AYTES v. GRUENBERG

Filing 39

ORDER granting Defendant's 29 Motion to Dismiss. Signed by Judge Carl J. Nichols on September 26, 2024. (lccjn1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALLISON KATHLEEN AYTES,
Plaintiff,
v.

Civil Action No. 1:23-cv-00911 (CJN)

MARTIN J. GRUENBERG, Chairman,
Federal Deposit Insurance Corporation,
Defendant.
ORDER
Allison Aytes brings this Rehabilitation Act suit against the Chairman of the Federal
Deposit Insurance Corporation, her former employer, for allegedly engaging in various forms of
disability-related discrimination. ECF No. 15 (“Compl.”). 1 The government moves to dismiss.
ECF No. 29 (“Mot.”). The Court grants the motion but will permit Aytes to file an amended
complaint in light of her pro se status.
I.

Background
Aytes was an FDIC employee from 2010 to 2015. Compl. at 4. During that time, she

allegedly suffered from six disabilities: systemic lupus erythematosus, chronic migraines, type 2
diabetes, hypothyroidism, fibromyalgia, and gastric ulcers. Id. at 5–6. Aytes alleges that her
managers refused to reasonably accommodate her disabilities, retaliated against her for

1

Although Aytes mentions the Americans with Disabilities Act in her Complaint, see
Compl. at 3, a federal employee must bring disability discrimination claims through the
Rehabilitation Act, not the ADA. Rogers v. Smithsonian Inst., 305 F. Supp. 3d 89, 96 (D.D.C.
2018); Bonnette v. Shinseki, 907 F. Supp. 2d 54, 60 (D.D.C. 2012). Plaintiff confirms in her
opposition that she intends only to bring Rehabilitation Act claims. See ECF No. 31 (“Opp.”) at
3–4.
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complaining about the way that they treated her, and subjected her to a hostile work environment.
Id. at 10–26.
Aytes first contacted an Equal Employment Opportunity (EEO) counselor on
December 22, 2014; filed a formal EEO complaint on March 30, 2015; and supplemented her
formal complaint on July 28, 2015, and again August 6, 2015. Mot. Ex A at 3 n.3 (informal
complaint); Mot. Ex. B at 1–13 (formal complaint), 14–28 (supplements). She then resigned from
the agency on September 16, 2015. Compl. at 4.
After the FDIC and EEOC rejected her claims, Aytes filed this suit on March 3, 2021, in
the U.S. District Court for the Northern District of Oklahoma. ECF No. 1 at 1. In 2023, that Court
granted the government’s motion to transfer the case here. ECF No. 23. The government now
moves to dismiss for failure to exhaust and failure to state a claim.
II.

Analysis
A.

Exhaustion

The government raises two arguments concerning exhaustion. 2
First, the government argues that Aytes has failed to exhaust her administrative remedies
with respect to any discriminatory act that occurred before November 7, 2014. Mot. at 6–9. Under
the relevant regulations, a federal employee complaining of discrimination must contact an EEO
counselor within 45 days of any act alleged to be discriminatory. Doak v. Johnson, 798 F.3d 1096,
1099 (D.C. Cir. 2015); 29 C.F.R. § 1614.105(a)(1). Aytes first contacted an EEO counselor on

2

The government initially raised a third argument that Aytes failed to exhaust because she
did not timely file her suit within 90 days after receiving her right-to-sue letter. Mot. at 10;
Morrison v. Nielsen, 325 F. Supp. 3d 62, 65 (D.D.C. 2018) (citing 42 U.S.C. § 2000e-16(c)); see
also 29 C.F.R. § 1614.407. But it withdrew that argument after Aytes clarified, following an
inquiry from the Court, the date that she received her right-to-sue letter. ECF No. 37; ECF No.
38.
2

December 22, 2014, Mot. Ex A at 3 n.3, and 45 days before that is November 7, 2014, so she
cannot now pursue claims for allegedly discriminatory acts occurring before that date.
Aytes does not dispute this analysis. Opp. at 4–5. She instead points to 29 C.F.R.
§ 1614.105(a)(2), which states that an agency “shall extend the 45-day time limit . . . when the
[complainant] shows that he or she was not notified of the time limits and was not otherwise aware
of them.”

See also Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007) (explaining

§ 1614.105(a)(2)’s requirements). 3 But Aytes does not include any allegations in her complaint
about her lack of knowledge of the 45-day time period, and the regulation puts the burden on her
to make that “show[ing].” 29 C.F.R. § 1614.105(a)(2); cf. Bowden v. United States, 106 F.3d 433,
437 (D.C. Cir. 1997) (explaining that even though defendants have the burden to prove the
affirmative defense of exhaustion, plaintiffs have the burden to prove excuses to exhaustion like
equitable tolling).
Second, the government argues that Aytes failed to exhaust her administrative remedies
with respect to her constructive-discharge theory because she never raised that claim during
administrative proceedings. Mot. at 9. Indeed, Aytes last supplemented her EEO complaint over
a month before she alleges that she was constructively discharged from the agency. See Mot Ex. B
at 4, 18; Compl. at 4. Aytes responds that she “effectively” raised this claim by pointing to a long
list of allegations about harassment that she used to support her hostile work environment claim.
Opp. at 5 (citing Mot. Ex. B at 4–9). Specifically, her EEO complaint alleged that “Ms. Aytes

3

Although the government characterizes Aytes’s argument as one premised on equitable
tolling, see ECF No. 35 (“Reply”) at 4–5, that is not quite right. A request for a § 1614.105(a)(2)
extension is distinct from equitable tolling, and “[a]n employee who makes [the regulatory]
showing need not separately satisfy the common law standard for equitable tolling.” Harris, 488
F.3d at 444.
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became aware from several colleagues [that her supervisors] is ‘trying to fire’ Ms. Aytes, and ‘the
harassment is going to continue until termination.’” Mot. Ex. B at 7.
But this vague allegation referenced her supervisor’s alleged hostility only in the context
of a harassment claim, and was made approximately six months before she (allegedly) was forced
to leave the agency—the actual discriminatory act at issue. It therefore did not “give the charged
party notice of the claim and narrow the issues for prompt adjudication and decision.” Sandler v.
Blinken, No. 21-CV-2226 (DLF), 2022 WL 4547557, at *7 (D.D.C. Sept. 29, 2022) (internal
alterations omitted). Indeed, it appears that Aytes is simply attempting to “piggy-back [a]
termination claim[] that [is] the culmination of [her] properly exhausted hostile work environment
or discrimination claims.” Id. at *6 (internal quotation marks omitted); see also Opp. at 10
(“Plaintiff clearly alleged that [her constructive termination] was not merely a discrete instance of
a retaliatory act, but rather the culmination of ‘a long train of abuses.’”) (quoting U.S. Decl. of
Indep. (1776)). That is not enough, see, e.g., Sandler, 2022 WL 4547557, at *6; Terveer v.
Billington, 34 F. Supp. 3d 100, 113 (D.D.C. 2014) (collecting cases), and accordingly the Court
will dismiss Aytes’s constructive termination claim for lack of jurisdiction. See Sandler, 2022 WL
4547557, at *5 (explaining that the Court of Appeals treats a complainant’s complete failure to
raise a claim during administrative processes as a jurisdictional defect).
B.

The Merits

Aytes asserts three claims for disability-related discrimination.
First, Aytes alleges that the FDIC failed to accommodate her disabilities by revoking a
telework agreement that permitted her to work remotely one day a week and then failing to
reinstate it. See Compl. at 7–13; Mot. Ex. D at 2. “To state a claim for a violation of the
Rehabilitation Act’s reasonable accommodation requirements, a plaintiff must allege that (i) she

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was disabled within the meaning of the Rehabilitation Act; (ii) her employer had notice of her
disability; (iii) she was able to perform the essential functions of her job with or without reasonable
accommodation; and (iv) her employer denied her request for a reasonable accommodation of that
disability.” Menoken v. Dhillon, 975 F.3d 1, 7 (D.C. Cir. 2020) (internal quotation marks omitted).
The revocation of the teleworking agreement cannot itself be an actionable denial because it
occurred on December 10, 2013, Compl. at 8, and, as discussed, Aytes must plausibly allege that
the FDIC engaged in a discriminatory action after November 7, 2014. Supra 2–3. And as for
Aytes’s other teleworking requests (assuming they qualify as requests for a reasonable
accommodation), she does not allege the FDIC denied any such request after that date. Instead,
her post-November 7, 2014 allegations pertaining to teleworking concern only her requests for
documentation to support the agency’s initial decision to revoke her teleworking permissions,
Compl. at 11, the agency’s requests for her to provide medical records substantiating the disability
and its concerns about whether and how she had provided them, id. at 12, and a July 2015 decision
by an unnamed agency employee that Aytes “was entitled to request a medical telework
accommodation,” id. at 13. 4
None of these allegations describes a denial of a request for a reasonable accommodation.
In particular, with respect to the agency’s requests for additional substantiation of her disability,
Aytes never alleges that the agency denied her teleworking request. An employer’s request for
substantiation of a disability and back-and-forth with a requester does not qualify as a denial
standing alone. Cf. Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1308–09 (D.C. Cir. 2010); see
also Ward v. McDonald, 762 F.3d 24, 31–32 (D.C. Cir. 2014) (“[W]hen the need for an

4

The same paragraph contains an allegation that a union grievance that Aytes filed was
denied, Compl. at 13, but she does not specify who denied her grievance or when it was made.
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accommodation is not obvious, an employer, before providing a reasonable accommodation, may
require that the individual with a disability provide documentation of the need for
accommodation.”).
Second, Aytes brings a retaliation claim. Compl. at 14–20. To state such a claim, Aytes
must plausibly allege that “(i) she engaged in statutorily protected activity; (ii) she suffered a
materially adverse action by her employer; and (iii) a causal link connects the two.” Solomon v.
Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014) (internal alterations and quotation marks omitted). The
government contests only the last element, arguing that Aytes has not adequately alleged causation
because she pleaded “nothing more than borderline temporal proximity” between her complaints
of discrimination and the agency’s allegedly adverse employment actions. Mot. at 14–16. While
“temporal proximity [alone] can indeed support an inference of causation,” it can do so “only
where the two events are very close in time.” Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C.
Cir. 2012) (internal alteration omitted); see also Singletary v. District of Columbia, 351 F.3d 519,
525 (D.C. Cir. 2003). How close is close enough depends on the facts of the case, although the
Supreme Court has suggested that three months is too long. Hamilton, 666 F.3d at 1357–58.
Here, Aytes identifies several employment actions that she claims were retaliatory and that
occurred after November 7, 2014. See Compl. at 17–20. She also alleges that she engaged in
protected activities during this period by complaining to agency personnel, filing an EEOC
complaint, and helping another employee file a discrimination complaint. Compl. at 15–16. But
many of her allegations do not specify exactly when she engaged in the allegedly protected activity.
See, e.g., Compl. at 15 (alleging that Aytes complained “to Human Resources personnel on
multiple occasions from April 2014 to 2015”). That means that her complaint fails to adequately
allege the kind of close temporal proximity that could plausibly show retaliation.

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Third, Aytes brings a hostile work environment claim. Compl. at 21–26. The government
argues that Aytes has not plausibly alleged that the harassment she experienced was tied to her
disabilities or her allegedly protected activities. Mot. at 18–20. The Court previously warned
Aytes in a Fox order that, if she “fail[ed] to respond to the arguments raised by Defendant in his
Motion,” the Court “w[ould] treat Defendant’s Motion as conceded.” ECF No. 30 at 2. Yet Aytes
did not address this argument. See Opp. at 11–12. Accordingly, the Court will treat this argument
as conceded, see Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004), and dismiss this claim.
III.

Conclusion
Aytes’s current complaint fails to state a claim. But it is possible that she could state a

claim if she addresses some of the defects identified above. Accordingly, in light of Aytes’s pro
se status, the Court will grant her leave to amend her complaint.
Accordingly, it is hereby
ORDERED that the government’s Motion to Dismiss, ECF No. 29, is GRANTED; and it
is further
ORDERED that Aytes’s constructive termination claim is DISMISSED for lack of
subject matter jurisdiction; and it is further
ORDERED that Aytes’s other claims are DISMISSED for failure to state a claim; and it
is further
ORDERED that Aytes may file an amended complaint on or before October 28, 2024.

DATE: September 26, 2024

CARL J. NICHOLS
United States District Judge

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