UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CYNTHIA GATLING, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-3770 (FYP) ) JUBILEE HOUSING, INC., et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff Cynthia Gatling is a wheelchair user who lives in an apartment building owned

and operated by Defendants Jubilee Housing, Inc. and Jubilee Housing Limited Partnership. See

ECF No. 16 (Amended Complaint), ¶ 7. Plaintiff alleges that the wheelchair ramp she must use

to access the building is unsafe, and that the building’s wheelchair lift has been inoperable for

years. See generally id. Based on Defendants’ alleged refusal to fix these problems after

multiple requests, Plaintiff brings this suit, claiming (1) violations of the Rehabilitation Act of

1973,

et seq. (“Rehabilitation Act”); (2) violations under the District of

Columbia Human Rights Act,

et seq. (“DCHRA”); (3) breach of her

lease agreement; and (4) breach of the covenant of good faith and fair dealing implied by her

lease agreement. See Am. Compl., ¶ 1.

Before the Court is Defendants’ Motion to Dismiss. See ECF No. 17 (Defendants’

Motion to Dismiss Amended Complaint). Defendants argue that (1) the statute of limitations has

run on Plaintiff’s statutory claims under the Rehabilitation Act and the DCHRA; (2) the relevant

DCHRA provisions do not apply to Plaintiff’s apartment building; (3) Plaintiff’s lease includes no contractual obligation for Defendants to provide reasonable accommodations for Plaintiff’s

disability; and (4) Defendants have not breached any implied or express duty of good faith and

fair dealing.

. Plaintiff has filed an Opposition, see ECF. No. 18, and Defendants filed a

Reply, see ECF No. 20. Also before this Court is Plaintiff’s Motion to Expedite. See ECF No.

21 (Plaintiff’s Motion for Expedited Resolution of Defendants’ Motion to Dismiss). Plaintiff

requests an expedited ruling on the Motion to Dismiss because, she asserts, she has been

virtually homebound as a result of the alleged deficiencies in the wheelchair ramp and

wheelchair lift.

at 1–2. For the following reasons, the Court will grant in part and deny in

part Defendants’ Motion to Dismiss. The Court also will deny Plaintiff’s Motion to Expedite as

moot. 1

BACKGROUND

Plaintiff resides at the “Mozart,” a low-income apartment building located at 1630 Fuller

Street, N.W., Washington, D.C. See Am. Compl., ¶ 1. Defendant Jubilee Housing, Inc. is a non-

profit in Washington, D.C. that provides affordable housing through various financing programs

and structures.

. On or about September 29, 2005, Jubilee Housing, Inc. sold the Mozart

to Defendant Jubilee Housing Limited Partnership (“JHLP”).

. The two Defendants

jointly own and operate the Mozart.

Plaintiff alleges that, over the last several years, she has fallen out of her wheelchair

while entering and exiting the Mozart because the wheelchair ramp at the front of the building is

too steep and is not in compliance with architectural standards.

. Moreover, Plaintiff

allegedly cannot access the building’s mailroom because there is a step leading to that room

1 On October 29, 2021, Plaintiff filed a Motion to Expedite this Court’s consideration of the Motion to Dismiss. See Pl. Mot. The Court was already considering the Motion to Dismiss when the Motion to Expedite was filed, and the Motion to Dismiss is resolved by the instant Memorandum Opinion and accompanying Order.

2 which prevents wheelchair access.

. Plaintiff also alleges that the wheelchair lift on the

side of the building has been inoperable for years.

. Plaintiff, her children, and her

caregivers have repeatedly requested that the wheelchair lift and wheelchair ramp be repaired or

replaced.

¶¶ 21–22.

Plaintiff has a medical condition that requires her to travel for treatment weekly.

. Plaintiff alleges that on at least one occasion in the last 18 months, with the most recent

occasion being in November 2020, she has fallen out of her wheelchair and down the ramp when

trying to navigate the entrance of the Mozart.

Her fall in November 2020 required

emergency medical attention and caused both physical and emotional injuries.

After the

November 2020 fall, Plaintiff again requested that the ramp and wheelchair lift be repaired.

¶¶ 26–27. Defendants have allegedly ignored or dismissed Plaintiff’s requests.

.

Plaintiff asks that this Court (1) declare that Defendants’ actions violate the Rehabilitation Act

and the DCHRA; (2) enjoin Defendants from failing to reasonably accommodate Plaintiff’s

disability; (3) award Plaintiff economic and compensatory damages; and (4) award Plaintiff

punitive damages.

.

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon

which relief can be granted.” Bell Atlantic Corp. v. Twombly,

(2007).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion,

, “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,

(2009) (quoting

Twombly,

).

When considering a motion to dismiss, a court must construe a complaint liberally in the

3 plaintiff's favor, “treat[ing] the complaint’s factual allegations as true” and granting “plaintiff the

benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines,

Inc.,

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

accord Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994). Although a

plaintiff may survive a Rule 12(b)(6) motion even if “‘recovery is very remote and unlikely,’”

the facts alleged in the complaint “must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555–56 (quoting Scheuer v. Rhodes,

(1974)).

ANALYSIS

Defendants offer four grounds to dismiss Plaintiff’s claims. See generally Def. Mot.

First, Defendants argue that the statute of limitations bars Plaintiff’s claims under the

Rehabilitation Act and the DCHRA.

at 4–5, 9–10. Second, Defendants contend that certain

DCHRA provisions relied upon by Plaintiff do not apply to Defendants.

at 10–11. Third,

Defendants assert that there was no breach of Plaintiff’s lease because that document contains no

contractual provision that requires Defendants to provide reasonable accommodations.

at 12–

13. And fourth, Defendants claim that there was no breach of the implied covenant of good faith

and fair dealing because there was no breach of contract. Id. at 15. The Court addresses these

arguments in turn.

I. Count I — Violation of The Rehabilitation Act

Defendants argue that Plaintiff fails to allege an actionable violation of the Rehabilitation

Act within the applicable one-year statute of limitations. Id. at 4. Defendants contend that the

statute of limitations began to run on the day that Plaintiff first made a request to replace the

ramp and wheelchair lift, which was over a year before the suit was filed. Id. at 7. 2 Plaintiff

2 While the Amended Complaint does not identify the date on which Plaintiff first requested that Defendants repair the ramp and the lift, it states that “[o]ver the last several years, Ms. Gatling has fallen out of her wheelchair;”

4 responds that she requested accommodations related to the ramp and the lift in November 2020,

less than two months before filing the instant lawsuit, and that her claim therefore falls squarely

within the one-year statute of limitations. See Pl. Opp. at 2–3.

Section 504 of the Rehabilitation Act does not contain an explicit statute of limitations.

See generally

. It is well established, however, “that when a federal law does not

specify a time-limitation in which to bring a claim, courts should look to ‘the state statute most

closely analogous to the federal Act.’” Arthur v. D.C. Housing Authority,

, at

*6 (D.D.C. Apr. 11, 2020) (quoting N. Star Steel Co. v. Thomas,

(1995)). Courts

in this district have found that the “DCHRA is the most closely analogous state statute . . . so its

one-year statute of limitation applies to [the Rehabilitation Act] as well.”

In determining whether Plaintiff’s claim under the Rehabilitation Act is barred by the

statute of limitations, the relevant question is “whether a new limitations clock begins running

each time that a request for accommodations is made anew and denied again.” Floyd v. Lee,

(D.D.C. 2013). While the D.C. Circuit has yet to answer this question,

there is conflicting authority on this issue in this jurisdiction. Compare Owens-Hart v. Howard

Univ.,

(D.D.C. 2016) (stating that a new request for the same

accommodation can restart the statute of limitations clock), with Stewart v. District of Columbia,

, at *6 (D.D.C. Mar. 12, 2006) (holding that plaintiff’s claim was untimely

because the statute of limitations began to run on the date of the first request and denial), and

Morgenstein v. Morgan Stanley DW Inc.,

, at *3–4 (D.D.C. Jan. 31, 2007)

(holding same); see also Floyd,

(collecting cases that consider this issue).

“[o]n at least one occasion during the last 18 months . . . she has fallen down the ramp;” and that “Plaintiff, both herself and through her children and caregivers” has repeatedly requested that the ramp and lift “be repaired and/or replaced.” See Am. Compl., ¶¶ 17, 21, 22, 24. These allegations indicate that Plaintiff most likely made her first request for accommodations more than a year before she filed suit.

5 After reviewing the relevant authority, this Court finds the decision in Owens-Hart most

persuasive and adopts its reasoning. 3 See

. In Owens-Hart, the plaintiff first

requested an asthma-related accommodation from her employer in March 2009 and made

numerous repeated requests for accommodations through July 2013.

at 86–88. The plaintiff

filed suit on April 30, 2014, bringing claims under the Americans with Disabilities Act (“ADA”),

the Rehabilitation Act, and the DCHRA.

at 89–90. In moving for summary judgment, the

defendant relied on Stewart and Morgenstein to argue that the claims were untimely and barred

by the one-year statute of limitations, because the plaintiff’s first request for accommodations

was in March 2009.

; see also Stewart,

, at *6; Morgenstein,

, at *3–4. 4

The court in Owens-Hart ruled that Stewart and Morgenstein were no longer applicable

due to “developments in the law.” See

. The court noted that after Stewart

and Morgenstein were decided, “several federal appellate courts have held that ‘a new limitations

clock begins running each time that a request for accommodations is made anew and denied

again.’”

(quoting Floyd,

). The court cited decisions from the First,

Fourth, and Ninth Circuits, all holding that “‘an employee who renews his request for particular

accommodations may bring suit based on a new “discrete act” of discrimination if the employer

against denies his request’ because ‘each denial constitute[s] a discrete act that . . . [forms] the

3 Plaintiff’s Rehabilitation Act claim is based on Defendants’ “failure to accommodate” her disabilities. See Am. Compl., ¶ 42. While Owens-Hart featured employment discrimination, rather than housing discrimination, the plaintiff was similarly seeking relief for a “failure to accommodate” under the Rehabilitation Act and therefore, the analysis regarding the statute of limitations is the same. See

; see also Arthur,

, at *7 (applying the same statute of limitations analysis under the Rehabilitation Act to claims of disability discrimination based on a failure to accommodate in the housing context). 4 While the analysis in Owens-Hart focused on statute of limitations for ADA claims, courts evaluate the statute of limitations under the Rehabilitation Act and the ADA using the same standards. See Kennedy v. Gray,

, 390–91 (D.D.C. 2015); Owens-Hart,

(applying the same analysis in deciding statute of limitations issue under ADA and Rehabilitation Act claims).

6 basis for a separate claim of discrimination and carrie[s] with it a new statute of limitations.’”

at 93 (quoting Tobin v. Liberty Mutual Ins. Co.,

, 131–32 (1st Cir. 2009)); see

also Tobin,

(finding that the “[t]he pivotal question in assessing the statute of

limitations issue is whether [plaintiff] made a specific request for accommodation that was

denied during the statutory periods[.]”); Hill v. Hampstead Lester Morton Court Partners LP,

581 Fed. App’x 178, 181 (4th Cir. 2014) (finding that repeated denials of requests for

accommodations each constituted “independent and discrete act[s] of discrimination” under the

Rehabilitation Act); Cherosky v. Henderson,

(9th Cir. 2003) (stating that

“[e]ach of the . . . denials of the Employees’ requests for [a reasonable accommodation]

constitutes a discrete act of alleged discrimination.”). 5

Consistent with Tobin, Hill, and Cherosky, the court in Owens-Hart ruled that “[a] new

request for the same accommodation will restart the statute of limitations clock, but a mere

request for reconsideration of a prior denial will not.” See

. Accordingly,

the “court’s focus must be on discerning whether the facts presented reflect a situation ‘in which

the employer commits multiple acts, each of which is independently discriminatory,’ or one ‘in

which an employee attempts to rely on . . . the employer’s single discriminatory act[.]’”

(quoting Tobin,

). In denying summary judgment, the court in Owens-Hart found

that there were genuine issues of material fact as to whether Plaintiff’s requests were new

requests or mere requests for reconsideration.

at 93–94 (stating that the extended lapse of

5 The Court has not found any other federal appellate opinions that have considered this issue after Owens- Hart, but several federal district courts have applied the reasoning in Owens-Hart and Tobin. See e.g., Ragusa v. Lehigh Univ.,

, at *5 (E.D. Pa. Aug. 6, 2019) (citing Owens-Hart for the proposition that whether a request for an accommodations is an entirely new request or merely a request for reconsideration is one for a reasonable jury to decide); Antidormi v. Nat’l R.R. Passenger Corp.,

, at *5–6 (N.D.N.Y. Aug. 4, 2021) (citing Tobin in finding that a mere request to reconsider a request for accommodations cannot restart the statute of limitations clock); Robinson v. Office of the Cook County Recorder of Deeds,

, at *9–10 (N.D. Ill. Mar. 26, 2021) (denying a motion to dismiss after finding that the record was too undeveloped for the court to determine whether the request for accommodations was a request for reconsideration).

7 time between the requests could “cause a reasonable factfinder to conclude that the requests . . .

were not mere requests for reconsideration” and that because plaintiff’s ask “was a request for a

different kind of accommodation . . . a reasonable factfinder could conclude that her requests . . .

were not mere requests for reconsideration[.]”) (emphasis in original).

Here, the Court is unable to discern from the Amended Complaint whether Plaintiff’s

November 2020 request for accommodations was a new, discrete request or one for

reconsideration of Defendant’s prior refusal to fix the wheelchair ramp and wheelchair lift. The

Amended Complaint states only that “[a]fter that November 2020 fall, Ms. Gatling . . . has

requested that the ramp be repaired” and “requested that the wheelchair lift . . . be repaired

and/or replaced[.]” See Am. Compl., ¶¶ 26–27. The Amended Complaint does not specify when

Plaintiff first made a request for accommodations, nor does it specify whether the November

2020 request differed from prior requests.

¶¶ 21–23, 26–27. Moreover, the parties disagree

about whether Plaintiff’s fall from her wheelchair in November 2020 was a change in

circumstances that altered the nature of the request. See Def. Reply at 3 (arguing that Plaintiff

fails to allege any changed circumstances to reflect an alteration in the nature of her request); Pl.

Opp. at 3 (arguing that Plaintiff’s circumstances changed in November 2020 when she fell and

suffered injuries requiring medical attention). 6 While the court in Owens-Hart stated that

“‘[C]hanges in either the employee’s condition or the workplace environment’ are not necessary

for the statute of limitations to reset,” see

, evidence of such a change could

bear on whether plaintiff’s most recent request was of a different nature, see

.

Because the Court is unable to determine at this time whether the November 2020 request

6 Defendants also argue that Plaintiff cannot rely on the continuing-violation doctrine to extend the statute of limitations period. See Def. Mot. at 6–7. There is no indication, however, that Plaintiff is attempting to rely on such a doctrine, as Plaintiff does not allege this in the Amended Complaint and does not argue it in her Opposition. See generally Am. Compl.; Pl. Opp.

8 for accommodations was a new request that restarted the clock on the statute of limitations, or a

request for reconsideration of a prior denial, the Court will deny Defendants’ Motion to Dismiss

as to Count I without prejudice. Defendants may raise this argument again, if appropriate, after

discovery. Plaintiff’s request for punitive damages on this claim, however, will be dismissed

because she concedes in her Opposition that punitive damages are not available under the

Rehabilitation Act. See Pl. Opp. at 5 n.3.

II. Count II — Violation of DCHRA

A. Statute of Limitations

Defendants reprise their statute of limitations argument regarding Plaintiff’s DCHRA

claim. See Def. Mot. at 9. Unlike the Rehabilitation Act, the DCHRA contains an explicit one-

year statute of limitations. See

(“A private cause of action pursuant to

this chapter shall be filed in a court of competent jurisdiction within one year of the unlawful

discriminatory act, or the discovery thereof[.]”). “[B]ecause the same standard governs

[Rehabilitation Act], ADA, and DCHRA claims alike,” the foregoing analysis from Owens-Hart

concerning the statute of limitations applies to Plaintiff’s DCHRA claims as well. See 220 F.

Supp. 2d at 96. For the reasons discussed supra, the Court denies Defendant’s Motion to

Dismiss the DCHRA claim, to the extent that it relies on the statute of limitations.

B. DCHRA Design & Construction Standards

In the alternative, Defendants argue that Count II should be dismissed because the design

and construction provisions of the DCHRA, on which Plaintiff relies, do not apply to the Mozart.

See Def. Mot. at 11. Count II states that “Defendants have discriminated against Plaintiff on the

basis of her disability and/or in housing in violation of

[.]” See Am.

Compl., ¶ 56. While the Amended Complaint does not specify the subsection of

-

9 1402.21 on which Plaintiff bases her claim, Plaintiff clarifies in her Opposition that she is relying

on subsection (d)(3)(D). 7 See Pl. Opp. at 7.

Subsection (d)(3)(C) of

prescribes design and construction

requirements for certain dwellings, while subsection (d)(3)(D) contains adaptive-design

requirements. See generally D.C. §§ Code 2-1402.21(d)(3)(C)–(D). Defendants argue that to

the extent Plaintiff alleges discrimination based on either of these design and construction

subsections, her claim should be dismissed because those subsections apply only to dwellings

first occupied after 1999, and the Mozart was built in the 1930s. 8 See Def. Mot. at 11.

Subsection (d)(3)(C) contains an effective-date restriction as to its applicability, and reads as

follows:

“[U]nlawful discrimination” includes [i]n connection with the design and construction of covered multifamily dwellings for first occupancy after April 20, 1999, a failure to design and construct these dwellings in a manner that

(i) The public and common use portions of the dwellings are readily accessible to and usable by persons with disabilities; and

(ii) Doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by persons with wheelchairs.

7 Plaintiff further attempts to argue that Defendants fail to comply with applicable requirements under

(d)(4), which states that “[c]ompliance with the appropriate requirements of the American National Standard for building and facilities providing accessibility and usability for persons with disabilities suffices to satisfy the requirements of paragraph (3) of this subsection.” See Pl. Opp. at 8;

- 1402.21(d)(4). Plaintiff argues that the ramp in the Mozart does not comply with the American National Standard requirements, and therefore, is in violation of the DCHRA. See Pl. Opp. at 8–11. Plaintiff relies on Google Earth photos, along with a series of calculations, to estimate the slope of the existing ramp.

The Court declines to consider this argument. On a motion to dismiss, Plaintiff cannot rely on materials not included in the Amended Complaint. See Tyson v. Brennan,

(D.D.C. 2017) (“[T]he court must limit its analysis [of a motion to dismiss] to the four corners of the complaint[.]”). Moreover, Plaintiff’s slope calculations based on Google Earth photos are speculative. 8 The Trustees Deed for the Mozart was filed with the D.C. Recorder of Deeds in 1928. See Def. Mot., Ex. A. The Court may consider this document “without converting [the] motion to dismiss into one for summary judgment” because the deed is a public record. See Jessup v. Progressive Funding,

, 29 n.3 (D.D.C. 2014).

10

(d)(3)(C) (emphasis added). Subsection (d)(3)(D) refers to “dwellings,”

just as subsection (d)(3)(C) does, but contains no explicit effective-date restriction on its

applicability:

All premises within the dwellings shall contain the following features of adaptive design:

(i) An accessible route into and through the dwelling;

(ii) Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations ... (v) The premises within the dwellings shall have at least 1 building entrance on an accessible route unless it is impracticable because of the terrain or unusual characteristics of the site.

(d)(3)(D) (emphasis added).

Defendants argue that the requirements of subsections (d)(3)(C) and (d)(3)(D) apply to

the same set of “dwellings” — those first occupied after April 20, 1999. See Def. Mot. at 10–11.

Defendants contend that subsection (d)(3)(D) “makes no sense without reference to the effective

date language contained in subpart (d)(3)(C),” even though subsection (d)(3)(D) does not

expressly contain the date restriction or refer to it. See Def. Reply at 6. Defendants cite a canon

of statutory interpretation, which states that sections of statutory provisions should be construed

as complementary, not conflicting, especially when adopted by the same legislature at the same

time.

(citing Lindh v. Murphy,

(1997)). Accordingly, Defendants argue

that the “dwellings” covered by subsection (d)(3)(D) are the same ones (first occupied after

1999) as those covered by subsection (d)(3)(C), and that neither subsection applies to the Mozart

(which was first occupied in the 1930s). Id. at 7.

Plaintiff argues that subsections (d)(3)(C) and (d)(3)(D) must be read independently from

each other. See Pl. Opp. at 7. Plaintiff contends that because subsection (d)(3)(D) does not have

11 an explicit effective date, the distinction between it and subsection (d)(3)(C) must be deliberate.

Id. Plaintiff relies on a competing canon of statutory interpretation, which states that “[w]hen the

legislature uses a term or phrase in one . . . provision but excludes it from another, courts do not

imply an intent to include the missing term in [the] . . . provision where the term or phrase is

excluded.” See Pl. Opp. at 7 (quoting Doe v. Burke,

(D.C. 2016)). Thus,

Plaintiff infers that the effective-date restriction of subsection (d)(3)(D) was deliberately

excluded from subsection (d)(3)(C), and the latter section applies to the Mozart.

The Court finds Defendants’ argument more persuasive. “In addressing a question of

statutory interpretation, [the Court] begin[s] with the text.” City of Clarksville v. FERC,

(D.C. Cir. 2018). It looks “not only to ‘the particular statutory language at issue,’

but also ‘the language and design of the statute as a whole.’” Delaware Dep’t of Nat. Res. and

Envtl. Control v. EPA (Delaware DNR),

(D.C. Cir. 2018) (quoting K Mart Corp.

v. Cartier, Inc.,

(1988)). “Therefore, when one statutory provision informs

the meaning of another at issue, [it] must apply interpretive tools to both.”

(emphasis in

original). Further, “the cannons of statutory interpretation instruct courts to avoid construing the

text of a statute to be contradictory: ‘[its] task is to fit, if possible, all parts into a harmonious

whole.’” Humane Society of the United States v. McCarthy,

(D.D.C.

2016) (quoting Roberts v. Sea-Land Servs., Inc.,

(2012)).

In examining the text of the statute, the Court first looks for evidence of whether the

“dwellings” referred to in subsection (d)(3)(D) are the same “dwellings” referred to in subsection

(d)(3)(C). The “dwellings” referred to in subsection (d)(3)(C) expressly cover “multifamily

dwellings” such as apartment buildings, and include requirements addressing “common and

public use portions.” See

(d)(3)(C)(i). While subsection (d)(3)(D) does

12 not state explicitly that the “dwellings” it discusses are multifamily dwellings, its requirements

indicate that they are. Subsection (d)(3)(D) refers to “premises within the dwellings,” which

appears to be a reference to units within a multifamily building. See

-

1402.21(d)(3)(D)(v). Moreover, the statute’s reference to “at least 1 building entrance on an

accessible route” makes the most sense as a requirement for a multi-unit apartment building. See

The Court takes this as evidence that the “dwellings” mentioned in subsection (d)(3)(D) refer

to the same “dwellings” as in subsection (d)(3)(C).

The Court also looks to the language and design of the rest of the statute to shed light on

the meaning of “dwellings” in subsection (d)(3)(D). See Delaware DNR,

. While

other provisions of the statute use the term “dwelling,” only subsections (d)(3)(C) and (d)(3)(D)

use the plural “dwellings.” See generally

. This is additional evidence

that subsections (d)(3)(C) and (d)(3)(D) refer to the same “dwellings.” When looking at the

statutory text as a whole and reading both sections to be harmonious, subsections (d)(3)(C) and

(d)(3)(D) should be read in concert to be referring to the same “dwellings.” See Delaware DNR,

; Humane Society,

.

Finally, the Court considers the analogous provision found in the Fair Housing Act

(“FHA”). “District of Columbia courts interpreting the DCHRA ‘have generally looked [for

guidance] to cases from federal courts’ arising under federal civil rights statutes.” Whitbeck v.

Vital Signs, Inc.,

(D.C. Cir. 1997) (quoting Benefits Communication Corp. v.

Klieforth,

, 1301–02 (D.C. 1994)) (alteration in original). In interpreting the

DCHRA, courts in this district have relied upon interpretations of analogous provisions of the

FHA for guidance. See Borum v. Brentwood Village, LLC,

(D.D.C. 2016)

(finding that the “plain language of the DCHRA commands the same finding as the language of

13 the FHA” when the two statutes had similar language); Hunter v. District of Columbia,

(D.D.C. 2014) (stating that where the DCHRA language parallels analogous

provisions of the FHA, the “section of the DCHRA and the FHA should be interpreted in a

parallel fashion”).

The FHA has substantially similar design and construction requirements as those under

the DCHRA, with one key difference — the FHA contains a single provision,

(f)(3)(C), that appears to combine the requirements that are outlined in subsections

(d)(3)(C) and (d)(3)(D) of the DCHRA. The relevant provision of the FHA has an effective-date

restriction, and reads as follows:

(C) in connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is 30 months after September 13, 1988, a failure to design and construct those dwellings in such a manner that —

(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;

(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain the following features of adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(III) reinforcements in bathroom walls to allow later installation of grab bars; and

(IV) usable kitchens and bathrooms such that an

14 individual in a wheelchair can maneuver about the space.

(f)(3)(C) (emphasis added). Thus, a substantively similar provision of the FHA

uses identical language to impose identical adaptive-design requirements as those enumerated in

subsection (d)(3)(D), and the FHA provision contains an effective-date limitation. Because the

requirements of the FHA in this regard mirror those of the DCHRA, the Court finds it persuasive

that the FHA applies the adaptive-design requirements only to multifamily dwellings that were

first occupied after 1988. See Borum,

; Hunter,

. This

strongly suggests that the identical adaptive-design requirements in the DCHRA also were

intended to have limited applicability based on the age of the building in question.

The Court thus concludes that the “dwellings” referred to in subsection (d)(3)(D) are the

same “dwellings” referred to in subsection (d)(3)(C), and that the requirements under subsection

(d)(3)(D) therefore apply only to buildings first occupied after April 20, 1999. Because the

Mozart was constructed in the 1930s, that provision does not apply to the Mozart. Accordingly,

the Court will grant Defendants’ Motion to Dismiss Count II.

III. Count III — Violation of

In Count III, Plaintiff alleges a violation of

, which provides that

“[i]t shall be an unlawful discriminatory practice for any person to aid, abet, invite, compel, or

coerce the doing of any of the acts forbidden under the [DCHRA].” See

.

Here, Plaintiff alleges that Defendants aided and abetted a violation of

.

See Am. Compl., ¶ 67 (“Defendants have aided and/or abetted discrimination against Plaintiff on

the basis of her disability and/or in housing in violation of

.”) As already

discussed, however, Plaintiff fails to state a claim under

, because the

adaptive-design subsection she relies upon does not apply to the Mozart. See supra Section II.b.

15 Plaintiff therefore fails to state a claim under Section § 2-1402.62 because there is no underlying

violation of the DCHRA for Defendants to aid and abet. See

.

Accordingly, the Court will dismiss Count III of the Amended Complaint.

IV. Count IV — Breach of Contract

Count IV alleges that JHLP breached Plaintiff’s lease agreement by discriminating

against Plaintiff based on her disability, and by refusing to provide reasonable accommodations

in the form of a wheelchair lift and building entrance ramp. See Am. Comp., ¶¶ 75–77.

Defendants argue that there is no provision in the lease that requires them not to discriminate or

to provide reasonable accommodations. See Def. Mot. at 11–12. Defendants argue that because

Plaintiff has failed to identify any contractual provision that would obligate them to grant the

accommodation requests, there can be no actionable breach of contract. 9

at 12–13.

Under District of Columbia law, a claim for breach of contract includes four elements:

“(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3)

a breach of that duty; and (4) damages caused by breach.” Ihebereme v. Capitol One, N.A.,

(D.D.C. 2010) (quoting Tsintolas Realty Co. v. Mendez,

(D.C. 2009)). “Obviously, one cannot breach a contract without breaching a particular

obligation created under the contract, and thus, ‘in the absence of a contractual obligation . . . [a]

defendant[] could not have breached [a] contract.’”

(quoting Schoen v. Consumers United

Group, Inc.,

(D.D.C. 1986)).

A thorough reading of the lease between Plaintiff and JHLP reveals no contractual

provision that would obligate Defendants to grant reasonable accommodations or to refrain from

discriminating against Plaintiff based on her disability. See Def. Mot., Ex. C (Lease Agreement

9 Defendants also argue that Plaintiff fails to allege damages caused by the breach of contract. See Def. Mot. at 13. The Court need not reach this argument as it finds that Plaintiff fails to state a claim for breach of contract.

16 between Plaintiff and JHLP). Plaintiff argues that Paragraph 33 of the lease, which is a Release

of Liability from Accident and Inconvenience, contemplates that JHLP will not engage in

intentional conduct that injures a tenant. See Pl. Opp. at 14. Paragraph 33 provides: “Except

damages or injury arising as a direct result of JUBILEE’S intentional conduct or negligence . . .

JUBILEE is released and discharged from any and all liability, claim, and expense resulting from

any accident, injury, . . . property damage, theft or breach of trust.” See Lease Agreement, ¶ 33.

The Court is unconvinced that this lease provision affirmatively obligates Defendants to provide

reasonable accommodations to Plaintiff for her disability. Because Defendants cannot breach a

contract absent a contractual provision that obligates them to perform in the manner asserted by

Plaintiff, Plaintiff fails to state a claim for breach of contract. See Ihebereme,

.

In an apparent acknowledgement that the terms of the lease do not favor her position,

Plaintiff offers an alternative argument that relies on certain U.S. Department of Housing and

Urban Development (“HUD”) regulations: Plaintiff contends that the HUD regulations are

incorporated into the lease and require Defendants to provide reasonable accommodations. See

Pl. Opp. at 12. Plaintiff asserts that JHLP’s acceptance of financial assistance from HUD makes

JHLP an “owner entity” under the regulations.

10 HUD regulations on “lease requirements”

require an “owner entity” to provide “reasonable accommodation[s] to the extent necessary” to

handicapped people. 11

at 13 (quoting

). Defendants respond that it is

10 Plaintiff argues that “Defendant JHLP receives federal financial assistance from the U.S. Department of Housing and Urban Development (‘HUD’).” See Pl. Opp. at 12 (citing Am. Compl., ¶¶ 9, 12, 41). “As such, HUD places affirmative lease obligations on an ‘Owner Entity,’ just as it does on a public housing agency receiving federal financial assistance (‘PHA’).”

(citing

(defining ‘Owner Entity’ and stating that ‘[t]he Owner Entity is subject to the applicable requirements of this subpart.’)). 11 Plaintiff also cites and relies on

(e)(1), (2), (4), and (5). See Pl. Opp. at 12. However, as Defendant notes, there are no such provisions in the C.F.R. If Plaintiff meant

, the Court notes that the provision applies only to Public Agency Housing leases, and none of the Defendants are Public Housing Agencies as defined by HUD.

17 “simply incorrect for Plaintiff to assert her lease incorporates all of the HUD lease regulations

when those regulations are not found within the four corners of Plaintiff’s lease.” See Def. Reply

at 11.

The Court agrees with Defendants that the HUD regulations are not incorporated into

Plaintiff’s lease. 12 The lease contains an integration clause that states, “This Lease contains the

final and entire understanding between the parties and no party shall be bound by any term,

condition or representation, oral or written, not set forth in this Lease.” See Lease Agreement,

¶ 47. An integration clause “indicat[es] that the contract represents a complete and final

expression of the parties’ wishes.” Intelsat USA Sales Corp. v. Juch-Tech, Inc.,

(D.D.C. 2013). Thus, Plaintiff’s reliance on HUD regulations is misplaced and cannot

revive her breach-of-contract claim.

Lastly, Plaintiff attempts to argue that Defendants breached the implied warranty of

habitability and the common law covenant of quiet enjoyment by failing to keep the wheelchair

ramp and wheelchair lift in proper working order. See Pl. Opp. at 15, 16–17. Plaintiff, however,

alleges no breach of the implied warranty of habitability or breach of the covenant of quiet

enjoyment in her Amended Complaint; and she may not amend the complaint in her brief in

opposition to a motion to dismiss. See Friends of Animals v. Ashe,

, 85 n.2

(D.D.C. 2014). Accordingly, the Court will grant Defendants’ Motion to Dismiss Count IV.

V. Count V — Breach of the Implied Covenant of Good Faith and Fair Dealing

Defendants argue that Count V must be dismissed because in the absence of an express

12 Plaintiff also attempts to rely on certain provisions of the HUD Occupancy Handbook and a model lease from the Ontario, a different building owned by Defendants. See Pl. Opp. at 13. Plaintiff argues that these model leases contain anti-discrimination provisions, and that it is suspicious that her lease does not.

These model lease provisions do not impose contractual obligations on Defendants. Plaintiff is required to rely on the four corners of her lease, and provisions from outside sources cannot be considered to support a claim of breach of contract.

18 contractual obligation, a breach of the implied covenant of good faith and fair dealing cannot

occur. See Def. Mot. at 15. Plaintiff argues that because she presented a viable breach of

contract claim, her breach of the implied covenant of good faith and fair dealing claim is

sufficient. See Pl. Opp. at 18–19.

As an initial matter, the Court notes that the Amended Complaint erroneously states that

the Contract “contains a provision that JHLP shall not discriminate against renters, including

Plaintiff, on the basis of disability” and “contains a covenant that the parties shall deal with each

other in good faith and fairly.” See Am. Compl., ¶¶ 81–82. The lease does not contain any such

provision. See generally Lease Agreement. Nevertheless, an express covenant is not necessary

to sustain a claim of breach of the covenant of good faith and fair dealing. “[I]n every contract

there is an implied covenant that neither party shall do anything which will have the effect of

destroying or injuring the right of the other party to receive the fruits of the contract, which

means that in every contract there exists an implied covenant of good faith and fair dealing.”

Jefferson v. Collins,

(D.D.C. 2016) (quoting Himmelstein v. Comcast of

the Dist., LLC,

(D.D.C. 2012)) (alteration in original).

“Liability lies for breach of the duty [of good faith and fair dealing] if a party (1) evades

the spirit of the contract, (2) willfully renders imperfect performance, or (3) interferes with

performance by the other party.” C & E Servs., Inc. v. Ashland Inc.,

(D.D.C. 2009). Plaintiffs claiming such a breach “must allege either bad faith or conduct that is

arbitrary or capricious.” Rodriguez v. Laboratory Corp. of AmericaHoldings,

(D.D.C. 2014) (quoting Wright v. Howard Univ.,

(D.C. 2013)). The

D.C. Circuit has not ruled on whether a breach of the implied covenant is actionable absent a

breach of contract. See Xereas v. Heiss,

(D.D.C. 2013). “Ultimately, the

19 relevant question in a claim concerning the duty of good faith and fair dealing is whether a

party’s actions ‘destroy[] or injur[e] the right of the other party to receive the fruits of the

contract.’” Regan v. Spicer HB, LLC,

(quoting Hais v. Smith,

(D.C. 1988)); see also C & E Servs.,

(stating that “the duty is

not a means to add new terms to the agreement; it merely requires that the parties behave fairly

and reasonably in the performance and enforcement of the contract”).

Count V states that “Defendant JHLP has breached the covenant of good faith and fair

dealing in the Contract by . . . denying requested reasonable accommodations for her

disabilities.” See Am. Compl., ¶ 85. Because Defendants had no duty or obligation to provide

reasonable accommodations under the lease, supra Section IV, Plaintiff’s receipt of such

accommodations was not a “fruit of the contract.” See Jefferson,

. Thus,

Defendants did not “injure[] the rights of [Plaintiff] to receive the fruits of the contract” by

failing to provide the requested accommodations. See

Plaintiff fails to allege that Defendants

acted in bad faith or attempted to evade the spirit of the lease in any manner other than declining

to provide reasonable accommodations. See Rodriguez,

; C & E Servs.,

Inc.,

. Accordingly, the Court will grant Defendants’ Motion to Dismiss

Count V.

20 CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss as to

Counts II, III, IV, and V; will deny Defendants’ Motion to Dismiss as to Count I but will dismiss

Plaintiff’s claim for punitive damages under Count I; and will deny Plaintiff’s Motion to

Expedite. A separate Order will issue this day.

Florence Y. Pan United States District Judge

Date: November 16, 2021

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