UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COLUMBUS PRESSLEY, : : Plaintiff, : Civil Action No.: 22-2262 (RC) : v. : Re Document Nos.: 9, 13, 14, 15 : MANAGEMENT SUPPORT : TECHNOLOGY, INC. : : Defendant. :

MEMORANDUM OPINION

DENYING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; DENYING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT; GRANTING NUNC PRO TUNC PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT; AND GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

I. INTRODUCTION

Plaintiff Columbus Pressley (“Plaintiff” or “Pressley”) brings the instant action against

his former employer, Management Support Technology, Inc. (“Defendant” or “MSTI”), alleging

disability discrimination, failure to provide reasonable accommodations, and retaliation under the

Americans with Disabilities Act (“ADA”),

; the D.C. Human Rights Act

(“DCHRA”),

to 1404.04; the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. §§ 2601–54, and the D.C. Family and Medical Leave Act (“DCFMLA”),

-501–17. Since filing his original Complaint in August 2022, Pressley has filed

a First Amended Complaint and a Second Amended Complaint, which MSTI has moved to strike

and dismiss. For the reasons explained below, the Court grants nunc pro tunc Plaintiff’s motion

for leave to amend and deems Plaintiff’s Second Amended Complaint to be the operative

complaint, while also denying MSTI’s motion to strike. As a result, MSTI’s motion to dismiss Plaintiff’s First Amended Complaint is denied as moot. The Court then grants in part and denies

in part MSTI’s motion to dismiss Plaintiff’s Second Amended Complaint.

II. BACKGROUND

A. Factual Background

In approximately October 2014, Pressley was diagnosed with bipolar disorder, post-

traumatic stress order (“PTSD”), high anxiety, severe obstructive sleep apnea, and chronic

insomnia. Pl.’s Second Am. Compl. (“SAC”) ¶ 9, ECF No. 14-1. These conditions significantly

impair his ability to fall and stay asleep, which in turn affects his ability to function during the

day. See

¶¶ 10–15.

In October 2018, Pressley began working for MSTI as an Asset Management Specialist,

which entailed “maintaining the asset inventory, updating the records in the database, conducting

research, and presenting reports.”

. In November 2018, Plaintiff submitted a request

to James Jordan, MSTI’s Vice President of Human Resources, and Leslie Alexander, MSTI’s

Federal Trade Commission (“FTC”) Site Project Manager, seeking accommodations that

included a later start time to his workday, an extra break, and written instructions.

.

Although Jordan told Pressley that he did not have any ADA-designated disabilities, and

Pressley’s request for accommodations was never formally approved, Alexander permitted

Pressley to work a more flexible schedule.

¶¶ 23–25. He “allowed Plaintiff to report to work

later, when necessary, and permitted him to work later in the evening to make up for starting

later.”

. In March 2019, Pressley assumed the position of MSTI’s Lead Asset Manager

Specialist and began implementing an enterprise resource planning tool called ServiceNow.

¶¶ 26–28. Pressley was also tasked with training Aaron Smith, a new employee hired in July

2019.

.

2 In approximately April or May 2019, MSTI replaced Alexander with Veronica Matthews.

. Although Pressley told Matthews that his later report time was an accommodation for

his disability, Matthews disciplined him for reporting to work late.

. Between July

2019 and the date of his termination, Matthews suspended Pressley five or six times.

.

She also made negative comments to Pressley, such as saying, “You need to get a better alarm

clock.”

. In addition, she “subjected [him] to increased scrutiny by frequently

reprimanding him for overtly inconsequential issues” and did not accommodate his requests that

certain items be detailed and highlighted in writing.

¶¶ 39–40.

In October 2019, Pressley’s physician submitted a request to Jordan that Pressley be

granted reasonable accommodations and submitted a Form WH-380-E certification for

FMLA/DCFMLA leave.

¶¶ 42–43. Jordan confirmed receipt of the documentation, “but

requested that edits be made to his certification forms.”

. Pressley then emailed Jordan

to re-submit his FMLA/DCFMLA certification requesting intermittent leave.

. On

November 12, 2019, Jordan and Matthews told Pressley verbally that his FMLA/DCFMLA leave

was approved, though Jordan stated again during this meeting that Pressley did not have an

ADA-designated disability.

¶¶ 49–50. On November 22, 2019, Pressley received a letter

officially approving his FMLA/DCFMLA leave.

. Pressley utilized the approved FMLA

leave to report to work later.

.

Shortly after Pressley requested the FMLA/DCFMLA leave, Matthews rejected

Pressley’s request to attend a conference in November 2019 about ServiceNow.

¶¶ 53–54. In

denying his request, Matthews said that, “‘based on [his] standing with MSTI,’ she would not

‘approve this event,’” and that the event did not directly relate to Pressley’s role.

¶¶ 55–56.

Moreover, in approximately mid-November 2019, Matthews informed Pressley that he was no

3 longer MSTI’s Lead Asset Management Specialist, and the position and title were given to

Smith.

. Pressley was also excluded from decisions and meetings, including processes

related to ServiceNow, because Matthews would not invite Pressley and would hold the meetings

before Pressley arrived in the morning.

¶¶ 59–60. During the last week of November 2019,

Matthews “instructed Plaintiff to sit at his desk unless he was asked questions, and not to send

any emails or make calls,” and also “told him not to go to the Constitution Center location, even

though this was Plaintiff’s additional work site.”

. In December 2019, after Matthews

requested that Pressley submit a report regarding issues related to ServiceNow, Matthews held a

meeting regarding the report without inviting Pressley to that meeting.

.

On December 13, 2019, Jordan terminated Pressley’s employment with MSTI, alleging

violations of FTC security regulations and protocols for contract employees.

. Pressley

would take his FTC laptop and cell phone home at night to continue his work, but was “unaware

of any security policies relating to the use and handling of FTC IT equipment” and there had not

been “any presentation of such policies or guidelines.”

¶¶ 65–66, 68. Additionally, another

IT Asset Management Specialist, Alexander Barnwell, “engaged in similar conduct and was not

penalized.”

. Barnwell did not have FTC approval to be on site, yet he removed FTC IT

equipment from a job site.

¶¶ 71–72. The week after Pressley’s termination, MSTI

Supervisor Brittany Cole circulated a policy regarding FTC-issued IT equipment and required

that all employees sign the policy.

. Finally, on December 17, 2019, Jordan called

Pressley’s mother and told her that he had been terminated, stating “that federal authorities had a

warrant out for Plaintiff, insinuating that Plaintiff was a fugitive” and “that [Pressley’s] medical

condition was affecting his behavior because he had stolen equipment from the FTC site.”

.

4 B. Procedural Background

Pressley now seeks to raise various claims under the ADA, DCHRA, FMLA, and

DCFMLA against MSTI. Pressley initially filed his original Complaint in D.C. Superior Court

on June 17, 2022, but MSTI removed the matter to this Court on August 1, 2022. See Not. of

Removal, ECF No. 1. MSTI then filed a motion to dismiss on August 8, 2022, see Def.’s First

Mot. to Dismiss, ECF No. 3, after which Pressley filed his First Amended Complaint on August

16, 2022, see Pl.’s First Am. Compl., ECF No. 7. MSTI filed a second motion to dismiss on

August 30, 2022. See Def.’s Mot. to Dismiss Am. Compl., ECF No. 9. Rather than filing an

opposition to MSTI’s second motion to dismiss, Pressley filed his Second Amended Complaint

on September 13, 2022. See SAC. MSTI then filed a motion to strike the Second Amended

Complaint because Pressley had not sought or obtained either MSTI’s consent or the Court’s

leave to file the amended complaint. See Def.’s Mot. to Strike SAC, ECF No. 13. Three days

after MSTI filed its motion to strike, Pressley belatedly sought leave to file the Second Amended

Complaint. See Mot. for Leave to File SAC, ECF No. 14. Finally, MSTI filed a motion to

dismiss the Second Amended Complaint. See Def.’s Mot to Dismiss SAC (“Def.’s Mot. to

Dismiss”), ECF No. 15. The pending motions—MSTI’s motion to dismiss Plaintiff’s First

Amended Complaint, Plaintiff’s motion for leave to file the Second Amended Complaint,

MSTI’s motion to strike the Second Amended Complaint, and MSTI’s motion to dismiss the

Second Amended Complaint—have been briefed and are now ripe for consideration.

III. LEGAL STANDARDS

A. Motion to Amend Complaint

Pursuant to the Federal Rules of Civil Procedure, a party may amend its pleading once as

a matter of course within 21 days after serving it, or, if the pleading is one to which a responsive

5 pleading is required, 21 days after service of a responsive pleading or 21 days after service of a

motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). “In all other

cases, a party may amend its pleading only with the opposing party’s written consent or the

court’s leave.” Fed. R. Civ. P. 15(a)(2).

The decision to grant or deny leave to amend “is committed to a district court’s

discretion.” Firestone v. Firestone,

(D.C. Cir. 1996) (per curiam). Although

leave to amend a complaint “shall be freely given when justice so requires,” Fed. R. Civ. P.

15(a)(2), “the Supreme Court has instructed federal courts to consider the following factors: (1)

undue delay; (2) the movant’s bad faith or dilatory motive; (3) repeated failures to cure

deficiencies by amendments previously allowed; (4) undue prejudice to the opposing party by

virtue of permitting an amendment; and (5) futility of the amendment,” Norris v. Salazar,

(D.D.C. 2010) (citing Foman v. Davis,

(1962)).

The party opposing the amendment bears the burden of showing why leave should not be

granted. Wright v. Corr. Corp. of Am., No. 1:00-CV-00293,

, at *2 (D.D.C.

Jan. 21, 2016). Because “Rule 15 does not prescribe a time limit in which a plaintiff may seek to

amend a complaint,” Connecticut v. U.S. Dep’t of the Interior,

(D.D.C.

2019), “‘[c]onsideration of whether delay is undue . . . should generally take into account the

actions of other parties and the possibility of any resulting prejudice,’”

(quoting Atchinson v.

D.C.,

(D.C. Cir. 1996)). In determining whether “the threat of prejudice to the

opposing party is great enough to warrant denying leave to amend, courts consider ‘the hardship

to the moving party if leave to amend is denied, the reasons for the moving party failing to

include the material to be added in the original pleading, and the injustice resulting to the party

6 opposing the motion should it be granted.’” Wright,

, at *5 (quoting Childers v.

Mineta,

(D.D.C. 2001)).

B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

To meet the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, a

complaint must contain “‘a short and plain statement of the claim showing that the pleader is

entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,

(2007) (quoting

Conley v. Gibson,

(1957)). To survive a motion to dismiss, the “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,

). In

considering such a motion, a court must construe the complaint “liberally in the plaintiff’s favor

with the benefit of all reasonable inferences derived from the facts alleged.” Stewart v. Nat’l

Educ. Ass’n,

(D.C. Cir. 2006) (citing Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994)). But “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” are insufficient. Iqbal,

(citing

Twombly,

). Further, a court need not accept a plaintiff’s legal conclusions as

true, see

nor presume the veracity of legal conclusions that are couched as factual allegations,

see Twombly,

.

IV. ANALYSIS

Pressley seeks to raise various claims under the ADA, DCHRA, FMLA, and DCFMLA

against MSTI in his Second Amended Complaint, which he belatedly seeks leave to file. In the

interest of justice, the Court grants Pressley leave to file his Second Amended Complaint nunc

pro tunc and accordingly denies MSTI’s motion to strike the Second Amended Complaint and its

7 earlier motion to dismiss the First Amended Complaint. The Court then turns to MSTI’s motion

to dismiss Pressley’s Second Amended Complaint. First, the Court dismisses Pressley’s claims

of ADA and DCHRA disability discrimination based on his allegations of suspensions, the denial

of training opportunities, and exclusion from meetings and communications; his claims of such

discrimination arising out of the change in his job title and responsibilities and his ultimate

termination, however, survive. Second, the Court denies MSTI’s motion to dismiss Pressley’s

claims that it denied reasonable accommodations for his disabilities in violation of the ADA and

DCHRA. Third, the Court dismisses Pressley’s claims of ADA and DCHRA retaliation based on

his allegations of suspensions, the denial of training opportunities, and exclusion from meetings

and communications; his claims of retaliation arising out of the change in his job title and

responsibilities and his ultimate termination survive. Finally, the Court denies MSTI’s motion to

dismiss Pressley’s claims of FMLA and DCFMLA interference and retaliation. 1

A. Motion to Amend Complaint

The Court recognizes that Pressley’s procedural failures have complicated this matter

unnecessarily, compelling MSTI to expend time and resources and file no fewer than three

motions to dismiss and various other filings. Nevertheless, the Court will in the interest of

justice grant Pressley leave to file his Second Amended Complaint nunc pro tunc. “Where ‘the

underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he

1 As an overarching observation, the Court notes MSTI’s objections to Pressley’s allegations that state that they are premised “upon information and belief.” See, e.g., Def.’s Mot. to Dismiss at 5, 10. But “[a]lleging facts ‘upon information and belief’ can be sufficient to survive a motion to dismiss.” Bancroft Glob. Dev. v. United States,

(D.D.C. 2018); see Evangelou v. District of Columbia,

(D.D.C. 2012) (permitting a plaintiff to plead facts upon information and belief “where the facts are peculiarly within the possession and control of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible” (citation omitted)).

8 ought to be afforded an opportunity to test his claim on the merits.’” Pappas v. District of

Columbia,

, 100 (D.D.C. 2021) (citation omitted); see Foman v. Davis,

, 181–82 (1962) (“The Federal Rules reject the approach that pleading is a game of skill

in which one misstep by counsel may be decisive to the outcome and accept the principle that the

purpose of pleading is to facilitate a proper decision on the merits.” (citation omitted)).

Importantly, MSTI has not made a sufficient showing that it has been prejudiced by

Pressley’s alleged untimeliness, given that this case is still “in its infancy.” Connecticut,

; see also Djourabchi v. Self,

(D.D.C. 2006) (stating that

amendment should be allowed where it does not “unduly increase discovery or delay the trial,

and when the opponent could not claim surprise”). Pressley filed both of his amended

complaints within one month, with the Second Amended Complaint filed within two months of

the case’s removal to this Court. And even though Plaintiff has added factual details and/or

allegations, his claims remain the same and “arise from the same core set of events underlying

the initial complaint.” Connecticut,

. The additional expenses that MSTI

incurred as a result of the Second Amended Complaint are now a sunk cost, and, in any case,

additional expenses do not necessarily compel a finding of undue prejudice. See City of

Moundridge v. Exxon Mobil Corp.,

, 6–7 (D.D.C. 2008) (“Inconvenience or

additional cost to a defendant is not necessarily undue prejudice.”); United States ex rel. Westrick

v. Second Chance Body Armor, Inc.,

(D.D.C. 2013) (“[A]n amendment is not

automatically deemed prejudicial if it causes the non-movant to expend additional resources.

Any amendment will require some expenditure of resources on the part of the non-moving

party.”); Bronner v. Duggan,

, 291 (D.D.C. 2018) (allowing amendment where

defendants “[did] not offer evidence that the amended complaint would unduly prejudice their

9 legal strategy or their ability to present evidence”). The cases that MSTI cites emphasizing the

fault of the party seeking to amend, and deemphasizing prejudice to the nonmoving party, are

inapt here given the different postures of those cases. See Woods v. District of Columbia, No.

20-cv-0782,

, at *1 (D.D.C. Mar. 21, 2022), recons. denied, No. 20-cv-0782,

(D.D.C. Dec. 29, 2022) (amended complaint following denial of motion for

reconsideration, which itself followed dismissal of the plaintiff’s operative complaint); Webster

v. Pacesetter, Inc.,

(D.D.C. 2003) (notice of appeal); Wilson v. Prudential

Fin.,

(D.D.C. 2003) (oppositions to defendants’ motions).

Thus, the Court will treat the Second Amended Complaint as the operative complaint,

granting Pressley’s motion for leave to amend and denying MSTI’s motion to strike. 2 The Court

also warns Pressley, however, that though the Court has accorded him this leeway here, he must

take greater care to ensure compliance with this Court’s local rules and the Federal Rules of Civil

Procedure going forward. Finally, given that the Court has granted leave nunc pro tunc for

Pressley to amend and deems his Second Amended Complaint to be the operative complaint,

Defendant’s motion to dismiss the First Amended Complaint must be denied as moot.

B. ADA and DCHRA Claims

Due to the similarities between the ADA and DCHRA, the D.C. Court of Appeals has

stated that it would be appropriate to turn to ADA case law for guidance when interpreting the

2 MSTI argues that the Court should grant its motion to strike as conceded, given that Pressley never filed an opposition to that specific motion. See Def.’s Reply Supp. Mot. to Strike, ECF No. 18. It would indeed have been within this Court’s power to grant MSTI’s motion to strike as conceded. See Summers v. Howard Univ.,

, 28 n.1 (D.D.C. 2000); see Local Civ. R. 7(b) (“If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded.” (emphasis added)). The Court will decline to do so, however, because Pressley has opposed the substance of MSTI’s motion to strike in responding to its opposition to his motion to amend.

10 DCHRA. See Hunt v. District of Columbia,

(D.C. 2013) (“Our decisions under

the DCHRA regarding whether an employee was discriminated against because of a ‘disability’

effectively incorporate judicial construction of related anti-discrimination provisions of the

[ADA].”). Thus, the Court does so here. See, e.g., McKnight-Nero v. Walmart, Inc., No. 20-cv-

1541,

, at *4 n.2 (D.D.C. Feb. 19, 2021) (“[C]ases involving parallel provisions

of the ADA are persuasive in reviewing Plaintiff’s DCHRA claims.”).

1. Disability Discrimination (Counts I and IV)

Pressley claims that MSTI discriminated against him in violation of the ADA and

DCHRA because it suspended him on multiple occasions, denied him training opportunities,

removed his leadership responsibilities, excluded him from key communications and meetings,

and ultimately terminated his employment based on his disabilities. SAC ¶¶ 78–83, 94–98.

MSTI responds that Pressley has failed to allege that he suffered any adverse employment

actions, aside from the termination of his employment. Def.’s Mot. to Dismiss at 8–14. MSTI

then argues that, as to the termination, Pressley has not shown that he was removed from his

position because of his disabilities, given that he was instead terminated for violating FTC

security protocols.

at 14–21.

The standards applicable to claims brought under the ADA also apply to Pressley’s

DCHRA claims. See Hodges v. District of Columbia,

(D.D.C. 2013);

McFadden v. Ballard Spahr Andrews & Ingersoll, LLP,

, 5–6 (D.C. Cir. 2010); Chang

v. Inst. for Pub.-Priv. P’ships, Inc.,

(D.C. 2004) (“Because the DCHRA

definition of ‘disability’ closely resembles the definition of disability found in the [ADA] . . . we

have considered decisions construing the ADA as persuasive in our decisions construing

comparable sections of the DCHRA.” (cleaned up)). Thus, to establish a prima facie case of

11 discrimination under both the ADA and DCHRA, a plaintiff must show “that [he] was disabled

within the meaning of the ADA, [he] was qualified for the position at issue with or without a

reasonable accommodation, and [he] suffered an adverse employment action because of [his]

disability.” Walden v. Patient-Centered Outcomes Rsch. Inst.,

(D.D.C.

2016) (citing Giles v. Transit Emp. Fed. Credit Union,

(D.C. Cir. 2015)). 3

In the context of Title VII discrimination claims, the D.C. Circuit until recently defined

“adverse employment action” such that, to find an adverse employment action, a court must

“conclude that ‘a reasonable trier of fact could find objectively tangible harm’ based on

‘materially adverse consequences affecting the terms, conditions, or privileges of employment or

future employment opportunities.’” Black v. Guzman, No. 22-cv-1873,

, at *7

(D.D.C. Apr. 24, 2023) (quoting Forkkio v. Powell,

(D.C. Cir. 2002)).

After its decision in Chambers v. District of Columbia,

(D.C. Cir. 2022) (en banc),

however, “under Title VII, a plaintiff need not allege that she suffered an ‘objectively tangible

harm’ in order to state a claim; rather, the statutory text requires only discrimination with respect

to an employee’s ‘terms, conditions, or privileges of employment’—no more and no less.” Bain

v. Off. of Att’y Gen., No. 21-cv-1751,

, at *18 (D.D.C. Dec. 23, 2022)

(citation omitted). Even so, the D.C. Circuit “acknowledge[d] that ‘the phrase [‘terms,

conditions, or privileges of employment’] is not without limits’ because ‘not everything that

3 MSTI does not contest that Pressley was disabled within the meaning of the ADA or that he was qualified for his positions with or without a reasonable accommodation. Instead, MSTI focuses its attention on the last requirement for making out a prima facie case of discrimination under the ADA and DCHRA: whether Pressley suffered an adverse employment action because of his disabilities. And indeed, “at the motion to dismiss stage a ‘[p]laintiff need only allege that he suffered an adverse employment action . . . because of [his] race, color, religion, sex, national origin . . . or disability.’” Walden,

(quoting Munro v. LaHood,

(D.D.C. 2012)) . The Court accordingly also concentrates on analyzing whether Pressley has raised a sufficient allegation of this last element.

12 happens at a workplace affects an employee’s terms, conditions, or privileges of employment.’”

Black,

, at *7 (quoting Chambers,

) (cleaned up). While “the

mere formality of a change in title” would not suffice as an adverse employment action, for

example, “the transfer of an employee to a new role, unit, or location . . . undoubtedly is

included.” Chambers,

.

While the Circuit’s ruling “appears to be limited by its terms to cases involving [job]

transfers,” several courts “have determined that the Chambers opinion has broader application.”

McCallum v. Mayorkas, No. 21-cv-1911,

, at *9 n.9 (D.D.C. May 2, 2023).

In a comparable case, another court in this District reasoned that the interpretation of Title VII

set forth in Chambers should lead the court to “interpret the materially identical adverse action

provisions of [Title VII, the Age Discrimination in Employment Act, and the Rehabilitation Act]

to mean the same thing,” such that it should no longer apply the “objectively tangible harm”

gloss. Bain,

, at *19. Like the court in Bain, this Court concludes that it

would be appropriate to apply the D.C. Circuit’s precedent in Chambers to the ADA, given that

courts have “applied Title VII principles in considering adverse employment actions under the

ADA.” Blackwell v. SecTek, Inc.,

, 158 n.6 (D.D.C. 2014); see also, e.g.,

Weigert v. Georgetown Univ.,

(D.D.C. 2000) (“Because the ADA

incorporates the procedures of Title VII, rulings in this area applying to adverse actions are

relevant [to evaluating adverse actions under the ADA].”); Mogenhan v. Napolitano,

(D.C. Cir. 2010) (stating that “Title VII of the Civil Rights Act . . . contains anti-

discrimination and retaliation provisions that are indistinguishable from those of the ADA”).

13 a. Adverse Employment Action

Before turning to the question of whether Pressley has raised plausible claims that he was

discriminated against because of his disabilities, the Court considers first whether he has even

alleged that he suffered adverse employment actions. Although the Court concludes here that

MSTI’s alleged actions suffice to constitute adverse employment actions so as to survive MSTI’s

motion to dismiss the ADA and DCHRA discrimination claims, the Court also recognizes that

the parties have focused on the pre-Chambers objectively-tangible-harm requirement in arguing

that Pressley failed to allege an adverse employment action. Looking ahead, the Court will

permit MSTI to “remain[] free to press whatever alternative arguments it sees fit . . . at the

summary judgment stage following discovery,” including any arguments that, following

additional fact development, it appears that these actions do not in fact meet the requirements for

constituting adverse employment action post-Chambers. Liu v. Georgetown Univ., No. 22-cv-

157,

, at *6 (D.D.C. July 6, 2022).

i. Training

At this early motion to dismiss stage, the Court finds that Pressley has sufficiently alleged

that the denial of the opportunity to attend a training constitutes an adverse employment action.

First, the Court assumes that Pressley refers to Matthews’ denial of his request to attend the

ServiceNow conference when he claims that he was denied training opportunities. See SAC ¶¶

53–56. Pressley does not set forth any argument for why such a denial ought to be considered an

adverse employment action or how it affected the terms, conditions, or privileges of his

employment. In a potentially comparable case, another court in this District considered whether

a plaintiff’s claim that she had been “pulled from” two “‘work-related event[s],’ described as a

‘Miami event’ and a ‘Maryland business summit,’ and replaced by a male coworker at the

14 Maryland event” sufficed as adverse employment action post-Chambers. Black,

, at *2. Noting that the plaintiff had not “proffer[ed] supporting facts or allegations” as

to this claim,

, the court concluded that a plaintiff’s allegation that she had been “‘pulled

from’ two work events in a two-month period over her lengthy employment . . . fail[ed] to satisfy

the Chambers standard” because the plaintiff did not “explain how this action affected any terms

or conditions of her employment in a manner any different than any regular re-assignment of

work among employees,”

. The plaintiff “[could not] avoid dismissal of her Title VII

discrimination claim by baldly stating that the alleged employment action adversely affected the

terms, conditions, or privileges of employment,” the court stated, particularly once it considered

“the contextual information provided here that plaintiff’s apparent reassignment from attending

two events occurred in a limited two-month period over an extensive work history, when her

own allegations suggest that her supervisors viewed her work productivity in the same period as

subpar.”

at *7–8.

By contrast, a court in another analogous case concluded that a plaintiff “plausibly

alleged that [his employer’s] denying him the opportunity to present the results of his research at

a professional conference constitute[d] the denial of one of the ‘terms, conditions, or privileges

of [his] employment’ for purposes of Title VII.” Liu,

, at *5. Citing to the

plaintiff’s allegation that the presentation would have served as a training opportunity,

the

court agreed that “the opportunity to present [one’s] research results at professional

conferences—that is, to present and to take professional credit for one’s own work—constitutes a

‘privilege’ of employment as an academic researcher,”

. Construing the complaint in the

light most favorable to the plaintiff and drawing all reasonable inferences in his favor,

the

court found that the plaintiff’s complaint “contain[ed] sufficient allegations that the [c]ourt may

15 draw the reasonable inference that the opportunity to present the data and conclusions allegedly

derived from [the plaintiff’s] own work would have advanced his career as an academic

researcher” and that his employer’s denial of that opportunity sufficed as an adverse employment

action,

.

Upon consideration of these two precedents, it appears to this Court that Pressley’s claim

that he was denied the opportunity to attend the ServiceNow conference falls closer to Liu than

to Black. True, Pressley has not, in contrast to the plaintiff in Liu, explicitly articulated why

attending the conference would have advanced his career. But the importance of Pressley’s work

with ServiceNow and the potential for advancement in his career by staying apprised of its

developments is, upon construing his Second Amended Complaint in the light most favorable to

him and drawing all reasonable inferences in his favor, fairly discernible from his allegations.

See SAC ¶¶ 26–28, 62. “[A]t this early stage of the proceeding, [MSTI] bears the burden of

showing that the complaint fails to state a plausible claim, and the Court cannot conclude that, as

a matter of law, the loss of such an opportunity would inflict, at most, a ‘trivial harm.’” Liu,

, at *6 (citation omitted).

ii. Meetings and Communications

Next, Pressley contends that being excluded from meetings and communications

“undoubtedly had an impact on his employment” because “he was completely unaware of

information when his co-workers would speak with him” and “was deprived of the information

necessary to successfully perform his duties.” Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s

Opp’n”) at 13, ECF No. 19. In his Second Amended Complaint, Pressley further alleges that he

was told not to send any emails or make calls, nor to go to a work site, and was not invited to a

meeting about a report that he had produced. SAC ¶¶ 61–62. As with his allegations of the

16 denial to attend the ServiceNow training, Pressley offers few details about the meetings, which

prevents the Court from evaluating what effect his absence from those meetings may have had

on his career. Similarly, though Pressley states that Matthews directed him to not communicate

with others or go to an additional work site, Pressley has not shown that he abided by those

directions. Even so, taking the allegations in his Second Amended Complaint as true, Pressley

has sufficiently alleged for purposes of this motion to dismiss that his exclusion altered the terms

of his employment because he could not communicate with his colleagues as he did before,

which would presumably have affected his ability to fulfill his job responsibilities. Because the

Court again construes Pressley’s Second Amended Complaint in the light most favorable to him

and draws all reasonable inferences in his favor, the Court must conclude that Pressley has

sufficiently alleged that these actions constitute adverse employment actions. See Heavans v.

Dodaro, No. 22-cv-836,

, at *8 (D.D.C. Dec. 23, 2022) (finding that, because

the plaintiff had attended certain meetings for years, the announcement that he would be

excluded from those meetings “plainly effected a notable alteration to the terms of his

employment, with a public demotion of his standing in [the] leadership team”).

iii. Suspensions

Pressley does not specify in his Second Amended Complaint the length of his

suspensions or claim that MSTI suspended him without pay, stating only that Matthews

suspended him five to six times between July 2019 and his termination. See SAC ¶ 36.

Belatedly, he suggests in his opposition to MSTI’s motion to dismiss that the suspensions

“affected his pay” as “a natural consequence of a work suspension,” and then cites to cases

regarding suspensions without pay. Pl.’s Opp’n at 13. It remains unclear to the Court whether

Pressley is alleging that he was in fact suspended without pay or suffered some lost wages as a

17 result of his suspensions. Post-Chambers, it is clear that suspension without pay still qualifies as

an adverse employment action. See Leach v. Yellen, No. 18-cv-3075,

, at *6

(D.D.C. Mar. 14, 2023) (describing a two-day unpaid suspension as “clearly” qualifying as

adverse for Title VII discrimination purposes). But it remains unclear whether a suspension with

pay for a limited period of time—which, pre-Chambers, was unlikely to qualify as an adverse

employment action, see, e.g., Brown v. Georgetown Univ. Hosp. Medstar Health,

(D.D.C. 2011) (collecting cases)—so qualifies as such an action now.

Given the generous application of Chambers by other courts in this District, however,

this Court finds that Pressley’s multiple suspensions, even if with pay, will qualify as an adverse

employment action. Consider as a point of comparison, for example, the scenarios in Black,

which involved the suspension of the plaintiff’s telework benefits such that she was forced to

work in person instead of remotely,

, at *8, or that in Heavans, in which the

plaintiff’s flexible work schedule was revoked,

, at *8. In both cases, the

courts found that those actions were major changes to the conditions of their employment, such

that they qualified as adverse employment actions. See Black,

, at *8;

Heavans,

at *8. Here, assuming the usual meaning of a suspension,

Pressley was presumably told not to come to work at all five to six times for periods of unclear

length. His forced absence from work, his resulting inability to fulfill his job responsibilities,

and the presumed effect on his standing within the company can be said to have affected the

conditions of his employment, even if he was paid for that time.

iv. Removal of Leadership Responsibilities and Termination

Pressley’s claim that MSTI “removed his leadership responsibilities”—presumably by

replacing him with Smith as Lead Asset Management Specialist—presents a clear case of

18 adverse employment action. SAC ¶¶ 80, 96. He claims that, as a result of this change, he “no

longer had leadership duties, he was no longer responsible for submitting period reports, and he

had to report to Mr. Smith, who[m] Plaintiff had trained only a few months prior.”

.

MSTI presents two objections in response: Pressley “did not allege he ever formally received this

position or its duties and responsibilities, nor did he allege suffering any loss of pay or benefits,

nor did he plausibly or at all allege any other ‘tangible harm’ resulting from this alleged removal

of responsibilities.” Def.’s Mot. to Dismiss at 12.

Though Pressley has not alleged that he suffered any loss of pay or change in benefits due

to the change in position, he has alleged not only that certain leadership responsibilities were

taken from him, but also that another employee was placed above him in the chain of command.

Although MSTI seeks to cast doubt as to whether Pressley functionally and in title even served

as the Lead Asset Management Specialist, such that there was in fact a change in responsibilities

and position, see Def.’s Mot. to Dismiss at 12 & n. 5, the Court must, at the motion to dismiss

stage, treat Pressley’s allegations as true, see Harbour v. Univ. Club of Washington,

, 136 (D.D.C. 2022). Pressley has provided scant details about what responsibilities and

duties, precisely, were taken from him as a result of the change in position, but his claim that he

was effectively demoted and had supervisory duties taken from him could nevertheless lead a

reasonable juror to conclude that what happened to him constituted an adverse employment

action. See Heavans,

, at *8 (explaining that an employer’s action that “had

the effect of ‘remov[ing] the Plaintiff’s management responsibilities on [a] project that he had

led for the past four years’” qualified as an adverse employment action). 4

4 In one case, a court in this District stated that Chambers “controls only lateral transfer cases, as opposed to those involving effective demotions,” but also observed that the plaintiff’s loss of editorial and supervisory duties, such that he was “left with ‘significantly different’ and

19 And finally, Pressley’s termination is, of course, an adverse employment action, whether

considered under the pre- or post-Chambers standard. See, e.g., Douglas v. Donovan,

(D.C. Cir. 2009) (describing termination as an “obvious” adverse employment action).

MSTI does not contest that his termination ought to be considered such an action.

b. Causation

Having concluded that each of the alleged actions taken by MSTI qualify as adverse

employment actions, the pertinent question for this Court, then, is whether Pressley has

sufficiently pled that MSTI took each of these actions “because of [Pressley’s] disability.”

Walden,

(emphasis added). Importing a standard from the Title VII

context, MSTI submits that Pressley could only have raised an inference of discrimination if he

has: (1) raised “[a]llegations sufficient to show that [he] was treated differently from other

similarly situated employees who are not part of the protected class,” and (2) shown “that

[MSTI’s] reason for the termination was false.” Def.’s Mot. to Dismiss at 15 (citing Redmon v.

YMCA of Metro. Washington,

, 102 (D.D.C. 2019)). But while Title VII

“mak[es] it unlawful for an employee’s sex to be a ‘motivating factor’ in an employer’s adverse

action,” such that a Title VII plaintiff “must prove only proximate causation,” Klotzbach-Piper v.

Nat’l R.R. Passenger Corp., No. 18-cv-1702,

, at *10 (D.D.C. Sept. 3, 2021),

“[w]hich causation standard governs ADA claims—but-for or proximate causation—'remains an

open question in this circuit,’”

n.5 (quoting Haughton v. District of Columbia,

, 2 (D.C. Cir. 2020)); compare Conn v. Am. Nat’l Red Cross,

(D.D.C.

2016) (holding that the but-for standard applies and collecting court of appeals cases), with

‘diminished’ responsibilities,” would have been “enough to show an adverse employment action even pre-Chambers.” Xie v. Chao, No. 21-cv-1289,

, at *4 n.3 (D.D.C. Aug. 22, 2022) (quoting Czekalski v. Peters,

(D.C. Cir. 2007)).

20 Drasek v. Burwell,

(D.D.C. 2015) (“[A] discrimination or retaliation

claim brought under the ADA can rest on a ‘motivating factor’ causation analysis . . . .”).

Whereas the application of a “but-for” causation standard would require that Pressley show that

MSTI “would not have fired him but for his . . . disability,” such that “proof of mixed motives

will not suffice,” Serwatka v. Rockwell Automation, Inc.,

(7th Cir. 2010), a

“motivating factor” causation analysis would mean that a “claim can be sustained if

discriminatory animus is merely one of several factors that precipitated the adverse employment

action,” Drasek ,

.

Based on the current briefing, the Court cannot state with certainty that Pressley has

failed to show the requisite causation under either of these two standards, whichever one

properly applies. And at this stage, the Court “makes no judgment as to whether or not

additional factual development will ultimately establish” either that MSTI would not have taken

its actions against Pressley but for his disabilities or that his disabilities were a motivating factor

in his termination. Epps v. Potomac Elec. Power Co.,

(D.D.C. 2019), on

recons., No. 18-cv-1423,

(D.D.C. Sept. 20, 2019). The Court therefore

reserves judgment on the issue of causation until the parties have briefed it, potentially at the

summary judgment stage, and declines to grant MSTI’s motion to dismiss Pressley’s ADA and

DCHRA discrimination claims on this basis.

2. Denial of Reasonable Accommodations (Counts II and V)

Next, Pressley claims that MSTI denied reasonable accommodations for his disabilities in

violation of the ADA and DCHRA because MSTI never “formally approved” his request. SAC

¶¶ 84–87, 99–102. MSTI puts forward two responses: first, Pressley requested intermittent leave

under the FMLA and DCFMLA, rather than reasonable accommodations under the ADA and

21 DCHRA; and second, the fact that MSTI did not formally approve Pressley’s request for

reasonable accommodations does not constitute a “denial,” considering it continued to engage

with Pressley’s request and then granted him the accommodations once he sought them under the

FMLA and DCFMLA. Def.’s Mot. to Dismiss at 21–25.

Under the ADA, a covered employer is required to “mak[e] reasonable accommodations

to the known physical or mental limitations of an otherwise qualified individual with a

disability.” Minter v. District of Columbia,

(D.C. Cir. 2015) (citation omitted).

To state a claim for failure to accommodate, the plaintiff must demonstrate that “(1) he was a

qualified individual with a disability; (2) his employer had notice of his disability; and (3) his

employer denied his request for a reasonable accommodation.” Badwal v. Bd. of Trs. of the

Univ. of the Dist. of Columbia,

(D.D.C. 2015) (citing Ward v.

McDonald,

(D.C. Cir. 2014)). 5 “An underlying assumption of any reasonable

accommodation claim is that the plaintiff-employee has requested an accommodation which the

defendant-employer has denied.” Flemmings v. Howard Univ.,

(D.C. Cir.

1999). “The request for accommodation does not have to be formal, and the words ‘reasonable

accommodation’ do not have to be used, but the employer must be alerted to the condition and

the need for accommodation.” Andueza Croce v. Garland, No. 21-cv-00264,

,

at *8 (D.D.C. Nov. 9, 2021) (quoting Thompson v. Rice,

(D.D.C.

2006), aff’d,

(D.C. Cir. 2008)); see also Murphy v. District of Columbia,

(D.D.C. 2022) (stating that a request for an accommodation “does not have to be

5 Here, again, MSTI does not appear to contest the first two elements—that Pressley was a qualified individual with a disability and that MSTI had notice of his disability. Rather, MSTI’s motion to dismiss concentrates on whether MSTI denied Pressley’s request for reasonable accommodations. Accordingly, the Court does the same.

22 in writing . . . or formally invoke the magic words ‘reasonable accommodation,’” but must

simply make it “clear that the employee wants assistance for his or her disability” (citations

omitted)). 6 In determining an appropriate reasonable accommodation, there should be “‘a

flexible give-and-take’ between employer and employee ‘so that together they can determine

what accommodation would enable the employee to continue working.’” Ward,

(quoting EEOC v. Sears, Roebuck & Co.,

(7th Cir. 2005)).

Thus, to establish that his request for reasonable accommodations was denied by MSTI,

Pressley must show that MSTI “either ended the interactive process or participated in it in bad

faith.” Johnson v. District of Columbia,

(D.D.C. 2016) (citing Ward,

). Then, to show that MSTI failed to participate in this interactive process, he must

show that: (1) “the employer knew about the employee’s disability;” (2) “the employee requested

accommodations or assistance for his or her disability;” (3) “the employer did not make a good

faith effort to assist the employee in seeking accommodations;” and (4) “the employee could

have been reasonably accommodated but for the employer’s lack of good faith.” Floyd v. Lee,

(D.D.C. 2013) (citation omitted and emphasis removed). “[N]either

party should be able to cause a breakdown in the process for the purpose of either avoiding or

inflicting liability,” and a court should therefore “look for signs of failure to participate in good

faith or failure by one of the parties to make reasonable efforts to help the other party determine

what specific accommodations are necessary.” Ward,

(quoting Sears,

). “In short, ‘courts should attempt to isolate the cause of the breakdown and then assign

responsibility.’” Johnson,

(quoting Ward,

).

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

23 As Pressley points out, MSTI concentrates its arguments on his requests for intermittent

leave under the FMLA and DCFMLA, and largely ignores that Pressley’s reasonable

accommodations claim is instead premised on the request that he made in November 2018 to

Jordan and Alexander for a later start time, an extra break, and written directions—not for leave.

See Pl.’s Opp’n at 15. Pressley has raised plausible allegations that he made it clear to MSTI that

he was seeking accommodations for his disabilities. In turn, MSTI denies that it ended the

interactive process or participated in the process in bad faith because “once Mr. Pressley

formally pursued the process (albeit under the FMLA/DCFMLA umbrella), MSTI continued to

engage with him in good faith and then granted the requested accommodations.” Def.’s Mot. to

Dismiss at 25 (emphasis removed). But MSTI’s argument belies the fact that Pressley has also

alleged that, once MSTI replaced Alexander with Matthews, Matthews stopped providing him

with the accommodations that he had requested in November 2018 even though Pressley

informed her that he had previously been provided those accommodations for his disabilities.

The relevant fact alleged here is not whether MSTI engaged with Pressley and ultimately

provided him with leave; it is whether MSTI continued to engage in an interactive process with

Pressley about a later start time, an extra break, and written directions. Pressley has raised

plausible allegations that it did not do so—or, stated differently, that Matthews, and therefore

MSTI, caused a breakdown of the interactive process and in effect denied Pressley’s request for

those reasonable accommodations. Taking Pressley’s factual allegations as true at this stage, he

has raised a sufficient claim that survives MSTI’s motion to dismiss.

3. Retaliation for Protected Activity (Counts III and VI)

Next, Pressley alleges that, in violation of the ADA and DCHRA, MSTI retaliated against

him for engaging in protected activity when he requested reasonable accommodations for his

24 disabilities in November 2018. 7 SAC ¶¶ 88–93, 103–08. As with his claims of discrimination,

Pressley bases his claims of retaliation on his suspensions, the denial of training opportunities,

MSTI’s removal of his leadership responsibilities, his exclusion from key communications and

meetings, and his termination.

For its part, MSTI argues that Pressley has not shown any

causal connection between his requests for accommodations in November 2018 and the

aforementioned actions, in part because temporal proximity is lacking. See Def.’s Mot. to

Dismiss at 26–29. To state a prima facie case for retaliation under the ADA and the DCHRA, a

plaintiff must allege that: (1) he “engaged in protected activity,” (2) he “was subjected to adverse

action by the defendant,” and (3) “there is a causal connection between the adverse action and

the protected activity.” Brown v. Trinity Washington Univ., No. 22-cv-1612,

,

at *5 (D.D.C. Mar. 20, 2023) (citation omitted and cleaned up). 8

a. Adverse Action

An adverse action for a retaliation claim is “one that ‘could well dissuade a reasonable

[person] from making or supporting a charge of discrimination.’”

(quoting Porter v. Shah,

, 817–18 (D.C. Cir. 2010)). Although “[a]dverse employment actions include ‘job

application procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of employment,’” Weigert

7 As MSTI emphasizes, Pressley does not make the argument that, because MSTI allegedly took certain actions following his request for leave under the FMLA and DCFMLA, those alleged actions could, in addition to potentially forming the basis for claims of reprisal under the FMLA and DCFMLA, also separately constitute retaliation for protected activity under the ADA and DCHRA. See Def.’s Mot. to Dismiss at 25–26. Because Pressley is represented by counsel and has had multiple opportunities to make such an alternative argument, yet does not do so, the Court limits its analysis to the narrower claim Pressley has actually and explicitly raised in his Second Amended Complaint. 8 Here, again, MSTI does not contest that Pressley engaged in protected activity when he requested accommodations in November 2018, so the Court focuses its analysis on the latter two prongs of the test.

25 v. Georgetown Univ.,

(D.D.C. 2000) (quoting

(a)),

“minor or trivial actions that make an employee unhappy are not sufficient to qualify as

retaliation under the ADA,”

(quoting Silk v. City of Chicago,

(7th Cir.

1999)). “Because of [the distinction between what constitutes an adverse action for a retaliation

claim and an adverse employment action for a discrimination claim], ‘the proscription against

retaliation sweeps more broadly than the proscription against discrimination.’” Evans v. District

of Columbia,

(D.D.C. 2010) (quoting Gaujacq v. EDF, Inc.,

(D.C. Cir. 2010)); 9 Richardson v. Powell, No. 14-cv-1673,

, at *11

(D.D.C. Mar. 21, 2019), aff’d,

(D.C. Cir. 2020) (“The standards for an

‘adverse action’ to prove discrimination and a ‘materially adverse action’ to prove retaliation

‘are not [coterminous].’” (quoting Burlington N. & Santa Fe Ry. Co. v. White,

(2006)). Even after Chambers, “actionable retaliation claims ‘are [still] limited to those where

an employer causes material adversity, not trivial harms[.]’” Black,

, at *7

(quoting Wiley v. Glassman,

(D.C. Cir. 2007)) (cleaned up). As such, MSTI’s

“arguments regarding the de minimis nature of some of [Pressley’s] allegations have more force

in the retaliation context, where courts still look for ‘objective’ materiality in much the same way

that they used to require ‘objectively tangible harm’ in discrimination claims.” Heavans,

, at *9 (citation omitted).

Again, the changes in Pressley’s job responsibilities and title and his ultimate termination

“are prototypical ‘significant change[s] in employment status,’ and as such provide solid

9 Another court in this District has explained that, because “the ADA incorporates the powers, remedies, and procedures of Title VII,” “rulings in [the Title VII context] applying to adverse actions are relevant” to retaliation claims made under the ADA. Weigert, 120 F. Supp. 2d at 16–17 (citation omitted).

26 underpinning for [Pressley’s] retaliation claim.”

at *10 (quoting Bridgeforth v. Jewell,

(D.C. Cir. 2013)). But Pressley’s remaining claims—the denial of training

opportunities, exclusion from communications and meetings, and suspensions—do not, even if

they now qualify as adverse employment actions post-Chambers, necessarily qualify as

materially adverse actions necessary to support a retaliation claim. See id. at *10 (discussing

why “the allegations of plaintiff's exclusion from management meetings and the transfer of an

employee from under his supervision plausibly altered the conditions of his employment for the

purposes of his discrimination claims,” but nevertheless “cannot be said to be sufficiently

significant to have dissuaded a reasonable employee from pursuing his discrimination claims”).

The denial of Pressley’s opportunity to attend the ServiceNow training and his exclusion from

meetings and communications are non-actionable in his retaliation claim because he has alleged

mere “[p]urely subjective injuries,” as opposed to objective material adversity. Trinity

Washington Univ.,

, at *5 (quoting Holcomb v. Powell,

(D.C. Cir. 2006)); see also Heavans,

, at *10; Taylor v. Solis,

(D.C. Cir. 2009) (stating that “petty slights” and “alteration of job responsibilities” could

not support retaliation claims).

Pressley’s suspensions pose a trickier issue: despite multiple bites at the apple, Pressley

still has not alleged in his Second Amended Complaint the length of each of his suspensions and

whether he was suspended with or without pay, instead merely insinuating in subsequent briefing

that he may have been suspended without pay. Though this Court recognizes here that a

suspension with pay may now constitute an adverse employment action under Chambers, it is

not clear that such a suspension would be a materially adverse action sufficient to support a

retaliation claim. But even if the Court wanted to entertain the possibility that suspensions with

27 pay might have sufficed to constitute a materially adverse action for purposes of a retaliation

claim, see Teklehaimanot v. Park Ctr., Inc.,

(N.D. Ind. 2011) (stating

that, for retaliation claim under Title VII, “[t]he plaintiffs may be able to show that their paid

suspensions constitute adverse employment actions under the broader standard for adverse

actions in retaliation actions”), it could not do so because Pressley has not met the minimum of

first alleging any details about his suspensions to show that objective material adversity resulted

such that a reasonable person would be dissuaded from making a charge of discrimination. The

Court has no basis for drawing such a conclusion based on Pressley’s bare allegations of the

suspensions. Thus, the Court rejects Pressley’s contention that his suspensions suffice to form

the basis of his retaliation claim as well.

b. Causal Connection

Accordingly, the Court need only consider Pressley’s claims of retaliation based on the

change in his job role and his termination. MSTI treats temporal proximity as a requirement for

showing the necessary causal connection between the request for accommodations and the

alleged adverse actions. See Def.’s Mot. to Dismiss at 27 (“Mr. Pressley’s allegations for all

three of his claimed adverse employment actions fail the temporal proximity test.”); id. at 28

(“[A]ssuming arguendo that [the alleged adverse actions] qualify they fall woefully short of the

required temporal proximity.”). But “a causal connection between the protected activity and the

adverse action is the essential element of a retaliation claim; temporal proximity is not.” Winston

v. Clough,

(D.D.C. 2010). That is, temporal proximity is a sufficient, but

not necessary, condition for a retaliation claim: “[a] complaint’s facts reflecting temporal

proximity can be probative of a causal connection, but are not required in order to plead a

retaliation claim.” Id.; see also, e.g., Thomas v. Vilsack,

(D.D.C. 2010)

28 (“While this Court has sometimes held that the retaliation must occur soon after the employee's

protected activity, ‘there is no hard-and-fast rule that any specified amount of time is too

removed for an inference of causation.’” (citations omitted)).

At the motion to dismiss stage, a plaintiff “can satisfy his burden to plead a plausible

claim of retaliation by providing facts showing that he engaged in a protected activity and

suffered [a materially] adverse employment action, and alleging that he suffered the [materially]

adverse employment action as a result of the protected activity.” Winston,

(collecting cases); see also Bartlette v. Hyatt Regency,

(D.D.C. 2016)

(“It is sufficient at [the motion to dismiss stage of the proceedings] for a plaintiff to plead

causation ‘simply by alleging that the adverse actions were caused by his protected activity.’”

(quoting Bryant v. Pepco,

(D.D.C. 2010)). Pressley has done so, and as a

result, his claims of retaliation based on the changes in his job role and his termination suffice to

survive MSTI’s motion to dismiss. See SAC ¶¶ 90–91, 105–06.

C. FMLA and DCFMLA Claims (Counts VII, VIII, IX, and X)

Pressley further alleges interference and reprisal in violation of the FMLA and

DCFMLA. SAC ¶¶ 109–30. “An employer may be held liable for violating the FMLA under

two distinct claims: (1) interference, if the employer restrained, denied, or interfered with the

employee's FMLA rights, and (2) retaliation, if the employer took adverse action against the

employee because the employee took leave or otherwise engaged in activity protected by the

Act.” Holloway v. D.C. Gov’t,

(D.D.C. 2013). Meanwhile, “[t]he DCFMLA

is the District of Columbia’s analog to the FMLA.” Murphy v. District of Columbia,

(D.D.C. 2019).

29 1. Statute of Limitations

MSTI contends as an initial matter that Pressley’s claims under the FMLA are time-

barred by the statute of limitations of two years because he has not alleged sufficient facts to

warrant application of a three-year statute of limitations that applies to willful violations of the

FMLA. Def.’s Mot. to Dismiss at 31–32. Pressley was terminated on December 13, 2019. SAC

¶ 67. He filed charges in the D.C. Office of Human Rights (“OHR”) on July 6, 2020, but OHR

administratively dismissed the charges on March 4, 2022. SAC ¶ 7. Pressley then filed his

original Complaint in D.C. Superior Court on June 17, 2022. See Not. of Removal. A plaintiff

must bring a claim under the FMLA within two years of “the last event constituting the alleged

violation” of the statute.

(c)(1). Where “the complaint contains some express

or implied allegation of willful conduct,” however, the statute of limitations is extended to three

years. Hodge v. United Airlines,

(D.D.C. 2009); see also

(c)(2) (“In the case of such action brought for a willful violation of section 2615 of this title,

such action may be brought within 3 years of the date of the last event constituting the alleged

violation for which such action is brought.”). “In the context of FMLA, willful conduct is

generally viewed as an employer that knows its conduct to be wrong or has shown reckless

disregard for the matter in light of the statute.” Cooper v. Henderson,

(D.D.C. 2016)

At the motion to dismiss stage, “a plaintiff may withstand [a motion to dismiss based on

the statute of limitations] merely by having alleged that the FMLA violation was willful.” Ricco

v. Potter,

(6th Cir. 2004); see also Hodge,

(“While

Hodge does not use the magic word ‘willful’ in his complaint, his allegations of knowledge and

intentionality are sufficient to indicate that he believes United’s violation of the statute was

30 willful.”); Vick v. Brennan,

(D.D.C. 2016). Here, Pressley has alleged

explicitly that MSTI violated the FMLA “willful[ly].” SAC ¶¶ 123, 129. Based on the standard

applicable at this stage of the proceedings, Pressley’s claims under the FMLA must survive

MSTI’s statute of limitations argument. See Murphy,

(“Because ‘the

statute of limitations is an affirmative defense which a plaintiff is not required to negate in a

complaint,’ courts should dismiss FMLA claims only if it is ‘clear that the three-year statute of

limitations for willful FMLA violations is inapplicable.’ (quoting Ramsey v. Advance Stores Co.,

Inc., No. 15-4854-RDR,

, at *6 (D. Kan. June 29, 2015) (emphasis in

original))).

Although MSTI initially argued that Pressley’s claims under the DCFMLA are similarly

time-barred, see Def.’s Mot. to Dismiss at 30–31, it acknowledges that the case law it cited in

support of this argument has been abrogated, see Def.’s Reply at 18 n.3; see also Murphy,

(“Unlike the FMLA, [the one-year limitations period for claims under the

DCFMLA] is tolled while the claim is pending before the OHR, provided that the claim is

submitted to the OHR within one year of the underlying incident.”). 10 Thus, the Court turns to

the substance of Pressley’s claims of interference and reprisal. Because “[c]ourts interpret the

FMLA and DCFMLA similarly,” they have applied the case law from FMLA suits to claims

made under the DCFMLA.

at 67 n.5 (quoting Alford v. Providence Hosp.,

Although the Court notes that Pressley does not appear to have included in the record any evidence of the charges that he filed with OHR in support of his argument that the statute of limitations should be tolled, “statute of limitations defenses often are based on contested facts” and a court “should be cautious in granting a motion to dismiss on such grounds,” such that “‘dismissal is appropriate only if the complaint on its face is conclusively time-barred.’” Rudder v. Williams,

(D.D.C. 2014) (quoting Firestone,

).

31 98, 105 n.7 (D.D.C. 2013), aff’d,

(D.C. Cir. 2014)). The Court does so here as

well.

2. Interference

In stating a claim of interference under the FMLA, “a plaintiff must allege facts sufficient

to show, among other things, that (1) he was entitled to take leave because he had a ‘serious

health condition,’ (2) he gave his employer adequate notice of his intention to take leave, and (3)

his employer denied or otherwise interfered with his right to take leave.” Hodges,

; see also Elzeneiny v. District of Columbia,

(D.D.C. 2016)

(explaining that the D.C. Circuit has not articulated the elements of an FMLA interference claim,

but setting forth a similar standard based on tests in other circuits); Savignac v. Jones Day,

, 42 (D.D.C. 2020), on recons. in part sub nom. Savignac v. Day,

(D.D.C. 2021) (“To prevail on an FMLA [or DCFMLA] interference claim, a plaintiff must

show (1) employer conduct that reasonably tends to interfere with, restrain, or deny the exercise

of FMLA [or DCFMLA] rights, and (2) prejudice arising from the interference.” (quoting

Waggel v. George Washington Univ.,

(D.C. Cir. 2020)).

Pressley bases his claim of interference on the termination of his employment. SAC ¶

120. As MSTI argues, see Def.’s Mot. to Dismiss at 33–34, “the FMLA does not ‘protect an

employee’s job against a legitimate, unrelated, reason for separation.’” Thomas v. District of

Columbia,

(D.D.C. 2016) (citation omitted); see also Long v. Endocrine

Soc’y,

(D.D.C. 2017) (“Although terminating a person’s employment

necessarily interferes with the person’s rights under the statute, an employer is not liable for

interference with FMLA rights if it can prove it would have fired the employee even if she had

not taken leave.”). MSTI claims that it in fact did terminate Pressley for a legitimate, unrelated

32 reason—because he violated the FTC security policies. Def.’s Mot. to Dismiss at 34. For his

part, Pressley has alleged that MSTI’s proffered reason for termination was not legitimate at all,

but was mere pretext for firing him because he sought leave. According to Pressley, MSTI did

not disseminate the FTC security policy that formed the basis of his termination until after his

termination, nor did MSTI enforce the policy against another employee whose conduct would

have similarly violated that policy. SAC ¶¶ 66–75. Moreover, MSTI terminated Pressley on

December 13, 2019, id. ¶ 67, approximately one month after approving his leave under the

FMLA and DCFMLA, id. ¶¶ 49, 52, and approximately two months after Pressley first sought

leave, id. ¶ 42. His factual allegations, taken as true for purposes of the motion to dismiss,

plausibly support an inference of pretext. See Torzewski v. COSCO Shipping Lines N. Am. Inc.,

, 1152 (N.D. Ill. 2019) (stating that the plaintiff’s allegation that “his

position was relocated as a pretext . . . and that he was ultimately fired when he refused to

relocate” was “enough to sufficiently allege that [the defendant] interfered with his right to

reinstatement”); cf. Whitney v. Franklin Gen. Hosp.,

(N.D. Iowa 2014)

(concluding that showing of pretext was “sufficient to plead the required causal connection” for

FMLA discrimination claim (emphasis in original)).

Here, again, in consideration of the proper standard applicable at this early stage of the

proceedings, the Court must conclude that Pressley has made a showing of pretext sufficient to

adequately allege that MSTI interfered with his rights under the FMLA and DCFMLA and his

claim is therefore sufficient to survive a motion to dismiss. See Tolston-Allen v. City of Chicago,

No. 12 CV 7601,

, at *2–3 (N.D. Ill. Mar. 21, 2014) (deeming the plaintiff’s

allegations sufficient to “create a plausible inference of FMLA interference” because to survive a

33 motion to dismiss, “[s]pecific facts are not required” and “the statement need only give the

defendant fair notice of what the claim is and the grounds upon which it rests”).

3. Retaliation

Finally, Pressley raises claims of FMLA and DCFMLA “reprisal” 11 by retaliating against

him for seeking leave. SAC ¶¶ 114–18, 125–30. Again, MSTI responds that Pressley has not

alleged sufficient facts to support a plausible causal connection between his seeking leave and

the termination of his employment.

“The elements of a prima facie case of FMLA [and DCMLA] retaliation are the well-

known triad: (1) the employee ‘engaged in a protected activity under this statute’; (2) the

employee ‘was adversely affected by an employment decision’; and (3) ‘the protected activity

and the adverse employment action were causally connected.’” Gordon v. U.S. Capitol Police,

(D.C. Cir. 2015) (quoting Gleklen v. Democratic Cong. Campaign Comm.,

Inc.,

(D.C. Cir. 2000)); see also Chang,

(“To establish a

prima facie case of retaliatory termination under the DCFMLA, a plaintiff must demonstrate that:

(1) [he] was engaged in a protected activity; (2) [his] employer took an adverse employment

action; and (3) there was a causal connection between the two.”). As the D.C. Circuit has

recognized, “[t]emporal proximity is often found sufficient to establish the requisite causal

connection” for FMLA retaliation claims. Gleklen,

(finding inference of causal

nexus where a “supervisor requested that [the plaintiff] return to work full time only a few weeks

after she disclosed her pregnancy”). Likewise, the D.C. Court of Appeals has established that

“close temporal proximity between a protected activity and an adverse employment action can

11 The Court understands Pressley to be making claims of FMLA and DCFMLA “retaliation” and refers to the claims as such throughout this Opinion.

34 establish a causal connection between the two,” including in cases of DCFMLA retaliation.

Chang,

.

Here, MSTI terminated Pressley approximately two months after Pressley sought leave

under the FMLA and DCFMLA and one month after it approved that leave. See SAC ¶¶ 42, 49,

52, 67. The close proximity between Pressley’s request for leave and MSTI’s termination of his

employment suffices here to permit an inference of a causal connection. See, e.g., Miles v. Univ.

of the Dist. of Columbia, No. 12-cv-378,

, at *12 (D.D.C. Oct. 30, 2013)

(finding that the facts plausibly suggest causal connection due to temporal proximity where the

plaintiff’s leave began in April and her employment was terminated in June). Thus, Pressley’s

claims of FMLA and DCFMLA retaliation also survive MSTI’s motion to dismiss.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss the First Amended Complaint

(ECF No. 9) is DENIED as moot; Defendant’s Motion to Strike the Second Amended Complaint

(ECF No. 13) is DENIED; Plaintiff’s Motion for Leave to File the Second Amended Complaint

(ECF No. 14) is GRANTED nunc pro tunc; and Defendant’s Motion to Dismiss the Second

Amended Complaint (ECF No. 15) is GRANTED IN PART AND DENIED IN PART. An

order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: August 14, 2023 RUDOLPH CONTRERAS United States District Judge

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