                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

 TRINA CONGRESS,

                         Plaintiff,

                         v.                           Case No. 17-cv-907 (CRC)

 DISTRICT OF COLUMBIA,

                         Defendant.

                                      MEMORANDUM OPINION

        Plaintiff Trina Congress was previously employed as a teacher’s aide by the District of

Columbia Public Schools (“DCPS”). Compl. ¶ 11. Following her dismissal in May 2015,

Congress brought suit against the District of Columbia alleging that DCPS had discriminated

against her because of her disability, in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12112; the Rehabilitation Act, 29 U.S.C. § 794; and the District of

Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1402.11. The District has moved to

dismiss Congress’s claims, arguing that she either failed to adequately exhaust her administrative

remedies, failed to file suit within the statute of limitations, or failed to state a plausible claim.

The Court will grant most of the District’s motion, but will deny it solely with respect to

Congress’s hostile work environment claim raised under the Rehabilitation Act.

  I.    Background

        The Court draws the following facts from the allegations in Congress’s complaint and

accepts them as true for purposes of this motion. Congress was hired by DCPS as an Education

Aide (or Teacher’s Aide) on December 5, 2011. Compl. ¶ 11. At the time of her hiring,

Congress had pre-existing nerve damage to her back, feet, shoulder, hands, and hips. Id.

Commencing in September 2013, Congress’s supervisor, Abdullah Zaki, denied her request for a
key to use the elevator instead of the stairs. Id. ¶ 12. Additionally, her coworkers would park in

the handicapped parking spaces and thereby prevent her from being able to park in one. Id. ¶ 13.

On January 29, 2015, Congress was attacked and hit hard on her neck by a student. Id. ¶ 16. Her

supervisor repeatedly refused to sign paperwork necessary for Congress to receive medications

for her pre-existing conditions and for needs related to the January incident. Id. ¶ 17.

       In October 2014, Congress complained to her union that the District was illegally forcing

her to cover classes despite her lack of a teaching certification. Id. ¶ 14. The next month, on

November 10, 2014, the District informed Congress that she was the target of a residency fraud

investigation that was closed on July 22, 2013. Id. ¶ 15. Congress was subsequently terminated

from her job on May 6, 2015, allegedly because of residency fraud. Id. ¶ 18.

       Congress filed a charge with the Equal Employment Opportunity Commission (“EEOC”)

on July 27, 2015, raising a charge of failure to accommodate and retaliation. Def.’s Mot.

Dismiss Ex. A. The EEOC sent Congress a notice of her right to file suit on October 14, 2016.

Id. However, Congress did not receive the notice until she physically went to the EEOC office

on January 23, 2017. Compl. ¶ 1. She filed suit against the District on May 15, 2017.

 II.   Legal Standard

       To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 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)). Such factual plausibility requires “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. When addressing a motion to dismiss, the Court “must take all of the factual

allegations in the complaint as true,” id., and “constru[e] the complaint liberally in the plaintiff’s


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favor with the benefit of all reasonable inferences derived from the facts alleged.” Stewart v.

Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). The Court “may consider the facts

alleged in the complaint, documents attached thereto or incorporated therein, and matters of

which it may take judicial notice.” Id.

       A motion to dismiss for a plaintiff’s failure to exhaust administrative remedies is

“properly addressed as [a] motion[] to dismiss for failure to state a claim.” Scott v. Dist. Hosp.

Partners, 60 F. Supp. 3d 156, 161 (D.D.C. 2014). Since failure to exhaust remedies is an

affirmative defense, “the defendant bears the burden of pleading and proving it.” Bowden v.

United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Each of the three statutes that plaintiff brings

claims under—the ADA, the Rehabilitation Act, and the DCHRA—has its own set of

requirements for exhaustion and its own statute of limitations.

       First, the ADA: The exhaustion requirements for Title VII of the Civil Rights Act govern

administrative exhaustion under the ADA. See 42 U.S.C. § 12117(a). Within 180 days of the

allegedly unlawful employment practice, a plaintiff must file a charge with the EEOC. Id.

§ 2000e-5(e)(1). The EEOC investigates the plaintiff’s claim and, once the investigation

concludes, issues a right to sue notice or provides a final decision to the plaintiff. Id. § 2000e-

5(b). The plaintiff must then bring a federal suit within 90 days of receiving the right to file

notice or final decision. Id. § 2000e-5(f)(1).

       Second, the Rehabilitation Act: Whether exhaustion of administrative remedies is

required before bringing suit under the Rehabilitation Act is an open question in this Circuit.

See, e.g., Minter v. District of Columbia, 62 F. Supp. 3d 149, 164 (D.D.C. 2014). The

Rehabilitation Act incorporates the “remedies, procedures, and rights set forth in title VI of the

Civil Rights Act of 1964” and in 42 U.S.C. § 2000e-5(e)(3). 29 U.S.C. § 794a. The only


                                                  3
specific section of Title VII referenced in the Rehabilitation Act concerns back pay calculations

and not administrative remedies. See 42 U.S.C. § 2000e-5(e)(3). Title VI, in contrast to Title

VII, does not contain a requirement to exhaust administrative remedies. See, e.g., Freed v.

Consol. Rail Corp., 201 F.3d 188, 191 (3d Cir. 2000); Neighborhood Action Coal. v. City of

Canton, 882 F.2d 1012, 1015 (6th Cir. 1989). Because the Rehabilitation Act expressly

incorporates Title VI and only one specific provision of Title VII, neither of which require

exhaustion of administrative remedies, the Court finds more persuasive the interpretation that the

Rehabilitation Act does not require exhaustion of administrative remedies. See, e.g., Minter, 62

F. Supp. 3d at 164; Adams v. District of Columbia, 740 F. Supp. 2d 173, 181–82 (D.D.C. 2010).

       Similarly unsettled in this Circuit is the question of what statute of limitations applies to

Rehabilitation Act claims. See, e.g., Alexander v. Washington Metro. Area Transit Auth., 826

F.3d 544, 551 (D.C. Cir. 2016) (per curiam). Since the Rehabilitation Act does not itself specify

a statute of limitations, “courts generally ‘borrow one from an analogous state cause of action.’”

Id. There are two possible statutes of limitations to borrow here: the three-year statute for

personal injury actions under D.C. law or the one-year statute in the DCHRA. See id. If the

one-year statute applies, so too does the DCHRA’s tolling provision. Id. The three-year statute

contains no tolling provision. See D.C. Code. § 12-301(8).

       Third, the DCHRA: There is no exhaustion requirement specified in the DCHRA. See

D.C. Code § 2-1402.11. A one-year statute of limitations applies to DCHRA claims. D.C. Code.

§ 2-1403.16. This statute of limitations is tolled, however, by the “timely filing of a complaint”

for the period of time the complaint is pending. Id. Because of a work-sharing agreement

between the EEOC and D.C.’s analogous agency, complaints timely filed with the EEOC toll the




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DCHRA statute of limitations. Jaiyeola v. District of Columbia, 40 A.3d 356, 369 (D.C. 2012);

see also Alexander, 826 F.3d at 551.

 III. Analysis

       A. Count I: Discrimination (ADA, Rehabilitation Act, DCHRA)

       Congress first raises a claim of disability discrimination in violation of the ADA,

Rehabilitation Act, and DCHRA. According to Congress, the District “discriminated against

[her] by denying her reasonable accommodation for her disabilities.” Compl. ¶ 21. The Court

will infer that such requests for accommodations—specifically, a key for the stairs and a

handicapped parking spot—occurred no later than September 2013 since Congress’s complaint

states that the District denied her accommodation “[c]ommencing in September, 2013.” Id.

¶ 12. 1 Her complaint does not state that she made any additional requests for an accommodation

after that time. Congress filed her EEOC charge on July 27, 2015. Def.’s Mot. Dismiss Ex. A. 2

       The District argues that Congress’s claim under the ADA should be dismissed for failure

to exhaust administrative remedies. The Court agrees. Congress filed her EEOC charge on July

27, 2015, more than 180 days after the alleged denial of an accommodation in September 2013.

See 42 U.S.C. § 2000e-5(e)(1). This claim is thus properly dismissed for failure to exhaust




       1
          Congress’s EEOC charge, in contrast, states that this denial occurred “[i]n about
September of 2012.” Def.’s Mot. Dismiss Ex. A (emphasis added). The Court need not address
this discrepancy because the outcome is the same even using the later date.
       2
        The Court can permissibly rely on Congress’s EEOC charge without converting this to a
motion for summary judgment because the document is one that Congress refers to in her
complaint, see Compl. ¶ 1, and that her claims necessarily relies on. See, e.g., Charles v. District
of Columbia, 164 F. Supp. 3d 98, 100 (D.D.C. 2016), aff’d, 690 F. App’x 14 (D.C. Cir. 2017).


                                                 5
administrative remedies. 3

       This leaves Congress’s Rehabilitation Act and DCHRA claims, which the District

contends are barred by the applicable statutes of limitations. The Court again agrees.

Congress’s DCHRA claim carriers a one-year statute of limitations. D.C. Code § 2-1403.16.

Congress’s suit brought in May 2015 (or April 2015, according to her counsel) falls more than

one year after the alleged denial of an accommodation. Nor can she rely on any tolling provision

because, as noted, her EEOC charge was not timely filed. Id. (allowing tolling for a timely filed

administrative charge).

       All that remains, then, is Congress’s Rehabilitation Act claim. If the Court applies the

one-year statute of limitations in the DCHRA to Congress’s Rehabilitation Act claim, the

outcome is the same as for her DCHRA claim: Congress’s suit is barred by the applicable statute

of limitations. Nor does the outcome change if the Court applies the three-year statute of

limitations. Congress’s suit here was filed in 2017, more than three years after her alleged denial

of an accommodation in September 2013. Unlike the DCHRA’s statute of limitations, the three-

year statute of limitations contains no tolling provision. See D.C. Code § 12-301(8). Finally, it

would not be appropriate to toll the running of the statute of limitations while Congress’s EEOC

charge was pending because it is optional, not mandatory, to exhaust administrative remedies

under the Rehabilitation Act, as noted above. See, e.g., Johnson v. Ry. Express Agency, Inc.,

421 U.S. 454, 466 (1975) (refusing to toll statute of limitations on plaintiff’s section 1981 claim

while he pursued administrative remedies on his Title VII claim); Adams, 740 F. Supp. 2d at




       3
          Because Congress’s EEOC charge was not timely filed, the Court need not resolve the
parties’ dispute over whether her suit in this Court was timely filed upon receipt of her notice of
the right to file.

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182–83 (compiling cases). 4 For these reasons, the Court concludes that Congress’s

Rehabilitation Act claim is also barred by the statute of limitations.

        B. Count II: Retaliation (ADA, Rehabilitation Act, DCHRA)

        Congress next raises a claim of retaliation under the ADA, the Rehabilitation Act, and the

DCHRA. She contends that the District retaliated against her “because she engaged in actions

(including Plaintiff’s complaints to union representatives) protected by Title VII, the ADA, the

Rehabilitation Act, and the D.C. Human Rights Act.” Compl. ¶ 25. The District responds that

this claim should be dismissed under Rule 12(b)(6) for failure to state a claim.

        All three of the statutes that Congress brings suit under prohibit an employer from

retaliating against an employee “on account of his or her having exercised or enjoyed, or on

account of his or her having aided or encouraged any other individual in the exercise or

enjoyment of, any right granted or protected by” the statutes. 42 U.S.C. § 12203 (ADA); see

also 29 U.S.C. § 791(f) (incorporating ADA standard in 42 U.S.C. § 12203); D.C. Code § 2-

1402.61 (“It shall be an unlawful discriminatory practice to . . . retaliate against . . . any person in

the exercise or enjoyment of, or on account of having exercised or enjoyed, or on account of

having aided or encouraged any other person in the exercise or enjoyment of any right granted or

protected under this chapter.”).

        To make a prima facie case for retaliation, the plaintiff must allege that she engaged in

protected activity, that she suffered an adverse action, and that “a causal link connects the two.”

Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014) (citation omitted); see also Arthur Young &



        4
         The Court will note that even if a Rehabilitation Act plaintiff is required to exhaust her
claim using the Title VII exhaustion procedures, the outcome here is yet still unchanged:
Congress’s claim would be barred for failure to file a timely charge with the EEOC, as discussed
above.

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Co. v. Sutherland, 631 A.2d 354, 368 (D.C. 1993) (applying same framework to DHCRA

claims). Congress was eventually fired from her job, which clearly constitutes an adverse action.

Compl. ¶ 18. As to the second requirement, Congress points to two possible protected activities:

her request for an accommodation in September 2013, id. ¶ 12, and her complaints to her union

regarding the District’s allegedly illegal practice of assigning her to teach classes that she was

not certified to teach, id. ¶ 14.

        Unfortunately for Congress, this latter action is not an activity protected under the

relevant statutes. Although Congress may have a right to report illegal activity free from

retaliation under D.C. law, see D.C. Code § 1-615.53, that right is not one “granted or protected

by” the ADA, Rehabilitation Act, or DCHRA. Instead, these statutes provide the right to

employment free from discrimination on the basis of disability (and, for the DCHRA, other

characteristics such as race and gender). See 29 U.S.C. § 794; 42 U.S.C. § 12112; D.C. Code

§ 2-1402.11. Congress’s reporting that the District illegally forced her to cover classes despite

her lack of a teacher certification—which Congress does not allege was in any way connected to

her disability—lacks any nexus to the protections of the statutes Congress brought suit under and

thus is not a “protected activity” for purposes of this suit.

        The other possible protected activity is Congress’s request for an accommodation. The

D.C. Circuit has recognized that a request for accommodation is a protected activity under the

ADA and Rehabilitation Act. Solomon, 763 F.3d at 15. But Congress has failed to allege a

causal nexus between this protected activity and her firing. Her complaint provides no indication

of any connection between her firing in 2015 and her requests for an elevator key and access to

handicapped parking spaces made two years earlier. Nor can Congress rely on temporal

proximity to make the causal link: temporal proximity can support an inference of causation


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“only where the two events are ‘very close’ in time.” Woodruff v. Peters, 482 F.3d 521, 529

(D.C. Cir. 2007) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)).

Events almost two years apart are not “very close” in time. Cf. Alston v. District of Columbia,

770 F. Supp. 2d 289, 301–02 (D.D.C. 2011) (“The two-year gap between the 2003 due process

hearing and the Summer 2005 Exclusion is too great to suggest a causal link.”). Because

Congress has not alleged a causal link between her request for accommodation in September

2013 and her May 2015 termination—and because her report of illegal conduct in 2014 was not

protected conduct—she has failed to state a claim for retaliation.

       C. Count III: Hostile Work Environment (ADA, Rehabilitation Act)

       Finally, Congress raises a claim of a hostile work environment under the ADA and the

Rehabilitation Act. Although the D.C. Circuit has not so recognized, other Circuits and judges in

this District have recognized that the ADA permits hostile work environment claims. See, e.g.,

Floyd v. Lee, 968 F. Supp. 2d 308, 328 (D.D.C. 2013) (compiling cases). Whether the

Rehabilitation Act provides for a hostile workplace cause of action is similarly unresolved by the

D.C. Circuit, though judges in this District ordinarily assume such a cause of action exists at the

motion to dismiss stage. See, e.g., Sanders v. Kerry, 180 F. Supp. 3d 35, 45 n.10 (D.D.C. 2016);

Ragsdale v. Holder, 668 F. Supp. 2d 7, 26 n.17 (D.D.C. 2009); see also Kuraner v. Mineta, No.

00-5416, 2001 WL 936369, at *1 (D.C. Cir. July 10, 2001) (per curiam).

       To make out a claim for a hostile work environment, a plaintiff must show that her

workplace was “permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive

working environment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)

(citation omitted). The Supreme Court “ha[s] made it clear that conduct must be extreme to


                                                 9
amount to a change in the terms and conditions of employment.” Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998).

       The District contends that Congress’s ADA claim should be dismissed for failure to

exhaust administrative remedies and her Rehabilitation Act claim dismissed because she

insufficiently alleges a hostile work environment claim. 5 With respect to Congress’s ADA

claim, the Court agrees with the District. Under the ADA, Congress was required to file a

charge raising her claim with the EEOC. 42 U.S.C. § 2000e-5(e)(1). However, Congress’s

EEOC charge, while raising retaliation and denial of an accommodation, is silent as to any

hostile work environment allegations. Def.’s Mot. Dismiss Ex. A. Because Congress failed to

raise her hostile work environment claim with the EEOC prior to filing suit, the Court will

dismiss her claim.

       This leaves Congress’s Rehabilitation Act claim. Congress contends that her coworkers

“made certain that they willfully and illegally occupied every open disability space,” that her

supervisor was aware of this and refused to prevent it, that her supervisor refused to grant her a

key to the elevator, and that her supervisor repeatedly refused to sign paperwork that Congress

needed to obtain medical treatment. Compl. ¶¶ 12–13, 17–18. While the Court retains doubts as

to whether these allegations, along with any supporting evidence, will constitute harassment

pervasive and severe enough to survive summary judgment, it is possible that Congress could

prove a set of facts from these allegations rising to the level of a hostile workplace claim. The

Court therefore cannot conclude that Congress “could prove no set of facts in support of [her]

claim that would entitle [her] to relief.” Henthorn v. Dep’t of Navy, 29 F.3d 682, 684 (D.C. Cir.



       5
         Unlike the discrimination claims, the District does not allege that Congress’s
Rehabilitation Act hostile workplace claim is barred by the statute of limitations.

                                                10
1994) (emphasis added). It will thus deny the District’s motion to dismiss Congress’s hostile

work environment claim under the Rehabilitation Act.

 IV. Conclusion

       For the foregoing reasons, the Court will grant the District’s motion in part and deny it in

part. The Court will dismiss Counts I and II of the complaint in their entirety and the ADA claim

in Count III, leaving solely the Rehabilitation Act claim in Count III. A separate Order

accompanies this Memorandum Opinion.




                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge

Date: October 3, 2017




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