                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
THOMASINE WASHINGTON,               )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                       Civil Action No. 18-2742 (ABJ)
                                    )
LEVY FOOD SERVICE,                  )
                                    )
                  Defendant.        )
___________________________________ )


                                 MEMORANDUM OPINION
       Thomasine Washington (“plaintiff”) filed her complaint in the Superior Court of the

District of Columbia on October 17, 2018. Levy Premium Foodservice Limited Partnership

(“Levy Foodservice”) removed the case on November 26, 2018, and filed a motion to dismiss

(ECF No. 6) with a supporting memorandum (ECF No. 6-1, “Def.’s Mem.”) on December 3, 2018.

The Court issued an Order (ECF No. 7) directing plaintiff to file her opposition or other response

to the motion by January 3, 2019. Plaintiff did not comply with the Order, and on January 18,

2019, the Court issued a Memorandum Opinion and Order (ECF Nos. 9-10) dismissing the

complaint and this civil action without prejudice. See Washington v. Levy Food Serv., No. 18-cv-

2742, 2019 WL 266328, at *1 (D.D.C. Jan. 18, 2019).

       On January 23, 2019, the Clerk of Court received documents from plaintiff and opened a

new case, Civ. No. 19-0144. The Court construed this submission and its exhibits instead as a

motion to reconsider the dismissal of Civ. No. 18-2742 (ECF No. 12), granted plaintiff’s motion,

reopened Civ. No. 18-2742, vacated its prior Memorandum Opinion and Order, set March 25,

2019 as the deadline for plaintiff’s opposition or other response to Levy Foodservice’s motion to

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dismiss, and terminated Civ. No. 19-0144. The Clerk of Court received plaintiff’s opposition to

Levy Foodservice’s motion on March 22, 2019, and the Court granted leave to file it (ECF No. 17,

“Pl.’s Opp’n”) on April 4, 2019.

        It is apparent from the materials provided by plaintiff that she has in fact received medical

attention for certain conditions that are of great concern to her, and that she is dissatisfied with the

manner in which she was treated by her former employer. Those things can be very frustrating

and disappointing. But the complaint, even when read in connection with all of the other pleadings

in the case, and even when plaintiff is given the benefit of all inferences that can be drawn from

her pleadings, is simply too vague, and it contains too few facts, to state a claim upon which relief

can be granted.

II. BACKGROUND

        Following a statement of the court’s jurisdiction, the narrative portion of plaintiff’s

complaint (ECF No. 1-2 (“Compl.”) states:

                I was wrongful [sic] Termination [sic] from my job[.] I had medical
                excuse I have my paper work from my doctor telling I needed breaks
                not to stand on my foot for 6 hr. a day the medical prombles [sic] to
                be set down in a chair in the stand but I told I had go down in the
                break room.
Id. at 3 (page number designated by ECF). The complaint concludes with a demand for judgment

in the sum of $12,000. Id. Attachments to the complaint show that plaintiff filed a formal charge

of discrimination with the Equal Employment Opportunity Commission on August 30, 2018, the

particulars of which were:


                I am currently employed with [Levy Foodservice] and have been
                since 2008. My job classification is Line Prep.

                I have been subjected to a hostile work environment . . . since 2016.
                They criticized my attire daily. I reported to Human Resources
                Department. They did not take any action. I am an individual with
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               a disability. Respondent is aware of my disability. On or about June
               2016, I give the doctor notes to a Human Resources representative.
               She refused to look at my documents. I tried to explain to her that I
               needed reasonable accommodations.

               I believe I have been denied an accommodation and discriminated
               against in violation of the Americans with Disabilities Act of 1990,
               as amended.

Id., Ex. 2 (Charge of Discrimination) (exhibit numbers designated by the Court) at 1. Also attached

to the complaint is a copy of the EEOC’s September 5, 2018 notice that, “[b]ased upon its

investigation, EEOC [was] unable to conclude that the information obtained establishes violations

of the statutes.” Id., Ex. 1 (Dismissal and Notice of Rights) at 1.1

       The Court construes the complaint as one raising a claim under the Americans with

Disabilities Act (“ADA”), alleging that Levy Foodservice discriminated against plaintiff by “not

making reasonable accommodations to the known physical . . . limitations of an otherwise qualified

individual with a disability who is an . . . employee[.]” 42 U.S.C. § 12112(b)(5)(A).

III. ANALYSIS

       Levy Foodservice moves to dismiss under Federal Rule of Civil Procedure 12(b)(6),

arguing that plaintiff’s complaint fails to state a claim upon which relief can be granted. See

generally Def.’s Mem. at 6-7. Although a plaintiff need not set forth “detailed factual allegations”

to withstand a Rule 12(b)(6) motion, in order to establish the “grounds” of her “entitle[ment] to

relief,” she must furnish “more than labels and conclusions” or “a formulaic recitation of the

elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also

Papasan v. Allain, 478 U.S. 265, 286 (1986). The Court “must accept as true all of the factual


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  Another attachment to the complaint reveals that Levy Foodservice terminated Plaintiff’s
employment following an incident on September 21, 2018, during which Plaintiff reportedly “was
rude, discourteous, and displayed threatening behavior towards a fellow coworker.” Compl., Ex.
4 (Levy Disciplinary Report Form) (exhibit number designated by the Court).
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allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The

complaint “is construed liberally in plaintiff[’s] favor, and [the Court should] grant plaintiff[] the

benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). But the Court need not accept inferences that are not

supported by the facts plaintiff alleges and the legal conclusions plaintiff draws. See id.; Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Having considered plaintiff’s complaint and all

her subsequent submissions, see Brown v. Whole Foods Market Group, Inc., 789 F.3d 146, 150

(D.C. Cir. 2015) (per curiam) (noting that “a district court errs in failing to consider

a pro se litigant's complaint ‘in light of’ all filings, including filings responsive to a motion to

dismiss”), the Court concludes that plaintiff’s complaint must be dismissed.

       The ADA defines the term “disability” as:

               (A)     a physical or mental impairment that substantially limits one
                       or more major life activities of such individual;
               (B)     a record of such an impairment; or
               (C)     being regarded as having such an impairment[.]
42 U.S.C. § 12102(1). “[M]ajor life activities include, but are not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42

U.S.C. § 12102(2). A plaintiff adequately states a claim for failure to accommodate by “alleg[ing]

facts sufficient to show that: (1) [she] had a disability within the meaning of the ADA; (2) [her]

employer had notice of [her] disability; (3) [she] could perform the essential functions of the

position with or without reasonable accommodation; and (4) [her] employer refused to make such

accommodation.” U.S. Equal Employment Opportunity Comm’n v. Wal-Mart Stores, East, LP,

No. 18-cv-1314, 2018 WL 5297814, at *2 (D.D.C. Oct. 25, 2018) (citing Gordon v. District of




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Columbia, 480 F. Supp. 2d 112, 115 (D.D.C. 2007)); see Perez v. District of Columbia Dep’t of

Employment Servs., 305 F. Supp. 3d 51, 57 (D.D.C. 2018).

       Plaintiff’s original complaint comes nowhere close to alleging facts pertaining to these

factors, and the narrative portion of her EEOC charge of discrimination merely sets forth

“[t]hreadbare recitals of the elements of a cause of action, [and] mere conclusory statements,

[which] do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

555). There are no alleged facts supporting inferences that plaintiff has a disability, that Levy

Foodservice was aware of the disability, that plaintiff could perform the functions of her former

position with or without a reasonable accommodation, that plaintiff described or identified a

particular accommodation, and that Levy Foodservice refused to make a reasonable

accommodation. Mere mention of having a “medical excuse” and “medical problems,” Compl. at

1, does not support sufficiently a claim that plaintiff is “disabled” for purposes of the ADA.

       Plaintiff’s opposition to Levy Foodservice’s motion is no more instructive. It begins with

a single sentence:

               I have attarck [sic] my medical papers and the Harassment I will
               prove that I was [sic] been Harassment [sic] by my code [sic]
               workers and the zone mange [sic].
Pl.’s Opp’n at 1. Attached are excerpts from publications pertaining to disability discrimination

in the workplace and workplace harassment, see generally id. at 2-11, and dozens of pages of

medical records, see generally id., Ex. (sealed). The medical records indicate that plaintiff sought

treatment for an injury to her right foot sustained at her workplace and for bilateral foot pain in the

months following her termination; that x-rays and an MRI of her right foot were taken; and that

plaintiff underwent blood tests for a condition unrelated to the foot injury. Documentation of

doctor visits and medical tests is not a substitute for “factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S

                                                  5
at 678 (citing Twombly, 550 U.S. at 556). Plaintiff still has not identified her disability, and even

if she had a physical impairment, an impairment alone “does not make one disabled for purposes

of the ADA.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002),

overturned due to legislative action in U.S. Pub. L. 110-325 (2009). Furthermore, plaintiff alleges

no facts suggesting that the purported impairment limits a major life activity such as working. See

id.; Thompson v. District of Columbia, 272 F. Supp. 3d 17, 22 (D.D.C. 2017) (dismissing ADA

claim where “[p]laintiff never identifies this disability, nor does she allege whether – or how – this

disability to walk impacts her ability to perform certain jobs”); Mitchell v. Yates, 402 F. Supp. 2d

222, 229 (D.D.C. 2005) (dismissing ADA claim where “plaintiff has failed to allege facts

suggesting that he is substantially limited in a major life activity and, hence, that he has not

sufficiently alleged that he is disabled under the law”). The Court is left with conclusory assertions

which, taken together, do not state a claim that Levy Foodservice failed to accommodate plaintiff’s

purported disability or otherwise discriminated against plaintiff on the basis of that disability.

III. CONCLUSION

       For the reasons discussed above, defendant’s motion to dismiss under Rule 12(b)(6) is

granted. Its motions to dismiss under Rule 12(b)(5) and for a more definite statement under Rule

12(e) are denied as moot. An Order is issued separately.



                                                       /s/
                                                       AMY BERMAN JACKSON
                                                       United States District Judge
DATE: June 26, 2019




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