UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, ex rel., GARY TALBOT,
Plaintiff, No. 17-cv-1997 (EGS) v. No. 19-cv-470 (EGS) NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK),
Defendant.
MEMORANDUM OPINION
Plaintiff Gary Talbot (“Mr. Talbot”) brings this action
against Defendant National Railroad Passenger Corporation
(“Amtrak”) for retaliation in violation of the False Claims Act
(“FCA”), 31 U.S.C. § 3730(h)(Count I); violation of the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, et seq.,1
(Count II); disability discrimination and hostile work
environment in violation of the D.C. Human Rights Act (“DCHRA”),
D.C. Code § 2-1402.11, et seq.,(Count III); retaliation and
hostile work environment in violation of DCHRA, D.C. Code § 2-
1402.61, et seq., (Count IV); and retaliation in violation of
the National Defense Authorization Act for Fiscal Year 2013
(“2013 NDAA”), 41 U.S.C. § 4712 (Count V). Pending before the
1 Mr. Talbot’s Amended Consolidated Complaint does not cite to any specific statutes for Counts II, III, IV, and V. See generally Am. Consol. Compl., ECF No. 27. Court is Amtrak’s Partial Motion to Dismiss Counts I, III, and
IV. Upon careful consideration of the motion, the opposition,
the reply thereto, and the applicable law, the Court GRANTS IN
PART AND DENIES IN PART Amtrak’s Partial Motion to Dismiss, and
DISMISSES Mr. Talbot’s claim for Retaliation in Violation of the
False Claims Act (Count I).
I. Background
A. Factual Background
The following facts reflect the allegations in the
operative complaint, which the Court assumes are true for the
purposes of deciding this motion and construes in Mr. Talbot’s
favor. See Brown v. Sessoms, 774 F.3d 1016, 1020 (D.C. Cir.
2014); see also Sparrow v. United Air Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000)(“[W]e must treat the complaint's
factual allegations as true.”).
Mr. Talbot, who has been wheelchair bound since 1980, began
working for Amtrak on September 5, 2011, when he became the
Program Director for Amtrak’s Americans with Disabilities Act
(“ADA”) Program. Am. Consol. Compl., ECF No. 27 at 1 ¶ 1; see
also id. at 3 ¶ 6.2 Mr. Talbot explains that his “first tasks
centered on collecting and analyzing data aimed at identifying
2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 which stations had been worked on to date, which stations were
currently being worked on, which were on the horizon, and what
Amtrak’s established ADA priorities were.” Id. at 13 ¶ 53. He
also “focused on Amtrak’s Engineering Department, which was
responsible for managing the ADA program and all associated ADA
budgets . . . .” Id. at 13 ¶ 55. “Throughout his tenure, Mr.
Talbot was a non-voting member of the Amtrak Executive Oversight
Committee” (“EOC”), which typically met on a biweekly basis and
provided oversight of Amtrak’s ADA Program. Id. at 3-4 ¶¶ 8-9.
Based on his belief that Amtrak was misusing and mis-
appropriating federal funds earmarked for ADA projects, Mr.
Talbot made several disclosures concerning what he viewed as the
mismanagement of ADA resources to various internal and external
entities. Id. at 8-9 ¶ 33. Some of those disclosures included
reporting alleged violations to the U.S. Department of
Transportation Senior Advisor for Accessible Transportation,
Special Assistant to the President and Associate Director of
Public Engagement, Amtrak’s Office of Inspector General (“OIG”),
Amtrak’s Vice President of Government Affairs and Corporate
Communications and Chair of the EOC. Amtrak’s Deputy Chief
Engineer[], Amtrak’s Chief Engineer, Amtrak’s CEO and President,
staff to U.S. Senator Tom Harkin, the National Disability Rights
Network (“NDRN”), and the Disability Rights Education and
Defense Fund (“DREDF”). Id. at 9-10 ¶¶ 35-39, 56, 86. On various
3 occasions, including as early as 2011, Mr. Talbot refused to
certify that Amtrak was appropriately spending its ADA funding
on ADA projects. Id. at 15 ¶ 67; see also id. at 27 ¶ 116.
Mr. Talbot alleges that he “faced immense and concerted
resistance to his disclosures within Amtrak, and because of his
efforts, his superiors . . . demoted him, isolated, disparaged,
and harassed him.” Id. at 10 ¶ 41. In particular, he alleges,
among other things, that: (1) in or about September 2011,
“[s]everal Amtrak Executives upbraided” him as a result of
statements he had made at a meeting with Senator Harken’s staff,
id. at 13 ¶ 56, id. at 15 ¶ 59; (2) Amtrak Executives “engaged
in heated debates and were dismissive of Mr. Talbot’s concerns
regarding Amtrak’s unsafe, noncompliant, and fraudulent
actions,” id. at 37 ¶ 187; (3) Amtrak Executives exhibited
“hostility (which included raised voices, anger, frequent
interruptions), confrontational actions, and undue scrutiny
toward him,” id. at 38 ¶ 188; (4) “Amtrak Executives also
accused Mr. Talbot of ‘sabotaging’ them during EOC meetings,”
id. at 38 ¶ 191; and (5) “Amtrak Executives commented many times
to Mr. Talbot that he was ‘too’ close to things and could not be
objective” because of his disability,” id. at 18 ¶ 192.
According to Mr. Talbot, on one occasion after speaking
with the Amtrak’s OIG, his supervisor confronted him and told
him his actions were “very risky” and that he “better be
4 careful.” Id. at 16 ¶¶ 71-72. “Nevertheless, from approximately
fall 2011 until fall 2014, over the course of multiple meetings
and numerous lengthy conversations, Mr. Talbot continued to
provide the Amtrak OIG with his research and observations on
Amtrak’s ADA spending violations . . . .” Id. at 16 ¶ 75.
After notifying the Federal Railroad Administration
(“FRA”)that he disagreed with the “Narrative” Amtrak had
submitted regarding one of its station’s platforms and
submitting two memorandums to Amtrak’s Chief Engineer, id. at
27-28 ¶¶ 118-21; Mr. Talbot states “Amtrak’s retaliation was
swift and relentless. Id. at 28 ¶ 122. “On December 30, 2015,
[Mr. Talbot’s supervisor] notified Mr. Talbot that he was
issuing [him] a ‘1’ out of ‘4’ on his performance appraisal (the
lowest possible rating) and plac[ing] him on a Performance
Improvement Plan (‘PIP’).” Id.
In August 2016, an Amtrak executive informed Mr. Talbot
that his plans for the ADA program no longer included Mr.
Talbot, and Mr. Talbot alleges that Amtrak “secretly demoted”
him from ADA Program Director to a “Manager IV” after claiming
that the Engineering Department was undergoing a reorganization.
Id. at 32 ¶ 142. In December 2016, Mr. Talbot’s new supervisor
issued him a “1” on his annual performance appraisal and placed
him on a second PIP. Id. at 32 ¶ 148. Thereafter, “[i]n February
2017, Amtrak took away Mr. Talbot’s private office and instead
5 relocated him to a cubicle.” Id. at 33 ¶ 149. On September 14,
2017, Mr. Talbot “submitted his response to the second PIP, and
explained his concerns regarding Amtrak’s [ADA] violations” and
provided a copy to several of Amtrak’s executives noting his
“efforts to enforce ADA compliance and stop the gross misuse of
ADA funds.” Id. at 33 ¶¶ 153-55.
In September 2017, Mr. Talbot “submitted his Statement of
Material Evidence and Information [to] the U.S. Department of
Justice” and “filed his Qui Tam Complaint for Violations of the
federal False Claims Act and for Unlawful Retaliation Against
Relator under seal.” Id. at 34 ¶ 158. Throughout this time, Mr.
Talbot alleges that Amtrak began “pressuring [him] to accept a
Voluntary Separation Incentive Package (‘VSIP’), under the guise
of its reorganization effort.” Id. at 34 ¶ 159.
In December 2017, Mr. Talbot received a positive
performance evaluation but, due to ongoing health issues, he
went on FMLA leave which was set to expire in March 2018. Id. at
36 ¶¶ 170-72. However, on January 11, 2018, Amtrak informed Mr.
Talbot that his employment was terminated. Id. at 36 ¶ 173. Mr.
Talbot states that he believes he “was the only person who was
terminated within Amtrak's ADA Department” and, “[t]o his
knowledge, [he] was the only person who made well-known his
disability.” Id. at 36 ¶¶ 177-78.
6 B. Procedural History
On September 27, 2017, Mr. Talbot filed his initial
complaint, under seal, alleging violations of the FCA and
retaliation under the FCA. See Compl., ECF No. 1. On September
17, 2018, the Government provided notice that it was declining
intervention, see Gov’t’s Notice, ECF No. 5, and the action was
ordered unsealed on November 7, 2018. See Min. Order of Oct. 23,
2018. Mr. Talbot filed an Amended Complaint on January 3, 2019
alleging retaliation in violation of the FCA, violations of the
FMLA, disability discrimination in violation of the DCHRA, and
retaliation in violation of the DCHRA. See Am. Compl., ECF No.
8. On February 1, 2019, the Government consented to the
dismissal of Mr. Talbot’s claim of violations of the FCA. See
Gov’t’s Consent Notice, ECF No. 13. Amtrak filed a Partial
Motion to Dismiss Amended Complaint on February 14, 2019, see
Mot. to Dismiss Am. Compl., ECF No. 14, and on February 28,
2019, Mr. Talbot filed his Opposition to Partial Motion to
Dismiss Amended Complaint, see Pl.’s Opp’n to Mot. to Dismiss
Am. Compl., ECF No. 16. On March 13, 2019, Amtrak filed its
Reply to Opposition to Partial Motion to Dismiss Amended
Complaint. See Def.’s Reply to Pl’s Opp’n to Mot. to Dismiss Am.
Compl., ECF No. 19. On March 25, 2019, the Court ordered a
related case, Civil Case Number 19-470, also filed by Mr.
Talbot, to be consolidated with this case. See Min. Order of
7 Mar. 25, 2019. Amtrak refiled its Motion to Dismiss from the now
closed Civil Case Number 19-470 docket onto the docket for
current docket on April 4, 2019. See Def.’s Mot. to Dismiss, ECF
No. 23. On April 18, 2019, Mr. Talbot filed his Opposition to
Motion to Dismiss, see Pl.’s Opp’n to Mot. to Dismiss, ECF No.
24, and Amtrak filed its Reply to Opposition to Motion to
Dismiss on May 2, 2019, see Def.’s Reply to Opp’n to Mot. to
Dismiss, ECF. No. 26. To consolidate all claims into one
complaint, the Court denied Amtrak’s February 14, 2019 Partial
Motion to Dismiss Amended Complaint and ordered Mr. Talbot to
file an amended complaint addressing any deficiencies identified
by Amtrak. See Min. Order of May 23, 2019.
On June 24, 2019, Mr. Talbot filed the operative Amended
Consolidated Compliant, see Am. Consol. Compl., ECF No. 27, to
which Amtrak filed its Partial Motion to Dismiss Am. Consol.
Compl. on July 22, 2019, see Def.’s Partial Mot. to Dismiss, ECF
No. 30 (“Def.’s Mot.”). Mr. Talbot filed his Opposition to
Partial Motion to Dismiss Amended Consolidated Compliant on
August 19, 2019, see Pl.’s Opp’n to Partial Mot. to Dismiss Am.
Consol. Compl., ECF No. 32 (“Pl.’s Opp’n”), and Amtrak filed its
Consolidated Compliant on September 10, 2019, see Reply in
Support of its Mot. to Dismiss, ECF No. 35 (“Def.’s Reply”).
The motion is ripe and ready for the Court’s adjudication.
8 II. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court will
dismiss a claim if the complaint fails to plead “enough facts to
state a claim for relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), “in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests,” Twombly,
550 U.S. at 555 (citation and internal quotation marks omitted).
A complaint survives a Rule 12(b)(6) motion only if it
“contain[s] 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 Twombly,
550 U.S. at 570). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
[a] reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A complaint alleging facts which are
“‘merely consistent with’ a defendant’s liability . . . ‘stops
short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
The “doors of discovery” should not be opened for a “plaintiff
9 armed with nothing more than conclusions.” Id. at 679.
III. Analysis
A. Mr. Talbot cannot state claim for relief against Amtrak under the False Claims Act.
Amtrak argues that it cannot be sued under the provisions
of the FCA because the Amtrak Reform and Accountability Act of
1997 (“ARAA”) plainly states that Amtrak “shall not be subject
to title 31, ”which includes the FCA provisions at issue. Def.’s
Mot., ECF No. 30-1 at 6; see also 49 U.S.C. § 24301(a)(3).
Amtrak also points to mandatory authority articulated in U.S. ex
rel. Totten v. Bombardier Corp., where the Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”) indicated that
the exclusion of Amtrak from Title 31 meant that Amtrak was not
“subject to” the False Claims Act, see 286 F.3d 542, 548 (D.C.
Cir. 2002), as well as persuasive authority set forth in Harasek
v. Nat'l R.R. Passenger Corp. (“Amtrak”), 334 F. Supp. 3d 309,
310 (D.D.C. 2018), where Judge Moss dismissed an Amtrak
employee’s FCA claims against Amtrak. Mr. Talbot briefly
responds that the FCA should be construed broadly since its
purpose is to “protect the funds and property of the Government
from fraudulent claims.” Pl.’s Opp’n, ECF No. 32 at 4.
The ARAA states, in relevant part, that “Amtrak . . . is
not a department, agency, or instrumentality of the United
States Government, and shall not be subject to title 31.” 49
10 U.S.C. § 24301(a)(3). In Ex. rel. Totten, the D.C. Circuit held
that the FCA applies to third parties who contract with Amtrak,
and in doing so recognized that it would be the “more intuitive
understanding of the [ARAA] . . . [to] read it as preventing
Amtrak from being directly regulated by the various provisions
in title 31, for example, by being sued under the False Claims
Act.” 286 F.3d at 548. Judge Moss recently applied this
reasoning to hold that “the inescapable import of the [D.C.
Circuit’s] reasoning [in Totten] is that [the ARAA] precludes
Amtrak itself from being ‘subject to’ the FCA.” Harasek, 334 F.
Supp. 3d at 313.
Harasek dealt with a claim analogous to the one presented
here. In Harasek, the plaintiff, who had worked as an “Inspector
for the Amtrak Police Department,” alleged that Amtrak “had
subjected her to a series of adverse employment actions in
retaliation” for reporting her concerns that a third-party
contractor had submitted fraudulent claims to Amtrak for work it
allegedly had not completed. 334 F. Supp. 3d at 310. The
plaintiff sought damages, attorneys’ fees, and any other relief
provided by the FCA from Amtrak. See id. at 312. The Court
concluded that the plaintiff could not state a claim for relief
under the FCA against Amtrak because “[w]hile the FCA generally
imposes ‘[l]iability for certain acts’ committed by ‘any person’
defrauding the federal government, 31 U.S.C. § 3729, the [ARAA]
11 carves out a specific exception for Amtrak.” Id. at 313. In this
case, Mr. Talbot, similar to the plaintiff in Harasek, was an
Amtrak employee who claims to have been subject to retaliation
due to his reporting of alleged fraudulent activity. See
generally Am. Consol. Compl., ECF No. 27. While he does not
specify the relief he seeks are pursuant to the FCA, he seeks
compensatory and pecuniary damages, attorneys fees and punitive
damages, among other things, from Amtrak. Id. at 42. As there
have been no changes to the statute or legal precedent in this
Circuit, and in view of Judge Moss’ persuasive opinion, the
Court agrees that Amtrak cannot be sued under the FCA.
Accordingly, the Court GRANTS Amtrak’s Motion to Dismiss as
to his claim that he was retaliated against in violation of the
FCA (Count I).
B. Mr. Talbot has plead plausible claims of discrimination on the basis of a disability, retaliation, and hostile work environment under the DCHRA.
Next, Amtrak argues that the Mr. Talbot’s disability
discrimination and retaliation claims under the DCHRA should be
dismissed “because most of the alleged adverse actions are time
barred, and for those remaining, [Mr. Talbot] has not pled facts
that make it plausible that the actions were based on his
disability.” Def.’s Mot., ECF No. 30-1 at 10. Mr. Talbot argues
that he is making two types of claims: (1) a disparate treatment
12 claim based on his January 2018 termination which he asserts was
timely filed; and (2) a hostile work environment claim based on
his January 2018 termination as well as his allegations
concerning his demotion, poor performance reviews, PIPs, and
office relocation. See Pl.’s Opp’n, ECF No. 32 at 5. In Reply,
Amtrak argues that Mr. Talbot conceded that his disparate
treatment claim was time barred for acts prior to his
termination when he argued “that the allegations concerning
events occurring before January 3, 2018 are relevant to his
hostile environment claim, not his disparate treatment claim.”
Def.’s Reply, ECF No. 35 at 4.
a. Amtrak’s alleged actions prior to Mr. Talbot’s Termination are Time Barred.
To be actionable under the DCHRA, the plaintiff must file a
claim “within one year of the unlawful discriminatory act, or
the discovery thereof . . . .” D.C. Code § 2-1403.16(a). Mr.
Talbot filed his initial complaint in this action on September
27, 2017 alleging two counts: “Violations of The Federal False
Claims Act” (Count I) and “Retaliation Based on Protected
Activity” relating to his claim under the FCA (Count II). See
Compl., ECF No. 1 at 25. According his Amended Consolidated
Complaint, Mr. Talbot was terminated on January 25, 2018. See
Am. Consol. Compl., ECF No. 27 at 36 ¶ 173. Mr. Talbot filed his
first Amended Complaint, alleging “Disability Discrimination”
13 and “Retaliation,” both in violation of the DCHRA, on January 3,
2019. See Am. Compl., ECF No. 8 at 35-36. With the exception of
his termination, all of the other discriminatory acts Mr. Talbot
alleges would have taken place more than a year before he filed
his claim under the DCHRA. As Amtrak points out, see Def.’s
Reply, ECF No. 35 at 4, Mr. Talbot does not seem to dispute that
his termination is the only discriminatory action to take place
within the one-year window for DCHRA claims. See Pl’s Opp’n, ECF
No. 32 at 4-5. The Court therefore finds that Mr. Talbot’s
termination is the only discrete act that falls within the one-
year statute of limitations window and timely for the purpose of
adjudicating Mr. Talbot’s disability discrimination and
retaliation claims under DCHRA. See Akonji v. Unity Healthcare,
Inc., 517 F. Supp. 2d 83, 91 (D.D.C. 2007) (holding that the
court would only review those discrete acts that fell within the
statutory time limit).
b. Mr. Talbot provided sufficient facts to state a claim that he was terminated because of his disability in violation of DCHRA.
The DCHRA prohibits employers from terminating or otherwise
discriminating against any individual on the basis of a
disability. See D.C. Code § 2-1402.11(a)(1). When evaluating
claims of discrimination on the basis of a disability, courts in
this Circuit “look[] to decisions construing the [Americans with
Disabilities Act (“ADA”)] for guidance when applying the DCHRA.”
14 Ball v. George Washington Univ., No. 17-CV-507 (DLF), 2019 WL
1453358, at *8 (D.D.C. Mar. 31, 2019) (citing Hunt v. District
of Columbia, 66 A.3d 987, 990 (D.C. 2013). To survive a motion
to dismiss, Mr. Talbot must allege “two essential elements:
(i)[he] suffered an adverse employment action (ii) because of
[his] race, color, religion, sex, national origin, age, or
disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.
Cir. 2008). “To prevail on a motion to dismiss, it is not
necessary to establish a prima facie case.” Greer v. Bd. of Trs.
of the Univ. of the D.C., 113 F. Supp. 3d 297, 310 (D.D.C. 2015)
(citing Gordon v. U.S. Capitol Police, 778 F.3d 158, 162 (D.C.
Cir. 2015)). Nonetheless, Mr. Talbot “must allege facts that, if
true, would establish the elements of each claim.” Id. (internal
quotation marks and citation omitted).
Amtrak argues that Mr. Talbot has alleged no facts from
which to conclude that he was terminated because of his
disability. Def.’s Mot., ECF No. 30-1 at 12. Rather, Mr. Talbot
has alleged that he was terminated “because he disclosed
Amtrak’s alleged misuse of federal grant funds earmarked for
bringing facilities and stations into compliance with the ADA.”
Id. at 13. Mr. Talbot argues that the fact that his allegations
pertain to his efforts to bring Amtrak into compliance with ADA
requirements does not “preclude the conclusion that Amtrak
lacked any other unlawful motive” in dismissing him. Pl.’s
15 Opp’n, ECF No. 32 at 5. He further argues that he has satisfied
his burden at the motion to dismiss stage because his
allegations “describe[s] Amtrak’s culture ranging from outright
antagonism to dismissiveness and apathy towards persons with
disabilities—including towards himself.” Pl.’s Opp’n, ECF No. 32
at 6 (citing Am. Consol. Compl., ECF No. 27 at 6 ¶ 25
(describing the creation of the ADA); id. at 13 ¶ 55 (describing
Mr. Talbot’s responsibilities while working for Amtrak); id. at
15 ¶ 64 (noting the Amtrak’s rejection of Mr. Talbot’s
construction recommendation); id. at 15 ¶ 66 (requesting more
information before certifying that Amtrak was compliant with
certain ADA requirements); id. at 18 ¶¶ 82-85 (describing issues
surrounding passenger access); id. at 19 ¶ 89 (describing issues
surrounding passenger access); id. at 36-37 ¶ 179 (noting a
letter written on Mr. Talbot’s behalf after his termination).
Giving Mr. Talbot the benefit of all inferences that can be
derived from the alleged facts, see Kowal v. MCI Comm’cns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994), the Court is persuaded that
he has sufficiently alleged that he was terminated because of
his disability. Mr. Talbot alleges that he is disabled within
the meaning of the DCHRA and that Amtrak discriminated against
him on the basis of his disability when it removed him from his
job. Am. Consol. Compl., ECF No 27 at 40 ¶¶ 203, 204. In his
Amended Consolidated Complaint, Mr. Talbot describes his efforts
16 to bring Amtrak into compliance with ADA requirements and
Amtrak’s resistance to those efforts during his employment with
Amtrak. See generally id. Mr. Talbot also alleges statements
made to him from which the reasonable inference is that Amtrak
sought to terminate him because his disability impaired his
judgment: he alleges that on numerous occasions Amtrak
Executives told him that “he was ‘too’ close to things and could
not be objective. The ‘too’ close comments related to Mr. Talbot
having a disability and therefore not being able to be
‘reasonable’ on the various issues that he raised.” Id. at 38 ¶
192. Accordingly, Mr. Talbot has sufficiently alleged that he
was terminated because of his disability, given the minimal
burden at this stage of the proceedings. Jackson v. Dist. Hosp.
Partners, L.P., No. CV 18-1978 (ABJ), 2019 WL 3502389, at *5
(D.D.C. Aug. 1, 2019) (finding the plaintiff to have stated a
disparate treatment claim based on his allegations that he was
suspended and terminated from his position based on his race,
religion and sex).
c. Mr. Talbot alleged sufficient facts to state a claim that his termination was in retaliation for participating in a protected activity in violation of the DCHRA.
In Count IV, Mr. Talbot alleges that: (1) his “complaints
regarding the treatment of disabled persons and Amtrak’s
discriminatory acts towards disabled customers are protected
17 under the DCHRA”; and (2) “Amtrak’s creation of a hostile work
environment and removal of Mr. Talbot constitute unlawful
retaliation for his protected oppositional conduct.” Am. Consol.
Compl., ECF No 27 at 40 ¶ 207-08. Amtrak argues that this claim
fails for three reasons: (1) he “does not allege that he engaged
in protected activity”; (2) he not allege “that such protected
activity was the reason for his termination”; and (3) he has
alleged no “facts connecting [his] advocacy on behalf of
Amtrak’s passengers with disabilities and his termination.”
Def.’s Mot., ECF No. 30-1 at 18, 20. Mr. Talbot responds that
his disclosures were protected activities because “[c]ourts may
consider violations of different statutes . . . [and] may
conclude that a defendant violated both statutes based on the
same facts.” Pl.’s Opp’n, ECF No. 32 at 9-10. Amtrak replies
that complaints about alleged violations of construction
regulations established by the ADA are not covered by the DCHRA.
see Def.’s Reply, ECF No. 35 at 6-7.
To state a claim for retaliation under the DCHRA, Mr.
Talbot must allege “(1) that [he] engaged in a protected
activity; (2) that [he] was subjected to an adverse action by
[his] employer; and (3) that a causal link existed between the
adverse employment action and the protected activity.” Akonji,
517 F. Supp. 2d at 94 (citing Broderick v. Donaldson, 437 F.3d
1226, 1231–32 (D.C. Cir. 2006)). “To prevail on a motion to
18 dismiss, it is not necessary to establish a prima facie case.”
Greer, 113 F. Supp. 3d at 310. Nonetheless, Mr. Talbot “must
allege facts that, if true, would establish the elements of each
claim.” Id. (internal quotation marks and citation omitted).
1. Mr. Talbot sufficiently alleged that he engaged in activity protected by the DCHRA.
“To constitute ‘protected activity,’ the complaint must
allege an employment practice that is prohibited by the DCHRA.”
Vogel v. D.C. Office of Planning, 944 A.2d 456, 464 (D.C. 2008).
“To make out a claim for retaliation, the plaintiff need only
prove [he] had a reasonable good faith belief that the practice
[he] opposed was unlawful under the DCHRA, not that it actually
violated the Act.” Howard University v. Green, 652 A.2d 41, 46
(D.C. 1994). “Although in a retaliation action a plaintiff is
not required to prove that the activity which [he] opposed
constituted an actual violation of the Act, [he] nonetheless
must voice [his] complaint about, or oppose, the allegedly
unlawful activity in order to prevail on [his] claim.” Id.
derived from the alleged facts, see Kowal, 16 F.3d at 1276, the
Court is persuaded that he has sufficiently alleged that he
engaged in activity protected by the DCHRA. The “DCHRA makes it
unlawful ‘to [in the District of Columbia] deny, directly or
indirectly, any person the full and equal enjoyment of the
19 goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodations’ based on
the person's actual or perceived disability.” Equal Rights
Center v. Hilton Hotels Corp., Civil Action No. 07–1528 (JR),
2009 WL 6067336 at * 8 (D.D.C. Mar. 25, 2009) (citing D.C. Code
§ 2–1402.31(a)); see also 42 U.S.C. 12131(1)(C) (defining Amtrak
as a public entity within the meaning of the ADA); 42 U.S.C.
12162(e)(2)(A) (ii)(1) (“All stations in the intercity rail
transportation system shall be made readily accessible to and
usable by individuals with disabilities,” by July 26, 2010.).
Amtrak argues that although Mr. Talbot alleges that he
engaged in protected activity when he made “complaints regarding
the treatment of disabled persons and Amtrak’s discriminatory
acts towards disabled customers are protected under the DCHRA,”
Def.’s Mot., ECF No. 30-1 at 18 (quoting Am. Consol. Compl., ECF
No. 27 at 40 ¶ 207, his “complaints were actually about his
perception that Amtrak misused funds earmarked for ADA
compliance projects, not that Amtrak was discriminating against
the disabled,” id. at 19. But Amtrak’s argument is beside the
point. Mr. Talbot has alleged that he observed and reported to
Amtrak Executives non-ADA compliant facilities at, among other
places in Washington D.C.,3 certain train platforms at Union
3 The Court does not address, and expresses no opinion on, whether Amtrak Headquarters and the Government Affairs Office in 20 Station. See Am. Consol. Compl. at 29 ¶ 124 (alleging that Mr.
Talbot rejected Amtrak’s plan for a new platform because it was
not ADA-compliant); id. at 29 ¶ 125 (alleging that Mr. Talbot
disclosed this non-compliance to, among others, the EOC); id. at
29 ¶ 127 (alleging that he informed numerous Amtrak Executives
that the platform plan was illegal); id. at 33 ¶¶ 154, 156
(alleging that in his response to his second PIP, he addressed
the non-compliance of the Union Station platform). Mr. Talbot
has satisfied his minimal burden at this stage: he has a
reasonable good faith basis to believe that non-ADA compliant
platforms at Union Station are unlawful under the DCHRA and he
has alleged numerous instances of complaining to numerous Amtrak
Executives about the non-compliance. See Green, 652 A.2d at 46.
2. Mr. Talbot has sufficiently alleged causation.
Amtrak makes two arguments relating to the causation
element. First, Amtrak argues that Mr. Talbot’s retaliation
claim should be dismissed because he has not alleged who made
the decision about terminating his employment nor whether that
person knew about his complaints of Amtrak’s failure to comply
with the ADA. Def.’s Mot., ECF No. 301- at 20. However, at the
prima facie stage, it is not necessary for the plaintiff to
allege that the supervisor who took the adverse employment
Washington, D.C. fall within the purview of the DCHRA as the parties have not briefed that issue. 21 action had knowledge of the plaintiff’s complaint. Hamilton v.
Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012) (noting that “at
the prima facie stage the fact that [the plaintiff] submitted
the complaint to the agency is sufficient”); see also Bartlette
v. Hyatt Regency, 208 F. Supp. 3d 311, 323 (D.D.C. 2016) (noting
that defendant’s argument that plaintiff’s complaint was
“deficient because it does not allege that the supervisors
involved in the discrimination complaints were the same
supervisors who engaged in the retaliatory conduct” failed
“because the law does not require such a showing” at the motion
to dismiss stage). Accordingly, Amtrak’s argument is unavailing.
Amtrak’s second causation argument, that Mr. Talbot’s
Amended Consolidated Complaint contains no “facts connecting
[Mr. Talbot’s] advocacy on behalf of Amtrak’s passengers with
disabilities and his termination, Def.’s Mot., ECF No. 30-1 at
20, is equally unavailing. “Temporal proximity is not required
to state a retaliation claim, as it ‘neither demonstrates
causality conclusively, nor eliminates it conclusively.’”
Bartlette, 208 F. Supp. 3d at 323 (citing Bryant v. Pepco, 730
F. Supp. 2d 25, 32 (D.D.C. 2010) (citations and alterations
omitted)). Rather, “[i]t is sufficient at this stage of the
proceedings for a plaintiff to plead causation ‘simply by
alleging that the adverse actions were caused by his protected
activity.’ Id. Here, Mr. Talbot alleges that he was removed from
22 his position in “retaliation for his protected oppositional
conduct.” Am. Consol. Compl., ECF No. 27 at 40 ¶ 208.
For these reasons, Mr. Talbot has stated a plausible claim
for retaliation in violation of the DCHRA. Accordingly, Amtrak’s
Motion to Dismiss as to this claim (Count IV) is DENIED.
d. Mr. Talbot alleged sufficient facts to state a claim that he was subjected to a hostile work environment in violation of the DCHRA.
Although Mr. Talbot’s Amended Consolidated Complaint does
not contain a separate count for hostile work environment, in
Count III, he alleges that “Amtrak discriminated against [him]
on the basis of disability when it subjected him to a hostile
work environment that culminated in his removal,” Am. Consol.
Compl., ECF No. 27 at 40 ¶ 204; and in Count IV, he alleges that
“Amtrak’s creation of a hostile work environment and removal of
[him] constitute unlawful retaliation for his protected
oppositional conduct,” id. at 40 ¶ 208.
To state a hostile work environment claim, Mr. Talbot must
allege “that [his] employer subjected [him] to discriminatory
intimidation, ridicule, and insult that is sufficiently severe
or pervasive to alter the conditions of [his] employment and
create an abusive working environment.” Baloch, 550 F.3d at 1201
(internal quotation marks and citations omitted). “Although a
plaintiff need not plead a prima facie case of hostile work
environment in the complaint, the alleged facts must support
23 such a claim.” McKeithan v. Boarman, 803 F. Supp. 2d 63, 69
(D.D.C. 2011) (internal quotation marks and citation omitted).
In determining whether Mr. Talbot has alleged facts to support
his claim, the Court must evaluate “the totality of the
circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it
interferes with an employee’s work performance.” Baloch, 550
F.3d at 1201; see also Baird v. Gotbaum, 792 F.3d 166, 168 (D.C.
Cir. 2015)(quoting Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 115(2002)(“A hostile environment consists of several
individual acts that ‘may not be actionable on [their] own’ but
become actionable due to their ‘cumulative effect.’”).
Furthermore, “[t]he constituent acts must be ‘adequately linked’
such that they form ‘a coherent hostile environment claim.’”
Baird, 792 F.3d at 168–69 (quoting Baird v. Gotbaum, 662 F.3d
1246, 1251 (D.C. Cir. 2011)). Finally, “a hostile work
environment can amount to retaliation under Title VII.” Baird,
662 F.3d at 1250 (quoting Hussain v. Nicholson, 435 F.3d 359,
366 (D.C. Cir. 2006)); see also Gaujacq v. EDF, Inc., 601 F.3d
565, 577 (D.C. Cir. 2010)(applying Title VII retaliation burden
shifting framework to DCHRA retaliation claim).
Amtrak argues that the incidents supporting Mr. Talbot’s
hostile work environment claim are not sufficiently related
because: (1) they “are not all the same type of employment
24 action”; (2) “were not carried out by the same person”; and (3)
there are lengthy temporal gaps between the events. Def.’s Mot.,
ECF No. 30-1 at 16. Amtrak also argues that Mr. Talbot has not
alleged that these incidents occurred because of his disability.
Id. at 17. Mr. Talbot responds that he has “sufficiently
alleged—at the motion to dismiss stage—sufficiently related
incidents that comprise his hostile work environment claim.”
Pl.’s Opp’n, ECF No. 32 at 6. Amtrak replies that Mr. Talbot’s
has not plead a sufficient claim of hostile work environment and
notes that Mr. Talbot was employed by Amtrak for seven years and
“only describe[s] with any specificity six events over the
course of three years that he considers to have been hostile
acts . . . .” Def.’s Reply, ECF No. 35 at 5.
In support of his hostile work environment claim, Mr.
Talbot alleges the following: (1) he “faced immense and
concerted resistance to his disclosures within Amtrak, and
because of his efforts, his superiors . . . demoted him,
isolated, disparaged, and harassed him,” Am. Consol. Compl., ECF
No. 27 at 10 ¶ 41; (2) in or about September 2011, “[s]everal
Amtrak Executives upbraided” him as a result of statements he
had made at a meeting with Senator Harken’s staff, id. at 13 ¶
56, id. at 15 ¶ 59; (3) Amtrak Executives “engaged in heated
debates and were dismissive of Mr. Talbot’s concerns regarding
Amtrak’s unsafe, noncompliant, and fraudulent actions, id. at 37
25 ¶ 187; (4) Amtrak Executives exhibited “hostility (which
included raised voices, anger, frequent interruptions),
confrontational actions, and undue scrutiny toward him,” id. at
38 ¶ 188; (5) “many acts of hostility occurred during various
EOC meetings in Washington, D.C., or during other meetings with
Amtrak executives in Washington, D.C.,” id. at 38 ¶ 189; (6) a
supervisor “called Mr. Talbot into his Washington, D.C. office
alone and belittled him for approximately 20 minutes,” id. at 38
¶ 190; (7) “Amtrak Executives also accused Mr. Talbot of
‘sabotaging’ them during EOC meetings,” id. at 38 ¶ 191; (8)
“Amtrak Executives commented many times to Mr. Talbot that he
was ‘too’ close to things and could not be objective” because of
his disability,” id. at 18 ¶ 192; (9) he was subjected to
unnecessary scrutiny and allegations of conflict of interest,
id. at 30-31 ¶¶ 133-19; and (10) he was subjected to the
following adverse actions: (i) demotion, id. at 31-32 ¶¶ 142-
146; (ii) negative performance reviews and PIPs, id. at 28 ¶
122, id. at 32 ¶ 148; (iii) relocation from office to cubicle,
id. at 33 ¶ 149; and (iv) termination, id. at 33 ¶ 151. Mr.
Talbot argues that these incidents are not isolated because the
EOC meetings occurred on a biweekly basis, that he has
identified the bad actors by name in his complaint, and that
they “reflect a concerted effort to discredit, intimidate,
frustrate, control, and exclude him.” Pl.’s Opp’n, ECF No. 32 at
26 9.
derived from the alleged facts, see Kowal, 16 F.3d at 1276, the
Court is persuaded that he has sufficiently alleged that he was
subjected to a hostile work environment. Contrary to Amtrak’s
argument that he has alleged only five discrete acts over a
period of more than four years, Mr. Talbot has alleged, among
other things, that throughout his employment with Amtrak, he was
treated with hostility; he was isolated, disparaged, and
harassed; he was subjected to confrontational actions and undue
scrutiny; and his concerns were dismissed. While Mr. Talbot has
not provided detailed facts supporting all of these allegations,
he has identified specific incidents which he alleges constitute
a hostile work environment. And contrary to Amtrak’s argument
that the acts are not sufficiently related, they do “form a
coherent hostile environment claim” because they allege acts
consistent with creation of a retaliatory hostile work
environment in response to Mr. Talbot’s protected activity as
well as a hostile work environment based on Mr. Talbot’s
disability. Mr. Talbot has alleged that he was subjected to
these actions both because of his disability and in retaliation
for protected conduct pursuant to the DCHRA. At this juncture,
the Court cannot conclude that Mr. Talbot’s hostile work
environment claims should be dismissed, but it is his burden to
27 put forward evidence in support of his claims as the case moves
forward. See Hutchinson v. Holder, 668 F. Supp 2d. 201, 219
(D.D.C. 2009) (denying motion to dismiss hostile work
environment claim where plaintiff alleges she was “humiliated,
falsely accused, and denigrated over a three-year period” and
where her “complaint lists dozens of incidents that she alleges
constituted a hostile working environment”); Bartlette, 208 F.
Supp. 3d at 326-27 (declining to dismiss plaintiff’s hostile
work environment claim even though he “faces an uphill battle”
based on his allegations of sexual harassment, constant denial
of breaks, and constant unwarranted disciplinary action).
Accordingly, the Court DENIES Amtrak’s Motion to Dismiss as
to Mr. Talbot’s hostile work environment claims in Counts III
and IV of his Amended Consolidated Complaint.
28 IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
AND DENIES IN PART Amtrak’s Partial Motion to Dismiss and
DISMISSES Mr. Talbot’s claim for Retaliation in Violation of the
False Claims Act (Count I). Mr. Talbot may proceed on his
remaining claims in Counts II through V. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge March 11, 2020