UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) APRYLN. FE ATHERSTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1933 ( PL F) ) DI STRI CT OF COLUMBI A, )

) Def endant. ) ____________________________________)
OPI NI ON I . BA CKGROUND Plaintiff Apryl N. Fe ather ston, a forme r employ ee of the Superior Court of the District of Columbia, claims that after beingdiag nosed with bilatera l car pel tunnel sy

ndrome, defe ndant the District of Columbia discriminated a g ainst her in violation of the Ame rica ns with Disabilities Act, 42 U.S.C. § 12101 et seq. (“A DA”) (Count I ) and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (Count I I ); failed to pr ovide, or to timely respond to cla ims for, worke rs’ c ompensation to which she is entitled (Count I I I ); and discha rg ed her in violation of public policy

(Count I V). De fenda

nt has moved to dismiss t his case unde r Rule 12(b)( 6) of the Fe dera l Rules of Civil Procedur e for failure to state a c laim upon which re lief ca n be g rante d or, alternatively , for summary judgme nt under Rule 56 of the Fe dera l Rules of Civil Procedur e. Plaintiff purports to have subse quently withdrawn Count I I I

but otherwise oppose s defe ndant’s motion.The Court will g rant de fenda nt’s motion in part and deny it in part. The Court will gr ant summary

judgme nt for def

endant on Count Ionly

to the extent that plainti ff a lleg es discrete acts of disc rimination that occurr ed bey ond the applica

ble limitations period; it will deny summary judgme nt as to acts that alleg edly occur red w ithin the lim itations period. The Court will neither dismiss C ount I Inor g rant summary judgme nt for def

endant on that Count, bec ause defe ndant’s ar g ument that the claims comprisingCount I Iare untimely has bee n considere d and reje cted e arlier

in this l itigation. De fenda nt offer s no rea son why

that decision should be
rec onsidered. T he Court will construe plaintiff’ s withdrawa l of Count I I Ias a motion to amend her c omplaint to remove Count I I Ior to voluntarily dismiss Count I I Iand will g rant such motion in part and de ny

it in part. The complaint will be ame nded to re move Count I I I . Def endant’ s motion then will be denied as moot as to Count I I I . Finally , the Court will dism iss CountI V beca use plaintiff ha s failed to plea d that she wa s eng ag ed in any protec ted ac t for which she was alleg edly fired in violation of public policy
. I I . L EGAL

STANDARDS A. Motion to Dismiss under Rule 12( b) ( 6) Rule 12(b)(6) allows dismissal of a complaint if a plaintiff f ails “to state a c laim upon which re lief ca

n be g rante d.” F ed. R. Civ. P. 12(b)(6). “F eder al Rule of Civil P roce dure 8(a) (2) r equire s only

‘a shor t and plain statement of the claim showingthat the pleade r is entitled to relief,’ in order to ‘ g ive the def endant f air notice of what the . . . claim is and the g rounds upon which it rests . . . .” Bell Atlantic Corp. v. Tw ombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)); see also Erick son v. Pardus , 551 U.S. 89, 93–94 (2007).

2Although “ detailed f actua l alleg ations” ar e not nec essar y to withstand a Rule 12(b)( 6) motion to dismiss , Bell Atlantic Corp. v. Tw ombly , 550 U.S. at 555, the complaint “must contain suff icient fac tual matter, a cce pted as true , to ‘state a c laim to relief that is plausible on its fac e.’” Ashcroft v. Iqbal , 129 S.Ct . 1937, 1949 (2009) ( citation omitted).

On a motion to dismi ss under Rule 12(b) (6), the Court “ must acce pt as true a ll of the fa ctual alleg ations contained in the c omplaint.” Erickson v . Pardus , 551 U.S. at 94; see also Bell Atlantic Corp. v. Tw ombly , 550 U.S. at 555; Phillips v. Fulwood , 616 F.3d 577, 581 ( D.C. Cir. 2010). The c omplaint “is construed libera lly in the [pl aintiff’s] favor , and [the Court should] g rant [the plaintiff] the benefit of a ll inferenc es that ca n be der ived from the f

acts a lleg ed.” Kowal v. MCI Commc’ns Corp. , 16 F.3d 1271, 1276 ( D.C. Cir. 1994). Neve rtheless, the Court need not a cce pt infere nces dr awn by the plaintiff if those infe renc es ar e unsupported by fac ts alleg ed in the complaint, nor must the Court ac cept the pla intiff’s leg al conc lusions. See id. at 1276; Browning v. Clint on , 292 F.3d 235, 242 ( D.C. Cir. 2002).

B. Motion for Summary Judgm ent Under Rule56 The Court will g rant a

motion for summary

judgme nt if the pleading s and other materia ls in the recor d “includingdepositions, documents, elec tronically stored information, aff idavits or decla

rations, stipulations . . . , admissi ons, [or] interrog atory answe rs” show that there is no ge nuine issue as to any materia l fac t and that the movant is entitled to judgme nt as a matter of la

w. Fe d. R. Civ. P . 56(c) (1)( A); see also Fe d. R. Civ. P . 56(a) . The movingparty bear s the burden of

demonstratingthe abse nce of a g enuine issue of

materia l fac t. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). “[A] material fa ct is ‘g enuine’ . . . if the evide nce is such

3that a re asonable jury could re turn a ve rdict for the nonmoving pa

rty” on a pa

rticular c laim. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 248 (1986). F actua l assertions in the moving party ’s af fidavits or dec larations may be ac cepte d as true a

nd all justifiable infere nces a re to be drawn in her fa

vor unless the opposingparty submits i ts own aff

idavits, declar ations, or documentar

y evidenc e settingforth spec ific fa cts that would permit a r easona ble jury to find in its favor. Neal v. Kelly , 963 F.2d 453, 456 ( D.C. Cir. 1992); Laningham v. U.S. Navy 813 F.2d 1236, 1242 ( D.C. Cir. 1987).
I I I . ANALYSI S A. Summary J

udgment W

ill Be Granted in Part and Denied in Part on Count I In 1998, while plaintiff wa s an employ ee of the Superior Court of the District of Columbi a, she w as diag nosed with bilatera l car pel tunnel sy

ndrome, whic h “limits her fine motor skills and her ability

to lift heavy

objects.” Stateme nt of Mater ial Fa cts Not in Dispute (“D ef.’ s Fa cts”) ¶ ¶ 1–2 [Dkt. # 34] ; Plainti ff’ s Statement of Genuine I ssues (“Pl.’s F acts” ) ¶¶ 1–2 [Dkt. # 35]. P laintiff re quested a ccommodation of this disability , which def endant pr ovided by

placing her on r estricted duty . Def .’s Fa cts ¶ 3; Pl.’s Fac ts ¶ 3. Although he r condition rema ined the same, plaintiff r eturne d to reg ular duty in 2001, but was unable to wor k for a n extended period in
ear ly 2004, later r eturningto work on re stricted duty . First Amende d Complaint (“Compl.”) ¶¶ 16, 18, 20 [Dkt. # 19]. By a letter dated De cembe r 14, 2004, howe ver, de fenda nt informed plaintiff that “e ffe ctive close of business Dec ember 24, 2004,” it would “no long er a ccommodate the medica l restriction” r ecommende d by her phy sician. De clar ation of Michae l R. Hartman in Support of Plaintiff’s Opposition to Defenda nt’s Motion to Dism iss or, in the Alternative, f or

4Summary

J udg ment (“H artman D ecl.” ) Ex. A (L etter f rom Evely

n H. Stevens, B enef

its Office r, Human Resourc es Division, District of Columbia Courts, t o Apryl N. Fe ather ston (Dec . 14, 2004)) [Dkt. # 35-1].

Plaintiff alleg es that af

ter re ceivingthis letter, she “a sked to be tra nsfer red to a differ ent position that would not aggravate her injury ,” but that her

reque st was re fused. Compl. ¶¶ 27–28. Instead, he r employ er a lleg edly order ed her

to return to re g ular duty

or be te rminated. Id. ¶ 29. In or ar ound J anuar y 2005, plaintiff’s phy sician ce rtified her for r egular duty , to which she then re turned. De f.’s F acts ¶ 7; Pl.’s Fa cts ¶ 7. None theless, her phy sician continued to diag nose her

with bilateral c arpe l tunnel sy ndrome a nd continued to advise that she “a void repe titive moti on activities involving use of both wrists.” Har

tman Dec l. Ex . C (L etter f rom Roge r L . Raiford, M.D., to Apr yl Featherston (Mar . 11, 2005)) [Dkt. # 35-1]. P laintiff alleg es that afte r her

return, “ her supe rvisors . . . intimidate[ d] and harass[ed] her by favor ing mor e junior employ ees’ leave reque sts, criticizi ngher attire, and g ener ally imposing deme aning require ments not related to [the] performa nce of her duties but rather intende d to hara ss her a nd reta liate ag ainst her f

or her disability .” Compl. ¶ 31.
1. Intake Que stionnaire as F ormal Charg e? Plaintiff submit ted an intake questionnaire c oncer ning this alleg ed discrimination to the Equal Employ

ment Opportunity

Commi ssion (“EEOC”) , which she dated August 14, 2006. Mot. Ex . 4 (Intake Que stionnaire) [Dkt. # 34-1]. She later wa s terminated f rom her employ ment eff ective O ctober

13, 2006. Def

.’s Fa cts ¶ 8; Pl.’s Fac ts ¶ 8; Hartman D ecl. Ex. H (Notice of Personne l Action (Oc t. 16, 2006)) [Dkt. # 35-1]. S he then submitted a for mal char g e

5of discrimination with the EEOC, which wa s date-stamped by the Washington F ield Offic e of the EEOC on Octobe r 20, 2006. Ha rtman De cl. Ex. E (Charg e of D iscrimination) [Dkt. # 35-1]
. Now, in Count I , plaintiff claims that she wa s discriminated ag ainst in violation of the ADA. Compl. ¶¶ 35–39. Defe ndant has moved f or summary

judgme nt on Count I , arguing that plaintiff filed her char g e of discr imination with t he EEOC a fter the applicable limit ations period had expired. Defe ndant’s Motion to Dismis s or, in the Alternative, for Summary J udg ment (“Mot.”) at 1 [Dkt. # 34] ; Memorandum of Points and Authorities in Support of Def endant’ s Motion to Dismiss or, in the Alternative, for Summary

J udg ment (“Me m.”) a

t 6–8 [ Dkt. # 34]. This 1 motion will be g rante d in part and de nied in part.

Def endant wr ites that it “is entitled to judgment as a matter of la

w on Count Iof 1 the complaint bec ause pla intiff cannot state an ac tionable ADA r easona ble ac commodation claim.” Mot. at 1. De fenda nt thus conflates languag e conc erning summary judgme nt – “entitled to judgment a s a matter of law” – w ith langua g e conc erningdismiss al for f ailure to state a

claim – “ca nnot state an a ctionable . . . c laim.” Id. ; compare Fe d. R. Civ. P . 12(b)( 6) with Fe d. R. Civ. P. 56(a). The Court theref ore must deter

mine which Rule to apply when c onsideringdefe ndant’s motion concer

ning Count I
. Although a

statute of limitations argument may be ra ised as an a ffirmative defe nse in an ADA c ase in a

Rule 12(b)(6) motion, see Zipes v. Trans W orld Airli nes, Inc

. , 455 U.S. 385, 393 (1982); Hodge v . United Airlines , 666 F. Supp. 2d 14, 17 (D.D .C. 2009), the Court must treat defe ndant’s arg ument as one f or summary

judgme nt in this case . When consideringa motion to di smiss under Rule 12(b)(6) , if “matter s outside the pleading s are prese nted to and not excluded by

the cour t, the motion mus t be treated as one for summary judgme nt under Rule 56.” Fe d. R. Civ. P . 12(d). Althoug h “[e]x hibits such as . . . EEOC . . . documents . . . may be considere d in decidingthe motion to dis miss because matters incor porate d by

ref ere nce or integ ral to the c laim, items subject to judicial notice, matters of public r ecor d, order s, and items appea ringin the rec ord of the c ase . . . ma y be conside red by

the district court without conve rting the motion into one for summary judgme nt,” Dyson v . District of Columbia , No. 10-c v-1454, 2011 WL3835681, at *3 n.3 (D.D .C. Aug . 31, 2011) (quotation, quotation marks, a nd brac kets remove d), the Court must consider more than just EEOC documents to resolve this portion of defe ndant’s motion. There fore , to whateve r extent defenda nt makes its argument conce rning Count Iunder Rule 12( b)(6) , in addition to or as opposed to Rule 56, that argument nonetheless must be considere d as made under Rule 56. 6In “jurisdictions havinga [Fair E mploy ment Practice s (“F EP”)] ag ency with subject matter jur isdiction over the cha rg es” of discrimination made by

a complainingparty , an EEOC filing is timely

“if the c harg e is rec eived within 300 day s from the da te of the a lleg ed violation.” 29 C.F.R. § 1601.13(a) (4)( ii)(A); see 42 U.S.C. § 2000e-5(e )(1) . The District of Columbi a has a

n FEP: the District of Columbia Off ice of Human Rig hts (“DCOHR”) . 29 C.F.R. § 1601.80. There fore , plaintiff’s cha rg e is timely

only if it was re ceive d within 300 day s of the date of the alleg ed discrimination. I f an “ employ ee doe s not submit a timely EEOC cha

rg e, the employ ee ma

y not challeng e” in c ourt the discrimination alleg ed in the cha rg e. Ledbetter v. Goodye ar Tire & Rubber Co., Inc. , 550 U.S. 618, 624 (2007) (c iting 42 U.S.C. § 2000e-5( f)( 1)), supersede d by statute on other grounds , L illy L edbetter

Fa ir Pay Act of 2009, Pub. L . No. 111-2, 123 Stat. 5 (2009). To dete rmine whe n the cha rg e wa s rec eived, the Court must first deter mine what docume nt constitutes the char g e in this case: the intake questionnaire or the forma l char g e of discrimination.

Initially , defe ndant, pointing to the intake questionnaire pla intiff submitt ed to the EEOC, asser

ted that “Plaintiff filed he r EEOC complaint on or a bout Aug ust 14, 2006,” the date plaintiff sig ned her

questionnaire. D ef.’ s Fa cts ¶ 9; see Mot. Ex . 4. Plaintiff ag ree d. Pl.’s Fac ts ¶ 9. Upon fur

ther brie fingon the issue of whe ther “ the intake que stionnaire, as oppose d to the formal c harg e of discr imination, constitutes the cha rg e in this case,” Orde r of Septembe r 28, 2011 (“B riefingOrde r”) at 1 [Dkt. # 41] , the par ties have r efine d their ar g uments. Plainti ff maintains that her intake questionnaire c onstitut es the c harg e in this case, making Aug ust 14, 2006 the date on which she filed he r EEOC complaint. Plaintiff’s B rief in Response to the Court’s Request for A dditional Brief ing B ear ing on D efe ndant’s Motion to Dismis s (“Pl.’s B r.”)

7at 1–4 [Dkt. # 46] . Def endant now a

rgues, howe ver, tha

t plaintiff’s forma l char g e constitutes the char g e in this case a

nd contends that the da

te on which this forma l char g e wa s date-sta mped by the EEOC Washington F ield Offic e – Oc tober 20, 2006 – is the date on which plaintiff f iled her EEOC complaint. Def

endant’ s Supplemental Memorandum of Points and Authorities in Support of Motion to Dismi ss (“De f.’s B r.”) at 1–3 [Dkt. # 47] ; seeHar tman Dec l. Ex . E, Charg e of Discrimination. The Court agree s with defenda nt. An intake que stionnaire, which is a document with which a

potential complainant provides information to the EEOC releva nt to filing a f

ormal cha rg e of discr imination under the ADA, may

itself constitute a cha

rg e whe n it contains the “infor mation require d by

the regulations, i.e., an alleg ation and the name of the c harg ed par ty ,” and when it may

“be
rea sonably

construed a s a re quest for the ag ency to take re medial ac tion to protect the employ ee’ s rig hts or otherwise se ttle a dispute betwe en the e mploy er a nd the employ ee,” such as whe n “the filer r equests the a g ency

to activate its mac hinery and re medial proc esses.” Fed. Ex press Corp. v. Holowec ki , 552 U.S. 389, 402 (2008); see also 29 C.F.R. § 1601.12(b) ( requiringa cha rg e to contain at lea st “a wr itten statement sufficie ntly prec ise to identify

the par ties, and to descr ibe g ener ally the ac tion or prac tices complaine d of”) . The que stion, then, is whether a particula r intake questionnaire meets this test. See, e .g. , Johnson-Park s v. D.C. Chartered He alth Plan , 713 F. Supp. 2d 39, 45–46 (D.D .C. 2010) (eva luating whether an intake que stionnaire constituted a cha rg e under the Holoweck

istandard) ; Hodge v . United Airlines , 666 F. Supp. 2d 14, 20–21 (D.D.C. 2009) ( same re g ardingchar g e questionnaire ); Bec kham v . Nat’l R.R. Passenger Corp. , 590 F. Supp. 2d 82, 86–87 (D.D .C. 2008) (same r eg ardingcharg e questionnaire ). The Court

8conclude s that the intake que stionnaire in this case doe s not satisfy the Holoweck

istandard f

or consideration of a questionnaire as a c harg e.

In this case, plaintiff did not suff iciently identify the cha rg ed par ty in her questionnaire. A lthough she did identify her supe rvisors by

name a nd title, nowhere does plaintiff mention wher e she w orked: the Super ior Court of the District of Columbia. SeeMot. Ex . 4, Fe ather ston I ntake Que stionnaire. In addition, although pla intiff g ener ally described the actions complaine d of in the intake que stionnaire by providing a conc ise statement, including dates, of the discrimination she alleg edly suffe red, it is not rea sonable to construe plaintiff’s questionnaire a s a re quest for r emedial a ction to be taken immediate ly
. See id. Nowher e did plaintiff ac tually

reque st that any

action be taken. And while a plaintiff nee d not nece ssarily expressly reque st that the EEOC take a particula r ac tion in an intake questionnaire – for example, “[t] here might be instanc es whe re the indicated discr imination is so clea r or pe rvasive that the ag ency

could infer

from the a lleg ations themselves that ac tion is requested a nd require d,” Fed. Ex press Corp. v. Holoweck i , 552 U.S. at 405 – in this case, plaintiff use d the intake questionnaire simply

to provide informa

tion about the alleg ed discrimination she suff ere d and nothing more
. Cf. id. (findingthat an intake que stionnaire constituted a c harg e whe re it wa s supplemented by

a deta iled six -pag e af

fidavit that specif

ically asked the ag ency

to “forc e” the employ er to e nd its ag e discrimination).

In Bec kham v . Nat’l R.R. Passenger Corp. , 590 F. Supp. 2d at 86, Judge Colly er evaluated the purpose of a c harg e questionnaire – the succ essor to the intake questionnaire – to conclude that in some case s it could suffice a s a cha rg e of discr imination without a spec ific reque st from the complainingparty that the EEOC take any

specific action. I

n that case , 9howeve r, the que stionnaire’s “ stated purpose ” wa s “to solicit information in an acc eptable f orm consistent with statutory

require ments to enable the Commi ssion to act on matters within its jurisdiction.” Id. at 87 (quotation marks a nd emphasis omitted). That purpose was “ materia lly differ ent” f

rom the stated pur

pose of the que stionnaire at issue in Holoweck i , which wa s “‘to fac ilitate pre-c harg e filingcounselingand to ena ble the ag ency

to determine whether

it has jurisdiction over potential cha rg es’” – languag e that counse led ag ainst construingthe questionnaire a s a cha

rg e in Holoweck

i
. Bec kham v . Nat’l R.R. Passenger Corp , 590 F. Supp. 2d at 87 (quoting Fed. Ex

press Corp. v. Holoweck i , 552 U.S. at 405). F urthermor e, the questionnaire in Bec kham specifie d that if “no timely char g e is subsequently

filed,” the questionnaire itself w ould “ac tivate the ag ency ’s machine ry and re medial proc esses irr espec tive of whe ther a g ency

action had be en dire ctly

reque sted.” Id. Plaintiff urg es the Court to conc lude that the questionnaire in this case is substantially

simil ar to that in Bec kham , and substantially differ ent from that in Holoweck i , such that it may

be conside red a

char g e. Pl.’s Br . at 3. The Court disagree s. The re levant languag e of the questionnaire here is: “Principle purposes: Provid[i ng ] i nformation fr om the Charg ing Par ty rele vant to filing a

charg e of discr imination”; and “Routine uses: This questionnaire is used to make a n officia l determination whe ther fa cts exist to prepa re a char g e of discr imination.” Mot. Ex . 4, Fe ather ston I ntake Que stionnaire, at 3. Unlike the languag e of the questionnaire in Bec kham , the languag e of the questionnaire in this ca se does not sig nify that the EEOC would ac t on a complete d questionnaire w ithout more. Rather than solicitinginformation to permit the EEOC to act on matter s within it s jurisdiction as in Bec kham , the languag e of the questionnaire in this case solicits information to permit the EEOC to deter mine whether

a cha rg e should be
10prepa

red, only subsequent to which the E EOC would act on matter s within it s jurisdiction. This is more akin to the “c ounseling ” languag e of the questionnaire in Holoweck i . And unlike in Bec kham , the languag e of the questionnaire in this ca se nowhe re indicates that the EEOC would undertake re medial ac tion if no formal cha rg e we re later filed. Considering plaintiff’s fa ilure to sufficie ntly identify the par ty ag ainst whom she makes he r alleg ations of discrimination, the lack of an explicit request that the EEOC take
reme dial action for

such discrimination, and the la ck of te x tual indication in the intake questionnaire that the EEOC would take suc h action without a for mal charg e subseque ntly

being filed, this Court concludes that the intake questionnaire in this ca se does not constitute the char g e. The later- filed for mal charg e ther efor e constitutes the cha rg e. The Court must nex t deter mine when that f

ormal cha rg e wa s filed.
2. When Was the Formal Char g e F iled? “The date a

complainingparty

submits a charg e of discr imination to t he EEOC is not nece ssarily

the date use d to determine timeliness, bec ause the EEOC must allow the FEP ag ency to proce ed under

state law be fore a cha

rg e is dee med filed with the EEO C.” Lee v. District of Columbia , 733 F. Supp. 2d 156, 160 n.5 (D.D .C. 2010) (citing29 C.F.R. § 1601.13(a) (3)( ii)). The D COHR – the FEP ag ency in this j urisdiction – “has wa ived its exclusive jurisdiction during this ‘def err al’ pe riod,” howe ver, a s it is entit led to do. Id. (citing Schuler v . PricewaterhouseCoopers, LLP , 514 F.3d 1365, 1373 ( D.C. Cir. 2008)). And if a “docume nt on its face c onstitut es a c harg e within a categ ory of cha rg es over which the F EP ag ency has wa ived its rights to the pe riod of exclusive proce ssing . . . , the c harg e is dee med to be

11filed with the [EEOC] upon rec eipt of the doc ument” by the EEOC. 29 C.F.R. § 1601.13(a) (3)( ii)(A); see also Lee v . District of Columbia , 733 F. Supp. 2d at 160 n.5. Plaintiff’s char g e is stamped as ha ving be en re ceive d by

the EEOC’s Washing ton Field Of fice on October 20, 2006. SeeHar

tman Dec l. Ex . E, Charg e of D iscrimination. There fore , that is the date on whic h plaintiff filed he r cha rg e with the EEOC. Def endant a rgues that plaintiff’s EE OC char g e wa s untimely beca use “Plaintiff lear ned of the District’s dec ision that itcould no long er a ccommodate her disability on Dec ember 14, 2004,” whe n it first informed her that it would no longer

acc ommodate her

disability , alleg edly makingher c harg e due on or befor e Oc tober 10, 2005. Mem. at 7. Plaintiff filed her 2 char g e we ll after O ctober 10, 2005. There fore , defe ndant say s the cha rg e is untimely , making plaintiff’s fa ilure-to-a ccommodate claim pre sented he re ba sed on that cha rg e also untimely
. Id. at 8; see Nat’l R.R. Passenge r Corp. v. Morgan , 536 U.S. 101, 109 (2002) (discussingthe time limit s imposed by

Section 2000e-5( e)( 1) and holdingthat a “c laim is ti me bar red if it is not filed within these time limi ts”). This ar g ument, howeve r, re lies on an unjustifiably narr ow view of the claims pled in Count I
.

Plaintiff does not alleg e only one discre te fa ilure to ac commodate that oc curr ed on Dec ember

14, 2004. Instead, she a lleg es a br oad ra ng e of discr iminatory

actions take n ag ainst her that continued until her termination in Octobe r 2006: She alleg edly “suff ere d adver se employ ment actions includingintimi dation, hara ssment, denials of adva nceme nt, imposi tion of demea ning r equire ments not related to he r job perf ormanc e, fa ilure to train her for ne w duties,
Def endant incor

rec tly claims that plaintiff’s c harg e wa s due by September 30, 2 2005, Mem. at 7, which w as the 290th day afte r De cembe r 14, 2004. The 300th da y was Oc tober 10, 2005. 12failure to transfe r her to a diffe rent job, and te rmination of her employ ment.” Compl. ¶ 38; see id. ¶ 31; Opp’n at 9. Defe ndant, in its reply , simply restate s its narrow c onstruction of plaintiff’s “fa ilure to ac commodate c laim.” Def endant District of

Columbi a’s Reply

to Plainti ff’ s Opposition to Defenda

nt’s Motion to Dism iss, or in the Alternative f or Summary

J udg ment (“Reply”) at 1–2 [ Dkt. # 36]. Defenda nt does not addre ss the fac t that plaintiff’s claim, as se t forth cle arly

in her c omplaint, is one for multiple incidents of discrimination under the A DA, not just for the fa ilure to ac commodate. See id. Moreove r, spec ifically conce rningfailure to 3

acc ommodate, plaintiff conte nds in her cha rg e that she “ reque sted but was denie d rea sonable
acc ommodations . . . beg inning in 12/04 and continuing to the present .” Ha rtman De cl. Ex. E, Charg e of D iscrimination (emphasis adde d); see Opp’n at 10. As the Supreme Court has sa id: “Ea ch discre te discriminatory act star ts a new c lock for f

iling cha rg es alleg ing that act.” Nat’l R.R. Passenge r Corp. v. Morgan , 536 U.S. at 113; see Rand v. Ge ithner , 609 F. Supp. 2d 97, 101 (D.D.C. 2009); Coleman-Ade bayo v. Leav itt , 326 F. Supp. 2d 132, 137 (D.D .C. 2004). There fore , in this case, any ADA c laims conce rningdiscrete discriminatory acts that oc curr ed more than 300 da

y s befor e plaintiff f

iled her c harg e ar e pre sumptively time-barr ed, but any

ADA claims conc erningdiscrete acts that oc curr ed 300 or f ewe r day s befor e plaintiff f iled her c harg e
are timely
. The for

mer set of claims is only

presumptively

untimely beca use filinga timely ADA c harg e with the EEOC is a r equire ment that may be subjec t to waiver, e stoppel, and
Nor doe s defe ndant addr ess whethe r plaintiff’s br oad cla ims in C ount I are like or 3 rea sonably

related to the alleg ations of the cha rg e, or whether

they arise f orm the administrative investigation that can re asonably be expected to have followe d the cha rg e. See J

ohnson-Parks v

. D.C. Chartered Health Plan , No. 09-c v-1492, 2011 WL3835671, at *3 (D.D .C. Aug . 31, 2011). I f not, plaintiff has not administratively exhausted her c laims before the EEOC. See id. 13equitable tolling. See Zipes v . Trans W orld Airli nes, Inc

. , 455 U.S. at 393; Mondy v . Sec’ y of the Army , 845 F.2d 1051 ( D.C. Cir. 1988); Stewart v. District of Columbia , No. 04-c v-1444, 2006 WL626921, at *7 (D.D .C. Mar. 12, 2006). De fenda nt has ce rtainly

not waived its objection to litigation of time-ba

rre d claims; hence its dispos itive motion. See Mot. Pl aintiff sug g ests, howeve r, that estoppel or tolling should apply . Opp’n at 35. The Court disag ree s. “Equitable e stoppel require s active steps a mounting ‘to a

deliberate desig n by

the employ er or

actions that the e mploy er should unmistakably have unde rstood would cause the employ ee to de lay

filing his cha

rg e, . . . such a s hiding e vidence or promising not to rely on a statute of limitations defense.’ ” Chennareddy v . Dodaro , 698 F. Supp. 2d 1, 19 (D.D .C. 2009) (quoting Hedrich v . Bd. of Regents of Univ. of W is. Sys. , 274 F.3d 1174, 1182 ( 7th Cir. 2001)). Simi larly , “[e]quit able pr inciples favor tolling wher e, for

example, a def

endant e ng ag ed in aff irmative misconduct or misled a pla intiff about the runningof a limitations period.” W ashington v. W

ash. Metro. Area Transit Auth. , 160 F.3d 750, 753–54 ( D.C. Cir. 1998) (quotation, internal quotation, quotation marks, a nd brac kets omitted). Plaintiff arg ues only that her A DA “c laims relate to a common nucleus of ope rative f acts” and points out that defenda nt has not argued that it would be pre judiced if made to defe nd ag ainst considerations of otherwise time-barr ed ADAclaims. Opp’n at 35. But “[d]i scre te discriminatory acts a re not a ctionable if time barre d, even when they are rela ted to acts a lleg ed in timely filed cha rg es.” Nat’l R.R. Passenger Corp. v. M

organ , 536 U.S. at 113. Mere relation to a common nucleus of ope rative fac ts, theref

ore, is not enough to justi fy estoppel or tolling in this ca se. F urthermor e, the bur den is on plaintiff to show why estoppel or tolling is justified, not on the def endant to show why

it would be pre

judiced by

estoppel or tolling. Hamilton v. Geithner , 743 F. Supp. 2d 1, 9 (D.D .C.

142010); see also Coleman-A debayo v . Leavitt , 326 F. Supp. 2d at 137–38. Ac cording ly , even

assuming that defe ndant has not made a showingof pre judice, plaintiff ha s not satisfied her burden. The 300th day befor e plaintiff f

iled her c harg e wa s Dec ember 24, 2005. Def endant ther efor e is entitled to summary judgme nt on Count Ito the extent that itcontains ADA c laims based on discre te ac ts that occurr ed bef ore that date, bec ause suc h claims wer e not timely prese nted to the EEOC. De fenda nt is not entit led to summary judgme nt on Count I , howeve r, to the extent that it contains ADA claims base d on discrete acts that oc curr ed on or afte r that date , beca

use such c laims were timely prese nted to the EEOC. 4 B. Summary J

udgment W

ill N ot Be Entere d on Count II, nor W ill Count II BeDismissed In Count I I , plaintiff adva nces a claim similar to that made under the ADA in Count I : that defe ndant fa iled to rea sonably acc ommodate her

disability , in violation of the Rehabilitation Act, Compl. ¶¶ 40–44, which g ener ally require s a g overnme nt employ er “ to make
rea sonable a ccommodation to the limitations of a handica pped employ ee unle ss the [employ er] can showsuch ac commodation would impose an undue ha rdship on its operations,” W hitlock v. Donovan , 598 F. Supp. 126, 130 & n.4 (D.D.C. 1984) ( citing 29 U .S.C. § 791(b)) (quotation and

Def endant a lso argues that Count Ishould be dismissed because a plaintiff must 4 file suit within 90 day s of re ceivinga notice of her right to sue f

rom the EEOC, 42 U.S.C. § 2000e-5( f)( 1) (se tting for th 90-day limit ations period); id. § 12117(a) (incorpor atingSection 2000e-5 f or the purpose s of the ADA ), and be cause plaintiff fa iled to commence this suitwithin that 90-day

period, Mem. at 8–10. The Court g ives no cre dence to this arg ument, which has be en previously

considere d and dec ided ea rlier in this liti g ation. SeeMem. Op. and O rder at 4–5 [Dkt. # 22]. Defenda

nt does not even attempt to argue why the Court should reconside r that dec ision, but instead mere ly

repe ats its previously

unsucce ssful arg

ument. Compare Mem. at 8–10 with Def .’s Mot. to Dismis s at 7 [Dkt. # 20] . That ar gument rema ins unconvincing
. 15quotation marks re moved), aff’d sub nom W hitlock v. Broc k, 790 F.2d 964 ( D.C. Cir. 1986). To timely advanc e a c laim under the Reha bilitation Act, a plaintiff must file suit withi n 90 day s of
rec eivinga notice of

her r ight to sue f

rom the EEOC. 42 U.S.C. § 2000e-5( f)( 1) (se tting for th 90-day limit ations period); 29 U.S.C. § 794a(a) (incorpor atingSection 2000e-5 f or the purpose s of the Reha

bilitation Act). Defe ndant ar g ues that plaintiff fa iled to commence this suit within that 90-day

period. Mem. at 8–10. The Court will not respond in detail to that argument here , beca use it has pre viously

considere d and re

jected the argument. SeeMem. Op. and O rder at 4–5 [Dkt. # 22] . Def

endant doe s not even a

ttempt to ex plain why

the Court should reconside r its
ear lier dec ision, but i nstead mer ely repe ats its previously

unsucce ssful argument. Compare Mem. at 8–10 with Def

.’s Mot. to Dismis s at 7 [Dkt. # 20] . That ar g ument rema ins unconvincing
. C. The Complaint W ill Be Amende d to Remov e Count III In Count I I I , plaintiff alleg es that her “bilater al ca

rpel tunnel sy

ndrome c onstitut es an injury under the disability

compensation provisions of the” District of Columbia Comprehensive Me rit Personnel Ac t of 1978 (“CMPA”) . Compl. ¶ 46. She thus claims that she “is entitled to compensation for the per iod subsequent to her te rmination” as we ll as “aug mented compensation for her

dependa nts,” and that de fenda

nt has failed to make timely decisions on her claims for suc h compensation. Id. ¶¶ 47, 50–52; Opp’ n at 11.

“The CMPA is ‘[w] ith few e x ceptions . . . the e x clusive re medy for a District of Columbi a employ ee who has a w ork-r elated c omplaint of any kind.’” Sharma v. District of Columbia , No. 10-c v-1033, 2011 WL2418917, at *6 (D.D .C. J une 17, 2011) ( quoting Robinson

16v. District of Columbia , 748 A.2d 409, 411 (D.C. 2000)) ; see also Holman v . W illiams , 436 F. Supp. 2d 68, 74 (D.D.C. 2006). One major exception appe ars to apply in this case, howe ver: The CMPA applies to “all employ ees of the District of Columbia g overnme nt, exc ept the Chief J udg es and A ssociate Judge s of the Superior Court of the District of Columbia and the District of Columbi a Court of Appe als” – i.e., the judicial personne l of said cour ts – “and the nonjudicial personnel of said Courts .” D.C. Code § 1-602.01( a) ( emphasis adde d). The CMPA thus appea rs simply not to cover pla intiff, who claims to have been a nonjudicial employ ee of

the Superior Court. Compl . ¶¶ 2, 7. The Court theref ore invited plaintiff to submit further briefing on “whe ther the CMPA applies at a ll to plainti ff.” Br iefingOrde r of Septembe r 28, 2011, at 2.

In response , plaintiff “c oncede s that . . . she fa lls withi n the CMPA ex clusion” and purports to withdraw Count I I I . Pl’s Br. at 4. Plainti ff doe s not identify the authority

under which she makes this withdrawa l. The Court there fore construes the purported w ithdrawa l as a motion to amend the complaint to remove Count I I Ior, alter natively , to partially

voluntarily dismiss her c ase. See Fe d. R. Civ. P . 15(a) (1), 41( a)( 2); see, e .g. , Mix v . E.F. Hutton &Co., Inc. , 720 F. Supp. 8, 8 (D.D .C. 1989) (construinga “sur prise notice” of intent to withdraw a claim as “a motion to amend the c omplaint[ ] or for par tial voluntary

dismiss al”)
. To the extent that plaintiff has moved to voluntarily dismiss Count I I I , that motion will be denied be cause Rule 41 of the F eder al Rules of Civil P roce dure only permits complete dismiss al of a

n “ac tion,” not partial dismissal of “fe wer than all the cla ims.” Sudnick v . Dep’ t of Def. , 474 F. Supp. 2d 91, 95 n.3 (D.D .C. 2007) (quotation marks omitted). To the e x tent that plaintiff has moved to amend her complaint to remove Count I I I , that motion will be g rante d. Be cause plaintiff has a lrea dy once a mended he r complaint, see Compl., she may only amend he r 17complaint ag ain “with the opposingparty ’s written c onsent or the c ourt’s leave.” F ed. R. Civ. P.

15(a) (2). The Court will gra nt leave to amend. “The court should fre ely

g ive leave when justice so r equire s.” F ed. R. Civ. P. 15(a) (2). The Supreme Court has e lucidated this standar d:

In the abse nce of

any appar ent or de clar ed re ason – such a s undue delay , bad fa ith or dilatory motive on the part of the movant, repe ated f ailure to c ure de ficienc ies by amendments pre viously allowed, undue prejudice to the opposing pa rty by virtue of allowanc e of the amendment, f utilit y of ame ndment, etc. – the leave soug ht should, as the rules re quire, be “fr eely g iven.” Foman v. D avis , 371 U.S. 178, 182 (1964). Applying that standard in this case , the Court sees
no rea son why

plaintiff should not be permitted to re move Count I I Ifrom her complaint. There fore , plaintiff will be g rante d leave to amend her complaint to remove Count I I I and the complaint will be so amende d. Be cause Count I I Iwill no longer be at issue in this case , the Court will deny

defe ndant’s dispositive motion i n part a s moot as to arguments that Count I I I should be dismissed or that summary judgme nt should be entere d on Count I I I
. D. Count IV W

ill Be Dismissed In Count I V, plaintiff alleg es that def endant discha

rg ed her “on g rounds that violate public policy .” Compl. ¶ 55. “Unde r District of Columbia law, it is a g ener al rule that ‘an e mploy er ma

y discharg e an a

t-will employ ee a

t any time and for a

ny rea son, or no re ason at all’” – the at-will employ ment doctrine. Owens v. Nat’l Me d. Care, Inc. , 337 F. Supp. 2d 131, 137–38 (D.D.C. 2004) ( quoting Adams v. Ge orge W . Cochran &Co., Inc. , 597 A.2d 28, 30 (D.C. 1991)). The re is a na

rrow e x ception to that doctrine , howeve r, whe n an employ ee is discha rg ed in violation of public policy – the public-policy

exception. Carl v. Chil dren’s Hosp. , 702 A.2d
18159, 160 (D.C. 1997) (e n banc) ; Adams v. Ge orge W . Cochran &Co., Inc. , 597 A.2d at 30. “T o state a c laim under this public policy exception . . . , the plaintiff must show that . . . (1) [she] eng ag ed in a pr otected a ctivity ,” such a s ref usal to violate a law ; “(2) the employ er took a n adver se per sonnel ac tion ag ainst [her]; and (3) there was a causa l connec tion between the two.” Owens v. Nat’l Me d. Care, Inc. , 337 F. Supp. 2d at 137; see also Holman v. W illiams , 436 F. Supp. 2d at 76–78. Plainti ff’ s mention of termination in violation of public policy is thus an attempt to plead the public- policy exception to the at-will employ ment doctrine. Def endant ha s moved to dismis s Count I V bec ause pla intiff failed to plea d that she wa s eng ag ed in a pr otected a ctivity , that she wa s fired f or such e ng ag ement, or that there w as any causa l connec tion between those unpled alleg ations. Mem. at 12–13. Def endant is cor

rec t: Plaintiff’s one-line a ssertion that she wa s discharg ed in violation of public policy is but a mere label and c onclusion not sufficient to state a claim. See B ell Atlantic Corp. v. Tw ombly , 550 U.S. at 545. Ther efor e, to the extent that plaintiff is an at-will employ ee, she has fa iled to state a wrong ful termination claim upon which r elief c an be grante d.

Plaintiff now responds that she “ was not an at-will employ ee.” Opp’n at 13 (empha sis removed). I

nstead, she c laims to have bee n a ca ree r employ ee who may

be discha rg ed only for c ause. Id. But the public- policy exception plaintiff has attempted to plea d only applies to the at-will employ

ment doctrine. See O wens v. Nat’l Med. Care, I nc. , 337 F. Supp. 2d at 137. To the extent that plaintiff is a car eer employ ee, the n, she esse ntially conce des that she ha s failed to state a c laim for ter

mination in viol ation of public policy ; her c laim would instead be one for

19termination without cause, which she ha s not pled in Count I V. Ther efor e, Count I V will be

dismiss ed. 5
I V. CONCLUSI ON

For the re asons discussed a

bove, plaintiff’ s purported w ithdrawa l of Count I I Iwill be construe d as a motion to amend the c omplaint to remove Count I I I or, alter natively , to voluntarily

dismiss Count I I I . That motion will be gr anted in par t and denied in pa

rt and the complaint will be amende d to remove Count I I I . Def endant’ s disposit ive motion will also be g rante d in part and de nied in part. Count I V will be dismissed. All that will rema in in this case , there fore , is Count I , but only to the extent that it contains cla ims concer ning disc rete acts of discrimination that occur

red on or afte r De cembe r 24, 2005, and Count I I . An appr opriate O rder to this effec t will be issued this same day
.

/s/ PAULL . FRI EDMAN DATE: January

17, 2012 United States District J udg e

Def endant a lso argues that it is entitled to sum mary judgme nt on Count I V 5 beca use plaintiff ha s not “produce d any documents or inter

rog atory response s which would lea d to the conclusion that she pa rticipated in a

ny protec ted ac tivity .” Mem. at 13. Be cause the Court will dism iss CountI V for f ailure to state a

claim, the Court nee d not addre ss that summary judgme nt argument. 20