    SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    :
PENELOPE MINTER,                    :
                                    :
                  Plaintiff,        :
      v.                            :                  Civil Action No. 10-0516 (RLW)
                                    :
DISTRICT OF COLUMBIA,               :
                                    :
                  Defendant.        :
___________________________________ :


                                  MEMORANDUM OPINION1

         According to the plaintiff, the District of Columbia failed to make reasonable

accommodations for her disability and terminated her employment in violation of Titles I and II

of the Americans with Disabilities Act (“ADA”), see 42 U.S.C. §§ 12101 et seq., the

Rehabilitation Act, see 29 U.S.C. §§ 791 et seq., and the District of Columbia Human Rights Act

(“DCHRA”), see D.C. Code §§ 2-1401.01 et seq. This matter is before the Court on the District

of Columbia’s motion to dismiss or for summary judgment. For the reasons discussed below, the

motion will be denied without prejudice.

    I.      LEGAL STANDARD

         The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that 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.



1
 This is a summary opinion intended for the parties and those persons familiar with the facts and
arguments set forth in the pleadings; not intended for publication in the official reporters.
                                                  1
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Rule 12(b)(6) tests the legal

sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To

survive a [Rule 12(b)(6)] 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); Twombly, 550 U.S. at 570. A complaint must be dismissed if it consists

only of “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements.” Iqbal, 129 S. Ct. at 1949.

        On a Rule 12(b)(6) motion, the Court treats the factual allegations of a plaintiff’s

complaint as if they were true, and draws all reasonable inferences stemming from such factual

allegations in the plaintiff’s favor. See Erickson, 551 U.S. at 94. While the complaint is to be

“construed liberally in the [plaintiff’s] favor,” the Court “need not accept inferences drawn by

plaintiff[] if such inferences are unsupported by the facts set out in the complaint.” Kowal v.

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Twombly, 550 U.S. at 555

(stating that a court is “not bound to accept as true a legal conclusion couched as a factual

allegation”).

        Summary judgment is appropriate when the moving party demonstrates that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. See Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c)

and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A genuine issue of material fact

exists if the evidence “is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248. A party, however, must provide more than “a scintilla of




                                                   2
      SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


evidence” in support of its position; the quantum of evidence must be such that a jury could

reasonably find for the moving party. Id. at 252.

II.      BACKGROUND

         The plaintiff “suffers from sarcoidosis and rheumatoid arthritis, both of which are

chronic, systemic inflammatory diseases that cause pain in the joints, lungs, lymph nodes and

other tissue.” Am. Compl. ¶ 10. In addition, the plaintiff has “fibromyalgia, a medical disorder

characterized by chronic widespread pain, debilitation fatigue, sleep disturbance and joint

stiffness.” Id. ¶ 10.

         The plaintiff was employed by the District of Columbia as a social worker for

approximately 19 years. Id. ¶ 9. During those years, she “was promoted several times, managed

independent programs and staff, and had excellent recommendations.” Id. ¶ 11.

         In August 2001, the plaintiff was detailed to the Child Fatality Review Committee

(“CFRC”) as a Program Specialist with the Office of the Chief Medical Examiner (“OCME”).

Id. ¶ 12. When a new Child Fatality Review (“CFR”) Coordinator position was advertised, the

plaintiff applied and interviewed for the position, but was not selected. Id. ¶ 13. On the belief

that a less qualified person with no prior experience in fatality review had been chosen, the

plaintiff filed a grievance. Id. ¶ 14. Although the position was withdrawn after she filed her

grievance, according to the plaintiff, the position later was awarded to the same, less qualified

individual. Id. The plaintiff was informed by her supervisor, Sharan James, that she was not

selected because she had previously made “requests . . . for accommodation of her disabilities.”

Id. ¶ 15.

         In late 2004 or early 2005, Ms. James “was promoted to Fatality Review Coordinator,

leaving the CFR Coordinator position vacant.” Id. ¶ 18. In early 2006, the District advertised


                                                  3
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


two positions: Child Fatality Review Coordinator and Domestic Violence Fatality Review

(“DVFR”) Coordinator. Id. ¶ 20. Upon the belief that the latter position had a “less burdensome

case load,” id. ¶ 22, which “would best accommodate [her] health conditions,” id. ¶ 20, the

plaintiff expressed a preference to Ms. James for the DVFR Coordinator position, id. ¶ 22. After

discussing both positions with Ms. James, as well as “specific accommodations for her disability

as . . . related to each position,” id., the plaintiff applied for both positions. Id. ¶ 24. The

accommodations she sought “included a flexible work schedule, reduced hours, or the ability to

work from home one or two days per week.” Id. ¶ 22. With Ms. James’ coaxing, however, and

in light of the plaintiff’s experience with child fatality review, the plaintiff withdrew her

application for the DVFR Coordinator position. Id. The plaintiff was offered the CFR

Coordinator position, and she accepted the position on or about May 1, 2006. Id. ¶ 25. The CFR

Coordinator’s duties included the day-to-day management of the CFRC, supervision and training

of CFRC staff, development of grant applications, selection and assignment of cases for review,

development of reports from case reviews, and attendance at review team meetings. See id.

        In June 2006, id. ¶ 27, and on two other occasions, id. ¶ 28, the plaintiff sought

permission to work from home one to two days per week to accommodate her disabilities. Id. ¶

26. Although “Ms. James allowed staff to have flexible schedules upon request,” id. ¶ 23, the

plaintiff’s requests were denied, id. ¶ 27, in part because of “confidentiality concerns” about

taking “medical records home to review,” id. ¶ 29, notwithstanding Ms. James’

acknowledgement that she and the plaintiff “already brought work home on a regular basis, as

did numerous co-workers,” id. ¶ 30. Instead, Ms. James “recommended that [the plaintiff]

convert the position to [a] part-time” position. Id. ¶ 27.




                                                   4
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


       On September 26, 2006, the plaintiff “slipped on the wet, newly-waxed hallway floor in

the OCME building” resulting in injuries to her back and left knee, and aggravating prior injuries

to her left ankle and foot sustained in a 2005 fall, id. ¶ 32, when she “tripped over office

equipment power cords,” fell, and “injured her left ankle and foot.” Id. ¶ 19. She sought

disability compensation for her injuries. See id. ¶ 34.

       The plaintiff requested clerical or administrative assistance with her non-essential duties;

Ms. James allegedly “refused the accommodation and indicated that she would only consider [it

if the plaintiff] converted her full-time position to part-time.” Id. ¶ 36. After having met with an

EEO Coordinator, see id. ¶¶ 36, 38, the plaintiff filed a charge of discrimination based on

disability with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 39.

       As her condition worsened in early 2007, and as she was pursuing “overlapping Workers’

Compensation and ADA claims” without assistance, id. ¶ 42, the plaintiff “began staying up late

to work to keep up with her work load and her frequent doctor and physical therapy

appointments,” id. ¶ 43. Ms. James allegedly warned the plaintiff “that she was prohibited from

staying late and that the administrative staff was ‘watching her.’” Id. By February’s end, the

plaintiff experienced “pain and fatigue from the injuries and disability [which] required

significant periods of rest and inactivity for less and less exertion.” Id. ¶ 44. The stress and

“medical duress” she experienced prompted the plaintiff to take medical leave on February 27,

2007. Id. Her status was recorded as “absent without leave” instead of “leave without pay.” Id.

¶ 45. The plaintiff was instructed “not to return to work until she was ‘fit for duty,’ and that she

should apply for Social Security Disability Income.” Id. ¶ 47.

       The plaintiff conferred with OCME’s Chief of Staff, Beverly Fields, and General

Counsel, Sharlene Williams, on June 1, 2007, id. ¶ 47, at which time the plaintiff was advised


                                                  5
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


that “they had calculated [her] Family Medical and Leave Act (‘FMLA’) leave and [determined

that] she had none left,” id. The plaintiff had not applied for FMLA leave at that point, and was

permitted to do so even though the request “would be declined since she had no leave left.” Id.


        At the suggestion of Ms. Fields and Ms. Williams, see id., on June 3, 2007, the plaintiff

requested FMLA leave, asked to be placed on leave without pay status, or, alternatively, asked

“to have leave loaned to her via the ‘Leave Bank.’” Id. ¶ 48. On June 14, 2007, Ms. James sent

the plaintiff a written request for “medical certification for her FMLA application,” id. ¶ 49, and

on June 20, 2001, the plaintiff submitted “a medical certification from her neurologist . . . that

[she] was ‘totally disabled’” for an indefinite period beginning on September 26, 2006, id. ¶ 50.

She “projected that she would return to work by early September 2007 based on her prognosis.”

Id. ¶ 50.


        The plaintiff’s employment was terminated effective August 8, 2007, an action which the

plaintiff attributes to “her attempts to secure . . . reasonable accommodation for her disabilities.”

Id. ¶ 51. She filed a second charge of discrimination based on disability with the EEOC on

October 19, 2007. Id. ¶¶ 53, 58a. The EEOC issued a Notice of Right to Sue on December 22,

2009. Id. ¶¶ 56, 58.c.


        On November 14, 2007, the plaintiff also filed a charge of discrimination with the

District of Columbia’s Office of Human Rights (“DCOHR”) “alleging retaliation and denial of

D.C. FMLA benefits; her charge was dismissed administratively based on the prior EEOC filing,

however. Id. ¶ 54. Her request for reconsideration was granted on February 5, 2008, but only

with respect to the FMLA allegation. Id. ¶ 55. By letter dated June 3, 2008, the DCOHR




                                                  6
   SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


notified the plaintiff that it found “no probable cause to believe that the District unlawfully

denied [her] leave pursuant to the D.C. FMLA.” Id.

       On March 22, 2010, the plaintiff submitted her pro se complaint and application to

proceed in forma pauperis to the Clerk of Court. The Court granted her application to proceed in

forma pauperis on March 26, 2010, and the Clerk docketed the complaint and application on

March 30, 2010.

       The plaintiff alleges that the District failed to provide her reasonable accommodation for

her disability, namely a flexible work schedule or permission to work from home one or two

days per week (Counts I and II), and discharged her for having requested accommodations

(Count III), in violation of the ADA. She further alleges that these same actions violated the

Rehabilitation Act (Counts IV and V). Lastly, the plaintiff alleges that her termination violated

the DCHRA (Count VI). She demands a declaratory judgment, reinstatement, back pay, and an

award of attorney fees and costs, among other relief.

III.   DISCUSSION

                           A. The Plaintiff Filed Her Complaint Timely

       A plaintiff bringing a disability discrimination claim under Title I of the ADA must file

her complaint within 90 days after receipt of a right-to-sue letter from the EEOC. See 42 U.S.C.

§§ 2000e-5(f)(1), 12117(a). The District of Columbia moves to dismiss Counts I and III of the

Amended Complaint on the ground that the plaintiff failed to file her complaint timely. See

Mem. of P. & A. in Supp. of Def. District of Columbia’s Mot. to Dismiss, or in the Alternative,

for Summ. J. (“Def.’s Mem.”) at 5-6. Specifically, the District argues that the plaintiff did not

file her complaint until March 30, 2010, the date on which the Clerk docketed the pleading, or 94

days after her receipt of the right-to-sue letter. Id. at 6. The plaintiff responds by stating that


                                                   7
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


“[t]he date the Clerk’s Office received the complaint, March 22, 2010, is within the 90-day filing

period that began when [she] received her right-to-sue letter from the EEOC on December 22,

2009.” Minter’s Mem. in Opp’n to the District of Columba’s Mot. to Dismiss, or, in the

Alternative, for Summ. J. (“Pl.’s Opp’n”) at 4. The Court concurs.


       Any delay which occurred between the Clerk’s receipt of this pro se complaint,

accompanied by an application to proceed in forma pauperis, and entry of these documents on

the Court’s electronic docket is attributed to the Court’s internal processes. The statute of

limitations is tolled for this period. See Murray v. Harvey, No. 05-0514, 2006 WL 176103, at *1

(D.D.C. Jan. 24, 2006) (tolling the 90-day statute of limitations for the filing of an employment

discrimination complaint from the date on which the Clerk received the pro se plaintiff’s

complaint and application to proceed in forma pauperis and the date on which the Clerk

officially filed the complaint on the Court’s electronic docket); Guillen v. Nat’l Grange, 955 F.

Supp. 144, 144-45 (D.D.C. 1997). The plaintiff is not penalized for this administrative delay.

See, e.g., Tawwaab v. Virginia Linen Serv., Inc., 594 F. Supp. 2d 68, 70 (D.D.C. 2009). Ninety

calendar days from December 22, 2009, the date on which the plaintiff received the right-to-sue

letter, falls on March 22, 2010, the date on which the Clerk received her pro se complaint and

application to proceed in forma pauperis.

       The Court concludes that the plaintiff timely filed her complaint, and the District’s

motion to dismiss Counts I and III on this basis will be denied.

                  B. The Plaintiff Alleges that She Is a “Qualified Individual”

       The standards for a failure-to-accommodate claim are the same under both the ADA and

Rehabilitation Act:




                                                 8
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


               In order to make out a prima facie case, a plaintiff must show: (1)
               that she was an individual who had a disability within the meaning
               of the statute; (2) that the employer had notice of her disability; (3)
               that with reasonable accommodation she could perform the
               essential functions of the position; and (4) that the employer
               refused to make such accommodations.

Gordon v. District of Columbia, 480 F. Supp. 2d 112, 115 (D.D.C. 2007). The District of

Columbia moves to dismiss the plaintiff’s discrimination and retaliation claims under both the

ADA and the Rehabilitation Act on the ground that the plaintiff is not a “qualified individual” for

purposes of these statutes. See generally Def.’s Mem. at 6-8.

       Generally, the ADA prohibits a covered entity from “discriminat[ing] against a qualified

individual on the basis of disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The parties do not dispute

that the District of Columbia is “covered entity” for purposes of the ADA.

       For purposes of Title I of the ADA, a “qualified individual” is:

               [A]n individual who, with or without reasonable accommodation,
               can perform the essential functions of the employment position
               that such individual holds or desires.

42 U.S.C. § 12111(8). A disability is:

               (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); see 29 U.S.C. § 705(9)(B) (adopting the ADA’s definition

of “disability” for purposes of the Rehabilitation Act). The parties do not dispute

that “working” is considered a major life activity. 42 U.S.C. § 12102(2)(A).




                                                  9
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


        Focusing narrowly on the “medical certification from her neurologist . . . that [the

plaintiff] was ‘totally disabled’ from September 26, 2006 to ‘indefinitely,’” Am. Compl. ¶ 50,

the District argues that the plaintiff is not a qualified individual because she “was unable to

perform the essential duties of her position.” Def.’s Mem. at 8. According to the District, an

employee who is on indefinite leave or who cannot appear at her designated workplace cannot

perform essential functions of her job. See id. at 7. Because [the] plaintiff has plead that she was

totally and indefinitely disabled, she cannot also contend that she was a ‘qualified individual.’”

Id. at 8.

        The plaintiff counters that the District “has mischaracterized the facts stated in the

Amended Complaint” by “improperly focus[ing] only on a certification from [the] neurologist,

which addresses her prior workplace injuries and preexisting disability as ‘total and indefinite’

for purposes of her disability claims.” Pl.’s Opp’n at 4.

        For purposes of this motion, the Court accepts the factual allegations of the Amended

Complaint as true, and during the relevant time period, the plaintiff had been placed on “absent

without leave” status. See Am. Compl. ¶¶ 44-45. It appears that the plaintiff obtained the

neurologist’s certification to support her application for Social Security Disability Income

benefits, id. ¶ 47, or her request for excused leave (such as leave without pay or FMLA leave),

see id. ¶¶ 48-49, particularly in light of her stated intention to “return to work by early September

2007 based on her progress” at that time, id. ¶ 50.

        The fact that the plaintiff was deemed “totally disabled” for purposes of seeking

disability benefits or FMLA leave does not automatically preclude her assertion of disability for

purposes of the ADA or the Rehabilitation Act. See Cleveland v. Policy Management Sys. Corp.,

526 U.S. 795, 803 (1999); Swanks v. Washington Metro. Area Transit Auth., 116 F.3d 582, 586


                                                 10
    SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


(D.C. Cir. 1997) (holding that the receipt of disability benefits does not preclude subsequent

ADA relief). In some situations a claim for Social Security Disability Income benefits “can

comfortably coexist side by side” with an ADA claim. Cleveland, 526 U.S. at 803. While the

ADA takes into account a plaintiff’s ability to perform the essential functions of her position

with a reasonable accommodation, the Social Security Administration does not, see id., imposing

a burden on the plaintiff to “explain[] the discrepancy” between her claim of total disability for

one purpose, while claiming that she could perform the essential functions of her position for

another. Id. at 807. The plaintiff should be allowed to do so in this case.

          C. The Plaintiff’s Amended Complaint Adequately Alleges Retaliation Claims

        According to the District, the plaintiff’s retaliation claims (Counts III, V and VI) “are

inextricably entwined with her claims for failure to accommodate,” and therefore the retaliation

claims also must fail. 2 Def.’s Mem. at 8. Based on the neurologist’s certification that the

plaintiff would be unable to work at all for an indefinite period, the District argues, “her

allegations preclude any causal connection between [her] protected activity and her termination.”

Id. at 9. The plaintiff counters that the neurologist’s certification was intended “for disability

benefit purposes . . . to determine the level of disability benefits paid to claimants,” and “was not

and is not [a certification that she is] ‘indefinitely and totally disabled’ for the purposes of her

ADA and Retaliation [Act] claims.” Pl.’s Opp’n at 6.

        A plaintiff states a claim of retaliation under the ADA by alleging that she engaged in

protected activity, that she was subjected to an adverse action by her employer, and that there is a

causal link between the protected activity and the adverse action. Mayers v. Laborers’ Health &

Safety Fund of N. Am., 478 F.3d 364, 369 (D.C. Cir. 2007) (citing Smith v. District of

2
         Counsel for the District represents that these arguments “apply equally to plaintiff’s claim
for relief under the DCHRA.” Def.’s Mem. at 8 n.3.
                                                  11
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)). Similarly, the elements of a retaliation claim

under the Rehabilitation Act are “that (1) she engaged in statutorily protected activity; (2) her

employer took a materially adverse action against her; and (3) a causal connection between the

two exists.” Norden v. Samper, 503 F. Supp. 2d 130, 156 (D.D.C. 2007). Causation may be

established by “a close temporal relationship alone” between the protected activity and the

adverse action. Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003). The

parties do not dispute that termination is an adverse action, and the Amended Complaint

adequately alleges the remaining elements of both the ADA and Rehabilitation Act claims: the

plaintiff’s engagement in protected activity by requesting accommodations and by filing charges

of discrimination, see Am. Compl. ¶¶ 80-84 (Count III), 99-103 (Count V), and suggesting, at

least, temporal proximity between her protected activity and her termination, see id. ¶¶ 32-51, as

most of the pertinent events occurred within a one-year period.

                 D. The Plaintiff’s Claim Under Title II of the ADA May Proceed

       According to the plaintiff, the District of Columbia is a “public entity” for purposes of the

ADA, Am. Compl. ¶ 72, and in this capacity the District “denied [the plaintiff an] opportunity

for a reasonable accommodation for her disability,” id. ¶ 75, in violation of the ADA, id. ¶ 76.

The District of Columbia argues that Count II must be dismissed because employment

discrimination is not actionable under Title II of the ADA. See generally Def.’s Mem. at 9-14.

The plaintiff objects, see generally Pl.’s Opp’n at 8-11, and urges the Court to adopt an

alternative view, id. at 9, that employment discrimination claims may be brought under Title II of

the ADA, id. at 8.


       Title I of the ADA expressly applies to employment, see 42 U.S.C. § 12112(a), while

Title II pertains to public services, providing that:

                                                  12
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


               [N]o 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(a) (emphasis added). The District does not cite, and the Court does not

identify, controlling authority to support the proposition that an employment discrimination

claim cannot be brought under Title II of the ADA. On the current record, the Court will deny

the District’s motion to dismiss Count II of the Amended Complaint.

                E. The DCHRA Claim Is Not Barred Under D.C. Code § 12-309

       In relevant part, D.C. Code § 12-309 provides:


               An action may not be maintained against the District of Columbia
               for unliquidated damages to person or property unless, within six
               months after the injury or damage was sustained, the claimant . . .
               has given notice in writing to the Mayor of the District of
               Columbia of the approximate time, place, cause, and circumstances
               of the injury or damage.
D.C. Code § 23-309 (emphasis added). The provision applies to claims under the DCHRA. See

Blocker-Burnette v. District of Columbia, 730 F. Supp. 2d 200, 203 (D.D.C. 2010); Owens v.

District of Columbia, 993 A.2d 1085, 1087-88 (D.C. 2010) (collecting cases). Notice to the

Mayor under D.C. Code § 23-309 is a prerequisite to suit because it operates as a waiver of the

District’s sovereign immunity, see, e.g., Faison v. District of Columbia, 664 F. Supp. 2d 59, 68

(D.D.C. 2009), and compliance with it is mandatory, see id.

       The District of Columbia moves to dismiss the discrimination claim under the DCHRA

(Count VI) on the ground that the plaintiff failed to provide notice of her claim under D.C. Code

§ 12-309. See Def.’s Mem. at 14-16; see id., Ex. B (Heard Decl.) ¶ 4. The plaintiff argues that

the notice requirement applies to unliquidated damages, not to her demands for liquidated

damages and equitable relief. Pl.’s Opp’n at 12.


                                                13
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


         “A debt is liquidated if at the time it arose, it was an easily ascertainable sum certain.”

District of Columbia v. Campbell, 580 A.2d 1295, 1300 (D.C. 1990) (internal quotation marks

and citation omitted). Generally, because awards of back pay “are easily ascertainable,” they are

considered liquidated damages. Elzeneiny v. District of Columbia, 699 F. Supp. 2d 31, 34

(D.D.C. 2010). Moreover, “back pay awards in employment discrimination cases are generally

considered a form of equitable relief, and equitable relief is not barred by § 12-309,” id., (citing

Caudle v. District of Columbia, No. 08-0205, 2008 WL 3523153, at *2 (D.D.C. Aug. 13, 2008)),

and awards of attorney’s fees “are not generally considered damages at all under District of

Columbia law and thus are not encompassed by the phrase ‘unliquidated damages,’” id. (citing

Caudle, 2008 WL 3523153, at *3). Persuaded by this authority, the Court concludes that the

plaintiff’s failure to submit notice to the District under D.C. Code § 12-309 does not bar her

disability claim or her demand for relief in the form of back pay, reinstatement of her

employment, civil service status, and annual and sick leave, and an award of attorneys’ fees and

costs.

   F. The Defendant’s Motion to Dismiss Based on the Statute of Limitations Will Be Denied

         The District of Columbia moves to dismiss the plaintiff’s “allegations” of events

pertinent to the Rehabilitation Act arising on or before March 30, 2007, on the ground that a

three-year statute of limitations bars such claims. See Def.’s Mem. at 16-17.

         A party may raise the statute of limitations as an affirmative defense on a motion under

Rule 12(b)(6) “when the facts that give rise to the defense are clear from the face of the

complaint.” Adams v. District of Columbia, 740 F. Supp. 2d 173, 179 (D.D.C. 2010) (citing

Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)). The District

contends that, “[a]lthough the Rehabilitation Act does not include its own statute of limitations, .


                                                   14
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


. . courts draw ‘the statute limitations from the analogous state statute,’” Def.’s Mem. at 16

(quoting Adams, 740 F. Supp. 2d at 184), meaning that a three-year statute of limitations applies,

see id. (citing Stewart v. District of Columbia, No. 04-1444, 2006 WL 626921, at *11 (D.D.C.

Mar. 12, 2006) (applying D.C. Code § 12-301). In light of the plaintiff’s filing of this action on

March 30, 2010, the defendant argues that claims arising on or before March 30, 2007, are not

actionable. See id.

        In addition, the District moves to dismiss the plaintiff’s ADA “allegations,” Def.’s Mem.

at 18, arising on or before April 22, 2007, id. at 17. Where, as the District asserts, a worksharing

agreement exists between the EEOC and the District’s local fair employment practices agency, a

plaintiff must file her claim within 300 days, see id. at 18, and allegations of events occurring

more than 300 days before filing of her first EEO charge on October 19, 2007, or “as far back in

time as ‘late 2002 or early 2003’ when the Child Fatality Review Committee purportedly ‘hired a

less qualified individual with no prior experience in fatality review,’” id., are subject to dismissal

as untimely, id. at 18-19.

        The plaintiff objects to the District’s efforts to bar “allegations,” rather than claims, see

Pl.’s Opp’n at 13, in what the plaintiff characterizes as an attempt to “erase its history of illegal

employment actions” against her, id. The Court declines to address any distinction between

allegations and claims, satisfied that, at this early stage of the proceedings, the plaintiff

adequately has alleged discrimination and retaliation under the ADA, the Rehabilitation Act, and

the DCHRA. Whether the plaintiff can prove her claims is a different question, and the District

will have an opportunity to explore the viability of the claims, and the dates on which they arose,

during discovery.

IV.     CONCLUSION


                                                  15
  SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.


       For the reasons discussed above, the Court concludes that the plaintiff timely filed this

action and her Amended Complaint adequately alleges claims of discrimination and retaliation

under the ADA, the Rehabilitation Act, and the DCHRA. Accordingly, the District’s motion to

dismiss or for summary judgment will be denied without prejudice. An Order accompanies this

Memorandum Opinion.


                                                                             Digitally signed by Judge Robert
                                                                             L. Wilkins
SO ORDERED.                                                                  DN: cn=Judge Robert L. Wilkins,
March 19, 2012                                                               o=U.S. District Court,
                                                                             ou=Chambers of Honorable
                                                                             Robert L. Wilkins,
                                                                             email=RW@dc.uscourt.gov, c=US
                                                                             Date: 2012.03.19 12:57:59 -04'00'
                                                     ___________________________
                                                     ROBERT L. WILKINS
                                                     United States District Judge




                                                16
