UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LATYSHA SHORT, : : Plaintiff, : Civil Action No.: 23-261 (RC) : v. : Re Document Nos.: 31, 33, 37, 41, 47, : 54 D.C. DEPARTMENT OF CORRECTIONS, : et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTION; DENYING PLAINTIFF’S MOTION FOR RECUSAL; DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE ELECTRONIC EVIDENCE; DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS

INTRODUCTION

Plaintiff Latysha Short (“Short” or “Plaintiff”) is a former employee of the District of

Columbia Office of Attorney General (“OAG”) and the District of Columbia Department of

Employment Services (“DOES”). Short, proceeding pro se, brings this action against the District

of Columbia Department of Corrections (“DOC”), OAG, DOES, and the District of Columbia

Department of Behavior Health (“DBH”) (collectively, “Defendants”). Liberally construed,

Short’s complaint alleges that Defendants discriminated against her on the basis of sex and

religion, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e, et seq.; discriminated against her on the basis of disability, in violation of the

Americans with Disabilities Act (“ADA”),

, et seq.; violated her rights under

the First, Second, and Fourth Amendments of the United States Constitution; and committed

wire fraud and racketeering in violation of

,

, and

. See Am. Compl. at 3–4, ECF. No. 21. Defendants move to dismiss all claims in Short’s amended complaint. Short, on the other hand, has filed two motions for preliminary

injunction, a motion for recusal, a motion for leave to file electronic evidence, and a motion for

judgment on the pleadings. For the reasons discussed below, Defendants’ motion is granted and

Short’s motions are denied.

BACKGROUND

A. Factual Background

Short’s amended complaint is difficult to follow and details factual allegations dating

back to the 1990s. As best the Court can tell, however, the most relevant allegations relate to

events occurring from the mid-2010s to the early 2020s—a time period during which Short

worked at OAG and DOES.

Short began working at OAG in August of 2015. Am. Compl. at 12. She alleges that,

while she was employed at OAG, OAG employees treated her derogatorily and in a

“discriminatory” manner.

. For example, Short claims that some employees treated her

like a “dog” and asked her to “fetch” things for them. See

Another employee referred to

Short as a “squatter”—apparently a reference to the difficulties Short was having with her living

situation around the same time period. Id.; see also

at 17–18 (describing Short’s housing

issues). Short further alleges that OAG employees discussed the “sexual assaults” Short had

suffered, “made fun of [her] salary,” mocked her for failing to “provid[e] for [her] children,”

“joke[d] about the color of [her] nails,” and “refer[ed] to [her as] a fungus and diseased.”

. Short felt “de-humanized” by these comments. See

Separately, Short alleges that an

OAG employee gave her a “shingles infection” and that other employees “touch[ed] [her]”

whenever they pleased and without her permission. Id.; see also

(alleging that

employees “were able to touch [her] as if [she] was a remote-control car and not a person”).

2 Short, who is HIV-positive,

, also alleges that OAG employees “lied” about being aware

of her “medical status,”

. All told, Short claims that these actions detrimentally impacted

her “quality of life.”

.

Short left OAG in August of 2021.

. She alleges that, prior to leaving, she

participated in an exit interview in which an OAG employee asked her why she was leaving.

. Short explained that, although OAG “was a great place to work,” there were “limited

opportunities for non-attorneys.”

Short alleges that her explanation offended her interviewer,

who then threatened to “reclassify [Short’s] position to a 14.”

The complaint does not

meaningfully explain what that means, or the consequences it would entail.

Upon leaving OAG, Short began working at DOES.

. She alleges that, shortly

after beginning at DOES, a supervisor informed her that they planned to “rob[]” her, violate the

privacy of her “medical records,” “destr[oy]” her property, and “torture” her on account of her

HIV diagnosis. See

Despite these threats, Short apparently worked at DOES for over a year.

See

. At some point during that period, Short asked for permission to “work a

modified work week,” but it seems her request was denied. See

. Short had other issues

at the workplace as well. For instance, employees complained that Short was regularly walking

around the office and “talking on the phone.”

. And she alleges that DOES subjected

her to a “discriminatory policy.”

.

On November 1, 2022, DOES placed Short on paid administrative leave “pending an

investigation.”

. The record does not reveal—and Short apparently does not know—

the details of the alleged investigation. See

.

On December 17, Short filed a charge of discrimination with the Equal Opportunity

Commission (“EEOC”).

. Her EEOC complaint alleged that, while at DOES, she had

3 been “discriminated against on the basis of [her] disability” and that she had been “retaliated

against” for “complain[ing] about a discriminatory policy.”

The EEOC dismissed her

charge, finding that “the facts alleged . . . fail to state a claim under any laws enforced by

EEOC.”

. Short voluntarily resigned from her position at DOES in February of 2023.

See

.

B. Procedural Background

On January 30, 2023, Short filed a complaint in federal court, alleging claims under the

First, Fourth, and Fifth Amendments to the Constitution. See Compl. at 3, ECF 1. On March 14,

she filed an amended complaint. See Am. Compl. Short’s amended complaint purports to allege

claims under the First, Second, and Fourth Amendments to the Constitution;

;

18 U.S.C. §§ 1961–68; and

.

. She also contends that she was

discriminated against on the basis of sex, religion, and disability.

.

After filing her amended complaint, Short filed two motions for preliminary injunction.

See Pl.’s Mot. Prelim. Inj. (“Pl.’s Apr. Mot.”), ECF No. 31; Pl.’s Mot. Prelim. Inj. (“Pl.’s May

Mot.”), ECF No. 33. The motions were docketed on April 28 and May 17, 2023, respectively. It

is unclear whether Defendants were ever served with these motions. See Defs.’ Notice at 1–2,

ECF No. 55.

On May 24, Defendants moved to dismiss the amended complaint. See Defs.’ Mem. P. &

A. Supp. Defs.’ Mot. Dismiss Compl. (“Defs.’ Mot. Dismiss”), ECF No. 37-1. In their motion to

dismiss, Defendants explained that the arguments advanced therein were also made in opposition

to Short’s motions for preliminary injunction. See

at 1 n.1. Short filed multiple oppositions

to Defendants’ motion. See Pl.’s Mot. Opp’n Defs.’ Mot. Dismiss & Pl.’s Request for Recusal

(“Pl.’s First Opp’n”), ECF No. 40; Pl.’s Mot. Opp’n Defs.’ Mot. Furtherance Dismissal (“Pl.’s

4 Second Opp’n”), ECF No. 46. Defendants’ motion is fully briefed and ripe for review. See

Defs.’ Reply Further Supp. Mot. Dismiss Compl. (“Defs.’ Mot. Dismiss Reply”), ECF No. 43;

Pl.’s Reply Mot. Dismiss Opp’n, ECF No. 49.

On June 26, Short filed a motion for recusal. See Pl.’s First Opp’n; see also Pl.’s Mot.

for Recusal, ECF No. 41. Defendants briefly responded to Short’s motion for recusal in their

reply in support of their motion to dismiss. See Defs.’ Mot. Dismiss Reply at 7–8.

On July 29, Short filed a motion to submit electronic evidence. See Pl.’s Mot. Submit

Electronic Evidence, ECF No. 47. Defendants filed a response arguing that the submission of

such evidence is “premature” in light of the fact that Defendants had filed a motion to dismiss,

and the parties had not yet begun discovery. See Notice of Defs.’ Position Pl.’s Mot. Submit

Electronic Evidence, ECF No. 48.

Finally, on November 13, Short filed a motion for judgment on the pleadings. See Pl.’s

Mot. J. Pleadings, ECF No. 54. Defendants filed an opposition two weeks later. See Defs.’

Opp’n Pl.’s Mot. J. Pleadings, ECF No. 56.

LEGAL STANDARD

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

statement of the claim” 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). “To 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,

, 570

5 (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,

(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,

. However, a

court considering a motion to dismiss 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).

“In determining whether a complaint fails to state a claim, [the court] may consider only

the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint and matters of which [the court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Sch.,

(D.C. Cir. 1997). Mindful that a pro se litigant’s

complaint should be “construed liberally and . . . held to ‘less stringent standards than formal

pleadings drafted by lawyers,’” Lemon v. Kramer,

(D.D.C. 2017)

(quoting Erickson,

), a court will, when necessary, “examine other pleadings to

understand the nature and basis of” a plaintiff’s pro se claims, Gray v. Poole,

(D.C. Cir. 2002). Nevertheless, 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 v. D.C. Off. of the Mayor,

,

681–82 (D.C. Cir. 2009) (quoting Iqbal,

). “When the plaintiff alleges the filing

of an administrative charge, that charge may be deemed incorporated into the complaint and the

6 court can consider it on a motion to dismiss.” Greer v. Bd. of Trs. of Univ. of D.C.,

(D.D.C. 2015); see also Koch v. Walter,

(D.D.C. 2013).

ANALYSIS

A. Defendants’ Motion to Dismiss

Short’s amended complaint claims that Defendants violated Title VII, the ADA, various

other federal and D.C. statutes, and the First, Second, and Fourth Amendments to the U.S.

Constitution. For the reasons discussed below, her claims are dismissed. 1

1. Title VII

Short’s amended complaint does not explicitly cite Title VII as a basis for imputing

liability to Defendants. See Am. Compl. at 3. But Short does allege that she suffered

discrimination on the basis of sex and religion. See id. at 4. The Court will liberally construe

Short’s amended complaint as purporting to state claims of sex- and religious-based

discrimination under Title VII, which “broadly prohibits discrimination in employment on the

basis of race, color, religion, sex, or national origin.” Niskey v. Kelly,

(D.C. Cir.

1 As a preliminary matter, Defendants correctly observe that the four named Defendants are non sui juris, meaning they cannot be sued separate from the District of Columbia. See Whitehead v. D.C. Child Support Servs. Div.,

(D.D.C. 2012) (“[I]t is well-settled that a department or agency of the District of Columbia cannot sue or be sued in its own name in the absence of a statutory provision to that effect.”); see also Carter-El v. D.C. Dep’t of Corrs.,

(D.D.C. 2012) (finding that “the Department of Corrections is not an entity capable of being sued separate from the District of Columbia”); Owens v. District of Columbia,

(D.D.C. 2009) (same for OAG); Perez v. D.C. Dep’t of Emp. Servs.,

(D.D.C. 2018) (same for DOES); Bynum v. District of Columbia,

, 128 (D.D.C. 2020) (same for DBH). When a plaintiff brings a claim against a non sui juris entity, the court may substitute the proper defendant, Sampson v. D.C. Dep’t of Corrs.,

(D.D.C. 2014), but the court may decline to do so if substitution would be futile, Cartel-El, 893 F. Supp. 2d at 247–48. Here, substituting the District of Columbia as the defendant would be futile because Short fails to state a plausible claim for relief.

7 2017); see 42 U.S.C. § 2000e-2. But even liberally construed, Short’s amended complaint fails

to state a Title VII claim arising either from her employment at OAG or DOES.

Before filing a lawsuit alleging violations of Title VII, “a plaintiff must exhaust her

administrative remedies.” Haynes v. D.C. Water & Sewer Auth.,

(D.C. Cir.

2019). 2 This means that a plaintiff must “‘fil[e] an administrative charge with the EEOC and

allow[] the agency time to act on the charge’ before commencing litigation.”

(quoting Park

v. Howard Univ.,

(D.C. Cir. 1995)). The ensuing litigation is then limited in

scope “to claims that are like or reasonably related to the allegations of the charge and growing

out of such allegations.” Ahuja v. Detica Inc.,

(D.D.C. 2012) (quoting

Park,

). “For a charge to be regarded as ‘reasonably related’ to a filed charge it

must at a minimum arise from the administrative investigation that can reasonably be expected to

follow the charge of discrimination.” Haynes, 924 F.3d at 526–27 (cleaned up) (quoting Payne

v. Salazar,

(D.C. Cir. 2010)). This ensures that the charge of discrimination

“contain[s] ‘sufficient information’ to put the agency on notice of the claim and to ‘enable the

agency to investigate’ it” before an employee files a federal lawsuit. Crawford v. Duke,

(D.C. Cir. 2017) (quoting Artis v. Bernanke,

(D.C. Cir. 2011)).

The D.C. Circuit has instructed that “the administrative charge requirement should not be

construed to place a heavy technical burden” on plaintiffs, see Park,

, and that

EEOC complaints should be liberally construed, Crawford,

. All the same, “[a]

2 Failure to exhaust “is a non-jurisdictional affirmative defense.” Ahuja v. Detica Inc.,

(D.D.C. 2012); see Artis v. Bernanke,

, 1034 n.4 (D.C. Cir. 2011). As such, the defendant “bears the burden of proving by a preponderance of the evidence that the plaintiff failed to exhaust administrative remedies.” Wade v. District of Columbia,

(D.D.C. 2011); see Bowden v. United States,

(D.C. Cir. 1997).

8 court cannot allow liberal interpretation of an administrative charge to permit a litigant to bypass

the Title VII administrative process.” Park,

.

Here, the record supports Short’s allegation that she filed a charge of discrimination with

the EEOC in December of 2022. See Am. Compl. at 28. Short’s EEOC complaint—which Short

attaches to her amended complaint—lists Short’s employer as DOES. See

It explains that

Short began working at DOES in August of 2021, and that she was “still employed” by DOES.

As the basis for Short’s complaint, she explained that she “believe[d] [she] was treated

differently due to [her] disability” and that there was a “discriminatory policy” in place.

She

further alleged that she had contacted her “supervisor, HR, and union to protest [the]

discriminatory policy” but that “no action was taken to resolve [her] complaint.”

Shortly

thereafter, Short “was subjected to multiple disciplinary actions.”

She stated that she

“believe[d] [DOES] [was] retaliating against [her]” for protesting the policy.

And she

further explained that, on November 1, 2022, she “was placed on administrative leave pending

an investigation.”

In sum, she alleged that she “was discriminated against on the basis of

[her] disability and retaliated against for engaging in protected activity.”

No matter how it is construed, Short’s EEOC complaint may not be deemed to have put

either OAG or DOES “on notice” that Short was alleging that she had been discriminated against

on the basis of sex or religion. See Crawford,

(“[T]he central question is

whether the employee’s complaint contained ‘sufficient information’ to put the agency on notice

of the claim and to ‘enable the agency to investigate’ it.” (quoting Artis,

)). As

to the former, Short’s complaint does not even mention OAG; indeed, the complaint describes

allegations of events that occurred while Short was employed solely by DOES. And even though

Short’s EEOC charge at least mentions DOES and relates to her employment there, there is

9 nothing in Short’s explanation of her allegations that hints at a claim of sex- or religious-based

discrimination. Accordingly, to the extent Short’s amended complaint purports to state

discrimination claims arising under Title VII, those claims are dismissed.

2. ADA

Defendants also contend that Short has failed to state a claim for discrimination or

retaliation under the ADA. The Court agrees.

a. OAG

To the extent Short alleges ADA violations stemming from her employment at OAG, she

has failed to exhaust such claims. “To maintain a cause of action under the ADA a plaintiff must

first exhaust administrative remedies by filing a claim with the EEOC and then obtain a Notice

of Right to Sue from the agency.” Dahlman v. Am. Ass’n of Retired Persons (AARP),

(D.D.C. 2011); see also Marshall v. Fed. Express Corp.,

(D.C. Cir. 1997) (“Before bringing suit in federal court, ADA plaintiffs, like those under Title

VII, must exhaust their administrative remedies by filing an EEOC charge and giving that

agency a chance to act on it.”). As in the context of Title VII, “[t]he administrative exhaustion

requirement serves the dual purpose of notice to the employer and an opportunity to settle the

dispute.” Dahlman,

.

Here, Short does not allege—and the record contains nothing to indicate—that she ever

filed an EEOC complaint for ADA violations based on her employment at OAG. As described

in the preceding section, the only EEOC complaint in the record describes alleged ADA

violations Short suffered while employed at DOES. See Am. Compl. at 28. Accordingly, Short

has failed to exhaust any alleged ADA violations arising from her employment at OAG. See,

e.g., Congress v. District of Columbia,

(D.D.C. 2017).

10 b. DOES

Construed liberally, Short’s amended complaint alleges that DOES discriminated against

her on the basis of her disability and, after Short complained of the alleged discrimination,

retaliated against her for complaining. See Am. Compl. at 28. But Short has not pleaded facts

from which it possible to infer either discrimination or retaliation.

First, Short fails to plausibly allege that Defendants discriminated against her on the basis

of disability. Title I of the ADA prohibits employers from “discriminat[ing] against a qualified

individual on the basis of disability . . . [in the] terms, conditions, and privileges of

employment.”

(a); see Hill v. Assocs. for Renewal in Educ., Inc.,

(D.C. Cir. 2018). In order to state a claim of discrimination under the ADA, a plaintiff

must plausibly allege that “(i) [she] suffered an adverse employment action (ii) because of [her]

disability.” Waggel v. George Washington Univ.,

(D.C. Cir. 2020) (quoting

Adeyemi v. District of Columbia,

(D.C. Cir. 2008)). Short’s amended

complaint fails at step one: she does not allege facts from which it is possible to infer that she

suffered an adverse employment action.

Until recently, the D.C. Circuit had held that a plaintiff could not demonstrate an adverse

employment action unless the plaintiff could show that she had suffered an “objectively tangible

harm.” See Keith v. U.S. Gov’t Accountability Off., No. 21-cv-2010,

, at *4

(D.D.C. Sept. 26, 2023). In Chambers v. District of Columbia,

(D.C. Cir. 2022),

the en banc court dispensed with that requirement. See Keith,

, at *4

(discussing Chambers). Now, a plaintiff need only plead facts sufficient to show that her

11 “employer has discriminated against [her] with respect to [her] ‘terms, conditions, or privileges

of employment.’” 3 Chambers,

.

Even under this relaxed requirement, Short has failed to allege facts showing that DOES

“discriminated against [her] with respect to [her] ‘terms, conditions, or privileges of

employment.’” See

As best the Court can tell, Short complains that DOES enacted a

“discriminatory policy.” 4 See Am. Compl. at 28. She says that DOES “trapped [her] in a policy

that consisted of HIV 2.” Id. at 7. She also claims to have “opposed” this policy. Id. at 8. At no

point does Short explain the details of the “policy” DOES supposedly enacted. And perhaps

more to the point, her amended complaint never links the “policy” to a term, condition, or

privilege of her employment. As such, Short has failed to plead facts sufficient to show that she

suffered an adverse employment action. Her ADA discrimination claim must therefore be

dismissed.

Short’s ADA retaliation claim fares no better. The ADA protects employees from

retaliation for opposing discriminatory employment practices aimed at those with disabilities.

See

(a). To establish a prima facie case of retaliation, an employee must

establish that: “(1) she made a charge or opposed a practice made unlawful by the ADA, (2) the

employer took a materially adverse action against her, and (3) ‘“there existed a causal link

between the adverse action and the protected activity.”’” Walker v. Children’s Nat’l Med. Ctr.,

, 143–44 (D.D.C. 2017) (quoting Smith v. District of Columbia,

Although Chambers specifically addressed allegations of discrimination under Title VII, courts in this district have held that the Circuit’s holding applies with equal force to the “indistinguishable” antidiscrimination provision in the ADA. See Keith,

, at *5 (quoting Mogenhan v. Napolitano,

(D.C. Cir. 2010)). 4 Her complaint separately alleges that the “policy has enslaved [her] for thirty-four years,” Am. Compl. at 9, which renders it far from clear how DOES could have enacted the policy.

12 450, 455 (D.C. Cir. 2005)). A plaintiff need not plead a prima facie case to survive a motion to

dismiss. Swierkiewicz v. Sorema N.A.,

(2002) (“The prima facie case . . . is an

evidentiary standard, not a pleading requirement.”); Gordon v. U.S. Capitol Police,

, 161–62 (D.C. Cir. 2015) (applying Swierkiewicz in the retaliation context). “But she must

plead facts sufficient to nudge her claims ‘across the line from conceivable to plausible.’”

Arthur v. D.C. Hous. Auth., No. 18-cv-2037,

, at *5 (D.D.C. Dec. 2, 2020)

(quoting Iqbal,

)). To that end, courts may use the prima facie “elements as a

guide in [assessing] the plausibility of a plaintiff’s claim for relief.” See

Here, Short alleges that, in June of 2022, she complained to her supervisor, human

resources, and her union representative that she had been “treated differently due to [her]

disability” and the previously-mentioned “discriminatory policy.” See Am. Compl. at 28. She

claims that “no action was taken to resolve [her] complaint,” and, instead, she was “subjected to

multiple disciplinary actions” shortly thereafter.

Short’s complaint does not reveal any

further specifics regarding these alleged “disciplinary actions,” nor does it describe any other

purportedly adverse actions committed by DOES following her June 2022 complaint. Thus,

even assuming that Short’s complaints to her supervisor and others constituted protected activity

under the ADA, Short has still failed to plausibly allege that DOES took a materially adverse

action against her on account of that activity. Her unsupported allegations of “disciplinary

actions” are far too conclusory to infer that they constituted materially adverse actions.

The one possible exception to the conclusion just reached concerns Short’s allegation

that, in November of 2022, DOES placed her on “administrative leave with pay” “pending an

investigation.” See id. at 10, 28. This specific allegation does not resemble Short’s conclusory

claims of “disciplinary actions.” Perhaps acknowledging as much, Defendants argue that,

13 nonetheless, an employer’s decision to place an employee on “paid leave, without more, does not

count as an adverse action.” Defs.’ Mot. Dismiss at 7.

Under the ADA, “[a]n adverse action for a retaliation claim is one that could well

dissuade a reasonable person from making or supporting a charge of discrimination.” Pressley v.

Mgmt. Support Tech., Inc., No. 22-cv-2262,

, at *11 (D.D.C. Aug. 14, 2023)

(cleaned up); see also Burlington N. & Santa Fe Ry. Co. v. White,

(2006).

“Adverse 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 v. Georgetown Univ.,

(D.D.C. 2000)

(quoting

(a)). “[M]inor 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)).

To be sure, two other courts in this district have held that an employee’s placement on

paid administrative leave pending an investigation does not constitute materially adverse action.

See Hornsby v. Watt,

, 66–67 (D.D.C. 2016); Jones v. Castro,

(D.D.C. 2016). Those holdings accorded with decisions reached by courts outside this

circuit. See, e.g., Joseph v. Leavitt,

, 90–93 (2d Cir. 2006) (collecting cases); Jones

v. Se. Pa. Transp. Auth.,

(3d Cir. 2015). The D.C. Circuit, however, has

expressly left open the question of whether “being placed on administrative leave could

constitute the type of adverse action that would support a retaliation claim.” Hornsby v. Watt,

No. 17-5001,

, at *1 (D.C. Cir. Nov. 14, 2017); see also Wesley v.

Georgetown Univ., No. 18-cv-1539,

, at *6 (D.D.C. Nov. 2, 2018). That

being so, the Court declines to dismiss Short’s complaint on this basis.

14 The Court instead concludes that, even assuming that Short’s placement on paid

administrative leave pending an investigation could constitute a materially adverse employment

action, Short does not plausibly allege that DOES placed her on such leave because of her

protected activity. To state a prima facie case for retaliation under the ADA, a plaintiff must

allege that “there is a causal connection between the adverse action and the protected activity.” 5

Pressley,

, at *11 (quoting Brown v. Trinity Washington Univ., No. 22-cv-

1612,

, at *5 (D.D.C. Mar. 20, 2023)). One way in which a plaintiff can plead

facts sufficient to give rise to an inference of causation is to show that her “employer had

knowledge of [her] protected activity, and that the [retaliatory] personnel action took place

shortly after that activity.” Cooper v. District of Columbia,

, 163 (D.D.C.

2017) (quoting Cones v. Shalala,

(D.C. Cir. 2000)). Conversely, though “not

necessarily fatal,” a large temporal gap between the protected activity and the adverse action

undermines a causal inference, especially in the absence of other factors suggesting causation.

See Greer,

.

Here, five months elapsed between Short’s complaint to her supervisor and her placement

on administrative leave. Courts have explained that gaps of this length are generally too long to

give rise to a causal inference. See, e.g., Furey v. Mnuchin,

(D.D.C.

2018) (finding five months “too long to give rise to any inference of causation”); Walker v.

Johnson,

(D.D.C. 2007) (same). Moreover, Short does not allege any

other facts from which retaliatory animus can be inferred. To the contrary, her complaint

5 In this Circuit, it remains an unsettled question as to whether this means a plaintiff must plead that her protected activity was a “but-for cause” of the alleged adverse action or whether she need only show that it was a “motivating factor.” See Gallo v. Washington Nationals Baseball Club, LLC, No. 22-cv-01092,

, at *5 (D.D.C. Mar. 10, 2023).

15 suggests that she was placed on administrative leave for factors that had nothing to do with her

protected activity: specifically, the fact that she was a disruptive presence in the office. See Am.

Compl. at 10. Accordingly, the Court finds that Short has not stated a plausible claim for

retaliation under the ADA.

3. Plaintiff’s Constitutional and Various Statutory Claims

Short’s amended complaint alleges that Defendants violated her First, Second, and Fourth

Amendment rights. See Am. Compl. at 3. However, the body of her complaint does not allege

any facts from which it can be inferred that Defendants violated any of these constitutional

provisions. Even though a pro se litigant’s complaint must be “construed liberally and . . . held

to ‘less stringent standards than formal pleadings drafted by lawyers,’” Lemon,

(quoting Erickson,

), 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,

). Short’s amended complaint fails to pass that test to the extent it purports to plead that

Defendants violated her constitutional rights.

For the same reason, Short fails to state plausible claims that Defendants committed wire

fraud, see

, or racketeering, see

§ 1962; see also

.

Despite the length of Short’s amended complaint, the narrative described therein does not

contain any specific factual allegations from which it possible to infer that Defendants violated

these statutes.

16 In sum, even construed liberally, Short’s amended complaint fails to “state a claim to

relief that is plausible on its face.” See Iqbal,

(quoting Twombly,

). Her amended complaint is, therefore, dismissed. 6

B. Plaintiff’s Motions for Preliminary Injunction

Short filed two motions—one in April of 2023 and the other in May—seeking the entry

of a preliminary injunction. See Pl.’s Apr. Mot.; Pl.’s May Mot. A preliminary injunction is an

“extraordinary” remedy that “should be granted only when the party seeking the relief, by a clear

showing, carries the burden of persuasion.” Cobell v. Norton,

(D.C. Cir.

2004). To prevail on a motion for preliminary injunction, the movant bears the burden of

showing that: (1) “[s]he is likely to succeed on the merits”; (2) “[s]he is likely to suffer

irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in [her]

favor”; and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc.,

(2008). Because Short has not adequately stated a valid claim for relief, she also

has not established any likelihood of success on the merits, and her motions fail. See Xiaobing

Liu v. Blinken,

, 8 (D.D.C. 2021) (“Plaintiffs can only establish a likelihood of

success on the merits of their claims if those claims survive the motion to dismiss . . . .” (cleaned

up)).

6 Because the Court dismisses Short’s amended complaint in its entirety, Short’s motion for leave to file electronic evidence, see Pl.’s Mot. Submit Electronic Evidence, is denied as moot. Plaintiff’s motion for judgment on the pleadings, see Pl.’s Mot. J. Pleadings, is also denied. Finally, the Court denies Short’s motion for recusal, which seeks to disqualify OAG from defending this case. See Pl.’s First Opp’n at 24. The body of Short’s motion does not make any argument as to why OAG should be disqualified.

17 CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 37) is GRANTED;

Plaintiff’s motions for preliminary injunction (ECF No. 31, ECF No. 33) are DENIED;

Plaintiff’s motion for recusal (ECF No. 41) is DENIED; Plaintiff’s motion to submit electronic

evidence (ECF No. 47) is DENIED; and Plaintiff’s motion for judgment on the pleadings (ECF

No. 54) is DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: March 20, 2024 RUDOLPH CONTRERAS United States District Judge

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