1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DENIS BRENDAN DONOVAN, Plaintiff,

v. EARL A. POWELL, III, Defendant

. Civil Action No. 14-741 (CKK)

MEMORANDUM OPINION (October 2, 2014) Plaintiff Denis Brendan Donovan brings this action against Defendant Earl A. Powell, III, in his official capacity as Director of the National Gallery of Art (“NGA”), asserting claims that the NGA discriminated against him in violati on of the Rehabilitation Act, 29 U.S.C. §§ 701, et
seq. Currently before the Court is Defendant’s [9] Motion to Dismiss in Part. As of the date of this Memorandum Opinion, Plaintiff, who is represented by counsel, has not filed a response to Defendant’s motion or sought an extension of tim e in which to do so. Accordingly, the Court will treat Defendant’s motion as conceded. 1 E.g. , Fox v. American Airlines, Inc. , 389 F.3d 1291, 1295-96 (D.C. Cir. 2004). The Court also has cons idered the substance of Defendant’s motion. Upon consideration of the pleadings, 2 the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant’s [9] Motion to Dismi ss in Part. Counts I and IV of Plaintiff’s Complaint shall be considered to the extent that Plaintiff seeks relief for events that are not time barred by the statute of limitations as proposed by Defendant. Counts II and III of Plaintiff’s

1 Pursuant to Local Civil Rule 7(b) and Fede ral Rule of Civil Pro cedure 6(d), Plaintiff was required to respond to Defendant’s motion by no later than August 15, 2014. 2 Compl., ECF No. [1]; Def.’s Mot. to Dism iss in Part, ECF No. [9] (“Def.’s Mot.”).2 Complaint shall be DISMISSED in their entirety on the basis that the events at issue are time barred. Count II also shall be DISMISSED in its entirety for failure to st ate a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Altern atively, these claims are dismissed as conceded. I. BACKGROUND The following facts are taken from the Plaintiff’s Complaint and must be accepted as true for purposes of a motion to dismiss. See Atherton v. D.C. Office of the Mayor , 567 F.3d 672, 681 (D.C. Cir. 2009). Plaintiff was employed as a Sales Store Checker in the NGA’s Gallery Shops from April 1998 to January 2013, when he was terminated. Compl. ¶ 6. In March 2004, Plaintiff first informed Defenda nt that he had epileps y, a disability under 29 U.S.C. § 791(g). Id. ¶ 13. Plaintiff requested a reas onable accommodation to allow his epilepsy medication to be delivered to him at work because the mailbox at his new apartment

was not secure. Id. ¶ 14. When Plaintiff’s supervisor, Ka ren Boyd, denied the request, Plaintiff was able to secure the accommodation af ter contacting the NGA’s EEO Office. Id. ¶¶ 14-15. In early 2006, Plaintiff wa s disciplined for “rude” conduct to customers. Id. ¶¶ 17-19. Several months later, NGA suspended Plaint iff for five days, al leging negligence and insubordination. Id. ¶¶ 20-22. On December 4, 2012, Ms. Boyd allegedly receiv ed a complaint that Plaintiff had made an inappropriate comment of a sexual natu re to a 15-year-old female customer. Id. ¶¶ 9, 11. Plaintiff allegedly told the girl to unfold th e cash she offered as payment because “that’s how you pass money to a stripper.” Id. ¶ 9. Further, Plaintiff alle ges that on December 19, 2012, he commented to a co-worker that a book display in the Gallery store likely was not compliant with the Americans with Disabilities Act. Id. ¶ 25. Plaintiff alleges th at Ms. Boyd later commented in front of Plaintiff that the display was “ not ADA compliant, but they can figure it out.” Id.3 Plaintiff was offended and asked Ms. Boyd, “did you just say that?” Id. ¶ 26. Ms. Boyd responded, “what?” Id. Plaintiff then told Ms. Boyd, “you ba sically just said ‘to hell with the handicapped.’” Id. Ms. Boyd walked away from Plaintiff. Id. Three weeks later, on January 11, 2013, Ms. B oyd issued a proposed termination letter, recommending that Plaintiff be terminated based on the December 4, 2012 complaint. Id. ¶¶ 9, 27. Plaintiff alleges that Ms. Boyd fabricated the basis for Plaintiff’s term ination in retaliation for his “EEO activity that began in March, 2004, and that had as its most recent occurrence his December 19, 2012, complaint to Ms. Boyd . . . .” Id. ¶ 12. On January 28, 2014, a Final Agency Decision rejecting Plaintiff’s EEO claims of discrimination was issued and Plaintiff received the Decision se veral days later. Id. ¶ 2. On April 29, 2014, Plaintiff filed suit against Defendant in this Court. Plaintiff asserts four specific claims in his Complaint: (1) he was subject to disparate treat ment in violation of 29 C.F.R. § 1630.4 (“Count I”); (2) he was subject to disparate treatm ent in violation of 29 C.F.R. § 1630.7 (“Count II”); (3) NGA failed to reasonably accommodate hi m in violation of 29 C.F.R. § 1630.12 (“Count III”); and (4) he was subject to reta liation and coercion in violation of 29 C.F.R. § 1630.12 (“Count IV”). In response to this Complaint, Defendant fi led its [9] Motion to Dismiss in Part, contending that Counts II and III of the Complaint should be dismissed in their entirety based on Plaintiff’s failure to state a claim, an d Counts I and IV should be dismissed to the extent that they are based on time-barred acts. Plaintiff filed no respons e to Defendant’s Motion to Dismiss in Part and, accordingly, the Court shall treat the motion as conceded. II. LEGAL STANDARD Fed. R. Civ. P. 12(b)(6) requires that a compla int contain “‘a short and plain statement of the claim showing that the pleader is entitled to re lief,’ in order to ‘give the defendant fair notice4 of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus , 551 U.S. 89, 93 (2007) ( per curiam ). Although “detailed fact ual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furn ish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 555. “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factua l enhancement.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 557). Rather, a complaint must contain sufficient factual matter, acce pted as true, to “state a claim to relief that is plausible on its face.” Twombly , 550 U.S. at 570. “A claim has facial pl ausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn fr om well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig. , 854 F. Supp. 914, 915 (D.D.C. 1994). Further, the Court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which th e court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997). “This includes documents . . . that are re ferred to in the complaint and [] central to the plaintiff’s claim.” Long v. Safeway, Inc. , 842 F. Supp. 2d 141, 144 (D.D .C. 2012) (internal alteration and citation omitted).5 III. DISCUSSION A. Statute of Limitations for Rehabilitation Act claims Defendant argues that Plaintiff claims re lated to his 2004 reasona ble accommodation and his 2006 suspension are time barred. Def.’s Mot. at 5-6. Defendant asserts that “claims under the [Rehabilitation] Act are subject to the genera l six-year statute of limitations governing claims against the United States.” Id . at 5 (citing Pailes v. U.S. Peace Corps. , 783 F. Supp. 2d 1, 9 (D.D.C. 2009), aff’d , No. 09-5400, 2010 WL 2160012 (D.C. Cir. Mar. 27, 2010)). While Defendant is correct that the six-year statute of limitations applies to all actions against the United States, more specific and restrictive statutes of limitations have b een applied to actions brought under the Rehabilitation Act. 3 Given that the issue of the applicable statute of limitations has not been fully briefed by either pa rty, the Court shall not determine which statute of limitations applies to the instant action at this juncture. Further, give n that the Complaint does not specify a timeline of acti ons taken by Plaintiff following his termination, including the

3 While the Rehabilitation Act does not contain a statute of limitations, courts in this jurisdiction have analyz ed claims brought under the Act by applying statutes of limitations borrowed from state law. See, e.g., Adams v. District of Columbia , 740 F. Supp. 2d 173, 184 (D.D.C. 2010) (holding that state law applied when determining the appropriate statute of limitations and borrowing the District of Columbia ’s three-year statute of limitations for personal injury claims when analyzing some Rehabilitation Act claims); Gordon v. District of Columbia , 605 F. Supp. 2d 239, 245 (D.D.C. 2009) (same); Long v. Howard Univ. , 512 F. Supp. 2d 1, 12 (D.D.C. 2007) (same); Stewart v. District of Columbia , Civ No. 04-1444, 2006 WL 626921, at *9-*11 (D.D.C. Mar. 12, 2006) (collecting cases); but see Jaiyeola v. District of Columbia , 40 A.3d 356, 368-69 (D.C. 2012) (holding that the District’s Human Rights Act is more analogous to the federal Rehabilitation Act than the District’s law regarding personal injury claims and, accordingly, applying the HRA’s one-year statute of limitations to a Reha bilitation Act claim). Further, other federal statutes may also provide guidance. See 29 U.S.C. § 791(f) (applying standards from Title I of the ADA to compla ints alleging nonaffirmative action employment discrimination under the Rehabilitation Act); 28 U.S.C. § 1658(a) (settin g out a four-year statute of limitations for civil actions arising under an Act of Congr ess enacted after December 1, 1990 with no specified statute of limitations); see also Koch v. White , 967 F. Supp. 2d 326, 332 (D.D.C. 2013) (applying the Title VII time re strictions to an action brought under the Rehabilitation Act).6 apparent filing of EEO claims for discrimination, that may be pertinent to a timeliness argument, the Court shall proceed with setting a schedule for discovery and shall not foreclose Defendant from making additional arguments on this issue at a later time. See Compl. ¶ 2. However, the Court for the purposes of ruling on the instant mo tion shall analyze Plaintiff’s claims applying the six-year period, as advocated by Defendant, which has the effect of being the most inclusive of Plaintiff’s claims as compared to the other potentially applicable st atutes of limitations.
B. Counts I and IV: Disparate Treatment and Retaliation Claims Defendant argues that Counts I and IV should be dismissed to the extent that they are based on time-barred acts. Def.’s Mot. at 6. Sp ecifically, Plaintiff appears to seek relief for his 2004 request for a reasonable accommodation and his 2006 discipline and suspension, as well as for the December 2012 incidents and his termination from employment in January 2013. See Compl. ¶¶ 13-24. The 2004 request for a r easonable accommodation, that ultimately was granted, and the 2006 discipline and suspension fa ll well outside of the six-year period adopted by the Court for the purposes of th is analysis and, thus, are time barred. Accordingly, the Court finds that Plaintiff’s claims for relief under Count s I and IV as related to his 2004 request for a reasonable accommodation and his 2006 discipline and suspension are time barred. However, Plaintiff may still seek relief under Counts I and IV regarding his January 2013 termination and the incidents that occurred in December 2012. C. Count II: Disparate Treatment Plaintiff alleges that “NGA em ploys standards, criteria, or methods of administration, which were not job-related and consistent with business necessity, that had the effect of discriminating on the basis of ep ilepsy, or that perpetuated discrimination of Ms. Boyd, Mr. Krol, and other supervisory employees at NGA, w ho are subject to the control of the Defendant7 of NGA.” Compl. ¶ 34. Plainti ff does not provide any additional information under this claim, leaving Defendant and the Court to discern the specific standards, criteria, or methods of administration to which he objects. Defenda nt notes, and the Court agrees, “the only accommodation request identified by [Plaintiff] was in fact provided: delivery of his medication to the Gallery mailroom.” Def.’s Mot. at 4. The Court already has determined that this specific event is time barred and is unable to discern a ny other event in the Complaint to serve as the basis for Count II. Defendant presents as a second basis to dismi ss Count II that Plaintiff has failed to state a claim and instead, has provided a “conclusory al legation [that] amounts to nothing more than a ‘formulaic recitation of the elements’ of the claim . . . .” Id. The Court agrees that Plaintiff has provided only a recitation of legal conclusions without any factual support and, accordingly, Count II also should be dismissed for failure to state a claim upon which reli ef can be granted. See, e.g., Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (While the Court must accept all allegations in the complaint as true at the motion to dismiss stage, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”); Lucas v. District of Columbia , 683 F. Supp. 2d 16, 19-20 (D.D.C. 2010) (granting a motion to dismiss on a Rehabilitation Act claim in which Plaintiff’s complaint included only conclusory, boilerplate language regarding “a policy, custom or practice” employed by Defendant). The Court further notes that Plainti ff has conceded that this Count can be dismissed. Accordingly, Count II of Plaintiff’s Complaint is dismissed on the grounds that is time barred and on the basis that Plaintiff failed to plead sufficient fact s to state a plausible claim for relief.8 D. Count III: Failure to Reasonably Accommodate Finally, Defendant argues that Count III of the Complaint should be dismissed in its entirety on two bases. First, Defendant argues that Plaintiff’s request for accommodation is time barred because Plaintiff only made one request in March 2004. Def.’s Mo t. at 5. Further, Defendant argues that Plai ntiff cannot make out a prima facie case for failure to reasonably accommodate because Plaintiff’s reques t for accommodation was granted. Id. The Court agrees as to the first basis for a dismissal of this Count. Plaintiff alleges that in March 2004 he disc losed to Defendant that he suffered from epilepsy after he was told by Ms. Boyd, his second line supervisor, that he could not have his anti-seizure medication delivered to him at wor k. Compl. ¶¶ 8, 13-14. Plai ntiff sought to have his medication sent to work because the ma ilbox at his apartment could not securely accommodate the prescription medications. Compl. ¶ 14. Plaintiff then sought assistance from Lindsay Patterson, NGA’s EEO O fficer, who “arranged it so that [Plaintiff] could safely and timely receive his anti-seizure medi cations by mail while at work.” Co mpl. ¶ 15. It is clear that the request for a reasonable accommodation in 2 004 is time barred and, accordingly, the Court does not need to reach the second ground for dismissal asserted by Defendant. Accordingly, the Court also shall dismiss Count III on the basis that Defendant’s alleged failure to provide Plaintiff reasonable accommodati on is time barred under the six- year time period adopted by the Court for the purposes of this analysis. IV. CONCLUSION For the foregoing reasons, the Court GRANTS De fendant’s [9] Motion to Dismiss in Part as conceded. Further, Counts I and IV of Plai ntiff’s Complaint are DI SMISSED to the extent that Plaintiff seeks relief for his 2004 reque st for a reasonable accommodation and his 2006 discipline and suspension because these events are time barred under the statute of limitations.9 Further, Counts II (dispa rate treatment) and III (failure to reasonably accommodate) of Plaintiff’s Complaint are DISMISSED in their entirety on the basis that the events at issue are time barred. Count II (disparate treatment) also is DISMISSE D in its entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure 12 (b)(6). Accordingly, th e Counts I (disparate treatment) and IV (retaliation and coercion) of Plaintiff’s Complaint remain to the extent that he seeks relief for his January 2013 termination and the incidents that occu rred in December 2012. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge