Today’s blog entry deals with a topic I have not dealt with before and with topics that I have dealt with before. The topic that I have not dealt with before in my eight years of blogging on the Understanding the ADA is the concept of vicarious exhaustion. There are topics that I have dealt with before, such as statute of limitations, otherwise qualified, etc. Today’s case is Pappas v. District of Columbia, which can be found here180184202206. It is a District Court decision from the District of Columbia decided on January 12, 2021 written by Judge Rudolph Contreras. As usual the blog entry is divided into categories and they are: Key facts; vicarious exhaustion; statute of limitations for §504; statute of limitations §504 claims properly tolled; statute of limitations §504 claims equitably tolled; §504/ADA failure to accommodate claim; adequate allegations that the police district has knowledge of the need for accommodations; otherwise qualified/qualified; reasonableness determination of accommodations requested not appropriate on a motion to dismiss; miscellaneous matters; and thoughts/takeaways. Since this blog entry is long, I would suggest at a minimum reading the key facts and the thoughts/takeaways section. After that, you might want to focus on the topical areas of interest. The particular topics are separate enough from each other where if you were just concerned about one particular issue, you wouldn’t need to read many of the other sections in the blog entry dealing with other issues. I suppose that is a fancy way of saying that the reader is free to focus on any or all of the categories.:-)



Key Facts


Plaintiffs Steve Pappas, Tawana Lindsay, Nichole Mathies, and Malachi Malik, former employees of the District of Columbia Metropolitan Police Department (“MPD”), brought this class action against MPD, the District of Columbia, and Peter Newsham in his official capacity as Chief of Police of the MPD (collectively, the “Defendants”), challenging the MPD’s practice of requiring employees who spend 172 cumulative days within any 24-month period at less than full-duty status to take disability retirement, without offering reasonable accommodations through reassignment, job restructuring, or extended leave. They argue this policy violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C §§ 794, et. seq. Mr. Pappas also alleges that the MPD made improper medical inquiries and subjected him to improper medical examinations, in violation of the same statutes.


Mr. Pappas filed a formal charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on October 5, 2015. See id. ¶ 57. On August 10, 2016, the EEOC issued a determination letter that referred Mr. Pappas’s claim to the U.S. Department of Justice (“DOJ”), finding that there was “cause to believe that by [MPD’s] actions and through its policies, [MPD] had violated the ADA rights of Mr. Pappas and a class of similarly situated individuals.” Id.; see also Pls.’ Mem. Opp’n Defs.’ Mot. Dismiss Pls.’ Am. Compl. (“Pls.’ Opp’n”), Ex. A (“Pappas EEOC Reasonable Cause Determination”), ECF No. 21-2.3 On June 3 Mr. Pappas’s EEOC Reasonable Cause Determination and EEOC Charge, see Defs.’ Mot. Dismiss, Ex. B (“EEOC Charge”), ECF No. 19-3, can be evaluated by the Court on this motion to dismiss due to their status as judicially noticeable public records. See Ndondji v. InterPark Inc., 768 F. Supp. 2d 264, 272 (D.D.C. 2011) (noting that on review of a motion to 7 21, 2019, the DOJ issued Mr. Pappas a right to sue letter for his claim. See Am. Compl. ¶ 57. Mr. Pappas filed suit on September 19, 2019. Id. An amended complaint was filed by Mr. Pappas, along with Ms. Lindsay, Ms. Mathies, and Mr. Malik on December 12, 2019. Id. Defendants have now moved to dismiss the entire complaint.



Vicarious Exhaustion


  1. Vicarious exhaustion allows the non-filing party to join the suit of another similarly situated plaintiff who did file an administrative complaint against the same defendant.
  2. Vicarious exhaustion is available only to parties whose claims are so similar to those asserted by the original plaintiff that no purpose is served by requiring them to file independent charges.
  3. The purported similarity of the claims in question have to be evaluated for whether the original filing performed the principal notice function of the EEOC filing requirements.
  4. In order for vicarious exhaustion to apply, the original EEOC charge must: 1) put the employer-defendant on notice of all charges by the similarly situated plaintiff; and 2) provide the employer and the EEOC with an opportunity for administrative consolidation and resolution.
  5. While a failure to exhaust administrative remedies under the ADA is an affirmative defense, which means the defendant typically bears the burden of pleading and proving lack of exhaustion, an exception exists where in response to a motion to dismiss, plaintiffs concede they failed to exhaust administrative remedies and offer legal justification for that excuse. In that situation, the court can consider it on a 12(b)(6) motion.
  6. Pappas, Ms. Lindsay, and Ms. Mathies claims all arose from the same allegedly discriminatory mechanism, the police district’s forced retirement policy.
  7. The filing by Mr. Pappas provided the required notice for vicarious exhaustion to be invoked because it alerted the EEOC to the police district’s unlawful forced retirement policy and was a standardized application to both Mr. Pappas and other officers and provided them an opportunity for resolution.
  8. It is of no matter that the specific circumstances giving rise to the grievances of each of the plaintiffs are distinguishable because each plaintiff plans to prove their allegations by demonstrating the same thing (a pervasive pattern and practice of discrimination).
  9. No different set of facts are at issue because the discrimination was an integral part of an employer’s practices. In fact, the forced retirement policy was such an integral part of the employer’s practices that it was codified into a formal department policy.
  10. The primary purpose of the exhaustion doctrine, notice to the police district of the allegedly discriminatory act, was accomplished by Mr. Pappas’s EEOC charge that detailed his belief his firing was the result of the forced retirement policy and constituted discrimination on the basis of his disability. Since Ms. Lindsay and Ms. Matthie challenged the same policy, vicarious exhaustion works for their claims.
  11. Malik’s claim does not get the benefit of vicarious exhaustion because he did not allege that he was subjected to involuntary retirement under the forced retirement policy. Instead, he seemed to imply his unwilling retirement was the result of a different policy of the police district saying that active duty police officers could not have defibrillators. So, given that he did not allege discrimination under the forced retirement policy, the police district could not have notice of his claims by the filing of Mr. Pappas’s EEOC charge. Hence, vicarious exhaustion does not work for Mr. Malik.



Statute of Limitations for §504


  1. 504 of the Rehabilitation Act does not contain its own statute of limitations period. So, courts have to borrow from the analogous state cause of action. In the District of Columbia, courts have either applied the three-year statute of limitations for personal injury claims or the one year limitation period governing allegations of unlawful discrimination under the District of Columbia Human Rights Act.
  2. In 2012, the D.C. Circuit held that the D.C. Human Rights Act was the analogous cause of action for Rehabilitation Act claims, and accordingly applied the one year limitation in existence for the D.C. Human Rights Act rather than the three-year personal injury statute of limitations.
  3. There were several reasons why the D.C. Circuit Court of Appeals opted for the D.C. Human Rights Act over the personal injury statute of limitations and they were: 1) the personal injury statute of limitations does not deal with remedying discrimination claims; and 2) the D.C. Human Rights Act targets virtually all forms of disability discrimination, encompasses a range of activities covered by Rehabilitation Act, and has a statute of limitations intended specifically for claims of discrimination.
  4. While the D.C. Circuit determination decisions are not binding on the District Court when it comes to District of Columbia specific matters and the Rehabilitation Act concerns federal law, the decision still warrants considerable persuasive weight as an interpretation of District of Columbia law, of which the District Court of Appeals is the ultimate authority.
  5. The vast majority of courts considering the issue after the D.C. Circuit decision have also agreed with the one year statute of limitations being the proper analogous statute.



Statute of Limitations §504 Claims Properly Tolled?


  1. Pappas filed a formal charge of discrimination with the EEOC on October 5, 2015, almost exactly 7 months after his retirement from the police force. Since that filing was done within the one year limitation period, his claim is properly tolled on that date.
  2. Once the EEOC or DOJ issued a right to sue letter, statute of limitations starts over. On June 21, 2019, Mr. Pappas received a right to sue letter for his claims. He then filed suit on September 19, 2019. Therefore, his §504 claims are timely as his complaint was submitted before the tolled one year statute of limitations period expired.
  3. The other plaintiffs are not so lucky for the reasons appearing in the rest of this section.
  4. 504 claims brought by non-federal employees do not require administrative exhaustion.
  5. Given that exhaustion is not required, much less a jurisdictional requirement for non-federal employees under §504, the other plaintiffs simply cannot piggyback on Mr. Pappas’s claims with respect to the statute of limitations for their §504 claims.
  6. Congress has never stated that when it comes to §504 claims for non-federal employees, that the judiciary cannot hear an action until the administrative agency has come to a decision and such explicit language from Congress is necessary to find an administrative exhaustion requirement. In fact, §504 contains no such sweeping and direct language and neither does title VI of the civil rights act that it ties into.
  7. So, you have a failure to meet a statutory deadline and not a failure to exhaust administrative remedies. Further, plaintiffs failed to identify any application of the vicarious exhaustion doctrine that allows it to toll a statutory deadline, much less one where exhaustion is not even required.



Statute of Limitations §504 Claims Equitably Tolled


  1. 504 contains no statute of limitations and borrows its limitation timeframe from the District of Columbia Human Rights Act.
  2. The District of Columbia does not recognize an equitable tolling exception to the statute of limitations, except for lulling and the discovery rule.
  3. The lulling doctrine suspends the statute of limitations only when the defendant has done something that would tend to goad the plaintiff into inaction thereby permitting the limitation prescribed by the statute to run. Under the discovery rule, a claim does not accrue until the plaintiff after exercising due diligence has discovered or reasonably should have discovered all of the essential elements of her possible cause of action.
  4. Nothing in the plaintiffs complaints fit into either of these exceptions and therefore both doctrines do not apply. So, Ms. Lindsay, Ms. Matthies, and Mr. Malik are not entitled to equitable tolling of their §504 claims.
  5. In a footnote, the court noted that tolling arguments can be raised in either a complaint or later opposition to briefing.
  6. In a footnote, the court said that federal equitable tolling principles are of no help either because this was not an extraordinary and carefully circumscribed instance. Extraordinary circumstances are circumstances beyond the control of the complainant that make it impossible to file a complaint within the statute of limitations, which was not the case here. That is, no explanation was provided by all the plaintiffs, save one, as to why they sat on their rights until after the filing deadline passed.



  • 504/ADA Failure to Accommodate Claims


  1. To prevail on a claim for failure to accommodate, the plaintiff has to demonstrate: 1) they are a qualified individual with a disability; 2) their employer had notice of the disability; and 3) the employer denied the employee’s request for reasonable accommodation. A person with a disability must also alleged that they first requested reasonable accommodations from their employer and was then refused in order to bring a failure to accommodate claim.
  2. An employee’s request for an accommodation need not be in writing or use the specific phrase “reasonable accommodation,” but the request has to make sufficiently clear that the employee wants assistance with his or her disability so that he or she may return or continue to work.
  3. What matters under the ADA are not formalisms about the manner of the request, but whether the employee or a representative of the employee provides the employer with enough information that under the circumstances, the employer can fairly be said to know of both the disability and the desire for an accommodation.
  4. Plaintiff’s arguments that their failure to request reasonable accommodation should be excused because those requests would have been futile simply do not hold up in light of their pleadings that identify other employees who receive accommodations after presumably requesting them.
  5. The forced retirement policy would not so absolute to essentially foreclose opportunity for accommodations if requested. For example, the forced retirement policy does not contain any explicit ban on accommodations, such as transfer to another department.



Adequate Allegations That the Police District Has Knowledge of the Need for Accommodations Were Made


  1. An affirmative request for accommodations is not required where an employer knows both that the employee has a disability and knows that the employee is seeking assistance from the employer in the form of accommodations.
  2. Mere notice of a disability does not ordinarily satisfy the ADA’s request requirement.
  3. Knowledge of a disability is different from knowledge of the resulting limitation and is certainly different from knowledge of the necessary accommodation.
  4. Several courts have determined that communications from medical professional to an employer can constitute a request for accommodations.
  5. In a footnote, the court notes that determining whether plaintiffs communicated to the police district that they sought additional accommodations can be a very complicated calculus for employers given the repercussions that can arise from assuming the need for accommodations where there is not one. The congressional report accompanying the ADA states, without an affirmative request from the disabled employee, it is inappropriate on the part of the employer to provide an unsolicited accommodation.
  6. The amended complaint does not allege that the plaintiffs doctors made a specific request for accommodations or noted an accommodation in the job duties or job role was medically necessary. Rather, the Dr.’s notes simply summarized the current condition of the plaintiffs. Even when construed liberally, the physician reports are not enough to possibly convey a desire by plaintiffs to the police district for accommodations.
  7. Plaintiff failed to allege anywhere in their amended complaint that the physician assessments in question were actually sent to or received by the police district.
  8. In a footnote, the court said that plaintiffs have failed to plead in the amended complaint that plaintiffs affirmatively notified the police district of their desire for reasonable accommodation through any channel, formal or informal.
  9. With one exception, plaintiffs provide no evidence showing that they made any request for continued employment.
  10. The amended complaint contains no indication that the police district was notified by Mr. Pappas or that Mr. Pappas communicated to a police district employee, whether it be a colleague or supervisor, that he was seeking a new position in order to accommodate his disability or that he wanted further assistance from the police district in this regard.
  11. The act of applying to a new position with a different division of a large employer without any further articulation of a desire for reassignment as an accommodation, falls short of the precedent for what suffices as an accommodation request.
  12. The amended complaint does not describe any communication by Mr. Pappas to his supervisor or any other police district employee conveying either his desire for reassignment or that reassignment was his rationale for applying to the vacant position.
  13. Lindsay fares differently. In particular, the amended complaint states that Ms. Lindsay requested the postponing of a disability retirement consideration hearing to a later date by which she was expected to have fully recovered from her injury. Such a statement could be construed as a request by Ms. Lindsay for continued employment. By requesting a delay in her retirement hearing, Ms. Lindsay was essentially asking to remain a member of the police district until she recovered from her foot injury. Therefore, she promptly put the police district on notice regarding her desire for accommodation due to her disability and her failure to accommodate claim can go forward.
  14. All of the plaintiffs do have one basis to show that they conveyed to the police district a request for accommodation. In particular, the plaintiffs argue that their placement on light-duty and/or sick leave was itself an accommodation from the police district. Therefore, since this accommodation was already in effect and accepted by plaintiffs, plaintiff were not required to request further accommodations because an employer’s obligation to participate in the interactive accommodation process is a continuing one.
  15. The police district granted each of the plaintiff an initial accommodation by placing them on either sick leave or on light-duty. Those changes to their responsibilities are the definition of a reasonable accommodation under the ADA.
  16. The police district had to know plaintiffs disabilities in order to grant these initial accommodations, and plaintiffs made their desire for those accommodation clear by accepting the offer of the job role modifications. Accordingly, plaintiff conveyed that they were seeking assistance from the police district in the form of accommodations. Since the police district was both aware of plaintiffs disabilities and their desire for relief as a result of these initial accommodations, these actions sufficiently constitute a request for accommodation.
  17. Once an employee requests an accommodation, the interactive process of the ADA and the Rehabilitation Act begins.
  18. The interactive process provides a flexible give-and-take between employer and employee so that they together can determine what accommodations would enable the employee to continue working.
  19. An employer’s duty to accommodate is a continuing duty that is not exhausted by one effort.
  20. In a footnote, the court noted that the ADA defines an accommodation as any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities, 29 C.F.R. §1630.2181185203207(o).
  21. It is reasonable to conclude that the police district was aware the initial accommodation to the plaintiff were failing and that further accommodations were needed for the following reasons: 1) plaintiff were all placed on limited duty or sick leave due to their disabilities that left them unable to fulfill the duties of an active duty officer without accommodations; and 2) the police district sought to terminate the initial accommodations after 172 days pursuant to the forced retirement policy precisely because they could no longer fulfill the duties of an active police officer.
  22. The police district knew that plaintiff could not resume their prior active duty officer roles due to their disabilities. So by terminating the initial accommodation, they knew plaintiff would be forced out of the police district. Based on that, it can be reasonably inferred that the police district was reasonably aware that further accommodations would be needed for the plaintiff to continue their employment.
  23. Plaintiffs are not required to make new and additional request for accommodations given that the interactive process was already ongoing and the police district was reasonably aware that the initial accommodation was failing because they chose to terminate them. Accordingly, the responsibility of plaintiffs to request accommodations is excused.



Otherwise Qualified/Qualified


  1. A qualified individual is one whom with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires, 42 U.S.C. §12111182186204208(8).
  2. The inclusion of the phrase “or desires,” within the statutory definition broadens the term to encompass employees seeking reassignment to a vacant position if they can with or without reasonable accommodation perform the essential functions of the employment position for which they are seeking reassignment.
  3. The determination of qualified/otherwise qualified examines the plaintiff’s capacity to perform the essential functions of her job with or without reasonable accommodations at the time of the denial of accommodations.
  4. A determination that a plaintiff is not a qualified/otherwise qualified individual is rare on a motion to dismiss because figuring out whether the person is qualified or unqualified involves determining a job’s essential functions, which is typically a factual issue to be determined by a jury.
  5. Plaintiff properly alleged they were qualified/otherwise qualified individuals because the amended complaint contains pleadings that they could perform the essential elements of either their current position with reasonable accommodation or that of a job obtained by way of reassignment to a vacant position.
  6. It is sufficient to allege that the ability to perform the essential functions of any position only comes from their claim for relief since this is a motion to dismiss.
  7. The essential duties of an employee’s position are questions of fact that are not required to be alleged with particularity. Also, nothing in the amended complaint states that plaintiffs were unable to perform certain duties essential for their role as police officers.
  8. The answer to all of this may be different on summary judgment, but for purposes of a motion to dismiss plaintiff adequately alleged that they could perform the essential functions of their positions by stating they could do so job restructuring or extended leave.
  9. Plaintiffs also adequately alleged that they could perform the essential functions of other vacant government position with reasonable accommodations.
  10. It is sufficient to allege that with or without reasonable accommodations, they could perform the essential functions of the employment position for which they were seeking reassignment to.
  11. The amended complaint contains an assertion for each plaintiff that defendants have vacant positions available for which each plaintiff was qualified for during the relevant period.
  12. The police district has the obligation to assist with job reassignment for plaintiffs as part of the interactive accommodation process.
  13. Under the interactive process, if a reasonable accommodation turns out to be ineffective and if there is no alternative accommodation, then the employer must attempt to reassign the employee to a vacant position for which he or she is qualified unless doing so constitutes an undue hardship.
  14. Plaintiffs have plausibly alleged that reassignment was required. From the allegations in the complaint, it is clear that the only remaining accommodation was a job transfer. So, the police district was obligated to assist plaintiffs in obtaining those transfers because employers have an obligation to help employees identify appropriate job vacancies since plaintiff can hardly be expected to hire detective to look for vacancies.



The Reasonableness of Accommodations Requested Is an Appropriate on a Motion to Dismiss


  1. Whether an accommodation is reasonable is a question of fact inappropriate for resolution on a motion to dismiss.
  2. With one distinguishable exception, all of the cases cited by the defendant concerning a determination that the requested accommodation was not reasonable occurred after discovery at the summary judgment phase.
  3. The police district was likely required as the plaintiff’s employer to investigate reassignment as a possible reasonable accommodation.



Miscellaneous Matters


  1. Pappas also made a claim that unlawful medical inquiries were made, but the court threw that out saying that the medical inquiries were narrowly focused on job related issues.
  2. The court also held that the chief of police in his official capacity was a proper defendant because the plaintiff was seeking injunctive relief and not monetary damages.
  3. It is in the interest of justice to grant plaintiffs request for leave to amend, court granted 30 days, their complaint in light of the opinion.





  1. Vicarious exhaustion is simply not something you see very often. On the plaintiff side, it is a really risky approach. From my read of ADA cases over the years, it is more likely to fail than not.
  2. Statute of limitations are all over the place. The District of Columbia is not the only one that opted for their nondiscrimination statute. Virginia has done the same. Each of those statute of limitations are only one year. Most states do go with the personal injury statute of limitations, which is longer (two or three years generally). However, not all states do. Missing a statute of limitation is one of those legal malpractice issues. So, be sure thorough legal research is done on the applicable statute of limitations claim before taking on the case if you are on the plaintiff side. On the defense side, you might be able to knock out the claim early because of the failure of the plaintiff’s attorney to do that research. Bottom line don’t assume that every state goes with the personal injury statute of limitations even though the vast majority do.
  3. 504 does not require exhaustion for non-federal employees. That lack of exhaustion requirement can be good news for plaintiffs, but it also means plaintiffs have to carefully watch the statute of limitations. I see this all the time with respect to questions dealing with whether to pursue an U.S. Department of Education Office of Civil Rights claim on behalf of someone in higher education. It can take some time for the U.S. Department of Education Office of Civil Rights or the Department of Justice to investigate those claims. In the meantime, the statute of limitations is still running.
  4. Magic words are not required for reasonable accommodation requests. The key is whether the employer has been given enough information so that the employer can be said to know about the disability and the desire for an accommodation.
  5. Arguing that making a reasonable accommodation request was futile is an argument unlikely to work in most cases.
  6. Automatic termination policies without investigating whether the person can do the essential functions of the job with or without reasonable accommodations are a lousy idea.
  7. If someone is saying they can return to work at a later date certain, consider that a request for reasonable accommodations.
  8. Interactive process is a continuing obligation on the part of the employer absent the employee blowing it up first.
  9. Acceptance of sick leave or light duty may activate the interactive process on the part of the employer.
  10. An employer’s duty to accommodate is a continuing duty not exhausted by one effort.
  11. As we have discussed previously, reassignment is a real hot issue with some court saying the employer have to mandatory reassign people that are no longer qualified to do their current jobs. Other court saying that competitive bidding is certainly appropriate. This court strikes a middle ground saying that the employer has an obligation to help the employee find suitable other positions. The decision is a bit confusing on this point. It also says that the employer must attempt to reassign the employee to a vacant position. Ultimately, the United States Supreme Court is going to have to figure this one out. My guess is that they are going to go with the competitive bidding approach of the 11th circuit over the mandatory reassignment approach of the Seventh Circuit, but one never knows.
  12. Otherwise qualified/qualified is a factually intensive question more appropriate for resolution on summary judgment than on a motion to dismiss.
  13. Any disability related inquiries of current employees need to be job related.
  14. If you are on the plaintiff side and getting notes from a healthcare professional, make sure they discuss possible accommodations whenever possible to do so.