The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
On Dec. 21, 2007, Plaintiff John Gard, proceeding pro se, filed this action against the U.S. Department of Education and its Secretary, Arne Duncan,*fn1 alleging violations of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. § 552a, and the Fifth Amendment to the U.S. Constitution, among other things. He amended his complaint on April 18, 2008 [Dkt. # 9], and Defendants moved to dismiss on June 20, 2008. The Court granted Defendants' motion in part on October 2, 2008, finding that Mr. Gard had failed to comply with Federal Rule of Civil Procedure 8, and dismissed the amended complaint without prejudice. See Dkt. # 22. The Court ordered Mr. Gard to file an amended complaint correcting the deficiencies identified in its Order dismissing the complaint no later than November 3, 2008. Mr. Gard failed to do so, and this case was dismissed without prejudice on November 24, 2008.
Mr. Gard moved for reconsideration on March 12, 2009, arguing that he did not have notice of the Court's October 2 or November 24, 2008, Orders until March 2009. In an Order dated March 17, 2009, the Court, finding it in the interest of justice to accept Mr. Gard's explanation, granted his motion and ordered him to file an amended complaint in compliance with Rule 8 no later than April 17, 2009. See Dkt. # 28. Mr. Gard filed his second amended complaint on April 9, 2009, Dkt. # 29, and Defendants moved to dismiss on June 1. See Dkt. # 32. Mr. Gard responded with a cross-motion for summary judgment. See Dkt. # 40. For the reasons set forth below, the Court will grant Defendants' motion to dismiss in part and deny it in part, and will deny Mr. Gard's cross-motion for summary judgment.
Mr. Gard is an employee of the Department of Education. He alleges that he suffers from chronic pain, narcolepsy, and Post Traumatic Stress Disorder ("PTSD"), all of which are "interrelated and what happens in one disability/impairment affects the condition and control of the other disabilities/impairments and Plaintiff's major life activities." Second Am. Compl. [Dkt. # 29] ¶ 58. He states that Defendants "were fully aware" of these disabilities when they hired him, and that they "considered Plaintiff to be handicapped, treated Plaintiff as being handicapped and provided Plaintiff with reasonable accommodation from approximately April 1, 1989 through November 22, 2004." Id. ¶¶ 54-55.
At some point prior to October 1998, for reasons not specified in the Second Amended Complaint, Mr. Gard appears to have taken leave from his employment. He states that from October through December 1998, he was engaged in "return-to-work" discussions with Defendants, during which time Defendants had on file "a) Plaintiff's medical records, and b) Defendants' reasonable accommodation determinations and the reasonable accommodation authorized." Id. ¶ 42. He returned to work in December 19998 pursuant to a Return-to-Work Agreement dated December 14, 19998. Id. ¶¶ 44-45. He states that he disclosed "external grantee and Defendants' internal employee fraud to Mr. Jack Martin, Chief Financial Office, and Mr. John Higgins, Inspector General, Defendants," in July and August of 2004. Id. ¶¶ 47-48.In November 2004, Defendants notified Mr. Gard that the reasonable accommodation he had been provided would no longer be provided. Id. ¶ 49. Mr. Gard filed a "formal [EEO] handicap refusal to continue reasonable accommodation complaint against Defendants on March 14, 2005." Id. ¶¶ 16.C., 50. Thereafter, he alleges his difficulties in securing a reasonable accommodation for his disabilities increased. Id. ¶ 50. He notes that other employees received reasonable accommodations during the period in which his requests were denied. Id. ¶ 51.
On September 5, 2006, Mr. Gard emailed Defendants, attaching what he described as medical documentation and prior requests for reasonable accommodations. See id., Ex. 1 (Ex. 442:*fn2 Sept. 5, 2006 email from Gard to Linda Stracke et al.). Defendants replied that they were unable to locate "record of any written approval for a reasonable accommodation request from [Mr. Gard]." Id., Ex. 1 (Ex. 443-1: Sept. 20, 2006 email from Stracke to Gard). They went on to state that if Mr. Gard's medical condition required a reasonable accommodation, Defendants would consider his request upon the receipt of updated "(i.e., last three months)" medical documentation.
Id. Mr. Gard responded that prior agency officials had determined he required a reasonable accommodation, that Defendants had no right to revoke that accommodation, and that he had previously responded to Defendants' requests for medical records. Id., Ex. 1 (Ex. 444-1: Oct. 3, 2006 email from Gard to Stracke). He stated that Defendants' request for further documentation was proof that they had violated the Privacy Act and Rehabilitation Act by destroying or failing to maintain his records. Id.
Defendants again stated that they had "no record of an agency determination that" Mr. Gard was "a qualified individual with a disability or of any decision to provide [him] with any reasonable accommodation of a disability." Id., Ex. 1 (Ex. 445: Nov. 24, 2006 email from Stracke to Gard). Mr. Gard reads this email as a denial from Defendants that he ever submitted medical records to Defendants, requested a reasonable accommodation, or was provided with a reasonable accommodation. Id. ¶¶ 34-36. Defendants also refused to provide Mr. Gard with a reasonable accommodation at that time, citing lack of current medical documentation upon which to base such accommodation. See id., Ex. 1 (Ex. 445: Nov. 24, 2006 email from Stracke to Gard). Mr. Gard reads this as an admission that Defendants failed to maintain, destroyed, and/or refused to restore his official records. Id. ¶¶ 38-39. He also alleges that Defendants failed to secure, destroyed, or refused to restore his military retirement records during settlement negotiations in early 2007 which were part of a Privacy Act case he filed in 2000. Id. ¶¶ 31-32. On these facts, Mr. Gard alleges violations of the Privacy Act, Rehabilitation Act, Title VII, the Federal Records Act,*fn3 unspecified Equal Employment Opportunity Commission regulations, unspecified Office of Personnel Management regulations, and the Fifth Amendment. See id. Counts I-VII.
Federal Rule of Civil Procedure 8 requires that every complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief" and that "each averment of a pleading be simple, concise, and direct." Fed. R. Civ. P. 8(a), (e)(1). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). Federal Rule of Civil Procedure 41(b) permits the Court to dismiss either a claim or an action because of the plaintiff's failure to comply with the Federal Rules "or any order of [the] court." Fed. R. Civ. P. 41(b); Ciralsky v. CIA, 355 F.3d 661, 669 (D.C. Cir. 2004). Dismissal under Rule 8 "'is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Ciralsky, 355 F.3d at 670 n.9 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. A complaint must be sufficient "to give a defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). As under Rule 8, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. "[A] complaint ...