                    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.


                                 1
     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.

                                2
     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

                                3
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 “similarly-

situated 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.

                                4
     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.
                                5
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.




                                6
      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-unlawfully-

harmed-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

                                 7
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

                                  8
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

                                  9
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).
                                10
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

                               11
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

                                12
          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


                               13
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


                               14
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

                               15
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]

                               16
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 co-

workers 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

                               17
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[.]

                                18
          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


                               19
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

                               20
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

                               21
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 non-

promotion 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.

                               22
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



                               23
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 –

                               24
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

                               25
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).


                                 26
     “[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

                               27
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

                               28
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

                               29
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 non-

promotion, 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


                               30
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. 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.

                                  31
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

                               32
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

                                33
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




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