UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LUIGI BUITRAGO,

Plaintiff, 

v.

DISTRICT OF COLUMBIA, et al.,

Defendant.

No. 18-cv-261(EGS)

MEMORANDUM OPINION

Plaintiff Luigi Buitrago (“Mr. Buitrago”) brings this 

action against the District of Columbia (the “District”) and 

Muriel Bowser, Mayor of the District of Columbia (“Mayor 

Bowser”) alleging discrimination on the basis of national origin

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 

42 U.S.C. § 2000e-2 et seq.; discrimination in violation of the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, et 

seq.; retaliation in violation of Title VII and the ADA; and 

breach of contract. Pending before the Court is the District’s 

Motion to Dismiss. Upon careful consideration of the motion, the 

opposition, the reply thereto, the applicable law, and the 

entire record herein, the Court GRANTS IN PART and DENIES IN 

PART the District’s Motion to Dismiss. 
2

I. Background

A. Factual Background

The following facts are alleged in the Third Amended 

Complaint and the documents incorporated by reference therein, 

which the Court assumes are true for the purposes of deciding 

this motion and construes in Mr. Buitrago’s favor. See Brown v. 

Sessoms, 774 F.3d 1016, 1020 (D.C. Cir. 2014); see also Sparrow 

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 

2000)(“[W]e must treat the complaint's factual allegations as 

true.”).

Mr. Buitrago began working for the District of Columbia’s

Department of Health (“DOH”), a subdivision of the District of 

Columbia, in October 2005 as a Public Health Analyst. Third Am. 

Compl., ECF No. 29 at 2 ¶ 13.1 He states that he is a “Hispanic 

male of Panamanian origin.” Third Am. Compl., ECF No. 29 at 2 ¶

12. 

On July 25, 2006, Mr. Buitrago suffered an on-the-job 

injury, resulting in a diagnosis of a bulged disk and strained 

back. Id. at 2 ¶¶ 17, 24. Mr. Buitrago alleges that this injury 

continues to impact his everyday life, including a loss of 

mobility in his left leg, resulting in reliance on a wheelchair 

 

1 When citing electronic filings throughout this Opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document.
3

and/or a cane, frequent falls when attempting to move, an 

inability to lift anything heavier than ten pounds, inability to

run resulting in weight gain, excessive and chronic pain if he 

is unable to receive physical therapy treatments, and side 

effects from pain medication. Id. at 2-3 ¶ 25, 24. Mr. 

Buitrago’s injury required multiple surgeries, and following a 

surgery in September 2008, he was placed on disability for an 

entire year. Id. at 3 ¶ 30.

Mr. Buitrago was laid off in January 2012 while receiving 

workers’ compensation benefits due to a reduction in force, and 

later filed a charge of discrimination on basis of disability 

and national origin with the Equal Employment Opportunity 

Commission (“EEOC”) in or around November 2012 (“2012 EEOC 

Charge”). Id. at 3 ¶¶ 32-33. The 2012 EEOC Charge was resolved 

through a confidential January 2013 Settlement Agreement between 

DOH, the American Federation of Government Employees, Local 2978 

(local union representing Mr. Buitrago), and Mr. Buitrago (“2013 

Settlement Agreement”). Pl.’s Ex., ECF No. 1-1. In return for 

Mr. Buitrago withdrawing his 2012 EEOC Charge, the 2013 

Settlement Agreement required that Mr. Buitrago (1) be 

reinstated to a “Grade 12, Step 10 term position within the 

Community Health Administration [(“CHA”)];” (2) be paid “thirty 

thousand dollars”; (3) have his leave restored; (4) be provided

with the “ergonomic workstation that was in place for his use” 
4

prior to his dismissal and that “meets the requirements set by 

Mr. Buitrago’s physician”; and (5) be provided with a “flexible 

work schedule that adhere[d] to the existing DC/DOH policies to 

facilitate medical treatment or physical therapy related to [Mr. 

Buitrago’s 2006] on-the-job injury.” Id. at 2 ¶ 3. The 

Settlement Agreement also provided for the payment of certain 

attorney’s fees. Id.

Upon his return to work in February 2013, Mr. Buitrago was 

placed under a new supervisor who was an African-American 

female, as were all of his co-workers. Third Am. Compl., ECF No. 

29 at 3 ¶ 38. Mr. Buitrago alleges that his new supervisor was 

informed of the 2013 Settlement Agreement and that she violated 

the agreement by “by not reasonably accommodating a flexible 

work schedule for [him] so he could attend physical therapy 

appointments.” Id. at 3 ¶¶ 39, 40. Mr. Buitrago alleges his 

supervisor did provide a flexible work schedule to his coworker, who also had a reasonable accommodation. Id. at 4 ¶ 42.

He also alleges that the District failed to provide him with a 

“reasonable accommodation in the form of an ergonomic 

workstation . . . over a period of four and a half years.” Id.

at 7 ¶ 93. 

On June 5, 2015, Mr. Buitrago filed a second Charge of 

Discrimination with the EEOC (“2015 EEOC Charge”). In that 

charge, he alleged discrimination based on sex, national origin, 
5

retaliation and disability. Def.’s Ex. 1, ECF No. 19-2 at 1. He 

stated that the discrimination began on November 13, 2014, that 

the latest act occurred on June 8, 2015, and was continuing in 

nature. Id. He referred to the settlement of his previous EEO 

claim and alleged, among other things, that his supervisor was 

not reasonably accommodating his flexible work schedule and 

physical therapy appointments. Id.

Subsequent to filing the 2015 EEOC Charge, in October 2015, 

Mr. Buitrago informed the Deputy Director for Programs at CHA

that “his ADA accommodations had been requested but not 

fulfilled as required by the [2013 Settlement Agreement].” Third 

Am. Compl., ECF No. 29 at 4 ¶ 50. After being told that there 

was no record of him ever filing the paperwork, he “filed the 

requisite paperwork” and then met with a Human Resources officer 

who noted that his ADA request for “protected leave and flex 

schedule” should be approved per the terms of the 2013 

Settlement Agreement. Id. at 4 ¶¶ 50-55. Mr. Buitrago alleges 

that at some point in January 2016, he was granted leave for his 

medical appointments, and his flexible schedule was approved. 

Id. at 5 ¶ 58. However, on January 28, 2016, Mr. Buitrago 

received an email informing him that “his physical therapy 

sessions were no longer paid for without [providing an] 

explanation,” and on January 29, 2016, he was “instructed to use 

his personal leave, not administrative leave, for his physical 
6

therapy.” Id. at 5 ¶¶ 59, 61. On February 10, 2016, Mr. Buitrago 

met with the “Associate Director of Policy and Compliance in the 

[District of Columbia Human Resource Department (“DCHR”)] as the 

EEO[] officer for DCHR,” and reported the issues he was having 

with his superiors. Id. at 5 ¶ 63. Mr. Buitrago was then 

temporarily assigned to a different division, and the District 

hired a consultant to perform his duties at his prior division. 

Id. at 5 ¶ 65. Mr. Buitrago was then returned to his prior 

division because the agency was planning a Reduction in Force 

(“RIF”). Id. After an investigation, DCHR provided Mr. Buitrago 

with an Exit Letter closing the matter and informing him that he 

had the right to submit a formal complaint to the Office of 

Human Resources (“OHR”) within fifteen days. Id. at 5 ¶ 68; DCHR 

Exit Letter and Notice of Right to File a Formal Complaint, 

Pl.’s Ex., ECF No. 1-1 at 9-10. 

In October 2016, a union representative informed Mr. 

Buitrago that his employment was “term” rather than “career.” 

Third Am. Compl., ECF No. 29 at 5 ¶ 69. Mr. Buitrago alleges 

that the 2013 Settlement Agreement states that he was to be 

returned to a career position. Id. at 5 ¶ 72. After finding out 

that he was a “term” employee, instead of a “career” employee, 

Mr. Buitrago had to re-apply for his job. Id. at 6 ¶ 73. On May

19, 2017, Mr. Buitrago was sent a termination letter stating 

that the District would not renew his “Term Appointment,” and he 
7

was placed on “administrative leave until his termination became 

effective September 30, 2017.” Id. at 6 ¶¶ 74,76.

On November 7, 2017, the EEOC issued a notice of right to 

file suit based on his 2015 EEOC Charge. EEOC Dismissal and 

Notice of Rights Letter, Pl.’s Ex., ECF No. 1-1 at 12 (“EEOC 

Notice”).

B. Procedural History

Mr. Buitrago timely filed his original Complaint on 

February 5, 2018. See Compl., ECF No. 1. The District filed a 

Notice indicating insufficient service under Federal Rule of 

Civil Procedure 4(j) on June 27, 2018. See Notice, ECF No. 8. On 

July 12, 2018, Mr. Buitrago filed an Amended Complaint. See Am. 

Compl., ECF No. 11. The District moved to dismiss the Amended 

Complaint on July 31, 2018. See generally Def.’s Mot. to 

Dismiss, ECF No. 12. On August 21, 2018, Mr. Buitrago filed both 

his First Memorandum in Opposition to Defendant’s Motion, see

Pl’s Opp., ECF No. 15, and a Motion to correct his Amended 

Complaint. See Pl’s Mot. to Am., ECF No. 14.

With the Court’s leave, see Min. Order of Sept. 5, 2018, 

Mr. Buitrago filed a Second Amended Complaint on that same day. 

See Second Am. Compl., ECF No. 17. The District filed its Second 

Motion to Dismiss on October 1, 2018. See Second Def.’s Mot. to 

Dismiss, ECF No. 19. On October 31, 2018, Mr. Buitrago then 

filed his Second Memorandum in Opposition, see Pl.’s Opp. 2, ECF 
8

No. 22, to which the District filed its Reply on November 7, 

2018. See Def.’s Reply, ECF No. 23. On February 7, 2019, Mr. 

Buitrago’s attorney informed the Court that he had been 

indefinitely suspended from the practice of law and that Mr. 

Buitrago had attained new counsel. See Notice of Withdrawal as 

Pl.’s Counsel and Notice of Appearance of New Counsel, ECF No. 

24. On May 23, 2019, the Court denied as moot the District’s 

October 1, 2018 Second Motion to Dismiss and allowed Mr. 

Buitrago to file an amended compliant to address the 

deficiencies identified by the District. See Min. Order of May

23, 2019. Mr. Buitrago filed his Third Amended Complaint on June 

24, 2019, see Third Am. Compl., ECF No. 29, and the District

filed its Motion to Dismiss that Complaint on July 8, 2019. See

Def.’s Mot. to Dismiss, ECF No. 30. Mr. Buitrago filed his 

Memorandum in Opposition on July 29, 2019, see Pl.’s Opp’n., ECF 

No. 32, and the District filed its Reply on August 12, 2019. See

Def.’s Reply, ECF No. 33. The District’s motion is ripe and 

ready for adjudication.

II. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6) “tests the legal sufficiency of a complaint.” Browning 

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court will 

dismiss a claim if the complaint fails to plead “enough facts to 

state a claim for relief that is plausible on its face.” Bell 
9

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint 

must contain “a short and plain statement of the claim showing 

that the pleader is entitled to relief,” Fed. R. Civ. P. 

8(a)(2), “in order to give the defendant fair notice of what the 

. . . claim is and the grounds upon which it rests,” Twombly, 

550 U.S. at 555 (internal quotation marks and citations 

omitted). 

A complaint survives a Rule 12(b)(6) motion only if it 

“contain[s] sufficient factual matter, accepted as true, to 

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

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

550 U.S. at 570). A claim is facially plausible “when the 

plaintiff pleads factual content that allows the court to draw 

[a] reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. A complaint alleging facts which are 

“‘merely consistent with’ a defendant’s liability . . . ‘stops 

short of the line between possibility and plausibility of 

entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

III. Analysis

In its motion to dismiss, the District argues that: (1) 

“Mayor Bowser is not a proper party to this matter”;2 (2) Mr. 

 

2 Mr. Buitrago concedes to “removing Mayor Bowser from the 

instant matter . . . .” Pl.’s Opp’n. 3, ECF No. 32 at 2. 

Accordingly, the Court GRANTS Defendant’s Motion to Dismiss as 

to the removal of Mayor Bowser as a defendant in this action.
10

Buitrago “has not properly alleged an adverse employment

action”; (3) Mr. Buitrago’s “failure to accommodate claim fails 

because: (i) he has not alleged a disability within the meaning 

of the ADA, and (ii) he failed to exhaust his administrative 

remedies for any such claim”; (4) Mr. Buitrago “has not alleged 

a causal nexus between any protected activity and any allegedly 

retaliatory act” to support a retaliation claim; and (5) Mr. 

Buitrago’s “breach of contract claim fails because: [i] it is 

untimely; [ii] he cannot prove a breach; and [iii] any such 

claim is barred by the D.C. Comprehensive Merit Personnel Act 

(“CMPA”)” See Def.’s Mot. to Dismiss, ECF No. 30 at 1.

Mr. Buitrago, in his response, argues that: (1) he 

sufficiently alleged national origin discrimination by alleging 

that: “[i] he [was] the only individual of Panamanian origin in 

his department [and] [ii] [he] was treated differently from his 

female African-American colleagues due to his national origin 

because he was prohibited from taking a flexible work schedule,”

Pl.’s Opp’n., ECF No. 32 at 4; (2) he properly pled an adverse 

employment action because he was terminated, id. at 5; (3) he 

sufficiently alleged a disability because his back injury 

interfered with the ability to work, id. at 6; and (4) his 

retaliation claim is timely because the retaliatory acts were 

continuous in nature and the statutory window was not tolled 

until he fully and unequivocally realized he was experiencing 
11

retaliatory acts, id. at 7.

A. Mr. Buitrago has stated a claim for employment 

discrimination on the basis of national origin.

Under Title VII, it is unlawful for an employer “to 

discriminate against any individual with respect to [his]

compensation, terms, conditions, or privileges of employment, 

because of [his] race, color, religion, sex, or national 

origin.” 42 U.S.C. § 2000e-2(a)(1). To survive a motion to 

dismiss, Mr. Buitrago must allege “two essential elements: 

(i)[he] suffered an adverse employment action (ii) because of 

[his] race, color, religion, sex, national origin, age, or 

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

Cir. 2008). “To prevail on a motion to dismiss, it is not 

necessary to establish a prima facie case.” Greer v. Bd. of Trs. 

of the Univ. of the D.C., 113 F. Supp. 3d 297, 310 (D.D.C. 2015) 

(citing Gordon v. U.S. Capitol Police, 778 F.3d 158, 162 (D.C. 

Cir. 2015)). Nonetheless, Mr. Buitrago “must allege facts that, 

if true, would establish the elements of each claim.” Id. 

(citation and internal quotation marks omitted).

The District argues that the denial of Mr. Buitrago’s 

request for a flexible work schedule does not amount to an 

adverse employment action because “he has not alleged that his 

work schedule, under which his workday ended at 6:00 PM, 

tangibly or immediately affected the terms or conditions of his 
12

employment.” Def.’s Mot. to Dismiss, ECF No. 30 at 15. Mr. 

Buitrago argues that he has adequately alleged an adverse 

employment action because his employment was terminated. Pl.’s 

Opp’n, ECF No. 32 at 5. The District responds that: (1) Mr. 

Buitrago does not claim that these acts occurred because of his 

national origin; and (2) he has not exhausted his administrative 

remedies for his termination. Reply, ECF No. 33 at 3.

The Court will first consider whether Mr. Buitrago has 

adequately alleged an adverse employment action as a result of 

the denial of his request for a flexible work schedule. Although 

Mr. Buitrago does not specifically respond to this argument in 

his opposition brief, the Court will consider whether he has 

adequately alleged such a claim in his Third Amended Complaint. 

See Washington All. of Tech. Workers v. United States Dep't of 

Homeland Sec., 892 F.3d 332, 345 (D.C. Cir. 2018) (“a party may 

rest on its complaint in the face of a motion to dismiss if the 

complaint itself adequately states a plausible claim for 

relief.”).

To state a viable Title VII claim, the plaintiff must 

allege that he suffered an adverse employment action. Douglas v. 

Donovan, 559 F.3d 549, 551-52 (D.C. Cir. 2009). “An adverse 

employment action is a significant change in employment status, 

such as hiring, firing, failing to promote, reassignment with 

significantly different responsibilities, or a decision causing 
13

significant change in benefits.” Id. at 552. “For employment 

actions that do not obviously result in a significant change in 

employment status . . . an employee must go the further step of 

demonstrating how the decision nonetheless caused such an 

objectively tangible harm.” Id. at 553.

The Court is persuaded that Mr. Buitrago has sufficiently 

alleged an adverse employment action because, giving Mr. 

Buitrago the benefit of all inferences that can be derived from 

the alleged facts, see Kowal v. MCI Comm’cns Corp., 16 F.3d 

1271, 1276 (D.C. Cir. 1994), he has alleged that the District

violated the 2013 Settlement Agreement by denying his request 

for a flexible work schedule. Third Am. Compl., ECF No. 29 at 3 

¶ 40. In the 2013 Settlement Agreement, Mr. Buitrago agreed to 

withdraw his 2012 EEOC Charge in exchange for DOH agreeing to 

take a number of actions including: (1) reinstatement to a 

“Grade 12, Step 10 term position within” CHA; (2) payment of

$30,000; (3) leave restoration; (4) payment of attorney’s fees, 

(5) being provided with the “ergonomic workstation that was in 

place for his use” prior to his dismissal and that “meets the 

requirements set by Mr. Buitrago’s physician”; and (6) being

provided with a “flexible work schedule that adhere[d] to the 

existing DC/DOH policies to facilitate medical treatment or 

physical therapy related to [Mr. Buitrago’s 2006] on-the-job 

injury.” Pl.’s Exhibit, ECF No. 1-1 at 2 ¶ 3. Even if the 
14

District’s violation of the 2013 Settlement Agreement does not 

“obviously result in a significant change in employment status,” 

it certainly caused “an objectively tangible harm” because “the 

alleged harm is not unduly speculative” and is not “difficult to 

remedy.” Douglas, 559 F.3d at 553. There is nothing speculative 

about the alleged harm—it is DOH’s violation of one of the terms 

of the 2013 Settlement Agreement. And the remedy is not 

difficult—it would have been to provide him with the flexible 

work schedule. The District’s argument, as well as the cases 

upon with the District relies, therefore miss the point.

Accordingly, Mr. Buitrago’s allegations are sufficient to 

withstand the District’s motion to dismiss because they “state a 

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

at 678 (internal quotation marks and citation omitted).

Next, the Court addresses Mr. Buitrago’s argument that he 

has adequately alleged an adverse employment action because his 

employment was terminated. Pl.’s Opp’n, ECF No. 32 at 5. The 

District responds to this argument as follows: (1) Mr. Buitrago 

does not claim that he was terminated because of his national 

origin; and (2) he has not exhausted his administrative remedies 

for his claim of discrimination based on termination. Def.’s 

Reply, ECF No. 33 at 3.

The Court disagrees with the District that Mr. Buitrago 

does not claim that he was terminated because of his national 
15

origin because he specifically alleges that his discharge was 

due to national origin discrimination. Third Am. Compl., ECF No. 

29 at 6 ¶ 78. The Court agrees, however, that Mr. Buitrago has 

not exhausted his administrative remedies with regard to his 

termination.

Before commencing an action based on Title VII in federal 

court, a plaintiff must first exhaust his administrative 

remedies by filing a timely charge of discrimination with the 

EEOC. See Lewis v. City of Chicago, Ill., 560 U.S. 205, 210 

(2010). The lawsuit following the EEOC charge is “limited in 

scope to claims that are like or reasonably related to the 

allegations of the charge and growing out of such allegations.” 

Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995), cert. 

denied, 519 U.S. 811 (1996). Specifically, a plaintiff’s claims 

“must arise from the administrative investigation that can 

reasonably be expected to follow the charge of discrimination.” 

Id. (citing Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 

(4th Cir. 1981)).3

Here, the EEOC charge, dated June 9, 2015, does not mention 

Mr. Buitrago’s termination as he was not terminated until 

September 30, 2017. Mr. Buitrago has not alleged that he amended

his 2015 charge to include his termination nor that he filed a 

 

3 The Court applies this test for the reasons explained supra at 

29-31.
16

subsequent charge after learning in May 2017 that he would be 

terminated effective September 30, 2017. Attached to Mr. 

Buitrago’s original Complaint is a letter from the EEOC dated 

October 11, 2017, in which it gave Mr. Buitrago the opportunity 

to provide additional information relevant to his allegations, 

but he has not alleged that he provided information to the EEOC 

regarding his termination. Pl.’s Ex., ECF No. 1-1 at 11. Since 

the “administrative investigation that can reasonably be 

expected to follow the charge of discrimination,” Park, 71 F.3d 

at 907, could not have included an investigation of his 

termination, he has not exhausted his administrative remedies as 

to an allegation that he was terminated because of his national 

origin. 

Because Mr. Buitrago has adequately alleged an adverse 

employment action based on the violation of the 2013 Settlement 

Agreement, the Court DENIES the District’s Motion to Dismiss as 

to Mr. Buitrago’s discrimination claim based on national origin 

(Count I).

B. Mr. Buitrago has sufficiently alleged a disability

within the meaning of the ADA and he has exhausted his 

administrative remedies on his failure to accommodate 

claim.

1. Mr. Buitrago has sufficiently alleged a disability

within the meaning of the ADA.

The District argues that Mr. Buitrago has not alleged a 

disability within the meaning of the ADA because: (1) “being 
17

dependent on a walking cane, in itself, does not render a person 

disabled under the ADA”; (2) to the extent his injuries have 

limited his mobility, he has not “show[n] a substantial 

limitation in the major life activity of walking”; and (3) 

“allegations of back pain, without more, are also insufficient 

to plead a disability within the meaning of the ADA. Def.’s Mot. 

to Dismiss, ECF No. 30 at 17. Mr. Buitrago argues that he “has . 

. . alleged a disability because he states that his back injury 

interfered with the ability to work, and the ADA explicitly 

defines work as a major life activity.” See Pl.’s Opp’n, ECF No. 

32 at 6. The District responds that Mr. Buitrago’s “conclusory

allegations regarding his back pain “are not entitled to 

credence at this stage” because he has not “plead specific facts

that, if true, would show that his back injury substantially 

limits him in one or more major life activities.” Def.’s Reply, 

ECF No. 33 at 3.

The ADA prohibits covered employers “from discriminating 

against a qualified individual on the basis of disability in the 

terms, conditions, and privileges of employment.” See Hill v. 

Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 237 (D.C. Cir. 

2018), cert. denied, 139 S. Ct. 1201 (2019) (citing 42 U.S.C. § 

12112(a)) (internal quotation marks and citations omitted). To 

state a failure-to-accommodate claim, a plaintiff must “allege 

facts sufficient to show that (1) he had a disability within the 
18

meaning of the ADA; (2) his employer had notice of his 

disability; (3) he could perform the essential functions of the 

position with reasonable accommodation; and (4) his employer 

refused to make such accommodation.” Hodges v. D.C., 959 F. 

Supp. 2d 148, 153–54 (D.D.C. 2013). The District contests only 

whether Mr. Buitrago has alleged a disability within the meaning 

of the ADA.

A disability is “a physical or mental impairment that 

substantially limits one or more major life activities.” 42 

U.S.C. § 12102(1)(A). “[M]ajor life activities include . . . 

working.” Id. § 12102(2)(A). The statute is clear that “[t]he 

definition of disability . . . shall be construed in favor of 

broad coverage of individuals.” 42 U.S.C. § 12102(4)(A).

Moreover, EEOC regulations provide that “[t]he question of 

whether an individual meets the definition of disability under 

this part should not demand exhaustive analysis.” 29 CFR 

1630.1(c)(4).4

To survive a motion to dismiss on the grounds that he has 

failed to sufficiently allege a disability, Mr. Buitrago must 

allege that he “(1) suffers from an impairment, (2) the 

 

4 “In enacting the [the ADA Amendments Act of 2008], Congress 

expressly delegated authority to the EEOC to issue regulations 

implementing the definition of disability under the ADA.” Badwal 

v. Bd. of Trustees of Univ. of D.C., 139 F. Supp. 3d 295, 309 

n.9 (D.D.C. 2015).
19

impairment limits an activity that constitutes a major life 

activity, and (3) the limitation is substantial.” Badwal v. Bd. 

of Trustees of Univ. of D.C., 139 F. Supp. 3d 295, 308 (D.D.C. 

2015). EEOC regulations define an “impairment” as “[a]ny 

physiological disorder or condition . . . such as . . . 

musculoskeletal.” 29 C.F.R. § 1630.2(h)(1). The regulations also

state that the term “substantially limits shall be construed 

broadly in favor of expansive coverage” and “is not meant to be 

a demanding standard,” Id. § 1630.2(j)(1)(I). “An impairment is 

a disability within the meaning of this section if it 

substantially limits the ability of an individual to perform a 

major life activity as compared to most people in the general 

population. An impairment need not prevent, or significantly or

severely restrict, the individual from performing a major life 

activity in order to be considered substantially limiting. 

Nonetheless, not every impairment will constitute a disability 

within the meaning of this section.” Id. § 1630.2(j)(1)(ii).

Mr. Buitrago alleges that the 2008 injury has caused 

excessive and chronic pain if he is unable to receive physical 

therapy treatments. Third Am. Compl., ECF No. 29 at 2-3 ¶ 25, 

24. He further alleges that his back injury substantially limits 

his major life activity of working. Id. at 7 ¶ 90. In support, 

he alleges that he needs to attend two chiropractor appointments 

and up to three other related appointments per week. Id. at 4, ¶
20

55. In view of the congressional command to “construe[ 

disability] in favor of broad coverage of individuals,” 42 

U.S.C. § 12102(4)(A), the Court is persuaded that Mr. Buitrago 

plead enough factual matter, accepted as true, to state a 

plausible claim that he has a disability within the meaning of 

the ADA. Iqbal, 556 U.S. at 678. Specifically, he has alleged 

that he has a musculoskeletal disorder that limits his ability 

to work because he needs to leave work to attend up to five 

medical appointments each week. Because most people in the 

general population do not need to attend five medical 

appointments per week each week of the year, these allegations 

are sufficient to allege a disability. Cf. Badwal, 139 F. Supp. 

3d at 310 (noting that “[a] member of the general population 

typically does not find eating difficult and is typically able 

to dress by themselves. For plaintiff this is, at least 

occasionally, not the case.”). Furthermore, the statute does not 

require that the impairment “prevent, or significantly or 

severely restrict, the individual from performing a major life 

activity in order to be considered substantially limiting.” 29 

C.F.R. § 1630.2(j)(1)(ii).

The case cited by the District relevant to whether Mr. 

Buitrago’s impairment substantially limits his ability to work, 

Nurridin v. Bolden, 818 F.3d 751, 756 n.4 (D.C. Cir. 2016), is 

distinguishable because the ADA Amendments Act of 2008, which 
21

broadened the definition of disability, see ADA Amendments Act 

of 2008, Pub. L. No. 110–325, 122 Stat. 3553 (2008), were not 

retroactive and accordingly did not affect that case.

2. Mr. Buitrago exhausted his administrative remedies 

on his failure to accommodate claim.

The District argues that Mr. Buitrago did not exhaust his 

administrative remedies on his failure to accommodate claim 

because Count II of his Third Amended Complaint mentions only 

the denial his request for an ergonomic workstation, and the 

2015 EEOC Charge did not include a reference to the ergonomic 

workstation. See Def.’s Mot. to Dismiss, ECF No. 30 at 18. The 

District contends that the “allegations that [Mr. Buitrago] was 

denied an ergonomic workstation as an accommodation for his 

disability is neither like nor reasonably related to the 

allegations in the [2015 EEOC Charge] . . . . [and] [a]n 

investigation of allegations in [the 2015 EEOC Charge] would not 

have reached the decision about whether to give [Mr. Buitrago]

an ergonomic workstation.” Def.’s Motion to Dismiss, ECF No. 30 

at 18-19 (citing Jouanny v. Embassy of France in United States, 

280 F. Supp. 3d 3, 7 (D.D.C. 2017)). Mr. Buitrago does not reply 

to this argument. See generally Pl.’s Opp’n, ECF No. 31; see 

also Def.’s Reply, ECF No. 33 at 4. But “[b]ecause the failure 

to exhaust administrative remedies is an affirmative defense,

the defendant, rather than the plaintiff, ‘bears the burden
22

of pleading and proving it.’” Poole v. United States Government 

Printing Office, 258 F. Supp. 3d 193, 199 (D.D.C. 2017) (quoting 

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).

Before filing a lawsuit under the ADA, a plaintiff must 

exhaust his administrative remedies by filing a charge of 

discrimination with the EEOC within 180 days of the alleged 

unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1).5 As 

explained above, the lawsuit following the EEOC charge is 

“limited in scope to claims that are like or reasonably related 

to the allegations of the charge and growing out of such 

allegations.” Park, 71 F.3d at 907. As recently explained by 

Judge Mehta:

At a minimum, the claim must arise from the 

administrative investigation that can 

reasonably be expected to follow the charge of

discrimination. And, although the exhaustion 

requirement is not meant to place a heavy 

technical burden on an employee, the 

requirement of some specificity in the charge 

is not a mere technicality. In short, a vague 

or circumscribed EEOC charge will not satisfy 

the exhaustion requirement for claims it does 

not fairly embrace.

 

5 The ADA does not include its own statute of limitations, but 

adopts the procedures set forth in Title VII. 42 U.S.C. § 

12117(a) (“The powers, remedies, and procedures set forth in 

sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this 

title shall be the powers, remedies, and procedures this 

subchapter provides . . . to any person alleging discrimination 

on the basis of disability in violation of any provision of this 

chapter.”). 
23

Jouanny, 280 F. Supp. 3d at 6-7 (internal quotation marks, 

brackets, and citation omitted).6

The Court is persuaded that the denial of Mr. Buitrago’s 

request for an ergonomic work station is “reasonably related to 

the allegations of the [2015 EEOC Charge].” Park, 71 F.3d at 

907. The District accurately points out that the 2015 EEOC 

charge does not specifically mention the denial of his request 

for an ergonomic workstation. However, the District does not 

acknowledge that the charge states that Mr. Buitrago “was placed 

in his current position as a result of a settlement of [his]

previous EEO claim.” ECF No. 19-2 at 1. In the settlement of 

that claim, DOH agreed to “[p]rovide Mr. Buitrago with the 

ergonomic workstation that was in place for his use . . . and 

meets the requirements set by [his] physician.” Pl.’s Ex., ECF 

No. 1-1 at 2 ¶ 3(e). Accordingly, it would have been reasonable 

for the administrative investigation of his charge to have 

included an inquiry into his employer’s compliance with the 

terms of the 2013 Settlement Agreement. See Park, 71 F.3d at 

907. Mr. Buitrago’s charge is therefore distinguishable from 

that of the plaintiff in Jouanny, where the Court found that she

had not exhausted her administrative remedies for a claim of 

 

6

 The Court applies this test for the reasons explained supra at 

29-31.
24

retaliation because she did not check the box for “retaliation,” 

did not describe any actions that could be considered 

retaliatory, and provided the date of her termination as the 

latest date of discrimination, concluding that she “offer[ed] 

not even a hint that Plaintiff intended to raise a claim of 

retaliation.” 280 F. Supp. 3d at 7. 

Because Mr. Buitrago adequately alleged a disability within 

the meaning of the ADA and because he exhausted his 

administrative remedies on this claim, the Court DENIES the 

District’s Motion to Dismiss as to Mr. Buitrago’s failure to 

accommodate claim (Count II).

C. Mr. Buitrago has plead plausible allegations of 

retaliation in violation of Title VII and the ADA.

The District argues that the three-year gap between Mr. 

Buitrago’s 2012 EECO Charge and, what it deems the “earliest of 

the allegedly retaliatory acts”—his 2016 transfer to a different 

position—is insufficient to support an inference of a causal 

connection necessary to state a claim for retaliation. Def.’s 

Mot. to Dismiss, ECF No. 30 at 20 (citing Hamilton v. Geithner, 

666 F.3d 1344, 1357 (D.C. Cir. 2012)). Mr. Buitrago does not 

respond to the District’s argument, arguing instead that his 

retaliation claim is timely because he filed this action within 

90 days of his Right to Sue letter. See Pl.’s Opp’n, ECF No. 32

at 7. The District responds that it did not challenge the 
25

timeliness of Mr. Buitrago’s retaliation claim, but instead 

argues that Mr. Buitrago has not “alleged a causal connection 

between his November 2012 EEOC charge and allegedly retaliatory 

acts occurring at least three years later. Def.’s Reply, ECF No. 

33 at 4. The District also argues that Mr. Buitrago cannot amend 

his complaint in his opposition brief to include his 2015 EEOC 

Charge and that even if allegations from the 2015 EEOC Charge 

are reviewed, they should be rejected because he has not 

exhausted the administrative process for his retaliation claims. 

Def.’s Reply, ECF No. 33 at 4.

“To make out a prima facie case of retaliation, a plaintiff

must show that ‘(1) he engaged in protected activity; (2) he was

subjected to an adverse employment action; and (3) there was a 

causal link between the protected activity and the adverse 

action.’” Hamilton, 666 F.3d at 1357 (quoting Woodruff v. 

Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)).“[U]nder some 

circumstances, temporal proximity between an employer’s 

knowledge of protected activity and an adverse personnel action 

may alone be sufficient to raise an inference of causation.”

Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 69 (D.C. Cir. 

2015). However, Mr. Buitrago “need not plead each element of his 

prima facie retaliation case to survive a motion to dismiss.” 

Jackson v. Dist. Hosp. Partners, L.P., No. CV 18-1978 (ABJ), 

2019 WL 3502389, at *5 (D.D.C. Aug. 1, 2019).
26

As an initial matter, the Court rejects the District’s 

argument that Mr. Buitrago seeks to amend his complaint with his 

opposition briefing. Although the District is correct that the 

2015 EEOC charge is not referenced in five of the paragraphs 

supporting Mr. Buitrago’s retaliation claims, he does provide 

factual allegations regarding the 2015 EEOC Charge elsewhere in 

his Third Amended Complaint, and he has incorporated those 

allegations in his retaliation claim. See Third Am. Compl., ECF 

No. 29 at 7 ¶¶ 95-100. At the motion to dismiss stage, the Court 

must construe the operative complaint liberally in Mr. 

Buitrago’s favor, view the factual allegations therein as a 

whole, accept them as true, and grant him the benefit of all 

inferences that can be derived from the alleged facts. See 

Kowal, 16 F.3d at 1276.

Bearing in mind that neither the Supreme Court nor the 

Court of Appeals for the District of Columbia Circuit (“D.C. 

Circuit”) has established a bright-line rule expressing the 

exact length of time sufficient to demonstrate retaliation, See 

Hamilton, 666 F.3d at 1358, and that Mr. Buitrago does not need 

to establish each element of his prima facie case at the motion 

to dismiss stage, the Court is persuaded that his allegations 

are sufficient to state a claim for retaliation.

To support his claim of retaliation under Title VII and the 

ADA, Mr. Buitrago alleges the following in Count III: (1) he 
27

filed a disability and national origin discrimination claim in 

November 2012; (2) he was retaliated against when DOH (i) “was 

required to return staffers to their previous positions, but 

failed to allow [him] to do so” resulting in him being 

“effectively cut off from the opportunity to complete 

substantive work assignments,” and (ii) being forced to apply 

for his previous position; (3) subjected to administrative leave 

prior to his termination on September 30, 2017; and (4) he was 

retaliated against when DOH withdrew authorization for medical 

treatment. Third Am. Compl., ECF No. 29 at 7 ¶¶ 96-99. Count III 

of the Third Amended Complaint incorporates by reference all 

preceding paragraphs. Id. at 7 ¶ 95. The following allegations 

elsewhere in the Third Amended Complaint are also relevant to 

Mr. Buitrago’s retaliation claim: (1) In June 2015, Mr. Buitrago 

filed a second charge of discrimination alleging retaliation, 

id. at 4 ¶ 48; (2) in or around January 28, 2016, he was 

informed that DOH would no longer pay for his physical therapy 

sessions, id. at 5 ¶ 59; (3) between February and June 2016, Mr. 

Buitrago was reassigned to a different division at DOH, id. at 5 

¶ 65; (4) at some point thereafter, Mr. Buitrago was returned to 

his former position, but was not allowed to resume his former 

duties, id. at 5 ¶ 67; (5) at some point thereafter, Mr. 

Buitrago was forced to reapply and compete for his job, id. at 6 

¶ 73; (6) On May 19, 2017, Mr. Buitrago was sent a termination 
28

letter, id. at 6 ¶ 74; (7) Mr. Buitrago was placed on 

administrative leave until the September 30, 2017 effective date 

of his termination, id. at 6 ¶ 76. In sum, Mr. Buitrago alleges 

that beginning approximately seven months after filing his 

charge with the EEOC and while that charge was being 

investigated, he was subjected to the adverse actions described.

He has therefore alleged a temporal proximity that is sufficient 

to withstand the District’s Motion to Dismiss as the 

allegations “state a claim to relief that is plausible on its 

face.” Iqbal, 556 U.S. at 678 (internal quotation marks and 

citation omitted).

Next, the District argues that Mr. Buitrago failed to 

exhaust the administrative process in regard to his retaliation 

claims because “[w]hile the D.C. Circuit has not definitively 

spoken on this issue, ‘most judges in this district have held 

that plaintiffs alleging discrete acts of discrimination or 

retaliation must exhaust the administrative process regardless 

of any relationship that may exist between those discrete claims 

and any others.’” Def.’s Reply, ECF No. 33 at 5 (quoting Rashad 

v. Wash. Metropolitan Area Transit Auth., 945 F. Supp. 2d 152, 

166 (D.D.C. 2013)).

As explained above, before filing a lawsuit under Title VII 

and the ADA, a plaintiff must exhaust his administrative 

remedies, 42 U.S.C. § 2000e-5(e)(1); and, the lawsuit following 
29

the EEOC charge is “limited in scope to claims that are like or 

reasonably related to the allegations of the charge and growing 

out of such allegations.” Park, 71 F.3d at 907.

The D.C. Circuit has not yet decided whether the “like or 

reasonably related” test was overtaken by the Supreme Court’s 

decision in National Railroad Passenger Corp. v. Morgan, 536 

U.S. 101 (2002). See Payne v. Salazar, 619 F.3d 56, 65 (D.C. 

Cir. 2010). In Morgan, the question facing the Court was 

whether, and under what circumstances, a Title VII plaintiff may 

file suit on events that fall outside [the] statutory time 

period” because they occurred more than 180 or 300 days before

the plaintiff filed a charge with the EEOC. 536 U.S. at 105-06.

The Court held that “discrete discriminatory acts are not 

actionable if time barred, even when they are related to acts 

alleged in timely filed charges. Each discrete discriminatory 

act starts a new clock for filing charges challenging that act.”

Id. at 113. Although the D.C. Circuit has not spoken to this 

issue, “[t]he majority of [district judges in this Circuit to 

have done] so have interpreted Morgan to require exhaustion for 

all discrete acts of retaliation after an administrative charge 

is filed, regardless of any relationship that exists between 

those discrete claims and any others,” reasoning that “requiring 

exhaustion of each discrete claim most faithfully reflects 

Morgan and the purpose of the exhaustion doctrine, namely to 
30

give the agency notice of a claim and the opportunity to handle 

it internally so that only claims plaintiff has diligently 

pursued will survive.” Poole, 258 F. Supp. 3d at 201 (internal 

quotation marks and citations omitted). The two cases cited by 

the District—Rashad, 945 F. Supp. 2d 166, and Klotzbach-Piper v. 

Nat’l Railroad Passenger Corp., 373 F. Supp. 3d 174, 186 (D.D.C. 

2019)—adopted this view. “A minority however, have continued to 

recognize an exception to the administrative-exhaustion 

requirement where unexhausted discrimination and retaliation 

claims satisfy the like or reasonably related test” reasoning 

that “the exhaustion doctrine was not intended to become a 

massive procedural roadblock to access to the courts’ and ‘where 

the ends of administrative exhaustion have been served by the 

pursuit of administrative remedies with regard to the subsequent

acts, separate initiation of administrative exhaustion for post

complaint conduct is not required.” Poole, 258 F. Supp. 3d at 

202-203 (internal quotation marks and citations omitted). The 

Court is persuaded that the “like or reasonably related” test 

properly applies here, where Mr. Buitrago seeks to bring 

retaliation claims for discrete acts that occurred after he 

filed his 2015 EEOC Charge.

Applying that test, the Court is persuaded that Mr. 

Buitrago can proceed on his claim that he was retaliated against 

based on the following discrete acts because they are like or 
31

reasonably related to his 2015 EEOC Charge: (1) in or around 

January 28, 2016, he was informed that DOH would no longer pay 

for his physical therapy sessions, id. at 5 ¶ 59; (2) between 

February and June 2016, Mr. Buitrago was reassigned to a 

different division at DOH, id. at 5 ¶ 65; (3) at some point

thereafter, Mr. Buitrago was returned to his former position, 

but was not allowed to resume his former duties, id. at 5 ¶ 67; 

and (4) at some point thereafter, Mr. Buitrago was forced to 

reapply and compete for his job, id. at 6 ¶ 73. Given that Mr. 

Buitrago raised issues regarding his physical therapy sessions 

and that he alleged retaliation that was continuing in nature, 

Pl.’s Ex. 19-2 at 1, these allegations are “like or reasonably 

related” to the 2015 EEOC Charge. However, Mr. Buitrago may not 

proceed on his retaliation claim based on his termination and 

being placed on administrative leave until the effective date of 

his termination. As the Court stated above, since the 

“administrative investigation that can reasonably be expected to 

follow the charge of discrimination,” Park, 71 F.3d at 907, 

could not have included an investigation of his termination, he 

has not exhausted his administrative remedies as to his

allegation that he was terminated in retaliation for engaging in 

protected activity.
32

Accordingly, the Court GRANTS IN PART and DENIES IN PART

the District’s Motion to Dismiss as to Mr. Buitrago’s 

retaliation claim (Count III).

D. Mr. Buitrago’s breach of contract claims related to 

the 2013 Settlement Agreement are timed barred.

Mr. Buitrago alleges that the District breached the terms 

of the 2013 Settlement Agreement for three reasons: (1) failure 

to provide him with a flexible work schedule; (2) failure to 

provide him “with an ergonomic workstation in the four and a 

half years prior to [his] termination”; and (3) disclosing the 

details of the settlement agreement. Third Am. Compl., ECF No. 

29 at 3 ¶ 40, 8 ¶¶ 105, 106. The District argues that: (1) Mr. 

Buitrago’s claim regarding the ergonomic workstation is 

untimely; and (2) any breach caused by the District’s disclosure 

is “a non-starter” because Mr. Buitrago disclosed the agreement 

when he attached it to his complaint in this case. Def.’s Mot. 

to Dismiss, ECF No. 30 at 21. Although Mr. Buitrago does not 

specifically respond to these arguments in his opposition brief, 

the Court will consider whether he has adequately alleged a 

breach of contract claim in his Third Amended Complaint. See

Washington All. of Tech. Workers, 892 F.3d at 345.

Under District of Columbia law, a contract action must be 

brought within three years of the date on which the “right to 
33

maintain the action accrues.” Wright v. Howard Univ., 60 A.3d 

749, 751 (D.C. 2013)(citing D.C. Code § 12–301(7)). An action 

for breach of contract generally accrues at the time of the 

breach. Id.

Here, Mr. Buitrago entered into the 2013 Settlement 

Agreement on January 25, 2013. Pl.’s Ex., ECF No. 1-1 at 5. In 

that agreement, his employer agreed to, among other things, 

provide Mr. Buitrago with: (1) an ergonomic workstation; and (2)

a “flexible work schedule” that would allow him to facilitate 

medical treatment due to his injury. Pl.’s Ex. 1-1 at 2 ¶ 3(e), 

(f). Mr. Buitrago alleges that, upon his return to work in 

February 2013, his new supervisor “violated the terms of the 

[2013 Settlement Agreement] by not reasonably accommodating a 

flexible work schedule [that would allow him to] attend physical 

therapy appointments.” Third Am. Compl., ECF No. 29 at 3 ¶ 40.

Mr. Buitrago also alleges that he was denied the “ergonomic 

workstation [which was required by the 2013 Settlement Agreement 

for] over a period of four and a half years.” Id. at 7 ¶ 93. As 

Mr. Buitrago was terminated in September 2017, his allegation 

that the District failed to comply with these provisions in the 

2013 Settlement Agreement for over four years prior to his 

termination places the earliest breach in 2013.

Mr. Buitrago filed his original complaint with this Court 

on February 5, 2018, but his breach of contract claim accrued,
34

and the three-year limitations period began on the day he 

returned to work in February 2013 and was not provided his 

“flexible work schedule” or “ergonomic workstation.” Wright, 60 

A.3d at 751. Since Mr. Buitrago alleges that the District was in 

breach of the 2013 Settlement Agreement as early as February 

2013, his claim for breach of contract falls outside the 

District’s statute of limitations by almost two full years. See 

Billups v. Lab. Corp. of Am., 233 F. Supp. 3d 20, 24 (D.D.C. 

2017) (holding that the plaintiff's breach of contract claim

accrued on date the defendant transferred the plaintiff’s right

to earn a portion of his annual sales commissions to other coworkers, which took place five years before the action was 

brought). Accordingly, Mr. Buitrago’s breach of contract claim 

regarding the ergonomic work station and a flexible work 

schedule is time barred.

As to Mr. Buitrago’s claim that the District “breached the 

terms of the agreement by disclosing details of the settlement 

in other litigation related to [him],” in addition to he himself 

disclosing the Agreement on the public docket in this case, see

Pl.’s Ex., ECF No. 1-1 at 1-5, Mr. Buitrago has alleged no facts 

to support this allegation such as when this alleged breach 

occurred. See generally Third Am. Compl., ECF No. 29. 

Accordingly, Mr. Buitrago has failed to “state a claim to relief 

that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal 
35

quotation marks and citation omitted). Because the Court has 

determined that Mr. Buitrago’s contract claim is time barred as 

to his “flexible work schedule” and “ergonomic workstation 

claims, and fails to state a claim as to his disclosure claim, 

the Court need not reach the District’s argument that his 

contract claim is barred by the Comprehensive Merit Personnel 

Act. 

Accordingly, the Court GRANTS the District’s Motion to 

Dismiss as to Mr. Buitrago’s breach of contract claim (Count 

IV).

IV. Conclusion

For the reasons set forth above, the Court GRANTS IN PART 

and DENIES IN PART the District’s Motion to Dismiss. The Court 

DISMISSES Mr. Buitrago’s claims against Mayor Bowser, his claim 

for retaliation based on his termination, and breach of contract 

claim. Mr. Buitrago’s remaining claims are (1) discrimination on 

the basis of national origin based on violation of the 2013 

Settlement Agreement; (2) discrimination on the basis of 

disability under the ADA; and (2) retaliation under Title VII

and the ADA as to his claims that (1) DOH would no longer pay 

for his physical therapy sessions; (2) he was reassigned to a 

different division at DOH; (3) he was returned to his former 

position, but was not allowed to resume his former duties; and

(4) he was forced to reapply and compete for his job. A separate 
36

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan 

United States District Judge 

March 3, 2020