1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

________________________________ 

 ) 

YVETTE WILLIAMS ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No. 12-1930 (EGS) 

 ) 

SHAUN DONOVAN, SECRETARY, ) 

U.S. DEPARTEMENT OF HOUSING AND ) 

HUMAN DEVELOPMENT ) 

 ) 

Defendant. ) 

________________________________) 

MEMORANDUM OPINION 

 Ms. Yvette Williams brings this action alleging that 

defendant Sean Donovan, in his official capacity as Secretary, 

U.S. Department of Housing and Urban Development (the 

Department), violated the Rehabilitation Act (Act), 29 U.S.C. § 

791, et seq., by discriminating against her based on her 

disabilities. In Count 1 of her Amended Complaint, Ms. Williams 

alleges that the Department discriminated against her because of 

her disabilities based on a series of events that culminated in 

her termination. Am. Compl., ECF No. 18 ¶ 43. In Count 2, Ms. 

Williams alleges that the Department denied her a reasonable 

accommodation for her disability. Id. ¶¶ 44-45. In Count 3, Ms. 

Williams alleges that the Department terminated her in 

retaliation for engaging in protected Equal Employment 

Opportunity (EEO) activity. Id. ¶¶ 46-47. 
2 

Before the Court is the Department’s Motion to Dismiss 

Counts 1 and 3 of the Amended Complaint for failure to state a 

claim pursuant to Federal Rule of Civil Procedure 12(b)(6), or 

in the alternative for Summary Judgment on Counts 1, 2 and 3 

pursuant to Federal Rule of Civil Procedure Rule 56. 

Upon consideration of the motion, the response thereto, the 

applicable law, and the entire record, the Department’s Motion 

to Dismiss is GRANTED IN PART AND DENIED IN PART, and the 

Department’s Motion for Summary Judgment is DENIED without 

prejudice. 

I. Background 

 As this matter is before the Court on the Department’s 

Motion to Dismiss, the Court assumes the following facts alleged 

in the Amended Complaint to be true and grants Ms. Williams the 

benefit of all reasonable inferences deriving from the Amended 

Complaint. 

 Ms. Williams began working for the Department in August 

2008 as a Federal Career Intern. Am. Compl., ECF No 18 ¶ 6. In 

this capacity, she performed rotational assignments until she 

was permanently assigned to the Office of Executive Secretariat 

(OES) in July 2010 as a correspondence specialist performing 

mail room duties. Id. ¶ 6. Ms. Williams was in this position 

until February 4, 2012, the effective date of her removal from 

her position. Id. 
3 

Ms. Williams has a number of physical disabilities – 

Adenomyosis, Psoas Syndrome and Lumbar Scoliosis – which 

substantially limit her ability to sit, stand, walk, and sleep. 

Id. ¶ 7. Ms. Williams also experiences episodes of severe pain – 

including pain in her back, hip, leg, and foot, that are 

exacerbated by sitting, standing, and by stress. Id. This pain 

affects her ability to sleep and also her ability to function 

after she is unable to sleep. Id. Finally, the pain causes Ms. 

Williams to vomit, resulting in her need to be close to a 

restroom. Id. Despite these disabilities, Ms. Williams was able 

to perform the essential functions of her job with reasonable 

accommodations. Id. ¶ 8. 

Ms. Williams successfully completed her internship on 

August 18, 2010. Id. ¶ 9. On December 6, 2010, Ms. Williams met 

with her supervisors and was informed that she would not receive 

a promotion to GS-12 due to her absences. Id. ¶ 10. Ms. Williams 

alleges that all of her absences were approved as either Family 

Medical Leave Act (FMLA) or annual leave. Id. Ms. Williams 

further alleges that her performance throughout her internship 

had consistently been rated “outstanding.” Id. 

On December 14, 2010, Ms. Williams received an official 

reprimand as a result of allegedly rude and discourteous 

behavior during the December 6, 2010 meeting. Id. ¶ 11. Ms. 

Williams states that at that meeting she “respectfully 
4 

questioned her supervisor’s decision not to promote her by 

pointing out her performance rating and the fact that all of 

her absences had been approved.” Id. Ms. Williams alleges that 

this official reprimand was used to support the ultimate 

decision to remove her from her position. Id. 

Also on December 14, 2010, Ms. Williams’ supervisor ceased 

allowing her to work an alternative work schedule, requiring her 

to work on a fixed schedule Monday through Friday. Id. ¶ 12. 

Ms. Williams alleges that her supervisor knew that she had an 

alternative work schedule based on the recommendation of her 

doctor that she telework at least two days per week. Id. Ms. 

Williams states that she needed a flexible schedule so that she 

could seek medical treatment and alleges that “similarlysituated non-disabled co-workers were permitted to continue 

working on an alternative work schedule.” Id. ¶¶ 12-13. 

On January 13, 2011, Ms. Williams received a performance 

appraisal of “excellent.” Id. ¶ 15. Ms. Williams states that she 

had received an “outstanding” rating the previous year. Id. Ms. 

Williams alleges that the “[d]efendant considered this 

performance rating in her decision to remove [her] from her 

position and federal service.” Id.

On February 11, 2011, Ms. Williams’ supervisor informed her 

that as of February 14, 2011, she would perform filing duties 

rather than mail room duties. Id. ¶ 17. 
5 

In March 2011, Ms. Williams “took leave under the Family 

and Medical Leave Act to care for her father who was suffering 

from end stage renal failure.” Id. ¶ 19. At that time, she also 

submitted a request to telework to her supervisor. Id. ¶ 20. In 

April 2011, Ms. Williams provided a letter from her doctor 

supporting her request to telework. Id. ¶ 21. Ms. Williams’ FMLA 

leave expired on April 18, 2011. Id. ¶ 22. On April 20, 2011, 

Ms. Williams’ “request to telework was denied, her request for 

leave without pay (LWOP) was denied, and she was placed on 

absent without [official] leave [AWOL].” Id. ¶ 23. 

On June 27, 2011, a memorandum was issued instructing Ms. 

Williams to return to work by July 11, 2011. Id. ¶ 26. On July 

12, 2011, Ms. Williams submitted a request for reasonable 

accommodation – that she be allowed to telework – to the 

Employee Assistance Program office. Id. ¶ 27.1 On July 22, 2011, 

Ms. Williams “received a notice of proposed removal based on 

 

1 Ms. Williams’ request to telework was denied on November 7, 

2011. Id. ¶ 30. On November 16, 2011, the Reasonable 

Accommodation Committee (RAC) met to make a final decision on 

this request. Id. ¶ 31. Ms. Williams informed the RAC that she 

was waiting for the results of recent [Magnetic Resonance 

Imagings] and that she could provide updated medical 

documentation to the RAC when she received the results. Id. ¶ 

32. The RAC agreed to postpone their decision and gave her until 

November 18, 2011 to provide additional medical documentation to 

the Committee. Id. ¶ 33. Ms. Williams was unable to obtain the 

documentation until December 9, 2011, and was told that her case 

was closed and she could not submit the documentation. Id. ¶ 34. 

On December 23, 2011, the RAC upheld the denial of her request. 

Id. ¶ 35.
6 

AWOL, failure to follow directive, and failure to follow 

instruction.” Id. ¶ 28. Ms. Williams returned to work on August 

1, 2011. Id. ¶ 29. 

With regard to her EEO activity, Ms. Williams contacted an 

EEO counselor on January 18, 2011 “regarding her non-promotion, 

official reprimand, removal of alternative work schedule, and 

performance appraisal.” Id. ¶ 16. Thereafter, on March 3, 2011, 

Ms. Williams filed a formal complaint in which she alleged 

“disability discrimination and retaliation for requesting 

reasonable accommodations based on her non-promotion, official 

reprimand, removal of alternative work schedule, and performance 

appraisal.” Id. ¶ 18. On May 13, 2011, Ms. Williams “amended her 

formal complaint to include the February 11, 2011 reassignment 

of job duties, April 20, 2011 denial of reasonable accommodation 

to telework, and the April 20, 2011 denial of LWOP.” Id. ¶ 24. 

On February 6, 2012, Ms. Williams “contacted an EEO officer 

regarding the December 23, 2011 denial of reasonable 

accommodation to telework and the February 4, 2012 removal” and 

on April 9, 2012, she “filed a formal complaint alleging 

disability discrimination and retaliation based on the December 

23, 2011 denial of reasonable accommodation and her February 4, 

2012 removal.” Id. ¶¶ 40-41. 
7 

Ms. Williams alleges that she exhausted her administrative 

remedies by filing these two complaints of discrimination with 

the Department. Id. ¶¶ 2-3. 

On January 31, 2012, Ms. Williams was removed from her 

position effective February 4, 2012. Id. ¶ 6.

II. Legal Standards 

A. Standards of Review 

1. Federal Rule of Civil Procedure 12(b)(6) 

 A Rule 12(b)(6) motion to dismiss “tests the legal 

sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 

242 (D.C.Cir.2002). To survive a motion to dismiss, “a complaint 

must contain sufficient factual matter, accepted as true, to 

‘state a claim to relief that is plausible on its face.’” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility 

requires that “the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. Detailed factual 

allegations are not required, but the plaintiff is required to 

provide “more than an unadorned, the-defendant-unlawfullyharmed-me accusation,” id., and must plead enough facts “to 

raise a right to relief above the speculative level.” Twombly, 

550 U.S. at 555. “Determining whether a complaint states a 

plausible claim for relief will . . . be a context-specific task 
8 

that requires the reviewing court to draw on its judicial 

experience and common sense. But where the well-pleaded facts do 

not permit the court to infer more than the mere possibility of 

misconduct, the complaint has alleged—but it has not ‘show[n]’—

‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 

679. 

 When ruling on a Rule 12(b)(6) motion, the court may 

consider “the facts alleged in the complaint, documents attached 

as exhibits or incorporated by reference in the complaint, and 

matters about which the Court may take judicial notice.” 

Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002). 

The court “must accept as true all of the factual allegations 

contained in the complaint,” Atherton v. D.C. Office of the 

Mayor, 567 F.3d 672, 681 (D.C.Cir.2009)(quoting Erickson v. 

Pardus, 551 U.S. 89, 94 (2007)), and must construe the complaint 

liberally in the plaintiff’s favor, granting the plaintiff the 

benefit of all reasonable inferences deriving from the 

complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. 

Cir.1994). However, the court need not “accept inferences drawn 

by plaintiffs if such inferences are unsupported by the facts 

set out in the complaint. Nor must the court accept legal 

conclusions cast in the form of factual allegations.” Id.

Further, “[t]hreadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not 
9 

suffice.” Iqbal, 556 U.S. at 678. Only a claim that “states a 

plausible claim for relief survives a motion to dismiss.” Id. at 

679. 

2. Federal Rule of Civil Procedure 56 

Summary judgment is appropriate when the moving party has 

shown that there are no genuine issues of material fact and that 

the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 

(D.C. Cir.2002). 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 issue exists 

where the “evidence is such that a reasonable jury could return 

a verdict for the nonmoving party.” Id. A court considering a 

motion for summary judgment must draw all “justifiable 

inferences” from the evidence in favor of the nonmovant. Id. at 

255. 

 “[S]ummary judgment is premature unless all parties have ‘had 

a full opportunity to conduct discovery.’” Convertino v. Dept. 

of Justice, 684 F.3d 93, 99 (D.C.Cir.2012) (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). It is 

particularly important that litigants in discrimination cases 

have the opportunity to engage in discovery. Gray v. Universal 

Serv. Admin. Co., 581 F.Supp.2d 47, 57 (D.D.C.2008)(dismissing 
10 

defendant’s motion for summary judgment in the alternative 

without prejudice in an employment discrimination case to allow 

the parties the opportunity to conduct full discovery); Gordon 

v. Napolitano, 786 F.Supp.2d 82, 86 (D.D.C.2011)(declining to 

dismiss plaintiff’s claims or convert the motion to one for 

summary judgment in an employment discrimination case because 

plaintiff had not yet had the benefit of discovery). 

3. Discrimination Under the Rehabilitation Act

The Rehabilitation Act provides that “[n]o otherwise 

qualified individual with a disability” may be discriminated 

against by a federal agency “solely by reason of her or his 

disability.” 29 U.S.C. § 794(a).2 The two essential elements of a 

discrimination claim under the Act are that (i) the plaintiff 

suffered an adverse employment action (ii) because of her 

disability. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. 

Cir.2008).3 An adverse employment action is “a significant change 

 

2 The Act “expressly incorporates the standards of the [Americans 

with Disabilities Act] for claims of employment discrimination.” 

Rosier v. Holder, 833 F.Supp.2d 1, n.1 (D.D.C.2011)(internal 

citations omitted). 

3 Generally, to establish a prima facie case of discrimination, a 

plaintiff must demonstrate that: “(1) [she] is a member of a 

protected class; (2) [she] has suffered an adverse employment 

action; and (3) the unfavorable action gives rise to an 

inference of discrimination.” Czekalski v. Peters, 475 F.3d 360, 

364 (D.C.Cir.2007)(quoting George v. Leavitt, 407 F.3d 405, 412 

(D.C.Cir.2005)). “At the motion to dismiss stage, however, a 

plaintiff need not prove a prima facie case.” Munro v. LaHood, 

839 F.Supp.2d 354, 360 (D.D.C.2012)(citations omitted). 
11 

in employment status, such as hiring, firing, failing to 

promote, reassignment with significantly different 

responsibilities, or a decision causing significant change in 

benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir. 

2003)(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 

(1998)(pinpoint cite omitted in original). 

With regard to the causation element of a Rehabilitation 

Act claim, “courts have found that the presence of the word 

‘solely’ [in the Act] means that the causation element of 

intentional discrimination and retaliation claims brought under 

[the Rehabilitation] Act cannot be satisfied by a motivating 

factor test; rather, the applicable analysis is the traditional 

‘but-for’ causation standard.” Drasek v. Burwell, 121 F.Supp.3d 

143, 154 (D.D.C.2015)(citing Gard v. U.S. Dep’t of Educ., 752 

F.Supp.2d 30, 35–36 (D.D.C.2010). At the motion to dismiss 

stage, however, the court does not need “to undertake a ‘full 

causation analysis’ in determining whether plaintiff has stated 

a claim.” Badwal v. Board of Trustees of the University of 

District of Columbia, 139 F.Supp.3d 295, 311 (D.D.C.2015)(citing 

Nurriddin v. Bolden, 674 F.Supp.2d 64, 90 (D.D.C.2009). “Merely 

alleging that the employer's proffered reasons for the adverse 

employment actions is false may support an inference of 

discrimination sufficient to survive a motion to dismiss.” 

Nurriddin, 674 F.Supp.2d at 90(citing George v. Leavitt, 407 
12 

F.3d 405, 412 (D.C.Cir.2005)(reversing district court for 

requiring plaintiff to support prima facie case with evidence 

that she was treated differently than similarly situated 

employees not part of the protected class because “[e]limination 

of [employer's legitimate] reasons ... is sufficient, absent 

other explanation, to create an inference that the decision was 

a discriminatory one”). 

Under the standard set forth in Iqbal, to survive a motion 

to dismiss, Ms. Williams’ complaint needs to “contain[] 

sufficient factual matter” from which the Court can “draw the 

reasonable inference” that the Department discriminated against 

her because of her disabilities and thus violated the Act. 

Iqbal, 556 U.S. at 678. 

IV. Analysis 

A. Count 1 

As a preliminary matter, the Court notes that the 

Department does not dispute that Ms. Williams has adequately 

alleged that she has a disability. See generally Def.’s Mot. to 

Dismiss, ECF No. 20. In Count 1, Ms. Williams alleges that the 

[d]efendant violated the Rehabilitation Act by 

discriminating against [her] on the basis of 

her disabilities, its record of her 

disabilities, and its perception of her as 

disabled, when it denied her a promotion, 

issued her an official reprimand, removed her 

from an alternative work schedule, issued her 

a performance rating of excellent, assigned 

her a different set of duties, denied her 
13 

requests to telework, charged her AWOL, and

removed her from her position. 

Am. Compl., ECF No. 18 ¶ 43. 

In support of its Motion to Dismiss Count 1, the Department 

asserts that Ms. Williams was removed from her position because 

of chronic absences and undependability – in particular, when 

her removal was proposed in 2011, she had been out of the office 

for seven months of an eleven month period. Def.’s Mot. to 

Dismiss, ECF No. 20-1 at 1-2. The Department argues that under 

controlling law, the following actions do not constitute adverse 

employment actions: official reprimand, ending Ms. Williams’ AWS 

schedule, changing Ms. Williams’ job duties, and Ms. Williams’ 

performance appraisal rating. Id. at 7–11. The Department 

further argues that all claims within Count 1 should be 

dismissed because Ms. Williams has failed to allege facts that 

make it plausible that the Department took these actions because 

of Ms. Williams’ alleged disabilities. Id. at 11-17. 

Ms. Williams responds that the Department has not contested 

that the denial of a promotion was an adverse action, that the 

official reprimand materially affected the terms and conditions 

of her employment because it was considered when the decision to 

end her employment was made, that removal from AWS was an 

adverse action because she needed AWS due to her disability and 

similarly-situated non-disabled co-workers were permitted an AWS 
14 

schedule, and that removal constitutes an adverse employment 

action. Pl.’s Opp’n, ECF No. 21 at 4-5. 

The Department replies that because Ms. Williams did not 

respond to its argument that neither changing Ms. Williams’ job 

duties nor Ms. Williams’ performance appraisal constitute 

adverse employment actions, she has conceded that they do not. 

Def.’s Reply, ECF No. 24 at 3-4. 

1. Whether Ms. Williams suffered adverse employment 

actions 

 The Department does not dispute that Ms. Williams suffered 

an adverse employment action when it denied her a promotion, 

charged her AWOL, and removed her from her position. See 

generally Def.’s Mot. to Dismiss, ECF No. 20-1. Ms. Williams, 

for her part, does not respond to the Department’s argument that 

the change in duties or her performance appraisal rating are not 

adverse actions. See generally, Pl.’s Opp’n, ECF No. 21. Ms. 

Williams has therefore conceded that the change in her duties 

and her performance appraisal rating were not adverse employment 

actions. See Hopkins v. Women's Div., Gen. Bd. of Global 

Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003), aff'd, 98 Fed. 

Appx. 8 (D.C.Cir.2004)(“It is well understood in this Circuit 

that when a plaintiff files an opposition to a dispositive 

motion and addresses only certain arguments raised by the 

defendant, a court may treat those arguments that the plaintiff 
15 

failed to address as conceded.”) (citations omitted).

Accordingly, the Court will GRANT the Motion to Dismiss as to 

the claims for change in duties and performance appraisal. At 

issue, then, is whether the official reprimand and ending Ms. 

Williams’ AWS schedule constitute adverse employment actions. 

Official Reprimand. Ms. Williams alleges that the official 

reprimand was used to support the decision to remove her from 

her position. Am. Compl., ECF No. 18 ¶ 11. The Department argues 

that the official reprimand itself was not an adverse employment 

action and so must be dismissed. Def.’s Mot. to Dismiss, ECF No. 

20 at 8-9. However, the cases the Department cite to support 

this point support the opposite conclusion-–that because she was 

removed from her position in part allegedly because of the 

reprimand, the reprimand does constitute an adverse employment 

action. See Stewart v. Evans, 275 F.3d 1126, 1136 (D.C.Cir. 

2002)(“This Court has held that formal criticisms or reprimands, 

without additional disciplinary action such as a change in 

grade, salary, or other benefits, do not constitute adverse 

employment actions. Plaintiff has not alleged that the report of 

the Cordoba matter in any way affected her job performance 

ratings or the conditions of her employment. Because this report 

had no effect on Ms. Stewart's pay, benefits, or privileges, it 

cannot be considered an adverse employment action under Title 

VII.”)(internal citations omitted); Weng v. Solis, 960 F.Supp.2d 
16 

239, 247 (D.D.C.2013)( “Plaintiff does not present any evidence 

that the Warning Memorandum affected her grade, salary, or 

benefits. Nor does she demonstrate that the Memorandum affected 

the terms, conditions, or privileges of her employment or future 

employment opportunities. Without such evidence, a reasonable 

trier of fact cannot conclude that she “suffered objectively 

tangible harm” as a result of the Warning Memorandum”). 

Accordingly, Ms. Williams has sufficiently alleged that the 

official reprimand constituted an adverse employment action. 

Alternative Work Schedule (AWS). Ms. Williams alleges that 

her supervisor removed her from AWS and required her to work a 

Monday to Friday fixed schedule despite knowing that she had an 

AWS based on the recommendation of her doctor that that she 

telework at least two days per week. Am. Compl., ECF No. 18 ¶ 

12. Ms. Williams also alleges that she needed a flexible 

schedule so that she could seek medical treatment. Id. The 

Department, relying principally on Hunter v. District of 

Columbia, F.Supp.2d 364, 373 (D.D.C.2012), argues that this 

court has repeatedly held that ending an AWS schedule does not 

constitute an adverse employment action. Def.’s Mot. to Dismiss, 

ECF No. 20 at 9. In Hunter, in the context of ruling on a motion 

for summary judgment, the court found, as a matter of law, that 

the plaintiff had not suffered an adverse employment action when 

“there [wa]s no showing that defendant’s denial of [plaintiff’s] 
17 

application for the AWS program affected his employment status.” 

Hunter, F.Supp.2d at 373. Ms. Williams cites no legal authority 

in support of her assertion that removing her from her 

alternative work schedule was due to her disability because 

“similarly situated non-disabled co-workers were permitted to 

work an AWS.” Pl.’s Opp’n, ECF No. 21 at 5. 

Ms. Williams has not alleged any facts from which the Court 

could infer that ending her AWS constituted an adverse 

employment action because it affected her employment status. See 

generally Am. Compl., ECF No. 18. The only facts that Ms. 

Williams has alleged regarding this claim are that her doctor 

had recommended that she telework at least two days per week and 

that she needed a flexible schedule that allowed her to seek 

medical treatment. Am. Compl., ECF No. 18 ¶ 12. Ms. Williams has 

conclusorily alleged that similarly-situated non-disabled coworkers were permitted to work an AWS schedule, Id. ¶ 13, but 

this is relevant to whether Ms. Williams has sufficiently 

alleged that she suffered an adverse employment action because 

of her disability, and not whether the ending of AWS constituted 

an adverse employment action. The Court recognizes that Ms. 

Williams was removed from her position, which was an adverse 

employment action, a little over a year after she was removed 

from AWS. Ms. Williams alleges that her notice of proposed 

removal was “based on AWOL, failure to follow directive, and 
18 

failure to follow instruction.” Am. Compl., ECF No. 18 ¶ 28. 

Thus, Ms. Williams does not allege that ending her AWS affected 

her removal from her position. Because Ms. Williams has alleged 

no facts from which the Court could infer that ending her AWS 

affected her employment status, the Court will GRANT the Motion 

to Dismiss the AWS claim in Count 1.

2. Whether Ms. Williams suffered adverse employment 

actions because of her disability 

The Department argues that all claims within Count 1 should 

be dismissed because Ms. Williams has failed to allege facts 

that make it plausible that the Department took these actions 

because of Ms. Williams’ alleged disabilities. Def.’s Mot. to 

Dismiss, ECF No. 20 at 11-17. The claims that have not already 

been dismissed in Count 1 are: (1) the official reprimand; (2) 

denial of promotion; (3) charge of AWOL; (4) denial of requests 

to telework; and (5) removal. Ms. Williams alleges that the 

Department discriminated against her on the basis of her 

disabilities when it took each of these actions. Am. Compl., ECF 

No 18 ¶ 43. 

Official Reprimand. Ms. Williams alleges that 

[o]n December 14, 2010, Plaintiff received an 

official reprimand for allegedly rude and 

discourteous behavior during the December 6, 

2010 meeting in which Plaintiff had 

respectfully questioned her supervisor’s 

decision not to promote her by pointing out 

her performance rating and the fact that all 

of her absences had been approved[.] 
19 

Defendant considered this official reprimand 

and used it in support of the decision to 

remove Plaintiff from her position and federal 

service. 

Am. Compl., ECF No. 18 ¶ 11. The Department argues that based on 

the sole factual allegation regarding the official reprimand in 

the Amended Complaint, the “[p]laintiff asks the Court to draw 

the inference that Defendant purposefully discriminated against 

her on the basis of her disabilities simply because she received 

a reprimand for rude and discourteous behavior in front of three 

witnesses, when she asserts that she had in fact been 

respectful.” Def.’s Mot. to Dismiss, ECF No. 20-1 at 13. The 

Department maintains that this is not a reasonable inference 

and, quoting Iqbal, argues that Ms. Williams has “merely pleaded 

a sheer possibility that defendant has acted unlawfully.” Id. In 

response, Ms. Williams does not point to any factual allegations 

in the Complaint that support her claim that she was 

discriminated against her on the basis of her disabilities when 

she was issued the formal reprimand. Pl.’s Opp’n, ECF No. 21 at 

4. 

Ms. Williams’ Amended Complaint is completely devoid of 

factual matter that would support her claim that the Department 

discriminated against her based on her disabilities when it 

issued the official reprimand. See generally Am. Compl., ECF No. 

18. Rather, the only allegation regarding this claim is that she 
20 

was reprimanded because of rude and discourteous behavior. 

Moreover, although Ms. Williams asserts that she was respectful, 

she does not allege that the reason her employer gave -- rude 

and discourteous behavior – was false. See Nurriddin, 674 

F.Supp.2d at 90. Ms. Williams has therefore failed to “state a 

claim to relief that is plausible on its face.” Iqbal, 556 U.S. 

at 678 (internal citations omitted). Accordingly, the Court will 

GRANT the Motion to Dismiss the official reprimand claim in 

Count 1 of the complaint.

Denial of Promotion. Ms. Williams alleges that she was 

discriminated against on the basis of her disabilities when she 

was denied a promotion. Am. Compl., ECF No. 18 ¶ 7. The 

Department argues that Ms. Williams’ allegations regarding the 

denial of promotion constitute a legal conclusion that the Court 

need not assume to be true. Def.’s Mot. to Dismiss, ECF No. 20-1 

at 11. Further, the Department argues that Ms. Williams’ factual 

allegations related to this claim provide no support for her 

“allegation that she was denied a promotion on the basis of her 

disability.” Id. at 12. Ms. Williams responds that she has 

sufficiently alleged facts to support her claim because she has 

alleged that the reason her supervisor gave for failing to 

promote her – her absences – is false and that the real reason 

she was not promoted was because of her disabilities “because 

her absences were all approved and her work performance during 
21 

this time was satisfactory based on her outstanding performance 

evaluations.” Pl.’s Opp’n, ECF No 21 at 4-5. The Department 

replies that Ms. Williams has failed to adequately allege a 

causal link between her disability and the denial of promotion 

and therefore fails to state a claim. See Def.’s Reply, ECF No. 

24 at 6. 

Contrary to Ms. Williams’ assertion, she does not allege in 

her Amended Complaint that the reason given for not promoting 

her was false. See Am. Compl., ¶¶ 9-10, 43. Rather, Ms. Williams 

has alleged that (1) she was informed she would not be promoted 

due to her absences; (2) her performance had consistently been 

rated “outstanding”; (3) her absences had been approved; and (4) 

the Department discriminated against her on the basis of her 

disabilities when it denied the promotion. Id. ¶¶ 10, 43. Ms. 

Williams asserts that the reasons that were given were false in 

her opposition to the Department’s Motion to Dismiss. Pl.’s 

Opp’n, ECF No 21 at 4-5. Where a plaintiff fails to include 

allegations in her complaint, she may not amend her complaint 

via the briefs in opposition to a motion to dismiss. Kingman 

Park Civic Assoc. v. Gray, 27 F.Supp.3d 142, 168 (D.D.C. 

2014)(citations omitted). On March 7, 2014, the Court granted 

leave for Ms. Williams to amend her complaint, originally filed 

on November 29, 2012, which she requested in response to the 

defendant’s first pre-answer dispositive motion. Minute Order of 
22 

March 3, 2014. Thus, Ms. Williams had an opportunity to cure any 

deficiencies in her complaint after reviewing the defendant’s 

first pre-answer dispositive motion. Accordingly, because Ms. 

Williams has not alleged that the reasons given for her nonpromotion were false, Ms. Williams’ complaint fails to 

“contain[] sufficient factual matter” from which the Court can 

“draw the reasonable inference” that the Department 

discriminated against her in violation of the Act when she was 

not promoted. Iqbal, 556 U.S. at 678. The Court will therefore 

GRANT the Department’s Motion to Dismiss the non-promotion claim 

in Count 1 of the complaint. 

Charge of AWOL, Denial of Telework Requests and Removal. 

The Department argues that Ms. Williams has not provided any 

facts to support her assertion that she was placed on AWOL 

rather than Leave Without Pay (LWOP) because of her 

disabilities. Def.’s Mot. to Dismiss, ECF No. 20-1 at 15. Next, 

the Department argues that none of Ms. Williams’ allegations 

regarding the denial of her requests to telework suggest that it 

was motivated by a “discriminatory animus” and thus does not 

survive a motion to dismiss. Id. at 16. The Department then 

argues that Ms. Williams’ allegations provide little factual 

support from which the Court could draw an inference that she 

was removed from her position because of discrimination and thus 

do not raise her claim for relief above a speculative level. 
23 

Def.’s Mot. to Dismiss, ECF No. 20-1 at 16. In particular, the 

Department notes that Ms. Williams’ allegations fail to suggest 

that the Department acted unlawfully, but rather provide support 

for her removal being for the reasons she was given and that she 

herself alleged in her complaint. Id. 

As alleged in her complaint, on July 22, 2011, Ms. Williams 

“received a notice of proposed removal based on AWOL, failure to 

follow directive, and failure to follow instruction.” Am. 

Compl., ECF No. 18 ¶ 28. This occurred after Ms. Williams’ 

Family and Medical Leave Act (FMLA) leave expired, her requests 

to telework and for LWOP were denied, she was instructed by 

memorandum to report to work by July 11, 2011, and she responded 

that she could not return to work on that day, but could on a 

date 22 days later. Id. ¶¶ 22, 26, 28. Ms. Williams’ responds to 

the Department’s arguments with a single sentence: “Plaintiff 

alleges she was removed from federal service based on her 

disabilities because instead of accommodating her and granting 

her repeated requests to telework, Defendant marked her as AWOL 

and then removed her based on her absences due to her 

disabilities,” and cites caselaw to support the proposition that 

removal is an adverse action. Pl.’s Opp’n, ECF No. 21 at 4-5. 

The Department replies that Ms. Williams has failed to 

adequately allege a causal link between her disability and her 
24 

removal and therefore fails to state a claim. See Def.’s Reply, 

ECF No. 24 at 6. 

As an initial matter, the Department does not dispute that 

Ms. Williams’ removal from her position constitutes an adverse 

employment action. See generally Def.’s Mot. to Dismiss, ECF No. 

20. Thus, the caselaw cited by Ms. Williams does not address the 

Department’s argument – that she failed to adequately allege 

that she was removed from her position because of her 

disabilities. As stated supra, Ms. Williams’ complaint needs to 

“contain[] sufficient factual matter” from which the Court can 

“draw the reasonable inference” that the Department 

discriminated against her in violation of the Act when it 

removed her from her position because it removed her because of 

her disabilities. Iqbal, 556 U.S. at 678. Ms. Williams does make 

this allegation, Am. Compl., ECF No. 18 ¶ 43, but she provides 

no factual matter from which the Court can reasonably infer that 

she was discriminated against because of her disabilities when 

she was charged with AWOL, her telework requests were denied, 

and she was removed from her position. She has not alleged that 

the reasons she alleged were given for her termination -- 

because she was AWOL when she did not return to work after her 

FMLA leave expired, and she failed to follow directive and 

instruction when she did not return to work on the date given, 

but returned 22 days later on the date of her own choosing – 
25 

were false. See Nurriddin, 674 F.Supp.2d at 90. Finally, her 

paltry response to the Department’s Motion to Dismiss does not 

provide the Court with any reason to disagree with the 

Department. Accordingly, the Court will GRANT the Department’s 

Motion to Dismiss the charge of AWOL, denial of telework 

requests and removal claims in Count 1 of the complaint. 

B. Count 3 

In Count 3, Ms. Williams alleges that the Department 

violated the Act when it terminated her in retaliation for 

engaging in protected EEO activity. Am. Compl., ECF No. 18 ¶ 47. 

The Department argues that “[t]he Complaint lacks factual 

allegations asserting what constituted the predicate EEO 

activity that purportedly led to the retaliation.” Def.’s Mot. 

to Dismiss, ECF No. 20-1 at 17. Ms. Williams responds that the 

Complaint “specifies numerous instances of protected activity” 

including her March 3, 2011 formal complaint of discrimination, 

her May 13, 2011 amendment to that complaint, and her March 6 

and July 12, 2011 requests for reasonable accommodation. Pl.’s 

Opp’n, ECF No. 21 at 6. 

Although the Department has moved this Court to dismiss 

Count 3 pursuant to Rule 12(b)(6), in its reply, the Department 

raised for the first time the question of whether Ms. Williams 

exhausted her administrative remedies regarding this claim, 

arguing that Ms. Williams does not allege that her formal EEO 
26 

complaints are the basis of her retaliatory removal claim. 

Def.’s Reply, ECF No. 24 at 7-9. The Department also argues that 

is inappropriate for the Court to consider documentation 

provided by Ms. Williams to demonstrate that she exhausted her 

administrative remedies. Id. at 7. Because the Department raised 

the jurisdictional issue for the first time in its reply, which 

it stated was because Ms. Williams had only identified the acts 

underlying the retaliation claim in her opposition, the Court, 

sua sponte, directed Ms. Williams to file a surreply addressing 

this issue. Minute Order of March 27, 2015. Ms. Williams timely 

filed her surreply on March 30, 2015. Plaintiff’s Surreply, ECF 

No. 25. 

1. Ms. Williams exhausted her administrative remedies 

on her retaliation claim

The Rehabilitation Act “limits judicial review to employees 

‘aggrieved by the final disposition [or lack of final 

disposition] of’ their administrative ‘complaint.’ Spinelli v. 

Goss, 446 F.3d 159, 162 (D.C.Cir.2006)(quoting 29 U.S.C. § 

794a(a)(1). In so doing, the Rehabilitation Act makes “failure 

to exhaust administrative remedies ... a jurisdictional defect, 

requiring dismissal for lack of subject-matter jurisdiction,” so 

“the plaintiff has the burden to plead and prove it.” Ellison v. 

Napolitano, 901 F.Supp.2d 118, 124 (D.D.C.2012)(quotation marks 

omitted). 
27 

“[T]he proper method for challenging exhaustion under the 

Rehabilitation Act is a Rule 12(b)(1) motion to dismiss for lack 

of subject matter jurisdiction.” Rosier, 833 F.Supp.2d at 5 

(citations omitted). “Even in the absence of a Rule 12(b)(1) 

motion to dismiss for lack of subject matter jurisdiction, the 

Court has an independent duty to assess jurisdiction.” Id.

(citations omitted). In assessing jurisdiction, “the Court may 

go outside the pleadings and consider evidence found in the 

record, when necessary to fully resolve 12(b)(1) jurisdictional 

challenges.” Id. (citations omitted). Whether or not the court 

relies on documents outside of the complaint, the non-moving 

party “is entitled to all reasonable inferences that can be 

drawn in her favor.” Id. (citations omitted) (emphasis in the 

original). 

Pursuant to Equal Employment Opportunity regulations 

applicable to the Department, see 29 C.F.R. § 1614.103, persons 

who believe they have been discriminated against or retaliated 

against, “must initiate contact with a counselor within 45 days 

of the matter alleged to be discriminatory or, in the case of 

personnel action, within 45 days of the effective date of the 

action.” 29 C.F.R. § 1614.105. After attempting to resolve the 

issue informally, and upon being notified that the matter has 

not been resolved, the person must file a complaint with the 

agency within 90 days. 29 C.F.R. § 1614.106(b). If a final 
28 

agency decision is not issued within 120 days of the filing of 

the complaint, the person may file a civil action pursuant to 29 

C.F.R. § 1614.310(g). 

“A plaintiff fails to exhaust her administrative remedies 

when the complaint she files in federal court includes a claim 

that was not raised in the administrative complaint.” Latson v. 

Holder, 82 F.Supp.3d 377, 384 (D.D.C.2015)(citations omitted). 

“This exhaustion requirement is not a ‘mere technicality,’ but 

‘serves the important purposes of giving the charged party 

notice of the claim and narrow[ing] the issues for prompt 

adjudication and decision.’” Id. (quoting Park v. Howard Univ.,

71 F.3d 904, 907 (D.C.Cir.1995). 

With regard to Ms. Williams’ retaliatory removal claim, the 

complaint alleges the following. On April 9, 2012, Ms. Williams 

“filed a formal complaint alleging disability discrimination and 

retaliation based on the December 23, 2011 denial of reasonable 

accommodation and her February 4, 2012 removal.” Id. ¶ 41. Ms. 

Williams alleges that “[m]ore than 120 days have passed since 

the filing of this complaint and there has been no formal action 

or appeal to the Merit Systems Protection Board.” Id. ¶ 3. In 

her surreply, Ms. Williams provided documentation pertaining her 

informal complaint of discrimination that preceded the formal 

April 9, 2012 complaint. Pl.’s Surreply, ECF No. 26-2. This 

documentation indicates that Ms. Williams contacted the EEO 
29 

office on February 6, 2012 regarding the “12/23” denial of 

reasonable accommodation, reprisal for EEO participation in 

December 2010, and termination. Id. On March 7, 2012, the 

Department informed Ms. Williams that her claims for physical 

disability and reprisal based on the December 23, 2011 denial of 

reasonable accommodation for her disability by not providing her 

appropriate time to submit supporting documentation from her 

doctor and for termination had not been resolved informally and 

that she could file a formal complaint. Id. Exhibit C to the 

Department’s motion is Ms. Williams’ second formal complaint of 

employment discrimination, in which she alleges that she was 

terminated in reprisal for her first formal complaint of 

harassment. Def.’s Mot. to Dismiss, ECF No. 20-3 at 18. Exhibit 

D is the Department’s Notice of Acceptance for investigation of 

Ms. Williams’ allegation that she was retaliated against for 

prior EEO activity when she was unjustly terminated from her 

employment. Id. at 22-23. 

This documentation demonstrates that Ms. Williams 

administratively exhausted her retaliation claim. Ms. Williams 

initiated contact with the EEO counselor on February 6, 2012, 

which is within 45 days of the December 23, 2011 denial of 

reasonable accommodation. Ms. Williams filed her formal 

complaint on April 9, 2012, which is within 90 days of the March 

7, 2012 notification that her informal complaint had not been 
30 

resolved. Ms. Williams then filed this lawsuit on November 29, 

2012, which is more than 120 days after she filed her formal 

complaint. Finally, Ms. William’s administrative claim alleged 

reprisal for her prior EEO complaint. 

2. Ms. Williams has stated a claim for retaliation 

under the Rehabilitation Act

“To prove retaliation, the plaintiff generally must establish 

that he or she suffered (i) materially adverse action (ii) 

because he or she had brought or threatened to bring a 

discrimination claim.” Baloch, 550 F.3d at 1198. To survive a 

motion to dismiss a retaliation claim, “all [the] complaint has 

to say” is “the Department retaliated against me because I 

engaged in protected activity.” Rochon v. Gonzalez, 438 F.3d 

1211, 1220 (D.C.Cir.2006)(internal citations omitted); Munro v. 

LaHood, 839 F.Supp.2d. 354, 364 (D.D.C.2012). Ms. Williams 

alleges that she was terminated in retaliation for engaging in 

protected activity. Am. Compl., ECF No. 18 ¶ 47. Contrary to the 

Department’s assertions, Def.’s Reply, ECF No. 24 at 7-9, Ms. 

Williams has sufficiently alleged the predicate EEO activing 

that led to the retaliation. Specifically, on January 18, 2011, 

Ms. Williams contacted an EEO counselor “regarding her nonpromotion, official reprimand, removal of alternative work 

schedule, and performance appraisal.” Am. Compl., ECF No. 18 ¶ 

16. Thereafter, on March 3, 2011, she filed a formal complaint 
31 

in which she alleged “disability discrimination and retaliation 

for requesting reasonable accommodations based on her nonpromotion, official reprimand, removal of alternative work 

schedule, and performance appraisal.” Id. at ¶ 18. On May 13, 

2011, Ms. Williams “amended her formal complaint to include the 

February 11, 2011 reassignment of job duties, April 20, 2011 

denial of reasonable accommodation to telework, and the April 

20, 2011 denial of LWOP.” Id. at ¶ 24. Ms. Williams has 

sufficiently alleged a claim for retaliation because she has 

alleged that she was retaliated against because she engaged in 

protected activity. Accordingly, the Court will DENY the 

Department’s Motion to Dismiss Count 3 of the Amended Complaint. 

V. The Department’s motion for summary judgment is premature 

Although discovery has not yet occurred in this case, the 

Department asserts that no genuine issue of material fact exists 

with regard to Counts 1, 2, or 3, and moves in the alternative 

for Summary Judgment, attaching 23 exhibits to its motion. 

Def.’s Mot. to Dismiss, ECF No. 20-1 at 18. Ms. Williams 

responds by asking the Court to “decline to consider the 

administrative record materials submitted by Department and 

convert Department’s motion to dismiss into a motion for summary 

judgment because Ms. Williams is entitled to de novo review of 

her claim and has not had the benefit of discovery in this 

matter” but nonetheless attaches 11 exhibits to her opposition. 
32 

Pl.’s Opp’n, ECF No. 21 at 4. Ms. Williams further states that 

because no discovery has taken place, it is not possible “for 

Ms. Williams to adequately establish genuine issues of material 

fact necessary to be litigated.” Id. at 7. The Department 

replies that because Ms. Williams did not respond to its 

Statement of Material Facts As to Which There is No Dispute, as 

required by Local Rule h(1), the Court should consider those 

facts admitted. Def.’s Reply, ECF No. 24 at 10. 

 Because both Ms. Williams and the Department have presented 

materials outside of the pleadings, the Court will therefore 

treat the motion as one for summary judgment. White v. Vilsack, 

888 F.Supp.2d 93, 99-100 (D.D.C.2012)(citing Holy Land Found. 

for Relief and Dev. V. Ashcroft, 333 F.3d, 156, 165 (D.C.Cir. 

2003)). 

 The Court has considered the exhibits that the parties have 

filed, some of which appear to be part of the administrative 

proceedings arising out of Ms. Williams’ formal complaints of 

discrimination with the Department, and concludes that because 

discovery has not yet been undertaken, the record has not been 

developed enough for there to be a determination of whether 

there are any genuine issues of material fact in this case. The 

Court understands that there have been administrative 

proceedings, but the Rehabilitation Act specifically provides 

for judicial review of allegations of discrimination following 
33 

Ms. Williams’ exhaustion of administrative remedies. See 29 

U.S.C. 794a(a)(1). The Court concludes that the Department’s 

motion for summary judgment is premature, and “declines, in its 

discretion, to entertain the [Department’s] motion for summary 

judgment before allowing for a period for discovery.” White, 888 

F.Supp.2d at 100, Americable Int’l, Inc. v. Dep’t of the Navy et 

al., 129 F.3d. 1271, 1274 (D.C.Cir.1998)(“As we have stated 

before, summary judgment ordinarily “is proper only after the 

plaintiff has been given adequate time for discovery.” First 

Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 

(D.C.Cir.1988); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986)(summary judgment appropriate only “after adequate time 

for discovery”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

257 (1986) (plaintiff must have “a full opportunity to conduct 

discovery”)”). The Court disagrees that Ms. Williams is required 

to respond to the Department’s Statement of Material Facts As to 

Which There is No Dispute before she has had the opportunity to 

engage in discovery. The motion for summary judgment is DENIED

without prejudice. 

VI. Conclusion 

 Upon consideration of the motion, the response thereto, the 

applicable law, the entire record, and for the reasons stated 

above, the Department’s Motion to Dismiss is GRANTED IN PART AND 

DENIED IN PART, and the Department’s Motion for Summary Judgment 
34 

is DENIED without prejudice. Ms. Williams may proceed on her 

claims in Count 2 and Count 3 of the Amended Complaint. Count 1 

is hereby DISMISSED. An appropriate Order accompanies this 

Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 November 30, 2016