                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

PRATEEK DAVE,                                  :
                                               :
                       Plaintiff,              :      Civil Action No.:        08-0856 (RMU)
                                               :
                       v.                      :       Re Document No.:        12
                                               :
CATHY LANIER et al.,                           :
                                               :
                       Defendants.             :

                                    MEMORANDUM OPINION

       GRANTING THE DEFENDANT’S MOTION TO DISMISS THE PLAINTIFF’S CLAIMS
      UNDER THE AMERICANS WITH DISABILITIES ACT AND THE REHABILITATION ACT

                                      I. INTRODUCTION

       This matter comes before the court on the defendant’s1 motion to dismiss the plaintiff’s

claims of disability discrimination. The plaintiff, a former cadet at the District of Columbia

Metropolitan Police Department Institute of Police Science (“IPS”), alleges that the defendant

discriminated and retaliated against him in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101 et seq.; the Rehabilitation Act, 29 U.S.C. §§ 791 et seq.; and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The court previously denied the

defendant’s motion to dismiss the plaintiff’s Title VII claims. The defendant now moves to

dismiss the plaintiff’s ADA and Rehabilitation Act claims. Because the allegations in the

complaint fail to state a claim under the ADA and the Rehabilitation Act, the court grants the

defendant’s motion to dismiss those claims.



1
       Although this suit was originally brought against defendants Cathy Lanier and the District of
       Columbia, the court previously dismissed all claims against defendant Lanier. See Mem. Op.
       (Mar. 27, 2009) at 1 n.1. Accordingly, because the District of Columbia is the only remaining
       defendant, the court refers to “the defendant” in the singular.
                                       II. BACKGROUND

                                        A. Factual History

       The plaintiff, an Indian American male, served as a cadet at IPS from September 2004

until September 2006. Compl. ¶¶ 5, 6. He alleges that during a training exercise in November

2004, a trainer pushed him down a hill, causing severe injury to his shoulder. Id. ¶ 6. Following

the incident, the plaintiff was placed on sick leave, and then on limited duty, for five months, and

his probationary period was extended while he received treatment for his shoulder injury. Id.

       The plaintiff alleges that after he returned to IPS, his supervisors gave him only academic

assignments supplemented by physical training assignments, trained him with a lower-level class,

made sarcastic remarks about his abilities and withheld training necessary for graduation from

IPS. Id. ¶ 7. As a result of the repetitious physical training, the plaintiff developed asthma,

resulting in his taking an additional one to two months of sick leave. Id. While cadets normally

graduate from IPS within six months, the plaintiff failed to graduate after spending two years at

the academy. Id. ¶ 8. In September 2006, the defendant issued the plaintiff a letter of

termination from IPS. Id. ¶ 9.

                                      B. Procedural History

       The plaintiff commenced this action on May 19, 2008, alleging that the defendant (1)

violated Title VII by retaliating against him after he complained that he had been treated in a

discriminatory manner, see Compl. ¶¶ 18-22; and (2) violated the ADA and the Rehabilitation

Act by subjecting him to disparate treatment and to a hostile work environment based on his

disability, failing to accommodate his disability and “retaliating against [him] by terminating his




                                                  2
employment because of his disability” or the perception that he was disabled,2 id. ¶¶ 11-17.

       The defendant moved to dismiss all of the plaintiff’s claims in July 2008. See generally

Def.’s Mot. to Dismiss (“Def.’s Mot.”). In a memorandum opinion issued in March 2009, the

court denied the defendant’s motion to dismiss the plaintiff’s Title VII retaliation claim. See

Mem. Op. (Mar. 27, 2009) at 5-11. The court withheld judgment, however, on the defendant’s

motion to dismiss the plaintiff’s ADA and Rehabilitation Act claims, observing that Congress

had recently enacted the ADA Amendments Act of 2008 (“ADAAA”), which altered the scope of

protection afforded to individuals under the ADA. See id. at 4-5. Accordingly, the court allowed

the parties to submit further briefing on the effect of the ADAAA on the plaintiff’s claims of

disability discrimination. See id.

       With the parties’ supplemental briefing on the impact of the ADAAA now complete, see

generally Def.’s Supplemental Mem. Supporting Mot. to Dismiss (“Def.’s Supplement”); Pl.’s

Supplemental Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Supplement”); Def.’s Reply to Pl.’s

Supplement (“Def.’s Supplemental Reply”), the court turns to the applicable legal standards and

the parties’ arguments.



2
       The ADA “bars retaliation against an individual for making a charge under or opposing any
       practice made unlawful by that Act.” Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13,
       16 (D.C. Cir. 2009). Yet if the defendant did, in fact, terminate the plaintiff’s employment
       because he was disabled or because the defendant regarded him as disabled, as the plaintiff
       alleges, see Compl. ¶ 14, it would constitute disparate treatment in violation of the ADA, rather
       than retaliation as the plaintiff suggests, see id. (stating that the defendant “knowingly and
       intentionally engaged in unlawful discrimination based on [the plaintiff’s] disability by . . .
       retaliating against [the plaintiff] by terminating his employment because of his disability or
       Defendant[] regarded him as disabled”). The plaintiff does not allege that he filed a charge of
       disability discrimination or otherwise accused the defendant of disability discrimination while at
       IPS. See generally Compl. Accordingly, the court does not construe the complaint as alleging
       that the defendant retaliated against him for filing a charge under the ADA or otherwise opposing
       the defendant’s violation of the ADA.

                                                   3
                                          III. ANALYSIS

                    A. Legal Standard for Rule 12(b)(6) Motion to Dismiss

        A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (internal

citations omitted). “Such simplified notice pleading is made possible by the liberal opportunity

for discovery and the other pre-trial procedures established by the Rules to disclose more

precisely the basis of both claim and defense to define more narrowly the disputed facts and

issues.” Conley v. Gibson, 355 U.S. 41, 47-48 (1957) (internal quotation marks omitted),

abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). It is not

necessary for the plaintiff to plead all elements of his prima facie case in the complaint,

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or “plead law or match facts to every

element of a legal theory,” Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal

quotation marks and citation omitted).

        Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56, instructing

courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of

facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when

the pleaded factual content “allows the court to draw the reasonable inference that the defendant


                                                   4
is liable for the misconduct.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id.

       In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual

allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.

   B. The ADAAA Does Not Apply to the Plaintiff’s ADA and Rehabilitation Act Claims

       As a preliminary matter, the court must determine whether the amendments to the ADA

enacted through the ADAAA apply to the plaintiff’s claims. It is undisputed that the allegedly

discriminatory conduct took place before the ADAAA became effective on January 1, 2009. See

Compl. ¶¶ 5-10. The defendant maintains that the ADAAA does not apply retroactively and that

as a result, the plaintiff’s claims are governed by the ADA. Def.’s Supplement at 1-3. The

plaintiff, on the other hand, argues that the ADAAA should apply retroactively in this case

because he seeks prospective relief. Pl.’s Supplement at 2-4.

       Numerous courts, including this Circuit, have considered this issue and concluded that

the ADAAA does not apply retroactively. See Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936,


                                                 5
942 (D.C. Cir. 2009) (citing Equal Employment Opportunity Comm’n v. Agro Distribution, LLC,

555 F.3d 462, 470 n.8 (5th Cir. 2009); Moran v. Premier Educ. Group, LP, 599 F. Supp. 2d 263,

271-72 (D. Conn. 2009) (noting that “it appears that every court that has addressed this issue . . .

has concluded that the 2008 Amendments [to the ADA] cannot be applied retroactively to

conduct that preceded its effective date”)). Thus, the Circuit’s holding in Lytes forecloses the

plaintiff’s argument that the ADAAA applies to his claims of disability discrimination,3 and the

court will apply the pre-amendment ADA in assessing the defendant’s motion to dismiss.

     C. The Court Grants the Defendant’s Motion to Dismiss the Plaintiff’s ADA and
                              Rehabilitation Act Claims

                        1. Legal Standard for Disability Discrimination

       To establish that a defendant violated the ADA or the Rehabilitation Act,4 a plaintiff must

show that he or she is an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the position, and who suffered an adverse



3
       The Circuit’s holding in Lytes also forecloses the plaintiff’s argument that the ADAAA applies
       to his claims because he seeks prospective relief. In Jenkins v. National Board of Medical
       Examiners, the principal case upon which the plaintiff relies, the Sixth Circuit held that because
       the plaintiff sought purely prospective relief – namely, an injunction requiring the defendant to
       give him additional time to take a medical licensing test to accommodate his reading disorder –
       no injustice would result from applying the amended law, and therefore the ADAAA applied to
       the plaintiff’s claims. 2009 WL 331638, at *1 (6th Cir. Feb. 11, 2009). By contrast, in Lytes, as
       in this case, the plaintiff sought both reinstatement and damages. See Compl. at 13, Lytes v. D.C.
       Water & Sewer Auth., 527 F. Supp. 2d 52 (D.D.C. 2007) (Civil Action No. 05-0402); Compl. at
       5. The Circuit concluded that because the plaintiff “requested retrospective relief, including
       compensatory damages and back pay,” Lytes, 572 F.3d at 939, the ADAAA did not govern the
       plaintiff’s claims, id. at 942. Therefore, the fact that the plaintiff in this case requested
       reinstatement is unavailing.
4
       The Rehabilitation Act, which prohibits disability-based discrimination in federal employment, is
       to be interpreted coterminously with the ADA. See Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir.
       2008); Breen v. Dep’t of Transp., 282 F.3d 839, 841 (D.C. Cir. 2002). Thus, the court’s analysis
       of the plaintiff’s ADA claim applies equally to the plaintiff’s Rehabilitation Act claim.

                                                   6
employment decision due to his or her disability. Breen v. Dep’t of Transp., 282 F.3d 839, 841

(D.C. Cir. 2002); LaCorte v. O’Neill, 139 F. Supp. 2d 45, 47-48 (D.D.C. 2001) (citing Barth v.

Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993)). To prove that he or she has a disability, a plaintiff

must demonstrate that his or her condition “substantially limited” one or more major life

activities. 42 U.S.C. § 12102(2). The applicable EEOC regulations explain that an individual is

“substantially limited” if he or she is

         (i) unable to perform a major life activity that the average person in the general
         population can perform; or (ii) significantly restricted as to the condition, manner or
         duration under which [he or she] can perform a particular major life activity as
         compared to the condition, manner, or duration under which the average person in
         the general population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1). For the impairment to substantially limit a major life activity, its

“impact must also be permanent or long term.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534

U.S. 184, 198 (2002) (citing 29 C.F.R. § 1630.2(j)(2)(ii)-(iii)).

         Individuals who are “regarded as” having a disability are also disabled within the

meaning of the ADA. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). The Supreme

Court has explained that

         [t]here are two apparent ways in which individuals may fall within this statutory
         definition: (1) a [defendant] mistakenly believes that a person has a physical
         impairment that substantially limits one or more major life activities, or (2) a covered
         entity mistakenly believes that an actual, nonlimiting impairment substantially limits
         one or more major life activities.

Id.

      2. The Plaintiff Has Failed to Plead a Cognizable Claim of Disability Discrimination

         As a preliminary matter, the court finds it useful to clarify the standard of pleading that

applies to the plaintiff’s claims of disability discrimination, as articulated by Judge Bates in


                                                    7
Mitchell v. Yates, 402 F. Supp. 2d 222 (D.D.C. 2005). As Judge Bates observed, the Supreme

Court in Swierkiewicz held that a plaintiff need not plead every element of a prima facie case of

discrimination as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), as

those elements establish only one manner in which a plaintiff may raise an inference of

discrimination. Mitchell, 402 F. Supp. 2d at 228 (citing Swierkiewicz, 534 U.S. at 510-11).

Judge Bates noted, however, that the Swierkiewicz Court did not address whether a plaintiff must

“provide notice of the specific basis for [his or her] protected status as disabled, a matter separate

from the McDonnell Douglas prima facie framework and the issue of evidence that would

support an inference of discrimination.” Id. Judge Bates concluded that “[n]othing in

Swierkiewicz indicates that notice pleading in discrimination cases eliminates the requirement to

plead a ‘short and plain statement’ that would put a defendant on notice of the basis of a

plaintiff’s claim of being an individual with a disability.” Id. Indeed, as Judge Bates noted, the

Supreme Court in Sutton upheld the dismissal of the plaintiffs’ ADA claims because the

plaintiffs failed to adequately allege how their impairment substantially limited them in the major

life activity of working. Id. (citing Sutton, 527 U.S. at 488-89). The court considers Judge

Bates’s reasoning in Mitchell persuasive and holds that a complaint “must adequately allege facts

sufficient to support the claim that [the plaintiff] has a ‘disability’ within the meaning of the

ADA, or else be subject to dismissal.” Id.

       The defendant urges the court to dismiss the plaintiff’s ADA claim because he has failed

to plead that he suffers from a disability. Def.’s Mot. at 3-6. More specifically, the defendant

states that “the Complaint is devoid of any allegation that [the plaintiff’s] unspecified condition

(if any) has a substantial impact upon any major life activity.” Id. at 5. In addition, the defendant


                                                  8
contends that even if the plaintiff were deemed to have been disabled by virtue of the shoulder

injury that he suffered in November 2004 and the asthma that he developed following the

November 2004 incident, his claims would still fail because his disabilities were temporary, not

permanent.5 Id. at 5-6.

       To the defendant’s assertion that the plaintiff failed to allege that his condition

substantially limited a major life activity, the plaintiff responds that his impairments (namely, his

shoulder injury and his asthma) substantially limited him in the major life activity of working.

Pl.’s Opp’n at 4. And in response to the defendant’s assertion that his impairments were only

temporary, the plaintiff asserts that he is permanently impaired despite the fact that he only took

finite periods of leave to treat his shoulder injury and his asthma. Id. Finally, the plaintiff notes

that his claims are based on the allegation that the defendant discriminated against him because

of his disability and/or discriminated against him because the defendant regarded him as

disabled. Id. at 3. Therefore, he maintains, his complaint should survive the defendant’s motion

to dismiss even if the court concludes as a matter of law that he was not actually disabled. Id. at

3-4.

       The court will first address the defendant’s contention that the plaintiff has failed to

adequately plead that he had an impairment that substantially impacted a major life activity.

Both the Supreme Court and this Circuit have assumed without deciding that working is a major

life activity. See Sutton, 527 U.S. at 492; Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d



5
       The defendant also suggests, without elaboration, that the plaintiff has failed to allege that he
       sustained an adverse employment action related to his purported disability. Def.’s Mot. at 3.
       The defendant offers no reasoning or case law in support of this point, and in light of the court’s
       dismissal of the claims on the grounds discussed below, the court will not address it.

                                                    9
1110, 1114 n.1 (D.C. Cir. 2001). Because the defendant does not contest the issue, see generally

Def.’s Mot.; Def.’s Reply, the court will also assume for the purposes of ruling on this motion

that working is a major life activity.

       The applicable EEOC regulations specify that an individual is substantially limited in the

major life activity of working if he or she is “significantly restricted in the ability to perform

either a class of jobs or a broad range of jobs in various classes as compared to the average

person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). “The

inability to perform a single, particular job does not constitute a substantial limitation in the

major life activity of working.” Id. The Supreme Court has elaborated on this definition by

stating that to be substantially limited in the major life activity of working, an individual

       must be precluded from more than one type of job, a specialized job, or a particular
       job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her
       unique talents) are available, one is not precluded from a substantial class of jobs.
       Similarly, if a host of different types of jobs are available, one is not precluded from
       a broad range of jobs.

Sutton, 527 U.S. at 492.

       In this case, the plaintiff asserts that as a result of his shoulder injury and his asthma, he

was “placed on sick leave status and subsequently on limited duty status and his probationary

period was extended.” Compl. ¶ 6. The plaintiff further claims that he “was relegated to only

academic work at the academy, supplemented by physical training.” Id. ¶ 7. Thus, the plaintiff’s

own account of his impairments indicates that although he was temporarily unable to perform

any work while he was on sick leave, from the time he returned from sick leave he was able to

perform academic work and a limited amount of physical work. Id. ¶¶ 6-7. The plaintiff further

suggests that his inability to fully perform physical tasks resulted in his termination from IPS.


                                                  10
See id. ¶¶ 6-9. In other words, the plaintiff has asserted, at most, only that his impairments

significantly restricted his ability to perform purely physical work, as opposed to significantly

restricting his “ability to perform either a class of jobs or a broad range of jobs in various classes

as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. §

1630.2(j)(3)(i). As a consequence, the plaintiff’s allegations fail to adequately state how his

impairments substantially limited him in the major life activity of working. Cf. Bonieskie v.

Mukasey, 540 F. Supp. 2d 190, 200 (D.D.C. 2008) (dismissing the plaintiff’s complaint after

determining that “[a]t most, he [had] offered evidence that his impairments affected his ability to

do the job he held”); Mitchell, 402 F. Supp. 2d at 229 (noting that the “plaintiff’s complaint

concede[d] that he [was] capable of performing as a police officer with administrative duties”).

        Although the plaintiff has failed to properly allege that he was actually disabled, his

complaint may still survive the defendant’s motion to dismiss if he plausibly alleged that the

defendant mistakenly regarded him as disabled. Sutton, 527 U.S. at 489. The complaint,

however, is devoid of any allegations that would suggest that the defendant perceived him as

having a condition that would qualify as a disability. To the contrary, the plaintiff asserts in the

complaint that the defendant placed him on limited duty status and relegated him to academic

work supplemented by physical training. See Compl. ¶¶ 6-7. This account suggests that the

defendant believed that jobs utilizing the plaintiff’s skills were available; it indicates, in other

words, that the defendant did not regard him as substantially limited in the major life activity of

working. Cf. Mitchell, 402 F. Supp. 2d at 229 n.3 (holding that because, by the plaintiff’s own

account, the defendants were aware that the plaintiff could perform administrative duties and




                                                  11
assigned him such duties, the “defendants did not ‘regard’ him as substantially limited in the

major life activity of working”).



                                      IV. CONCLUSION

       For the foregoing reasons, the court grants the defendant’s motion to dismiss the

plaintiff’s ADA and Rehabilitation Act claims. An Order consistent with this Memorandum

Opinion is separately and contemporaneously issued this 3rd day of February, 2010.



                                                      RICARDO M. URBINA
                                                     United States District Judge




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