Hester v. Paul Public Charter School ( 2022 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    JARED HESTER,
    Plaintiff,
    v.                                          Civil Action No. 21-3166 (JEB)
    PAUL PUBLIC CHARTER SCHOOL,
    Defendant.
    MEMORANDUM OPINION
    Plaintiff Jared Hester was a teacher at Paul Public Charter School here in Washington for
    several months until his termination in early 2021. He now brings this pro se action against the
    School, alleging that his firing constituted unlawful discrimination, retaliation, and a refusal to
    accommodate his disabilities. Moving to dismiss, Defendant maintains that Hester exhausted his
    administrative remedies only for retaliation and that, in any event, his Complaint is factually
    deficient on its face. Although Plaintiff’s pleadings are admittedly thin, the Court believes that
    they scrape by sufficiently to require denial of most of the Motion.
    I.     Background
    The Court accepts the allegations of the abbreviated Complaint as true, along with those
    in Plaintiff’s Opposition, as it must at this stage. See Brown v. Whole Foods Market Group,
    Inc., 
    789 F.3d. 146
    , 152 (D.C. Cir. 2015) (court should consider facts in pro se plaintiff’s
    complaint and opposition to motion to dismiss).
    Hester was a full-time high-school teacher at the School starting in October 2020. See
    ECF No. 1 (Notice of Removal), Exh. A (Superior Court documents) at ECF p. 11. At some
    point, the Vice-Principal, Tomiko Graves, “criticized [his] work performance on the basis of her
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    inaccurate perceptions of [his] race (white) and language (Spanish).” 
    Id.
     He was also
    “harassed” by the “Director of Talent” after he informed her that he “need[ed] accommodations
    for a disability,” which she refused to provide. 
    Id.
     “The Vice-Principal and Principal retaliated
    against [him] in discipline by placing [him] on a PIP [Performance-Improvement Plan] and
    littering [his] personnel file with insignificant and minor offenses after [he] sent a formal letter of
    grievance to the CEO about racist statements they had made about students.” 
    Id.
     The principal
    then “terminated [him] after one instance of lateness.” 
    Id.
     Plaintiff further alleges that his
    “termination was performed in retaliation for [his] formal complaint about the harassment that
    [he] was experiencing.” 
    Id.
     at ECF p. 12.
    In his Opposition, Hester adds more facts, particularly about his disability and his
    protected activity. For example, he explains that he “directly ask[ed] the Assistant Director of
    HR for an accommodation, showing her my medical document with two diagnoses (Anxiety
    Disorder — Unspecified and PTSD), directly ask[ed] the Director of HR for an
    accommodation,” and so informed the CEO. See ECF No. 8 (Pl. Opp. to MTD) at 2. He also
    alleges that he told HR and the CEO about the Graves incident and race-based and national-
    origin-based criticism. Id. at 3.
    On April 9, 2021, Plaintiff filed a Charge of Discrimination with the Maryland
    Commission on Civil Rights. See Sup. Ct. Docs at ECF p. 15. In that Charge, he noted only
    retaliation and only on the basis of race; in other words, his Charge never mentioned disability.
    Id. Over four months later, on August 31, however, he filed a “Clarification of Charge,” which
    added considerably more details about race, national-origin, and disability discrimination, as well
    as a failure to accommodate. See Opp. at ECF pp. 10–12.
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    Nowhere does Hester specifically set out his counts, but the Court, reading his pro se
    Complaint liberally, could infer that he seeks to bring claims under Title VII and the Americans
    with Disabilities Act for race, national-origin, and disability discrimination; a failure to
    accommodate his disability; and retaliation for protected activity regarding race, national origin,
    and disability. The School now moves to dismiss.
    II.    Legal Standard
    As exhaustion under the ADA and Title VII is not jurisdictional, see, e.g., Brown v.
    Hayden, No. 18-2561, 
    2021 WL 780816
    , at *4 (D.D.C. February 27, 2021); Thompson v. United
    States, 795 Fed. App’x 15, 20 n.7 (2d Cir. 2019), the Court sets out only the standards under
    Federal Rule of Civil Procedure 12(b)(6). That rule provides for the dismissal of an action where
    a complaint fails to “state a claim upon which relief can be granted.” Although “detailed factual
    allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,
    
    550 U.S. 544
    , 555 (2007), “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)
    (internal quotations marks and citation omitted). In weighing a motion to dismiss, a court “may
    consider only the facts alleged in the complaint, any documents either attached to or incorporated
    in the complaint[,] and matters of which [the court] may take judicial notice.” EEOC v. St.
    Francis Xavier Parochial School, 
    117 F.3d 621
    , 624 (D.C. Cir. 1997). The Court “must treat the
    complaint’s factual allegations as true and must grant [the] plaintiff ‘the benefit of all inferences
    that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 
    216 F.3d 1111
    ,
    1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 
    617 F.2d 605
    , 608 (D.C. Cir. 1979))
    (internal citations omitted). It need not accept as true, however, “a legal conclusion couched as a
    factual allegation” or an inference unsupported by the facts set forth in the Complaint. Trudeau
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    v. FTC, 
    456 F.3d 178
    , 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 
    478 U.S. 265
    , 286
    (1986)).
    Even at the Rule 12(b)(6) stage, a Court can review “documents attached as exhibits or
    incorporated by reference in the complaint,” or “documents upon which the plaintiff’s complaint
    necessarily relies even if the document is produced not by the plaintiff in the complaint but by
    the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 
    768 F. Supp. 2d 117
    , 119 (D.D.C. 2011) (citations and internal quotation marks omitted); see also Banneker
    Ventures, LLC v. Graham, 
    798 F.3d 1119
    , 1133 (D.C. Cir. 2015) (“A district court may consider
    a document that a complaint specifically references without converting the motion into one for
    summary judgment.”).
    III.   Analysis
    The School makes both an exhaustion and a merits argument, which the Court addresses
    separately.
    A. Exhaustion
    Defendant initially contends that any disability-related claim should be dismissed for
    failure to exhaust administrative remedies. More specifically, it posits that because Plaintiff’s
    Charge of Discrimination never mentions a refusal to accommodate and only cites retaliation for
    protected activity related to race, any ADA claim cannot survive. See MTD at 3–7.
    “Before bringing suit in federal court, ADA plaintiffs, like those under Title VII,
    must exhaust their administrative remedies by filing an EEOC charge and giving that agency a
    chance to act on it.” Marshall v. Fed. Exp. Corp., 
    130 F.3d 1095
    , 1098 (D.C. Cir. 1997). “[A]n
    aggrieved individual must file a charge within 180 days of the alleged discriminatory act, unless
    she has ‘instituted proceedings with a State or local agency with authority to grant or seek relief
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    from such practice,’ in which case she must file the charge within 300 days.” Elzeneiny v. Dist.
    of Columbia, 
    195 F. Supp. 3d 207
    , 226 (D.D.C. 2016) (quoting 42 U.S.C. § 2000e–5(e)(1)).
    The School is correct that Hester’s initial Charge was very limited and only included
    race-based retaliation claims. Yet his subsequent filing — i.e., his Clarification of Charge —
    was much broader and encompassed ADA claims, including a failure to accommodate, as well as
    discrimination and retaliation claims based on race and national origin. Defendant never argues
    that the subsequent filing was untimely — it appears not to be — or, more broadly, that
    amendments are not permissible — which would be wrong. See Elzeneiny, 195 F. Supp. 3d at
    227 (citing 
    29 C.F.R. § 1601.12
    (b) (“charge may be amended . . . to clarify and amplify
    allegations”)). The School’s only real position on the Clarification is that it was submitted only a
    month before the administrative decision, meaning that the agency did not have time to properly
    consider it. Yet Defendant offers no legal authority for the proposition that this renders a timely
    submitted claim unexhausted. While it may be able to make a fuller exhaustion argument at
    summary judgment, the Court cannot dismiss any claims at this point on this rationale.
    B. Merits
    The School independently asserts that Hester has not sufficiently alleged facts to make
    out counts under the ADA and Title VII. To begin, it maintains that “Plaintiff does not allege
    that he had a qualifying disability, or that he requested, and was denied, a reasonable
    accommodation.” MTD at 7. There is no doubt that the Complaint here is poorly and cursorily
    drafted, but the Court may also consider facts in Plaintiff’s Opposition, which set forth his
    specific disabilities and his request for an accommodation. See Opp. at 4. Although Defendant
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    is correct that the denial of an accommodation is not expressly alleged, the Court believes that it
    is sufficiently implied. 
    Id.
     Hester’s ADA claim for a failure to accommodate thus survives.
    The School also contends that Plaintiff has not sufficiently alleged that he engaged in
    protected activity such that a retaliation cause of action may proceed. Seeking a reasonable
    accommodation, however, can constitute protected activity for a disability-retaliation claim.
    Schmidt v. Solis, 
    891 F. Supp. 2d 72
    , 93 (D.D.C. 2012) (“It is clear that requesting
    a reasonable accommodation for a disability is a protected activity under the [Americans with
    Disabilities Act].”). In addition, although the Complaint is sparse, Hester’s Opposition outlines
    how he raised issues to School personnel (including in human resources) regarding racial and
    national-origin discrimination that he was encountering. See Opp. at 3. This is enough to
    constitute the protected activity that he alleges resulted in his firing. Although Defendant’s
    position in its Reply that the Court should look only to the threadbare Complaint, not facts
    alleged for the first time in an Opposition, see ECF No. 9 (Reply) at 6–7, makes plenty of sense,
    the Circuit has held otherwise. See Brown, 789 F.3d at 152 (reversing district court that
    confined its findings to facts alleged in pro se complaint). Hester’s retaliation claims will thus
    not be dismissed.
    The School does prevail on Plaintiff’s direct discrimination claims, however. He has not
    alleged that he was terminated in whole or in part on account of his race, national origin, or
    disability, and mere criticism by Graves of his performance does not amount to an adverse
    action. In addition, per Plaintiff’s own allegations, Graves’s placing him on a PIP was not direct
    discrimination, but rather was “done in retaliation for having reported her harassment and
    discipline of me.” Opp. at 3.
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    IV.    Conclusion
    For the foregoing reasons, the Court will grant the Motion in part and deny it in part.
    Plaintiff’s retaliation claims and failure-to-accommodate claims may proceed. A separate Order
    consistent with this Opinion will issue this day.
    /s/ James E. Boasberg
    JAMES E. BOASBERG
    United States District Judge
    Date: January 4, 2022
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