Porfiri v. Moure-ErasoPorfiri v. Moure-Eraso
MEMORANDUM OPINION
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 Rer habilitation 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 Plaintiffs 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 yard-work. 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 sevеral 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., IT 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.
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 Plaintiffs request to be absent, but insisted that he continue using his FMLA'léave, as the Board had not received a note from Plaintiffs 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 fоr 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 Plaintiffs 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 “ ‘includefd] 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 Mou're-Eraso, the Board’s Chairman. (Given the nature of Plaintiffs 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 assert
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.,
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,
III. Analysis
As the Board seeks dismissal of all five counts, the Court will address thеm separately, bearing in mind that the first four invoke the Rehabilitation Act and the last the FMLA.
A. Disparate Treatment (Count I)
Porfiri’s first claim asserts that the Board treated him differently because of his disability. Because he has sued the federal government, which is not a covered employer under the Americans with Disabilities Act,
see
42 U.S.C. § 12111(5)(B)(i) (“The term ‘employer’ does not include ... the United States ____”), he brings his claim under the Rehabilitation Act, 29 U.S.C. §§ 791
et seq.,
which “governs employee claims of [disability] discrimination
A
prima facie
claim of disparate treatment (under either Act) requires proof “that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiffs ... disability.”
Baloch v. Kempthorne,
In moving to dismiss, the Board insists that Plaintiffs claim fails as a matter of law because none of the complained-of acts rises to the level of an “adverse” action under the Act. While many of Plaintiffs grievances are admittedly weak — “not everything that makes an employee unhappy is an actionable adverse action,”
Baird v. Gotbaum,
The Board does not dispute this precedent, arguing instеad that Plaintiffs claim fails because he has not alleged that the Board removed his supervisory authority
because of
his disability — in other words, that the Board’s action was motivated by discrimination. But a plaintiff need not plead all elements of a
prima facie
case in his complaint to survive a motion to dismiss,
Swierkiewicz v. Sorema N.A.,
More problematic for the Board, however, is that the arguments it makes in support of its “no causation” argument are flawed on their own terms. First, it con
Second, the Board maintains that it had legitimate, non-discriminatory reasons for modifying Porfiri’s job description—
ie.,
to implement a new, “flatter organizational structure.” Mot. at 22. While this explanation may yield success at summary judgment (if properly supported), it cannot help here, where such an explanation is not contained in the Complaint. Having moved to dismiss only under Rule 12(b)(6), the Board cannot defeat Porfiri’s claims by reaching outside the pleadings to proffer a legitimate, non-discriminatory reason for removing his supervisory authority. Nor was Porfiri required to plead facts that would anticipatorily rebut any possible explanation offered by the Board and reveal it to be pretextual.
See Ryan-White v. Blank,
As a ’ lást-ditch argument, the Board argues in its Reply that Plaintiff alleged only that he was treated differently from
some
employees, without alleging that those- employees were similarly situated. Even if-this "argument could defeat Plaintiffs claims on a motion-to dismiss,
but see Brady v. Office of Sergeant at Arms,
The Rehabilitation Act also requires federal employers to “take reasonable affirmative steps to accommodate the [disabled], except where undue hardship would result.”
Barth v. Gelb,
In moving to dismiss, the Board, argues only that this count is deficient because all of the accommodations he asked-for were granted.
See Flemmings v. Howard Univ.,
Although the Board indeed does appear to have granted most of Plaintiffs requests, there is ' at least some daylight between what he sought and what the Board approved, making dismissal premature at this stage. Porfiri alleges that at least two of his six accommodation requests were denied: his request to be excused from travel unless and until his condition “improved substantially” and his request to be allowed to telework twice per week. See Compl., ¶¶ 59, 85; Accommodation Request at 580-81. The Court need discuss only the first because the pleadings do not clearly show that 'the scope of the Board’s accommodation matched what was requested by Porfiri and his doctor.
In issuing its Decision Letter, the Boаrd had access to two close-in-time notes from Porfiri’s physician, both recommending that he refrain from travel to avoid aggravating his symptoms for at least ■ some period of time. In November 2012, the doctor advised Porfiri “not to travel over the next four months,” Doctor’s Notes at 167, and, in late December 2012, similarly suggested that Plaintiff “not travel beyond the local commuting area for the next several months.”
Id.
at 712. Although it is plausible that the physician intended to signal a time limit on this accommoda
tion
— e.g., “four’.’ or “several” months — it seems equally likely that the doctor merely offered projections based on her clinical assessment of Porfiri’s recovery. Suрporting the latter interpretation, both letters conclude by stating that “[t]he above accommodations should be continued unless there is a medical reason to alter -them.”
Id.
at 168, 713. In the December note,
The Board, however, did not grant Plaintiffs request — ie., that his travel ban continue “unless and until” his conditions improved. Instead, it excused him frоm travel for a fixed, three-month term, with no ability to extend the travel ban, even if medically recommended. See Decision Letter at 270 (agreeing to “excuse [Porfiri] from traveling for up to three months,” while noting that “this accommodation ... must be limited in time”). Defendant justified its decision on operational' grounds, explaining that any “extension of this accommodation places an undue and direct operational burden” on the Board by forcing other OGC attorneys to “absorb [Porfiri’s] share of the tasks related to deployments.” Id. The letter did not invite Porfiri to seek an extension of his-travel ban or submit a doctor’s note in support of such a request, suggesting instead thаt he would be unable to avoid deployment once the three-month period expires: “When you are ultimately deployed, if you wish to request other specific accommodations to help ... [during deployment,] the [Board] would be happy to consider your request .... ”). Id. at 271.
At this point, therefore, -the documents incorporated by reference into- Plaintiffs Complaint do not make clear that the Board granted his travel-related accommodation request. His claim for denial of a reasonable accommodation thus also -survives.
C. Improper Medical Inquiries and Disclosures (Count III)
The allegations included in Porfiri’s third count actually make out two claims, not one. The first is that the Board asked for doctors’ notes when some law (not identified by Plaintiff) prohibited it from doing so. The second is that, once the Board obtained the notes it had requested, all of which contained confidential medical information, it improperly, disclosed them to people .who had no reason to look at their contents. In part because Plaintiff fails to identify a cause of action distinct from hi§ discrimination, retaliation, or FMLA-related claims (as to improper inquiries), and in part because his allegations are too vague (as to both improper inquiries and improper disclosure of confidential information), the Court will dismiss this count.
1. Improper Medical inquiries
Plаintiff alleges two improper inquiries: the Board’s October 2012 request that he provide medical documentation “to support his requests for reasonable accommodation[s],” Compl., ¶ 62; see id., ¶ 147, and its December 2012 request for- a doctor’s note clearing him to return to work after taking medical leave. Id., ¶¶ 72,151. The Court treats each in turn.
Although Plaintiff has not identified a statutory basis for- his claim, section 12112(d)(4) of the ADA,- as incorporated by the. .Rehabilitation Act, 29 U.S.C. § 794(d), ■ -does prohibit employers from making medical-inquiries of their employees, except when those inquiries are “job-related and consistent with business necessity.” 42 • U.S.C. § 12112(d)(4)(A). One line of permissible, job-related inquiry relates' to the employee’s-obligation to provide reasonable accommodations to a
Porfiri acknowledges that the Board’s first medical inquiry was triggered by his request for reasonable accommodations, but he insists that his requests “should have been promptly granted without
any
medical evidence.” Opp. at 16. Not so. “When the need for an accommodation is not obvious, an employer, before providing a i-easonable accommodation, may require that the individual with a disability provide documentation of the need for accommodation.”
Stewart v. St. Elizabeths Hosp.,
As to the Board’s request that Porfiri secure a doctor’s note clearing him to return from FMLA leave, he has similarly failed to state a claim (distinct from his separate claims under the Rehabilitation Act and FMLA) that would entitle him to relief from this Court. He was ultimately allowed to return to work, and the harms he has alleged are only vaguely, if rather implausibly, connected to the Board’s single request for a doctor’s note as part of the interactive process.
See Martino v. Forward Air, Inc.,
This is not to say that Porfiri’s allegations are irrelevant to his other claims. On the contrary, the ADA’s ban on discrimination includes a prohibition on improper medical inquiries, 42 U.S.C. § 12112(d)(1), and evidence of the latter, even if not actionable in its own right, may bolster Porfiri’s disparate-treatment and retaliation claims. Additionally, Plaintiff may, in pursuing his surviving FMLA claim,
see infra
Section III.E, seek
2. Improper Disclosure of Confidential Information •
Porfíri separately alleges, again without identifying a statutory basis, that,- “to the extent [the Board] obtained medical information, ... [it] failed to properly limit the use and disclosure of [that] information.” Compl., ¶ 156. Although Plaintiff has good intuitions — the disability laws do prohibit some disclosures of confidential information — his allegations are insufficient here to avoid dismissal.
The same section of the ADA that regulates medical inquires by employers also requires those employers to safeguard certain information obtained from tliose requests.
See
42 U.S.C. §§ 12112(d)(3), (4);
Doe v. U.S. Postal Serv.,
Nor, for that matter, has Plaintiff identified what harm he suffered as a result of the improper disclosures. “[I]n order to state a claim under the Rehabilitation Act’s confidentiality provisions, ... a plaintiff must show that an unauthorized disclosure of medical information
resulted in
a ‘tangible injury.’ ”
Koch v. Walter,
D. Retaliation (Count IV)
In Plaintiffs final Rehabilitation Act claim, he alleges that the Board retaliated against him both for submitting .a requеst for reasonable accommodations and for fil
To make out a retaliation claim under the Rehabilitation Act, “an employee must show she engaged in protected activity, as a consequence of which her emplоyer took a materially adverse action against her.”
Taylor v. Solis,
Second, the'.Board does not dispute that the complained-of acts unrelated to Plaintiffs accommodation request are materially adverse. Even if it had, the Complaint alleges numerous Board steps that, while perhaps not rising to the level of “adverse actions” for purposes of a discrimination claim, would plausibly suffice for a retaliation claim — the latter “requiring] less” of a showing of material adversity than > a non-retaliation claim.
Joyce v. Office of Architect of Capitol,
E. Interference with FMLA (Count V)
Last, Count V alleges interference with Plaintiffs family-and-medical-leave rights. The Board argues for dismissal on a gestalt theory that, because it granted Plaintiffs request to take medical leave, no “interference” with his rights under the FMLA occurred. That argument oversimplifies the Complaint — which also alleges that the Board interfered with Porfiri’s right to be restored to an equivalent position upon his return from leave — and reflects a cribbed reading of the statute.
The FMLA broadly provides that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). Those rights include leave'entitlements,
see
§ 2612, as well as an employee’s “entitle[ment], on return from [§ 2612] leave ... to be restored by the employer” to either “the position of employment held by the employe^ when the leave commenced” or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” § 2614(a)(1);
see Breeden v. Novartis Pharm. Corp.,
Porfiri claims that the Board interfered with,
inter alia,
his right to return to a job with “equivalent ... terms and conditions.” § 2614(a)(1). He alleges
Because the Board was focused on arguing why it was statutorily entitled to require a doctor’s note before granting Porfiri medical leave, it ignored this critical allegation. Defendant has thus not disputed that his position changed upon his return from leave.
See
Mot. at 24 (describing the change as part of “an initiative to integrate OGC attorneys [into] the agency’s investigative mission”). Nor has it argued that, although the position description changed, it is, for all purposes, equivalent to the one Porfiri held before taking leave.
Cf. Mitchell v. Dutchmen Mfg., Inc.,
Although this reason is sufficient for Count V to survive, Porfiri has made other allegations — also left unaddressed by the Board — that preclude .dismissal at this stage. For instance, he claims that the Board improperly forced him to draw down his medical leave when he was ready and able to return to work. See Compl., ¶ 170; 29 C.F.R. § 825.311 (“An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave.”). And, as previously noted, see supra Section III.C, Porfíri alleged that the Board wrongfully required a doctor’s note as a condition of returning from leave — an action that, depending on whether Defendant had a “uniformly-applied policy or practice” of requiring such notes, id. § 825.312, might further bolster his FMLA claim.
IV. Conclusion
For these reasons, the Court will grant in part and deny in part Defendant’s Motion to Dismiss. Count III alone will be dismissed without prejudice. A separate Order consistent with this Opinion will be issued this day.