Chloe v. Dent ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KENNETH ANTOINE CHLOE,
Plaintiff,
v.
Civ. Action No. 20-3090
GEORGE WASHINGTON UNIVERSITY, (EGS)
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Antoine Chloe (“Mr. Chloe”), proceeding
pro se, brings this lawsuit against the George Washington
University (“GWU”) alleging a violation of the Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2615, et seq., in connection
with the termination of his employment with GWU. See Compl., ECF
No. 1. Pending before the Court is GWU’s Second Motion to
Dismiss. See ECF No. 15-1. In response to the Second Motion to
Dismiss, Mr. Chloe filed a putative motion to strike, which the
Court construes as an opposition to the motion. See ECF No. 17.
Upon consideration of the motion, opposition so construed, the
response, the applicable law, and the entire record, GWU’s
Motion to Dismiss is DENIED.
I. Factual Background
Mr. Chloe alleges “that on October 1, 2020 [GWU] violated
[the] Family and Medical Leave Act of 1993 by terminating [him]
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while [he] was actively on [FMLA leave].” ECF No. 1 at 3-4. Mr.
Chloe alleges that his supervisor was aware that he was on FMLA
leave. Id. at 4. Mr. Chloe also alleges that he is qualified to
receive unemployment insurance benefits because GW “did not
provide evidence to show that [he] engaged in misconduct.” Id.
at 5. In support, Mr. Chloe cites the “Determination by Claims
Examiner,” id.; but did not attach that document to his
complaint. Mr. Chloe did, however, attach the document to his
putative Motion for Summary Judgment filed on the same date as
his Complaint. Claims Examiner Determination, ECF No. 2-2 at 48. 1
The District of Columbia Department of Employment Services
Office of Unemployment Compensation Determination by Claims
Examiner states: “The claimant indicated he was discharged for
not being able to take a test required by the employer. The
claimant stated he was not able to follow the instructions of
the employer because he was out on approved FLMA” leave. Id. The
determination further indicated that GWU “was contacted and
instructed to provide proof of misconduct” but GWU did not do
so. Id. Accordingly, Mr. Chloe was deemed qualified to receive
unemployment benefits effective October 4, 2020. Id.
1 The Court considers this document to be incorporated into the
Complaint because Mr. alleges that he is qualified to receive
unemployment insurance benefits because GW “did not provide
evidence to show that [he] engaged in misconduct” and cites the
“Determination by Claims Examiner.” Compl., ECF No. 1 at 5.
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II. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, (2007) (internal quotation marks omitted).
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009)
(internal quotation marks omitted). “In determining whether a
complaint fails to state a claim, [the Court] may consider only
the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of
which [the Court] may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Schl., 117 F.3d 621, 624 (D.C. Cir. 1997). A
claim is facially plausible when the facts pled in the complaint
allow the court to "draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. The
standard does not amount to a "probability requirement," but it
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does require more than a "sheer possibility that a defendant has
acted unlawfully." Id."[W]hen ruling on a defendant's motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint." Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(internal quotation marks omitted). In addition, the court must
give the plaintiff the "benefit of all inferences that can be
derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). A "pro se complaint is
entitled to liberal construction." Washington v. Geren, 675 F.
Supp. 2d 26, 31 (D.D.C. 2009) (citation omitted). Even so,
"[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements" are not sufficient to
state a claim. Iqbal, 556 U.S. at 678.
III. Analysis
The FMLA provides that it shall be unlawful for an employer
“to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
subchapter[,]” or “to discharge or in any other manner
discriminate against any individual for opposing any practice
made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(1),(2).
“[A] plaintiff may bring retaliation claims under 2615(a)(1) by
alleging an employer discriminated against [him] for taking FMLA
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leave.” Waggel v. George Washington University, 957 F.3d 1364,
at 1375 (D.C. Cir. 2020) (citing Gordon v. U.S. Capitol Police,
778 F.3d 158, 161 (D.C. Cir. 2015) (citing Gleklen v. Democratic
Cong. Campaign Comm., Inc., 199 F.3d 1365, 1367–68 (D.C. Cir.
2000)). To state a retaliation claim, a plaintiff must allege
facts to “show that [he] engaged in a protected activity under
this statute; that [he] was adversely affected by an employment
decision; and that the protected activity and the adverse
employment action were causally connected.” Gleklen, 199 F.3d at
1368. “[A] plaintiff may [also] bring interference claims under
§ 2615(a)(a) . . . .” Waggel, 957 F.3d at 1375 (citing Gordan,
778 F.3d at 164 (citing McFadden v. Ballard Spahr Andrews &
Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010)). “To prevail on
an FMLA interference claim, a plaintiff must show (1) employer
conduct that reasonably tends to interfere with, restrain, or
deny the exercise of FMLA rights, and (2) prejudice arising from
the interference.” Id. at 1376 (citing Gordon, 778
F.3d at 164–65; McFadden, 611 F.3d at 7 (citing Ragsdale
v. Wolverine World Wide Inc., 535 U.S. 81, 89, (2002)).
GWU addresses only whether Mr. Chloe adequately alleged a
retaliation claim, arguing that he has not because he has
provided “no factual allegations regarding the circumstances of
his termination that would permit an inference that it was
related to FMLA leave.” Mot. to Dismiss, ECF No. 15-1 at 8.
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However, Mr. Chloe has stated an interference claim. First, he
has alleged “employer conduct that reasonably tends to interfere
with, restrain, or deny the exercise of FMLA rights,” Waggel,
957 F.3d at 1376; because he alleges that he was fired for not
taking a test that he was unable to take because he was on FMLA
leave. Second, he has shown “prejudice arising from the
interference,” id.; because his employment was terminated. Cf.
Lewis v. School District #70, 523 F.3d 730, 743 (7th Cir. 2008)
(reversing grant of summary judgment for the employer on an FMLA
interference claim where the employer fired the employee who had
been on intermittent FMLA leave because she did not keep up with
full-time responsibilities). Accordingly, it is
ORDERED that GWU’s Motion to Dismiss is DENIED.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
May 29, 2021
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