Brown v. District of Columbia ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
RANDY BROWN, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-0947-EGS
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DISTRICT OF COLUMBIA, )
)
)
Defendant. )
_________________________________ )
MEMORANDUM OPINION
Plaintiff 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 accordingly.
I. BACKGROUND
RSA is 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
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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.
A. Factual Background
1. Plaintiff’s Allegations
Plaintiff 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.
In 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.
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At some 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.
Plaintiff 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”).
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In 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.
In 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] a 5PM deadline, after the fact,” in violation of “ADA proscriptions against
retaliation under title II.” Id. ¶ 24.
2. The Evidentiary Record
The 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.
Kenney 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
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“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.
On 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
Ms. Cummings. She sent you a letter on March 25, 2015, advising you
that if you are unwilling to meet to discuss how to move your case
forward, that your case would be closed on April 27, 2015.
Pl.’s Ex. 5 [Dkt. # 36-1 at 20]. Nuss conveyed her “hope” that Plaintiff would “respond to Ms.
Cummings and schedule a meeting to discuss these issues with her.” Id. She also provided, as
did Cummings, contact information for the Client Assistance Program at University Legal
Services, Inc. Id.
In an e-mail to Plaintiff on March 31, 2015, Cummings recounted that she had “relayed”
his “request for modification in policy to Mr. Andrew Reese and he instructed you to
communicate with me to make an appointment.” Def.’s Ex. 3 [Dkt. # 29 at 36]. Cummings
informed Plaintiff that notwithstanding his request to Director Nuss, the information in her
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March 25, 2015 letter “still stands and appointment is to be scheduled with me by Monday, April
27th to prevent case closure.” Id. She explained that the purpose of the meeting “is to allow for
an open conversation of the reasons for my request for updated evaluations and to discuss further
services, as you’ve requested. I have also discussed with you that I will be able to provide an
outline for our meeting at least one week in advance and will provide a written summary for you
after our meeting.” Id. Cummings stressed in closing that “in order to move forward with your
case, we must have a scheduled appointment.” Id.
In a letter addressed to Cummings on April 2, 2015, Plaintiff states his purported “need to
receive a written explanation of RSA’s posture related to my modification request prior to
scheduling a meeting” and takes issue with Cummings’ agreement to provide him “only an
‘outline’ and a ‘summary’ . . . devoid of any analytically reasoned explanation of facts and laws
in support of RSA’s position related to my ADA request for a waiver of policy.” Pl.’s Ex. 6
[Dkt. 36-1 at 22]. Plaintiff surmised that absent “a written explanation of RSA’s position well in
advance[,] any scheduled meeting . . . would invariably prove to be bewildering[.]” Id.
By letter of April 27, 2015, Cummings informed Plaintiff, consistent with the earlier
warnings, that (1) his case seeking modification of the IEP was closed since he failed to provide
the “requested documentation,” and (2) he could appeal that decision within 30 days. Def.’s Ex.
1 [Dkt. # 29 at 27]. Cummings enclosed a “Right to Appeal” notice setting out various actions
Plaintiff could take at the administrative level.
Plaintiff avers that on April 27, 2015, he “drove from Philadelphia with [a] medical
excuse after receiving treatment” and “email[ed] the excuse to RSA.” Aff. of Randy Brown
¶ 25. Plaintiff does not dispute that he failed to appeal the decision to close his case “through
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administrative remedies available to him as outlined in his Right to Appeal letter.” Def.’s
Statement of Undisputed Facts ¶ 4.
B. Procedural Background
On April 25, 2016, Plaintiff lodged with the Clerk of Court a complaint and application
to proceed in forma pauperis (“IFP”). The IFP application was granted on May 18, 2016, and
this case was formally filed the next day, on May 19, 2016. The three counts of the Amended
Complaint invoke Title II of the ADA (Count 1), Section 504 of the Rehabilitation Act (Count
2), and Title II, Chapter 14 of the DCHRA (Count 3). Plaintiff seeks injunctive relief and “any
restitution that is lawful.” Am. Compl. at 33.
In its Answer to the Amended Complaint [Dkt. # 16], the District asserts among other
defenses that Plaintiff (1) failed to exhaust his administrative remedies, (2) failed to meet the
applicable statute of limitations, and (3) would have been subjected to the alleged actions even if
he were not disabled. Answer at 27-28. In addition, the District contends that the challenged
actions were based on legitimate non-discriminatory reasons. Id. at 27. The Court issued a
schedule for discovery, which concluded on September 21, 2018. The District filed its
dispositive motion on November 7, 2018 [Dkt. # 10]; Plaintiff filed oppositions on December 17,
2018, and December 27, 2018 [Dkt. ## 33, 36], which the Court considers together as one
opposition; and the District filed its reply on January 2, 2019 [Dkt. # 35].
II. LEGAL STANDARDS
A. Subject Matter Jurisdiction
Although the District mentions Federal Rule of Civil Procedure 12(b)(1), Mot. at 1, it has
not advanced a supporting argument. The complaint clearly raises federal questions over which
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this Court has original jurisdiction. See 28 U.S.C. § 1331. Therefore, the motion to dismiss on
jurisdictional grounds is denied.
B. Summary Judgment
Because the court will rely on matters outside the complaint and answer to resolve the
District’s motion, it will apply the standards for summary judgment. Under Federal Rule of
Civil Procedure 56, “[t]he court shall grant summary judgment 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); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). The moving party must identify “those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (internal quotations omitted).
To defeat summary judgment, the nonmoving party must demonstrate through evidence
of his own that there is a genuine issue of material fact. Id. at 324. A material fact is one that is
capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A genuine dispute is one in which “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. The “evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. Still, a non-
moving party must establish more than the “mere existence of a scintilla of evidence” in support
of its position. Id. at 252. If “the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Id. at 249-50 (citations omitted). Summary judgment is
appropriate also if, after discovery, a plaintiff fails to offer “evidence on which the jury could
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reasonably find for [him]” on an essential element of his claim. Id. at 252; Celotex, 477 U.S. at
322; see also Nov. 7, 2018 Order [Dkt. # 31] (explaining same to Plaintiff).
C. Applicable Laws
Under Title II of the ADA “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. To prevail on a Title II claim, Plaintiff must show “(1) that he is a ‘qualified
individual’ with a disability; (2) that he was excluded from participation in a public entity’s
services, programs or activities or was otherwise discriminated against by a public entity; and (3)
that such exclusion or discrimination was due to his disability.” Smith v. Henderson, 944 F.
Supp. 2d 89, 104 (D.D.C. 2013) (quoting Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d
144, 153 (2d Cir. 2013)).
Section 794 of the Rehabilitation Act proscribes the same type of conduct by recipients of
federal funds and requires a similar but somewhat stricter showing. See Johnson v. Thompson,
971 F.2d 1487, 1492 (10th Cir. 1992) (“To prevail on the Rehabilitation Act claim, plaintiff
must show: (a) she is a disabled person, (b) she was “otherwise qualified” to receive treatment
from defendant, (c) defendant refused to treat her “solely by reason of” her disability, and (d)
defendant receives federal financial assistance.”); Adams v. District of Columbia, 618 Fed.
App’x 1, 2 (D.C. Cir. 2015) (per curiam) (claims under § 794 of the Rehabilitation Act “are
governed by the same standards of liability as govern the ADA claims”) (citing 29 U.S.C. §
794(d)); see also Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 206 (E.D.N.Y. 2000) (“Although
there are subtle differences between these disability acts, ‘the standards adopted by Title II of the
ADA for State and local government services are generally the same as those required under
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section 504 of federally assisted programs and activities.’ ”) (citing 28 C.F.R. Pt. 35, App. A);
Sumes v. Andres, 938 F. Supp. 9, 11 (D.D.C. 1996) (same). The “remedies, procedures, and
rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) . . . shall be
available to any person aggrieved by any act or failure to act by any recipient of Federal
assistance or Federal provider of such assistance under section 794 of this title.” 29 U.S.C.
§ 794a. And Title II of the ADA adopts the “remedies, procedures, and rights set forth in section
794a of Title 29[.]” 42 U.S.C. § 12133.
The District of Columbia Human Rights Act proscribes discrimination based on disability
as well. See D.C. Code § 1402.41. The Court’s analysis of the foregoing federal claims applies
equally to any analogous claims under the D.C. Human Rights Act. See Boykin v. Gray, 895 F.
Supp. 2d 199, 219 (D.D.C. 2012) (“District of Columbia courts interpreting the DCHRA ‘have
generally looked [for guidance] to cases from the federal courts’ arising under federal civil rights
statutes. . . . Therefore, the D.C. law is applied in the same manner as the parallel federal anti-
discrimination provisions.”) (quoting Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir.
1997); Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Engineers, P.C., 950 F. Supp.
393, 405 (D.D.C. 1996) (other citations omitted)).
III. DISCUSSION
The District contends that: (1) claims one and two should be dismissed because Plaintiff
failed to exhaust his administrative remedies under the ADA and the Rehabilitation Act; (2) all
three claims under the ADA, the Rehabilitation Act, and the DCHRA are time-barred; and (3)
the discrimination claims fail on the merits because RSA had legitimate non-discriminatory
reasons for the challenged actions.
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A. Failure to Exhaust
It is established that a plaintiff’s failure to exhaust administrative remedies under the anti-
discrimination laws does not deprive the court of subject matter jurisdiction. See Fort Bend Cty.,
Texas v. Davis, 139 S. Ct. 1843, 1846 (2019) (holding that “Title VII’s charge-filing instruction
is not jurisdictional” but is instead “ranked among the array of claim-processing rules that must
be timely raised [by the defendant] to come into play”). Nor does a claim brought beyond the
applicable statute of limitations. See Doak v. Johnson, 798 F.3d 1096, 1104 (D.C. Cir. 2015)
(noting that Title VII’s “time limits ‘function[ ] like statutes of limitations,’ and thus ‘are subject
to equitable tolling, estoppel, and waiver’” and “nothing in the Rehabilitation Act . . . warrants
treating the same administrative time limit differently based on which claims are involved”)
(quoting Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)).
Plaintiff does not dispute that he failed to properly exhaust his administrative remedies.
Instead, he counters that exhaustion was not required. See Opp’n Mem. at 5 [Dkt. # 36 at 3].
The Court agrees. “[Section] 794 of the Rehabilitation Act proscrib[ing] discrimination by . . .
federally funded entities . . . does not explicitly require the exhaustion of administrative
remedies.” Jones v. Univ. of D.C., 505 F. Supp. 2d 78, 85 (D.D.C. 2007). And courts have held
that litigants under Title VI -- the procedures of which § 794 of the Rehabilitation Act and Title
II of the ADA have adopted -- “need not exhaust their administrative remedies before pursuing
their private cause of action in federal court.” Neighborhood Action Coal. v. City of Canton,
Ohio, 882 F.2d 1012, 1015 (6th Cir. 1989); see Smith v. Henderson, 944 F. Supp. 2d 89, 100
(D.D.C. 2013) (“Title VI suits for individual claims of discrimination . . . need not be
exhausted”) (quoting Milbert v. Koop, 830 F.2d 354, 356 (D.C. Cir. 1987) (“Title VI, which
relates to the cutting off of funding of federal programs when certain prescribed discriminatory
11
conduct occurs, does not contain exhaustion requirements similar to those of Title VII.”))).
Therefore, the Court denies the District’s motion to dismiss on exhaustion grounds.
B. Statute of Limitations
It is well-established that when, as in this case, a federal law does not specify a time
period in which to bring a claim, courts should apply “the statute of limitations from an
analogous state statute.” N. Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (noting that since
1830, “state statutes have repeatedly supplied the periods of limitations for federal causes of
action when the federal legislation [has] made no provision”) (internal quotation marks and
citation omitted)). As indicated above, the DCHRA, proscribing disability discrimination, is the
local law most comparable to the ADA and the Rehabilitation Act. It requires that a “private
cause of action” be brought “within one year of the unlawful discriminatory act, or the discovery
thereof[.]” D.C. Code § 2-1403.16. The District of Columbia Court of Appeals, which is
accorded deference on questions of D.C. law, has applied “[t]he same statute of limitations and
tolling provision[s]” to claims “brought under either the Rehabilitation Act or the [DC]HRA.”
Jaiyeola v. District of Columbia, 40 A.3d 356, 369 (D.C. 2012). And this Court has followed
suit. See Congress v. District of Columbia, 324 F. Supp. 3d 164, 172 (D.D.C. 2018) (finding
“Jaiyeola’s reasoning persuasive,” insofar as “the D.C. Human Rights Act and the Rehabilitation
Act[ ] have a ‘shared purpose and ambitious aims’—both seek to end discrimination against
individuals with disabilities,” provide private causes of action for disability discrimination, and
“allow for a similar set of remedies”) (quoting Jaiyeola, 40 A.3d at 367)); Ware v. Hyatt Corp.,
No. 12-cv-0395, 2013 WL 12321372, at *15 (D.D.C. Mar. 27, 2013) (adopting “the one-year
statute of limitations from the DCHRA as the statute of limitations applicable to the
Rehabilitation Act” claim).
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The predicate discriminatory action for accrual purposes is unclear. In opposing
summary judgment, Plaintiff suggests that his claim does not “stem[ ]” from the closure of [his]
case” but rather from RSA’s alleged “refus[al] to modify a schedule to accommodate Plaintiff’s
cancer treatment[.]” Opp’n Mem. at 1. Still, Plaintiff returns to the closing of his case on April
27, 2015, and the circumstances leading up to that decisive action. See id. at 2. The Court finds
that Plaintiff’s claim accrued on April 27, 2015, thereby triggering a deadline of April 27, 2016,
to file a civil action.
It is long settled that a plaintiff is not responsible for the administrative delay associated
with the Court’s review of an IFP application submitted with the complaint. See Johnson v.
Interstate Mgmt. Co., LLC, 871 F. Supp. 2d 1, 4 (D.D.C. 2012), aff'd, No. 14-7164, 2015 WL
4072092 (D.C. Cir. June 29, 2015). In such circumstances, the date the documents are received
control. The Clerk’s May 19, 2016 docket entry establishes the receipt of Plaintiff’s “Initiating
Pleading & IFP Application” on April 26, 2016, thereby rendering the claims predicated on the
closure of Plaintiff’s case on April 27, 2015, timely.
That said, Plaintiff’s factual allegations describe three incidents liberally construed as
supporting his “continuing pattern of discriminatory conduct” theory, Am. Compl. at 1, which if
proven could render otherwise untimely violations actionable. See Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 110-14 (2002) (discussing continuing violation doctrine). First, in 2009,
after three years of providing services, RSA informed Plaintiff that he was “ineligible for further
services.” Pl.’s Facts ¶ 2. Second, in the summer of 2013, when “in response to a pending
discrimination complaint for denying services, RSA authorize[d] Plaintiff to enroll at George
Washington University but sabotages” his “efforts, by refusing to pay for books, transportation
and tuition.” Id. ¶ 4. Third, on May 23, 2014, “Mr. Jonathan Keefe . . . yell[ed] threats and
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insults for approximately 45 minutes to coerce Plaintiff to sign a false IEP” and then closed
Plaintiff’s file for “insubordination” when he refused. Id. ¶ 5. Plaintiff claims that the IPE was
“riddled with false statements alleging that payments had been made for items about which [he]
knew nothing” and that he “had decided to return to teaching and to forego art appraisal studies.”
Pl.’s Aff. ¶ 13 [Dkt. # 36-1 at 3]. The file was reopened with the assistance of University Legal
Services. Pl.’s Facts ¶ 5.
Plaintiff does not allege that those decisions had anything to do with his disability.
Rather, he admits that RSA “promise[d]” to pay the expenses to attend GWU “if [he] signed a
false IEP to forego services,” id. ¶ 4, and that his refusal to sign “a false IEP” is what triggered
the encounter with Keefe, id. ¶ 5. But the mere fact that the IEP may have been false is not
material to the outcome of this discrimination case. Cf. Fischbach v. D.C. Dep't of Corr., 86
F.3d 1180, 1183 (D.C. Cir. 1996) (courts “may not second-guess an employer’s personnel
decision absent demonstrably discriminatory motive”) (internal quotation marks and citation
omitted)). Moreover, the foregoing isolated events do not support a pattern, much less a
“continuing pattern of discriminatory conduct.” Am. Compl. at 1. And “discrete discriminatory
acts are not actionable if time barred, even when they are related to acts alleged in timely filed
charges.” Morgan, 536 U.S. at 113. Therefore, the Court agrees that any claims based on
occurrences before April 27, 2015, are barred by the one-year statute of limitations and grants
summary judgment to the District on any such claims.
C. The Merits
1. Disability Discrimination
Accepting that Plaintiff has stated a prima facie case of disability discrimination, and in
the absence of any direct evidence of such discrimination, the Court turns to the familiar burden-
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shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
the central question of whether Plaintiff has “produced sufficient evidence for a reasonable jury
to find that [RSA’s] asserted non-discriminatory reason [for the case closure in April 2015] was
not the actual reason and that [RSA] intentionally discriminated against the plaintiff on a
prohibited basis,” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008)
(citations omitted).
The District has articulated a legitimate, nondiscriminatory reason for closing Plaintiff’s
case, in that he simply refused to “participate in the process of developing and modifying” his
IPE. Kenney Aff. ¶ 9; see id. ¶¶ 5-8 (describing the process); see also Director Nuss’ letter [Dkt.
# 36-1 at 20]. Plaintiff has offered no contrary evidence, let alone evidence from which a
reasonable jury could find that RSA closed the case because of his “cognitive disability.” Am.
Compl. ¶ 2. Consequently, the District is entitled to judgment as a matter of law on Plaintiff’s
discrimination claim.
2. Failure to Accommodate
Plaintiff suggests that RSA failed to reasonably accommodate his schedule for cancer
treatments. Discrimination under the ADA and Rehabilitation Act “includes the failure to
provide ‘reasonable accommodations’ to a ‘qualified individual with a disability,’ unless doing
so would constitute an undue hardship.” Martin v. District of Columbia, 78 F. Supp. 3d 279,
317-18 (D.D.C. 2015) (quoting 42 U.S.C. § 12112(b)(5)(A) (citing Gordon v. District of
Columbia, 480 F. Supp. 2d 112, 115 (D.D.C. 2007)). In the context of Title II of the ADA and
§ 504 of the Rehabilitation Act, “[p]ersons with disabilities are ‘qualified’ if they, ‘with or
without reasonable modifications to rules, policies, or practices . . . mee[t] the essential eligibility
requirements for the receipt of services or the participation in programs or activities provided by
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a public entity.’” 1 Tennessee v. Lane, 541 U.S. 509, 517 (quoting 42 U.S.C. § 12131(2)). But a
cancer diagnosis is not per se a disability under the ADA or Rehabilitation Act, and Plaintiff has
pled no other facts establishing a disability. See Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir.
2008) (noting that ‘Disability” is [a] term of art under the statute[s] that carries a specific
meaning”).
Notwithstanding the pleading defect, and for the sake of completeness, the Court finds no
triable issue on the reasonable accommodation claim. Plaintiff has offered nothing to present to
a jury establishing when (and how often) the alleged scheduling issue arose. Nor has he
adequately disputed the overwhelming evidence in the record that he was “repeatedly . . .
offered” times for “appointments” to participate in the process of modifying his IPE. Kenney
Aff. ¶ 8. The fact that Plaintiff was given nearly a month -- between the warning letter and the
actual closure letter – to schedule an appointment for “an open conversation” about his request,
Def.’s Ex. 3, does not bode well for him either.
Plaintiff proffers a medical statement dated April 27, 2015, which he contends “informs
RSA of the need [to] make reasonable modifications.” Opp’n Mem. at 14 [Dkt. # 36 at 12]. The
statement is dated April 27, 2015, which is not only the date of RSA’s case closure letter but the
date that Plaintiff avers he emailed the statement to RSA. Aff. of Randy Brown ¶ 25. The
statement lacks probative value because “[a]n underlying assumption of any reasonable
accommodation claim is that the plaintiff . . . has requested an accommodation which the
defendant . . . has denied.” Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999). In
other words, “[t]o create an issue for the jury with respect to this request,” Plaintiff “was required
1
Plaintiff requested a modification of policy or practice to avoid what he viewed as
“duplicative neuropsychological testing,” Pl.’s Ex. 6 at 24, but his proposal to rely instead on the
LSAT as an assessment tool, id., is baffling, and Deputy Director Reese rightly “reject[ed] the
analogy.” Am. Compl. ¶ 20.
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to produce sufficient evidence that, after [the] request, [the District] refused to make an
accommodation.” Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1308 (D.C. Cir. 2010)
(citations omitted). Plaintiff has adduced no such evidence. Consequently, the District is
entitled to judgment on this claim as well.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is granted. A
separate order accompanies this Memorandum Opinion.
SIGNED: EMMET G. SULLIVAN
UNITED STATES DISTRICT JUDGE
DATE: September 12, 2019
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