UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONSTANTE P. BAROT et al.,
Plaintiffs,
v.
Civil Action No. 18-140 (TJK)
ALDON MANAGEMENT,
Defendant.
ORDER
Plaintiffs Constante and Dolores Barot, proceeding pro se, sued Defendant Aldon
Management (“Aldon”) in the Superior Court of the District of Columbia. They assert a
scattershot array of claims under federal and District of Columbia law stemming from Constante
Barot’s employment as a custodian at a building managed by Aldon, and their tenancy in
employee housing related to that employment. See ECF No. 1-2 at 7–16 (“Compl.”).
Specifically, they appear to bring claims under Title VII of the Civil Rights Act, the Age
Discrimination and Employment Act (ADEA), the Fair Housing Act, the District of Columbia
Human Rights Act (DCHRA), and several provisions of District of Columbia landlord-tenant
law. See id. at 16. Aldon removed the case to this Court, ECF No. 1, and moved to dismiss the
complaint for failure to state a claim, ECF No. 12. For the reasons explained below, Aldon’s
motion will be granted in part and denied in part.
* * *
A motion to dismiss under Rule 12(b)(6) “tests whether a plaintiff has properly stated a
claim.” BEG Invs., LLC v. Alberti, 85 F. Supp. 3d 13, 24 (D.D.C. 2015). “A court considering
such a motion presumes that the complaint’s factual allegations are true and construes them
liberally in the plaintiff’s favor.” Id. Nonetheless, the complaint must set forth enough facts to
“state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements . . . do not suffice.” Iqbal, 556 U.S. at 678. “[A]lthough a pro se
complaint ‘must be construed liberally, the complaint must still present a claim on which the
Court can grant relief.’” Untalasco v. Lockheed Martin Corp., 249 F. Supp. 3d 318, 322 (D.D.C.
2017) (quoting Budik v. Dartmouth–Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013)).
“A court considering a pro se plaintiff’s complaint should look to ‘all filings, including filings
responsive to a motion to dismiss,’ to discern whether the plaintiff has ‘nudged [her] claim[s]
across the line from conceivable to plausible.’” Mehrbach v. Citibank, N.A., 316 F. Supp. 3d
264, 268 (D.D.C. 2018) (citation and internal quotation marks omitted) (first quoting Brown v.
Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015); then quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
* * *
Aldon moves to dismiss each of the identifiable claims in the complaint for
failure to state a claim. The Court considers each claim in turn.
Title VII of the Civil Rights Act
Aldon first asserts that Plaintiffs have failed to state a claim for employment
discrimination based on national origin under Title VII because they have not alleged that
“[Aldon’s] decisions with regard to employment (or housing as a condition of employment) were
made with any discriminatory intent or animus, or that a discriminatory motive was even at
play.” MTD at 6. But Aldon far overstates the requirements to sufficiently plead a claim of
discrimination under Title VII. “To state a prima facie case of discrimination, a plaintiff must
allege that she is part of a protected class under Title VII, she suffered a cognizable adverse
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employment action, and the action gives rise to an inference of discrimination.” Walker v.
Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015) (emphasis added). Aldon does not dispute the
first two requirements. And Plaintiffs have, though barely, “plead[ed] sufficient facts, if
accepted as true, to [at least] create a plausible inference of discrimination.” Thomas v. Wash.
Metro. Area Transit Auth., 305 F. Supp. 3d 77, 86 (D.D.C. 2018).
In their complaint, they allege that Aldon, on account of Plaintiffs’ Filipino national
origin, provided them with living quarters in the building where Constante Barot worked—a
condition of each custodian’s employment—that were smaller and otherwise inferior to his
“American” counterparts. See Compl. ¶¶ 1, 22, 29–30. They allege that these “similarly situated
co-employee[s]” were given “real two bedroom apartments while Plaintiffs were provided a
DIFFERENT TYPE” where the “[second] Bedroom was illegaly [sic] constructed from part of
the Laundry Room.” Id. ¶¶ 29–30. And they further allege that their “discounted rent is higher
than [Barot’s] American and younger counterpart whose apartment unit is a regular two bedroom
apartment.” Id. ¶ 36; see also ECF No. 1-2 at 74–78 (lease addendums for Constante Barot and a
non-Filipino custodian in another of Aldon’s buildings). Those allegations are sufficient to
create a plausible inference that Aldon’s actions were discriminatorily motivated and thereby
“raise [Plaintiffs’] right to relief above the speculative level,’” all that is required at this stage.
Brown v. Sessions, 774 F.3d 1016, 1023 (D.C. Cir. 2014) (quoting Twombly, 550 U.S. at 555).
The Age Discrimination in Employment Act
For similar reasons, Plaintiffs’ claim of age discrimination under the ADEA also survives
Aldon’s motion to dismiss. Aldon argues that Plaintiffs’ complaint “contains no mention of how
[Aldon’s] alleged conduct constitutes age discrimination” and “[n]o allegations [that] are ever
tied to any adverse actions of which Plaintiffs complain.” MTD at 6. But again, Aldon demands
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too much of the complaint. As with a claim of national-origin discrimination under Title VII, the
“essential elements” of an age discrimination claim are that “the plaintiff suffered an adverse
employment action . . . because of the plaintiff’s . . . age.” Baloch v. Kempthorne, 550 F.3d
1191, 1196 (D.C. Cir. 2008). Plaintiffs, noting that Constante Barot is 67 years old, allege that
Aldon provided Plaintiffs with inferior living quarters on account of his age. See Compl. ¶¶ 3,
22, 29, 36. They note that Constante Barot is the “oldest among his counterparts,” who each
allegedly were provided superior housing arrangements, and in at least one case at a lower rent,
and that this disparate treatment was due to his comparatively older age. See ECF No. 14
(“Opp’n”) at 7; Compl. ¶ 36. Though admittedly minimal, those allegations, particularly “when
considered through the liberal lens afforded pro se filings,” Fennel v. AARP, 770 F. Supp. 2d
118, 131 (D.D.C. 2011), are sufficient to plausibly allege an inference of age discrimination.
Housing Discrimination Claims
Aldon argues that Plaintiffs’ claims under the Fair Housing Act and the DCHRA for
housing discrimination on the basis of their national origin should be dismissed for the same
deficiencies it identified with Plaintiffs’ Title VII claims. See MTD at 10–12 & n.5. As with a
claim for employment discrimination, to state a claim for disparate treatment under the Fair
Housing Act on the basis of race, the plaintiff must allege “that the defendant intentionally
discriminated against [him] on the basis of [his national origin].” 2922 Sherman Ave. Tenants’
Ass’n v. District of Columbia, 444 F.3d 673, 682 (D.C. Cir. 2006).1 For the reasons already
explained, however, Plaintiffs’ allegations that Aldon discriminated against him on account of
his national origin just barely pass muster.
1
Aldon asserts that Plaintiffs’ DCHRA housing discrimination claim should be analyzed under
the same standards as Title VII claims. See MTD at 10 n.5. Under that approach, Plaintiffs’
DCHRA housing discrimination claim survives as well.
4
Nonetheless, Aldon alternatively argues that Plaintiffs’ Fair Housing Act claim fails as a
matter of law because Plaintiffs only allege “post-acquisition housing discrimination,” which, it
contends, 42 U.S.C. § 3604(b) of the Act does not prohibit. See id. at 12–13. While some courts
have found that § 3604(b) does not extend to discriminatory conduct interfering with an
individual’s use of property after the property was leased or sold, see, e.g., Halprin v. Prairie
Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327, 329 (7th Cir. 2004); see also
Clifton Terrace Assocs., Ltd. v. United Techs. Corp., 929 F.2d 714, 719 (D.C. Cir. 1991) (finding
that the Fair Housing Act “reach[es] only discrimination that adversely affects the availability of
housing,” and not “matter[s] of habitability”), the Court need not address the scope of § 3604(b)
here. Plaintiffs have alleged in their complaint that Aldon discriminated against them in the
provision of housing; specifically, they allege that Plaintiffs were provided with inferior housing
on account of their national origin when Constante Barot was hired as a custodian. See Compl.
¶ 22 (“[Aldon] provided Plaintiffs a DIFFERENT APARTMENT UNIT than [Barot’s] American
counterpart.” (emphasis added)); see also Opp’n at 7 (claiming discrimination when “Plaintiffs
were provided [a] different kind of apartment unit” and complaining of “the iniquity that [Aldon]
has been hiding for so many years”). Those allegations fall within the scope of § 3604(b).
Breach of the Warranty of Habitability
Aldon next contends that Plaintiffs’ claims for breach of the implied warranty of
habitability under District of Columbia law must be dismissed because Plaintiffs failed to
sufficiently allege a “nexus between any code violation and Plaintiffs’ health or safety.” MTD at
14. It further claims that Plaintiffs have not demonstrated that Aldon negligently failed to cure
any defects in the habitability of their apartment such that Aldon is liable for damages. Id. at 15.
The Court disagrees. In the District of Columbia, “a landlord’s failure to comply with the
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housing regulations constitutes a privately-enforceable breach of the warranty of habitability.”
Parham v. CIH Props., Inc., 208 F. Supp. 3d 116, 124 (D.D.C. 2016) (citing Javins v. First Nat’l
Realty Corp., 428 F.2d 1071, 1082 (D.C. Cir. 1970)); see also 14 D.C.M.R. § 301. The warranty
“creates for landlords a continuing duty during the lease term to ‘exercise reasonable care to
maintain rental premises in compliance with the [D.C.] housing code.’” Parham, 208 F Supp. 3d
at 124 (alteration in original) (quoting George Wash. Univ. v. Weintraub, 458 A.2d 43, 47 (D.C.
1983)); see also Childs v. Purll, 882 A.2d 227, 234 (D.C. 2005) (“[T]he Housing Regulations
impose numerous duties on landlords and their agents to keep residential premises safe and
habitable, and not to rent habitations that are unsafe.”).
Here, Plaintiffs allege that they entered into a lease with Aldon for a two-bedroom
apartment with four occupants, and they contend that Aldon has breached those terms by failing
to provide two habitable bedrooms under applicable District of Columbia Housing regulations.
See Compl. ¶¶ 8–12, 21, 26–27. They allege that one of the purported bedrooms “was illegally
constructed from part of the Laundry Room” and that its “only window measured 4 ft and 7
inches high,” and thus that Plaintiffs “occupy/rent an apartment that is dangerous and [a] fire
hazard.” Id. ¶ 21. To corroborate their safety concerns, they attach to their complaint an
inspection report from the District of Columbia Department of Consumer Affairs indicating that
the window in the second bedroom “does not meet today’s building code requirement for
egress.” ECF No. 1-2 at 57. And they allege that Aldon may have been aware of these
deficiencies at the time the room was constructed. See Compl. ¶¶ 27, 28. These allegations,
which plausibly allege that Aldon has failed to maintain two habitable bedrooms under
applicable District of Columbia housing regulations as required by the terms of the lease, are
sufficient to plead a claim for breach of the implied warranty of habitability. See 14 D.C.M.R.
6
§§ 400.3 (“No person shall rent . . . any habitation . . . unless [it is] in a clean, safe, and sanitary
condition.”); 403.2 (“Each habitable room shall conform to the requirements of this subtitle.”);
see also id. §§ 502.1 (natural light requirements for habitable rooms); 506 (ventilation
requirements for habitable rooms).
Remaining Claims Under the District of Columbia Law
Aldon lastly argues that Plaintiffs’ two remaining claims—for violations of (1) D.C.
Code § 42-3505.2 and (2) D.C. Code §§ 42-3502.22 and 42-3502.13(d)—must be dismissed for
failure to state a claim.2 The Court agrees. As to the former, the D.C. Court of Appeals has
explicitly held that § 42-3505.2 does not provide an independent cause of action for damages
against a landlord. See Twyman v. Johnson, 655 A.2d 850, 855–58 (D.C. 1995). And as to the
latter, Plaintiffs have not made any allegations in their complaint or subsequent filings that
Aldon failed to disclose any of the required information listed in D.C. Code §§ 42-3502.13(d) or
42-3502.22. Accordingly, those two claims must be dismissed.
* * *
For the above reasons, Aldon’s motion to dismiss the complaint for failure to state a
claim, ECF No. 12, is GRANTED IN PART and DENIED IN PART. Plaintiffs’ claims under
D.C. Code §§ 42-3502.13(d), 42-3502.22, and 42-3505.2 are DISMISSED. To the extent that
2
In the section of their complaint entitled “Prayer for Relief,” Plaintiffs request, among other
things, “emotional distress damages.” See Compl. at 10. Aldon argues that Plaintiffs have not
adequately pleaded a claim for intentional infliction of emotional distress, and thus that to the
extent they bring such a claim, it must be dismissed. MTD at 16–17. The Court agrees.
Although Plaintiffs’ filings are not clear, to the extent Plaintiffs seek to bring an independent
claim for intentional infliction of emotional distress, they make no allegations in their complaint
that would rise to the level of “extreme or outrageous conduct” necessary to support such a
claim. Tiefenbacher v. Am. Ass’n of Retired Persons, No. 05-1802(CKK), 2006 WL 1126841, at
*3 (D.D.C. April 27, 2006).
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Plaintiffs seek to bring an independent claim for intentional infliction of emotional distress, that
claim is also DISMISSED.
The parties shall appear for a status conference on April 18, 2019, at 9:30 a.m. in
Courtroom 11. Aldon’s deadline to answer Plaintiffs’ complaint is hereby EXTENDED to a
date to be determined at the status conference.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 31, 2019
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