The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT;DENYING AS MOOT THE DEFENDANT'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
This matter comes before the court on the defendant's motion to dismiss the second amended complaint. The plaintiff alleges that the defendant subjected him to disparate treatment on the basis of his disability and to a hostile work environment in violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 701 et seq., the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and the District of Columbia Human Rights Act ("DCHRA"), D.C. CODE §§ 2-1401.01 et seq. For the reasons discussed herein, the court grants the defendant's motion to dismiss the plaintiff's DCHRA claims and his disparate treatment claims under the Rehabilitation Act. The court, however, denies the defendant's motion to dismiss the plaintiff's ADA claims and his hostile work environment claim brought under the Rehabilitation Act.
II. FACTUAL & PROCEDURAL BACKGROUND*fn1
The plaintiff, a Technology Specialist for the District of Columbia Department of Mental Health ("the Department"), suffered a stroke on May 8, 2005. 2d Am. Compl. ¶¶ 9-10, 14. After spending two months in a rehabilitation center, he asked the Department for permission to work from home. Id. ¶¶ 17-18. The plaintiff communicated this request to his supervisor and the Deputy Director of Finance and Administration.*fn2 Id. ¶ 18-19.
In September 2005, the plaintiff's request to work from home had still not been granted, prompting the plaintiff's spouse to contact the defendant's Equal Employment Opportunity ("EEO") Manager. Id. ¶ 25. The EEO Manager asked that the plaintiff initiate "the informal stage of an EEO complaint," and explained that "the District of Columbia had never encountered a request for a reasonable accommodation" and that there was "no system in place for a person in [the plaintiff's] situation." Id. ¶¶ 25-26. On February 5, 2006, the defendant's EEO Manager issued the plaintiff a notice of right to file a discrimination complaint, stating that the defendant was "unable to grant the accommodation [the plaintiff had] request[ed]." Id. ¶¶ 32-33.
On February 22, 2006, the plaintiff filed a formal administrative complaint with the District of Columbia Office of Human Rights ("DCOHR") and cross-filed it with the EEOC. Id. ¶ 34; Def.'s Mot. Ex. A.,Pl.'s Opp'n at 21. In September and October 2006, the parties engaged in mediation, which resulted in a non-binding agreement that the plaintiff could work from home. 2d Am. Compl. ¶¶ 35, 37, 38, 40. In February 2007, the defendant installed a computer at the plaintiff's home, id. ¶ 43, but did not put him on the payroll or give him access to the Department's website. Id. ¶ 38. In April 2007, the plaintiff's supervisor told the plaintiff's spouse that the plaintiff was getting paid but was not performing his duties. Id. ¶ 22. During this time the parties continued to discuss a formal settlement, but no such agreement was ever reached, and the plaintiff decided to move forward with the DCOHR complaint process. Id. ¶ 52.
On January 1, 2008, the DCOHR issued a determination that there was probable cause to believe that the defendant had discriminated against the plaintiff by failing to provide him with a reasonable accommodation. Id. ¶¶ 52-53. The parties' mediation efforts continued until August 15, 2008, when the DCOHR issued a notice that the parties had failed to reach an agreement. Pl.'s Opp'n at 8. Eventually, the plaintiff requested that the DCOHR "transfer" the case to the Superior Court for the District of Columbia. Id. ¶ 7. The defendant took no position on the plaintiff's request to "transfer," but did "expressly reserve any and all of its legal rights and defenses under the law." Pl.'s Opp'n, Ex. 2 (Def.'s Non-Opposition to Pl.'s Mot. to Transfer). In response, the DCOHR administratively dismissed the plaintiff's complaint with prejudice on October 20, 2009. Pl.'s Opp'n, Ex. 3.
On November 9, 2009, the plaintiff filed a complaint in the Superior Court against the Department, the mayor and the attorney general of the District of Columbia. Id. at 17. An amended complaint was filed on December 21, 2009. See Notice of Removal, Ex. A. The case was subsequently removed to this court on December 31, 2009. Id. On January 7, 2010, the defendants filed a motion to dismiss the plaintiff's amended complaint. See generally Def.'s Mot. to Dismiss Am. Compl. On February 1, 2010, the court granted the plaintiff leave to file a second amended complaint.*fn3 See generally Minute Order (Feb. 1, 2010). In his second amended complaint, the plaintiff alleges that the defendant discriminated against him on the basis of his disability and subjected him to a hostile work environment in violation of the Rehabilitation Act, the ADA and the DCHRA.*fn4 See 2d Am. Compl. && 65-137.
On February 16, 2010, the defendant filed a motion to dismiss the second amended complaint.*fn5 See Def.'s Mot. to Dismiss 2d Am. Compl. ("Def.'s Mot."). With this motion now ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.
A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040(D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).
Yet, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim  would entitle him to relief"). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).
In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations -- including mixed questions of law and fact -- as true and draw all reasonable inferences therefrom in the plaintiff's favor. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning, 292 F.3d at 242. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555).
A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint. Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). Because statute of limitations issues often depend on contested questions of fact, however, the court should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint. Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). Rather, the court should grant a motion to dismiss only if the complaint on its face is conclusively time-barred. Id.; Doe v. Dep't of Justice, 753 F.2d 1092, 1115 (D.C. Cir. 1985). If "no reasonable person could disagree on the date" on which the cause of action accrued, the court may dismiss a claim on statute of limitations grounds. Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473, 1475 (D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463 n.11 (D.C. Cir. 1989)).
B. The Plaintiff's Rehabilitation Act Claims
The plaintiff alleges that the defendant violated § 794 of the Rehabilitation Act by failing to reasonably accommodate his disability and fostering a hostile working environment.*fn6 2d Am. Compl. ¶¶ 1, 65-97. The defendant moves to dismiss these claims, arguing that they are barred by the applicable statute of limitations. Def.'s Mot. at 9. More specifically, the defendant contends that because the plaintiff, as a non-federal employee, was not required to exhaust his administrative remedies prior to filing suit, the statute of limitations was not tolled while his claims were pending before the DCOHR and EEOC, and the applicable limitations period has now expired. Id. at 10-11.
The plaintiff disagrees, arguing that the statute of limitations was tolled because he was required to exhaust his administrative remedies before bringing suit under the Rehabilitation Act, Pl.'s Opp'n at 12-13, and because he filed a charge of discrimination with the DCOHR, id. at 13-14. Additionally, the plaintiff contends that his hostile work environment claim is a continuing violation and should not be dismissed based on the statute of limitations. Id. at 20-21. Finally, the plaintiff argues that even if his Rehabilitation Act claims are untimely, the ...