                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________
                                             )
RANDY BROWN,                                 )
                                             )
             Plaintiff,                      )
                                             )
        v.                                   )              Civil Action No. 16-0947-EGS
                                             )
DISTRICT OF COLUMBIA,                        )
                                             )
                                             )
          Defendant.                         )
_________________________________            )


                                 MEMORANDUM OPINION

       Plaintiff Randy Brown, appearing pro se, sues the District of Columbia, claiming that its

Rehabilitation Services Administration (“RSA”) has “engaged in a continuing pattern of

discriminatory conduct” against him, in violation of Title II of the Americans with Disabilities

Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794 et seq.; and the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et

seq. Am. Compl. at 1 [Dkt. # 3]. The District has moved to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6) or for summary judgment under Rule 56, which Plaintiff has

opposed. For the reasons that follow, the Court will grant the motion for summary judgment and

enter judgment accordingly.

                                      I. BACKGROUND

       RSA is a division of the District’s Department of Disability Services that provides

vocational and rehabilitative services to individuals with disabilities. See Sept. 18, 2017 Mem.

Op. at 1 [Dkt. # 14] (denying motion to dismiss). Eligible individuals are assigned a vocational



                                                 1
rehabilitation counselor who assists with developing an Individualized Plan for Employment

(“IPE”). RSA offers, among other services, vocational training or other post-secondary

education and job assistance. See id. at 1-2.

       A. Factual Background

          1. Plaintiff’s Allegations

       Plaintiff is a client of RSA who “has a cognitive disability but has high aptitude in verbal

skills and in abstract reading.” Am. Compl. ¶ 2. In February 2009, after three years of providing

“funding for rehabilitation,” Pl.’s Statement of Disputed Material Facts ¶ 2 [Dkt. # 33], RSA

denied “services” to Plaintiff, “stating that [he] had exhausted the maximum expenditure

allowed,” Am. Compl. ¶ 3. The “suspension” was lifted in 2010. Id. But from “2010 through

2013,” RSA continued to deny services “by mismanaging Plaintiff’s file, assigning to [his] file as

many as six or seven counselors resulting in missing documents and, on at least two occasions,

the destruction of the file itself.” Id. ¶ 4. “No sooner than the file [was] restored, a new

counselor [was] assigned resulting again in lost documents, causing a continuing pattern of

delays and the denial of service.” Id.

       In 2013, when Plaintiff anticipated that he may be unable to attend classes due to yet

another lost file, he complained to the RSA’s director, “describing the ongoing delays as

‘discriminatory’ [and] identifying the three-year denial of services unjustifiable.” Id. ¶ 6.

Plaintiff registered for and attended classes in the Fall of 2013 at George Washington University,

but RSA withheld “necessary allowances for books, travel and tuition, resulting [in] problems

related to train fares, supplies, and calls from the GW business office about delinquent tuition

payments.” Id. ¶ 9.




                                                  2
       At some point, Plaintiff was assigned a new counselor, Taylor Cummings, whom

Plaintiff describes as “efficient but biased, as indicated by her taking liberties with facts

pertaining to Plaintiff’s disability.” Am. Compl. ¶ 13. Allegedly, Cummings drafted “a letter

falsely asserting that Plaintiff ‘understands oral communication better than written

communication,’ a misrepresentation that later [would] interfere[ ] with Plaintiff’s rights under

the ADA.” Id. ¶ 14. Cummings also interfered with Plaintiff’s “rights by wheedling [him]

about signing [an] inaccurate IPE, asking [him] ‘to ignore the inaccuracies in the IPE that RSA

drafts unilaterally, coercing [him] to sign to be eligible for the withheld allowances.” Id. ¶ 15.

       Plaintiff alleges that “Deputy Director Reese” interfered with his “rights by permitting

Mr. Jonathan Keefe to yell shout at Plaintiff, threatening to close Plaintiff’s file to coerce

Plaintiff’s signature.” Am. Compl. ¶ 16. Allegedly, when plaintiff asked RSA “to remove the

false information,” his file was closed but reopened “when DC Protection and Advocacy

question[ed] RSA’s conduct related to the file closure.” Id. ¶ 17. But in response to Plaintiff’s

notifying D.C. Protection and Advocacy about “the inaccurate IPE and file closure,” RSA

retaliated “by withdrawing funding for art appraisal studies on the pretext that there [were] no

jobs.” Id. ¶ 18. To “salvage” his “career choice,” Plaintiff “emphasize[d] the similarities

between appraisal studies and legal studies, explaining how the National Appraiser’s

Examination contains a legal component that requires a year and a half commitment to study

contracts and business law.” Id. ¶ 19. But Deputy Director Reese “reject[ed] the analogy” and

denied Plaintiff’s modification request “to allow the LSAT to be used as an alternative

assessment tool in lieu of RSA’s emphasis upon repetitive neuropsychological retesting.” Id. ¶¶

19-20 (citing 28 C.F.R. § 35.130) (“General prohibitions against discrimination”).




                                                   3
        In March 2015, Deputy Director Reese allegedly interfered with Plaintiff’s rights under

the ADA “by telling Plaintiff to appeal RSA’s denial of [his] ADA modification request at the

DC Office of Administrative Hearings (OAH), to create issue preclusion, thereby barring

Plaintiff’s access to a Federal court.” Id. ¶ 21.

        In April 2015, RSA “set[ ] a deadline to schedule a meeting.” Id. ¶ 23. Allegedly,

Plaintiff “request[ed] an advocate and inform[ed] RSA of out-of-town oncology appointments,

but RSA impose[d] a 5PM deadline, after the fact,” in violation of “ADA proscriptions against

retaliation under title II.” Id. ¶ 24.

          2. The Evidentiary Record

        The District has proffered the Affidavit of Taylor Kenny (formerly Cummings) [Dkt.

# 29 at 44-46], who at the relevant time period was Plaintiff’s Vocational Rehabilitation

Specialist, and various exhibits. Plaintiff has proffered his Affidavit [Dkt. # 36-1 at 1-4] and

various exhibits.

        Kenney avers that Plaintiff “has received a variety of services from RSA, ranging from

assessment services, to post-secondary education and training, counseling and guidance, in-

house job placement services, and transportation.” Kenney Aff. ¶ 5. In response to Plaintiff’s

request in October 2014 to modify his IPE “to pursue a career as an attorney,” id. ¶ 6, Kenny

(then Cummings) asked Plaintiff “to participate in updated neuropsychological and vocational

evaluations in order to determine the appropriateness of the newly requested employment

outcome,” as well as “the nature and scope of any VR services that would be included in his

modified IPE . . . in keeping with 29 DCMR 110.3,” id. ¶ 7. Kenny “repeatedly . . . offered to

schedule appointments to assist” Plaintiff with providing “the required information and

documents and explained to him the necessity of such data.” Id. ¶ 8. Kenney avers that Plaintiff



                                                    4
“did not agree” to participate in the neuropsychological and vocational evaluations and generally

“refused to actively participate in the process of developing and modifying his IPE as requested.”

Id. ¶¶ 9-10. Consequently, on March 25, 2015, Plaintiff was notified “of pending case closure”

if he failed to participate in the assessments and to schedule an appointment by April 27, 2015.

Id. ¶ 11.

        On March 16, 2015, Plaintiff e-mailed Director Laura L. Nuss requesting that she “assist

me with respect to my request for modifications in policy and practices.” Def.’s Ex. 3 [Dkt. # 29

at 37]. In a letter to Plaintiff dated March 27, 2015, Director Nuss wrote:

            I received your letter requesting a policy exception regarding your
            request for the agency to provide support for you to attend Law School.
            My understanding is that your VR Specialist, Taylor Cummings, has
            explained that the first question that needs to be addressed is not your
            ability to participate in law school, but the appropriateness of attorney as
            an employment goal for you. Ms. Cummings has provided a clear
            explanation of the concerns she has about changing your employment
            goal. She recommended that you obtain an assessment in order for her to
            be able to reconsider changing the goal. She has also reached out several
            times in an attempt to have you come in for an appointment to discuss
            these issues. To date, you have refused to schedule an appointment with
            Ms. Cummings. She sent you a letter on March 25, 2015, advising you
            that if you are unwilling to meet to discuss how to move your case
            forward, that your case would be closed on April 27, 2015.

Pl.’s Ex. 5 [Dkt. # 36-1 at 20]. Nuss conveyed her “hope” that Plaintiff would “respond to Ms.

Cummings and schedule a meeting to discuss these issues with her.” Id. She also provided, as

did Cummings, contact information for the Client Assistance Program at University Legal

Services, Inc. Id.

        In an e-mail to Plaintiff on March 31, 2015, Cummings recounted that she had “relayed”

his “request for modification in policy to Mr. Andrew Reese and he instructed you to

communicate with me to make an appointment.” Def.’s Ex. 3 [Dkt. # 29 at 36]. Cummings

informed Plaintiff that notwithstanding his request to Director Nuss, the information in her


                                                 5
March 25, 2015 letter “still stands and appointment is to be scheduled with me by Monday, April

27th to prevent case closure.” Id. She explained that the purpose of the meeting “is to allow for

an open conversation of the reasons for my request for updated evaluations and to discuss further

services, as you’ve requested. I have also discussed with you that I will be able to provide an

outline for our meeting at least one week in advance and will provide a written summary for you

after our meeting.” Id. Cummings stressed in closing that “in order to move forward with your

case, we must have a scheduled appointment.” Id.

       In a letter addressed to Cummings on April 2, 2015, Plaintiff states his purported “need to

receive a written explanation of RSA’s posture related to my modification request prior to

scheduling a meeting” and takes issue with Cummings’ agreement to provide him “only an

‘outline’ and a ‘summary’ . . . devoid of any analytically reasoned explanation of facts and laws

in support of RSA’s position related to my ADA request for a waiver of policy.” Pl.’s Ex. 6

[Dkt. 36-1 at 22]. Plaintiff surmised that absent “a written explanation of RSA’s position well in

advance[,] any scheduled meeting . . . would invariably prove to be bewildering[.]” Id.

       By letter of April 27, 2015, Cummings informed Plaintiff, consistent with the earlier

warnings, that (1) his case seeking modification of the IEP was closed since he failed to provide

the “requested documentation,” and (2) he could appeal that decision within 30 days. Def.’s Ex.

1 [Dkt. # 29 at 27]. Cummings enclosed a “Right to Appeal” notice setting out various actions

Plaintiff could take at the administrative level.

       Plaintiff avers that on April 27, 2015, he “drove from Philadelphia with [a] medical

excuse after receiving treatment” and “email[ed] the excuse to RSA.” Aff. of Randy Brown

¶ 25. Plaintiff does not dispute that he failed to appeal the decision to close his case “through




                                                    6
administrative remedies available to him as outlined in his Right to Appeal letter.” Def.’s

Statement of Undisputed Facts ¶ 4.

       B. Procedural Background

       On April 25, 2016, Plaintiff lodged with the Clerk of Court a complaint and application

to proceed in forma pauperis (“IFP”). The IFP application was granted on May 18, 2016, and

this case was formally filed the next day, on May 19, 2016. The three counts of the Amended

Complaint invoke Title II of the ADA (Count 1), Section 504 of the Rehabilitation Act (Count

2), and Title II, Chapter 14 of the DCHRA (Count 3). Plaintiff seeks injunctive relief and “any

restitution that is lawful.” Am. Compl. at 33.

       In its Answer to the Amended Complaint [Dkt. # 16], the District asserts among other

defenses that Plaintiff (1) failed to exhaust his administrative remedies, (2) failed to meet the

applicable statute of limitations, and (3) would have been subjected to the alleged actions even if

he were not disabled. Answer at 27-28. In addition, the District contends that the challenged

actions were based on legitimate non-discriminatory reasons. Id. at 27. The Court issued a

schedule for discovery, which concluded on September 21, 2018. The District filed its

dispositive motion on November 7, 2018 [Dkt. # 10]; Plaintiff filed oppositions on December 17,

2018, and December 27, 2018 [Dkt. ## 33, 36], which the Court considers together as one

opposition; and the District filed its reply on January 2, 2019 [Dkt. # 35].

                                    II. LEGAL STANDARDS

       A. Subject Matter Jurisdiction

       Although the District mentions Federal Rule of Civil Procedure 12(b)(1), Mot. at 1, it has

not advanced a supporting argument. The complaint clearly raises federal questions over which




                                                  7
this Court has original jurisdiction. See 28 U.S.C. § 1331. Therefore, the motion to dismiss on

jurisdictional grounds is denied.

       B. Summary Judgment

       Because the court will rely on matters outside the complaint and answer to resolve the

District’s motion, it will apply the standards for summary judgment. Under Federal Rule of

Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.

2002). The moving party must identify “those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (internal quotations omitted).

       To defeat summary judgment, the nonmoving party must demonstrate through evidence

of his own that there is a genuine issue of material fact. Id. at 324. A material fact is one that is

capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A genuine dispute is one in which “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. The “evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. Still, a non-

moving party must establish more than the “mere existence of a scintilla of evidence” in support

of its position. Id. at 252. If “the evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Id. at 249-50 (citations omitted). Summary judgment is

appropriate also if, after discovery, a plaintiff fails to offer “evidence on which the jury could




                                                  8
reasonably find for [him]” on an essential element of his claim. Id. at 252; Celotex, 477 U.S. at

322; see also Nov. 7, 2018 Order [Dkt. # 31] (explaining same to Plaintiff).

       C. Applicable Laws

       Under Title II of the ADA “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

42 U.S.C. § 12132. To prevail on a Title II claim, Plaintiff must show “(1) that he is a ‘qualified

individual’ with a disability; (2) that he was excluded from participation in a public entity’s

services, programs or activities or was otherwise discriminated against by a public entity; and (3)

that such exclusion or discrimination was due to his disability.” Smith v. Henderson, 944 F.

Supp. 2d 89, 104 (D.D.C. 2013) (quoting Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d

144, 153 (2d Cir. 2013)).

       Section 794 of the Rehabilitation Act proscribes the same type of conduct by recipients of

federal funds and requires a similar but somewhat stricter showing. See Johnson v. Thompson,

971 F.2d 1487, 1492 (10th Cir. 1992) (“To prevail on the Rehabilitation Act claim, plaintiff

must show: (a) she is a disabled person, (b) she was “otherwise qualified” to receive treatment

from defendant, (c) defendant refused to treat her “solely by reason of” her disability, and (d)

defendant receives federal financial assistance.”); Adams v. District of Columbia, 618 Fed.

App’x 1, 2 (D.C. Cir. 2015) (per curiam) (claims under § 794 of the Rehabilitation Act “are

governed by the same standards of liability as govern the ADA claims”) (citing 29 U.S.C. §

794(d)); see also Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 206 (E.D.N.Y. 2000) (“Although

there are subtle differences between these disability acts, ‘the standards adopted by Title II of the

ADA for State and local government services are generally the same as those required under



                                                  9
section 504 of federally assisted programs and activities.’ ”) (citing 28 C.F.R. Pt. 35, App. A);

Sumes v. Andres, 938 F. Supp. 9, 11 (D.D.C. 1996) (same). The “remedies, procedures, and

rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) . . . shall be

available to any person aggrieved by any act or failure to act by any recipient of Federal

assistance or Federal provider of such assistance under section 794 of this title.” 29 U.S.C.

§ 794a. And Title II of the ADA adopts the “remedies, procedures, and rights set forth in section

794a of Title 29[.]” 42 U.S.C. § 12133.

       The District of Columbia Human Rights Act proscribes discrimination based on disability

as well. See D.C. Code § 1402.41. The Court’s analysis of the foregoing federal claims applies

equally to any analogous claims under the D.C. Human Rights Act. See Boykin v. Gray, 895 F.

Supp. 2d 199, 219 (D.D.C. 2012) (“District of Columbia courts interpreting the DCHRA ‘have

generally looked [for guidance] to cases from the federal courts’ arising under federal civil rights

statutes. . . . Therefore, the D.C. law is applied in the same manner as the parallel federal anti-

discrimination provisions.”) (quoting Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir.

1997); Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Engineers, P.C., 950 F. Supp.

393, 405 (D.D.C. 1996) (other citations omitted)).

                                         III. DISCUSSION

       The District contends that: (1) claims one and two should be dismissed because Plaintiff

failed to exhaust his administrative remedies under the ADA and the Rehabilitation Act; (2) all

three claims under the ADA, the Rehabilitation Act, and the DCHRA are time-barred; and (3)

the discrimination claims fail on the merits because RSA had legitimate non-discriminatory

reasons for the challenged actions.




                                                  10
       A. Failure to Exhaust

       It is established that a plaintiff’s failure to exhaust administrative remedies under the anti-

discrimination laws does not deprive the court of subject matter jurisdiction. See Fort Bend Cty.,

Texas v. Davis, 139 S. Ct. 1843, 1846 (2019) (holding that “Title VII’s charge-filing instruction

is not jurisdictional” but is instead “ranked among the array of claim-processing rules that must

be timely raised [by the defendant] to come into play”). Nor does a claim brought beyond the

applicable statute of limitations. See Doak v. Johnson, 798 F.3d 1096, 1104 (D.C. Cir. 2015)

(noting that Title VII’s “time limits ‘function[ ] like statutes of limitations,’ and thus ‘are subject

to equitable tolling, estoppel, and waiver’” and “nothing in the Rehabilitation Act . . . warrants

treating the same administrative time limit differently based on which claims are involved”)

(quoting Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)).

       Plaintiff does not dispute that he failed to properly exhaust his administrative remedies.

Instead, he counters that exhaustion was not required. See Opp’n Mem. at 5 [Dkt. # 36 at 3].

The Court agrees. “[Section] 794 of the Rehabilitation Act proscrib[ing] discrimination by . . .

federally funded entities . . . does not explicitly require the exhaustion of administrative

remedies.” Jones v. Univ. of D.C., 505 F. Supp. 2d 78, 85 (D.D.C. 2007). And courts have held

that litigants under Title VI -- the procedures of which § 794 of the Rehabilitation Act and Title

II of the ADA have adopted -- “need not exhaust their administrative remedies before pursuing

their private cause of action in federal court.” Neighborhood Action Coal. v. City of Canton,

Ohio, 882 F.2d 1012, 1015 (6th Cir. 1989); see Smith v. Henderson, 944 F. Supp. 2d 89, 100

(D.D.C. 2013) (“Title VI suits for individual claims of discrimination . . . need not be

exhausted”) (quoting Milbert v. Koop, 830 F.2d 354, 356 (D.C. Cir. 1987) (“Title VI, which

relates to the cutting off of funding of federal programs when certain prescribed discriminatory



                                                  11
conduct occurs, does not contain exhaustion requirements similar to those of Title VII.”))).

Therefore, the Court denies the District’s motion to dismiss on exhaustion grounds.

       B. Statute of Limitations

       It is well-established that when, as in this case, a federal law does not specify a time

period in which to bring a claim, courts should apply “the statute of limitations from an

analogous state statute.” N. Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (noting that since

1830, “state statutes have repeatedly supplied the periods of limitations for federal causes of

action when the federal legislation [has] made no provision”) (internal quotation marks and

citation omitted)). As indicated above, the DCHRA, proscribing disability discrimination, is the

local law most comparable to the ADA and the Rehabilitation Act. It requires that a “private

cause of action” be brought “within one year of the unlawful discriminatory act, or the discovery

thereof[.]” D.C. Code § 2-1403.16. The District of Columbia Court of Appeals, which is

accorded deference on questions of D.C. law, has applied “[t]he same statute of limitations and

tolling provision[s]” to claims “brought under either the Rehabilitation Act or the [DC]HRA.”

Jaiyeola v. District of Columbia, 40 A.3d 356, 369 (D.C. 2012). And this Court has followed

suit. See Congress v. District of Columbia, 324 F. Supp. 3d 164, 172 (D.D.C. 2018) (finding

“Jaiyeola’s reasoning persuasive,” insofar as “the D.C. Human Rights Act and the Rehabilitation

Act[ ] have a ‘shared purpose and ambitious aims’—both seek to end discrimination against

individuals with disabilities,” provide private causes of action for disability discrimination, and

“allow for a similar set of remedies”) (quoting Jaiyeola, 40 A.3d at 367)); Ware v. Hyatt Corp.,

No. 12-cv-0395, 2013 WL 12321372, at *15 (D.D.C. Mar. 27, 2013) (adopting “the one-year

statute of limitations from the DCHRA as the statute of limitations applicable to the

Rehabilitation Act” claim).



                                                 12
        The predicate discriminatory action for accrual purposes is unclear. In opposing

summary judgment, Plaintiff suggests that his claim does not “stem[ ]” from the closure of [his]

case” but rather from RSA’s alleged “refus[al] to modify a schedule to accommodate Plaintiff’s

cancer treatment[.]” Opp’n Mem. at 1. Still, Plaintiff returns to the closing of his case on April

27, 2015, and the circumstances leading up to that decisive action. See id. at 2. The Court finds

that Plaintiff’s claim accrued on April 27, 2015, thereby triggering a deadline of April 27, 2016,

to file a civil action.

        It is long settled that a plaintiff is not responsible for the administrative delay associated

with the Court’s review of an IFP application submitted with the complaint. See Johnson v.

Interstate Mgmt. Co., LLC, 871 F. Supp. 2d 1, 4 (D.D.C. 2012), aff'd, No. 14-7164, 2015 WL

4072092 (D.C. Cir. June 29, 2015). In such circumstances, the date the documents are received

control. The Clerk’s May 19, 2016 docket entry establishes the receipt of Plaintiff’s “Initiating

Pleading & IFP Application” on April 26, 2016, thereby rendering the claims predicated on the

closure of Plaintiff’s case on April 27, 2015, timely.

        That said, Plaintiff’s factual allegations describe three incidents liberally construed as

supporting his “continuing pattern of discriminatory conduct” theory, Am. Compl. at 1, which if

proven could render otherwise untimely violations actionable. See Nat'l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 110-14 (2002) (discussing continuing violation doctrine). First, in 2009,

after three years of providing services, RSA informed Plaintiff that he was “ineligible for further

services.” Pl.’s Facts ¶ 2. Second, in the summer of 2013, when “in response to a pending

discrimination complaint for denying services, RSA authorize[d] Plaintiff to enroll at George

Washington University but sabotages” his “efforts, by refusing to pay for books, transportation

and tuition.” Id. ¶ 4. Third, on May 23, 2014, “Mr. Jonathan Keefe . . . yell[ed] threats and



                                                  13
insults for approximately 45 minutes to coerce Plaintiff to sign a false IEP” and then closed

Plaintiff’s file for “insubordination” when he refused. Id. ¶ 5. Plaintiff claims that the IPE was

“riddled with false statements alleging that payments had been made for items about which [he]

knew nothing” and that he “had decided to return to teaching and to forego art appraisal studies.”

Pl.’s Aff. ¶ 13 [Dkt. # 36-1 at 3]. The file was reopened with the assistance of University Legal

Services. Pl.’s Facts ¶ 5.

       Plaintiff does not allege that those decisions had anything to do with his disability.

Rather, he admits that RSA “promise[d]” to pay the expenses to attend GWU “if [he] signed a

false IEP to forego services,” id. ¶ 4, and that his refusal to sign “a false IEP” is what triggered

the encounter with Keefe, id. ¶ 5. But the mere fact that the IEP may have been false is not

material to the outcome of this discrimination case. Cf. Fischbach v. D.C. Dep't of Corr., 86

F.3d 1180, 1183 (D.C. Cir. 1996) (courts “may not second-guess an employer’s personnel

decision absent demonstrably discriminatory motive”) (internal quotation marks and citation

omitted)). Moreover, the foregoing isolated events do not support a pattern, much less a

“continuing pattern of discriminatory conduct.” Am. Compl. at 1. And “discrete discriminatory

acts are not actionable if time barred, even when they are related to acts alleged in timely filed

charges.” Morgan, 536 U.S. at 113. Therefore, the Court agrees that any claims based on

occurrences before April 27, 2015, are barred by the one-year statute of limitations and grants

summary judgment to the District on any such claims.

       C. The Merits

          1. Disability Discrimination

       Accepting that Plaintiff has stated a prima facie case of disability discrimination, and in

the absence of any direct evidence of such discrimination, the Court turns to the familiar burden-



                                                  14
shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

the central question of whether Plaintiff has “produced sufficient evidence for a reasonable jury

to find that [RSA’s] asserted non-discriminatory reason [for the case closure in April 2015] was

not the actual reason and that [RSA] intentionally discriminated against the plaintiff on a

prohibited basis,” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008)

(citations omitted).

        The District has articulated a legitimate, nondiscriminatory reason for closing Plaintiff’s

case, in that he simply refused to “participate in the process of developing and modifying” his

IPE. Kenney Aff. ¶ 9; see id. ¶¶ 5-8 (describing the process); see also Director Nuss’ letter [Dkt.

# 36-1 at 20]. Plaintiff has offered no contrary evidence, let alone evidence from which a

reasonable jury could find that RSA closed the case because of his “cognitive disability.” Am.

Compl. ¶ 2. Consequently, the District is entitled to judgment as a matter of law on Plaintiff’s

discrimination claim.

          2. Failure to Accommodate

        Plaintiff suggests that RSA failed to reasonably accommodate his schedule for cancer

treatments. Discrimination under the ADA and Rehabilitation Act “includes the failure to

provide ‘reasonable accommodations’ to a ‘qualified individual with a disability,’ unless doing

so would constitute an undue hardship.” Martin v. District of Columbia, 78 F. Supp. 3d 279,

317-18 (D.D.C. 2015) (quoting 42 U.S.C. § 12112(b)(5)(A) (citing Gordon v. District of

Columbia, 480 F. Supp. 2d 112, 115 (D.D.C. 2007)). In the context of Title II of the ADA and

§ 504 of the Rehabilitation Act, “[p]ersons with disabilities are ‘qualified’ if they, ‘with or

without reasonable modifications to rules, policies, or practices . . . mee[t] the essential eligibility

requirements for the receipt of services or the participation in programs or activities provided by



                                                  15
a public entity.’” 1 Tennessee v. Lane, 541 U.S. 509, 517 (quoting 42 U.S.C. § 12131(2)). But a

cancer diagnosis is not per se a disability under the ADA or Rehabilitation Act, and Plaintiff has

pled no other facts establishing a disability. See Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir.

2008) (noting that ‘Disability” is [a] term of art under the statute[s] that carries a specific

meaning”).

        Notwithstanding the pleading defect, and for the sake of completeness, the Court finds no

triable issue on the reasonable accommodation claim. Plaintiff has offered nothing to present to

a jury establishing when (and how often) the alleged scheduling issue arose. Nor has he

adequately disputed the overwhelming evidence in the record that he was “repeatedly . . .

offered” times for “appointments” to participate in the process of modifying his IPE. Kenney

Aff. ¶ 8. The fact that Plaintiff was given nearly a month -- between the warning letter and the

actual closure letter – to schedule an appointment for “an open conversation” about his request,

Def.’s Ex. 3, does not bode well for him either.

        Plaintiff proffers a medical statement dated April 27, 2015, which he contends “informs

RSA of the need [to] make reasonable modifications.” Opp’n Mem. at 14 [Dkt. # 36 at 12]. The

statement is dated April 27, 2015, which is not only the date of RSA’s case closure letter but the

date that Plaintiff avers he emailed the statement to RSA. Aff. of Randy Brown ¶ 25. The

statement lacks probative value because “[a]n underlying assumption of any reasonable

accommodation claim is that the plaintiff . . . has requested an accommodation which the

defendant . . . has denied.” Flemmings v. Howard Univ., 198 F. 3d 857, 861 (D.C. Cir. 1999). In

other words, “[t]o create an issue for the jury with respect to this request,” Plaintiff “was required


1
      Plaintiff requested a modification of policy or practice to avoid what he viewed as
“duplicative neuropsychological testing,” Pl.’s Ex. 6 at 24, but his proposal to rely instead on the
LSAT as an assessment tool, id., is baffling, and Deputy Director Reese rightly “reject[ed] the
analogy.” Am. Compl. ¶ 20.

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to produce sufficient evidence that, after [the] request, [the District] refused to make an

accommodation.” Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1308 (D.C. Cir. 2010)

(citations omitted). Plaintiff has adduced no such evidence. Consequently, the District is

entitled to judgment on this claim as well.

                                          CONCLUSION

       For the foregoing reasons, Defendant’s motion for summary judgment is granted. A

separate order accompanies this Memorandum Opinion.



                                              SIGNED:  EMMET G. SULLIVAN
                                              UNITED STATES DISTRICT JUDGE
DATE: September 12, 2019




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