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October 18, 2005.

DONALD YATES, et al., Defendants.

The opinion of the court was delivered by: JOHN BATES, District Judge


Plaintiff Lennie R. Mitchell, a police officer with the District of Columbia Metropolitan Police Department ("MPD"), brings this action against the District of Columbia and two supervisory police officers, Donald Yates and Renee Holden, alleging discrimination on the basis of disability and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (Count Four), the D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401.01 et seq. (Count Five), and 42 U.S.C. § 1983 (Count Three). He also raises causes of action under D.C. common law, including abuse of process, malicious prosecution, and intentional infliction of emotional distress (Counts One, Two, and Six). Defendants District of Columbia and Yates have submitted a motion to dismiss for failure to state a claim on which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).*fn1 Defendant Holden was served with the complaint after defendants' motion was filed, and has not yet responded to the complaint.*fn2 However, because the arguments raised by the District and Yates apply with equal force to the claims against Holden, the Court addresses the claims against Holden based on the arguments presented in the pending motion. For the reasons explained below, the Court grants defendants' motion as to the federal law claims and remands the remaining claims to the Superior Court of the District of Columbia.


  The second amended complaint alleges the following facts, which are taken as true at this stage of the litigation for purposes of defendants' motion. Plaintiff has been employed by the MPD as a police officer since 1989, where he has held numerous positions, including patrol officer, public safety lecturer, member of the Mayor's Nuisance Property Task Force, and various assignments within the Major Narcotics Branch. On October 10, 2002, plaintiff suffered a seizure during the night while asleep at his home. His treating physician diagnosed plaintiff as susceptible to seizures and placed restrictions on his work assignments because stressful situations could bring on additional seizures. Plaintiff was then assigned to administrative duties within the MPD, following notification to the District of his condition and the need for a reasonable accommodation.

  On June 9, 2004, Detective Renee Holden, plaintiff's supervisor, informed plaintiff that the following day he would be assigned to duties associated with the funeral of the late President Ronald Reagan and would need to bring his uniform. Plaintiff asserts that Holden assigned him the funeral duties with the intent to deprive plaintiff of the work accommodation that MPD had previously provided. Plaintiff protested the assignment as being in contravention of his medical restrictions because it would have required the performance of work beyond the administrative duties assigned to him as an accommodation of his medical condition. Holden used profanity at plaintiff, and threatened to terminate his employment if he refused to show up for duty the next day in uniform. That same day, plaintiff and his union representative met with Holden to resolve the issue, and Holden once again reacted with a barrage of profanity.

  Sergeant Donald Yates then served plaintiff with an official notice of proposed suspension of plaintiff's D.C. motor vehicle operator's permit because of his susceptibility to seizures. Yates knew that plaintiff's seizure had occurred 20 months earlier and that plaintiff had not been operating a vehicle at the time of that seizure. Plaintiff alleges that Yates nonetheless issued the notice to harass, intimidate, and harm plaintiff. The notice falsely claimed that plaintiff had operated a motor vehicle while under the influence of alcohol or drugs or while physically or mentally unqualified to operate a motor vehicle by reason of diabetic coma or seizure.

  The next day, plaintiff suffered a recurrent seizure as a result of the stress from the change in assignment and the actions of Holden and Yates. The MPD revoked his police powers on June 16, 2004, at Yates' suggestion. Plaintiff subsequently appeared before the Department of Motor Vehicles ("DMV") on July 22, 2004, for the show cause hearing regarding the notice of proposed suspension of his driver's permit. Yates failed to appear despite being directed to do so. The hearing officer dismissed and terminated the case. That same day, plaintiff received a clearance letter from DMV verifying that plaintiff's driving privilege was valid in the District of Columbia. Plaintiff alleges that, as a result of Holden's and Yates' actions against him, he has suffered substantial damages, including recurrent seizures, and that MPD senior management received actual or constructive notice of the conduct of Holden and Yates, but failed to take any action to prevent or remedy plaintiff's injuries. Holden and Yates were not disciplined for their actions against plaintiff and continue to be employed by the District of Columbia.


  A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) will not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). All that the Federal Rules of Civil Procedure require of a complaint is that it contain "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Pharmaceuticals, Inc. v. Broudo, 125 S. Ct. 1627, 1634 (2005) (quoting Conley, 355 U.S. at 47). "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Conclusory legal allegations, however, need not be considered by the court. Domen v. Nat'l Rehabilitation Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).


  I. Disability Discrimination under the ADA

  The ADA bars a covered employer from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to . . . [the] terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The Act provides that a person is disabled if he: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) has been regarded as having such an impairment. 42 U.S.C. § 12102(2)(A)-(C). Accordingly, a plaintiff is disabled if: "(1) he suffers from an impairment; (2) the impairment limits an activity that constitutes a major life activity under the [ADA]; and (3) the limitation is substantial." Haynes v. Williams, 392 F.3d 478, 82 (D.C. Cir. 2004).

  Defendants move to dismiss on the ground that plaintiff does not have a "disability" within the meaning of the ADA because the complaint does not indicate that the alleged impairment — susceptibility to seizures — has substantially limited any of plaintiff's major life activities. Plaintiff responds that dismissal is improper because he has provided a "short and plain statement" of the claim and its factual basis under Fed.R.Civ.P. 8(a) and the pleading of a prima facie case of discrimination is not required. Plaintiff also argues that he is substantially limited in the major life activity of working.

  As a threshold matter, the Court clarifies the standard of pleading applicable to this case. Plaintiff is correct that Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), rejected the creation of a heightened pleading standard in discrimination cases — there, cases brought under Title VII and the Age Discrimination and Employment Act. Thus, the Supreme Court held that a plaintiff is not required to plead the elements of a prima facie case of discrimination as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), noting that those elements were developed only to establish one manner in which a plaintiff may raise an inference of discrimination by indirect evidence. Swierkiewicz, 534 U.S. at 510-11. The Supreme Court did not address, however, whether the "short and plain statement" required under Rule 8(a) requires a plaintiff to provide notice of the specific basis for plaintiff's protected status as disabled, a matter separate from the McDonnell Douglas prima facie framework and the issue of evidence that would support an inference of discrimination. Nothing in Swierkiewicz indicates that notice pleading in discrimination cases eliminates the requirement to plead a "short and plain statement" that would put a defendant on notice of the basis of a plaintiff's claim of being an individual with a disability. Indeed, the Supreme Court has previously upheld dismissal of an ADA action for failure to state a claim where the plaintiffs ...

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