United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Lemma, proceeding pro se, commenced this suit on
November 28, 2017, alleging that his former employer, the
Hispanic National Bar Association (“HNBA”),
discriminated against him “based on [his]
disability.” See Dkt. 1 at 1. The HNBA moves
to dismiss for lack of subject-matter jurisdiction and for
failure to state a claim under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), or, in the alternative,
moves for summary judgment. Dkt. 19 at 1. Because the Court
concludes that the HNBA is not a “covered entity”
under the Americans with Disabilities Act
(“ADA”), the Court will grant summary judgment in
favor of the HNBA on Lemma's ADA claim, and because Lemma
elected to pursue administrative remedies under the D.C.
Human Rights Act (“DCHRA”), the Court will
dismiss his DCHRA claim for lack of jurisdiction.
HNBA moved to dismiss this suit once before, both for the
reasons it gives in the motion now before the Court and for
insufficient service of process under Federal Rule of Civil
Procedure 12(b)(5). See Dkt. 4 at 1. The Court
granted that motion, without prejudice, on the ground that
Lemma failed to effect service of process. See Dkt.
9 at 1. In doing so, the Court explained the factual contours
of the case, see Dkt. 9 at 1-3, and therefore will
only briefly recount the relevant facts here. In December
2015, Lemma was hired as a bookkeeper and accountant for the
HNBA. Dkt. 1 at 1. Lemma says that, on March 10, 2016, he
told the HNBA's Executive Director that he has a heart
condition, “hoping that she” would accommodate
his disability by relieving him of responsibility for any
“heavy lifting.” Id. at 3.
According to Lemma, the Executive Director responded only by
noting that Lemma “did not tell [her about his heart
condition] before.” Id. Lemma alleges that he
was called to the Executive Director's office the next
day and fired without explanation. Id.
1, 2016, Lemma filed an administrative complaint against the
HNBA with the U.S. Equal Employment Opportunity Commission
(“EEOC”) and the D.C. Office of Human Rights
(“DCOHR”), alleging a violation of the ADA.
See Dkt. 19-3 at 9. Although the charge of
discrimination was presented in the first instance to the
EEOC, it listed both the EEOC and DCOHR. See Id. In
any event, charges of discrimination filed with the EEOC in
the District of Columbia are “automatically cross-filed
with the” DCOHR “pursuant to a ‘worksharing
agreement' between the two agencies.” Ellis v.
Georgetown Univ. Hosp., 631 F.Supp.2d 71, 78 (D.D.C.
2009); see also Slate v. Pub. Def. Serv. for the District
of Columbia, 31 F.Supp.3d 277, 294 (D.D.C. 2014). On
July 8, 2016, the EEOC notified the HNBA of the charge and
requested that the association submit a response by August 5,
2016. Dkt. 19-3 at 2, 6. Prior to that deadline, the HNBA
notified the EEOC that it is not a “covered
entity” within the meaning of the ADA because it has
fewer than 15 employees. Dkt. 19-4 at 2 (citing 42 U.S.C.
§ 12111(5)). The EEOC agreed and notified Lemma that it
was transferring the matter to the DCOHR “for
processing” because the EEOC does not have
“jurisdiction over Respondents with less than 15
employees.” Dkt. 19-5 at 2.
DCOHR then conducted an investigation and issued a detailed
“letter of determination” on July 18, 2017,
finding “no probable cause to believe that [the HNBA]
discriminated against [Lemma] on the basis of his disability
(heart condition) by failing to accommodate him” and
“no probable cause to believe that [the HNBA]
retaliated against [Lemma] for requesting a reasonable
accommodation.” Dkt. 19-6 at 3. Lemma timely sought
reconsideration of that determination, and, after reviewing
the record, the DCOHR affirmed its prior “no probable
cause” findings. Dkt. 4-8 at 4. At the same time, the
DCOHR informed Lemma of his right to petition the D.C.
Superior Court for review of the agency's final decision
within three years. Id. at 5. Shortly thereafter,
the EEOC “adopted the findings” of the DCOHR and
issued a right to sue letter. Dkt. 4-9 at 2.
November 28, 2017, Lemma filed this action, alleging that the
HNBA “terminated [him] based on [his] heart condition,
” thereby “subject[ing] [him] to
discrimination” and “breach[ing]” his
“human rights.” Dkt. 1 at 1, 4. Lemma requests
“over $125, 000” in damages. Id. at 4.
In response to the complaint, the HNBA moved to dismiss for
lack of jurisdiction, for insufficient process, and for
failure to state a claim, or, in the alternative, for summary
judgment. See Dkt. 4 at 1. The Court dismissed the
case without prejudice for insufficient process, see
Dkt. 9 at 1, after which Lemma effected service by agreement
with the HNBA, see Dkt. 10 at 1. The HNBA has
renewed its motion to dismiss for failure to state a claim
and for lack of jurisdiction, or, in the alternative, for
summary judgment. See Dkt. 19 at 1.
HNBA's motion implicates three distinct legal standards:
a motion to dismiss under Rule 12(b)(1) challenges the
Court's jurisdiction to hear the claim and may raise a
“facial” or “factual” challenge to
the Court's jurisdiction. A facial challenge asks whether
the plaintiff has pleaded facts sufficient to establish the
court's jurisdiction, while a factual challenge asks the
court to “consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court's
resolution of disputed facts.” Herbert v. Nat'l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). A
facial challenge, in other words, is confined to the four
corners of the complaint, while a factual challenge permits
the court to look beyond the complaint to satisfy itself that
it has jurisdiction to hear the suit. Whether a motion to
dismiss is facial or factual, the plaintiff bears the burden
of establishing by a preponderance of the evidence that the
court has subject-matter jurisdiction. See Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992). “[I]n
passing on a motion to dismiss” for lack of
jurisdiction, however, “the allegations of the
complaint should be construed favorably to the
pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); see also Leatherman v. Tarrant Cty. Narcotics and
Coordination Unit, 507 U.S. 163, 164 (1993);
Phillips v. Bureau of Prisons, 591 F.2d 966, 968
(D.C. Cir. 1979).
to survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain “‘a short and plain
statement of the claim showing that the pleader is entitled
to relief,' in order to ‘give the 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) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)); accord Erickson v. Pardus,
551 U.S. 89, 93 (2007) (per curiam). Although “detailed
factual allegations” are not necessary to withstand a
Rule 12(b)(6) motion to dismiss, to provide the
“grounds” of “entitle[ment] to relief,
” a plaintiff must furnish “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atl.
Corp., 550 U.S. at 555. Instead, the complaint's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Id. (citations omitted).
Hence, while “a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts
is improbable, and ‘that a recovery is very remote and
unlikely, '” id. at 556 (citation
omitted), the “threshold requirement” of Federal
Rule of Civil Procedure 8(a)(2) is “that the
‘plain statement' possess enough heft to
‘sho[w] that the pleader is entitled to
relief.'” Id. at 557 (quoting Fed.R.Civ.P.
summary judgment is appropriately granted only “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006). A fact is “material” if it is capable of
affecting the outcome of the litigation. Liberty
Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. See Scott v. Harris, 550 U.S. 372,
380 (2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by . . . citing to particular parts of
materials in the record.” Fed.R.Civ.P. 56(c)(1)(A).
Lemma's complaint is not a model of clarity, courts must
construe pro se pleadings “liberally”
and must hold pro se pleadings “to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citation omitted). Construed in this light, the
complaint is best read to allege a violation of the Americans
with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12101 et seq.,  although it might also be read to
allege a violation ...