff fails to include
allegations in her complaint, she may not amend her complaint
via the briefs in opposition to a motion to dismiss. Kingman
Park Civic Assoc. v. Gray, 27 F.Supp.3d 142, 168 (D.D.C.
2014)(citations omitted). On March 7, 2014, the Court granted
leave for Ms. Williams to amend her complaint, originally filed
on November 29, 2012, which she requested in response to the
defendant’s first pre-answer dispositive motion. Minute Order of
21
March 3, 2014. Thus, Ms. Williams had an opportunity to cure any
deficiencies in her complaint after reviewing the defendant’s
first pre-answer dispositive motion. Accordingly, because Ms.
Williams has not alleged that the reasons given for her non-
promotion were false, Ms. Williams’ complaint fails to
“contain[] sufficient factual matter” from which the Court can
“draw the reasonable inference” that the Department
discriminated against her in violation of the Act when she was
not promoted. Iqbal, 556 U.S. at 678. The Court will therefore
GRANT the Department’s Motion to Dismiss the non-promotion claim
in Count 1 of the complaint.
Charge of AWOL, Denial of Telework Requests and Removal.
The Department argues that Ms. Williams has not provided any
facts to support her assertion that she was placed on AWOL
rather than Leave Without Pay (LWOP) because of her
disabilities. Def.’s Mot. to Dismiss, ECF No. 20-1 at 15. Next,
the Department argues that none of Ms. Williams’ allegations
regarding the denial of her requests to telework suggest that it
was motivated by a “discriminatory animus” and thus does not
survive a motion to dismiss. Id. at 16. The Department then
argues that Ms. Williams’ allegations provide little factual
support from which the Court could draw an inference that she
was removed from her position because of discrimination and thus
do not raise her claim for relief above a speculative level.
22
Def.’s Mot. to Dismiss, ECF No. 20-1 at 16. In particular, the
Department notes that Ms. Williams’ allegations fail to suggest
that the Department acted unlawfully, but rather provide support
for her removal being for the reasons she was given and that she
herself alleged in her complaint. Id.
As alleged in her complaint, on July 22, 2011, Ms. Williams
“received a notice of proposed removal based on AWOL, failure to
follow directive, and failure to follow instruction.” Am.
Compl., ECF No. 18 ¶ 28. This occurred after Ms. Williams’
Family and Medical Leave Act (FMLA) leave expired, her requests
to telework and for LWOP were denied, she was instructed by
memorandum to report to work by July 11, 2011, and she responded
that she could not return to work on that day, but could on a
date 22 days later. Id. ¶¶ 22, 26, 28. Ms. Williams’ responds to
the Department’s arguments with a single sentence: “Plaintiff
alleges she was removed from federal service based on her
disabilities because instead of accommodating her and granting
her repeated requests to telework, Defendant marked her as AWOL
and then removed her based on her absences due to her
disabilities,” and cites caselaw to support the proposition that
removal is an adverse action. Pl.’s Opp’n, ECF No. 21 at 4-5.
The Department replies that Ms. Williams has failed to
adequately allege a causal link between her disability and her
23
removal and therefore fails to state a claim. See Def.’s Reply,
ECF No. 24 at 6.
As an initial matter, the Department does not dispute that
Ms. Williams’ removal from her position constitutes an adverse
employment action. See generally Def.’s Mot. to Dismiss, ECF No.
20. Thus, the caselaw cited by Ms. Williams does not address the
Department’s argument – that she failed to adequately allege
that she was removed from her position because of her
disabilities. As stated supra, Ms. Williams’ complaint needs to
“contain[] sufficient factual matter” from which the Court can
“draw the reasonable inference” that the Department
discriminated against her in violation of the Act when it
removed her from her position because it removed her because of
her disabilities. Iqbal, 556 U.S. at 678. Ms. Williams does make
this allegation, Am. Compl., ECF No. 18 ¶ 43, but she provides
no factual matter from which the Court can reasonably infer that
she was discriminated against because of her disabilities when
she was charged with AWOL, her telework requests were denied,
and she was removed from her position. She has not alleged that
the reasons she alleged were given for her termination --
because she was AWOL when she did not return to work after her
FMLA leave expired, and she failed to follow directive and
instruction when she did not return to work on the date given,
but returned 22 days later on the date of her own choosing –
24
were false. See Nurriddin, 674 F.Supp.2d at 90. Finally, her
paltry response to the Department’s Motion to Dismiss does not
provide the Court with any reason to disagree with the
Department. Accordingly, the Court will GRANT the Department’s
Motion to Dismiss the charge of AWOL, denial of telework
requests and removal claims in Count 1 of the complaint.
B. Count 3
In Count 3, Ms. Williams alleges that the Department
violated the Act when it terminated her in retaliation for
engaging in protected EEO activity. Am. Compl., ECF No. 18 ¶ 47.
The Department argues that “[t]he Complaint lacks factual
allegations asserting what constituted the predicate EEO
activity that purportedly led to the retaliation.” Def.’s Mot.
to Dismiss, ECF No. 20-1 at 17. Ms. Williams responds that the
Complaint “specifies numerous instances of protected activity”
including her March 3, 2011 formal complaint of discrimination,
her May 13, 2011 amendment to that complaint, and her March 6
and July 12, 2011 requests for reasonable accommodation. Pl.’s
Opp’n, ECF No. 21 at 6.
Although the Department has moved this Court to dismiss
Count 3 pursuant to Rule 12(b)(6), in its reply, the Department
raised for the first time the question of whether Ms. Williams
exhausted her administrative remedies regarding this claim,
arguing that Ms. Williams does not allege that her formal EEO
25
complaints are the basis of her retaliatory removal claim.
Def.’s Reply, ECF No. 24 at 7-9. The Department also argues that
is inappropriate for the Court to consider documentation
provided by Ms. Williams to demonstrate that she exhausted her
administrative remedies. Id. at 7. Because the Department raised
the jurisdictional issue for the first time in its reply, which
it stated was because Ms. Williams had only identified the acts
underlying the retaliation claim in her opposition, the Court,
sua sponte, directed Ms. Williams to file a surreply addressing
this issue. Minute Order of March 27, 2015. Ms. Williams timely
filed her surreply on March 30, 2015. Plaintiff’s Surreply, ECF
No. 25.
1. Ms. Williams exhausted her administrative remedies
on her retaliation claim
The Rehabilitation Act “limits judicial review to employees
‘aggrieved by the final disposition [or lack of final
disposition] of’ their administrative ‘complaint.’ Spinelli v.
Goss, 446 F.3d 159, 162 (D.C.Cir.2006)(quoting 29 U.S.C. §
794a(a)(1). In so doing, the Rehabilitation Act makes “failure
to exhaust administrative remedies ... a jurisdictional defect,
requiring dismissal for lack of subject-matter jurisdiction,” so
“the plaintiff has the burden to plead and prove it.” Ellison v.
Napolitano, 901 F.Supp.2d 118, 124 (D.D.C.2012)(quotation marks
omitted).
26
“[T]he proper method for challenging exhaustion under the
Rehabilitation Act is a Rule 12(b)(1) motion to dismiss for lack
of subject matter jurisdiction.” Rosier, 833 F.Supp.2d at 5
(citations omitted). “Even in the absence of a Rule 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction, the
Court has an independent duty to assess jurisdiction.” Id.
(citations omitted). In assessing jurisdiction, “the Court may
go outside the pleadings and consider evidence found in the
record, when necessary to fully resolve 12(b)(1) jurisdictional
challenges.” Id. (citations omitted). Whether or not the court
relies on documents outside of the complaint, the non-moving
party “is entitled to all reasonable inferences that can be
drawn in her favor.” Id. (citations omitted) (emphasis in the
original).
Pursuant to Equal Employment Opportunity regulations
applicable to the Department, see 29 C.F.R. § 1614.103, persons
who believe they have been discriminated against or retaliated
against, “must initiate contact with a counselor within 45 days
of the matter alleged to be discriminatory or, in the case of
personnel action, within 45 days of the effective date of the
action.” 29 C.F.R. § 1614.105. After attempting to resolve the
issue informally, and upon being notified that the matter has
not been resolved, the person must file a complaint with the
agency within 90 days. 29 C.F.R. § 1614.106(b). If a final
27
agency decision is not issued within 120 days of the filing of
the complaint, the person may file a civil action pursuant to 29
C.F.R. § 1614.310(g).
“A plaintiff fails to exhaust her administrative remedies
when the complaint she files in federal court includes a claim
that was not raised in the administrative complaint.” Latson v.
Holder, 82 F.Supp.3d 377, 384 (D.D.C.2015)(citations omitted).
“This exhaustion requirement is not a ‘mere technicality,’ but
‘serves the important purposes of giving the charged party
notice of the claim and narrow[ing] the issues for prompt
adjudication and decision.’” Id. (quoting Park v. Howard Univ.,
71 F.3d 904, 907 (D.C.Cir.1995).
With regard to Ms. Williams’ retaliatory removal claim, the
complaint alleges the following. On April 9, 2012, Ms. Williams
“filed a formal complaint alleging disability discrimination and
retaliation based on the December 23, 2011 denial of reasonable
accommodation and her February 4, 2012 removal.” Id. ¶ 41. Ms.
Williams alleges that “[m]ore than 120 days have passed since
the filing of this complaint and there has been no formal action
or appeal to the Merit Systems Protection Board.” Id. ¶ 3. In
her surreply, Ms. Williams provided documentation pertaining her
informal complaint of discrimination that preceded the formal
April 9, 2012 complaint. Pl.’s Surreply, ECF No. 26-2. This
documentation indicates that Ms. Williams contacted the EEO
28
office on February 6, 2012 regarding the “12/23” denial of
reasonable accommodation, reprisal for EEO participation in
December 2010, and termination. Id. On March 7, 2012, the
Department informed Ms. Williams that her claims for physical
disability and reprisal based on the December 23, 2011 denial of
reasonable accommodation for her disability by not providing her
appropriate time to submit supporting documentation from her
doctor and for termination had not been resolved informally and
that she could file a formal complaint. Id. Exhibit C to the
Department’s motion is Ms. Williams’ second formal complaint of
employment discrimination, in which she alleges that she was
terminated in reprisal for her first formal complaint of
harassment. Def.’s Mot. to Dismiss, ECF No. 20-3 at 18. Exhibit
D is the Department’s Notice of Acceptance for investigation of
Ms. Williams’ allegation that she was retaliated against for
prior EEO activity when she was unjustly terminated from her
employment. Id. at 22-23.
This documentation demonstrates that Ms. Williams
administratively exhausted her retaliation claim. Ms. Williams
initiated contact with the EEO counselor on February 6, 2012,
which is within 45 days of the December 23, 2011 denial of
reasonable accommodation. Ms. Williams filed her formal
complaint on April 9, 2012, which is within 90 days of the March
7, 2012 notification that her informal complaint had not been
29
resolved. Ms. Williams then filed this lawsuit on November 29,
2012, which is more than 120 days after she filed her formal
complaint. Finally, Ms. William’s administrative claim alleged
reprisal for her prior EEO complaint.
2. Ms. Williams has stated a claim for retaliation
under the Rehabilitation Act
“To prove retaliation, the plaintiff generally must establish
that he or she suffered (i) materially adverse action (ii)
because he or she had brought or threatened to bring a
discrimination claim.” Baloch, 550 F.3d at 1198. To survive a
motion to dismiss a retaliation claim, “all [the] complaint has
to say” is “the Department retaliated against me because I
engaged in protected activity.” Rochon v. Gonzalez, 438 F.3d
1211, 1220 (D.C.Cir.2006)(internal citations omitted); Munro v.
LaHood, 839 F.Supp.2d. 354, 364 (D.D.C.2012). Ms. Williams
alleges that she was terminated in retaliation for engaging in
protected activity. Am. Compl., ECF No. 18 ¶ 47. Contrary to the
Department’s assertions, Def.’s Reply, ECF No. 24 at 7-9, Ms.
Williams has sufficiently alleged the predicate EEO activing
that led to the retaliation. Specifically, on January 18, 2011,
Ms. Williams contacted an EEO counselor “regarding her non-
promotion, official reprimand, removal of alternative work
schedule, and performance appraisal.” Am. Compl., ECF No. 18 ¶
16. Thereafter, on March 3, 2011, she filed a formal complaint
30
in which she alleged “disability discrimination and retaliation
for requesting reasonable accommodations based on her non-
promotion, official reprimand, removal of alternative work
schedule, and performance appraisal.” Id. at ¶ 18. On May 13,
2011, Ms. Williams “amended her formal complaint to include the
February 11, 2011 reassignment of job duties, April 20, 2011
denial of reasonable accommodation to telework, and the April
20, 2011 denial of LWOP.” Id. at ¶ 24. Ms. Williams has
sufficiently alleged a claim for retaliation because she has
alleged that she was retaliated against because she engaged in
protected activity. Accordingly, the Court will DENY the
Department’s Motion to Dismiss Count 3 of the Amended Complaint.
V. The Department’s motion for summary judgment is premature
Although discovery has not yet occurred in this case, the
Department asserts that no genuine issue of material fact exists
with regard to Counts 1, 2, or 3, and moves in the alternative
for Summary Judgment, attaching 23 exhibits to its motion.
Def.’s Mot. to Dismiss, ECF No. 20-1 at 18. Ms. Williams
responds by asking the Court to “decline to consider the
administrative record materials submitted by Department and
convert Department’s motion to dismiss into a motion for summary
judgment because Ms. Williams is entitled to de novo review of
her claim and has not had the benefit of discovery in this
matter” but nonetheless attaches 11 exhibits to her opposition.
31
Pl.’s Opp’n, ECF No. 21 at 4. Ms. Williams further states that
because no discovery has taken place, it is not possible “for
Ms. Williams to adequately establish genuine issues of material
fact necessary to be litigated.” Id. at 7. The Department
replies that because Ms. Williams did not respond to its
Statement of Material Facts As to Which There is No Dispute, as
required by Local Rule h(1), the Court should consider those
facts admitted. Def.’s Reply, ECF No. 24 at 10.
Because both Ms. Williams and the Department have presented
materials outside of the pleadings, the Court will therefore
treat the motion as one for summary judgment. White v. Vilsack,
888 F.Supp.2d 93, 99-100 (D.D.C.2012)(citing Holy Land Found.
for Relief and Dev. V. Ashcroft, 333 F.3d, 156, 165 (D.C.Cir.
2003)).
The Court has considered the exhibits that the parties have
filed, some of which appear to be part of the administrative
proceedings arising out of Ms. Williams’ formal complaints of
discrimination with the Department, and concludes that because
discovery has not yet been undertaken, the record has not been
developed enough for there to be a determination of whether
there are any genuine issues of material fact in this case. The
Court understands that there have been administrative
proceedings, but the Rehabilitation Act specifically provides
for judicial review of allegations of discrimination following
32
Ms. Williams’ exhaustion of administrative remedies. See 29
U.S.C. 794a(a)(1). The Court concludes that the Department’s
motion for summary judgment is premature, and “declines, in its
discretion, to entertain the [Department’s] motion for summary
judgment before allowing for a period for discovery.” White, 888
F.Supp.2d at 100, Americable Int’l, Inc. v. Dep’t of the Navy et
al., 129 F.3d. 1271, 1274 (D.C.Cir.1998)(“As we have stated
before, summary judgment ordinarily “is proper only after the
plaintiff has been given adequate time for discovery.” First
Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380
(D.C.Cir.1988); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)(summary judgment appropriate only “after adequate time
for discovery”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
257 (1986) (plaintiff must have “a full opportunity to conduct
discovery”)”). The Court disagrees that Ms. Williams is required
to respond to the Department’s Statement of Material Facts As to
Which There is No Dispute before she has had the opportunity to
engage in discovery. The motion for summary judgment is DENIED
without prejudice.
VI. Conclusion
Upon consideration of the motion, the response thereto, the
applicable law, the entire record, and for the reasons stated
above, the Department’s Motion to Dismiss is GRANTED IN PART AND
DENIED IN PART, and the Department’s Motion for Summary Judgment
33
is DENIED without prejudice. Ms. Williams may proceed on her
claims in Count 2 and Count 3 of the Amended Complaint. Count 1
is hereby DISMISSED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
November 30, 2016
34