Short v. Dc Department of Corrections

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”), 42 U.S.C. § 12101, 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 18 U.S.C. § 1343, 18 U.S.C. § 1962, and D.C. Code
§ 23-542. 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. Id. at 15. For example, Short claims that some employees treated her
like a “dog” and asked her to “fetch” things for them. See id. 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 id. 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.” Id. at
15. Short felt “de-humanized” by these comments. See id. 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 id. at 20 (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, id. at 9, also alleges that OAG employees “lied” about being aware
of her “medical status,” id. at 12. All told, Short claims that these actions detrimentally impacted
her “quality of life.” Id. at 15.
Short left OAG in August of 2021. Id. at 12. She alleges that, prior to leaving, she
participated in an exit interview in which an OAG employee asked her why she was leaving. Id.
at 21. Short explained that, although OAG “was a great place to work,” there were “limited
opportunities for non-attorneys.” Id. Short alleges that her explanation offended her interviewer,
who then threatened to “reclassify [Short’s] position to a 14.” Id. The complaint does not
meaningfully explain what that means, or the consequences it would entail.
Upon leaving OAG, Short began working at DOES. Id. at 7. 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 id. Despite these threats, Short apparently worked at DOES for over a year.
See id. at 12, 46. At some point during that period, Short asked for permission to “work a
modified work week,” but it seems her request was denied. See id. at 9. 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.” Id. at 10. And she alleges that DOES subjected
her to a “discriminatory policy.” Id. at 28.
On November 1, 2022, DOES placed Short on paid administrative leave “pending an
investigation.” Id. at 10, 12. The record does not reveal—and Short apparently does not know—
the details of the alleged investigation. See id. at 12.
On December 17, Short filed a charge of discrimination with the Equal Opportunity
Commission (“EEOC”). Id. at 28. 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.” Id. The EEOC dismissed her
charge, finding that “the facts alleged . . . fail to state a claim under any laws enforced by
EEOC.” Id. at 27. Short voluntarily resigned from her position at DOES in February of 2023.
See id. at 44.
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. § 1343;
18 U.S.C. §§ 1961–68; and D.C. Code § 23-542. Id. at 3. She also contends that she was
discriminated against on the basis of sex, religion, and disability. Id. at 4.
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 id. 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, 551 U.S. 89, 93 (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, 292 F.3d
235, 242 (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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 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, 550 U.S. at 555 (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, 556 U.S. at 678. A court need not accept a
plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of legal
conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555. 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., 116 F. Supp. 2d 131, 135 (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., 117 F.3d 621, 624 (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, 270 F. Supp. 3d 125, 133 (D.D.C. 2017)
(quoting Erickson, 551 U.S. at 94), a court will, when necessary, “examine other pleadings to
understand the nature and basis of” a plaintiff’s pro se claims, Gray v. Poole, 275 F.3d 1113,
1115 (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, 567 F.3d 672,
681–82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 679). “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., 113 F. Supp.
3d 297, 304 (D.D.C. 2015); see also Koch v. Walter, 935 F. Supp. 2d 164, 171 (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, 859 F.3d 1, 5 (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., 892 F. Supp. 2d 315, 319 (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., 893 F. Supp. 2d 243, 247 (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, 631 F. Supp. 2d 48, 54 (D.D.C. 2009) (same for OAG); Perez v.
D.C. Dep’t of Emp. Servs., 305 F. Supp. 3d 51, 56 (D.D.C. 2018) (same for DOES); Bynum v.
District of Columbia, 424 F. Supp. 3d 122, 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., 20 F. Supp. 3d 282, 285 (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., 924 F.3d 519, 526 (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.” Id. (quoting Park
v. Howard Univ., 71 F.3d 904, 907 (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., 873 F. Supp. 2d 221, 227 (D.D.C. 2012) (quoting
Park, 71 F.3d at 907). “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, 619 F.3d 56, 65 (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, 867 F.3d
103, 109 (D.C. Cir. 2017) (quoting Artis v. Bernanke, 630 F.3d 1031, 1034 (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, 71 F.3d at 907, and that
EEOC complaints should be liberally construed, Crawford, 867 F.3d at 108. All the same, “[a]
2
Failure to exhaust “is a non-jurisdictional affirmative defense.” Ahuja v. Detica Inc.,
873 F. Supp. 2d 221, 227 (D.D.C. 2012); see Artis v. Bernanke, 630 F.3d 1031, 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, 780 F. Supp. 2d 1, 11 (D.D.C. 2011); see Bowden v. United States, 106 F.3d 433, 437
(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, 71 F.3d at 907.
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 id. It explains that
Short began working at DOES in August of 2021, and that she was “still employed” by DOES.
Id. 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. Id. 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.” Id. Shortly
thereafter, Short “was subjected to multiple disciplinary actions.” Id. She stated that she
“believe[d] [DOES] [was] retaliating against [her]” for protesting the policy. Id. And she
further explained that, on November 1, 2022, she “was placed on administrative leave pending
an investigation.” Id. In sum, she alleged that she “was discriminated against on the basis of
[her] disability and retaliated against for engaging in protected activity.” Id.
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, 867 F.3d at 109 (“[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, 630 F.3d at 1034)). 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), 791 F.
Supp. 2d 68, 74 (D.D.C. 2011); see also Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098
(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, 791 F. Supp. 2d at 75.
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, 277 F. Supp. 3d 82, 90 (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.” 42 U.S.C. § 12112(a); see Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d
232, 237 (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., 957 F.3d 1364, 1373 (D.C. Cir. 2020) (quoting
Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (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, 2023 WL 6276635, at *4
(D.D.C. Sept. 26, 2023). In Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022),
the en banc court dispensed with that requirement. See Keith, 2023 WL 6276635, 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, 35 F.4th at 874.
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 id. 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 42 U.S.C. § 12203(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.,
236 F. Supp. 3d 136, 143–44 (D.D.C. 2017) (quoting Smith v. District of Columbia, 430 F.3d
3Although 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, 2023 WL 6276635, at
*5 (quoting Mogenhan v. Napolitano, 613 F.3d 1162, 1165 (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., 534 U.S. 506, 510 (2002) (“The prima facie case . . . is an
evidentiary standard, not a pleading requirement.”); Gordon v. U.S. Capitol Police, 778 F.3d
158, 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, 2020 WL 7059552, at *5 (D.D.C. Dec. 2, 2020)
(quoting Iqbal, 556 U.S. at 680)). 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 id.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. Id. 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, 2023 WL 5206107, at *11 (D.D.C. Aug. 14, 2023)
(cleaned up); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (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., 120 F. Supp. 2d 1, 17 (D.D.C. 2000)
(quoting 42 U.S.C. § 12112(a)). “[M]inor or trivial actions that make an employee unhappy are
not sufficient to qualify as retaliation under the ADA.” Id. (quoting Silk v. City of Chicago, 194
F.3d 788, 800 (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, 217 F. Supp. 3d 58, 66–67 (D.D.C. 2016); Jones v. Castro, 168 F. Supp. 3d
169, 179 (D.D.C. 2016). Those holdings accorded with decisions reached by courts outside this
circuit. See, e.g., Joseph v. Leavitt, 465 F.3d 87, 90–93 (2d Cir. 2006) (collecting cases); Jones
v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (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, 2017 WL 11687516, at *1 (D.C. Cir. Nov. 14, 2017); see also Wesley v.
Georgetown Univ., No. 18-cv-1539, 2018 WL 5777396, 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, 2023 WL 5206107, at *11 (quoting Brown v. Trinity Washington Univ., No. 22-cv-
1612, 2023 WL 2571729, 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, 279 F. Supp. 3d 156, 163 (D.D.C.
2017) (quoting Cones v. Shalala, 199 F.3d 512, 521 (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, 113 F. Supp. 3d at 311.
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, 334 F. Supp. 3d 148, 167 (D.D.C.
2018) (finding five months “too long to give rise to any inference of causation”); Walker v.
Johnson, 501 F. Supp. 2d 156, 174 (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, 2023 WL 2455678, 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, 270 F. Supp. 3d
at 133 (quoting Erickson, 551 U.S. at 94), 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, 556 U.S.
at 679). 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 18 U.S.C. § 1343, or racketeering, see id. § 1962; see also D.C. Code § 23-542.
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, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
570). 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, 391 F.3d 251, 258 (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.,
555 U.S. 7, 20 (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, 544 F. Supp. 3d 1, 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
18