                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

________________________________
                                )
LEONARD EDWARDS,                )
                                )
               Plaintiff,       )
                                )
          v.                    )   Civil Action No. 13-236 (EGS)
                                )
VINCENT GRAY, et al.,           )
                                )
               Defendants.      )
________________________________)

                        MEMORANDUM OPINION

  Plaintiff Leonard Edwards brings this pro se action alleging

that his former employer, the District of Columbia Fire and

Emergency Medical Services Department (“Department”), refused

his request for a reasonable accommodation of his disability in

violation of the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act,

29 U.S.C. § 794; discriminated against him based on his race in

violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e, et seq.; and retaliated against him in

violation of the ADA and Title VII. Pending before the Court is

defendants’ motion to dismiss plaintiff’s failure-to-accommodate

and race-discrimination claims. Upon consideration of the

motion, the responses and replies thereto, the applicable law,

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

PART defendants’ motion.
I.     BACKGROUND

     Plaintiff is an African-American male who has type-2 diabetes.

See Fifth Am. Compl., Dkt. No. 9 ¶ 2. He was employed by the

Department until being terminated from employment on October 13,

2007. Id. ¶¶ 3-4. His complaint alleges a series of events in

which he feels the Department discriminated and retaliated

against him, leading to his termination.

     The first such event occurred in early 2007, after Mr. Edwards

filed a complaint, the contents of which are unclear, with the

Department’s Equal Employment Office. Id. ¶ 11. Shortly after

Mr. Edwards filed the complaint, a Department officer ordered

him to take a fitness-for-duty physical. Id. ¶ 12.

     The second event occurred in March 2007, when Mr. Edwards was

placed on personal sick leave after being injured on the job. On

March 13, 2007, Mr. Edwards sustained a back injury during a

Department training event. Id. ¶ 14. He was ordered to report to

the Department’s clinic on March 23, 2007 for evaluation. See

id. ¶¶ 15, 18. Upon arriving at the clinic, Mr. Edwards was

“ordered to sign a prewritten letter,” the contents of which are

unclear. Id. ¶ 19. For some reason, this letter prompted

plaintiff to file a complaint with the Department’s Office of

Risk Management, asserting that “his right to choose a physician

of his choice had been violated.” Id. ¶ 20. Four days after Mr.

Edwards filed this complaint, the defendants removed him from

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performance-of-duty sick leave and placed him on personal sick

leave, even though he had no accrued personal sick leave. See

id. ¶¶ 21-22. Mr. Edwards views his placement on personal sick

leave “as retaliation . . . for filing a complaint with Risk

Management,” id. ¶ 23, and appears to allege that he stopped

receiving his salary afterwards. See id. ¶ 41.

  The third event occurred two months later, in May 2007. For

reasons that are not explained in the complaint, Mr. Edwards

appears to have returned to work by May 16, 2007, when he was

involved in a car accident while driving a Department vehicle.

See id. ¶ 25. After the accident, Mr. Edwards went to the

Department’s clinic, where he was asked to sign a “Disclosure

and Release” form and to take a psychological examination. Id.

¶¶ 28-31. He never took the examination because he “repeatedly

verbally asked to visit a private psychologist” rather than a

Department psychologist, but his requests were denied. Id. ¶¶

34(a), 34(b).

  The final allegedly discriminatory and retaliatory event

occurred on October 13, 2007, when plaintiff was terminated from

employment. Id. ¶ 42. Although he does not explain the

circumstances of his termination, Mr. Edwards alleges that the

events described in the complaint “were committed by white

officers” whose “actions . . . were racially motivated” and that



                                3
“he was treated differently from other firefighters in the same

predicament.” Id. ¶¶ 39, 50-51.

  On November 5, 2007, Mr. Edwards filed a formal complaint of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”), alleging that the Department discriminated against him

based on his race, age, and disability, and that the Department

retaliated against him for engaging in protected activity. Id.

¶ 7. On November 20, 2012, the EEOC determined that it could not

substantiate the charges. See Ex. A to Pl.’s Supplemental Opp.

to Mot. to Dismiss (“Suppl. Opp.”), Dkt. No. 28.

  Mr. Edwards received notice of the EEOC’s determination on

December 14, 2012. Fifth Am. Compl., Dkt. No. 9 ¶ 8. On February

25, 2013, he filed this pro se lawsuit, alleging that the

defendants denied him a reasonable accommodation of his

disability, discriminated against him because of his race, and

retaliated against him. Compl., Dkt. No. 1. Soon after bringing

this case, Mr. Edwards filed a series of amended complaints,

culminating in his Fifth Amended Complaint.

  On March 28, 2013, the defendants moved to dismiss Mr.

Edwards’s failure-to-accommodate and race-discrimination claims.

See Defs.’ Mot. to Dismiss (“Mot.”), Dkt. No. 20. Plaintiff

filed an opposition on April 2, 2013, in which he asserted that

he had successfully pled a claim under the ADA and the

Rehabilitation Act, and did not defend his Title VII claim. See

                                  4
Pl.’s Opp. to Mot. to Dismiss, Dkt. No. 24. Defendants noted in

their reply that Mr. Edwards did not respond to the substance of

any of their arguments. See Reply in Supp. of Mot. to Dismiss

(“Reply”), Dkt. No. 25.

  On April 22, 2013, the Court issued an order advising

plaintiff of his obligation to respond to the defendants’

arguments and the consequences of failing to do so. See Order,

Dkt. No. 27 at 1. Mr. Edwards filed a supplemental response,

Suppl. Opp., to which defendants responded on June 7, 2013,

asserting that plaintiff still had not opposed any of their

arguments. See Defs.’ Suppl. Reply, Dkt. No. 29. Four days

later, Mr. Edwards filed yet another brief, which asserted that

“the legal standards imposed on a licensed attorney should not

totally apply to a Pro Se party,” but did not otherwise address

defendants’ arguments. Pl.’s Third Opp. to Mot. to Dismiss, Dkt.

No. 30 at 1. On June 14, 2013, defendants reiterated that

plaintiff had not responded to their arguments. See Defs.’

Second Supplemental Reply, Dkt. No. 31. Defendants’ motion is

now ripe for the Court’s decision.

II.   STANDARD OF REVIEW

  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). A complaint must

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

                                5
the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quotation marks omitted; alteration in original).

While detailed factual allegations are not necessary, a

plaintiff must plead enough facts “to raise a right to relief

above the speculative level.” Id.

  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 construe the complaint liberally in plaintiff’s

favor and grant 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). The Court must not

accept inferences that are “unsupported by the facts set out in

the complaint.” Id. “Nor must the court accept legal conclusions

cast in the form of factual allegations.” Id. “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

  “‘[A] pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted

by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

                                6
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Even a pro

se complainant, however, must plead “‘factual matter’ that

permits the court to infer ‘more than the mere possibility of

misconduct.’” Atherton v. D.C. Office of Mayor, 567 F.3d 672,

681-82 (D.C. Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1950).

III. ANALYSIS

    Defendants argue that: (1) plaintiff failed to state a claim

for denial of a reasonable accommodation because he did not

demonstrate any connection between his alleged disability and

the accommodation he sought, and (2) he failed to state a claim

for racial discrimination because he alleged no facts to support

an inference that he was mistreated because of his race.1

    A.   Plaintiff Failed to State a Claim for Denial of a
         Reasonable Accommodation.

    Mr. Edwards asserts that the defendants’ denial of his request

to take a psychological examination with a private psychologist

was a failure to accommodate his disability, type-2 diabetes. It

is well settled that the ADA and Rehabilitation Act “do[] not

cover every individual with an impairment who suffers an adverse

employment action.” Flemmings v. Howard Univ., 198 F.3d 857, 860

(D.C. Cir. 1999). Rather, they prohibit employers from

1
  Defendants assert that plaintiff did not address the substance
of their arguments and ask that the Court treat their motion as
conceded. See Reply at 1-2. The Court need not treat unopposed
arguments as conceded, however, and declines to do so here given
Mr. Edwards’s repeated opposition to defendants’ motion.

                                 7
discriminating “against a qualified individual on the basis of

disability.” 42 U.S.C. § 12112(a); see also 29 U.S.C. § 794(a)

(prohibiting discrimination “by reason of [an individual’s]

disability”). Accordingly, while a plaintiff may prove

discrimination by showing that his employer failed to provide a

“reasonable accommodation[]” of his disability, 42 U.S.C.

§ 12112(b)(5)(A), an employer need only provide an accommodation

that is “responsive to and tailored to a specific disability.”

Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132, 143 (D.D.C.

2004); see also, e.g., Adams v. Rice, 531 F.3d 936, 944 (D.C.

Cir. 2008) (“When an employee seeks a workplace accommodation,

the accommodation must be related to the limitation that

rendered the person disabled.”) (quotation marks omitted); Jones

v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012).

  Neither Mr. Edwards’s complaint nor any of his oppositions to

the defendants’ motion explain how his type-2 diabetes is

connected to his request to visit a private psychologist for a

Department-ordered examination. Mr. Edwards alleges that he

suffers from degenerative-disc disease and hypertension, Fifth

Am. Compl., Dkt. No. 9 ¶ 9, but does not connect these

conditions to his request either. Mr. Edwards’s assertions that

he “reserved his rights because of his medical condition

(Diabetes),” and that “[t]here is a causal connection between

the termination and the reserved rights,” Suppl. Opp. at 4, do

                                8
not answer the relevant question: how is diabetes related to Mr.

Edwards’s desire to visit a private psychologist? Because the

Court cannot answer this question, Mr. Edwards’s failure-to-

accommodate claims under the ADA and the Rehabilitation Act must

be dismissed.

  B.   Plaintiff Stated a Claim Under Title VII.

  To bring an actionable discrimination claim under Title VII,

Mr. Edwards must establish that “(1) [he] is a member of a

protected class, (2) [he] suffered an adverse employment action,

and (3) the unfavorable action gives rise to an inference of

discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir.

2002) (quotation marks omitted); see also Nguyen v. Mabus, 895

F. Supp. 2d 158, 174 (D.D.C. 2012). Although it is well

established that “‘an employment discrimination plaintiff is not

required to plead every fact necessary to establish a prima

facie case to survive a motion to dismiss,’” Rodriguez v.

Donovan, 922 F. Supp. 2d 11, 17 (D.D.C. 2013) (quoting Jones v.

Air Line Pilots Ass’n, 642 F.3d 1100, 1104 (D.C. Cir. 2011), a

plaintiff must nevertheless “plead sufficient facts to show a

plausible entitlement to relief.” Id.

  It is undisputed that Mr. Edwards alleged the first two

elements of a prima facie case by asserting that he “is a . . .

Black American” and that he was “terminated by DCFD.” Fifth Am.

Compl., Dkt. No. 9 ¶¶ 2, 3. Defendants contend that Mr. Edwards

                                9
failed to support an inference of discrimination because he

asserted only that the officers who took action against him were

white and that he was treated differently than other

firefighters. See Mot. at 9. The Court need not address whether

that alone raises an inference of discrimination, however,

because plaintiff made additional allegations which help to

support such an inference.

  Plaintiff’s complaint describes a series of events that paint

a plausible picture of Department officers singling him out for

unfair discipline, culminating in his termination. First, Mr.

Edwards was ordered to take a fitness-for-duty physical soon

after he filed an equal-employment-opportunity complaint against

a supervisor. Fifth Am. Compl., Dkt. No. 9 ¶¶ 11-12. Then, after

being injured on the job, he was removed from performance-of-

duty sick leave and his salary was withheld. Id. ¶¶ 14, 21-22,

41. Next, his request to see a private psychologist in

connection with a Department-ordered examination was denied. Id.

¶¶ 34(a), 34(b). Finally, he was terminated from employment. Id.

¶ 42. This discipline, Mr. Edwards alleges, deviated from the

defendants’ treatment of other firefighters. See id. ¶ 50. He

also alleges that each event was driven by white officers whose

actions “were racially motivated.” Id. ¶¶ 39, 51. While Mr.

Edwards does not fully explain the circumstances of each event,

the Court must accept his allegations as true at this stage.

                               10
  A liberal reading of Mr. Edwards’s pro se complaint inevitably

leads to the conclusion that he is also asserting that the

firefighters who received better treatment were members of a

different race. Indeed, if plaintiff was mistreated by racially

motivated white officers and other firefighters were treated

better, it follows that the others were either members of a

different race or were supervised by different officers. Cf.

Montgomery v. Omnisec Int’l Sec. Servs., __ F. Supp. 2d __, 2013

WL 4427194, at *4 (D.D.C. Aug. 20, 2013) (in ruling on a motion

to dismiss a pro se complaint, the court may read separate

allegations together where doing so “leads to the undeniable

conclusion that plaintiff believes the two facts were . . .

linked”). Either way, plaintiff’s complaint alleges that he

received disparate treatment for racially discriminatory

reasons, and supports that allegation with sufficient factual

detail to state a plausible claim. This is sufficient to survive

a motion to dismiss. See, e.g., Jones v. Ottenberg’s Bakers, __

F. Supp. 2d __, 2013 WL 6119322, at *5 (D.D.C. Nov. 21, 2013)

(because “an allegedly racially motivated deviation from

standard procedure may raise an inference of discrimination at

the motion-to-dismiss stage,” plaintiff stated a claim by

alleging that his employer targeted him for racially

discriminatory discipline that deviated from its standard

response); Winston v. Clough, 712 F. Supp. 2d 1, 10 (D.D.C.

                               11
2010) (plaintiff stated a claim for racial discrimination by

alleging that he was subject to discipline that “was motivated

by [his] race and color” and “that other co-workers outside of

[his] protected class” engaged in the same behavior for which he

was disciplined “yet none was suspended or disciplined for it”).

  The Court emphasizes that its role at this stage of the

proceedings is to review Mr. Edwards’s pro se complaint

liberally to determine whether it contains factual allegations

sufficient to make out “a plausible claim for relief.” Iqbal,

556 U.S. at 679. While the complaint is not the model of

clarity, it contains sufficient factual content to support an

inference of discrimination at this stage. Accordingly,

defendants’ motion to dismiss plaintiff’s Title VII

discrimination claim is denied.

IV.   CONCLUSION

  For the foregoing reasons, defendants’ motion to dismiss is

hereby GRANTED IN PART AND DENIED IN PART. An appropriate Order

accompanies this Memorandum Opinion.

  SO ORDERED.


Signed:    Emmet G. Sullivan
           United States District Judge
           December 20, 2013




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