                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


 LUIGI BUITRAGO,

                   Plaintiff,
 v.
                                      No. 18-cv-261(EGS)
 DISTRICT OF COLUMBIA, et al.,

                   Defendant.



                         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.
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.
                                 2
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”

                                3
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 co-

worker, 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,

                                4
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

                                5
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

                                  6
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

                                7
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

                                 8
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.
                                9
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

                               10
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


                               11
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

                               12
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

                               13
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

                               14
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.
                               15
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

                                  16
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

                               17
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).
                                18
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, ¶

                               19
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

                                20
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


                               21
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.”).


                               22
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.

                               23
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


                                24
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).

                                 25
    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

                               26
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

                               27
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

                               28
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

                               29
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

                               30
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.




                               31
    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


                                 32
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,

                               33
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 co-

workers, 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

                               34
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

                                 35
Order accompanies this Memorandum Opinion.

    SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          March 3, 2020




                               36
