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Porfiri v. Eraso

United States District Court, D. Columbia.

August 17, 2015

RAYMOND PORFIRI, Plaintiff,
v.
RAFAEL MOURE ERASO, Chairman of the Chemical Safety and Hazard Investigation Board, Defendant

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[Copyrighted Material Omitted]

Page 190

          For RAYMOND PORFIRI, Plaintiff: Kevin E. Byrnes, WILLIAMS LOPATTO, PLLC, Washington, DC.

         For RAFAEL MOURE-ERASO, Chairman of the Chemical Safety and Hazard Investigation Board, Defendant: Carl Ezekiel Ross, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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         MEMORANDUM OPINION

         JAMES E. BOASBERG, United States District Judge.

         Plaintiff Raymond Porfiri serves as Deputy General Counsel for the United States Chemical Safety and Hazard Investigation Board. In April 2011, he fell from a tree and injured his legs and back. Ever since, he has suffered pain and other physical impairments. Largely relying on the Rehabilitation Act, Porfiri has sued the Board for discriminating against him on the basis of his physical limitations and for retaliating against him for seeking reasonable accommodations. He also alleges that the Board violated the Family Medical Leave Act by forcing him to deplete his leave balances, requiring unnecessary medical inquiries as a condition of his returning to work, and changing his job responsibilities after he returned from leave. The Board now moves to dismiss all five counts set forth in Plaintiff's Complaint. The Court will deny that Motion as to all but Count III, concluding that, despite the relative thinness of Porfiri's claims, he has pled adequate facts to survive at this stage.

         I. Background

         According to his Complaint, which the Court must presume as true for purposes of this Motion, Porfiri is an attorney in the Board's Office of General Counsel (OGC), where he has worked since 1998. See Compl., ¶ 16. In April 2011, he injured his legs and back when he fell from a tree outside his home while doing yardwork. Id., ¶ 28. His injuries made it difficult for him to walk, sit, and stand, and they caused sudden and severe pain. Id., ¶ ¶ 32-33. Plaintiff thereafter requested and received several work-related accommodations from his supervisor, then-General Counsel Chris Warner, including teleworking arrangements and periodic medical leave. Id., ¶ ¶ 36-37.

         In early October 2012, shortly after the Board's Chairman appointed a new General Counsel, Richard Loeb, Porfiri's injuries were aggravated during a medical procedure. Id., ¶ ¶ 39-40. A few days later, Loeb held a series of meetings with Plaintiff in which Loeb told him of several work-related changes. First, Board staff attorneys, previously supervised by Plaintiff, would thereafter report to Loeb, id., ¶ 45; second, Plaintiff would be required to move offices, id., ¶ 46; and third, his ability to telework would be limited to an average of one day per week -- a reduction from the twice-weekly telework policy he had enjoyed under his previous boss. Id., ¶ ¶ 47, 59. Loeb also mentioned that he was considering altering the job duties of OGC attorneys to require them to deploy to the sites of chemical accidents alongside Board investigators -- a duty that Porfiri alleges had never been part of their job descriptions. Id., ¶ ¶ 48-54. On October 10, 2012, the same day Porfiri learned of many of these changes, he contacted the Board's Equal Employment Opportunity Director to complain of discrimination and to initiate counseling. Id., ¶ ¶ 9, 57.

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          Five days later, on October 15, 2012, Plaintiff requested a number of work-related accommodations, including: (1) a restriction on any work-related travel until his condition " improved substantially" ; (2) postponement of his office move; and (3) the ability to telework two days per week. Id., ¶ 59. The Board's designated human resources officer met with Plaintiff to discuss his requests and asked that he support them with medical documentation. Id., ¶ 62. Although Porfiri objected to providing the information, he nevertheless submitted a note from his doctor on November 1, 2012, to justify both his requested accommodations and a new request for extended medical leave (under the Family and Medical Leave Act) from mid-November to mid-December 2012. Id., ¶ ¶ 63, 67-68. The Board granted his request for medical leave but did not immediately respond to his accommodation requests. Id., ¶ ¶ 70, 84.

         Before his scheduled return from medical leave on December 16, 2012, Porfiri asked to extend his absence through January 2, 2013, seeking to draw from his balance of use-it-or-lose-it annual leave instead of further reducing his store of FMLA leave. Id., ¶ 71. Loeb granted Plaintiff's request to be absent, but insisted that he continue using his FMLA leave, as the Board had not received a note from Plaintiff's physician indicating that he was capable of returning to work. Id., ¶ 72. Porfiri secured a second doctor's note to that effect, which he submitted to the Board on December 28, 2012, several days before he was scheduled to return to work. Id., ¶ 77. But Loeb was not yet ready for Plaintiff to return; he wanted additional time to review the new doctor's note with a government physician, and so he placed Porfiri on administrative leave. Id., ¶ 78. That leave extended until January 22, 2013, when the Board informed Plaintiff by email that he could return to work. Id., ¶ 84. In the same email, the Board responded to his October 15, 2012, request for accommodations, granting him a temporary reprieve from travel-related duties, allowing him to telework twice per pay period (but not twice per week), and offering to provide movers to ease the physical burdens of moving offices. Id., ¶ ¶ 136-138; see also Mot., Exh. C (Board's January 22, 2013, Decision Letter responding to Plaintiff's request for accommodations) at 271-72.

         Immediately upon his return to work in late January 2013, the Board told Porfiri that it had adopted its earlier proposal that would require OGC attorneys to deploy to accident sites, resulting in a new position description that " 'include[d] deployment support in the field as an essential function of the job as an attorney.'" See Compl., ¶ 88 (quoting an email from the Board's human-resources officer). The Board gave Plaintiff a new position description reflecting the in-field travel requirement and removing his responsibilities for supervising OGC staff attorneys. Id., ¶ ¶ 91, 94. Plaintiff alleges that, although several other attorneys work in the Office of General Counsel, only his position description was revised to require work-related travel. Id., ¶ ¶ 119-121.

         After properly exhausting his administrative remedies, Plaintiff filed this suit on October 10, 2014, against Rafael Moure-Eraso, the Board's Chairman. (Given the nature of Plaintiff's allegations, the Court will refer to the Board as the Defendant here.) Porfiri alleges four counts of Board discrimination in violation of the Rehabilitation Act: first, it treated him differently from other employees because of his disability; second, it denied his requests for reasonable accommodations; third, it made improper medical inquiries and/or disclosed confidential information; and fourth, it retaliated against him for asserting

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his rights under the Act. He also alleges one violation of the FMLA, alleging that the Board interfered with his rights under that Act by requiring unnecessary medical examinations as a condition of his going on, and returning from, medical leave, and by failing to restore him to an equivalent position upon his return from that leave. The Board responded with the instant Motion to Dismiss, which the Court now considers.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief when the complaint " fail[s] to state a claim upon which relief can be granted." In evaluating a motion to dismiss, the Court must " treat the complaint's factual allegations as true and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S. App.D.C. 268 (D.C. Cir. 2000) (citation and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court need not accept as true, however, " a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193, 372 U.S. App.D.C. 335 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), " a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face," Iqbal, 556 U.S. at 678 (internal quotation omitted). A plaintiff may survive a Rule 12(b)(6) motion even if " recovery is very remote and unlikely," but the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

         A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the pleadings, see Fed.R.Civ.P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. See Fed.R.Civ.P. 10(c). Documents that a defendant attaches to a motion to dismiss are " part of the pleadings" under Rule 10(c) if they are integral to his claim, they are referred to in the complaint, and their authenticity is undisputed. See Kaempe v. Myers, 367 F.3d 958, 965, 361 U.S. App.D.C. 335 (D.C. Cir. 2004); Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46-47 (D.D.C. 2009). The Court may thus consider those materials on a motion to dismiss without treating the motion " as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d); Marshall v. Honeywell Tech. Solutions, Inc., 536 F.Supp.2d 59, 65 (D.D.C. 2008).

         III. Analysis

         As the Board seeks dismissal of all five counts, the Court will address them separately, bearing in mind that the first four invoke the Rehabilitation Act and the last the FMLA.

         A. Disparate ...


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