United States District Court, D. Columbia.
[Copyrighted Material Omitted]
RAYMOND PORFIRI, Plaintiff: Kevin E. Byrnes, WILLIAMS
LOPATTO, PLLC, Washington, DC.
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.
E. BOASBERG, United States District Judge.
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.
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.
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.
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,
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.
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.
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
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
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)).
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).
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.