UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PRATEEK DAVE, : : Plaintiff, : Civil Action No.: 08-0856 (RMU) : v. : Document Nos.: 2, 5 : CATHY LANIER et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANT LANIER ’S MOTION TO DISMISS; ORDERING FURTHER BRIEFING ON THE ADA AND REHABILITATION ACT CLAIMS; DENYING DEFENDANT DISTRICT OF COLUMBIA ’S MOTION TO DISMISS THE TITLE VII CLAIM

I. INTRODUCTION

This matter comes before the court on the defendant’s motion to dismiss.1 The plaintiff, a

former cadet at the District of Columbia Metropolitan Police Department Institute of Police

Science (“IPS”), alleges discrimination and retaliation under the Americans with Disabilities Act

(“ADA”),

et seq.; the Rehabilitation Act,

et seq.; and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The defendant, the District of

Columbia, moves to dismiss the ADA and Rehabilitation Act claims under Federal Rule of Civil

Procedure 12(b)(6) for failure to sufficiently state a claim of disability discrimination. The

defendant further moves to dismiss the Title VII retaliation claim under Rule 12(b)(6) for failure

to state a claim. In light of recent changes to the ADA, the court orders further briefing on the

plaintiff’s ADA and Rehabilitation Act claims. And because, at this stage in the proceedings, the

1 Defendant Cathy Lanier has also moved to dismiss. Def. Lanier’s Mot. to Dismiss. Because the plaintiff has stated that he does not oppose Defendant Lanier’s motion to dismiss, the court grants it. See Pl.’s Resp. Accordingly, for the purposes of this Memorandum Opinion, “the defendant” shall refer to the District of Columbia. plaintiff has sufficiently pled his Title VII retaliation claim, the court denies the defendant’s

motion to dismiss as to this claim.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiff, an Indian American male, was a cadet at IPS from September 2004 until

September 2006. Compl. ¶¶ 5, 6. The plaintiff alleges that during a training exercise in

November 2004, a trainer of Hispanic descent pushed him down a hill, causing injury to his

shoulder. Id. ¶ 6. Believing that the trainer’s conduct was motivated by discriminatory animus,

the plaintiff complained about the incident to the defendant. Id. Following the incident, the

plaintiff was placed on limited duty or sick leave for five months to receive treatment for his

shoulder, which included Cortisone shots but no surgery. Id.

The plaintiff alleges that after he returned to work, the defendant retaliated against him

for reporting the incident. Id. ¶ 7. The alleged retaliation included giving him only academic

work supplemented by physical training, training him with a lower-level class, making sarcastic

remarks about his abilities and withholding specialized training necessary for graduation from

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

in an additional one to two months of sick leave. Id. While cadets normally graduate from the

academy in six months, the plaintiff spent two years at the academy and did not graduate. Id. ¶ 8.

In September 2006, the defendant issued the plaintiff a letter of termination from IPS. Id. ¶ 9.

After his termination, the plaintiff filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”), which subsequently issued him a right to sue letter. Id. ¶ 10. The

plaintiff filed the instant complaint on May 19, 2008. See generally Compl. The defendant has

2 moved to dismiss, arguing that the plaintiff fails to sufficiently plead any of his claims. See

generally Def.’s Mot. The plaintiff opposes the motion. See generally Pl.’s Opp’n. The court

now turns to the parties’ arguments.

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,

(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,

(D.C. Cir. 2003) (citing

FED . R. CIV . P. 8(a)(2) and Conley v. Gibson,

(1957)). “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,

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his

prima facie case in the complaint, Swierkiewicz v. Sonoma N.A.,

(2002), or

“plead law or match facts to every element of a legal theory,” Krieger v. Fadely,

(D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, the plaintiff must allege “any set of facts consistent with the allegations.” Bell Atl.

Corp. v. Twombly,

(2007) (abrogating the oft-quoted language from

Conley,

, 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”);

3 Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc.,

, 16 n.4 (D.C. Cir. 2008)

(affirming that “a complaint needs some information about the circumstances giving rise to the

claims”). While these facts must “possess enough heft to ‘sho[w] that the pleader is entitled to

relief,’” a complaint “does not need detailed factual allegations.” Twombly,

. 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,

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft,

(D.C. Cir.

2003); Browning,

. 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,

(D.C.

Cir. 2004); Browning,

.

B. The Court Orders Further Briefing on the ADA and Rehabilitation Act Claims

In September 2008, Congress passed the ADA Amendments Act of 2008 (“the Act”),

which establishes that past Supreme Court decisions have too narrowly defined “the broad scope

of protection intended to be afforded by the ADA.”

Stat. 3553

(effective Jan. 1, 2009). More specifically, the Act expressly disavows the Supreme Court’s

interpretation of the ADA in two leading cases, Sutton v. United Air Lines, Inc.,

(1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,

(2002).

(determining that Toyota Motor Manufacturing established a more limited interpretation of

“substantially limits” and “major life activity” than Congress intended and that Sutton too

narrowly limited the interpretation of “regarded as” disabled and improperly weighed the impact

4 of mitigating measures on the determination of whether an individual is disabled). The Act,

therefore, alters the legal landscape applicable in the instant action. In light of these changes, the

court orders further briefing by the parties on the plaintiff’s ADA and Rehabilitation Act claims.

C. The Court Denies the Defendant’s Motion to Dismiss the Title VII Retaliation Claim

1. Legal Standard for a Retaliation Claim

To prevail on a claim of retaliation, a plaintiff must follow the McDonnell Douglas

framework. Morgan v. Fed. Home Loan Mortgage Corp.,

(D.C. Cir. 2003)

(applying the McDonnell Douglas framework to a Title VII retaliation claim); Duncan v. Wash.

Metro. Area Transit Auth.,

, 49-50 & n.8 (D.D.C. 2003) (applying the McDonnell

Douglas framework to a Rehabilitation Act retaliation claim). The Supreme Court explained the

framework as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of [retaliation]. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, [non-retaliatory] reason for the employee’s rejection” . . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation] . . . . The ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff remains at all times with the plaintiff.

Tex. Dep’t of Cmty. Affairs v. Burdine,

(1981) (internal citations omitted)

(quoting McDonnell Douglas v. Green,

(1973)).

To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in

a statutorily protected activity, (2) a reasonable employee would have found the challenged

action materially adverse, and (3) there existed a causal connection between the protected activity

and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White,

, 67-

5 69 (2006); see also Scott v. Kempthorne,

, at *3 (10th Cir. July 17, 2006). The

plaintiff’s burden is not great: he “merely needs to establish facts adequate to permit an inference

of retaliatory motive.” Forman v. Small,

(D.C. Cir. 2001).

If the employer successfully presents a legitimate, non-retaliatory reason for its actions,

“the presumption raised by the prima facie is rebutted and drops from the case.” St. Mary’s

Honor Ctr. v. Hicks,

(1993) (internal citation omitted); Brady v. Office of the

Sergeant at Arms, U.S. House of Representatives,

(D.C. Cir. 2008) (noting

that “the prima facie case is a largely unnecessary sideshow”). Upon such a showing by the

defendant, the district court need resolve only one question: “Has the employee produced

sufficient evidence for a reasonable jury to find that the employer’s asserted non-[retaliatory]

reason was not the actual reason and that the employer intentionally [retaliated] against the

employee on the basis of race, color, religion, sex, or national origin?” Brady,

.

In other words, did the plaintiff “show both that the reason was false, and that . . . [retaliation]

was the real reason.” Weber, 494 F.3d at 186 (alterations in original and internal quotations

omitted) (quoting St. Mary’s Honor Ctr.,

). The court must consider whether the

jury could “infer [retaliation] from the plaintiff’s prima facie case and any other evidence the

plaintiff offers to show that the actions were [retaliatory] or that the non-[retaliatory] justification

was pretextual.” Smith v. District of Columbia,

(2005) (quoting Murray v.

Gilmore,

(D.C. Cir. 2005)). The court should assess the plaintiff’s challenge

to the employer’s explanation in light of the totality of the circumstances of the case. Aka v.

Wash. Hosp. Ctr.,

(D.C. Cir. 1998).

The strength of the plaintiff’s prima facie case, especially the existence of a causal

6 connection, can be a significant factor in his attempt to rebut the defendant’s legitimate non-

retaliatory reason for the adverse action. See Aka,

n.4 (stating that “a prima

facie case that strongly suggests intentional discrimination may be enough by itself to survive

summary judgment”); Laurent v. Bureau of Rehab., Inc.,

, 23 n.5 (D.D.C.

2008) (holding that the plaintiff cannot establish pretext because “she is unable to show any

causal connection”); Meadows v. Mukasey,

(D.D.C. May 29, 2008)

(holding that the plaintiff demonstrated pretext in part by establishing a causal connection). The

plaintiff may establish a causal connection “by showing that the employer had knowledge of the

employee’s protected activity, and that the [retaliatory] personnel action took place shortly after

that activity.” Cones v. Shalala,

(D.C. Cir. 2000) (quoting Mitchell v.

Baldrige,

(D.C. Cir. 1985)); accord Clark County Sch. Dist. v. Breeden,

(2001) (noting that the temporal connection must be “very close”: a three- or four-

month period between an adverse action and protected activity is insufficient to show a causal

connection, and a 20-month period suggests “no causality at all”).

2. The Plaintiff Has Pled a Legally Cognizable Claim of Retaliation

The plaintiff alleges that his trainer “treated him in a discriminatory manner” by pushing

him down a hill during a training exercise in November 2004. Compl. ¶¶ 6, 18. The plaintiff

further asserts that when he complained about the trainer’s discriminatory conduct, the defendant

retaliated against him by characterizing him as poor cadet, refusing to advance him at the

academy, subjecting him to disparate conditions and ultimately terminating him from the police

academy. Id. ¶ 22. The defendant moves to dismiss the Title VII claims on the grounds that the

action was not adverse and, in any case, that there is no temporal connection between the

7 plaintiff’s complaint and the defendant’s allegedly retaliatory conduct. See generally Def.’s Mot.

The court addresses each of these arguments in turn.

The defendant first avers that the plaintiff fails to state that any of the allegedly retaliatory

conduct constituted an adverse personnel action. Def.’s Mot. at 9. The plaintiff, on the other

hand, maintains that he has met his burden at this stage of the proceedings by alleging that the

defendant engaged in adverse employment actions against him. Pl.’s Opp’n at 5-7. An “‘adverse

employment action’ is ‘a significant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsibilities, or a decision causing

significant change in benefits.’” Douglas v. Donovan,

(D.C. Cir. Mar.

17, 2009) (quoting Burlington Indus., Inc. v. Ellerth,

(1998); Taylor v. Small,

(D.C. Cir. 2003)). Actions short of firing, including “[d]ischarge,

demotion, or undesirable reassignment,” can constitute adverse employment actions. Amiri v.

Stoladi Prop. Group,

(D.D.C. 2005) (citing Burlington Indus.,

).

As a preliminary matter, the court notes that in the retaliation context, the term “adverse

action” “encompass[es] a broader sweep of actions than those in a pure discrimination claim.”

Baloch v. Kempthorne,

, 1198 n.4 (D.C. Cir. 2008). Thus, “[r]etaliation claims are

‘not limited to discriminatory actions that affect the terms and conditions of employment’ and

may extend to harms that are not workplace-related or employment-related so long as ‘a

reasonable employee would have found the challenged action materially adverse.’”

(quoting

Burlington N.,

). The plaintiff here alleges that the defendant created a change

in his employment status by placing him in a lower-level training class, denying him training

8 opportunities necessary for graduation and ultimately firing him. Compl. ¶¶ 7-9, 18. These acts

may fall under the categories established by Burlington Industries, including failure to promote,

reassignment with significantly different responsibilities and firing. See Burlington Indus.,

.2

The cases that the defendant cites regarding whether denial of training may be considered

an adverse employment action are inapposite for two reasons: first, they occurred at the summary

judgment stage or beyond, after the plaintiffs had been allowed to develop their claims through

the discovery process. See Def.’s Mot. at 11-12. And second, because the plaintiff in the instant

action was employed as a cadet, training opportunities were more central to his professional

advancement than they are in a typical employment scenario. Coleman v. District of Columbia,

, at *6 (D.D.C. Aug. 22, 2006) (citing Burlington N.,

) (denying

in part the defendant’s motion for summary judgment because the plaintiff, a fire department

cadet, alleged that the defendant retaliated against her by denying her training classes and

subjecting her to unwarranted discipline). Thus, the court determines that the acts alleged by the

plaintiff may be considered “adverse” and therefore rejects the defendant’s contention to the

contrary.

In addition, the defendant argues that there is no temporal proximity between the

plaintiff’s report of the incident with the trainer and his termination nearly two years later. Def.’s

Mot. at 7-9. The plaintiff counters that he has pled facts from which causation can be inferred.

Pl.’s Opp’n at 5-7. To establish a causal connection, an employer must have had knowledge of

2 This Circuit recently noted that at the summary judgment stage, employment actions of this type would be “conclusively presumed to be adverse employment actions, even if any alleged harm is speculative.” Douglas v. Donovan,

(D.C. Cir. Mar. 17, 2009).

9 the employee’s protected act and must have taken an adverse personnel action as a result of the

protected act. Cones,

. The defendant cites several cases in which courts have

determined that a time lapse of even a few months between the protected activity and the alleged

retaliatory act failed to give rise to an inference of causation. Def.’s Mot. at 7-9. But here, while

the plaintiff does not specify the exact interval between the protected activity and the allegedly

retaliatory acts, drawing all reasonable inferences in the plaintiff’s favor, the complaint suggests

that these adverse acts began soon after he returned from sick leave and occurred regularly until

he was ultimately terminated. Compl. ¶¶ 6-9; Pl.’s Opp’n at 5 (claiming that after the incident

the defendant gave the plaintiff only academic work, subjected him to rigorous physical training,

required him to train with a lower class, made sarcastic remarks about his abilities, prevented

him from obtaining specialized training necessary for graduation and ultimately terminated him

from the academy).

Furthermore, temporal proximity, though often an indicator of causation, is not a required

element of a retaliation claim, particularly at this stage of the proceedings. Swierkiewicz,

(holding that the plaintiff need not plead all elements of his prima facie case in the

complaint); Beckham v. Nat’l R.R. Passenger Corp.,

(D.D.C. 2008)

(denying the defendant’s motion to dismiss based on lack of temporal proximity because the

plaintiff had satisfied her burden at that early stage of the proceedings); see also Beard v.

Preston,

(D.D.C. 2007) (stating that a lack of temporal proximity

alone does not mandate a grant of summary judgment). Accordingly, even if the court were to

conclude that the plaintiff had failed to sufficiently plead temporal proximity, the plaintiff would

still meet the burden necessary to overcome a motion to dismiss. Rochon v. Gonzalez,

(D.C. Cir. 2000) (quoting Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000) (observing that “in order to survive a motion to dismiss, all [the] complaint has

to say . . . is ‘the [defendant] retaliated against me because I engaged in protected activity’”));

Vance v. Chao,

(D.D.C. 2007) (holding that “[a]t this early stage of the

proceedings, plaintiff can meet her prima facie burden of causation simply by alleging that the

adverse actions were caused by her protected activity”). As a result, the court holds that the

plaintiff has made out a legally cognizable claim of retaliation by contending that he engaged in a

protected activity by reporting the trainer’s allegedly discriminatory conduct and that in response

to his complaint, the defendant retaliated against him by subjecting him to materially adverse

actions. See Burlington N.,

. Accordingly, the court denies the defendant’s

motion to dismiss the plaintiff’s Title VII retaliation claim.

IV. CONCLUSION

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

denies defendant District of Columbia’s motion to dismiss the plaintiff’s Title VII claim.

Further, in light of the ADA Amendments Act of 2008, the court orders further briefing on the

plaintiff’s ADA and Rehabilitation Act claims against defendant District of Columbia. An Order

consistent with this Memorandum Opinion is separately and contemporaneously issued this 27th

day of March, 2009.

RICARDO M. URBINA United States District Judge

11