Buitrago v. D.C. Department of Health ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LUIGI BUITRAGO,
Plaintiff,
v.
No. 18-cv-261(EGS)
DISTRICT OF COLUMBIA, et al.,
Defendant.
MEMORANDUM OPINION
Plaintiff Luigi Buitrago (“Mr. Buitrago”) brings this
action against the District of Columbia (the “District”) and
Muriel Bowser, Mayor of the District of Columbia (“Mayor
Bowser”) alleging discrimination on the basis of national origin
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e-2 et seq.; discrimination in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, et
seq.; retaliation in violation of Title VII and the ADA; and
breach of contract. Pending before the Court is the District’s
Motion to Dismiss. Upon careful consideration of the motion, the
opposition, the reply thereto, the applicable law, and the
entire record herein, the Court GRANTS IN PART and DENIES IN
PART the District’s Motion to Dismiss.
I. Background
A. Factual Background
The following facts are alleged in the Third Amended
Complaint and the documents incorporated by reference therein,
which the Court assumes are true for the purposes of deciding
this motion and construes in Mr. Buitrago’s favor. See Brown v.
Sessoms, 774 F.3d 1016, 1020 (D.C. Cir. 2014); see also Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000)(“[W]e must treat the complaint's factual allegations as
true.”).
Mr. Buitrago began working for the District of Columbia’s
Department of Health (“DOH”), a subdivision of the District of
Columbia, in October 2005 as a Public Health Analyst. Third Am.
Compl., ECF No. 29 at 2 ¶ 13.1 He states that he is a “Hispanic
male of Panamanian origin.” Third Am. Compl., ECF No. 29 at 2 ¶
12.
On July 25, 2006, Mr. Buitrago suffered an on-the-job
injury, resulting in a diagnosis of a bulged disk and strained
back. Id. at 2 ¶¶ 17, 24. Mr. Buitrago alleges that this injury
continues to impact his everyday life, including a loss of
mobility in his left leg, resulting in reliance on a wheelchair
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
and/or a cane, frequent falls when attempting to move, an
inability to lift anything heavier than ten pounds, inability to
run resulting in weight gain, excessive and chronic pain if he
is unable to receive physical therapy treatments, and side
effects from pain medication. Id. at 2-3 ¶ 25, 24. Mr.
Buitrago’s injury required multiple surgeries, and following a
surgery in September 2008, he was placed on disability for an
entire year. Id. at 3 ¶ 30.
Mr. Buitrago was laid off in January 2012 while receiving
workers’ compensation benefits due to a reduction in force, and
later filed a charge of discrimination on basis of disability
and national origin with the Equal Employment Opportunity
Commission (“EEOC”) in or around November 2012 (“2012 EEOC
Charge”). Id. at 3 ¶¶ 32-33. The 2012 EEOC Charge was resolved
through a confidential January 2013 Settlement Agreement between
DOH, the American Federation of Government Employees, Local 2978
(local union representing Mr. Buitrago), and Mr. Buitrago (“2013
Settlement Agreement”). Pl.’s Ex., ECF No. 1-1. In return for
Mr. Buitrago withdrawing his 2012 EEOC Charge, the 2013
Settlement Agreement required that Mr. Buitrago (1) be
reinstated to a “Grade 12, Step 10 term position within the
Community Health Administration [(“CHA”)];” (2) be paid “thirty
thousand dollars”; (3) have his leave restored; (4) be provided
with the “ergonomic workstation that was in place for his use”
3
prior to his dismissal and that “meets the requirements set by
Mr. Buitrago’s physician”; and (5) be provided with a “flexible
work schedule that adhere[d] to the existing DC/DOH policies to
facilitate medical treatment or physical therapy related to [Mr.
Buitrago’s 2006] on-the-job injury.” Id. at 2 ¶ 3. The
Settlement Agreement also provided for the payment of certain
attorney’s fees. Id.Upon his return to work in February 2013, Mr. Buitrago was
placed under a new supervisor who was an African-American
female, as were all of his co-workers. Third Am. Compl., ECF No.
29 at 3 ¶ 38. Mr. Buitrago alleges that his new supervisor was
informed of the 2013 Settlement Agreement and that she violated
the agreement by “by not reasonably accommodating a flexible
work schedule for [him] so he could attend physical therapy
appointments.” Id. at 3 ¶¶ 39, 40. Mr. Buitrago alleges his
supervisor did provide a flexible work schedule to his co-
worker, who also had a reasonable accommodation. Id. at 4 ¶ 42.
He also alleges that the District failed to provide him with a
“reasonable accommodation in the form of an ergonomic
workstation . . . over a period of four and a half years.” Id.at 7 ¶ 93.
On June 5, 2015, Mr. Buitrago filed a second Charge of
Discrimination with the EEOC (“2015 EEOC Charge”). In that
charge, he alleged discrimination based on sex, national origin,
4
retaliation and disability. Def.’s Ex. 1, ECF No. 19-2 at 1. He
stated that the discrimination began on November 13, 2014, that
the latest act occurred on June 8, 2015, and was continuing in
nature. Id. He referred to the settlement of his previous EEO
claim and alleged, among other things, that his supervisor was
not reasonably accommodating his flexible work schedule and
physical therapy appointments. Id.Subsequent to filing the 2015 EEOC Charge, in October 2015,
Mr. Buitrago informed the Deputy Director for Programs at CHA
that “his ADA accommodations had been requested but not
fulfilled as required by the [2013 Settlement Agreement].” Third
Am. Compl., ECF No. 29 at 4 ¶ 50. After being told that there
was no record of him ever filing the paperwork, he “filed the
requisite paperwork” and then met with a Human Resources officer
who noted that his ADA request for “protected leave and flex
schedule” should be approved per the terms of the 2013
Settlement Agreement. Id. at 4 ¶¶ 50-55. Mr. Buitrago alleges
that at some point in January 2016, he was granted leave for his
medical appointments, and his flexible schedule was approved.
Id. at 5 ¶ 58. However, on January 28, 2016, Mr. Buitrago
received an email informing him that “his physical therapy
sessions were no longer paid for without [providing an]
explanation,” and on January 29, 2016, he was “instructed to use
his personal leave, not administrative leave, for his physical
5
therapy.” Id. at 5 ¶¶ 59, 61. On February 10, 2016, Mr. Buitrago
met with the “Associate Director of Policy and Compliance in the
[District of Columbia Human Resource Department (“DCHR”)] as the
EEO[] officer for DCHR,” and reported the issues he was having
with his superiors. Id. at 5 ¶ 63. Mr. Buitrago was then
temporarily assigned to a different division, and the District
hired a consultant to perform his duties at his prior division.
Id. at 5 ¶ 65. Mr. Buitrago was then returned to his prior
division because the agency was planning a Reduction in Force
(“RIF”). Id. After an investigation, DCHR provided Mr. Buitrago
with an Exit Letter closing the matter and informing him that he
had the right to submit a formal complaint to the Office of
Human Resources (“OHR”) within fifteen days. Id. at 5 ¶ 68; DCHR
Exit Letter and Notice of Right to File a Formal Complaint,
Pl.’s Ex., ECF No. 1-1 at 9-10.
In October 2016, a union representative informed Mr.
Buitrago that his employment was “term” rather than “career.”
Third Am. Compl., ECF No. 29 at 5 ¶ 69. Mr. Buitrago alleges
that the 2013 Settlement Agreement states that he was to be
returned to a career position. Id. at 5 ¶ 72. After finding out
that he was a “term” employee, instead of a “career” employee,
Mr. Buitrago had to re-apply for his job. Id. at 6 ¶ 73. On May
19, 2017, Mr. Buitrago was sent a termination letter stating
that the District would not renew his “Term Appointment,” and he
6
was placed on “administrative leave until his termination became
effective September 30, 2017.” Id. at 6 ¶¶ 74,76.
On November 7, 2017, the EEOC issued a notice of right to
file suit based on his 2015 EEOC Charge. EEOC Dismissal and
Notice of Rights Letter, Pl.’s Ex., ECF No. 1-1 at 12 (“EEOC
Notice”).
B. Procedural History
Mr. Buitrago timely filed his original Complaint on
February 5, 2018. See Compl., ECF No. 1. The District filed a
Notice indicating insufficient service under Federal Rule of
Civil Procedure 4(j) on June 27, 2018. See Notice, ECF No. 8. On
July 12, 2018, Mr. Buitrago filed an Amended Complaint. See Am.
Compl., ECF No. 11. The District moved to dismiss the Amended
Complaint on July 31, 2018. See generally Def.’s Mot. to
Dismiss, ECF No. 12. On August 21, 2018, Mr. Buitrago filed both
his First Memorandum in Opposition to Defendant’s Motion, see
Pl’s Opp., ECF No. 15, and a Motion to correct his Amended
Complaint. See Pl’s Mot. to Am., ECF No. 14.
With the Court’s leave, see Min. Order of Sept. 5, 2018,
Mr. Buitrago filed a Second Amended Complaint on that same day.
See Second Am. Compl., ECF No. 17. The District filed its Second
Motion to Dismiss on October 1, 2018. See Second Def.’s Mot. to
Dismiss, ECF No. 19. On October 31, 2018, Mr. Buitrago then
filed his Second Memorandum in Opposition, see Pl.’s Opp. 2, ECF
7
No. 22, to which the District filed its Reply on November 7,
2018. See Def.’s Reply, ECF No. 23. On February 7, 2019, Mr.
Buitrago’s attorney informed the Court that he had been
indefinitely suspended from the practice of law and that Mr.
Buitrago had attained new counsel. See Notice of Withdrawal as
Pl.’s Counsel and Notice of Appearance of New Counsel, ECF No.
24. On May 23, 2019, the Court denied as moot the District’s
October 1, 2018 Second Motion to Dismiss and allowed Mr.
Buitrago to file an amended compliant to address the
deficiencies identified by the District. See Min. Order of May
23, 2019. Mr. Buitrago filed his Third Amended Complaint on June
24, 2019, see Third Am. Compl., ECF No. 29, and the District
filed its Motion to Dismiss that Complaint on July 8, 2019. See
Def.’s Mot. to Dismiss, ECF No. 30. Mr. Buitrago filed his
Memorandum in Opposition on July 29, 2019, see Pl.’s Opp’n., ECF
No. 32, and the District filed its Reply on August 12, 2019. See
Def.’s Reply, ECF No. 33. The District’s motion is ripe and
ready for adjudication.
II. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court will
dismiss a claim if the complaint fails to plead “enough facts to
state a claim for relief that is plausible on its face.” Bell
8
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), “in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests,” Twombly,
550 U.S. at 555 (internal quotation marks and citations
omitted).
A complaint survives a Rule 12(b)(6) motion only if it
“contain[s] 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 Twombly,
550 U.S. at 570). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
[a] reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A complaint alleging facts which are
“‘merely consistent with’ a defendant’s liability . . . ‘stops
short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
III. Analysis
In its motion to dismiss, the District argues that: (1)
“Mayor Bowser is not a proper party to this matter”;2 (2) Mr.
2 Mr. Buitrago concedes to “removing Mayor Bowser from the
instant matter . . . .” Pl.’s Opp’n. 3, ECF No. 32 at 2.
Accordingly, the Court GRANTS Defendant’s Motion to Dismiss as
to the removal of Mayor Bowser as a defendant in this action.
9
Buitrago “has not properly alleged an adverse employment
action”; (3) Mr. Buitrago’s “failure to accommodate claim fails
because: (i) he has not alleged a disability within the meaning
of the ADA, and (ii) he failed to exhaust his administrative
remedies for any such claim”; (4) Mr. Buitrago “has not alleged
a causal nexus between any protected activity and any allegedly
retaliatory act” to support a retaliation claim; and (5) Mr.
Buitrago’s “breach of contract claim fails because: [i] it is
untimely; [ii] he cannot prove a breach; and [iii] any such
claim is barred by the D.C. Comprehensive Merit Personnel Act
(“CMPA”)” See Def.’s Mot. to Dismiss, ECF No. 30 at 1.
Mr. Buitrago, in his response, argues that: (1) he
sufficiently alleged national origin discrimination by alleging
that: “[i] he [was] the only individual of Panamanian origin in
his department [and] [ii] [he] was treated differently from his
female African-American colleagues due to his national origin
because he was prohibited from taking a flexible work schedule,”
Pl.’s Opp’n., ECF No. 32 at 4; (2) he properly pled an adverse
employment action because he was terminated, id. at 5; (3) he
sufficiently alleged a disability because his back injury
interfered with the ability to work, id. at 6; and (4) his
retaliation claim is timely because the retaliatory acts were
continuous in nature and the statutory window was not tolled
until he fully and unequivocally realized he was experiencing
10
retaliatory acts, id. at 7.
A. Mr. Buitrago has stated a claim for employment
discrimination on the basis of national origin.
Under Title VII, it is unlawful for an employer “to
discriminate against any individual with respect to [his]
compensation, terms, conditions, or privileges of employment,
because of [his] race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). To survive a motion to
dismiss, Mr. Buitrago must allege “two essential elements:
(i)[he] suffered an adverse employment action (ii) because of
[his] race, color, religion, sex, national origin, age, or
disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.
Cir. 2008). “To prevail on a motion to dismiss, it is not
necessary to establish a prima facie case.” Greer v. Bd. of Trs.
of the Univ. of the D.C., 113 F. Supp. 3d 297, 310 (D.D.C. 2015)
(citing Gordon v. U.S. Capitol Police, 778 F.3d 158, 162 (D.C.
Cir. 2015)). Nonetheless, Mr. Buitrago “must allege facts that,
if true, would establish the elements of each claim.” Id.(citation and internal quotation marks omitted).
The District argues that the denial of Mr. Buitrago’s
request for a flexible work schedule does not amount to an
adverse employment action because “he has not alleged that his
work schedule, under which his workday ended at 6:00 PM,
tangibly or immediately affected the terms or conditions of his
11
employment.” Def.’s Mot. to Dismiss, ECF No. 30 at 15. Mr.
Buitrago argues that he has adequately alleged an adverse
employment action because his employment was terminated. Pl.’s
Opp’n, ECF No. 32 at 5. The District responds that: (1) Mr.
Buitrago does not claim that these acts occurred because of his
national origin; and (2) he has not exhausted his administrative
remedies for his termination. Reply, ECF No. 33 at 3.
The Court will first consider whether Mr. Buitrago has
adequately alleged an adverse employment action as a result of
the denial of his request for a flexible work schedule. Although
Mr. Buitrago does not specifically respond to this argument in
his opposition brief, the Court will consider whether he has
adequately alleged such a claim in his Third Amended Complaint.
See Washington All. of Tech. Workers v. United States Dep't of
Homeland Sec., 892 F.3d 332, 345 (D.C. Cir. 2018) (“a party may
rest on its complaint in the face of a motion to dismiss if the
complaint itself adequately states a plausible claim for
relief.”).
To state a viable Title VII claim, the plaintiff must
allege that he suffered an adverse employment action. Douglas v.
Donovan, 559 F.3d 549, 551-52 (D.C. Cir. 2009). “An adverse
employment action is a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing
12
significant change in benefits.” Id. at 552. “For employment
actions that do not obviously result in a significant change in
employment status . . . an employee must go the further step of
demonstrating how the decision nonetheless caused such an
objectively tangible harm.” Id. at 553.
The Court is persuaded that Mr. Buitrago has sufficiently
alleged an adverse employment action because, giving Mr.
Buitrago the benefit of all inferences that can be derived from
the alleged facts, see Kowal v. MCI Comm’cns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994), he has alleged that the District
violated the 2013 Settlement Agreement by denying his request
for a flexible work schedule. Third Am. Compl., ECF No. 29 at 3
¶ 40. In the 2013 Settlement Agreement, Mr. Buitrago agreed to
withdraw his 2012 EEOC Charge in exchange for DOH agreeing to
take a number of actions including: (1) reinstatement to a
“Grade 12, Step 10 term position within” CHA; (2) payment of
$30,000; (3) leave restoration; (4) payment of attorney’s fees,
(5) being provided with the “ergonomic workstation that was in
place for his use” prior to his dismissal and that “meets the
requirements set by Mr. Buitrago’s physician”; and (6) being
provided with a “flexible work schedule that adhere[d] to the
existing DC/DOH policies to facilitate medical treatment or
physical therapy related to [Mr. Buitrago’s 2006] on-the-job
injury.” Pl.’s Exhibit, ECF No. 1-1 at 2 ¶ 3. Even if the
13
District’s violation of the 2013 Settlement Agreement does not
“obviously result in a significant change in employment status,”
it certainly caused “an objectively tangible harm” because “the
alleged harm is not unduly speculative” and is not “difficult to
remedy.” Douglas, 559 F.3d at 553. There is nothing speculative
about the alleged harm—it is DOH’s violation of one of the terms
of the 2013 Settlement Agreement. And the remedy is not
difficult—it would have been to provide him with the flexible
work schedule. The District’s argument, as well as the cases
upon with the District relies, therefore miss the point.
Accordingly, Mr. Buitrago’s allegations are sufficient to
withstand the District’s motion to dismiss because they “state a
claim to relief that is plausible on its face.” Iqbal, 556 U.S.
at 678 (internal quotation marks and citation omitted).
Next, the Court addresses Mr. Buitrago’s argument that he
has adequately alleged an adverse employment action because his
employment was terminated. Pl.’s Opp’n, ECF No. 32 at 5. The
District responds to this argument as follows: (1) Mr. Buitrago
does not claim that he was terminated because of his national
origin; and (2) he has not exhausted his administrative remedies
for his claim of discrimination based on termination. Def.’s
Reply, ECF No. 33 at 3.
The Court disagrees with the District that Mr. Buitrago
does not claim that he was terminated because of his national
14
origin because he specifically alleges that his discharge was
due to national origin discrimination. Third Am. Compl., ECF No.
29 at 6 ¶ 78. The Court agrees, however, that Mr. Buitrago has
not exhausted his administrative remedies with regard to his
termination.
Before commencing an action based on Title VII in federal
court, a plaintiff must first exhaust his administrative
remedies by filing a timely charge of discrimination with the
EEOC. See Lewis v. City of Chicago, Ill., 560 U.S. 205, 210
(2010). The lawsuit following the EEOC charge is “limited in
scope to claims that are like or reasonably related to the
allegations of the charge and growing out of such allegations.”
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995), cert.
denied, 519 U.S. 811 (1996). Specifically, a plaintiff’s claims
“must arise from the administrative investigation that can
reasonably be expected to follow the charge of discrimination.”
Id. (citing Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491
(4th Cir. 1981)).3
Here, the EEOC charge, dated June 9, 2015, does not mention
Mr. Buitrago’s termination as he was not terminated until
September 30, 2017. Mr. Buitrago has not alleged that he amended
his 2015 charge to include his termination nor that he filed a
3 The Court applies this test for the reasons explained supra at
29-31.
15
subsequent charge after learning in May 2017 that he would be
terminated effective September 30, 2017. Attached to Mr.
Buitrago’s original Complaint is a letter from the EEOC dated
October 11, 2017, in which it gave Mr. Buitrago the opportunity
to provide additional information relevant to his allegations,
but he has not alleged that he provided information to the EEOC
regarding his termination. Pl.’s Ex., ECF No. 1-1 at 11. Since
the “administrative investigation that can reasonably be
expected to follow the charge of discrimination,” Park, 71 F.3d
at 907, could not have included an investigation of his
termination, he has not exhausted his administrative remedies as
to an allegation that he was terminated because of his national
origin.
Because Mr. Buitrago has adequately alleged an adverse
employment action based on the violation of the 2013 Settlement
Agreement, the Court DENIES the District’s Motion to Dismiss as
to Mr. Buitrago’s discrimination claim based on national origin
(Count I).
B. Mr. Buitrago has sufficiently alleged a disability
within the meaning of the ADA and he has exhausted his
administrative remedies on his failure to accommodate
claim.
1. Mr. Buitrago has sufficiently alleged a disability
within the meaning of the ADA.
The District argues that Mr. Buitrago has not alleged a
disability within the meaning of the ADA because: (1) “being
16
dependent on a walking cane, in itself, does not render a person
disabled under the ADA”; (2) to the extent his injuries have
limited his mobility, he has not “show[n] a substantial
limitation in the major life activity of walking”; and (3)
“allegations of back pain, without more, are also insufficient
to plead a disability within the meaning of the ADA. Def.’s Mot.
to Dismiss, ECF No. 30 at 17. Mr. Buitrago argues that he “has .
. . alleged a disability because he states that his back injury
interfered with the ability to work, and the ADA explicitly
defines work as a major life activity.” See Pl.’s Opp’n, ECF No.
32 at 6. The District responds that Mr. Buitrago’s “conclusory
allegations regarding his back pain “are not entitled to
credence at this stage” because he has not “plead specific facts
that, if true, would show that his back injury substantially
limits him in one or more major life activities.” Def.’s Reply,
ECF No. 33 at 3.
The ADA prohibits covered employers “from discriminating
against a qualified individual on the basis of disability in the
terms, conditions, and privileges of employment.” See Hill v.
Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 237 (D.C. Cir.
2018), cert. denied, 139 S. Ct. 1201 (2019) (citing 42 U.S.C. §
12112(a)) (internal quotation marks and citations omitted). To
state a failure-to-accommodate claim, a plaintiff must “allege
facts sufficient to show that (1) he had a disability within the
17
meaning of the ADA; (2) his employer had notice of his
disability; (3) he could perform the essential functions of the
position with reasonable accommodation; and (4) his employer
refused to make such accommodation.” Hodges v. D.C., 959 F.
Supp. 2d 148, 153–54 (D.D.C. 2013). The District contests only
whether Mr. Buitrago has alleged a disability within the meaning
of the ADA.
A disability is “a physical or mental impairment that
substantially limits one or more major life activities.” 42
U.S.C. § 12102(1)(A). “[M]ajor life activities include . . .
working.” Id. § 12102(2)(A). The statute is clear that “[t]he
definition of disability . . . shall be construed in favor of
broad coverage of individuals.” 42 U.S.C. § 12102(4)(A).
Moreover, EEOC regulations provide that “[t]he question of
whether an individual meets the definition of disability under
this part should not demand exhaustive analysis.” 29 CFR
1630.1(c)(4).4
To survive a motion to dismiss on the grounds that he has
failed to sufficiently allege a disability, Mr. Buitrago must
allege that he “(1) suffers from an impairment, (2) the
4 “In enacting the [the ADA Amendments Act of 2008], Congress
expressly delegated authority to the EEOC to issue regulations
implementing the definition of disability under the ADA.” Badwal
v. Bd. of Trustees of Univ. of D.C., 139 F. Supp. 3d 295, 309
n.9 (D.D.C. 2015).
18
impairment limits an activity that constitutes a major life
activity, and (3) the limitation is substantial.” Badwal v. Bd.
of Trustees of Univ. of D.C., 139 F. Supp. 3d 295, 308 (D.D.C.
2015). EEOC regulations define an “impairment” as “[a]ny
physiological disorder or condition . . . such as . . .
musculoskeletal.” 29 C.F.R. § 1630.2(h)(1). The regulations also
state that the term “substantially limits shall be construed
broadly in favor of expansive coverage” and “is not meant to be
a demanding standard,” Id. § 1630.2(j)(1)(I). “An impairment is
a disability within the meaning of this section if it
substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.
Nonetheless, not every impairment will constitute a disability
within the meaning of this section.” Id. § 1630.2(j)(1)(ii).
Mr. Buitrago alleges that the 2008 injury has caused
excessive and chronic pain if he is unable to receive physical
therapy treatments. Third Am. Compl., ECF No. 29 at 2-3 ¶ 25,
24. He further alleges that his back injury substantially limits
his major life activity of working. Id. at 7 ¶ 90. In support,
he alleges that he needs to attend two chiropractor appointments
and up to three other related appointments per week. Id. at 4, ¶
19
55. In view of the congressional command to “construe[
disability] in favor of broad coverage of individuals,” 42
U.S.C. § 12102(4)(A), the Court is persuaded that Mr. Buitrago
plead enough factual matter, accepted as true, to state a
plausible claim that he has a disability within the meaning of
the ADA. Iqbal, 556 U.S. at 678. Specifically, he has alleged
that he has a musculoskeletal disorder that limits his ability
to work because he needs to leave work to attend up to five
medical appointments each week. Because most people in the
general population do not need to attend five medical
appointments per week each week of the year, these allegations
are sufficient to allege a disability. Cf. Badwal, 139 F. Supp.
3d at 310 (noting that “[a] member of the general population
typically does not find eating difficult and is typically able
to dress by themselves. For plaintiff this is, at least
occasionally, not the case.”). Furthermore, the statute does not
require that the impairment “prevent, or significantly or
severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.” 29
C.F.R. § 1630.2(j)(1)(ii).
The case cited by the District relevant to whether Mr.
Buitrago’s impairment substantially limits his ability to work,
Nurridin v. Bolden, 818 F.3d 751, 756 n.4 (D.C. Cir. 2016), is
distinguishable because the ADA Amendments Act of 2008, which
20
broadened the definition of disability, see ADA Amendments Act
of 2008, Pub. L. No. 110–325, 122 Stat. 3553 (2008), were not
retroactive and accordingly did not affect that case.
2. Mr. Buitrago exhausted his administrative remedies
on his failure to accommodate claim.
The District argues that Mr. Buitrago did not exhaust his
administrative remedies on his failure to accommodate claim
because Count II of his Third Amended Complaint mentions only
the denial his request for an ergonomic workstation, and the
2015 EEOC Charge did not include a reference to the ergonomic
workstation. See Def.’s Mot. to Dismiss, ECF No. 30 at 18. The
District contends that the “allegations that [Mr. Buitrago] was
denied an ergonomic workstation as an accommodation for his
disability is neither like nor reasonably related to the
allegations in the [2015 EEOC Charge] . . . . [and] [a]n
investigation of allegations in [the 2015 EEOC Charge] would not
have reached the decision about whether to give [Mr. Buitrago]
an ergonomic workstation.” Def.’s Motion to Dismiss, ECF No. 30
at 18-19 (citing Jouanny v. Embassy of France in United States,
280 F. Supp. 3d 3, 7 (D.D.C. 2017)). Mr. Buitrago does not reply
to this argument. See generally Pl.’s Opp’n, ECF No. 31; see
also Def.’s Reply, ECF No. 33 at 4. But “[b]ecause the failure
to exhaust administrative remedies is an affirmative defense,
the defendant, rather than the plaintiff, ‘bears the burden
21
of pleading and proving it.’” Poole v. United States Government
Printing Office, 258 F. Supp. 3d 193, 199 (D.D.C. 2017) (quoting
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).
Before filing a lawsuit under the ADA, a plaintiff must
exhaust his administrative remedies by filing a charge of
discrimination with the EEOC within 180 days of the alleged
unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1).5 As
explained above, the lawsuit following the EEOC charge is
“limited in scope to claims that are like or reasonably related
to the allegations of the charge and growing out of such
allegations.” Park, 71 F.3d at 907. As recently explained by
Judge Mehta:
At a minimum, the claim must arise from the
administrative investigation that can
reasonably be expected to follow the charge of
discrimination. And, although the exhaustion
requirement is not meant to place a heavy
technical burden on an employee, the
requirement of some specificity in the charge
is not a mere technicality. In short, a vague
or circumscribed EEOC charge will not satisfy
the exhaustion requirement for claims it does
not fairly embrace.
5 The ADA does not include its own statute of limitations, but
adopts the procedures set forth in Title VII. 42 U.S.C. §
12117(a) (“The powers, remedies, and procedures set forth in
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this
title shall be the powers, remedies, and procedures this
subchapter provides . . . to any person alleging discrimination
on the basis of disability in violation of any provision of this
chapter.”).
22
Jouanny, 280 F. Supp. 3d at 6-7 (internal quotation marks,
brackets, and citation omitted).6
The Court is persuaded that the denial of Mr. Buitrago’s
request for an ergonomic work station is “reasonably related to
the allegations of the [2015 EEOC Charge].” Park, 71 F.3d at
907. The District accurately points out that the 2015 EEOC
charge does not specifically mention the denial of his request
for an ergonomic workstation. However, the District does not
acknowledge that the charge states that Mr. Buitrago “was placed
in his current position as a result of a settlement of [his]
previous EEO claim.” ECF No. 19-2 at 1. In the settlement of
that claim, DOH agreed to “[p]rovide Mr. Buitrago with the
ergonomic workstation that was in place for his use . . . and
meets the requirements set by [his] physician.” Pl.’s Ex., ECF
No. 1-1 at 2 ¶ 3(e). Accordingly, it would have been reasonable
for the administrative investigation of his charge to have
included an inquiry into his employer’s compliance with the
terms of the 2013 Settlement Agreement. See Park, 71 F.3d at
907. Mr. Buitrago’s charge is therefore distinguishable from
that of the plaintiff in Jouanny, where the Court found that she
had not exhausted her administrative remedies for a claim of
6
The Court applies this test for the reasons explained supra at
29-31.
23
retaliation because she did not check the box for “retaliation,”
did not describe any actions that could be considered
retaliatory, and provided the date of her termination as the
latest date of discrimination, concluding that she “offer[ed]
not even a hint that Plaintiff intended to raise a claim of
retaliation.” 280 F. Supp. 3d at 7.
Because Mr. Buitrago adequately alleged a disability within
the meaning of the ADA and because he exhausted his
administrative remedies on this claim, the Court DENIES the
District’s Motion to Dismiss as to Mr. Buitrago’s failure to
accommodate claim (Count II).
C. Mr. Buitrago has plead plausible allegations of
retaliation in violation of Title VII and the ADA.
The District argues that the three-year gap between Mr.
Buitrago’s 2012 EECO Charge and, what it deems the “earliest of
the allegedly retaliatory acts”—his 2016 transfer to a different
position—is insufficient to support an inference of a causal
connection necessary to state a claim for retaliation. Def.’s
Mot. to Dismiss, ECF No. 30 at 20 (citing Hamilton v. Geithner,
666 F.3d 1344, 1357 (D.C. Cir. 2012)). Mr. Buitrago does not
respond to the District’s argument, arguing instead that his
retaliation claim is timely because he filed this action within
90 days of his Right to Sue letter. See Pl.’s Opp’n, ECF No. 32
at 7. The District responds that it did not challenge the
24
timeliness of Mr. Buitrago’s retaliation claim, but instead
argues that Mr. Buitrago has not “alleged a causal connection
between his November 2012 EEOC charge and allegedly retaliatory
acts occurring at least three years later. Def.’s Reply, ECF No.
33 at 4. The District also argues that Mr. Buitrago cannot amend
his complaint in his opposition brief to include his 2015 EEOC
Charge and that even if allegations from the 2015 EEOC Charge
are reviewed, they should be rejected because he has not
exhausted the administrative process for his retaliation claims.
Def.’s Reply, ECF No. 33 at 4.
“To make out a prima facie case of retaliation, a plaintiff
must show that ‘(1) he engaged in protected activity; (2) he was
subjected to an adverse employment action; and (3) there was a
causal link between the protected activity and the adverse
action.’” Hamilton, 666 F.3d at 1357 (quoting Woodruff v.
Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)).“[U]nder some
circumstances, temporal proximity between an employer’s
knowledge of protected activity and an adverse personnel action
may alone be sufficient to raise an inference of causation.”
Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 69 (D.C. Cir.
2015). However, Mr. Buitrago “need not plead each element of his
prima facie retaliation case to survive a motion to dismiss.”
Jackson v. Dist. Hosp. Partners, L.P., No. CV 18-1978 (ABJ),
2019 WL 3502389, at *5 (D.D.C. Aug. 1, 2019).
25
As an initial matter, the Court rejects the District’s
argument that Mr. Buitrago seeks to amend his complaint with his
opposition briefing. Although the District is correct that the
2015 EEOC charge is not referenced in five of the paragraphs
supporting Mr. Buitrago’s retaliation claims, he does provide
factual allegations regarding the 2015 EEOC Charge elsewhere in
his Third Amended Complaint, and he has incorporated those
allegations in his retaliation claim. See Third Am. Compl., ECF
No. 29 at 7 ¶¶ 95-100. At the motion to dismiss stage, the Court
must construe the operative complaint liberally in Mr.
Buitrago’s favor, view the factual allegations therein as a
whole, accept them as true, and grant him the benefit of all
inferences that can be derived from the alleged facts. See
Kowal, 16 F.3d at 1276.
Bearing in mind that neither the Supreme Court nor the
Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) has established a bright-line rule expressing the
exact length of time sufficient to demonstrate retaliation, See
Hamilton, 666 F.3d at 1358, and that Mr. Buitrago does not need
to establish each element of his prima facie case at the motion
to dismiss stage, the Court is persuaded that his allegations
are sufficient to state a claim for retaliation.
To support his claim of retaliation under Title VII and the
ADA, Mr. Buitrago alleges the following in Count III: (1) he
26
filed a disability and national origin discrimination claim in
November 2012; (2) he was retaliated against when DOH (i) “was
required to return staffers to their previous positions, but
failed to allow [him] to do so” resulting in him being
“effectively cut off from the opportunity to complete
substantive work assignments,” and (ii) being forced to apply
for his previous position; (3) subjected to administrative leave
prior to his termination on September 30, 2017; and (4) he was
retaliated against when DOH withdrew authorization for medical
treatment. Third Am. Compl., ECF No. 29 at 7 ¶¶ 96-99. Count III
of the Third Amended Complaint incorporates by reference all
preceding paragraphs. Id. at 7 ¶ 95. The following allegations
elsewhere in the Third Amended Complaint are also relevant to
Mr. Buitrago’s retaliation claim: (1) In June 2015, Mr. Buitrago
filed a second charge of discrimination alleging retaliation,
id. at 4 ¶ 48; (2) in or around January 28, 2016, he was
informed that DOH would no longer pay for his physical therapy
sessions, id. at 5 ¶ 59; (3) between February and June 2016, Mr.
Buitrago was reassigned to a different division at DOH, id. at 5
¶ 65; (4) at some point thereafter, Mr. Buitrago was returned to
his former position, but was not allowed to resume his former
duties, id. at 5 ¶ 67; (5) at some point thereafter, Mr.
Buitrago was forced to reapply and compete for his job, id. at 6
¶ 73; (6) On May 19, 2017, Mr. Buitrago was sent a termination
27
letter, id. at 6 ¶ 74; (7) Mr. Buitrago was placed on
administrative leave until the September 30, 2017 effective date
of his termination, id. at 6 ¶ 76. In sum, Mr. Buitrago alleges
that beginning approximately seven months after filing his
charge with the EEOC and while that charge was being
investigated, he was subjected to the adverse actions described.
He has therefore alleged a temporal proximity that is sufficient
to withstand the District’s Motion to Dismiss as the
allegations “state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 678 (internal quotation marks and
citation omitted).
Next, the District argues that Mr. Buitrago failed to
exhaust the administrative process in regard to his retaliation
claims because “[w]hile the D.C. Circuit has not definitively
spoken on this issue, ‘most judges in this district have held
that plaintiffs alleging discrete acts of discrimination or
retaliation must exhaust the administrative process regardless
of any relationship that may exist between those discrete claims
and any others.’” Def.’s Reply, ECF No. 33 at 5 (quoting Rashad
v. Wash. Metropolitan Area Transit Auth., 945 F. Supp. 2d 152,
166 (D.D.C. 2013)).
As explained above, before filing a lawsuit under Title VII
and the ADA, a plaintiff must exhaust his administrative
remedies, 42 U.S.C. § 2000e-5(e)(1); and, the lawsuit following
28
the EEOC charge is “limited in scope to claims that are like or
reasonably related to the allegations of the charge and growing
out of such allegations.” Park, 71 F.3d at 907.
The D.C. Circuit has not yet decided whether the “like or
reasonably related” test was overtaken by the Supreme Court’s
decision in National Railroad Passenger Corp. v. Morgan, 536
U.S. 101 (2002). See Payne v. Salazar, 619 F.3d 56, 65 (D.C.
Cir. 2010). In Morgan, the question facing the Court was
whether, and under what circumstances, a Title VII plaintiff may
file suit on events that fall outside [the] statutory time
period” because they occurred more than 180 or 300 days before
the plaintiff filed a charge with the EEOC. 536 U.S. at 105-06.
The Court held that “discrete discriminatory acts are not
actionable if time barred, even when they are related to acts
alleged in timely filed charges. Each discrete discriminatory
act starts a new clock for filing charges challenging that act.”
Id. at 113. Although the D.C. Circuit has not spoken to this
issue, “[t]he majority of [district judges in this Circuit to
have done] so have interpreted Morgan to require exhaustion for
all discrete acts of retaliation after an administrative charge
is filed, regardless of any relationship that exists between
those discrete claims and any others,” reasoning that “requiring
exhaustion of each discrete claim most faithfully reflects
Morgan and the purpose of the exhaustion doctrine, namely to
29
give the agency notice of a claim and the opportunity to handle
it internally so that only claims plaintiff has diligently
pursued will survive.” Poole, 258 F. Supp. 3d at 201 (internal
quotation marks and citations omitted). The two cases cited by
the District—Rashad, 945 F. Supp. 2d 166, and Klotzbach-Piper v.
Nat’l Railroad Passenger Corp., 373 F. Supp. 3d 174, 186 (D.D.C.
2019)—adopted this view. “A minority however, have continued to
recognize an exception to the administrative-exhaustion
requirement where unexhausted discrimination and retaliation
claims satisfy the like or reasonably related test” reasoning
that “the exhaustion doctrine was not intended to become a
massive procedural roadblock to access to the courts’ and ‘where
the ends of administrative exhaustion have been served by the
pursuit of administrative remedies with regard to the subsequent
acts, separate initiation of administrative exhaustion for post
complaint conduct is not required.” Poole, 258 F. Supp. 3d at
202-203 (internal quotation marks and citations omitted). The
Court is persuaded that the “like or reasonably related” test
properly applies here, where Mr. Buitrago seeks to bring
retaliation claims for discrete acts that occurred after he
filed his 2015 EEOC Charge.
Applying that test, the Court is persuaded that Mr.
Buitrago can proceed on his claim that he was retaliated against
based on the following discrete acts because they are like or
30
reasonably related to his 2015 EEOC Charge: (1) in or around
January 28, 2016, he was informed that DOH would no longer pay
for his physical therapy sessions, id. at 5 ¶ 59; (2) between
February and June 2016, Mr. Buitrago was reassigned to a
different division at DOH, id. at 5 ¶ 65; (3) at some point
thereafter, Mr. Buitrago was returned to his former position,
but was not allowed to resume his former duties, id. at 5 ¶ 67;
and (4) at some point thereafter, Mr. Buitrago was forced to
reapply and compete for his job, id. at 6 ¶ 73. Given that Mr.
Buitrago raised issues regarding his physical therapy sessions
and that he alleged retaliation that was continuing in nature,
Pl.’s Ex. 19-2 at 1, these allegations are “like or reasonably
related” to the 2015 EEOC Charge. However, Mr. Buitrago may not
proceed on his retaliation claim based on his termination and
being placed on administrative leave until the effective date of
his termination. As the Court stated above, since the
“administrative investigation that can reasonably be expected to
follow the charge of discrimination,” Park, 71 F.3d at 907,
could not have included an investigation of his termination, he
has not exhausted his administrative remedies as to his
allegation that he was terminated in retaliation for engaging in
protected activity.
31
Accordingly, the Court GRANTS IN PART and DENIES IN PART
the District’s Motion to Dismiss as to Mr. Buitrago’s
retaliation claim (Count III).
D. Mr. Buitrago’s breach of contract claims related to
the 2013 Settlement Agreement are timed barred.
Mr. Buitrago alleges that the District breached the terms
of the 2013 Settlement Agreement for three reasons: (1) failure
to provide him with a flexible work schedule; (2) failure to
provide him “with an ergonomic workstation in the four and a
half years prior to [his] termination”; and (3) disclosing the
details of the settlement agreement. Third Am. Compl., ECF No.
29 at 3 ¶ 40, 8 ¶¶ 105, 106. The District argues that: (1) Mr.
Buitrago’s claim regarding the ergonomic workstation is
untimely; and (2) any breach caused by the District’s disclosure
is “a non-starter” because Mr. Buitrago disclosed the agreement
when he attached it to his complaint in this case. Def.’s Mot.
to Dismiss, ECF No. 30 at 21. Although Mr. Buitrago does not
specifically respond to these arguments in his opposition brief,
the Court will consider whether he has adequately alleged a
breach of contract claim in his Third Amended Complaint. See
Washington All. of Tech. Workers, 892 F.3d at 345.
Under District of Columbia law, a contract action must be
brought within three years of the date on which the “right to
32
maintain the action accrues.” Wright v. Howard Univ., 60 A.3d
749, 751 (D.C. 2013)(citing D.C. Code § 12–301(7)). An action
for breach of contract generally accrues at the time of the
breach. Id.Here, Mr. Buitrago entered into the 2013 Settlement
Agreement on January 25, 2013. Pl.’s Ex., ECF No. 1-1 at 5. In
that agreement, his employer agreed to, among other things,
provide Mr. Buitrago with: (1) an ergonomic workstation; and (2)
a “flexible work schedule” that would allow him to facilitate
medical treatment due to his injury. Pl.’s Ex. 1-1 at 2 ¶ 3(e),
(f). Mr. Buitrago alleges that, upon his return to work in
February 2013, his new supervisor “violated the terms of the
[2013 Settlement Agreement] by not reasonably accommodating a
flexible work schedule [that would allow him to] attend physical
therapy appointments.” Third Am. Compl., ECF No. 29 at 3 ¶ 40.
Mr. Buitrago also alleges that he was denied the “ergonomic
workstation [which was required by the 2013 Settlement Agreement
for] over a period of four and a half years.” Id. at 7 ¶ 93. As
Mr. Buitrago was terminated in September 2017, his allegation
that the District failed to comply with these provisions in the
2013 Settlement Agreement for over four years prior to his
termination places the earliest breach in 2013.
Mr. Buitrago filed his original complaint with this Court
on February 5, 2018, but his breach of contract claim accrued,
33
and the three-year limitations period began on the day he
returned to work in February 2013 and was not provided his
“flexible work schedule” or “ergonomic workstation.” Wright, 60
A.3d at 751. Since Mr. Buitrago alleges that the District was in
breach of the 2013 Settlement Agreement as early as February
2013, his claim for breach of contract falls outside the
District’s statute of limitations by almost two full years. See
Billups v. Lab. Corp. of Am., 233 F. Supp. 3d 20, 24 (D.D.C.
2017) (holding that the plaintiff's breach of contract claim
accrued on date the defendant transferred the plaintiff’s right
to earn a portion of his annual sales commissions to other co-
workers, which took place five years before the action was
brought). Accordingly, Mr. Buitrago’s breach of contract claim
regarding the ergonomic work station and a flexible work
schedule is time barred.
As to Mr. Buitrago’s claim that the District “breached the
terms of the agreement by disclosing details of the settlement
in other litigation related to [him],” in addition to he himself
disclosing the Agreement on the public docket in this case, see
Pl.’s Ex., ECF No. 1-1 at 1-5, Mr. Buitrago has alleged no facts
to support this allegation such as when this alleged breach
occurred. See generally Third Am. Compl., ECF No. 29.
Accordingly, Mr. Buitrago has failed to “state a claim to relief
that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
34
quotation marks and citation omitted). Because the Court has
determined that Mr. Buitrago’s contract claim is time barred as
to his “flexible work schedule” and “ergonomic workstation
claims, and fails to state a claim as to his disclosure claim,
the Court need not reach the District’s argument that his
contract claim is barred by the Comprehensive Merit Personnel
Act.
Accordingly, the Court GRANTS the District’s Motion to
Dismiss as to Mr. Buitrago’s breach of contract claim (Count
IV).
IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART the District’s Motion to Dismiss. The Court
DISMISSES Mr. Buitrago’s claims against Mayor Bowser, his claim
for retaliation based on his termination, and breach of contract
claim. Mr. Buitrago’s remaining claims are (1) discrimination on
the basis of national origin based on violation of the 2013
Settlement Agreement; (2) discrimination on the basis of
disability under the ADA; and (2) retaliation under Title VII
and the ADA as to his claims that (1) DOH would no longer pay
for his physical therapy sessions; (2) he was reassigned to a
different division at DOH; (3) he was returned to his former
position, but was not allowed to resume his former duties; and
(4) he was forced to reapply and compete for his job. A separate
35
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 3, 2020
36