UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VANESSA HILL, : : Plaintiff, : Civil Action No.: 23-2685 (RC) : v. : Re Document Nos.: 5, 7, 14 : XTREME SOLUTIONS, INC., : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Vanessa Hill worked for Defendant Xtreme Solutions, Inc. (“XSI”) from May to

October 2022. In September 2022, Hill requested medical leave until January 2023. XSI instead

terminated her employment, citing chronic absences and tardiness. Hill then filed this lawsuit,

claiming that the dismissal violated the Family Medical Leave Act (“FMLA”), the Americans

with Disabilities Act (“ADA”), and her contract of employment. XSI moves to dismiss Hill’s

Complaint, and the Court grants that motion.

II. FACTUAL BACKGROUND

Because Hill is proceeding pro se and the Complaint itself contains few factual

allegations, the Court draws these facts “from the complaint and from additional materials

submitted by” Hill. Atherton v. D.C. Off. of Mayor,

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

Greenhill v. Spellings,

(D.C. Cir. 2007) (noting that the D.C. Circuit has

“permitted courts to consider supplemental material filed by a pro se litigant in order to clarify

the precise claims being urged”); Stewart v. Nat’l Educ. Ass’n,

(D.C. Cir.

2006) (“In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of

which it may take judicial notice.”).

Plaintiff Vanessa Hill began working for Defendant XSI on May 31, 2022, see Offer

Letter, Ex. 1 to Pl.’s Opp’n Mot. Dismiss (“Pl.’s Opp’n”), ECF No. 10-1, where she supported

the company’s contract at the D.C. Passport Office, see Compl., Ex. 1 to Notice of Removal at 2,

ECF No. 1-1. Her signed offer letter states that her “employment with XSI constitutes

employment-at-will for an unspecified duration and may be terminated at any time by either

[her], XSI and/or [the] Client.” Offer Letter at 3. On a post-job-offer medical questionnaire, Hill

stated that she did not have any disabilities that “might affect [her] attendance at work or ability

to do this job[.]” Ex. 2 to Pl.’s Mot. Expedite at 4–6, ECF No. 14-1.

Hill attaches the company’s employee handbook, which states that FMLA leave may be

available “[w]hen the employee is unable to work because of a serious health condition,” but that

the employee must meet “certain eligibility factors,” including having “worked at Xtreme

Solutions at least 12 months prior to the date leave commences or is requested to commence.”

Ex. 5to Pl.’s Opp’n at 9, ECF No. 10-1. The handbook additionally lays out the requirements for

non-FMLA leave, stating that “[t]he decision to grant such an unpaid leave of absence is within

the sole discretion of the Company.”

Hill contends that various incidents occurred from May to September 2022, including an

accusation that she stole a check, after which the company moved her “upstairs.” Pl.’s Opp’n at

3. There were also issues with “[f]iles being stolen or misplaced and resurfacing,” and she

asserts that the company “accused” her of violating the company’s dress code.

at 2–3. She

additionally attaches an email dated August 30, 2022, stating that “[m]y attendance has not been

up to par, which I’m in agreement with.” Hill Email, Ex. 2 to Pl.’s Sur-reply at 2, ECF No. 12-1.

2 Hill added “it [is] a possibility I’m not a good fit” for the role.

She also claimed issues with

the company’s communications reaching her email account.

Hill nonetheless asserts that the

month of September was her “best ever,” and that her supervisor praised her performance. Pl.’s

Opp’n at 3.

On September 28, 2022, Hill’s counselor signed a letter stating that he had seen her

“starting on September 16th due to stress related to work.” Ex. 1 to Pl.’s Mot. Expedite at 1,

ECF No. 14-1. The letter continued, “Ms. Hill is experiencing significant stress and anxiety

related to a toxic work environment. Please let this letter serve as notice to allow her to have

excused sick leave from work September 14th, 15th and 16th 2022.”

An attached “Short

Term Disability Claim Form” stated that the counselor had advised Hill not to return to work,

with an “[e]xpected return to work date” of January 15, 2023. Id. at 2. Hill asserts that these

“emails and documentation were sent” to XSI “in a timely manner.” Mot. Expedite at 1.

On October 4, 2022, XSI terminated Hill. Termination Letter, Ex. 1 to Pl.’s Sur-reply,

ECF No. 12-1. XSI explained that it fired her because she was “[o]ut of office 22 days of the last

60 days and arrived late/left early 27 days out of the last 60 days with a total of 200+ hours of

missed eligible work, which has interfered with the department’s operation.” Id. The

termination letter additionally cited XSI’s “immediate contractual need for the position to be

filled” and Hill’s “[u]nsatisfactory performance due to excessive time away.” Id. Hill attaches a

“Notice of Scheduled Interview” with the Equal Employment Opportunity Commission for

February 6, 2023, but she provides no further information on her interactions with that agency.

Ex. 6 to Pl.’s Opp’n, ECF No. 10-1.

On June 14, 2023, Hill filed her Complaint in the Superior Court of the District of

Columbia. Compl. at 1–2, ECF No. 1-1. Hill asserted that XSI “denied [her] the ADA and

3 FMLA act” because she was “[t]erminated while under physician care” and “denied [return to

work] on Jan 2023.” Id. She additionally claims that she was “[d]enied NONFMLA with

physician statement” and fired based on “attendance and performance” as a pretext to “deny

NONFMLA and [return to work] date.” Id. She asks the Court to “[g]rant [return to work] with

back pay and medical bills paid,” or a “payout” for a “5 [year] contractual agreement.” Id.

XSI removed the case to this Court on September 14, 2023, after the company was

served. Notice of Removal, ECF No. 1. XSI then moved to dismiss the case. ECF No. 7. Hill

opposed the motion, ECF No. 10, and the parties replied and sur-replied, ECF Nos. 11, 12. Hill

has additionally filed a Motion for Hearing, ECF No. 5, as well as a Motion to Expedite, ECF

No. 14.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus,

(2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a

complaint” under that standard; it asks whether the plaintiff has properly stated a claim.

Browning v. Clinton,

(D.C. Cir. 2002). A court considering such a motion

presumes that the complaint’s factual allegations are true and construes them liberally in the

plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc.,

(D.D.C.

2000). It is not necessary for the plaintiff to plead all elements of her prima facie case in the

complaint. See Swierkiewicz v. Sorema N.A.,

, 511–14 (2002); Bryant v. Pepco,

, 28–29 (D.D.C. 2010).

4 Nevertheless, “[t]o survive a motion to dismiss, 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 Bell Atl. Corp. v. Twombly,

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,” are

therefore insufficient to withstand a motion to dismiss. Iqbal,

. A court need not

accept a plaintiff’s legal conclusions as true, see

nor must a court presume the veracity of

legal conclusions that are couched as factual allegations. See Twombly,

.

Finally, because Hill is proceeding pro se, the Court will construe the Complaint liberally

and hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson,

(quoting Estelle v. Gamble,

(1976)). Thus, the Court may “examine

other pleadings to understand the nature and basis of [the plaintiff’s] pro se claims” as alleged in

her complaint. Gray v. Poole,

(D.C. Cir. 2002)). Nevertheless, even a pro

se plaintiff is not excused from adhering to the applicable procedural rules and must “plead

‘factual matter’ that permits the court to infer ‘more than the mere possibility of misconduct.’”

Atherton, 567 F.3d at 681–82 (quoting Iqbal,

). Therefore, despite the liberality

afforded pro se complaints, the Court “need not accept inferences unsupported by the facts

alleged in the complaint or ‘legal conclusions cast in the form of factual allegations.’”

Kaemmerling v. Lappin,

(D.C. Cir. 2008) (quoting Henthorn v. Dep’t of Navy,

(D.C. Cir. 1994)).

5 IV. ANALYSIS

The Court first briefly reviews its jurisdiction over this matter before considering whether

Hill has stated a claim under any relevant theory. The Court construes the Complaint to raise

claims under the FMLA, the ADA, and D.C. common law regulating contracts.

1. Jurisdiction

Federal courts have an “independent obligation to ensure that they do not exceed the

scope of their jurisdiction.” Henderson v. Shinseki,

(2011). XSI removed the

case to this Court on the basis of diversity jurisdiction, which is governed by

.

Xtreme Solutions is a Georgia corporation with its principal place of business in Georgia. Notice

of Removal at 2; Compl. at 1–2. Vanessa Hill is a citizen of Washington, D.C., and claims up to

$212,376 in damages. Notice of Removal at 2; Compl. at 1. Because the parties are “citizens of

different States” and “the matter in controversy exceeds the sum or value of $75,000,” the Court

finds that it has diversity jurisdiction over this dispute under § 1332.

.

2. FMLA Claim

Hill claims that XSI “denied” her “FMLA/NONFMLA” leave. Compl. at 1. XSI asserts

that she was not eligible for FMLA leave and that she fails to state a claim for FMLA

interference or retaliation. Def.’s Mot. Dismiss at 9–15. The Court agrees that Hill fails to state

a claim under the FMLA.

The Court construes Hill’s Complaint liberally to claim both interference with rights

under the FMLA and retaliation for exercising protected FMLA activity. Under the FMLA, an

“eligible employee” is entitled to “a total of 12 workweeks of leave during any 12-month period

for,” among other reasons, “a serious health condition that makes the employee unable to

perform the functions of the position of such employee.”

(a)(1). The law

6 defines “eligible employee” as “an employee who has been employed (i) for at least 12 months

by the employer . . . and (ii) for at least 1,250 hours of service with such employer.”

§ 2611(2)(A). To prevail on an FMLA-interference claim, Hill must prove, among other things,

that “she was eligible for the FMLA’s protections.” Elzeneiny v. District of Columbia,

(D.D.C. 2016). To state a case of FMLA retaliation, a plaintiff must show

“the exercise of protected FMLA activity.” Waggel v. George Washington Univ.,

,

1375 (D.C. Cir. 2020); see also Gordon v. U.S. Capitol Police,

(D.C. Cir.

2015).

The facts contained in the Complaint and documents attached to Hill’s subsequent filings

show that she was not an “eligible employee” at the time she sought leave or at the time she was

dismissed. Hill began working for XSI in May 2022. 1 See Offer Letter. This means that she

would not become eligible for FMLA leave until May 2023 at the earliest, after “at least 12

months” of employment at XSI.

(2)(A). Yet the relevant events here occurred

in September 2022 when she sought leave, see Ex. 1 to Pl.’s Mot. Expedite, and October 2022,

when XSI terminated her, see Ex. 1 to Pl.’s Sur-reply. Plaintiff thus cannot show that she was an

“eligible employee” under the terms of the FMLA and does not state a claim for relief under the

statute. 2 See Hill v. Walker,

(8th Cir. 2013) (holding that a plaintiff

employed “fewer than twelve months . . . had no FMLA rights when she was terminated”). Hill

1 Hill asserts in her opposition that XSI actually hired her in March 2022, when the company initiated her background check. Pl.’s Opp’n Mot. Dismiss at 2. The difference between May 2022 and March 2022 would not affect the Court’s reasoning or conclusions. 2 Hill cannot state a claim under District of Columbia law for the same reason. See

(1)(A)(i) (limiting coverage to individuals “employed by the same employer for at least 12 consecutive or non-consecutive months . . . in the 7 years immediately preceding the date on which the period of family or medical leave is to commence”). Hill’s filings contain no indication that she worked for XSI for any period prior to May 2022.

7 additionally asserts that XSI denied her “NONFMLA” leave, Compl. at 1, which the Court

construes as a breach of contract claim and addresses below.

Because Hill was not an eligible employee under the FMLA, she cannot sustain an

FMLA retaliation claim, either. “[C]ourts have generally recognized that, aside from very

limited circumstances, eligibility under the FMLA is a prerequisite to make an FMLA retaliation

claim.” Dougherty v. Cable News Network,

, 112 (D.D.C. 2019); see also

Humenny v. Genex Corp.,

(6th Cir. 2004) (“This Court finds that the FMLA’s

‘eligible employee’ requirement applies in all FMLA cases, including retaliation cases.”);

Walker v. Elmore Cnty. Bd. of Educ.,

(11th Cir. 2004) (rejecting retaliation

claim because “[t]here can be no doubt that the request—made by an ineligible employee for

leave that would begin when she would still have been ineligible—is not protected by the

FMLA.”). The limited exceptions include employees who announce an intent to take FMLA

leave in the future once they become eligible under the statute. See Pereda v. Brookdale Senior

Living Communities, Inc.,

(11th Cir. 2012). Here, however, Hill would not

have become eligible for FMLA leave during the approximately four months she requested,

meaning she does not fit into this exception. Hill thus cannot sustain a claim under the FMLA.

3. ADA Claim

Hill refers to the ADA in passing in her Complaint, so the Court will address whether the

facts she alleges state a claim under that statute, as well. See Compl. at 1. XSI construes Hill’s

claim as a failure-to-accommodate claim and argues that she does not allege facts showing that

she had a disability, that XSI knew of any disability, that she requested accommodations from

XSI that were refused, or that she could perform the essential functions of her position with a

8 reasonable accommodation. Def.’s Reply at 3–5, ECF No. 11. The Court agrees that Hill’s

complaint fails to state a claim under the ADA.

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 Univ. of

D.C.,

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

(D.C.

Cir. 2014)). “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). 3 To succeed on a retaliation

claim, a plaintiff needs to show “that she engaged in protected activity, that she suffered an

adverse employment action, and that there was a causal link between the former and the latter.”

Allen v. Johnson,

(D.C. Cir. 2015).

The Court concludes that Hill does not state a failure-to-accommodate claim or a

retaliation claim under the ADA because the facts alleged indicate that she requested FMLA

leave—a nearly 16-week leave of absence—and not an accommodation to continue working. In

Waggel, the D.C. Circuit held that there is no direct “equivalency” between “requests for FMLA

leave” and “requests for an ADA accommodation.” 957 F.3d at 1373. There, the plaintiff

“never expressly requested an ADA accommodation.” Id. at 1371. The court concluded that the

3 D.C. Human Rights Act disability discrimination claims are analyzed under the same framework as those under the ADA. Dougherty, 396 F. Supp. 3d at 101. Failure to state a claim under the ADA would thus foreclose a claim under D.C. law, as well.

9 plaintiff “chose to seek leave under the FMLA rather than request accommodation under the

ADA” through the defendant employer’s “established channels,” precluding her ADA claim. Id.

at 1373. Instead of requesting a reasonable accommodation to continue working, “[b]y invoking

FMLA, [Hill] was asking not to work for some period of time.” LaRochelle v. Lynott, No. 22-

cv-0115,

, at *7 (D.D.C. Sept. 25, 2023); see also Badwal,

(“A request to be absent from work for a period of time, even if this request is for medical

reasons, does not equal a request for a reasonable accommodation.”). Hill includes no facts here

indicating that she requested a disability accommodation in addition to medical leave, and she

therefore does not state a claim under the ADA.

Hill additionally does not plead facts indicating that she is a “qualified individual” as the

ADA requires. The statute defines “qualified individual” as one “who, with or without

reasonable accommodation, can perform the essential functions of the employment position.”

(8). Recalling that her leave request arose from “significant stress and anxiety

related to a toxic work environment,” Ex. 1 to Pl.’s Mot. Expedite at 1, Hill does not explain how

the four months of leave would have rendered it more likely that she could perform the essential

functions of her job at XSI. The attachments to her filings indicate that she had not attended

work regularly within the two months before she was terminated. See Termination Letter

(stating that Hill had missed 22 of the previous 60 days and had arrived late or left early 27 out

of the previous 60 days). Although Hill asserts that her “[a]ttendance became the ‘Narrative’”

for her dismissal, Pl.’s Opp’n Mot. Dismiss at 3, she contradicts this in an email attached to her

sur-reply, in which she admits that her “attendance has not been up to par” and that “it [is] a

possibility I’m not a good fit.” Hill Email, Ex. 2 to Pl.’s Sur-reply. Furthermore, by seeking

FMLA leave, Hill in effect asserted that she was “unable to perform the functions of [her]

10 position.”

(a)(1)(D); see also Ex. 5 to Pl.’s Opp’n at 9 (explaining, in the

employee handbook, that the leave was available for an employee who is “unable to work

because of a serious health condition”). The D.C. Circuit has additionally explained that

“coming to work regularly”—at least in the context of roles that must be performed on site—is

an “essential function” of employment. Carr v. Reno,

(D.C. Cir. 1994);

Tyndall v. Nat’l Educ. Centers, Inc. of California,

(4th Cir. 1994) (“An

employee who cannot meet the attendance requirements of the job at issue cannot be considered

a ‘qualified’ individual protected by the ADA.”). The Court thus concludes that the facts alleged

in Hill’s filings do not establish that she was a qualified individual under the ADA.

In sum, Hill fails to state a claim under the ADA because the alleged facts indicate that

she sought FMLA leave rather than an accommodation and do not establish that she was a

qualified individual. Her ADA claim must therefore be dismissed.

4. Breach-of-Contract Claim

The Court finally addresses Hill’s breach-of-contract claims. Hill asserts that XSI

breached a five-year contractual agreement by terminating her in violation of the company’s

“employee handbook guidelines” and therefore owes her $212,376. Compl. at 1. The Court

additionally construes Hill’s reference to “NONFMLA” leave to constitute a contract claim

arising out of the employee handbook.

XSI contends that Hill’s offer letter and the employee

handbook she attaches to her filings demonstrate that she lacked an employment contract. Def.’s

Reply at 12. The company additionally argues that the employee handbook did not create an

implied contract under which Hill was entitled to non-FMLA leave.

at 9–11. The Court

again agrees with XSI.

11 To prevail on a breach-of-contract claim under D.C. law, a plaintiff must prove (1) a

valid contract between the parties, (2) an obligation or duty arising from that contract, (3) a

breach of that obligation or duty, and (4) damages caused by that breach. Tsintolas Realty Co. v.

Mendez,

(D.C. 2009). A disclaimer in an employer’s personnel or policy

manual can serve to negate any implied contractual rights arising from the document. See

Futrell v. Dep’t of Lab. Fed. Credit Union,

(D.C. 2003); Grove v. Loomis

Sayles & Co., L.P.,

(D.D.C. 2011). In addition, “[i]t has long been

settled in the District of Columbia that an employer may discharge an at-will employee at any

time and for any reason, or for no reason at all.” Alibalogun v. First Coast Sec. Sols., Inc.,

(D.D.C. 2014) (quoting Adams v. George W. Cochran & Co.,

(D.C. 1991)). “[A] plaintiff bears the burden of alleging facts sufficient to show that ‘the parties

intended that termination be subject to specific preconditions.’” Daisley v. Riggs Bank, N.A.,

(D.D.C. 2005) (quoting Wilson v. Prudential Fin.,

(D.D.C. 2004)).

First, it is apparent that XSI’s employee handbook does not create a contractual

relationship between Hill and the company. The District of Columbia Court of Appeals has

explained that an employee handbook does not create an implied contract when it both states that

it “is not a contract” and “contain[s] language clearly reserving the employer’s right to terminate

at will.” Boulton v. Inst. of Int’l Educ.,

(D.C. 2002) (quoting Sisco v. GSA

Nat’l Capital Fed. Credit Union,

(D.C. 1997)); see also Phillips v. Spencer,

(D.D.C. 2019). Here, the employee handbook says that it “is not intended

to create, nor is it to be construed as to or constitute a contract between Xtreme Solutions and

any or all of its employees.” Ex. 4 to Pl.’s Opp’n at 8. The handbook additionally states that

12 “[e]mployment at the Company is employment at-will and may be terminated at the will of either

the Company or the employee.”

The handbook thus contains both requirements articulated

in Boulton and does not create any enforceable contract under District of Columbia law.

Hill may assert that a five-year contract arose from the agreement to initiate the security

clearance process. In her opposition, she states that a “contract and obligation were signed” and

that she “went through the vigorous process of a background in-depth investigation for a Secret

Clearance.” Pl.’s Opp’n Def.’s Mot. Dismiss at 2. She attaches a copy of the instructions for the

SF-85, which is a questionnaire for public trust positions. Ex. 2 to Pl.’s Opp’n Def.’s Mot.

Dismiss, ECF No. 10-1. The Court surmises that Hill has confused the length of time a public

trust clearance remains valid with the length of time XSI had promised to employ her. Yet

neither the SF-85, nor the State Department’s decision to grant Hill a clearance, can be

reasonably construed as creating an employment contract with XSI. The Court finds no other

facts alleged in the Complaint, subsequent filings, or any of the attached documents

demonstrating that the parties had agreed to an employment contract in another form.

Hill does not state a claim for relief based on denial of non-FMLA leave. The claim by

definition cannot be based on violation of the FMLA. As discussed above, the parties do not

have a separate contract guaranteeing Hill non-FMLA leave as a condition of employment. Even

if the employee handbook did create an implied contract, the document provides that the decision

whether to provide non-FMLA leaves of absence lies “within the sole discretion of the

Company.” Ex. 4 to Pl.’s Opp’n at 9. XSI thus would not breach an agreement by denying Hill

non-FMLA leave.

Finally, Hill does not state a breach-of-contract claim arising from her dismissal. In

addition to the disclaimer language in the handbook, Hill attaches a signed offer letter stating that

13 her “employment with XSI constitutes employment-at-will for an unspecified duration and may

be terminated at any time.” Offer Letter at 3. The facts alleged indicate that Hill was an at-will

employee who—as far as contract law is concerned—“can be terminated from employment for

any reason or no reason at all, with or without cause or justification.” Morris v. Carter Glob.

Lee, Inc.,

(D.D.C. 2013) (citing Adams,

). The only

exception to this rule arises when the sole reason for discharge is the employee’s refusal to

violate the law, see Byrd v. VOCA Corp. of Washington, D.C.,

(D.C. 2008), a

claim that would not be supported by the facts here. As a result, Hill’s breach-of-contract claim

must be dismissed as well.

B. Conclusion

For the foregoing reasons, XSI’s motion to dismiss is GRANTED; and it is

FURTHER ORDERED that Hill’s motion for a hearing is DENIED AS MOOT; and it

is

FURTHER ORDERED that Hill’s motion to expedite is DENIED AS MOOT.

An order consistent with this Memorandum Opinion is separately and contemporaneously

issued.

Dated: September 6, 2024 RUDOLPH CONTRERAS United States District Judge

14