UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, ex rel., GARY TALBOT,

Plaintiff, No. 17-cv-1997 (EGS) v. No. 19-cv-470 (EGS) NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK),

Defendant.

MEMORANDUM OPINION

Plaintiff Gary Talbot (“Mr. Talbot”) brings this action

against Defendant National Railroad Passenger Corporation

(“Amtrak”) for retaliation in violation of the False Claims Act

(“FCA”),

(h)(Count I); violation of the Family

and Medical Leave Act (“FMLA”),

, et seq.,1

(Count II); disability discrimination and hostile work

environment in violation of the D.C. Human Rights Act (“DCHRA”),

, et seq.,(Count III); retaliation and

hostile work environment in violation of DCHRA,

-

1402.61, et seq., (Count IV); and retaliation in violation of

the National Defense Authorization Act for Fiscal Year 2013

(“2013 NDAA”),

(Count V). Pending before the

1 Mr. Talbot’s Amended Consolidated Complaint does not cite to any specific statutes for Counts II, III, IV, and V. See generally Am. Consol. Compl., ECF No. 27. Court is Amtrak’s Partial Motion to Dismiss Counts I, III, and

IV. Upon careful consideration of the motion, the opposition,

the reply thereto, and the applicable law, the Court GRANTS IN

PART AND DENIES IN PART Amtrak’s Partial Motion to Dismiss, and

DISMISSES Mr. Talbot’s claim for Retaliation in Violation of the

False Claims Act (Count I).

I. Background

A. Factual Background

The following facts reflect the allegations in the

operative complaint, which the Court assumes are true for the

purposes of deciding this motion and construes in Mr. Talbot’s

favor. See Brown v. Sessoms,

(D.C. Cir.

2014); see also Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000)(“[W]e must treat the complaint's

factual allegations as true.”).

Mr. Talbot, who has been wheelchair bound since 1980, began

working for Amtrak on September 5, 2011, when he became the

Program Director for Amtrak’s Americans with Disabilities Act

(“ADA”) Program. Am. Consol. Compl., ECF No. 27 at 1 ¶ 1; see

also

at 3 ¶ 6.2 Mr. Talbot explains that his “first tasks

centered on collecting and analyzing data aimed at identifying

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 which stations had been worked on to date, which stations were

currently being worked on, which were on the horizon, and what

Amtrak’s established ADA priorities were.”

at 13 ¶ 53. He

also “focused on Amtrak’s Engineering Department, which was

responsible for managing the ADA program and all associated ADA

budgets . . . .”

at 13 ¶ 55. “Throughout his tenure, Mr.

Talbot was a non-voting member of the Amtrak Executive Oversight

Committee” (“EOC”), which typically met on a biweekly basis and

provided oversight of Amtrak’s ADA Program.

at 3-4 ¶¶ 8-9.

Based on his belief that Amtrak was misusing and mis-

appropriating federal funds earmarked for ADA projects, Mr.

Talbot made several disclosures concerning what he viewed as the

mismanagement of ADA resources to various internal and external

entities.

at 8-9 ¶ 33. Some of those disclosures included

reporting alleged violations to the U.S. Department of

Transportation Senior Advisor for Accessible Transportation,

Special Assistant to the President and Associate Director of

Public Engagement, Amtrak’s Office of Inspector General (“OIG”),

Amtrak’s Vice President of Government Affairs and Corporate

Communications and Chair of the EOC. Amtrak’s Deputy Chief

Engineer[], Amtrak’s Chief Engineer, Amtrak’s CEO and President,

staff to U.S. Senator Tom Harkin, the National Disability Rights

Network (“NDRN”), and the Disability Rights Education and

Defense Fund (“DREDF”).

at 9-10 ¶¶ 35-39, 56, 86. On various

3 occasions, including as early as 2011, Mr. Talbot refused to

certify that Amtrak was appropriately spending its ADA funding

on ADA projects.

at 15 ¶ 67; see also

at 27 ¶ 116.

Mr. Talbot alleges that he “faced immense and concerted

resistance to his disclosures within Amtrak, and because of his

efforts, his superiors . . . demoted him, isolated, disparaged,

and harassed him.”

at 10 ¶ 41. In particular, he alleges,

among other things, that: (1) in or about September 2011,

“[s]everal Amtrak Executives upbraided” him as a result of

statements he had made at a meeting with Senator Harken’s staff,

at 13 ¶ 56,

at 15 ¶ 59; (2) Amtrak Executives “engaged

in heated debates and were dismissive of Mr. Talbot’s concerns

regarding Amtrak’s unsafe, noncompliant, and fraudulent

actions,”

at 37 ¶ 187; (3) Amtrak Executives exhibited

“hostility (which included raised voices, anger, frequent

interruptions), confrontational actions, and undue scrutiny

toward him,”

at 38 ¶ 188; (4) “Amtrak Executives also

accused Mr. Talbot of ‘sabotaging’ them during EOC meetings,”

at 38 ¶ 191; and (5) “Amtrak Executives commented many times

to Mr. Talbot that he was ‘too’ close to things and could not be

objective” because of his disability,”

at 18 ¶ 192.

According to Mr. Talbot, on one occasion after speaking

with the Amtrak’s OIG, his supervisor confronted him and told

him his actions were “very risky” and that he “better be

4 careful.”

at 16 ¶¶ 71-72. “Nevertheless, from approximately

fall 2011 until fall 2014, over the course of multiple meetings

and numerous lengthy conversations, Mr. Talbot continued to

provide the Amtrak OIG with his research and observations on

Amtrak’s ADA spending violations . . . .”

at 16 ¶ 75.

After notifying the Federal Railroad Administration

(“FRA”)that he disagreed with the “Narrative” Amtrak had

submitted regarding one of its station’s platforms and

submitting two memorandums to Amtrak’s Chief Engineer,

at

27-28 ¶¶ 118-21; Mr. Talbot states “Amtrak’s retaliation was

swift and relentless.

at 28 ¶ 122. “On December 30, 2015,

[Mr. Talbot’s supervisor] notified Mr. Talbot that he was

issuing [him] a ‘1’ out of ‘4’ on his performance appraisal (the

lowest possible rating) and plac[ing] him on a Performance

Improvement Plan (‘PIP’).”

In August 2016, an Amtrak executive informed Mr. Talbot

that his plans for the ADA program no longer included Mr.

Talbot, and Mr. Talbot alleges that Amtrak “secretly demoted”

him from ADA Program Director to a “Manager IV” after claiming

that the Engineering Department was undergoing a reorganization.

at 32 ¶ 142. In December 2016, Mr. Talbot’s new supervisor

issued him a “1” on his annual performance appraisal and placed

him on a second PIP.

at 32 ¶ 148. Thereafter, “[i]n February

2017, Amtrak took away Mr. Talbot’s private office and instead

5 relocated him to a cubicle.”

at 33 ¶ 149. On September 14,

2017, Mr. Talbot “submitted his response to the second PIP, and

explained his concerns regarding Amtrak’s [ADA] violations” and

provided a copy to several of Amtrak’s executives noting his

“efforts to enforce ADA compliance and stop the gross misuse of

ADA funds.”

at 33 ¶¶ 153-55.

In September 2017, Mr. Talbot “submitted his Statement of

Material Evidence and Information [to] the U.S. Department of

Justice” and “filed his Qui Tam Complaint for Violations of the

federal False Claims Act and for Unlawful Retaliation Against

Relator under seal.”

at 34 ¶ 158. Throughout this time, Mr.

Talbot alleges that Amtrak began “pressuring [him] to accept a

Voluntary Separation Incentive Package (‘VSIP’), under the guise

of its reorganization effort.”

at 34 ¶ 159.

In December 2017, Mr. Talbot received a positive

performance evaluation but, due to ongoing health issues, he

went on FMLA leave which was set to expire in March 2018.

at

36 ¶¶ 170-72. However, on January 11, 2018, Amtrak informed Mr.

Talbot that his employment was terminated.

at 36 ¶ 173. Mr.

Talbot states that he believes he “was the only person who was

terminated within Amtrak's ADA Department” and, “[t]o his

knowledge, [he] was the only person who made well-known his

disability.”

at 36 ¶¶ 177-78.

6 B. Procedural History

On September 27, 2017, Mr. Talbot filed his initial

complaint, under seal, alleging violations of the FCA and

retaliation under the FCA. See Compl., ECF No. 1. On September

17, 2018, the Government provided notice that it was declining

intervention, see Gov’t’s Notice, ECF No. 5, and the action was

ordered unsealed on November 7, 2018. See Min. Order of Oct. 23,

2018. Mr. Talbot filed an Amended Complaint on January 3, 2019

alleging retaliation in violation of the FCA, violations of the

FMLA, disability discrimination in violation of the DCHRA, and

retaliation in violation of the DCHRA. See Am. Compl., ECF No.

8. On February 1, 2019, the Government consented to the

dismissal of Mr. Talbot’s claim of violations of the FCA. See

Gov’t’s Consent Notice, ECF No. 13. Amtrak filed a Partial

Motion to Dismiss Amended Complaint on February 14, 2019, see

Mot. to Dismiss Am. Compl., ECF No. 14, and on February 28,

2019, Mr. Talbot filed his Opposition to Partial Motion to

Dismiss Amended Complaint, see Pl.’s Opp’n to Mot. to Dismiss

Am. Compl., ECF No. 16. On March 13, 2019, Amtrak filed its

Reply to Opposition to Partial Motion to Dismiss Amended

Complaint. See Def.’s Reply to Pl’s Opp’n to Mot. to Dismiss Am.

Compl., ECF No. 19. On March 25, 2019, the Court ordered a

related case, Civil Case Number 19-470, also filed by Mr.

Talbot, to be consolidated with this case. See Min. Order of

, 2019. Amtrak refiled its Motion to Dismiss from the now

closed Civil Case Number 19-470 docket onto the docket for

current docket on April 4, 2019. See Def.’s Mot. to Dismiss, ECF

No. 23. On April 18, 2019, Mr. Talbot filed his Opposition to

Motion to Dismiss, see Pl.’s Opp’n to Mot. to Dismiss, ECF No.

24, and Amtrak filed its Reply to Opposition to Motion to

Dismiss on May 2, 2019, see Def.’s Reply to Opp’n to Mot. to

Dismiss, ECF. No. 26. To consolidate all claims into one

complaint, the Court denied Amtrak’s February 14, 2019 Partial

Motion to Dismiss Amended Complaint and ordered Mr. Talbot to

file an amended complaint addressing any deficiencies identified

by Amtrak. See Min. Order of May 23, 2019.

On June 24, 2019, Mr. Talbot filed the operative Amended

Consolidated Compliant, see Am. Consol. Compl., ECF No. 27, to

which Amtrak filed its Partial Motion to Dismiss Am. Consol.

Compl. on July 22, 2019, see Def.’s Partial Mot. to Dismiss, ECF

No. 30 (“Def.’s Mot.”). Mr. Talbot filed his Opposition to

Partial Motion to Dismiss Amended Consolidated Compliant on

August 19, 2019, see Pl.’s Opp’n to Partial Mot. to Dismiss Am.

Consol. Compl., ECF No. 32 (“Pl.’s Opp’n”), and Amtrak filed its

Reply to Opposition to Partial Motion to Dismiss Amended

Consolidated Compliant on September 10, 2019, see Reply in

Support of its Mot. to Dismiss, ECF No. 35 (“Def.’s Reply”).

The motion is ripe and ready for the Court’s adjudication.

8 II. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton,

(D.C. Cir. 2002). The court will

dismiss a claim if the complaint fails to plead “enough facts to

state a claim for relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly,

(2007). A complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief,” Fed. R. Civ. P.

8(a)(2), “in order to give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests,” Twombly,

(citation and internal quotation marks omitted).

A complaint survives a Rule 12(b)(6) motion only if it

“contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). A claim is facially plausible “when the

plaintiff pleads factual content that allows the court to draw

[a] reasonable inference that the defendant is liable for the

misconduct alleged.”

A complaint alleging facts which are

“‘merely consistent with’ a defendant’s liability . . . ‘stops

short of the line between possibility and plausibility of

entitlement to relief.’”

(quoting Twombly,

).

The “doors of discovery” should not be opened for a “plaintiff

9 armed with nothing more than conclusions.”

.

III. Analysis

A. Mr. Talbot cannot state claim for relief against Amtrak under the False Claims Act.

Amtrak argues that it cannot be sued under the provisions

of the FCA because the Amtrak Reform and Accountability Act of

1997 (“ARAA”) plainly states that Amtrak “shall not be subject

to title 31, ”which includes the FCA provisions at issue. Def.’s

Mot., ECF No. 30-1 at 6; see also

(a)(3).

Amtrak also points to mandatory authority articulated in U.S. ex

rel. Totten v. Bombardier Corp., where the Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”) indicated that

the exclusion of Amtrak from Title 31 meant that Amtrak was not

“subject to” the False Claims Act, see

(D.C.

Cir. 2002), as well as persuasive authority set forth in Harasek

v. Nat'l R.R. Passenger Corp. (“Amtrak”),

(D.D.C. 2018), where Judge Moss dismissed an Amtrak

employee’s FCA claims against Amtrak. Mr. Talbot briefly

responds that the FCA should be construed broadly since its

purpose is to “protect the funds and property of the Government

from fraudulent claims.” Pl.’s Opp’n, ECF No. 32 at 4.

The ARAA states, in relevant part, that “Amtrak . . . is

not a department, agency, or instrumentality of the United

States Government, and shall not be subject to title 31.” 49

(a)(3). In Ex. rel. Totten, the D.C. Circuit held

that the FCA applies to third parties who contract with Amtrak,

and in doing so recognized that it would be the “more intuitive

understanding of the [ARAA] . . . [to] read it as preventing

Amtrak from being directly regulated by the various provisions

in title 31, for example, by being sued under the False Claims

Act.”

. Judge Moss recently applied this

reasoning to hold that “the inescapable import of the [D.C.

Circuit’s] reasoning [in Totten] is that [the ARAA] precludes

Amtrak itself from being ‘subject to’ the FCA.” Harasek,

.

Harasek dealt with a claim analogous to the one presented

here. In Harasek, the plaintiff, who had worked as an “Inspector

for the Amtrak Police Department,” alleged that Amtrak “had

subjected her to a series of adverse employment actions in

retaliation” for reporting her concerns that a third-party

contractor had submitted fraudulent claims to Amtrak for work it

allegedly had not completed.

. The

plaintiff sought damages, attorneys’ fees, and any other relief

provided by the FCA from Amtrak. See

. The Court

concluded that the plaintiff could not state a claim for relief

under the FCA against Amtrak because “[w]hile the FCA generally

imposes ‘[l]iability for certain acts’ committed by ‘any person’

defrauding the federal government,

, the [ARAA]

11 carves out a specific exception for Amtrak.”

. In this

case, Mr. Talbot, similar to the plaintiff in Harasek, was an

Amtrak employee who claims to have been subject to retaliation

due to his reporting of alleged fraudulent activity. See

generally Am. Consol. Compl., ECF No. 27. While he does not

specify the relief he seeks are pursuant to the FCA, he seeks

compensatory and pecuniary damages, attorneys fees and punitive

damages, among other things, from Amtrak.

. As there

have been no changes to the statute or legal precedent in this

Circuit, and in view of Judge Moss’ persuasive opinion, the

Court agrees that Amtrak cannot be sued under the FCA.

Accordingly, the Court GRANTS Amtrak’s Motion to Dismiss as

to his claim that he was retaliated against in violation of the

FCA (Count I).

B. Mr. Talbot has plead plausible claims of discrimination on the basis of a disability, retaliation, and hostile work environment under the DCHRA.

Next, Amtrak argues that the Mr. Talbot’s disability

discrimination and retaliation claims under the DCHRA should be

dismissed “because most of the alleged adverse actions are time

barred, and for those remaining, [Mr. Talbot] has not pled facts

that make it plausible that the actions were based on his

disability.” Def.’s Mot., ECF No. 30-1 at 10. Mr. Talbot argues

that he is making two types of claims: (1) a disparate treatment

12 claim based on his January 2018 termination which he asserts was

timely filed; and (2) a hostile work environment claim based on

his January 2018 termination as well as his allegations

concerning his demotion, poor performance reviews, PIPs, and

office relocation. See Pl.’s Opp’n, ECF No. 32 at 5. In Reply,

Amtrak argues that Mr. Talbot conceded that his disparate

treatment claim was time barred for acts prior to his

termination when he argued “that the allegations concerning

events occurring before January 3, 2018 are relevant to his

hostile environment claim, not his disparate treatment claim.”

Def.’s Reply, ECF No. 35 at 4.

a. Amtrak’s alleged actions prior to Mr. Talbot’s Termination are Time Barred.

To be actionable under the DCHRA, the plaintiff must file a

claim “within one year of the unlawful discriminatory act, or

the discovery thereof . . . .”

(a). Mr.

Talbot filed his initial complaint in this action on September

27, 2017 alleging two counts: “Violations of The Federal False

Claims Act” (Count I) and “Retaliation Based on Protected

Activity” relating to his claim under the FCA (Count II). See

Compl., ECF No. 1 at 25. According his Amended Consolidated

Complaint, Mr. Talbot was terminated on January 25, 2018. See

Am. Consol. Compl., ECF No. 27 at 36 ¶ 173. Mr. Talbot filed his

first Amended Complaint, alleging “Disability Discrimination”

13 and “Retaliation,” both in violation of the DCHRA, on January 3,

2019. See Am. Compl., ECF No. 8 at 35-36. With the exception of

his termination, all of the other discriminatory acts Mr. Talbot

alleges would have taken place more than a year before he filed

his claim under the DCHRA. As Amtrak points out, see Def.’s

Reply, ECF No. 35 at 4, Mr. Talbot does not seem to dispute that

his termination is the only discriminatory action to take place

within the one-year window for DCHRA claims. See Pl’s Opp’n, ECF

No. 32 at 4-5. The Court therefore finds that Mr. Talbot’s

termination is the only discrete act that falls within the one-

year statute of limitations window and timely for the purpose of

adjudicating Mr. Talbot’s disability discrimination and

retaliation claims under DCHRA. See Akonji v. Unity Healthcare,

Inc.,

(D.D.C. 2007) (holding that the

court would only review those discrete acts that fell within the

statutory time limit).

b. Mr. Talbot provided sufficient facts to state a claim that he was terminated because of his disability in violation of DCHRA.

The DCHRA prohibits employers from terminating or otherwise

discriminating against any individual on the basis of a

disability. See

(a)(1). When evaluating

claims of discrimination on the basis of a disability, courts in

this Circuit “look[] to decisions construing the [Americans with

Disabilities Act (“ADA”)] for guidance when applying the DCHRA.”

14 Ball v. George Washington Univ., No. 17-CV-507 (DLF),

, at *8 (D.D.C. Mar. 31, 2019) (citing Hunt v. District

of Columbia,

(D.C. 2013). To survive a motion

to dismiss, Mr. Talbot must allege “two essential elements:

(i)[he] suffered an adverse employment action (ii) because of

[his] race, color, religion, sex, national origin, age, or

disability.” Baloch v. Kempthorne,

(D.C.

Cir. 2008). “To prevail on a motion to dismiss, it is not

necessary to establish a prima facie case.” Greer v. Bd. of Trs.

of the Univ. of the D.C.,

(D.D.C. 2015)

(citing Gordon v. U.S. Capitol Police,

(D.C.

Cir. 2015)). Nonetheless, Mr. Talbot “must allege facts that, if

true, would establish the elements of each claim.”

(internal

quotation marks and citation omitted).

Amtrak argues that Mr. Talbot has alleged no facts from

which to conclude that he was terminated because of his

disability. Def.’s Mot., ECF No. 30-1 at 12. Rather, Mr. Talbot

has alleged that he was terminated “because he disclosed

Amtrak’s alleged misuse of federal grant funds earmarked for

bringing facilities and stations into compliance with the ADA.”

Id. at 13. Mr. Talbot argues that the fact that his allegations

pertain to his efforts to bring Amtrak into compliance with ADA

requirements does not “preclude the conclusion that Amtrak

lacked any other unlawful motive” in dismissing him. Pl.’s

15 Opp’n, ECF No. 32 at 5. He further argues that he has satisfied

his burden at the motion to dismiss stage because his

allegations “describe[s] Amtrak’s culture ranging from outright

antagonism to dismissiveness and apathy towards persons with

disabilities—including towards himself.” Pl.’s Opp’n, ECF No. 32

at 6 (citing Am. Consol. Compl., ECF No. 27 at 6 ¶ 25

(describing the creation of the ADA); id. at 13 ¶ 55 (describing

Mr. Talbot’s responsibilities while working for Amtrak); id. at

15 ¶ 64 (noting the Amtrak’s rejection of Mr. Talbot’s

construction recommendation); id. at 15 ¶ 66 (requesting more

information before certifying that Amtrak was compliant with

certain ADA requirements); id. at 18 ¶¶ 82-85 (describing issues

surrounding passenger access); id. at 19 ¶ 89 (describing issues

surrounding passenger access); id. at 36-37 ¶ 179 (noting a

letter written on Mr. Talbot’s behalf after his termination).

Giving Mr. Talbot the benefit of all inferences that can be

derived from the alleged facts, see Kowal v. MCI Comm’cns Corp.,

(D.C. Cir. 1994), the Court is persuaded that

he has sufficiently alleged that he was terminated because of

his disability. Mr. Talbot alleges that he is disabled within

the meaning of the DCHRA and that Amtrak discriminated against

him on the basis of his disability when it removed him from his

job. Am. Consol. Compl., ECF No 27 at 40 ¶¶ 203, 204. In his

Amended Consolidated Complaint, Mr. Talbot describes his efforts

16 to bring Amtrak into compliance with ADA requirements and

Amtrak’s resistance to those efforts during his employment with

Amtrak. See generally

Mr. Talbot also alleges statements

made to him from which the reasonable inference is that Amtrak

sought to terminate him because his disability impaired his

judgment: he alleges that on numerous occasions Amtrak

Executives told him that “he was ‘too’ close to things and could

not be objective. The ‘too’ close comments related to Mr. Talbot

having a disability and therefore not being able to be

‘reasonable’ on the various issues that he raised.”

at 38 ¶

192. Accordingly, Mr. Talbot has sufficiently alleged that he

was terminated because of his disability, given the minimal

burden at this stage of the proceedings. Jackson v. Dist. Hosp.

Partners, L.P., No. CV 18-1978 (ABJ),

, at *5

(D.D.C. Aug. 1, 2019) (finding the plaintiff to have stated a

disparate treatment claim based on his allegations that he was

suspended and terminated from his position based on his race,

religion and sex).

c. Mr. Talbot alleged sufficient facts to state a claim that his termination was in retaliation for participating in a protected activity in violation of the DCHRA.

In Count IV, Mr. Talbot alleges that: (1) his “complaints

regarding the treatment of disabled persons and Amtrak’s

discriminatory acts towards disabled customers are protected

17 under the DCHRA”; and (2) “Amtrak’s creation of a hostile work

environment and removal of Mr. Talbot constitute unlawful

retaliation for his protected oppositional conduct.” Am. Consol.

Compl., ECF No 27 at 40 ¶ 207-08. Amtrak argues that this claim

fails for three reasons: (1) he “does not allege that he engaged

in protected activity”; (2) he not allege “that such protected

activity was the reason for his termination”; and (3) he has

alleged no “facts connecting [his] advocacy on behalf of

Amtrak’s passengers with disabilities and his termination.”

Def.’s Mot., ECF No. 30-1 at 18, 20. Mr. Talbot responds that

his disclosures were protected activities because “[c]ourts may

consider violations of different statutes . . . [and] may

conclude that a defendant violated both statutes based on the

same facts.” Pl.’s Opp’n, ECF No. 32 at 9-10. Amtrak replies

that complaints about alleged violations of construction

regulations established by the ADA are not covered by the DCHRA.

see Def.’s Reply, ECF No. 35 at 6-7.

To state a claim for retaliation under the DCHRA, Mr.

Talbot must allege “(1) that [he] engaged in a protected

activity; (2) that [he] was subjected to an adverse action by

[his] employer; and (3) that a causal link existed between the

adverse employment action and the protected activity.” Akonji,

(citing Broderick v. Donaldson,

, 1231–32 (D.C. Cir. 2006)). “To prevail on a motion to

18 dismiss, it is not necessary to establish a prima facie case.”

Greer,

. Nonetheless, Mr. Talbot “must

allege facts that, if true, would establish the elements of each

claim.”

(internal quotation marks and citation omitted).

1. Mr. Talbot sufficiently alleged that he engaged in activity protected by the DCHRA.

“To constitute ‘protected activity,’ the complaint must

allege an employment practice that is prohibited by the DCHRA.”

Vogel v. D.C. Office of Planning,

(D.C. 2008).

“To make out a claim for retaliation, the plaintiff need only

prove [he] had a reasonable good faith belief that the practice

[he] opposed was unlawful under the DCHRA, not that it actually

violated the Act.” Howard University v. Green,

(D.C. 1994). “Although in a retaliation action a plaintiff is

not required to prove that the activity which [he] opposed

constituted an actual violation of the Act, [he] nonetheless

must voice [his] complaint about, or oppose, the allegedly

unlawful activity in order to prevail on [his] claim.”

Giving Mr. Talbot the benefit of all inferences that can be

derived from the alleged facts, see Kowal,

, the

Court is persuaded that he has sufficiently alleged that he

engaged in activity protected by the DCHRA. The “DCHRA makes it

unlawful ‘to [in the District of Columbia] deny, directly or

indirectly, any person the full and equal enjoyment of the

19 goods, services, facilities, privileges, advantages, and

accommodations of any place of public accommodations’ based on

the person's actual or perceived disability.” Equal Rights

Center v. Hilton Hotels Corp., Civil Action No. 07–1528 (JR),

at * 8 (D.D.C. Mar. 25, 2009) (citing D.C. Code

§ 2–1402.31(a)); see also 42 U.S.C. 12131(1)(C) (defining Amtrak

as a public entity within the meaning of the ADA); 42 U.S.C.

12162(e)(2)(A) (ii)(1) (“All stations in the intercity rail

transportation system shall be made readily accessible to and

usable by individuals with disabilities,” by July 26, 2010.).

Amtrak argues that although Mr. Talbot alleges that he

engaged in protected activity when he made “complaints regarding

the treatment of disabled persons and Amtrak’s discriminatory

acts towards disabled customers are protected under the DCHRA,”

Def.’s Mot., ECF No. 30-1 at 18 (quoting Am. Consol. Compl., ECF

No. 27 at 40 ¶ 207, his “complaints were actually about his

perception that Amtrak misused funds earmarked for ADA

compliance projects, not that Amtrak was discriminating against

the disabled,” id. at 19. But Amtrak’s argument is beside the

point. Mr. Talbot has alleged that he observed and reported to

Amtrak Executives non-ADA compliant facilities at, among other

places in Washington D.C.,3 certain train platforms at Union

3 The Court does not address, and expresses no opinion on, whether Amtrak Headquarters and the Government Affairs Office in 20 Station. See Am. Consol. Compl. at 29 ¶ 124 (alleging that Mr.

Talbot rejected Amtrak’s plan for a new platform because it was

not ADA-compliant); id. at 29 ¶ 125 (alleging that Mr. Talbot

disclosed this non-compliance to, among others, the EOC); id. at

29 ¶ 127 (alleging that he informed numerous Amtrak Executives

that the platform plan was illegal); id. at 33 ¶¶ 154, 156

(alleging that in his response to his second PIP, he addressed

the non-compliance of the Union Station platform). Mr. Talbot

has satisfied his minimal burden at this stage: he has a

reasonable good faith basis to believe that non-ADA compliant

platforms at Union Station are unlawful under the DCHRA and he

has alleged numerous instances of complaining to numerous Amtrak

Executives about the non-compliance. See Green,

.

2. Mr. Talbot has sufficiently alleged causation.

Amtrak makes two arguments relating to the causation

element. First, Amtrak argues that Mr. Talbot’s retaliation

claim should be dismissed because he has not alleged who made

the decision about terminating his employment nor whether that

person knew about his complaints of Amtrak’s failure to comply

with the ADA. Def.’s Mot., ECF No. 301- at 20. However, at the

prima facie stage, it is not necessary for the plaintiff to

allege that the supervisor who took the adverse employment

Washington, D.C. fall within the purview of the DCHRA as the parties have not briefed that issue. 21 action had knowledge of the plaintiff’s complaint. Hamilton v.

Geithner,

(D.C. Cir. 2012) (noting that “at

the prima facie stage the fact that [the plaintiff] submitted

the complaint to the agency is sufficient”); see also Bartlette

v. Hyatt Regency,

(D.D.C. 2016) (noting

that defendant’s argument that plaintiff’s complaint was

“deficient because it does not allege that the supervisors

involved in the discrimination complaints were the same

supervisors who engaged in the retaliatory conduct” failed

“because the law does not require such a showing” at the motion

to dismiss stage). Accordingly, Amtrak’s argument is unavailing.

Amtrak’s second causation argument, that Mr. Talbot’s

Amended Consolidated Complaint contains no “facts connecting

[Mr. Talbot’s] advocacy on behalf of Amtrak’s passengers with

disabilities and his termination, Def.’s Mot., ECF No. 30-1 at

20, is equally unavailing. “Temporal proximity is not required

to state a retaliation claim, as it ‘neither demonstrates

causality conclusively, nor eliminates it conclusively.’”

Bartlette,

(citing Bryant v. Pepco,

(D.D.C. 2010) (citations and alterations

omitted)). Rather, “[i]t is sufficient at this stage of the

proceedings for a plaintiff to plead causation ‘simply by

alleging that the adverse actions were caused by his protected

activity.’

Here, Mr. Talbot alleges that he was removed from

22 his position in “retaliation for his protected oppositional

conduct.” Am. Consol. Compl., ECF No. 27 at 40 ¶ 208.

For these reasons, Mr. Talbot has stated a plausible claim

for retaliation in violation of the DCHRA. Accordingly, Amtrak’s

Motion to Dismiss as to this claim (Count IV) is DENIED.

d. Mr. Talbot alleged sufficient facts to state a claim that he was subjected to a hostile work environment in violation of the DCHRA.

Although Mr. Talbot’s Amended Consolidated Complaint does

not contain a separate count for hostile work environment, in

Count III, he alleges that “Amtrak discriminated against [him]

on the basis of disability when it subjected him to a hostile

work environment that culminated in his removal,” Am. Consol.

Compl., ECF No. 27 at 40 ¶ 204; and in Count IV, he alleges that

“Amtrak’s creation of a hostile work environment and removal of

[him] constitute unlawful retaliation for his protected

oppositional conduct,”

at 40 ¶ 208.

To state a hostile work environment claim, Mr. Talbot must

allege “that [his] employer subjected [him] to discriminatory

intimidation, ridicule, and insult that is sufficiently severe

or pervasive to alter the conditions of [his] employment and

create an abusive working environment.” Baloch,

(internal quotation marks and citations omitted). “Although a

plaintiff need not plead a prima facie case of hostile work

environment in the complaint, the alleged facts must support

23 such a claim.” McKeithan v. Boarman,

(D.D.C. 2011) (internal quotation marks and citation omitted).

In determining whether Mr. Talbot has alleged facts to support

his claim, the Court must evaluate “the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.” Baloch,

; see also Baird v. Gotbaum,

(D.C.

Cir. 2015)(quoting Nat'l R.R. Passenger Corp. v. Morgan,

(2002)(“A hostile environment consists of several

individual acts that ‘may not be actionable on [their] own’ but

become actionable due to their ‘cumulative effect.’”).

Furthermore, “[t]he constituent acts must be ‘adequately linked’

such that they form ‘a coherent hostile environment claim.’”

Baird, 792 F.3d at 168–69 (quoting Baird v. Gotbaum,

(D.C. Cir. 2011)). Finally, “a hostile work

environment can amount to retaliation under Title VII.” Baird,

(quoting Hussain v. Nicholson,

(D.C. Cir. 2006)); see also Gaujacq v. EDF, Inc.,

(D.C. Cir. 2010)(applying Title VII retaliation burden

shifting framework to DCHRA retaliation claim).

Amtrak argues that the incidents supporting Mr. Talbot’s

hostile work environment claim are not sufficiently related

because: (1) they “are not all the same type of employment

24 action”; (2) “were not carried out by the same person”; and (3)

there are lengthy temporal gaps between the events. Def.’s Mot.,

ECF No. 30-1 at 16. Amtrak also argues that Mr. Talbot has not

alleged that these incidents occurred because of his disability.

Id. at 17. Mr. Talbot responds that he has “sufficiently

alleged—at the motion to dismiss stage—sufficiently related

incidents that comprise his hostile work environment claim.”

Pl.’s Opp’n, ECF No. 32 at 6. Amtrak replies that Mr. Talbot’s

has not plead a sufficient claim of hostile work environment and

notes that Mr. Talbot was employed by Amtrak for seven years and

“only describe[s] with any specificity six events over the

course of three years that he considers to have been hostile

acts . . . .” Def.’s Reply, ECF No. 35 at 5.

In support of his hostile work environment claim, Mr.

Talbot alleges the following: (1) he “faced immense and

concerted resistance to his disclosures within Amtrak, and

because of his efforts, his superiors . . . demoted him,

isolated, disparaged, and harassed him,” Am. Consol. Compl., ECF

No. 27 at 10 ¶ 41; (2) in or about September 2011, “[s]everal

Amtrak Executives upbraided” him as a result of statements he

had made at a meeting with Senator Harken’s staff, id. at 13 ¶

56, id. at 15 ¶ 59; (3) Amtrak Executives “engaged in heated

debates and were dismissive of Mr. Talbot’s concerns regarding

Amtrak’s unsafe, noncompliant, and fraudulent actions, id. at 37

25 ¶ 187; (4) Amtrak Executives exhibited “hostility (which

included raised voices, anger, frequent interruptions),

confrontational actions, and undue scrutiny toward him,” id. at

38 ¶ 188; (5) “many acts of hostility occurred during various

EOC meetings in Washington, D.C., or during other meetings with

Amtrak executives in Washington, D.C.,” id. at 38 ¶ 189; (6) a

supervisor “called Mr. Talbot into his Washington, D.C. office

alone and belittled him for approximately 20 minutes,” id. at 38

¶ 190; (7) “Amtrak Executives also accused Mr. Talbot of

‘sabotaging’ them during EOC meetings,” id. at 38 ¶ 191; (8)

“Amtrak Executives commented many times to Mr. Talbot that he

was ‘too’ close to things and could not be objective” because of

his disability,” id. at 18 ¶ 192; (9) he was subjected to

unnecessary scrutiny and allegations of conflict of interest,

id. at 30-31 ¶¶ 133-19; and (10) he was subjected to the

following adverse actions: (i) demotion, id. at 31-32 ¶¶ 142-

146; (ii) negative performance reviews and PIPs, id. at 28 ¶

122, id. at 32 ¶ 148; (iii) relocation from office to cubicle,

id. at 33 ¶ 149; and (iv) termination, id. at 33 ¶ 151. Mr.

Talbot argues that these incidents are not isolated because the

EOC meetings occurred on a biweekly basis, that he has

identified the bad actors by name in his complaint, and that

they “reflect a concerted effort to discredit, intimidate,

frustrate, control, and exclude him.” Pl.’s Opp’n, ECF No. 32 at

26 9.

Giving Mr. Talbot the benefit of all inferences that can be

derived from the alleged facts, see Kowal,

, the

Court is persuaded that he has sufficiently alleged that he was

subjected to a hostile work environment. Contrary to Amtrak’s

argument that he has alleged only five discrete acts over a

period of more than four years, Mr. Talbot has alleged, among

other things, that throughout his employment with Amtrak, he was

treated with hostility; he was isolated, disparaged, and

harassed; he was subjected to confrontational actions and undue

scrutiny; and his concerns were dismissed. While Mr. Talbot has

not provided detailed facts supporting all of these allegations,

he has identified specific incidents which he alleges constitute

a hostile work environment. And contrary to Amtrak’s argument

that the acts are not sufficiently related, they do “form a

coherent hostile environment claim” because they allege acts

consistent with creation of a retaliatory hostile work

environment in response to Mr. Talbot’s protected activity as

well as a hostile work environment based on Mr. Talbot’s

disability. Mr. Talbot has alleged that he was subjected to

these actions both because of his disability and in retaliation

for protected conduct pursuant to the DCHRA. At this juncture,

the Court cannot conclude that Mr. Talbot’s hostile work

environment claims should be dismissed, but it is his burden to

27 put forward evidence in support of his claims as the case moves

forward. See Hutchinson v. Holder, 668 F. Supp 2d. 201, 219

(D.D.C. 2009) (denying motion to dismiss hostile work

environment claim where plaintiff alleges she was “humiliated,

falsely accused, and denigrated over a three-year period” and

where her “complaint lists dozens of incidents that she alleges

constituted a hostile working environment”); Bartlette,

(declining to dismiss plaintiff’s hostile

work environment claim even though he “faces an uphill battle”

based on his allegations of sexual harassment, constant denial

of breaks, and constant unwarranted disciplinary action).

Accordingly, the Court DENIES Amtrak’s Motion to Dismiss as

to Mr. Talbot’s hostile work environment claims in Counts III

and IV of his Amended Consolidated Complaint.

28 IV. Conclusion

For the reasons set forth above, the Court GRANTS IN PART

AND DENIES IN PART Amtrak’s Partial Motion to Dismiss and

DISMISSES Mr. Talbot’s claim for Retaliation in Violation of the

False Claims Act (Count I). Mr. Talbot may proceed on his

remaining claims in Counts II through V. A separate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 11, 2020

29