United States District Court, District of Columbia
G. SULLIVAN, UNITED STATES DISTRICT JUDGE.
Randy Brown, appearing pro se, sues the District of
Columbia, claiming that its Rehabilitation Services
Administration (“RSA”) has “engaged in a
continuing pattern of discriminatory conduct” against
him, in violation of Title II of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12131 et seq.; Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 et
seq.; and the D.C. Human Rights Act
(“DCHRA”), D.C. Code § 2-1401.01 et
seq. Am. Compl. at 1 [Dkt. # 3]. The District has moved
to dismiss under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) or for summary judgment under Rule 56, which
Plaintiff has opposed. For the reasons that follow, the Court
will grant the motion for summary judgment and enter judgment
a division of the District's Department of Disability
Services that provides vocational and rehabilitative services
to individuals with disabilities. See Sept. 18, 2017
Mem. Op. at 1 [Dkt. # 14] (denying motion to dismiss).
Eligible individuals are assigned a vocational rehabilitation
counselor who assists with developing an Individualized Plan
for Employment (“IPE”). RSA offers, among other
services, vocational training or other post-secondary
education and job assistance. See id. at 1-2.
is a client of RSA who “has a cognitive disability but
has high aptitude in verbal skills and in abstract
reading.” Am. Compl. ¶ 2. In February 2009, after
three years of providing “funding for rehabilitation,
” Pl.'s Statement of Disputed Material Facts ¶
2 [Dkt. # 33], RSA denied “services” to
Plaintiff, “stating that [he] had exhausted the maximum
expenditure allowed, ” Am. Compl. ¶ 3. The
“suspension” was lifted in 2010. Id. But
from “2010 through 2013, ” RSA continued to deny
services “by mismanaging Plaintiff's file,
assigning to [his] file as many as six or seven counselors
resulting in missing documents and, on at least two
occasions, the destruction of the file itself.”
Id. ¶ 4. “No sooner than the file [was]
restored, a new counselor [was] assigned resulting again in
lost documents, causing a continuing pattern of delays and
the denial of service.” Id.
2013, when Plaintiff anticipated that he may be unable to
attend classes due to yet another lost file, he complained to
the RSA's director, “describing the ongoing delays
as ‘discriminatory' [and] identifying the
three-year denial of services unjustifiable.”
Id. ¶ 6. Plaintiff registered for and attended
classes in the Fall of 2013 at George Washington University,
but RSA withheld “necessary allowances for books,
travel and tuition, resulting [in] problems related to train
fares, supplies, and calls from the GW business office about
delinquent tuition payments.” Id. ¶ 9.
point, Plaintiff was assigned a new counselor, Taylor
Cummings, whom Plaintiff describes as “efficient but
biased, as indicated by her taking liberties with facts
pertaining to Plaintiff's disability.” Am. Compl.
¶ 13. Allegedly, Cummings drafted “a letter
falsely asserting that Plaintiff ‘understands oral
communication better than written communication,' a
misrepresentation that later [would] interfere[ ] with
Plaintiff's rights under the ADA.” Id.
¶ 14. Cummings also interfered with Plaintiff's
“rights by wheedling [him] about signing [an]
inaccurate IPE, asking [him] ‘to ignore the
inaccuracies in the IPE that RSA drafts unilaterally,
coercing [him] to sign to be eligible for the withheld
allowances.” Id. ¶ 15.
alleges that “Deputy Director Reese” interfered
with his “rights by permitting Mr. Jonathan Keefe to
yell shout at Plaintiff, threatening to close Plaintiff's
file to coerce Plaintiff's signature.” Am. Compl.
¶ 16. Allegedly, when plaintiff asked RSA “to
remove the false information, ” his file was closed but
reopened “when DC Protection and Advocacy question[ed]
RSA's conduct related to the file closure.”
Id. ¶ 17. But in response to Plaintiff's
notifying D.C. Protection and Advocacy about “the
inaccurate IPE and file closure, ” RSA retaliated
“by withdrawing funding for art appraisal studies on
the pretext that there [were] no jobs.” Id.
¶ 18. To “salvage” his “career choice,
” Plaintiff “emphasize[d] the similarities
between appraisal studies and legal studies, explaining how
the National Appraiser's Examination contains a legal
component that requires a year and a half commitment to study
contracts and business law.” Id. ¶ 19.
But Deputy Director Reese “reject[ed] the
analogy” and denied Plaintiff's modification
request “to allow the LSAT to be used as an alternative
assessment tool in lieu of RSA's emphasis upon repetitive
neuropsychological retesting.” Id.
¶¶ 19-20 (citing 28 C.F.R. § 35.130)
(“General prohibitions against discrimination”).
March 2015, Deputy Director Reese allegedly interfered with
Plaintiff's rights under the ADA “by telling
Plaintiff to appeal RSA's denial of [his] ADA
modification request at the DC Office of Administrative
Hearings (OAH), to create issue preclusion, thereby barring
Plaintiff's access to a Federal court.”
Id. ¶ 21.
April 2015, RSA “set[ ] a deadline to schedule a
meeting.” Id. ¶ 23. Allegedly, Plaintiff
“request[ed] an advocate and inform[ed] RSA of
out-of-town oncology appointments, but RSA impose[d] ¶
5PM deadline, after the fact, ” in violation of
“ADA proscriptions against retaliation under title
II.” Id. ¶ 24.
The Evidentiary Record
District has proffered the Affidavit of Taylor Kenny
(formerly Cummings) [Dkt. # 29 at 44-46], who at the relevant
time period was Plaintiff's Vocational Rehabilitation
Specialist, and various exhibits. Plaintiff has proffered his
Affidavit [Dkt. # 36-1 at 1-4] and various exhibits.
avers that Plaintiff “has received a variety of
services from RSA, ranging from assessment services, to
post-secondary education and training, counseling and
guidance, in-house job placement services, and
transportation.” Kenney Aff. ¶ 5. In response to
Plaintiff's request in October 2014 to modify his IPE
“to pursue a career as an attorney, ”
id. ¶ 6, Kenny (then Cummings) asked Plaintiff
“to participate in updated neuropsychological and
vocational evaluations in order to determine the
appropriateness of the newly requested employment outcome,
” as well as “the nature and scope of any VR
services that would be included in his modified IPE . . . in
keeping with 29 DCMR 110.3, ” id. ¶ 7.
Kenny “repeatedly . . . offered to schedule
appointments to assist” Plaintiff with providing
“the required information and documents and explained
to him the necessity of such data.” Id. ¶
8. Kenney avers that Plaintiff “did not agree” to
participate in the neuropsychological and vocational
evaluations and generally “refused to actively
participate in the process of developing and modifying his
IPE as requested.” Id. ¶¶ 9-10.
Consequently, on March 25, 2015, Plaintiff was notified
“of pending case closure” if he failed to
participate in the assessments and to schedule an appointment
by April 27, 2015. Id. ¶ 11.
March 16, 2015, Plaintiff e-mailed Director Laura L. Nuss
requesting that she “assist me with respect to my
request for modifications in policy and practices.”
Def.'s Ex. 3 [Dkt. # 29 at 37]. In a letter to Plaintiff
dated March 27, 2015, Director Nuss wrote:
I received your letter requesting a policy exception
regarding your request for the agency to provide support for
you to attend Law School. My understanding is that your VR
Specialist, Taylor Cummings, has explained that the first
question that needs to be addressed is not your ability to
participate in law school, but the appropriateness of
attorney as an employment goal for you. Ms. Cummings has
provided a clear explanation of the concerns she has about
changing your employment goal. She recommended that you
obtain an assessment in order for her to be able to
reconsider changing the goal. She has also reached out
several times in an attempt to have you come in for an
appointment to discuss these issues. To date, you have
refused to schedule an appointment with ...