UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CONSTANTE P. BAROT et al.,

Plaintiffs, v. Civil Action No. 18-140 (TJK) ALDON MANAGEMENT,

Defendant.

ORDER

Plaintiffs Constante and Dolores Barot, proceeding pro se, sued Defendant Aldon

Management (“Aldon”) in the Superior Court of the District of Columbia. They assert a

scattershot array of claims under federal and District of Columbia law stemming from Constante

Barot’s employment as a custodian at a building managed by Aldon, and their tenancy in

employee housing related to that employment. See ECF No. 1-2 at 7–16 (“Compl.”).

Specifically, they appear to bring claims under Title VII of the Civil Rights Act, the Age

Discrimination and Employment Act (ADEA), the Fair Housing Act, the District of Columbia

Human Rights Act (DCHRA), and several provisions of District of Columbia landlord-tenant

law. See id. at 16. Aldon removed the case to this Court, ECF No. 1, and moved to dismiss the

complaint for failure to state a claim, ECF No. 12. For the reasons explained below, Aldon’s

motion will be granted in part and denied in part.

* * *

A motion to dismiss under Rule 12(b)(6) “tests whether a plaintiff has properly stated a

claim.” BEG Invs., LLC v. Alberti,

(D.D.C. 2015). “A court considering

such a motion presumes that the complaint’s factual allegations are true and construes them

liberally in the plaintiff’s favor.”

Nonetheless, the complaint must set forth enough facts to “state a claim to relief that is plausible on its face.”

(quoting Ashcroft v. Iqbal,

(2009)). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements . . . do not suffice.” Iqbal,

. “[A]lthough a pro se

complaint ‘must be construed liberally, the complaint must still present a claim on which the

Court can grant relief.’” Untalasco v. Lockheed Martin Corp.,

(D.D.C.

2017) (quoting Budik v. Dartmouth–Hitchcock Med. Ctr.,

(D.D.C. 2013)).

“A court considering a pro se plaintiff’s complaint should look to ‘all filings, including filings

responsive to a motion to dismiss,’ to discern whether the plaintiff has ‘nudged [her] claim[s]

across the line from conceivable to plausible.’” Mehrbach v. Citibank, N.A.,

(D.D.C. 2018) (citation and internal quotation marks omitted) (first quoting Brown v.

Whole Foods Mkt. Grp., Inc.,

(D.C. Cir. 2015); then quoting Bell Atl. Corp. v.

Twombly,

(2007)).

* * *

Aldon moves to dismiss each of the identifiable claims in the complaint for

failure to state a claim. The Court considers each claim in turn.

Title VII of the Civil Rights Act

Aldon first asserts that Plaintiffs have failed to state a claim for employment

discrimination based on national origin under Title VII because they have not alleged that

“[Aldon’s] decisions with regard to employment (or housing as a condition of employment) were

made with any discriminatory intent or animus, or that a discriminatory motive was even at

play.” MTD at 6. But Aldon far overstates the requirements to sufficiently plead a claim of

discrimination under Title VII. “To state a prima facie case of discrimination, a plaintiff must

allege that she is part of a protected class under Title VII, she suffered a cognizable adverse

2 employment action, and the action gives rise to an inference of discrimination.” Walker v.

Johnson,

(D.C. Cir. 2015) (emphasis added). Aldon does not dispute the

first two requirements. And Plaintiffs have, though barely, “plead[ed] sufficient facts, if

accepted as true, to [at least] create a plausible inference of discrimination.” Thomas v. Wash.

Metro. Area Transit Auth.,

(D.D.C. 2018).

In their complaint, they allege that Aldon, on account of Plaintiffs’ Filipino national

origin, provided them with living quarters in the building where Constante Barot worked—a

condition of each custodian’s employment—that were smaller and otherwise inferior to his

“American” counterparts. See Compl. ¶¶ 1, 22, 29–30. They allege that these “similarly situated

co-employee[s]” were given “real two bedroom apartments while Plaintiffs were provided a

DIFFERENT TYPE” where the “[second] Bedroom was illegaly [sic] constructed from part of

the Laundry Room.”

¶¶ 29–30. And they further allege that their “discounted rent is higher

than [Barot’s] American and younger counterpart whose apartment unit is a regular two bedroom

apartment.” Id. ¶ 36; see also ECF No. 1-2 at 74–78 (lease addendums for Constante Barot and a

non-Filipino custodian in another of Aldon’s buildings). Those allegations are sufficient to

create a plausible inference that Aldon’s actions were discriminatorily motivated and thereby

“raise [Plaintiffs’] right to relief above the speculative level,’” all that is required at this stage.

Brown v. Sessions,

(D.C. Cir. 2014) (quoting Twombly,

).

The Age Discrimination in Employment Act

For similar reasons, Plaintiffs’ claim of age discrimination under the ADEA also survives

Aldon’s motion to dismiss. Aldon argues that Plaintiffs’ complaint “contains no mention of how

[Aldon’s] alleged conduct constitutes age discrimination” and “[n]o allegations [that] are ever

tied to any adverse actions of which Plaintiffs complain.” MTD at 6. But again, Aldon demands

3 too much of the complaint. As with a claim of national-origin discrimination under Title VII, the

“essential elements” of an age discrimination claim are that “the plaintiff suffered an adverse

employment action . . . because of the plaintiff’s . . . age.” Baloch v. Kempthorne,

(D.C. Cir. 2008). Plaintiffs, noting that Constante Barot is 67 years old, allege that

Aldon provided Plaintiffs with inferior living quarters on account of his age. See Compl. ¶¶ 3,

22, 29, 36. They note that Constante Barot is the “oldest among his counterparts,” who each

allegedly were provided superior housing arrangements, and in at least one case at a lower rent,

and that this disparate treatment was due to his comparatively older age. See ECF No. 14

(“Opp’n”) at 7; Compl. ¶ 36. Though admittedly minimal, those allegations, particularly “when

considered through the liberal lens afforded pro se filings,” Fennel v. AARP,

(D.D.C. 2011), are sufficient to plausibly allege an inference of age discrimination.

Housing Discrimination Claims

Aldon argues that Plaintiffs’ claims under the Fair Housing Act and the DCHRA for

housing discrimination on the basis of their national origin should be dismissed for the same

deficiencies it identified with Plaintiffs’ Title VII claims. See MTD at 10–12 & n.5. As with a

claim for employment discrimination, to state a claim for disparate treatment under the Fair

Housing Act on the basis of race, the plaintiff must allege “that the defendant intentionally

discriminated against [him] on the basis of [his national origin].” 2922 Sherman Ave. Tenants’

Ass’n v. District of Columbia,

(D.C. Cir. 2006).1 For the reasons already

explained, however, Plaintiffs’ allegations that Aldon discriminated against him on account of

his national origin just barely pass muster.

1 Aldon asserts that Plaintiffs’ DCHRA housing discrimination claim should be analyzed under the same standards as Title VII claims. See MTD at 10 n.5. Under that approach, Plaintiffs’ DCHRA housing discrimination claim survives as well.

4 Nonetheless, Aldon alternatively argues that Plaintiffs’ Fair Housing Act claim fails as a

matter of law because Plaintiffs only allege “post-acquisition housing discrimination,” which, it

contends,

(b) of the Act does not prohibit. See

at 12–13. While some courts

have found that § 3604(b) does not extend to discriminatory conduct interfering with an

individual’s use of property after the property was leased or sold, see, e.g., Halprin v. Prairie

Single Family Homes of Dearborn Park Ass’n,

(7th Cir. 2004); see also

Clifton Terrace Assocs., Ltd. v. United Techs. Corp.,

(D.C. Cir. 1991) (finding

that the Fair Housing Act “reach[es] only discrimination that adversely affects the availability of

housing,” and not “matter[s] of habitability”), the Court need not address the scope of § 3604(b)

here. Plaintiffs have alleged in their complaint that Aldon discriminated against them in the

provision of housing; specifically, they allege that Plaintiffs were provided with inferior housing

on account of their national origin when Constante Barot was hired as a custodian. See Compl.

¶ 22 (“[Aldon] provided Plaintiffs a DIFFERENT APARTMENT UNIT than [Barot’s] American

counterpart.” (emphasis added)); see also Opp’n at 7 (claiming discrimination when “Plaintiffs

were provided [a] different kind of apartment unit” and complaining of “the iniquity that [Aldon]

has been hiding for so many years”). Those allegations fall within the scope of § 3604(b).

Breach of the Warranty of Habitability

Aldon next contends that Plaintiffs’ claims for breach of the implied warranty of

habitability under District of Columbia law must be dismissed because Plaintiffs failed to

sufficiently allege a “nexus between any code violation and Plaintiffs’ health or safety.” MTD at

14. It further claims that Plaintiffs have not demonstrated that Aldon negligently failed to cure

any defects in the habitability of their apartment such that Aldon is liable for damages. Id. at 15.

The Court disagrees. In the District of Columbia, “a landlord’s failure to comply with the

5 housing regulations constitutes a privately-enforceable breach of the warranty of habitability.”

Parham v. CIH Props., Inc.,

(D.D.C. 2016) (citing Javins v. First Nat’l

Realty Corp.,

(D.C. Cir. 1970)); see also 14 D.C.M.R. § 301. The warranty

“creates for landlords a continuing duty during the lease term to ‘exercise reasonable care to

maintain rental premises in compliance with the [D.C.] housing code.’” Parham, 208 F Supp. 3d

at 124 (alteration in original) (quoting George Wash. Univ. v. Weintraub,

(D.C.

1983)); see also Childs v. Purll,

(D.C. 2005) (“[T]he Housing Regulations

impose numerous duties on landlords and their agents to keep residential premises safe and

habitable, and not to rent habitations that are unsafe.”).

Here, Plaintiffs allege that they entered into a lease with Aldon for a two-bedroom

apartment with four occupants, and they contend that Aldon has breached those terms by failing

to provide two habitable bedrooms under applicable District of Columbia Housing regulations.

See Compl. ¶¶ 8–12, 21, 26–27. They allege that one of the purported bedrooms “was illegally

constructed from part of the Laundry Room” and that its “only window measured 4 ft and 7

inches high,” and thus that Plaintiffs “occupy/rent an apartment that is dangerous and [a] fire

hazard.” Id. ¶ 21. To corroborate their safety concerns, they attach to their complaint an

inspection report from the District of Columbia Department of Consumer Affairs indicating that

the window in the second bedroom “does not meet today’s building code requirement for

egress.” ECF No. 1-2 at 57. And they allege that Aldon may have been aware of these

deficiencies at the time the room was constructed. See Compl. ¶¶ 27, 28. These allegations,

which plausibly allege that Aldon has failed to maintain two habitable bedrooms under

applicable District of Columbia housing regulations as required by the terms of the lease, are

sufficient to plead a claim for breach of the implied warranty of habitability. See 14 D.C.M.R.

6 §§ 400.3 (“No person shall rent . . . any habitation . . . unless [it is] in a clean, safe, and sanitary

condition.”); 403.2 (“Each habitable room shall conform to the requirements of this subtitle.”);

see also id. §§ 502.1 (natural light requirements for habitable rooms); 506 (ventilation

requirements for habitable rooms).

Remaining Claims Under the District of Columbia Law

Aldon lastly argues that Plaintiffs’ two remaining claims—for violations of (1)

and (2)

and 42-3502.13(d)—must be dismissed for

failure to state a claim.2 The Court agrees. As to the former, the D.C. Court of Appeals has

explicitly held that § 42-3505.2 does not provide an independent cause of action for damages

against a landlord. See Twyman v. Johnson,

, 855–58 (D.C. 1995). And as to the

latter, Plaintiffs have not made any allegations in their complaint or subsequent filings that

Aldon failed to disclose any of the required information listed in

(d) or

42-3502.22. Accordingly, those two claims must be dismissed.

* * *

For the above reasons, Aldon’s motion to dismiss the complaint for failure to state a

claim, ECF No. 12, is GRANTED IN PART and DENIED IN PART. Plaintiffs’ claims under

(d), 42-3502.22, and 42-3505.2 are DISMISSED. To the extent that

2 In the section of their complaint entitled “Prayer for Relief,” Plaintiffs request, among other things, “emotional distress damages.” See Compl. at 10. Aldon argues that Plaintiffs have not adequately pleaded a claim for intentional infliction of emotional distress, and thus that to the extent they bring such a claim, it must be dismissed. MTD at 16–17. The Court agrees. Although Plaintiffs’ filings are not clear, to the extent Plaintiffs seek to bring an independent claim for intentional infliction of emotional distress, they make no allegations in their complaint that would rise to the level of “extreme or outrageous conduct” necessary to support such a claim. Tiefenbacher v. Am. Ass’n of Retired Persons, No. 05-1802(CKK),

, at *3 (D.D.C. April 27, 2006).

7 Plaintiffs seek to bring an independent claim for intentional infliction of emotional distress, that

claim is also DISMISSED.

The parties shall appear for a status conference on April 18, 2019, at 9:30 a.m. in

Courtroom 11. Aldon’s deadline to answer Plaintiffs’ complaint is hereby EXTENDED to a

date to be determined at the status conference.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: March 31, 2019

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