121 F. Supp. 3d 188
D.D.C.2015Background
- Porfiri, Deputy General Counsel at the U.S. Chemical Safety Board, injured his back and legs in April 2011 and intermittently suffered severe, unpredictable pain affecting walking, sitting, and standing.
- Under prior supervision he received telework and periodic leave accommodations; after a new General Counsel (Loeb) arrived in Oct. 2012, Loeb removed Porfiri’s supervisory duties, limited telework, required an office move, and proposed deploying OGC attorneys to accident sites.
- Porfiri requested accommodations (no travel until substantial improvement; telework twice/week; postpone move) and FMLA leave; the Board requested medical documentation, placed him on administrative leave while verifying his fitness, and issued a Decision Letter granting limited accommodations (e.g., travel excused for up to three months, telework limited) but imposing a new position description requiring field deployment and removing supervisory duties.
- Porfiri exhausted administrative remedies and sued under the Rehabilitation Act (disparate treatment, failure to accommodate, improper medical inquiries/disclosures, retaliation) and the FMLA (interference with leave and restoration to equivalent position).
- The Board moved to dismiss all counts. The Court denied dismissal as to Counts I (disparate treatment), II (failure to accommodate), IV (retaliation), and V (FMLA interference), but dismissed Count III (improper medical inquiries/disclosures) without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disparate treatment (Rehabilitation Act) | Removal of supervisory duties, added travel requirement, reduced telework, and office move were adverse actions motivated by disability | Actions were not adverse or not motivated by disability; reorganizational, non-discriminatory reasons | Survives: removal of supervisory duties plausibly adverse and alleged post-dates employer's knowledge of disability; dismissal denied |
| Failure to provide reasonable accommodations | Requested no-travel until substantial improvement and telework twice/week; Board denied/limited some requests | Board granted accommodations; therefore no denial | Survives: incorporated documents show at least one accommodation (travel ban) was limited to a fixed term inconsistent with physician’s notes/requests |
| Improper medical inquiries / disclosures | Board improperly demanded medical notes and improperly disclosed confidential medical info | Board’s requests were job-related as part of interactive process; disclosures not specifically alleged or shown to cause tangible injury | Dismissed without prejudice: inquiry claims not actionable standing alone given need for documentation; disclosure allegations too vague and lacking identifiable harm |
| Retaliation (Rehabilitation Act) | After protected activity (accommodation request and EEOC counseling), Board delayed/denied accommodations, required extra medical proof, changed job duties, and made conditions worse | Actions predated protected activity or were not materially adverse; accommodations granted | Survives: protected activity alleged and post-dates actions; alleged changes plausibly materially adverse for retaliation standard |
| FMLA interference (restoration and leave handling) | Board forced use of FMLA leave when not necessary, required medical clearance to return, and changed job description while on leave (adding deployment requirement) | Board granted the requested leave; no interference | Survives: allegation that position changed on return to a non-equivalent role and other procedural FMLA violations adequately pleaded |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (application of Twombly plausibility standard)
- Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (no need to plead full prima facie case to survive motion to dismiss)
- Czekalski v. Peters, 475 F.3d 360 (D.C. Cir. 2007) (withdrawing supervisory duties is an adverse employment action)
- Burke v. Gould, 286 F.3d 513 (D.C. Cir. 2002) (removal of supervisory authority as actionable adverse action)
- Flemmings v. Howard Univ., 198 F.3d 857 (D.C. Cir. 1999) (element of failure-to-accommodate claim requires a denied requested accommodation)
- Stewart v. St. Elizabeths Hosp., 589 F.3d 1305 (D.C. Cir. 2010) (employer may require documentation when need for accommodation is not obvious)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (retaliation requires materially adverse action that could dissuade a reasonable worker)
- Doe v. U.S. Postal Serv., 317 F.3d 339 (D.C. Cir. 2003) (confidentiality requirement for medical information under ADA/Section 12112(d))