UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ARTHUR DICKERSON,
Plaintiff,
v. Civil Action No. 23-867 (RDM)
GRANT LEADING TECHNOLOGY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Arthur Dickerson brings this action against his former employer, Grant Leading
Technology (“GLT”), alleging violations of various federal and District of Columbia statutes.
Dickerson claims that he was subjected to unlawful discrimination and retaliation on account of
his disabilities while employed at GLT. Dickerson originally brought this action in D.C.
Superior Court, but GLT removed the action to this Court pursuant to 28 U.S.C. § 1446. See
Dkt. 1. Now before the Court is GLT’s motion to dismiss. Dkt. 6. For the reasons given below,
the Court will GRANT in part and DENY in part GLT’s motion.
I. BACKGROUND
The following factual allegations are taken from Dickerson’s complaint, which the Court
must take as true for the purposes of GLT’s motion to dismiss. See Harris v. D.C. Water &
Sewer Auth., 791 F.3d 65, 67 (D.C. Cir. 2015).
Arthur Dickerson was employed at GLT for roughly two years, from 2019 to 2021. Dkt.
1-1 at 7 (Compl. ¶¶ 19–20). During that time, Dickerson “suffered epileptic seizures, insomnia,
depression, and anxiety and panic attacks and an associated mental health diagnosis/disorder,
exacerbated by work-related stress and demands,” as well as “intractable migraines,” “gastroenterological complications from prior surgery,” and a “cervical and lumbar
radiculopathy and lumbar disc herniation.” Id. at 7–8 (Compl. ¶¶ 21–24). According to
Dickerson, these “disabilities and . . . complications related to his disabilities” required him “to
miss work and/or telework,” limited his “ability to participate in back-to-back meetings,”
required “periodic rest and/or breaks during the day,” and necessitated a “flexible schedule.” Id.
at 8 (Compl. ¶ 25).
At various points in 2019, Dickerson requested disability-related accommodations. In
September 2019, he requested the ability to remotely join meetings from his office to avoid a
ten-minute walk to a separate building; in December 2019, he requested the ability to sit (rather
than stand) during certain meetings. Id. at 8–10 (Compl. ¶¶ 26–27, 31). GLT “disregarded”
these requests. Id. at 9–10 (Compl. ¶¶ 27, 31).
In January 2020, Dickerson requested and received a “telework medical
accommodation,” which allowed him to work remotely. Id. at 11 (Compl. ¶ 32). On March 3,
2020—after Dickerson had been working remotely for several weeks—GLT requested
documentation of his disabilities from his physician. Id. at 11–12 (Compl. ¶¶ 34–35). Dickerson
then provided GLT with a letter from his physician, which advised GLT that Dickerson should
be allowed to continue working remotely, and also recommended an “ergonomic workstation,
limited driving, limited travel, and a sit to stand desk.” Id. at 12 (Compl. ¶ 36). “[A]t or about
the time Plaintiff provided Defendant with the letter” from his physician, however, the COVID-
19 pandemic commenced, rendering Dickerson’s requests largely moot. Id. at 13 (Compl. ¶ 39).
GLT quickly adopted company-wide telework policies and limited travel. Id. During his time
working remotely, Dickerson alleges that he was given “undesirable” assignments, id. at 11
(Compl. ¶ 33), and subjected to “pressure” to attend virtual work meetings during “core work
2 hours, 8:00 AM – 5:00 PM, often preventing Plaintiff from taking medically necessary work
breaks during the day and requiring Plaintiff to attend back-to-back virtual meetings . . . , further
exacerbating his disabilities.” Id. at 13–14 (Compl. ¶¶ 40–41).
Dickerson also claims that he became the target of harassment and reprisal due to his
disabilities. Id. at 14 (Compl. ¶ 42). He alleges that his coworkers “mock[ed]” him for
“wear[ing] sunglasses indoors” due to his “ocular migraines” and that, “during an office
Christmas party” in December 2019, his coworkers “purchased [him] a pair of women’s
sunglasses as a gag gift.” Id. at 9 (Compl. ¶¶ 28–29). At that same Christmas party, several
coworkers remarked that Dickerson appeared “thin” and that Dickerson “should get a plate of
food.” Id. at 10 (Compl. ¶ 30). When GLT management “took no action to stop” these
comments, Dickerson became “so embarrassed and uncomfortable that he made a very early exit
from the party.” Id.
Dickerson further alleges that he was denied “more desirable workplace tasks,
responsibilities, and associated opportunities for workplace advancement” and was given poor
performance reviews “heavily motivated by bias and discrimination.” Id. at 14, 16 (Compl.
¶¶ 41, 45). At one point in March 2020, a supervisor contacted him to “question [him] about the
nature of his disabilities,” in a line of questioning that Dickerson contends was “harassing and
hostile.” Id. at 14–15 (Compl. ¶ 43). He filed an internal complaint against the supervisor, but
GLT did not act on it. Id. at 15 (Compl. ¶ 44). That same month, Dickerson alleges that GLT
“lowered” his 2019 Performance Rating and gave him “an arbitrarily low 2020 Performance
Evaluation rating.” Id. at 16 (Compl. ¶ 45).
Over a year later, on June 7, 2021, Dickerson “emailed Defendant advising Defendant
that he was ill and/or recovering and that he would be out from work.” Id. at 17 (Compl. ¶ 50).
3 Four days later, on June 11, 2021, GLT “terminate[d] Plaintiff’s employment, stating [the] basis
for this decision as unsatisfactory job performance.” Id. at 18 (Compl. ¶ 52). Dickerson alleges
that prior to his termination, “[i]n or about March or April 2021, [GLT] provided [him] with a
2020 Performance Evaluation affirming” that Dickerson’s job performance was “satisfactor[y]
and/or above satisfactory.” Id. at 17 (Compl. ¶ 48).
On September 25, 2022, Dickerson filed a complaint against GLT in the District of
Maryland. See Dickerson v. Grant Leading Technology, LLC, No. 8:22-cv-02433 (D. Md.
2022). He alleged that GLT violated three D.C. statutes—the D.C. Human Rights Act
(“DCHRA”), D.C. Code § 2-1402.11 et seq.; the D.C. Sick Leave Act (“DCSLA”), D.C. Code
§ 32-531.01 et seq.; and the D.C. Family Medical Leave Act (“DCFMLA”), D.C. Code § 32-501
et seq.—and two federal statutes—the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.;
and the Rehabilitation Act of 1973, 29 U.S.C. § 709 et seq. After GLT moved to dismiss,
Dickerson voluntarily dismissed that action in January 2023, and subsequently filed this action in
D.C. Superior Court on March 8, 2023. Dkt. 1-1 at 3. GLT filed a prompt notice of removal
pursuant to 28 U.S.C. § 1446, invoking federal question jurisdiction with respect to Dickerson’s
federal claims and supplemental jurisdiction for his remaining D.C. law claims. See Dkt. 1 at 1–
3. GLT then moved to dismiss each of the Dickerson’s claims under Rule 12(b)(6). Dkt. 6. The
matter is now fully briefed and ripe for consideration.
II. LEGAL STANDARD
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, 556
U.S. 662, 678(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible if the plaintiff pleads “factual content that allows the court to draw the reasonable
4 inference that the defendant is liable for the misconduct alleged.” Id. Although “detailed factual
allegations” are not required, the complaint must contain “more than labels and conclusions, [or]
a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. The
Court must “assume [the] veracity” of “well-pleaded factual allegations,” Iqbal, 556 U.S. at 679,
and must “grant [the] plaintiff the benefit of all inferences that can be derived from the facts
alleged,” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal
quotation marks omitted). The Court, however, need not accept “a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
III. ANALYSIS
Dickerson asserts claims under three D.C. statutes and two claims under federal statutes.
GLT moves to dismiss his DCHRA and DCFLMA claims (Counts I and III) as time-barred, and
the company moves to dismiss his DCSLA, Rehabilitation Act, and FMLA claims (Counts II,
IV, and V) for failure to state a claim. The Court will address each argument in turn.
A. Counts I and III: DCHRA and DCFMLA
In Counts I and III of the complaint, Dickerson invokes the D.C. Human Rights Act
(“DCHRA”), D.C. Code § 2-1402.11 et seq. and the D.C. Family Medical Leave Act
(“DCFMLA”). Dkt. 1-1 at 19–24, 26–28 (Compl. ¶¶ 55–73, 86–98). As Dickerson’s complaint
acknowledges, these statutes have one-year statutes of limitations. Id. at 6 (Compl. ¶¶ 13, 15);
see also D.C. Code § 2-1403.16(a) (providing that an employee must file a DCHRA claim
“within one year of the unlawful discriminatory act, or the discovery thereof”); D.C. Code §§ 32-
509(a) to -510 (providing that a DCFMLA claim must be filed within one year after the
occurrence or discovery of a violation). GLT argues—and the Court agrees—that these claims
are time-barred.
5 The allegations in Dickerson’s complaint span from May 2019 until June 11, 2021. Dkt.
1-1 at 8–20 (Comp. ¶¶ 25–65)). Thus, absent tolling, the statutes of limitations with respect to
these claims expired on or before June 11, 2022. Dickerson, however, did not file his complaint
until March 8, 2023—almost one year after the deadline. See Dkt. 1 at 1.
Dickerson contends that his claims are nonetheless timely because, due to the judicial
emergency created by the COVID-19 pandemic, the Superior Court for the District of Columbia
“suspended, tolled, and extended,” all D.C. Code statutes of limitations beginning March 18,
2020. See Order, Superior Court of the District of Columbia (amended 3/19/20), at 1,
https://perma.cc/377X-QC5F.1 The Superior Court issued several subsequent orders, which
Dickerson interprets as tolling claims “through June 10, 2022.” Dkt. 1-1 at 5 (Compl. ¶ 12).
Thus, on Dickerson’s view, his claims are timely because he filed this action prior to June 10,
2023.
The Court disagrees. In March 2021, the Superior Court ordered that, going forward, “no
deadlines and time limits in statutes (including statute of limitations) . . . are suspended, tolled[,]
and extended during the period of emergency” in the civil division (with two narrow exceptions
that Dickerson does not invoke here: “statutes of limitations on claims subject to a statutory
moratorium during a public health emergency” and “the time limits concerning the validity and
issuance of writs of restitution”). Order, Superior Court of the District of Columbia (amended
3/20/21), at 3, https://perma.cc/8HB9-57ZR; Dkt. 6-2 at 99. An addendum to a subsequent order
explains: “The March 30[, 2021] order generally provides that no deadlines and time limits in
statutes, court rules, and standing and other orders issued by the Court are suspended, tolled or
1 The Court takes judicial notice of the Superior Court’s tolling orders. See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Fragola v. Kenific Grp., 2022 WL 1908824, at *3 (D.D.C. June 3, 2022).
6 extended during the period of emergency” (save the two narrow exceptions). Addendum to the
General Order Concerning Civil Cases 1 (April 7, 2021), at 1, https://perma.cc/7CM5-WRF2.
Thus, as this Court has previously concluded as to these tolling orders, “[o]n March 30, 2021, the
applicable limitations period began to run again,” Fragola v. Kenific Grp., 2022 WL 1908824, at
*3 (D.D.C. June 3, 2022). The D.C. Court of Appeals has likewise concluded that “the Chief
Judge suspended tolling for civil cases” on “March 30, 2021.” Tovar v. Regan Zambri Long,
PLLC, 321 A.3d 600, 616 (D.C. 2024). That means the one-year statute of limitations for
Dickerson’s DCHRA and DCFMLA claims expired on March 30, 2022, at the latest.
Dickerson resists this conclusion by pointing to a July 2022 Order, which references the
previous tolling orders, and states that “suspension, tolling, and extension ends on June 10,
2022.” Order, Superior Court of the District of Columbia (amended 7/29/2022), at 1,
https://perma.cc/4FC4-NFZX. Dickerson contends that the one-year statutes of limitations
applicable to his DCHRA and DCFMLA claims were tolled until June 10, 2022, and thus did not
expire until June 10, 2023. Dkt. 1-1 at 5, 7 (Compl. ¶¶ 12, 18). But, as GLT points out,
Dickerson omits critical language from this July 2022 Order: it states that the statutes of
limitations were tolled “except as otherwise specified” in the prior orders. Order, Superior Court
of the District of Columbia (amended 7/29/2022), at 1, https://perma.cc/4FC4-NFZX. As
explained above, those prior orders specified that all tolling of civil actions had ceased, except as
to the two types of claims inapplicable here.
“[A] statute of limitations is an affirmative defense,” and, as such, it is typically resolved
at summary judgment or trial. Stewart v. Int’l Union, Sec., Police & Fire Pros. of Am., 271 F.
Supp. 3d 276, 280 (D.D.C. 2017). The defense may “be raised by pre-answer motion under Rule
12(b),” however, if “the facts that give rise to the defense are clear from the face of the
7 complaint.” Id. (quoting Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir.
1988)). Here, the untimeliness of Dickerson’s DCHRA and DCFMLA claims is apparent on the
face of his complaint, and because the Court may take judicial notice of the tolling orders, the
Court need not accept Dickerson’s arguments that “contradict” those orders. Kaempe, 367 F.3d
at 963.
Finally, Dickerson argues that the Court should equitably toll the statutes of limitations
due to the “confusing nature” of the Superior Court’s tolling orders. Dkt. 9 at 5. But “[f]ederal
courts cannot apply the doctrine of equitable tolling differently than would the District of
Columbia courts,” Doe v. Exxon Mobil Corp., 2022 WL 3043219, at *10 (D.D.C. Aug. 2, 2022),
and aside from the discovery rule and the lulling doctrine (neither of which apply here), “District
of Columbia law does not recognize an equitable tolling exception to the statute of limitations,”
Johnson v. Marcheta Invs. Ltd. P’shp, 711 A.2d 109, 112 (D.C. 1998).
The Court will, accordingly, dismiss Counts I and III with prejudice.
B. Count V: Rehabilitation Act
Count V of the complaint alleges that GLT violated the Rehabilitation Act by refusing
“medically necessary reasonable accommodations,” subjecting Dickerson to “discrimination,
harassment, insults, and belittlement,” and for terminating him “because of his disability.” Dkt.
1-1 at 30–32 (Compl. ¶¶ 110–22).
Section 504 of the Rehabilitation Act provides that no “qualified individual with a
disability . . . shall, solely by reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a). The standards under the
Rehabilitation Act are effectively the same as those under the Americans with Disabilities Act,
8 see 29 U.S.C. § 794(d), and “cases interpreting either are applicable or interchangeable,” Alston
v. Wash. Metro. Area Transit Auth., 571 F. Supp. 2d 77, 81 (D.D.C. 2008) (citation omitted).
Several theories of liability are cognizable under the Act, including failure to accommodate,
disparate treatment, disparate impact, retaliation, and the creation of a hostile work environment.
See Drasek v. Burwell, 121 F. Supp. 3d 143, 153–54 (D.D.C. 2015).2 To state a claim of
discrimination under the Rehabilitation Act, a plaintiff must allege (1) that he was a qualified
individual with a disability, (2) the Rehabilitation Act applied to his employer, (3) his employer
knew of his disability, and (4) that he suffered an adverse employment action because of his
disability. Congress v. District of Columbia, 324 F. Supp. 3d 164, 175 (D.D.C. 2018); see also
Husain v. Power, 630 F. Supp. 3d 168, 195 (D.D.C. 2022).
As an initial matter, the parties dispute the second element—that is, whether the
Rehabilitation Act applies to GLT, a private employer. In general, the Rehabilitation Act
“governs employee claims of handicap discrimination against the Federal Government.” Ward v.
McDonald, 762 F.3d 24, 28 (D.C. Cir. 2014). Private companies, in contrast, are generally liable
under the Americans with Disabilities Act, but they may also be liable under the Rehabilitation
Act if they receive “Federal financial assistance” that is “extended to such corporation . . . as a
whole.” 29 U.S.C. § 794(b)(3)(A)(i). Courts have understood the phrase “as a whole” to refer to
federal funding that serves as “general assistance” to the company, as opposed to funding
provided for a “specific purpose.” Collins v. Giving Back Fund2019 WL 3564578, at *11
(S.D.N.Y. Aug. 6, 2019) (citing S. Rep. 100-64 at *17 (1987)). A federal bailout provided to
prevent a company from going bankrupt, for example, is “general assistance,” whereas “[f]ederal
2 While the complaint is not clear as to Dickerson’s Rehabilitation Act theory, his opposition brief indicates that he intended to bring three claims: failure to accommodate, hostile work environment, and retaliation. See Dkt. 9 at 14–17.
9 aid which is limited in purpose, e.g., Job Training Partnership Act (JPTA) funds, is not
considered aid to the corporation as a whole.” S. Rep. 100-64 at *17 (1987).
Dickerson maintains that GLT is covered by the Rehabilitation Act because, during the
COVID-19 pandemic, the company accepted a Paycheck Protection Program (“PPP”) loan
authorized under the CARES Act. GLT responds that, because these loans are directed primarily
towards assisting businesses with payroll, that they do not qualify as assistance to the company
“as a whole.” Dkt. 6-1 at 20–23. Dickerson, in turn, counters that PPP loans are not solely
restricted to payroll and can be used by businesses for many other purposes. Dkt. 9 at 10–11.
This issue appears to be an issue of first impression in this Court, and the few courts that have
considered the issue have come out different ways. Compare Seklecki v. Ctr. for Disease
Control & Prevention, 635 F. Supp. 3d 15, 25 (D. Mass. 2022) (concluding that CARES Act aid
to airlines does not trigger the Rehabilitation Act because it was “assistance designated for the
particular purpose of covering payroll expenses”), with Fernandez v. Bruno Northfleet, Inc., 568
F. Supp. 3d 1294, 1300 (S.D. Fla. 2021) (concluding that allegations that a defendant received
PPP loans were sufficient to support Rehabilitation Act claims at the pleading stage). The Court
sees no need to wade into this thicket, however. Even assuming that Dickerson is correct that the
PPP created Rehabilitation Act liability, he is mistaken about when the Act applies. For the
reasons explained below, the Court concludes that Dickerson’s allegations of misconduct within
the proper time frame—that is, during the period when GLT was receiving PPP assistance—are
insufficient to state a claim.
Dickerson appears to maintain that, by applying for and accepting the PPP loan, GLT
opened the door to claims under the Rehabilitation Act not only during the time that the company
received that assistance, but also both retroactively and indefinitely going forward. See Dkt. 9 at
10 9–11, 13–27. The Court disagrees. The Rehabilitation Act applies to private entities “receiving”
federal funds. 29 U.S.C. § 794(a). In other words, the Rehabilitation Act applied to GLT “only
during the periods during which the [federal] funds [were] accepted.” Koslow v. Pennsylvania,
302 F.3d 161, 166 n.3 (3d Cir. 2002) (emphasis added); accord Garcia v. S.U.N.Y. Health Scis.
Ctr. of Brooklyn, 280 F.3d 98, 113 n.2 (2d Cir. 2001); Sharer v. Oregon, 581 F.3d 1176, 1180
(9th Cir. 2009); cf. Crandall v. Paralyzed Veterans of Am., 146 F.3d 894, 896 & n.1 (D.C. Cir.
1998). Dickerson alleges that GLT received a PPP loan on May 21, 2020, and that the loan was
forgiven “by or before April 2021.” Dkt. 1-1 at 5 (Compl. ¶ 9). Accordingly, only those events
that occurred between May 21, 2020, and April 2021, are relevant for the purposes of
Dickerson’s Rehabilitation Act claim. See DiPietro v. Archbishop Wood High Sch., 711 F. Supp.
3d 488, 493 (E.D. Pa. 2024) (concluding that “even if a PPP loan created obligations under the
[Rehabilitation Act], those obligations would cease when the government forgives the loan”).
This limitation spells trouble for Dickerson’s claims. As noted above, he seems to assert
several theories of relief under the Rehabilitation Act, contending that GLT (1) failed to provide
him with reasonable accommodations; (2) subjected him to a hostile work environment; and
(3) retaliated against him for engaging in a protected employee activity. The vast majority of the
facts alleged in the complaint to support these claims, however, occurred prior to May 21, 2020,
and his termination occurred after April 2021, meaning that those events are not actionable under
the Rehabilitation Act.
GLT points out—and the Court agrees—that the complaint contains only a handful of
relevant allegations within the controlling time frame, none of which is sufficient to state a claim
under the Rehabilitation Act. First, as to his failure-to-accommodate claim, Dickerson alleges
that “on several occasions” after March 2020, he requested the accommodation of “work
11 breaks,” but his request was denied. Dkt. 1-1 at 12–13 (Compl. ¶¶ 37, 40). In particular,
Dickerson alleges that he “engaged in verbal conversations” with GLT management, in which he
“informed” management that he was unable to attend “back-to-back meetings” and “requir[ed] a
flexible work schedule permitting Plaintiff to take leave and/or breaks during work days.” Id.
(Compl. ¶ 37); see also id. at 13–14 (Compl. ¶¶ 40–41) (same).
Under the Rehabilitation Act, however, “an employer is not required to provide an
accommodation prior to receiving medical documentation that substantiates the employee’s need
for accommodation.” Lenkiewicz v. Castro, 146 F. Supp. 3d 46, 51 (D.D.C. 2015) (quoting
Graffius v. Shinseki, 672 F. Supp. 2d 119, 130 (D.D.C. 2009)). An employee may substantiate
the requested accommodation by providing a doctor’s note, but a doctor’s note that “say[s]
nothing” about the accommodation at issue will not create an obligation for the employer.
Flemmings v. Howard Univ., 198 F.3d 857, 861–62 (D.C. Cir. 1999). Here, Dickerson alleged
that he provided GLT with a doctor’s note in March 2020, detailing five “medically necessary”
accommodations: “teleworking,” “an ergonomic workstation, limited driving, limited travel, and
a sit to stand desk.” Dkt. 1-1 at 12 (Compl. ¶ 36). As described in the complaint, however, the
doctor’s note “sa[id] nothing” about the accommodation Dickerson says he was denied (i.e.,
“work breaks”). Flemmings, 198 F.3d at 862. Nor does Dickerson allege that he was denied the
other accommodations detailed in the note during the relevant time period. Thus, taking
Dickerson’s allegations as true, GLT’s failure to provide him with “work breaks” cannot serve as
the basis for Dickerson’s failure-to-accommodate theory. And, at any rate, the Court notes that
any request for an unpredictable, “work whenever you want schedule” is likely “unreasonable as
a matter of law.” Davis v. George Washington Univ., 26 F. Supp. 3d 103, 116 (D.D.C. 2014);
see Carr v. Reno, 23 F.3d 525, 531 (D.C. Cir. 1994).
12 Second, Dickerson’s hostile-work-environment theory fares no better. Hostile work
environment claims address workplaces that are “permeated” with “discriminatory intimidation,
ridicule, and insult.” Bain v. Off. of Att’y. Gen., 648 F. Supp. 3d 19, 60 (D.D.C. 2022) (internal
quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Here, it
is far from clear that the specific incidents that Dickerson identifies would rise to this level. He
alleges, for example, that he was occasionally “mock[ed]” for wearing sunglasses indoors, he
received a “gag gift” of women’s sunglasses at an office Christmas party, and that his colleagues
remarked at the party that Dickerson was thin and that he should “get a plate of food.” Dkt. 1-1
at 9–10 (Compl. ¶¶ 28–30). But “‘[s]imple teasing’ or ‘offhand comments’ do not rise to the
level of a hostile work environment.” Ali v. Pruitt, 727 F. App’x 692, 697 (D.C. Cir. 2018)
(quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001)). And even putting this
difficulty aside, none of the specific events that he identifies occurred within the relevant
temporal window. Beyond those specific events, the complaint merely contains the conclusory
allegation that “Defendant subjected Plaintiff to and/or knowingly permitted Defendant’s
employees and/or FAA employees to subject Plaintiff to harassment, insults, and belittlement
because of and/or arising from Plaintiff’s disabilities.” Dkt. 1-1 at 14 (Compl. ¶ 42). If this
general allegation is intended to refer to events other than those discussed above, which occurred
before GLT received the PPP loan, Dickerson does not say so, and his conclusory allegation that
he was subjected to “harassment, insults, and belittlement,” id., does not suffice, see Bain, 648 F.
Supp. 3d at 59 (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)).
That leaves Plaintiff’s retaliation theory, which must also be dismissed. Dickerson
asserts that “[w]hen [he] could not attend virtual meetings due to his medically necessary
accommodation needs, Defendant subjected [him] to adverse employment actions and/or
13 treatment, including stripping [him] of more desirable workplace tasks, responsibilities, and
associated opportunities for workplace advancement.” Dkt. 1-1 at 14 (Compl. ¶ 41); see also
Dkt. 6-1 at 31–32. Less desirable assignments are—in the abstract—“a classic and widely
recognized example of forbidden retaliation.” Bain, 648 F. Supp. 3d at 56 (internal quotation
marks omitted) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006)).
But, again, Dickerson does not allege any specific dates, details, or instances of these alleged
adverse actions. These “formulaic recitation[s] of the elements of a cause of action,” devoid of
factual development, are not sufficient to state a claim under Rule 12(b)(6). Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555).
Aside from this, the only other event that occurred during the relevant time period
(between May 21, 2020, and April 2021) is a conversation with a manager who claimed that he
“could not rely on and/or trust” Dickerson to perform his duties because he was sick. Dkt. 1-1 at
17 (Compl. ¶ 47). Because this comment is not related to a request for an accommodation, and
does not, standing alone, rise to the level of hostile work environment or retaliation, it does not
support Dickerson’s Rehabilitation Act claim.
The Court will, accordingly, dismiss Count V for failure to state a claim.
C. Count IV: Family and Medical Leave Act
In Count IV of his complaint, Dickerson alleges that his termination ran afoul of the
federal Family and Medical Leave Act (“FMLA”). The FMLA provides an eligible employee
twelve weeks of unpaid leave during any twelve-month period if a “serious health condition”
prevents the employee from performing the functions of his or her job. 29 U.S.C.
§ 2612(a)(1)(D); see Gordon v. U.S. Capitol Police, 778 F.3d 158, 160 (D.C. Cir. 2015). “The
FMLA creates two types of claims: interference claims, in which an employee asserts that his
14 employer denied or otherwise interfered with his substantive rights under the Act, see 29 U.S.C.
§ 2615(a)(1), and retaliation claims, in which an employee asserts that his employer
discriminated against him because he was engaged in activity protected by the Act, see 29 U.S.C.
§ 2615(a)(1) & (2).” Thomas v. District of Columbia, 227 F. Supp. 3d 88, 98 (D.D.C. 2016)
(quoting Hopkins v. Grant Thornton Int’l, 851 F. Supp. 2d 146, 152 (D.D.C. 2012)).
“To state an FMLA interference claim, 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 v. District of
Columbia, 959 F. Supp. 2d 148, 155 (D.D.C. 2013). To state a retaliation claim, a plaintiff must
plead “(1) that he exercised rights afforded by the FMLA, (2) that he suffered an adverse
employment action, and (3) that there was a causal connection between the exercise of his rights
and the adverse employment action.” Thomas, 227 F. Supp. 3d at 99 (quoting Roseboro v.
Billington, 606 F. Supp. 2d 104, 109 (D.D.C. 2009)). Dickerson asserts both theories, see Dkt.
1-1 at 28–29 (Compl. ¶¶ 104–08), but because he fails to allege that he was experiencing a
“serious health condition” when he informed GLT he would be “out from work,” id. at 17
(Compl. ¶ 50), neither theory can survive the pending motion to dismiss.
Nowhere does the complaint allege that Dickerson suffered from a “serious health
condition,” nor does it purport to meet the statutory definition. Dickerson repeatedly references
his “disabilities,” but a “disability” under the Rehabilitation Act and a “serious health condition”
under the FMLA “are different concepts, and must be analyzed separately.” 29 C.F.R.
§ 825.702(b); see also Moskowitz v. Wash. Metro. Area Transit Auth., 2021 WL 6841843, at *9
(D.D.C. Mar. 10, 2021) (“Because the statutes simply use different standards, stating that
15 someone qualifies under the Rehabilitation Act is insufficient to enable the Court to discern
whether [their] particular condition also qualifies under the FMLA statute.”).
Under the FMLA, an illness qualifies as a “serious health condition” if it involves either
“inpatient care in a hospital, hospice, or residential medical care facility” or “continuing
treatment by a health care provider.” 29 U.S.C. § 2611(11). Dickerson does not allege that he
received inpatient care, and so he must plead that he required “continuing treatment.” FMLA
regulations in turn define “continuing treatment” as, among other things, “[i]ncapacity and
treatment,”3 which is further defined as a period of incapacity of more than three consecutive
days and either of the following:
(1) [In-person] [t]reatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider . . . ; or
(2) [In-person] [t]reatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.
29 C.F.R. § 825.115(a)(1), (2); see also id. § 825.115(a)(3) (requiring “in-person visit to a health
care provider”). The term “incapacity” is defined to mean an “inability to work, attend school or
perform other regular daily activities due to the serious health condition, treatment therefore, or
recovery therefrom.” Id. § 825.113(b). Dickerson adequately alleges the first element: the
complaint indicates that he was incapacitated for more than three days. Dkt. 1-1 at 17–18
(Compl. ¶¶ 49–52) (alleging that Dickerson was terminated four days after informing GLT “he
3 Dickerson also fails to specify which definition of “continuing treatment” would apply to him. See Dkt. 1-1 at 17–18, 29 (Compl. ¶¶ 49–54, 105); 29 C.F.R. § 825.113(a)–(e). The Court concludes that the provision governing “[i]ncapacity and treatment” is the most plausible in light of Dickerson’s description of his illnesses.
16 would be out from work arising from his illness”). He fails, however, to allege facts sufficient to
support the second element.
Dickerson alleges that, on June 7, 2021, he “suffered an episodic flare up arising from
and/or related to his disabilities for which [his] physician recommended [that he] take several
days of medical leave,” and that he “emailed [GLT] advising [the company] that he was ill
and/or recovering and that he would be out from work [due to] his illness.” Dkt. 1-1 at 17
(Compl. ¶¶ 49–50); see also id. at 29 (Compl. ¶ 105). He also alleges that since May 2019, he
has suffered from various conditions, including epileptic seizures, depression, anxiety,
intractable migraines, gastroenterological complications from an earlier surgery, and cervical and
lumbar radiculopathy and lumbar disc herniations, and he alleges that he received ongoing
treatment for some—but not all—of these conditions. Id. at 7-8 (Compl. ¶¶ 21–24). He does not
allege, however, he obtained in-person treatment from a healthcare provider “two or more times,
within 30 days of the first day of incapacity” or that he obtained in-person care “result[ing] in a
regimen of continuing treatment under the supervision of the health care provider.” 29 C.F.R.
§ 825.115(a)(1), (2). Rather, Dickerson alleges only that he “suffered an episodic flare up
arising from and/or related to his disabilities”—without identifying which of his disabilities
caused the flare up—and that his physician initially “recommended Plaintiff take several days of
medical leave.” Dkt. 1-1 at 17 (Compl. ¶ 49). Thereafter, Dickerson did not report to work, and
was terminated four days later. Because Dickerson does not adequately allege that he was
experiencing an FMLA-qualifying condition, these allegations are insufficient to withstand a
motion to dismiss. See Hodges, 959 F. Supp. 2d at 156–57 (holding that plaintiff sufficiently
pleaded he had a “serious medical condition” by specifically alleging that “he was incapacitated
17 for a period of more than three consecutive days . . . and underwent treatment at least twice in the
thirty days after that date”).
Dickerson’s failure to allege a qualifying condition also raises a second, similar
deficiency: Dickerson does not allege that he provided “adequate notice” to GLT that he
intended to take FMLA leave. Hodges, 959 F. Supp. 2d at 155. An employee seeking leave
must at least provide “sufficient information for an employer to reasonably determine whether
the FMLA may apply.” 29 C.F.R. § 825.303(b). A plaintiff need not say “magic words” or
describe their condition in detail, but merely “[c]alling in ‘sick’ without providing more
information will not be considered sufficient notice to trigger an employer’s obligations under
the Act.” Id. Notably, Dickerson does not allege that he informed GLT of his doctor’s
recommendation that he take leave. Although some of the conditions Dickerson suffered from
may have qualified, his vague email to GLT, merely stating that he was “ill and/or recovering
and that he would be out from work,” Dkt. 1-1 at 17 (Compl. ¶ 50), did not provide the company
with “a reason to differentiate the absence from ordinary sick days,” Brown v. Kan. City
Freightliner Sales, Inc., 2010 WL 3258301, at *2 (8th Cir. 2010).
To be sure, Dickerson alleges that GLT “had knowledge” of his illnesses and that his
“leave arising therefrom was directly caused by and/or related to his disabilities.” Dkt. 1-1 at 17
(Compl. ¶ 50). Dickerson plausibly alleges that GLT had general knowledge of his multiple
health issues, but GLT had no way of knowing which of these conditions rendered Dickerson
unable to work in June 2021 or, relatedly, whether the FMLA applied to his request for leave.
This is especially so because, as GLT points out, Dickerson’s most recent request for an
accommodation was over one year earlier—in March 2020. See id. at 14–15 (Compl. ¶ 43).
Dickerson does allege that, in “early 2021,” his supervisor remarked that, “because [Dickerson]
18 was sick, [he] could not rely on and/or trust that [Dickerson] could perform his work duties.” Id.
at 17 (Compl. ¶ 47). Dickerson’s response, however, was that his illnesses “in no way hindered
or prevented” him from “performing all essential functions of his job duties.” Id. In light of this,
and taking Dickerson’s allegations as true, Dickerson did not provide GLT with “sufficient
information” for it to reasonably determine whether the FMLA applied in this circumstance.
Because Dickerson does not allege the essential elements of an FMLA interference or
retaliation claim, the Court will dismiss Count IV for failure to state a claim.
D. Count II: DCSLA
Finally, Dickerson alleges in Count II that GLT violated the D.C. Sick Leave Act. Dkt.
1-1 at 24–25 (Compl. ¶¶ 74–85). The D.C. Sick Leave Act entitles eligible employees to use
accrued paid leave for physical or mental illness. D.C. Code § 32-531.02. Under the Act, an
employer may “not interfere with, restrain, or deny the exercise of, or the attempt to exercise,
any right provided by [the Act],” nor may it “discharge or discriminate in any manner against an
employee because the employee . . . uses paid leave provided under [the Act].” Id. § 32-
531.08(a), (b)(4).
As with his FMLA claim, Dickerson alleges both interference and retaliation. See Dkt. 1-
1 at 24–25 (Compl. ¶¶ 80, 82). The Court concludes that Dickerson’s interference claims,
however, are insufficient. Dickerson does not allege that he was ever denied sick leave, nor does
he allege any facts suggesting that GLT interfered with his attempts to take sick leave.
Dickerson’s conclusory assertion that GLT “tease[d], embarrass[ed], marginalize[d], and/or
belittle[d] [him] for needing, requesting, and/or taking sick leave,” id. (Compl. ¶ 80), is precisely
the type of “formulaic recitation of a cause of action’s elements” the Supreme Court has said
cannot survive a motion to dismiss, Twombly, 550 U.S. at 545.
19 Dickerson’s retaliation claim, in contrast, is sufficient to survive a motion to dismiss.
“To state a claim of retaliation under the [Sick Leave] Act, a plaintiff must allege that (1) he
engaged in statutorily protected activity, (2) his employer took an adverse personnel action
against him, and (3) a causal connection between the two exists.” Donner v. Fox News Network,
LLC, 2024 WL 1758689, at *12 (D.D.C. Apr. 24, 2024). Drawing all inferences in Dickerson’s
favor, the Court concludes that Dickerson has (just barely) alleged these three elements: (1) he
advised GLT he was “ill” and “would be out from work arising from his illness;” (2) GLT
terminated him while he “was out on sick leave;” and (3) his termination was “caused by” his
request for sick leave. Dkt. 1-1 at 17–18, 25 (Compl. ¶¶ 50–51, 81–82).
GLT argues that Dickerson has not stated a claim under the D.C. Sick Leave Act because
he does not “offer any causal connection between the June 2021 use of sick leave and
Defendant’s decision to terminate his employment.” Dkt. 10 at 27–28. Although a close
question, the Court disagrees. Dickerson was terminated four days into his sick leave, and this
“‘close temporal connection between the protected activity and the adverse action’ can give rise
to a reasonable inference of causality.” Donner, 2024 WL 1758689, at *12 (quoting Alston v.
District of Columbia, 561 F. Supp. 2d 29, 43 (D.D.C. 2008)). In addition, although Dickerson’s
allegations regarding his performance evaluations are somewhat inconsistent, see Dkt. 1-1 at 16,
17 (Compl. ¶¶ 45, 48), he does allege that shortly before he was terminated, he received an
evaluation stating that he was performing his job duties “satisfactorily and/or above satisfactory”
and that he received a raise, id at 17 (Compl. ¶ 48).
GLT also suggests that Dickerson has not stated a claim for retaliation because the stated
reason for Dickerson’s termination was “unsatisfactory job performance,” Dkt. 6-1 at 38, and
“[w]hen an employer terminates an employee after medical leave commences for reasons
20 unrelated to the sick leave, the employer does not violate the [Sick Leave Act],” Dkt. 10 at 28
(quoting Ruifang Hu v. K4 Sols., Inc., 2020 WL 1189297, at *10 (D.D.C. Mar. 12, 2020)). GLT
may eventually be able to show that Dickerson was terminated for poor performance, but at the
motion to dismiss stage, the Court must take Dickerson’s well-pleaded allegations as true.
Should this case proceed to summary judgment and/or trial, GLT will have the opportunity to
“provide[] a non-retaliatory reason for termination.” Sobot v. Clean the World Found. Inc., 2024
WL 4119389, at *6 (D.D.C. Sept. 9, 2024) (granting summary judgment to defendant on
retaliatory termination claim under the Sick Leave Act). That question, however, is for another
day.
CONCLUSION
For the foregoing reasons, GLT’s motion to dismiss is GRANTED as to Counts I and III
with prejudice and Counts IV and V without prejudice. GLT’s motion to dismiss is DENIED as
to Count II. Dickerson may file an amended complaint within 21 days of this Order. If
Dickerson does not file an amended complaint repleading his federal claims, Dickerson shall,
within 21 days of this Order, file a brief regarding whether the Court should remand his
remaining state law claim to Superior Court.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: November 15, 2024