The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Shenika Johnson has brought this suit against her former employer, Wilkes Artes, alleging that its termination of her employment violated the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), the federal Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., ("FMLA"), the District of Columbia Family and Medical Leave Act, D.C. Code § 32-501 ("DCFMLA"), and the District of Columbia Human Rights Act, D.C. Code § 2-1402-1, et seq., ("DCHRA").*fn1 Defendant has moved to dismiss the complaint. For the reasons stated herein, defendant's motion will be granted.
Plaintiff was hired on August 21, 1989, and was employed continuously by defendant law firm until her termination on December 18, 2006. (Compl. ¶ 7.) She consistently received performance evaluations of "satisfactory" or above. (Id. ¶ 8.) On September 26, 2006, plaintiff took authorized leave after being diagnosed with chronic depression, fatigue, and anxiety. (Id. ¶ 9.) Plaintiff's supervisors were aware of her diagnosis. (Id. ¶ 10.) Plaintiff's leave was covered by the FMLA and the DCFMLA, and was scheduled to conclude on December 18, 2006. (Id. ¶ 11.)
On or about December 1, 2006, defendant contacted plaintiff by telephone requesting that she provide a date when she would return to work. (Id. ¶ 12.) Plaintiff explained that she had not yet been cleared by her physician to return to work, and that she would provide the notice on or before the conclusion of her FMLA leave. (Id.) Defendant's human resources representative advised plaintiff that unless she confirmed the date of her return she would be terminated, and that she would be viewed as having abandoned her job. (Id. ¶ 14.) On December 5, 2006, defendant's human resources director notified defendant's employees via email that plaintiff would not be returning to work. (Id. ¶ 15.) On December 18, 2006, plaintiff received official written notice of her termination.
On January 18, 2007, plaintiff filed a charge of discrimination with the D.C. Office of Human Rights alleging that she was terminated while on medical leave and that defendant had failed to consider additional leave or any other reasonable accommodation. Plaintiff stated that she believed she had been discriminated against because of her disability in violation of the ADA. On May 8, 2008, plaintiff filed a complaint in this Court.
Defendant has now moved to dismiss the complaint arguing that plaintiff has failed to state a claim for relief under the ADA, FMLA, DCRHRA, and DCFMLA, and that plaintiff's claims under the DCHRA and DCFMLA are time-barred. The Court will consider each of defendant's arguments in turn.
A complaint must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted if it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). At this stage, all reasonable factual inferences must be construed in plaintiff's favor, and all allegations in the complaint are presumed true. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). "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." Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 2004). To survive a motion to dismiss, plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atl., 127 S.Ct. at 1965.
I. Plaintiff Has Failed to State a Claim Under the ADA
Defendant first argues that plaintiff has failed to state a claim for relief under the ADA. (Def.'s Mot. 4.) Plaintiff alleges that defendant violated the ADA by determining that plaintiff had abandoned her job prior to the termination of her leave period "instead of attempting to engage Plaintiff in an interactive process to determine what accommodations were necessary and what could be provided." (Pl.'s Opp'n 3.) The Court agrees that plaintiff's allegations are insufficient to state a claim for relief under the ADA.
To make out a prima case of unlawful discrimination based on her employer's failure to accommodate her disability, plaintiff must show that "(1) she is disabled within the meaning of the Act; (2) her employer was aware of her disability; (3) with reasonable accommodation she could perform the essential functions of the position; and (4) she was denied a reasonable accommodation." Olds v. Natsios, 2006 WL 416157, at * 3 (D.D.C. Feb. 22, 2006) (citing Scarborough v. Natsios, 190 F.Supp.2d 5, 19 (D.D.C. 2002) (citations omitted)). See also Jones v. District of Columbia, 505 F.Supp.2d 78, 88 (D.D.C. 2007). Even assuming that plaintiff has adequately pled the first two prongs of her prima facie case, she has failed to allege that she was capable of performing the essential functions of her job with or without reasonable accommodation, or that she requested accommodation and was denied. Plaintiff does not contend that she communicated her intent and ability to return to her position at any time prior to the end of her leave (despite having been told that her failure to do so would be construed as abandonment of her position). Nor does she claim that she made her employer aware that she would be able to return to work if given reasonable accommodation. See Flemmings v. Howard University, 198 F.3d 857, 861 (D.C. Cir. 1999) ("An underlying assumption of any reasonable accommodation claim is that the plantiff-employee has requested an accommodation which the defendant-employer has denied.")
The only accommodation that plaintiff could even plausibly claim that she was denied is additional leave. (See Def.'s Ex. A [Charge of Discrimination] at 3.) Plaintiff's complaint does not indicate she ever requested an extension of leave, but even if her conversation with the human resources representative could be so construed, defendant's failure to grant what could only reasonably be construed as a request for indefinite leave would not violate the ADA. See Sampson v. Citibank, 53 F.Supp.2d 13, 18 (D.D.C. 1999); Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996). As the D.C. Circuit has explained, "coming to work regularly" is an "essential function" of employment. Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994). See also Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir. 1999) ("[A]ttendance . . . is a basic requirement of most jobs."). At no point prior to her termination did plaintiff inform her employer that she would be able ...