United States District Court, District of Columbia
MEMORANDUM OPINION [Dkt. #15]
RICHARD J. LEON, United States District Judge
Carter ("plaintiff or "Carter") brings this
action against Ben Carson, in his official capacity as
Secretary of the U.S. Department of Housing and Urban
Development ("defendant" or "HUD"),
alleging five counts of workplace discrimination and seeking
declaratory relief and damages. Before the Court is
defendant's Motion to Dismiss Plaintiffs Complaint or, in
the Alternative, for Summary Judgment [Dkt. #15]. Upon
consideration of the pleadings, relevant law, and the entire
record herein, the Motion to Dismiss is GRANTED.
Carter is an African-American female formerly employed by HUD
as a Staff Assistant in the Office of Native American
Programs. Am. Compl. for Decl. Relief and Damages
¶¶ 3, 9 ("Am. Compl.") [Dkt. #11]. During
the course of her employment at HUD, Carter suffered from
"a number of medical and physical ailments, including
asthma, high blood pressure, which caused blurred vision, a
serious stomach disorder, kidney stones and migraine
headaches." Am. Compl. ¶¶ 19, 47. As a result
of these ailments, it was frequently necessary for Carter to
miss work. From "F Y2010 to June 2012" Carter
"missed 1800 work hours, " including 1104 work
hours for "medically related" reasons. Am. Compl.
¶¶ 44-45. Some of these absences were unpredictable.
"On one occasion, Ms. Carter was rushed from HUD's
medical facility to a hospital via ambulance because she was
suffering from a serious asthma attack." Am. Compl.
early 2010, Carter's supervisor, Terrance Michael
Andrews, became concerned about her work performance. Am.
Compl. ¶ 10. He discontinued her authorization to
telework, placed her on leave restriction, and added an
element to her annual performance appraisal which required
her to maintain a correspondence log to track correspondence
originating in the field offices and at headquarters. Am.
Compl. ¶¶ 12, 22-23. In June 2011, Carter received
a "minimally satisfactory" rating on a critical
element of her performance appraisal, and in August, Andrews
placed Carter on a Performance Improvement Plan
("PIP"). Am. Compl. ¶¶ 14-17. In
September, Andrews issued Carter a formal letter of reprimand
for showing up to work an hour after her reporting time, for
taking three hours of leave without prior approval, and for
failing to comply with the requirements of her leave
restriction. Am. Compl. ¶ 28. In October, Andrews
reviewed Carter's performance, and although he did not
assign her a performance rating, extended the PIP for 90
days. Am. Compl. ¶ 16. By the end of the year, Andrews
had started "working with the personnel office to remove
Ms. Carter." Am. Compl. ¶¶ 30, 34. Around the
same time, Carter requested an accommodation that would
permit her to telework. Am. Compl. ¶ 31. A few months
later, she requested an accommodation that would allow her to
report to HUD "later than the core beginning work hours
of 7:30 a.m. to 9:30 a.m." Am. Compl. ¶ 36. Both
requests were denied. Am. Compl. ¶¶ 31, 37-38. On
July 2, 2012, HUD issued a Notice of Proposed Removal for
Failure to Maintain a Regular Work Schedule and Failure to
Follow Instructions. Am. Compl. ¶¶ 6, 40. On
September 12, 2012, Carter was removed from her position. Am.
Compl. ¶ 42.
filed two administrative complaints while still employed at
HUD. First, she filed a grievance pursuant to the collective
bargaining agreement between her union and HUD. The grievance
initially challenged "the PIP [Andrews] had issued,
" and at subsequent arbitration proceedings, her removal
from HUD. Am. Compl. ¶¶ 6, 29. Next, Carter filed
an Equal Employment Opportunity ("EEO") complaint.
Am. Compl. ¶ 5. The EEO complaint alleged violations of
the Rehabilitation Act of 1973; the creation of a hostile
work environment through, among other things, issuance of the
PIP; and, following subsequent amendment, alleged a claim of
reprisal addressing the notice of removal issued by HUD. Am.
Compl. ¶¶ 5~6- Tne grievance and the EEO complaint
were filed on September 19, 2011, and November 18, 2011,
initially filed this action in February 2016. Her amended
complaint, filed in June, alleges five counts of workplace
discrimination. Count One alleges that HUD's denial of
Carter's request for a reasonable accommodation violated
the Rehabilitation Act of 1973. Am. Compl. ¶¶
46-53. Count Two alleges that HUD's denial of
Carter's request for a reasonable accommodation, and her
ultimate removal, created a continuing violation the
Rehabilitation Act of 1973. Am. Compl. ¶¶ 54-63.
Count Three alleges "retaliation, " Am. Compl.
¶¶ 64-73, presumably in violation of Title VII of
the Civil Rights Act of 1964. Count Four, which has since
been abandoned by plaintiff, see Opp'n to Mot.
to Dismiss Am. Compl. & in Alt. for Summ. J. 1 n.l, 28-29
(" Pl.'s Opp'n") [Dkt. #16], alleged racial
discrimination in violation of Title VII, Am. Compl.
¶¶ 74-78. Count Five alleges that HUD subjected
Carter to a hostile work environment, also in violation of
Title VII. Am. Compl. ¶¶ 79-83. HUD moves to
moves to dismiss Carter's amended complaint for failure
to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). "To 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, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007)). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Id. This obligation "requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do." Twombly, 550
U.S. at 555. The Court assumes the plaintiffs factual
assertions to be true and draws all inferences in the
plaintiffs favor. See Sissel v. U.S. Dep't of Health
& Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). It
"need not, however, accept inferences drawn by a
plaintiff if such inferences are unsupported by the facts set
out in the complaint." Nurriddin v. Bolden, 818
F.3d 751, 756 (D.C. Cir. 2016) (per curiam) (alterations and
quotation marks omitted). Nor must it "accept legal
conclusions couched as factual allegations."
Id. (citing Iqbal, 556 U.S. at 678).
"In ruling on a motion to dismiss, the Court may
consider not only the facts alleged in the complaint, but
also documents attached to or incorporated by reference in
the complaint and documents attached to a motion to dismiss
for which no party contests authenticity." Demissie
v. Starbucks Corporate Office & Headquarters, 19
F.Supp.3d 321, 324 (D.D.C. 2014).
also moves to dismiss for failure to exhaust administrative
remedies. "Motions to dismiss for failure to exhaust
administrative remedies are properly addressed as motions to
dismiss for failure to state a claim." Scott v.
Dist. Hosp. Partners, L.P., 60 F.Supp.3d 156, 161
(D.D.C. 2014); see also Bowden v. United States, 106
F.3d 433, 437 (D.C. Cir. 1997) (affirming dismissal). In such
cases, "[i]t is the defendant's burden to prove by a
preponderance of the evidence that the plaintiff failed to
exhaust administrative remedies." Johnson v.
Gonzales, 419 F.Supp.2d 55, 58 (D.D.C. 2007) (citing
Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)).
1. Rehabilitation Act Claims
first two counts of the amended complaint assert that HUD
failed to accommodate plaintiffs disability. "The
Rehabilitation Act of 1973 governs employee claims of
handicap discrimination against the Federal Government."
Ward v. McDonald, 762 F.3d 24, 28 (D.C. Cir. 2014)
(quotation marks omitted). "Its basic tenet is that the
Government must take reasonable affirmative steps to
accommodate the handicapped, except where undue hardship
would result." Id. (quotation marks omitted).
The Act provides that "[n]o otherwise qualified
individual with a disability" shall be discriminated
against by a federal agency "solely by reason of her or
his disability." 29 U.S.C. § 794(a). Thus, to
prevail on a failure to accommodate claim, a plaintiff must
show, at a minimum, that "she was a qualified individual
with a disability." Ward, 762 F.3d at 31
(citing Stewart v. St. Elizabeths Hosp., 589 F.3d
1305, 1307-08 (D.C. Cir. 2010)).
review of the amended complaint, I find that in regard to
this threshold requirement, Carter has "essentially
'plead[ed] h[er]self out of court by alleging facts that
render success on the merits impossible.'"
Nurriddin, 818 F.3d at 757 (quoting Trudeau v.
FTC,456 F.3d 178, 193 (D.C. Cir. 2006)) (first
alteration in original). An employee is not
"qualified" under the Rehabilitation Act if her
workplace attendance is so infrequent that she is unable to
perform her job. Carr v. Reno,23 F.3d 525, 530
(D.C. Cir. 1994) ("[A]n essential function of any
government job is an ability to appear for work[.]"). In
her amended complaint, Carter herself states that she
"missed 1800 work hours" from "FY2010 to June
2012, " attributing 1104 of these missed work hours to
"medically related" causes. Am. Compl. ¶¶
44-45. Courts in our Circuit have found similarly frequent
and repeated absences-even for medical reasons-sufficient to
render the complainant "unqualified as a matter of law
under the Rehabilitation Act." Meadows v.
Mukasey,555 F.Supp.2d 205, 207 (D.D.C. 2008) (granting
summary judgment for federal defendant where plaintiff
"missed 295 work days from January 2000 through October
2002"); see also Doak v. Johnson, 19 F.Supp.3d
259, 276-77 (D.D.C. 2014) (finding requested accommodation
for medical issues "unreasonable as a matter of
law" where plaintiffs "attendance record was all
over the place"), aff'd,798 F.3d 1096
(D.C. Cir. 2015); id. at 276 (explaining the Act
'"does not protect persons who have erratic,
unexplained absences, even when those absences are a result
of a disability'" (quoting EEOC v. Yellow
Freight Sys., Inc.,253 F.3d 943, 949 (7th Cir. 2001)
(en banc)). Indeed, our Court of Appeals itself found a
plaintiff not "qualified" under the Act where her
medical condition caused her to be absent 200 to 500 hours
per year for several years. Carr, 23 F.3d at 527-30.
Here, Carter's self-reported absences exceed that amount,
and the amended complaint does not plead that she would be
capable of performing the essential functions of her position
"with or without" an accommodation. Ward,
762 F.3d at 28; cf. Doak, 19 F.Supp.3d at 279