CONGRESS v. DISTRICT OF COLUMBIA

Filing 30

MEMORANDUM OPINION re 29 Order Granting in Part and Denying in Part Defendant's Motion to Dismiss. Signed by Judge Christopher R. Cooper on 8/27/2018. (lccrc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TRINA CONGRESS,
Plaintiff,
v.

Case No. 17-cv-907 (CRC)

DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
What a difference a lawyer can make. Trina Congress brought suit against the District of
Columbia alleging discrimination on the basis of her disability. The District moved to dismiss
her original complaint, and the Court dismissed all but one of her claims. Now represented by
new counsel, Congress has filed an amended complaint with the District’s consent. Once more,
the District has moved to dismiss. This time the result is a bit more favorable to Congress. The
Court will still grant the District’s motion in part, dismissing Congress’s ADA claims and two of
her Rehabilitation Act claims while keeping the remaining two Rehabilitation Act claims.
I.

Background
A. Factual Background
The Court draws this factual background from the amended complaint, assuming the

truth of all well-pled allegations as it must on a motion to dismiss. See, e.g., Sissel v. U.S. Dep’t
of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). Plaintiff Trina Congress was hired
by the District of Columbia as an Education Aide in December 2011. Am. Compl. ¶ 23. When
she was hired, Congress suffered from nerve damage that impaired her physical abilities as a
consequence of a prior car accident. Id. ¶¶ 9–10. She informed her supervisor, principal
Abdullah Zaki, of her condition after being hired. Id. ¶ 25.

In September 2013, Congress requested an elevator key so she would not have to use the
stairs of the school building. Id. ¶ 26. She also requested that Zaki ensure the school’s handicap
parking spaces were kept available for those with valid placards, such as Congress, so that she
could park closer to the school. Id. ¶ 27. Zaki allegedly denied Congress’s requests for
accommodations. Id. ¶¶ 27, 30. Congress repeated her requests for both the key and an open
parking space throughout 2013 and 2014, and claims that Zaki never acted on them. Id. ¶¶ 28,
31.
During 2013 and 2014, Congress also took intermittent medical leave due to her nerve
damage. Id. ¶ 33. Nevertheless, Zaki several times denied Congress medical leave and placed
her on absent without leave (“AWOL”) status. Id. ¶ 35, 51. He also emailed Congress saying
that he “had no time for someone being sick.” Id. ¶ 37.
On September 9, 2014, Congress submitted a complaint against Zaki to the District’s
Labor Management and Employee Relations team. Id. ¶ 42. She met with the team in October
2014 to discuss her complaint. Id. ¶ 43. During that meeting, Congress indicated that Zaki had
forced her to cover classes that were not included in her job description and that she could not
cover because of her disability and requested that Zaki stop assigning her these duties. She also
told the team that Zaki placed her on leave and refused to grant her an accommodation such as an
elevator key or closer parking spot. Id. ¶¶ 44–47. Immediately after that meeting, Congress was
informed that a claim was being asserted against her for alleged residency fraud—a claim she
says was “previously adjudicated” in July 2013. Id. ¶¶ 49–50.
In January 2015, Congress claims she was assaulted by a student, which aggravated her
pre-existing nerve damage. Id. ¶ 53. From January 29 through May 4, Congress was on workers
compensation leave due to the injuries she suffered in the assault. Id. ¶ 54. While she was on

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leave, Zaki gave Congress a negative performance evaluation that was later forced to be
rescinded due to inadequate documentation. Id. ¶¶ 55–57. He also refused for several months to
sign paperwork necessary to allow the relevant insurance carrier to process Congress’s claims for
treatment stemming from her injuries. Id. ¶ 60.
On May 6, 2015, shortly after Congress returned to work, Zaki terminated her
employment, allegedly because of dishonesty associated with the residency fraud claim. Id. ¶ 62.
A few months later, in July 2015, Congress filed a charge of discrimination against the District
with the Equal Employment Opportunity Commission (EEOC) and the D.C. Office of Human
Rights. See MTD Ex. 1. In her complaint, Congress checked the boxes for retaliation and
disability discrimination and detailed how Zaki had refused to provide her an elevator key or
parking spot and terminated her employment. Id.
B. Procedural History
After receiving a right to sue letter from the EEOC, Congress brought suit against the
District of Columbia. Her original complaint raised three claims: (1) discrimination on the basis
of her disability due to a failure to provide a reasonable accommodation, in violation of the
Americans with Disabilities Act (“ADA”), Rehabilitation Act, and D.C. Human Rights Act; (2)
retaliation because of protected activities, in violation of the ADA, Rehabilitation Act, and D.C.
Human Rights Act; and (3) creation of a disability-based hostile work environment, in violation
of the ADA and Rehabilitation Act. See Compl. ¶¶ 20–27. The District filed a motion to
dismiss, which the Court granted as to all but Congress’s hostile work environment claim under
the Rehabilitation Act. See Congress v. District of Columbia, 277 F. Supp. 3d 82, 86 (D.D.C.
2017).

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While the parties were undergoing discovery, Congress’s original counsel filed a motion
to withdraw. See Mot. Withdraw Attorney [ECF No. 17]. Following a sealed, ex parte hearing,
the Court granted the motion. See Order [ECF No. 18] (Jan. 24, 2018). The Court also stayed
discovery for a period of 30 days from the date of the Order to allow Congress to seek new
counsel. Id. The stay was extended for an additional 60 days on Congress’s request. See
Minute Order (Jan. 31, 2018).
On March 20, 2018, Congress’s new (and current) counsel entered a notice of
appearance. He also filed a motion seeking reconsideration of the Court’s prior dismissal ruling
or, alternatively, leave to file an amended complaint. After the District indicated its consent to
the filing of an amended complaint, the Court granted the motion to amend, denied the motion
for reconsideration as moot, and directed the District to file an answer or motion to dismiss the
amended complaint. See Minute Order (May 8, 2018). In response, the District once more
moved for dismissal.
II.

Legal Standards
A. Rule 12(b)(6) standards
In analyzing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the

Court must determine whether the complaint “contain[s] 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)). This requires “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. To make this determination, the Court “must take all of the factual
allegations in the complaint as true.” Id. It also must “constru[e] the complaint liberally in the
plaintiff’s favor with the benefit of all reasonable inferences derived from the facts alleged.”

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Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). Finally, the Court may only
“consider the facts alleged in the complaint, documents attached thereto or incorporated therein,
and matters of which it may take judicial notice.” Id.
B. Exhaustion of Administrative Remedies
Arguments that a plaintiff failed to exhaust administrative remedies are ordinarily
addressed through the vehicle of a motion to dismiss under Rule 12(b)(6). See, e.g., Scott v.
Dist. Hosp. Partners, 60 F. Supp. 3d 156, 161 (D.D.C. 2014). As an affirmative defense, the
District bears the burden of pleading and proving failure to exhaust. Bowden v. United States,
106 F.3d 433, 437 (D.C. Cir. 1997).
The ADA and Rehabilitation Act each have their own set of exhaustion requirements and
statutes of limitations. As to the ADA, the requirements for Title VII of the Civil Rights Act
govern exhaustion of administrative remedies. See 42 U.S.C. § 12117(a). An aggrieved party
must file a charge with the EEOC within 300 days of the allegedly unlawful employment
practice. 1 Id. § 2000e-5(e)(1). She must then file her federal suit within 90 days of receiving a
right to sue letter or a final agency decision. Id. § 2000e-5(f)(1).
As to the Rehabilitation Act, as explained in the Court’s opinion on the prior motion to
dismiss, it is an open question in this Circuit whether exhaustion of administrative remedies is
required. See Congress, 277 F. Supp. 3d at 87. In light of the Rehabilitation Act’s incorporation
of the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964” and
in 42 U.S.C. § 2000e-5(e)(3)—none of which involve exhaustion of administrative remedies—

1

The statute provides that aggrieved parties typically have 180 days to file a charge with
the EEOC. However, when the EEOC has a work-sharing agreement with its state counterpart,
as it does with the District of Columbia, this deadline is extended to 300 days. See, e.g., Tucker
v. Howard University Hosp., 764 F. Supp. 2d 1, 6 (D.D.C. 2011).
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the Court continues to believe that the more persuasive interpretation is that the Rehabilitation
Act does not require exhaustion as a prerequisite to suit. See id. The statute of limitations for
Rehabilitation Act claims also remains an open question in this Circuit. Id.; see also Alexander
v. Washington Metro. Area Transit Auth., 82 F.3d 544, 551 (D.C. Cir. 2016) (declining to
resolve this question). The Court will address that issue in more detail below.
C. Substantive Law
Both the Rehabilitation Act and the ADA prohibit discrimination on the basis of
disability. See 29 U.S.C. § 794 (Rehabilitation Act); 42 U.S.C. § 12112(a) (ADA). To state a
claim, a plaintiff must allege: (1) that she has a disability as defined in the ADA or Rehabilitation
Act, (2) that she was qualified for her position, and (3) that she suffered an adverse employment
action because of her disability. See, e.g., Blackwell v. SecTek, Inc., 61 F. Supp. 3d 149, 156
(D.D.C. 2014).2
While the D.C. Circuit has not so held, other circuits and judges in this District have
found that the ADA also permits plaintiffs to raise a claim for a hostile work environment. See,
e.g., Floyd v. Lee, 968 F. Supp. 2d 308, 328 (D.D.C. 2013) (compiling cases). As for the
Rehabilitation Act, judges in this District ordinarily assume that it, too, permits a hostile work
environment claim. See, e.g., Sanders v. Kelly, 180 F. Supp. 3d 35, 45 n.10 (D.D.C. 2016); see
also Kuraner v. Mineta, 2001 WL 936369, at *1 (D.C. Cir. July 10, 2001) (per curiam). To make
out such a claim, a plaintiff must allege that her employer “subjected [her] to discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of

2

Because the Rehabilitation Act and the ADA have similar standards for the most part,
courts generally use cases interpreting the two statutes interchangeably. See, e.g., Chenari v.
George Washington Univ., 847 F.3d 740, 746 (D.C. Cir. 2017).
6

[her] employment and create an abusive working environment.” Baloch v. Kempthorne, 550
F.3d 1191, 1201 (D.C. Cir. 2008) (internal quotation omitted).
Finally, both the ADA and the Rehabilitation Act protect an employee from retaliation
“on account of his or her having exercised or enjoyed, or on account of his or her having aided or
encouraged any other individual in the exercise or enjoyment of, any right granted or protected
by” the statutes. 42 U.S.C. § 12203 (ADA); see also 29 U.S.C. § 791(f) (incorporating ADA
standard in 42 U.S.C. § 12203). To make a prima facie case for retaliation, the plaintiff must
allege that she engaged in protected activity, that she suffered an adverse action, and that “a
causal link connects the two.” Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014) (citation
omitted).
III. Analysis
Congress’s amended complaint raises four main claims under both the ADA and the
Rehabilitation Act: (1) disability-based hostile work environment, (2) retaliatory hostile work
environment, (3) disability discrimination, and (4) retaliatory discharge. The District has moved
to dismiss all of Congress’s claims.
A. Congress’s Hostile Work Environment Claims (Counts I and II)
Congress first raises two hostile work environment claims—one based on her disability
and one retaliatory—under the ADA and the Rehabilitation Act. The District argues that
Congress’s ADA claims must be dismissed for failure to exhaust administrative remedies
because she did not raise a hostile work environment claim in her EEOC complaint. It further
argues the Rehabilitation Act claims should be dismissed because Congress did not file suit
within the applicable statute of limitations.

7

1. Whether Congress exhausted her ADA claims.
As a precursor to bringing suit, as noted above, Congress must have exhausted her
remedies for her ADA claims. To do so, she must have raised the claims she brings in her
federal suit in her EEOC charge. See, e.g., Marshall v. Federal Express Corp., 130 F.3d 1095,
1098 (D.C. Cir. 1997).
Congress’s administrative charge, however, makes no mention of a hostile work
environment.3 In the charge’s narrative description, Congress stated that she was “denied . . . a
reasonable accommodation,” namely “an elevator key to avoid using the stairs” and by “not
preventing faculty members from parking in the handicap space.” MTD Ex. 1. Congress further
alleges that after she complained in October 2014 “about teaching classes that [she] was not
supposed to teach,” an “investigator told [her] that she would be investigated for dishonesty” and
she was thereafter discharged “for dishonesty that stemmed from” that investigation. Id.
Congress also noted Zaki’s refusal to sign paperwork for her to receive medication after the
attack from the student. Id.
This administrative charge reads like a textbook example of failure to accommodate and
retaliation. Congress says she was denied accommodations she requested and, following
complaints, she was discharged. Nowhere does Congress reference the hallmarks of a hostile
work environment claim, such as harassment from coworkers or insulting or disparaging
comments. Nor does Congress’s narrative description indicate a continued pattern of conduct as
is typical of a hostile work environment claim. Rather, it describes discrete events—being

The Court may consider Congress’s administrative filing because it is incorporated into
her complaint, Am. Compl. ¶ 8a. See, e.g., Charles v. District of Columbia, 164 F. Supp. 3d 98,
100 (D.D.C. 2016), aff’d, 690 F. App’x 14 (D.C. Cir. 2017).
3

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denied an accommodation, being discharged—without linking them together into a pattern of
events that might form a hostile work environment. In all, Congress’s charge provides little if
any notice that she intended to bring a hostile work environment claim.
Congress nevertheless urges the Court to read her EEOC charge as raising a hostile work
environment claim given the more lenient standard that applies for exhausting such claims.
True, courts do not require a plaintiff to have invoked a hostile work environment claim by name
or to use specific “magic words” in order to exhaust it. See, e.g., Brokenborough v. District of
Columbia, 236 F. Supp. 3d 41, 50 (D.D.C. 2017). But typically the plaintiff must offer at least
some suggestion of a hostile work environment in the charge narrative, such as by referring to an
ongoing pattern of conduct or describing a workplace pervaded by abuse. See, e.g., Leach v.
Nat’l Railroad Passenger Corp., 128 F. Supp. 3d 146, 153 (D.D.C. 2015) (finding plaintiff
exhausted hostile work environment claim where her EEOC charge said her workplace “became
hostile” and she felt “intimidated, threatened and nervous at work”); Whorton v. WMATA, 924
F. Supp. 2d 334, 341 (D.D.C. 2013) (finding plaintiff exhausted hostile work environment claim
where her EEOC charge said that she was “subject to a continuous pattern of discrimination,
harassment, and retaliation” from her peers).
Congress’s charge does neither. Her description of discrete events that indicate a failure
to accommodate or retaliation could not be “reasonably expected upon investigation to lead to a
hostile work environment claim,” Park, 71 F.3d at 908. As a consequence, Congress did not
raise a hostile work environment claim in her EEOC charge.
2. Whether Congress’s Rehabilitation Act claims were timely filed.
The District next argues that Congress’s hostile work environment claims under the
Rehabilitation Act should be dismissed because she failed to file them within the requisite statute

9

of limitations period. 4 As an initial matter, the parties dispute what the appropriate statute of
limitations is for a Rehabilitation Act claim. The Rehabilitation Act contains no specific statute
of limitations, and as a result “courts generally ‘borrow one from an analogous state cause of
action.’” Alexander, 826 F.3d at 551. The District contends that the appropriate statute of
limitations is the one-year statute of limitations in the D.C. Human Rights Act. MTD at 10–11;
see D.C. Code § 2-1403.16(a). Congress, in turn, asks the Court to apply the three-year statute
of limitations for personal injury suits under D.C. law. Opp’n 9–10; see D.C. Code § X.5 Unlike
in the prior motion dismiss, the Court must resolve this dispute: since Congress was discharged
in 2015 and filed suit in 2017, her claims are likely untimely under the one-year statute of
limitations but timely under the three-year statute of limitations.
The Court ultimately agrees with the District that the D.C. Human Rights Act is the more
analogous state cause of action and will apply its one-year statute of limitations. Admittedly,
judges within this District have typically applied the three-year statute of limitations to
Rehabilitation Act claims. See, e.g., Adams v. D.C., 740 F. Supp. 2d 173, 184 (D.D.C. 2010);
Gordon v. D.C., 605 F. Supp. 2d 239, 245 (D.D.C. 2009). However, the D.C. Court of Appeals
recently held that the D.C. Human Rights Act was the most analogous D.C. cause of action and
applied its one-year statute of limitations. Jaiyeola v. District of Columbia, 40 A.3d 356, 368

The Court has not previously considered whether Congress’s Rehabilitation Act hostile
work environment claims were timely because the District did not raise that argument in its
motion to dismiss the original complaint. See Congress v. District of Columbia, 277 F. Supp. 3d
82, 90 n.5 (D.D.C. 2017).
4

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Congress states in her opposition that the Court previously applied the three-year statute
of limitations. Pl.’s Opp’n at 9–10. This statement is inaccurate. In its prior opinion, the Court
did not decide which statute of limitations should apply to Rehabilitation Act claims because the
challenged claims were untimely under either the one-year or three-year statute. See Congress,
277 F. Supp. 3d at 88–89.
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(D.C. 2012). The Court is aware of no decisions after Jayieola that have addressed in detail
whether the three-year or one-year statute of limitations should be applied. See, e.g., Alexander,
825 F.3d at 551 (declining to resolve the question because the plaintiff’s claims were timely
under either statute of limitations).
The Court finds Jaiyeola’s reasoning persuasive. As the Court of Appeals explained,
D.C. Human Rights Act and the Rehabilitation Acts have a “shared purpose and ambitious
aims”—both seek to end discrimination against individuals with disabilities. 40 A.3d at 367. To
achieve that goal, “both statutes create private causes of action for disabilities who have been
victimized by disability discrimination” and both allow for a similar set of remedies including
compensatory damages and equitable relief. Id. And “both statutes employ substantially the
same definition of the term ‘disability.’” Id. The only real substantive difference between the
two goes to the scope of their coverage: the D.C. Human Rights Act prohibits discrimination on
additional bases such as gender and race and “applies broadly to proscribe discrimination in
employment, membership in labor unions, housing and real estate transactions, public
accommodations, and education institutions.” The Rehabilitation Act, on the other hand, focuses
solely on discrimination against individuals with disabilities by programs or activities receiving
federal funds. Id. at 365. But these differences of scope do not override the similarities at the
core of the two statutes.
The D.C. Human Rights Act thus provides a more analogous cause of action to the
Rehabilitation Act than the general personal injury statute. D.C. personal injury claims cover a
much wider swath of injuries, often including conduct that involves no discrimination
whatsoever, whereas the D.C. Human Rights Act is targeted to discrimination specifically. See
id. at 367–68. Given the similarity of purpose, rights, and remedies, the D.C. Human Rights Act

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is a better fit for the Rehabilitation Act. See Wolsky v. Medical College of Hampton Roads, 1
F.2d 222, 224 (4th Cir. 1993) (applying statute of limitations in Virginia Rights of Persons with
Disabilities Act to Rehabilitation Act claims).6
Finally, the decision here to apply the one-year statute of limitations is also consistent
with the deference owed to the D.C. Court of Appeals on matters of D.C. law. Cf. Williams v.
Martinez, 586 F.3d 995, 1001 (D.C. Cir. 2009) (“[O]n questions of District of Columbia law this
court defers to the D.C. Court of Appeals.”). Of course, which statute of limitations to apply to
Rehabilitation Act claims is a question of federal, not D.C., law and the decision in Jaiyeola is
not binding on this Court. But the determination as to which D.C. cause of action is most akin to
the Rehabilitation Act turns on an interpretation of D.C. law. The Court therefore accords
considerable persuasive weight to the conclusion of the D.C. Court of Appeals, as the final
authority on D.C. law, that the D.C. Human Rights Act is the more analogous cause of action.
For all these reasons, the Court will apply the one-year statute of limitations to Congress’s
Rehabilitation Act claims. Since Congress’s suit was filed more than one year after her
discharge, her Rehabilitation Act claims are untimely.

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The Court recognizes that many courts of appeals have applied personal injury statutes
to Rehabilitation Act claims. See Wolsky, 1 F.3d at 224 (collecting cases). In some situations,
this is because the state lacked an analogous law prohibiting disability discrimination that had a
statute of limitations to borrow. See id. (discussing cases). Other courts have analogized to suits
brought under 42 U.S.C. §§ 1981 and 1983, for which courts borrow state personal injury statute
of limitations. See, e.g., Jaiyeola, 40 A.3d at 365 (discussing this trend). But suits under 42
U.S.C. §§ 1981 and 1983 have no direct counterpart in state law. See, e.g., Wilson v. Garcia,
471 U.S. 261, 272 (1985), superseded in part by 28 U.S.C. § 1658. In contrast, the
Rehabilitation Act does have a direct counterpart in D.C. law, namely the D.C. Human Rights
Act and its analogous prohibition against disability discrimination. As a result, the Court is not
persuaded by the general tendency to apply the personal injury statute of limitations to
Rehabilitation Act claims.
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Congress further argues that the tolling provision in D.C. Human Rights statute of
limitations saves her claims even under the one-year statute of limitations. Opp’n at 10 n.8. As
the D.C. Circuit has recognized, if the Court borrows the D.C. Human Rights Act’s statute of
limitations, it must also borrow its tolling provision. See Alexander, 826 F.3d at 551. The D.C.
Human Rights Act provides that the “timely filing of a complaint” with the EEOC or the D.C.
Office of Human Rights “shall toll the running of the statute of limitations while the complaint is
pending.” D.C. Code § 2-1403.16(a).
Since she filed a timely complaint with the D.C. Office of Human Rights, Congress
contends her claim is still timely by operation of this tolling provision. But as discussed above,
Congress’s charge with the D.C. Office of Human Rights did not raise a hostile work
environment claim. Her filing of the complaint therefore cannot toll the statute of limitations for
her hostile work environment claims in this Court. See, e.g., Rush v. Federal Nat’l Mortgage
Ass’n, 208 F. Supp. 3d 1, 11–12 (D.D.C. 2016) (holding that filing of complaint with D.C.
Office of Human Rights did not toll statute of limitations as to religious retaliation claim because
the complaint did not raise any such claim). Since more than one year passed between
Congress’s discharge and her filing of her Rehabilitation Act hostile work environment claims
and the tolling provision does not apply here, Congress’s Rehabilitation Act hostile work
environment claims are untimely.
B. Congress’s Discrimination Claim (Count III)
The District next argues that Congress’s disability discrimination claims must be
dismissed. As to her APA claim, it contends that Congress did not timely file suit. As to her
Rehabilitation Act claim, it maintains that Congress fails to allege a proper claim.

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1. Whether Congress timely filed her ADA claims.
As to Congress’s ADA discrimination claim, the District does not argue that she failed to
raise such a claim in her EEOC charge—nor could it, since the charge explicitly states that
Congress was “discriminated against” because of her disability “in violation of the Americans
with Disabilities Act.” MTD Ex. 1. Rather, the District submits that Congress failed to file suit
within 90 days of receiving her right to sue letter. The District notes that her right to sue letter
was dated October 14, 2016, but Congress did not file suit until May 15, 2017 according to the
docket. In turn, Congress argues that she did not receive her right to sue notice until January 23,
2017 and her prior counsel (unsuccessfully) attempted to file suit April 17, 2017, less than 90
days later, making her suit timely.
The Court need not address the first dispute—when Congress received the right to sue
letter—because even assuming she received it on the later date, her suit still was not timely filed.
Congress alleges she received her right to sue letter January 23, 2017. Am. Compl ¶ 8b. The
original complaint in this case was filed on May 15, 2017. This is more than 90 days after the
right to sue letter was received.
Congress nevertheless insists that her suit is timely in light of her prior counsel’s
unsuccessful attempt to file suit April 17, 2017, which is within the 90-day period. Opp’n at 8
n.5. But Congress’s counsel admitted he was not an active member of this Court’s bar at the
time he attempted to file the complaint on April 17. See Pl.’s Mem. Law Supp. Opp’n Def.’s
Mot. Dismiss at 5. Under Court’s local rules, in order for an attorney to file a case on behalf of a

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client, she must be an active member of this Court’s bar. LCvR 83.2.7 Consequently,
Congress’s former counsel could not file a complaint or open her case on April 17, 2017.
The cases that Congress cites regarding when a complaint is considered filed do not apply
here. Those cases involve situations where clerks improperly rejected filings because of an issue
of form, such as paper size or failure to pay a filing fee. See, e.g., Innovatit Seafood Sys., LLC
v. Comm’r for Patents, 240 F.R.D. 23, 25 (D.D.C. 2007). The clerks’ rejection of the filings in
those cases directly violated Federal Rule of Civil Procedure 5(d)(4), which states that a clerk
“must not refuse to file a paper solely because it is not in the form prescribed by these rules or by
a local rule or practice.” But whether the attorney seeking to file the complaint is a member of
the Court’s bar is not an issue of form. These cases, based as they are on Rule 5(d)(4)’s
prohibition, are thus inapposite. In sum, Congress’s former counsel could not—and thus did
not—file her original complaint on April 17, 2017. The Court will thereafter treat the complaint
as filed on May 15, 2017 as the docket states. That date falls more than 90 days after the date
Congress allegedly received her right to sue notice, making her ADA claims untimely. 8
2. Whether Congress states valid Rehabilitation Act claims.
The District next argues that Congress’s discriminatory discharge claim should be
dismissed because she does not allege a valid claim. MTD at 18–19. To state a valid claim,

7

There are exceptions to this rule, such as for attorneys employed by the United States
government or attorneys representing indigent clients, but none of them apply here. See LCvR
83.2.
8

Nor can Congress rely on equitable tolling to save her ADA claims. Equitable tolling is
not appropriate in cases with “garden variety claim[s] of excusable neglect.” Irwin v. Dep’t of
Veteran Affairs, 498 U.S. 89, 96 (1990). Where, as here, “counsel blundered to his client’s
prejudice, the remedy is malpractice litigation against the culprit, not the continuation of
litigation against an adversary who played no role in the error.” Farzana K. v. Indiana Dep’t of
Educ., 473 F.3d 703, 706 (7th Cir. 2007).
15

Congress need only allege that (1) she was a qualified individual with a disability, (2) her
employer knew of her disability, and (3) she suffered an adverse employment action because of
her disability. See, e.g., Blackwell, 61 F. Supp. 3d at 156. Her complaint plausibly alleges
precisely that. See Am. Compl. ¶¶ 20–22 (alleging Congress suffers a disability, namely nerve
damage); id. ¶ 25 (alleging Congress informed her supervisor of her disability); id. ¶¶ 62, 84–87
(alleging Congress was terminated because of her disability). She therefore states a valid claim,
and the Court will deny the government’s motion.
C. Congress’s Retaliation Claim (Count IV)
Finally, the District moves to dismiss Congress’s retaliation claim for the same reasons as
her discrimination claim: because her ADA claim is untimely and because she does not allege a
Rehabilitation Act claim. As discussed above, the Court agrees as to Congress’s ADA retaliation
claim and will grant the government’s motion.
As for her Rehabilitation Act retaliation claim, the District specifically argues that
Congress has not alleged a sufficient causal link between any protected activity and the adverse
action (here her termination). While the Court dismissed this claim in the original complaint, it
concludes that Congress has now stated a valid claim.
To start, Congress now alleges she engaged in protected activity under the statute.
Specifically, she claims that at an October 2014 meeting, she complained about Zaki’s failure to
provide her accommodations. Am. Compl. ¶¶ 46–47. Complaining about a failure to receive an
accommodation is protected activity for purposes of a retaliation claim. See, e.g., Solomon v.
Vilsack, 763 F.3d 1, 15–16 (D.C. Cir. 2014). In addition, Congress also now alleges a causal
link between this protected activity and her eventual discharge. Congress’s complaint states that
immediately after this meeting, the District re-opened a previously-adjudicated residency fraud

16

investigation against Congress. Am. Compl. ¶ 49. This residency fraud investigation was the
reason given for Congress’s eventual firing. Id. ¶ 63. These facts provide sufficient allegations
to give rise to a causal inference: immediately after Congress allegedly complained about not
receiving an accommodation, the District re-opened a pretextual investigation that provided the
excuse to fire her.
The District, in turn, argues that while temporal proximity can supply a causal inference,
the length of time between the meeting (October 2014) and Congress’s discharge (May 2015) is
too long to do so in this case. But the relevant temporal relationship is not between the meeting
and Congress’s discharge, but rather between the meeting and the alleged re-opening of the
investigation that provided an excuse for Congress’s discharge. Those two events are close
enough in time to allow for a causal inference. See, e.g., Hamilton v. Geithner, 666 F.3d 1344,
1358–59 (D.C. Cir. 2012) (stating that three-month temporal gap supported inference of
causation). Thus, Congress states a valid retaliation claim.
IV. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part the District’s
motion to dismiss. It will dismiss all of Congress’s ADA claims and the two Rehabilitation Act
hostile work environment claims. However, it will allow Congress’s other two Rehabilitation
Act claims, for discriminatory discharge and retaliation, to proceed to discovery. A separate
Order shall accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER
United States District Judge
Date: August 27, 2018

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