United States District Court, D. Columbia.
For DENIS BRENDAN DONOVAN, Plaintiff: David H. Shapiro, SWICK & SHAPIRO, P.C., Washington, DC .
For EARL A. POWELL, III, Director, the National Gallery of Art, Defendant: Jeremy S. Simon, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Denis Brendan Donovan brings this action against Defendant Earl A. Powell, III, in his official capacity as Director of the National Gallery of Art (" NGA" ), asserting claims that the NGA discriminated against him in violation of the Rehabilitation Act, 29 U.S.C. § § 701, et seq. Currently before the Court is Defendant's  Motion to Dismiss in Part. As of the date of this Memorandum Opinion, Plaintiff, who is represented by counsel, has not filed a response to Defendant's motion or sought an extension of time in which to do so. Accordingly, the Court will treat Defendant's motion as conceded. E.g., Fox v. American Airlines, Inc., 389 F.3d 1291, 1295-96, 363 U.S.App.D.C. 459 (D.C. Cir. 2004). The Court also has considered the substance of Defendant's motion. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's  Motion to Dismiss in Part. Counts I and IV of Plaintiff's Complaint shall be considered to the extent that Plaintiff seeks relief for events that are not time barred by the statute of limitations as proposed by Defendant. Counts II and III of Plaintiff's Complaint shall be DISMISSED in their entirety on the basis that the events at issue are time barred. Count II also shall be DISMISSED in its entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, these claims are dismissed as conceded.
The following facts are taken from the Plaintiff's Complaint and must be accepted as true for purposes of a motion to dismiss. See Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681, 386 U.S.App.D.C. 144 (D.C. Cir. 2009). Plaintiff was employed as a Sales Store Checker in the NGA's Gallery Shops from April 1998 to January 2013, when he was terminated. Compl.
In March 2004, Plaintiff first informed Defendant that he had epilepsy, a disability under 29 U.S.C. § 791(g).
Id. ¶ 13. Plaintiff requested a reasonable accommodation to allow his epilepsy medication to be delivered to him at work because the mailbox at his new apartment was not secure.
Id. ¶ 14. When Plaintiff's supervisor, Karen Boyd, denied the request, Plaintiff was able to secure the accommodation after contacting the NGA's EEO Office.
Id. ¶¶ 14-15.
In early 2006, Plaintiff was disciplined for " rude" conduct to customers.
Id. ¶¶ 17-19. Several months later, NGA suspended Plaintiff for five days, alleging negligence and insubordination.
Id. ¶¶ 20-22.
On December 4, 2012, Ms. Boyd allegedly received a complaint that Plaintiff had made an inappropriate comment of a sexual nature to a 15-year-old female customer.
Id. ¶¶ 9, 11. Plaintiff allegedly told the girl to unfold the cash she offered as payment because " that's how you pass money to a stripper."
Id. ¶ 9. Further, Plaintiff alleges that on December 19,
2012, he commented to a co-worker that a book display in the Gallery store likely was not compliant with the Americans with Disabilities Act.
Id. ¶ 25. Plaintiff alleges that Ms. Boyd later commented in front of Plaintiff that the display was " not ADA compliant, but they can figure it out." Id. Plaintiff was offended and asked Ms. Boyd, " did you just say that?"
Id. ¶ 26. Ms. Boyd responded, " what?" Id. Plaintiff then told Ms. Boyd, " you basically just said 'to hell with the handicapped.'" Id. Ms. Boyd walked away from Plaintiff. Id.
Three weeks later, on January 11, 2013, Ms. Boyd issued a proposed termination letter, recommending that Plaintiff be terminated based on the December 4, 2012 complaint.
Id. ¶¶ 9, 27. Plaintiff alleges that Ms. Boyd fabricated the basis for Plaintiff's termination in retaliation for his " EEO activity that began in March, 2004, and that had as its most recent occurrence his December 19, 2012, complaint to Ms. Boyd . . . ."
Id. ¶ 12. On January 28, 2014, a Final Agency Decision rejecting Plaintiff's EEO claims of discrimination was issued and Plaintiff received the Decision several days later.
Id. ¶ 2.
On April 29, 2014, Plaintiff filed suit against Defendant in this Court. Plaintiff asserts four specific claims in his Complaint: (1) he was subject to disparate treatment in violation of 29 C.F.R. § 1630.4 (" Count I" ); (2) he was subject to disparate treatment in violation of 29 C.F.R. § 1630.7 (" Count II" ); (3) NGA failed to reasonably accommodate him in violation of 29 C.F.R. § 1630.12 (" Count III" ); and (4) he was subject to retaliation and coercion in violation of 29 C.F.R. § 1630.12 (" Count IV" ). In response to this Complaint, Defendant filed its  Motion to Dismiss in Part, contending that Counts II and III of the Complaint should be dismissed in their entirety based on Plaintiff's failure to state a claim, and Counts I and IV should be dismissed to the extent that ...