UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FERRIN MOORE, Plaintiff, v. Civil Action No. 20-1060 (CKK) DAN BROUILLETTE, Secretary, U.S. Department of Energy, Defendant.

MEMORANDUM OPINION (December 11, 2020)

In this case, Mr. Ferrin Moore (“Plaintiff”) raises three claims under the Rehabilitation Act

of 1973 against Secretary Dan Brouillette, in his official capacity as the Secretary of the United

States Department of Energy (“Defendant”). Specifically, Plaintiff’s Complaint asserts claims for

a hostile work environment (Count I), disclosure of confidential medical information (Count II),

and constructive discharge (Count III). See Compl. ¶¶ 75–95. Plaintiff’s claims each derive from

the alleged mistreatment he suffered as an employee of the Department of Energy (“DOE” or the

“Agency”) in 2019, while he was undergoing cancer treatment.

Now pending before the Court is Defendant’s [12] Motion to Dismiss or, Alternatively, for

Summary Judgment. Therein, Defendant moves to dismiss each of Plaintiff’s claims under both

Federal Rule of Civil Procedure 12(b)(6) and 56. See Def.’s Mot. at 1. Upon consideration of the

briefing, the relevant authorities, and the record as a whole,1 the Court will DENY Defendant’s

1 The Court’s consideration has focused on the following briefing and material submitted by the parties: • Compl., ECF No. 1; • Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss or, Alternatively, for Summ. J. (“Def.’s Mot.”), ECF No. 12-1; • Pl.’s Opp’n to Def.’s Mot. to Dismiss or, Alternatively, for Summ. J. (“Pl.’s Opp’n”), ECF No. 13; and, • Def.’s Reply, ECF No. 15.

1 motion for summary judgment WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 56(d)(1).

The Court also DENIES Defendant’s Rule 12(b)(6) motion to dismiss Counts I and II of the

Complaint. The Court, however, GRANTS Defendant’s motion to dismiss Count III of the

Complaint and dismisses that claim WITHOUT PREJUDICE.

I. BACKGROUND

The Court begins it analysis by recounting the factual background in this case. At this

stage in the proceedings, the Court relies on the well-pled facts alleged in Plaintiff’s Complaint.

The Court, however, does not adopt the alleged facts set forth herein as its own.

Plaintiff began working at the DOE in June 2009. See Compl. ¶ 19. During his

employment with the Agency, Plaintiff served as an Aviation Policy Officer within the DOE’s

Office of Aviation Management. See id. ¶¶ 18, 21. In this role, “Plaintiff’s duties involved

communicating with private sector company representatives or public sector agency

representatives trying to do business with the [DOE].” Id. ¶ 52. Plaintiff’s first level supervisor

within the Office of Aviation Management was Mr. Glen Wattman, who served as the Director of

Office of Aviation Management. Id. ¶ 22.

In 2013, while Plaintiff was working at the DOE, he was diagnosed with prostate cancer.

Id. ¶ 23. That same year, Plaintiff “informed his supervisor Glenn Wattman of his cancer

diagnosis.” Id. ¶ 28. By January 2019, however, Plaintiff’s “cancer had spread to his bladder,”

id. ¶ 24, which “substantially impaired [his] ability to urinate.” Id. ¶ 26. On account of this bladder

cancer, Plaintiff learned in January 2019 that he would need “additional medical treatment,” id. ¶

29, and, accordingly, Plaintiff asked Mr. Wattman for medical leave, see id. ¶ 30. When Mr.

Wattman inquired into the reason for Plaintiff’s leave request, Plaintiff explained that “his cancer

had spread to his bladder and that he needed the leave for medical treatment for his cancer in the

2 future, including surgery, follow up chemotherapy treatments, and medical appointments.” Id. ¶

31.

“Mr. Wattman approved of [Plaintiff’s] leave requests.” Id. ¶ 40. In January 2019, Plaintiff

“was granted about two weeks of leave for surgery and recuperation related to his cancer.” Id. ¶

33. Then beginning in February 2019, Plaintiff was granted “the ability to telework from his home

instead of coming into the office.” Id. ¶ 34. Between February and June 2019, Plaintiff was also

granted leave twice a week, so that he could undergo chemotherapy, which included two radiation

sessions per week. See id. ¶¶ 37–39.

Around the time of Plaintiff’s 2019 cancer treatment, however, his working relationship

with Mr. Wattman began to fray. “After granting [Plaintiff’s] leave requests . . . Mr. Wattman

repeatedly complained to [Plaintiff] about his use and taking of leave,” even though Mr. Wattman

had not complained about Plaintiff’s prior leave requests that were unrelated to his cancer

treatment. Id. ¶¶ 42–43. Indeed, while Plaintiff was on leave in 2019, Mr. Wattman allegedly

called Plaintiff repeatedly and “pressured him to return to work.” Id. ¶ 44. And after Plaintiff did

return to work following his January 2019 surgery, Mr. Wattman “began increasing Plaintiff’s

workload,” id. ¶ 46, claiming that Plaintiff was not “at capacity,” id. at ¶ 47. According to Plaintiff,

Mr. Wattman provided him with “more work . . . than his coworkers Patricia Hagerty and Daniel

Monahon,” who did not have disabilities. Id. ¶¶ 48–49. Moreover, Mr. Wattman allegedly began

to “use capitalization in his emails” to Plaintiff, which Plaintiff “understood as a written form of

yelling.” Id. ¶ 51.

In February and March 2019, Mr. Wattman also began to make “repeated derogatory jokes

about [Plaintiff’s] cancer and medical treatment.” Id. ¶ 50. These “jokes” allegedly included

comments about whether Plaintiff “was wearing a diaper” and whether Plaintiff “was sitting on

3 the pan, a reference to [the] medical device [Plaintiff] sat on while undergoing treatment.” Id.

Relatedly, Mr. Wattman allegedly disclosed Plaintiff’s cancer to coworkers within the DOE, as

well as Agency customers, without Plaintiff’s authorization. See id. ¶¶ 53–65. For example, Mr.

Wattman allegedly told one of Plaintiff’s coworkers that Plaintiff would be “sitting in the chair,”

a reference to Plaintiff’s chemotherapy treatment. Id. ¶ 57.

The workplace friction between Plaintiff and Mr. Wattman finally culminated in the

summer of 2019. On June 26, 2019, Mr. Wattman sent Plaintiff an email stating that he “would

take appropriate action related to the quality of life and working conditions he had established for

[Plaintiff].” Id. ¶ 68 (quotations omitted). Plaintiff understood this email as a “threat” regarding

his teleworking privileges. See id. ¶¶ 68–69. Consequently, Plaintiff provided this June 26, 2019

email to Ms. Ingrid Kolb, the Director of the Office of Management at the DOE and Mr. Wattman’s

immediate supervisor. See id. ¶¶ 70–71. Ms. Kolb allegedly informed Plaintiff “that she

considered the email threatening,” but Plaintiff received no further information regarding whether

Mr. Wattman received any disciplinary sanctions. Id. ¶¶ 72–73. On July 19, 2019, Plaintiff

contacted the DOE’s equal employment opportunity office regarding Mr. Wattman’s conduct, see

id. ¶ 9, but Plaintiff ultimately resigned from his position at the Agency on August 8, 2019, see id.

¶¶ 74, 79.

Following his resignation from the DOE, Plaintiff “filed a formal complaint of

discrimination and constructive discharge based on disability and retaliation with the Agency” on

August 21, 2019. Id. ¶ 10; see also Def.’s Mot., Ex. 11, ECF No. 12-13 (Aug. 2019, EEO Compl.).

Then, “[o]n September 19, 2019, the Agency issued a notice of acceptance of claims which stated

that the Agency had supposedly received Plaintiff’s formal complaint on September 6, 2019, but

nevertheless would waive Plaintiff’s deadline to file[,] and accepted his claims.” Compl. ¶ 11.

4 But after more than one-hundred and eighty days passed from the filing of his formal complaint

with the DOE and no final agency action had been taken, Plaintiff filed his present Complaint

before this Court on April 22, 2020. See id. ¶¶ 12–14 (alleging exhaustion of administrative claims

pursuant to

(g) and

(b)).

Therein, Plaintiff asserts claims against Defendant under the Rehabilitation Act of 1973

for a hostile work environment (Count I), disclosure of confidential medical information (Count

II), and constructive discharge (Count III). See Compl. ¶¶ 75–95. On August 24, 2020, however,

Defendant moved to dismiss Plaintiff’s Complaint in its entirety for failure to state any claim for

which relief can be granted. See Def.’s Mot. at 1 (citing Fed. R. Civ. P. 12(b)(6)). And although

no formal discovery has taken place in this action, Defendant also moved in the alternative for

summary judgment pursuant to Federal Rule of Civil Procedure 56. See Def.’s Mot. at 1. After

complete briefing from the parties, Defendant’s motion is now ripe for this Court’s review.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal,

. Courts “do not accept as true, however, the plaintiff’s legal

5 conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on

Foreign Inv. in U.S.,

(D.C. Cir. 2014).2

III. DISCUSSION The Court’s analysis proceeds in three parts. First, the Court sets out its rationale for

DENYING Defendant’s summary judgment motion WITHOUT PREJUDICE at this stage in

the proceedings. Next, the Court addresses the proper treatment of Defendant’s thirteen

documentary exhibits on a Rule 12(b)(6) motion to dismiss. Finally, the Court considers each of

Plaintiff’s substantive claims. For the reasons set forth herein, the Court will GRANT Defendant’s

motion to dismiss Count III of the Complaint under Rule 12(b)(6), but will DENY Defendant’s

motion to dismiss Counts I and II of the Complaint.

A. Defendant’s Rule 56 Motion And Exhibits Outside Of The Pleadings With his present motion, Defendant has attached thirteen documentary exhibits and moved,

in the alternative, for the dismissal of Plaintiff’s claims under the summary judgment standard.

See Def.’s Mot. at 25; Fed. R. Civ. P. 56(a). In response, Plaintiff contends that these exhibits

constitute material outside the pleadings not properly considered at the motion to dismiss stage,

and further argues that Defendant’s summary judgment motion is premature. See Pl.’s Opp’n at

1, 6. To that end, Plaintiff has submitted a Rule 56(d) declaration, requesting this Court to defer

its consideration of Defendant’s summary judgment motion until after Plaintiff has had a sufficient

opportunity to take discovery. See Greenberg Decl., ECF No. 13-1 at 1–4. This procedural dispute

raises two threshold inquiries for the Court to address: (1) whether the Court should consider

Defendant’s summary judgment motion at this stage of the proceedings, and (2) if not, which of

2 At this time, the Court will not consider the merits of Defendant’s Rule 56 motion for summary judgment. See disc. infra at Section III.A.1 (discussing Fed. R. Civ. P. 56(d)). Accordingly, the Court does not present the corresponding legal standard for such a motion in this Memorandum Opinion.

6 Defendant’s thirteen exhibits may the Court consider when adjudicating Defendant’s motion to

dismiss under Rule 12(b)(6)?

1. Rule 56(d) Analysis

As to the first inquiry, the Court begins by noting that “[s]ummary judgment usually ‘is

premature unless all parties have had a full opportunity to conduct discovery.’” Haynes v. D.C.

Water & Sewer Auth.,

(D.C. Cir. 2019) (quoting Convertino v. U.S. Dep’t of

Justice,

(D.C. Cir. 2012)). Nonetheless, the Federal Rules of Civil Procedure

make clear that “‘a party may file a motion for summary judgment at any time until 30 days after

the close of all discovery.’” Jeffries v. Barr,

(D.C. Cir. 2020) (emphasis in

original) (quoting Fed. R. Civ. P. 56(b)). Accordingly, Defendant was within his rights to file a

motion for summary judgment in this action, even where no discovery has been taken by the

parties. See Jeffries,

(“DOJ moved for summary judgment before any formal

discovery had taken place, and the District Court granted that motion.”); Haynes,

(affirming trial court’s grant of summary judgment before discovery).

But where a defendant files a pre-discovery summary judgment motion, the nonmovant

may request that the Court defer consideration of that motion pursuant to Rule 56(d). Haynes,

(citing Fed. R. Civ. P. 56(d)). Plaintiff has done so here. See Pl.’s Opp’n at 6

(requesting discovery under Rule 56(d)). “To obtain [such] relief, a Rule 56(d) movant must”

submit a declaration or affidavit that: (1) “‘outline[s] the particular facts [he] intends to discover

and describe[s] why those facts are necessary to the litigation’; (2) explain[s] why [he] could not

produce those facts in opposition to the pending summary-judgment motion; and (3) ‘show[s]

[that] the information is in fact discoverable.’” Jeffries,

(quoting Convertino, 684

F.3d at 99–100). “District courts should resolve each [Rule 56(d)] request based on its application

7 of the Convertino criteria to the specific facts and circumstances presented in the request.” U.S.

ex rel. Folliard v. Gov’t Acquisitions, Inc.,

, 26–27 (D.C. Cir. 2014).

Here, Plaintiff’s Rule 56(d) declaration sets forth a number of facts that Plaintiff intends to

discover in this case. See Greenberg Decl., ECF No. 13-1 at ¶¶ 1–12. For example, Plaintiff

intends to discover facts regarding his increased workload following his 2019 accommodation

request. See id. at ¶ 1. He also intends to discover facts regarding email correspondence

maintained by his former DOE supervisor, Mr. Glenn Watmann, including any of Mr. Watmann’s

email discussions or “derogatory jokes” regarding Plaintiff’s cancer diagnosis. See id. at ¶¶ 3–4.

And Plaintiff’s Rule 56(d) declaration explains that these facts “are necessary for litigation because

[his] claim is that he was subjected to a hostile work environment, constructive discharge, and had

his confidential medical information disclosed in violation of the Rehab[ilitation] Act.” Id. at 3;

see also Compl. ¶¶ 75–95. Plaintiff further contends that his proposed “[d]iscovery is necessary

to establish record evidence to substantiate [his] allegations,” specifically “including information

regarding the motivation of Mr. Wattman for his conduct.” Greenberg Decl., ECF No. 13-1 at 3.

Next, Plaintiff’s Rule 56(d) declaration accurately asserts that “Plaintiff has not had [an]

opportunity to perform discovery on the above intended facts, or any facts, because Defendant has

filed its Motion prior to this Court issuing a scheduling order and permitting discovery.” Id. at 3.

Plaintiff asserts, however, that the facts delineated in his Rule 56(d) declaration “are discoverable

through written discovery requests or depositions.” Id. To that end, Plaintiff specifically makes

clear his intention to depose Mr. Wattman, as well as another DOE supervisor, Ms. Ingrid Kolb,

regarding her review of the allegedly “threatening” email Plaintiff received from Mr. Wattman on

June 26, 2019. See id. ¶ 6; Compl. ¶¶ 68–73.

8 Upon consideration of Plaintiff’s Rule 56(d) declaration and the Convertino factors

outlined above, the Court will deny Defendant’s motion for summary judgment without prejudice.

See Fed. R. Civ. P. 56(d)(1). The Court concludes that Plaintiff’s declaration adequately sets forth

the specific facts he intends to discover and indicates how those facts are necessary to this

litigation. See Jeffries,

. Here, the Court also notes that the facts identified in

Plaintiff’s Rule 56(d) declaration, such as internal email correspondences, derogatory jokes made

about Plaintiff’s cancer, and the relative treatment of Plaintiff’s colleagues, clearly relate to a

hostile work environment claim. Plaintiff’s declaration also indicates that testimonial and

documentary evidence from Mr. Wattman would be particularly germane to each of Plaintiff’s

three claims, which all depend directly on Mr. Wattman’s conduct. See disc. infra at 14–24.

Moreover, Plaintiff’s Rule 56(d) declaration accurately indicates that no discovery has yet taken

place in this case, and Plaintiff states his intention to procure fact discovery from Mr. Wattman,

and others, through written discovery mechanisms and through depositions. See Greenberg Decl.,

ECF No. 13-1 at 3. In view of these factors, the Court will not consider Defendant’s summary

judgment motion at this time and, instead, DENIES Defendant’s Rule 56 motion WITHOUT

PREJUDICE. See Alston v. Johnson,

(D.D.C. 2016) (denying summary

judgment under Fed. R. Civ. P. 56(d)). In making this decision, the Court relies upon the “broad

discretion” it exercises in matters of case management and discovery. Jeffries,

.

2. Consideration Of Defendant’s Exhibits Upon A Motion To Dismiss

Because the Court will not consider Defendant’s motion for summary judgment, it must

address which of Defendant’s thirteen exhibits it may still review with Defendant’s Rule 12(b)(6)

motion. As a general rule, “a court is restricted from considering matters ‘outside’ the pleadings”

when “deciding a motion brought under Rule 12(b)(6).” Hinton v. Corr. Corp. of Am.,

9 Supp. 2d 45, 46 (D.D.C. 2009) (citing Fed. R. Civ. P. 12(d)). On a Rule 12(b)(6) motion, however,

courts may consider documents attached to or incorporated in the complaint, matters of which a

court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier

Parochial Sch.,

(D.C. Cir. 1997); Hurd v. District of Columbia,

(D.C. Cir. 2017) (citing Fed. R. Evid. 201(b)). Moreover, “where a document is referred to in

the complaint and is central to [the] plaintiff’s claim, such a document attached to the motion

papers may be considered without converting the motion to one for summary judgment.” Vanover

v. Hantman,

(D.D.C. 1999), aff’d, 38 Fed. App’x. 4 (D.C. Cir. 2002); see

also Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

(2007).

a. Exhibits 2, 3, and 10–13

First, the Court will address Exhibits 2, 3, and 10 through 13, which are each documents

related to Plaintiff’s initial equal employment opportunity (“EEO”) complaint with the Department

of Energy. To begin with, Exhibit 11 is Plaintiff’s formal EEO complaint, filed in August 2019

with the Agency. See Def.’s Mot., Ex. 11, ECF No. 12-13 (Aug. 2019 EEO Compl.). Such

administrative complaints are public records subject to judicial notice and properly considered on

a motion to dismiss. Klotzbach-Piper v. Nat’l R.R. Passenger Corp.,

(D.D.C. 2019). Moreover, Plaintiff has incorporated Exhibit 11 by reference in his Complaint.

See Compl. ¶ 10 (expressly referencing Plaintiff’s August 2019 administrative complaint).

Relatedly, Exhibit 10 is Plaintiff’s informal EEO discrimination complaint filed with the

Department of Energy in July 2019, which Plaintiff also incorporates by reference in his

Complaint. See id. ¶ 9. Finally, Exhibits 12 and 13 are formal notices from the Department of

Energy acknowledging the receipt and acceptance of Plaintiff’s EEO complaint of discrimination,

which Plaintiff incorporates by reference in his Complaint as well. See id. ¶¶ 11–12; Ndondji v.

10 InterPark Inc.,

(D.D.C. 2011) (“A court may consider an EEOC

complaint and Notice of Charge without converting a motion to dismiss into a motion for summary

judgment . . . ”) (quotation omitted). For these reasons, the Court finds that Defendant’s Exhibits

10, 11, 12, and 13 are properly subject to consideration when adjudicating Defendant’s Rule

12(b)(6) motion to dismiss.

Conversely, the Court will exclude Exhibits 2 and 3 from consideration on Defendant’s

motion to dismiss. Respectively, these documents are EEO Investigative Affidavits submitted by

Mr. Glenn Wattman and Ms. Ingrid Kolb, which contain their detailed statements regarding

Plaintiff’s discrimination complaint against the Department of Energy. See Def.’s Mot. at 19–20

(citing to the contents of the Wattman and Kolb affidavits). Contrary to Defendant’s assertion,

however, these documents are not clearly incorporated by Plaintiff’s Complaint. While the

Complaint does reference Plaintiff’s EEO charge and the Agency’s formal response thereto, see

Compl. ¶¶ 9–11, the Court finds nothing in the Complaint that would incorporate these selected

investigative affidavits into the pleadings.

To counter this point, Defendant advances an expansive theory of the incorporation by

reference doctrine that would permit consideration of all exhibits “concerning” Plaintiff’s EEO

complaint and investigation. See Def.’s Reply at 2. This theory, however, goes too far, and

Defendant has not cited to any binding authority that compels such a broad application of the

incorporation by reference doctrine. Instead, Defendant cites to various district court decisions

within this jurisdiction that have considered certain EEO documents at the motion to dismiss stage.

See, e.g., Alston v. Johnson,

(D.D.C. 2016); Hicklin v. McDonald,

(D.D.C. 2015). But these decisions focus on the incorporation of formal EEO

complaints and agency responses at the pleading stage, for example, in the context of a statute of

11 limitations defense. See Perez v. D.C. Dep’t of Employment Servs.,

(D.D.C.

2018). These cases do not, however, create a blanket rule that all related documentation

concerning an underlying EEO complaint is incorporated into the pleadings by any reference to

the corresponding EEO charge.

Indeed, such a rule would distort the lines between a Rule 12(b)(6) motion to dismiss and

a Rule 56 motion for summary judgment by allowing a defendant to support a motion to dismiss

with a wide array of fact-based documentation upon which the complaint itself does not rely. See

Gordon v. Nat’l Youth Work All.,

(D.C. Cir. 1982) (noting “the importance of

providing plaintiffs with the essential safeguards of summary judgment procedure whenever they

face a motion to dismiss that turns on questions of fact”); Hurd v. District of Columbia,

(D.C. Cir. 2017) (same). Here, for example, the investigative affidavits in Exhibits 2 and

3 may “concern” Plaintiff’s employment claims, but the factual statements from Mr. Wattman and

Ms. Kolb within these affidavits are not “integral” to viability of Plaintiff’s Complaint. Kaempe

v. Myers,

(D.C. Cir. 2004). Accordingly, the Court finds that Exhibits 2 and 3

are not incorporated into the pleadings by reference.

Finally, neither Exhibit 2 nor Exhibit 3 is subject to judicial notice. “A federal court may

take judicial notice of ‘a fact that is not subject to reasonable dispute’ if it either ‘is generally

known within the trial court’s territorial jurisdiction’ or ‘can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.’” Hurd,

(quoting

Fed. R. Evid. 201(b)). But a court may not take judicial notice of documents “for the truth of the

matter asserted” therein.

Here, Defendant cites to the factual content of the statements in

Exhibits 2 and 3 to dispute Plaintiff’s allegations in the Complaint. See Def.’s Mot. at 19–20

(citing to the contents of the Wattman and Kolb affidavits). Such material is not subject to judicial

12 notice when considering a motion to dismiss and is, instead, appropriately left for the summary

judgment stage. In sum, the Court finds that Exhibits 2 and 3 are documents outside of the

pleadings that cannot be considered without converting Defendant’s motion into one for summary

judgment.

b. Exhibits 5–9

Next, in Exhibits 5 through 9 Defendant has included email chains from 2019 involving

Plaintiff and addressing his employment at the Department of Energy. As an initial matter, none

of these emails are documents of public record or materials subject to judicial notice. See Hurd,

(quoting Fed. R. Evid. 201(b)). Accordingly, the email correspondences in

Exhibits 5 through 9 must be excluded from consideration on Defendant’s motion to dismiss,

unless they are incorporated into Plaintiff’s Complaint itself. See

.

Here, the Court finds that the Complaint does incorporate the June 26, 2019 email from

Glenn Wattman to Plaintiff at 1:42 PM, which appears in Exhibits 5, 6, and 7. See Mpoy v. Rhee,

, 290 n.1 (D.C. Cir. 2014) (citations omitted) (affirming district court’s consideration

of email incorporated by reference in its determination of Rule 12 motion). In fact, the allegations

in the Complaint clearly reference this specific correspondence from Mr. Wattman to Plaintiff,

including by direct quotation. See, e.g., Compl. ¶ 68 (“Mr. Wattman’s June 26, 2019 email also

threatened that Mr. Wattman would take ‘appropriate action’ . . . ”). Beyond this specific email

from Mr. Wattman to Plaintiff, however, the Complaint does not incorporate any of the remaining

email correspondence presented in Defendant’s Exhibits 5 through 9. To the contrary, the material

found in these additional emails is not “integral” to the Complaint, see Kaempe,

,

but instead offers factual content meant to refute Plaintiff’s allegations at the pleading stage, see,

e.g., Def.’s Mot. at 13–14. Such documentation is characteristically outside of the pleadings and

13 must be excluded upon review of a Rule 12(b)(6) motion to dismiss. Menoken v. Dhillon,

(D.C. Cir. 2020); see also Charles Allen Wright et al., 5C Fed. Prac. & Proc. Civ. § 1366

(3d ed. 2010).

c. Exhibits 1 and 4

Finally, in Exhibit 1 and Exhibit 4, Defendant has appended two miscellaneous documents

to his motion, which are both outside of the pleadings. Specifically, Exhibit 1 is a nine-page

document from the Office of Aviation Management, which contains a description of Plaintiff’s

responsibilities as an Aviation Policy Officer with the Department of Energy. See Def.’s Mot. at

13 n.4 (quoting from Exhibit 1). Exhibit 4 is a redacted Form SF-50, “Notification of Personnel

Action,” which indicates the date of Plaintiff’s retirement. See Def.’s Mot. at 23 (citing to Exhibit

4). These documents, however, are not matters of public records or susceptible to judicial notice.

See Hurd,

(quoting Fed. R. Evid. 201(b)). Moreover, neither Exhibit 1 nor Exhibit

4 is incorporated into the pleadings by reference in the Complaint. Accordingly, the Court will

exclude both Exhibits 1 and 4 from consideration when addressing Defendant’s motion to dismiss.

See Fed. R. Civ. P. 12(d).

B. Plaintiff’s Substantive Claims The Court will now consider each of Plaintiff’s three substantive claims. See Compl. ¶¶

75–95. For the reasons set forth above, the Court will only address whether these claims survive

under Rule 12(b)(6). And in making this determination, the Court considers only the Complaint

itself, along with Defendant’s Exhibits 10, 11, 12, and 13, as well as the June 26, 2019 email from

Glenn Wattman to Plaintiff at 1:42 PM, which appears in Exhibits 5, 6, and 7.

1. Count I – Hostile Work Environment In Count I of the Complaint, Plaintiff asserts a hostile work environment claim for

disability discrimination under the Rehabilitation Act of 1973. See Compl. ¶¶ 1, 75–81. As an

14 initial matter, the D.C. Circuit has not affirmatively decided “whether the Rehabilitation Act

provides a cause of action for a hostile work environment.” Sanders v. Kerry,

,

45 n.10 (D.D.C. 2016). Nonetheless, “the D.C. Circuit has been willing to assume that a hostile

work environment could be a form of discrimination under the Rehabilitation Act,” Bonnette v.

Shinseki,

(D.D.C. 2012) (citing Kuraner v. Mineta, No. 00-5416,

, at *1 (D.C. Cir. July 10, 2001) (per curiam)), and trial courts in this jurisdiction

consistently recognize the viability of hostile work environment claims under the Rehabilitation

Act, see Webster v. United States Dep’t of Energy,

, 81 (D.D.C. 2020); Congress

v. District of Columbia,

(D.D.C. 2017). Neither does Defendant challenge

the existence of such a claim in his present motion. See Def.’s Mot. at 8–9. Accordingly, the

Court will recognize the existence of a hostile work environment claim under the Rehabilitation

Act here.

“To establish a prima facie hostile work environment claim based on disability, a plaintiff

must allege facts demonstrating that: ‘(1) [he] is disabled or is perceived as disabled; (2) [he] was

subjected to unwelcome harassment; (3) the harassment occurred because of [his] disability or the

perception that [he] was disabled; (4) the harassment affected a term, condition, or privilege of

employment; and (5) there is a basis for holding the employer liable for the creation of the hostile

work environment.’” Thompson v. District of Columbia,

(D.D.C. 2017)

(quoting Floyd v. Lee,

(D.D.C. 2013)). The plaintiff must also “show

that his employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.’” Baloch v. Kempthorne,

(D.C. Cir. 2008)

(quoting Harris v. Forklift Sys., Inc.,

(1993)). “To determine whether a hostile

15 work environment exists, the court looks to the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes

with an employee’s work performance.” Baloch,

.

As a threshold matter, Plaintiff adequately pleads a “disability” under the Rehabilitation

Act to support his hostile work environment claim. The Rehabilitation Act incorporates the

standards set forth in the Americans with Disabilities Act (“ADA”), see

(f), which

defines a “disability” as “‘a physical or mental impairment that substantially limits one or more

major life activities of such individual,’” Alexander v. Washington Metro. Area Transit Auth.,

(D.C. Cir. 2016) (emphasis added) (quoting

(1)). Notably, the

Equal Employment Opportunity Commission’s (“EEOC”) implementing regulations for the ADA

specify that “cancer substantially limits normal cell growth,”

(j)(3)(iii), and that

“normal cell growth” constitutes a “major life activity,”

§ 1630.2(i)(1)(ii).3

In his Complaint, Plaintiff makes clear that “[c]ancer is a medical condition that

substantially impairs [his] normal cell growth.” Compl. ¶ 25. Plaintiff then plainly alleges that he

“was diagnosed with prostate cancer” in 2013, id. ¶ 23, and that by 2019 the cancer “had spread

to his bladder,” id. ¶ 24. Plaintiff also alleges that because the cancer spread to his bladder it

“substantially impaired his ability to urinate.” Id. ¶ 26. Finally, Plaintiff alleges that in 2019 his

bladder cancer “required him [to] undergo additional medical treatment,” id. ¶ 29, which included

“surgery, follow up chemotherapy treatments, and medical appointments,” id. ¶ 31. At the motion

to dismiss stage, these allegations regarding Plaintiff’s cancer are sufficient to plead a “disability”

under the ADA, and therefore under the Rehabilitation Act as well. This is particularly the case

3 “Congress has delegated to the [EEOC] the responsibility for issuing regulations to enforce the proscription against discrimination in employment under the ADA.” Duncan v. Washington Metro. Area Transit Auth.,

(D.C. Cir. 2001) (citing

)).

16 given the EEOC’s explicit guidance regarding cancer qualifying as a “disability,” and Congress’s

direction “that ‘[t]he definition of disability shall be construed in favor of broad coverage.’”

Alexander,

(quoting

(4)(A)). Accordingly, Plaintiff has

adequately alleged a disability to support his hostile work environment claim under the

Rehabilitation Act. See Compl. ¶ 76.

Next, Plaintiff has sufficiently alleged that because of this disability, he suffered workplace

harassment at the Department of Energy, which affected his working conditions and for which

Defendant may be held liable. See Thompson,

. Specifically, Plaintiff’s

hostile work environment allegations derive from the alleged conduct of his immediate supervisor

at the DOE, Mr. Glen Wattman. Plaintiff alleges that Mr. Wattman granted Plaintiff’s “leave

requests because of [his] disability” beginning in February 2019, but then “repeatedly complained

to [Plaintiff] about his use and taking of leave.” Compl. ¶ 42. According to Plaintiff, “Mr.

Wattman did not complain about [his] use of leave taken in prior years unrelated to Plaintiff’s

disability.” Id. ¶ 43. Furthermore, Plaintiff alleges that “Mr. Wattman repeatedly called [him]

while on leave for his disability about work and pressured him to return to work.” Id. ¶ 44. And

after Plaintiff did return to work, Mr. Wattman allegedly “began increasing Plaintiff’s workload,”

id. ¶ 46, claiming that Plaintiff “was not at capacity” and providing him with more work than his

colleagues, id. ¶¶ 47–48.

Beginning in February 2019, Mr. Wattman also allegedly made “repeated derogatory jokes

about [Plaintiff’s] cancer and medical treatment, including whether [Plaintiff] was wearing a

diaper, or if he was sitting ‘on the pan.’” Id. ¶ 50. Moreover, Mr. Wattman allegedly disclosed

Plaintiff’s cancer to Plaintiff’s customers and coworkers, id. ¶ 56, including by telling one

coworker that Plaintiff “was going to be ‘sitting in the chair,’ which Plaintiff understood to be

17 referring chemotherapy for his cancer treatment,” id. ¶ 57. Throughout this time, Mr. Wattman

also “repeatedly use capitalization in his emails to [Plaintiff], which [Plaintiff] understood as a

written form of yelling.” Id. ¶ 51. And on June 26, 2019, Mr. Wattman sent Plaintiff a threatening

email indicating “that Mr. Wattman would take ‘appropriate action’ related to the ‘quality of life’

and ‘working conditions’ he had established for [Plaintiff].” Id. ¶ 69; see also Def.s Mot., Ex. 5,

ECF No. 12-7 (June 26, 2019 Email). Finally, Plaintiff alleges that “Defendant was aware of the

hostile work environment created by Mr. Wattman” through these actions, but “refused to take

corrective action.” Compl. ¶ 81.

It is true, as Defendant argues, that some of these allegations regarding Plaintiff’s working

conditions in 2019 are not individually “extreme.” Faragher v. City of Boca Raton,

(1998). Namely, Plaintiff’s complaints about assignment distribution and his personal

working capacity, see Compl. ¶¶ 46–48, on their own, may very well fall “within the bounds of

‘ordinary tribulations [in] the workplace,’” Aldrich v. Burwell,

(D.D.C.

2016) (quoting Faragher,

). The Court does not consider such incidents in

isolation, however, but instead must evaluate the “totality of the circumstances” alleged in the

Complaint. Baloch,

. And here, Mr. Wattman also repeatedly made “derogatory

jokes” in February and March of 2019 about Plaintiff’s cancer and medical treatment. Compl. ¶

50. These jokes occurred while Plaintiff was battling the spread of his cancer and undergoing

radiation sessions, see

¶¶ 23–41, and allegedly included comments about Plaintiff “wearing a

diaper” and “sitting on the pan,” a reference to a medical device Plaintiff used while undergoing

treatment,

Moreover, Mr. Wattman allegedly disclosed Plaintiff’s cancer to customers and

coworkers without Plaintiff’s permission, noting to one coworker that Plaintiff would be “sitting

in the chair,” a reference to chemotherapy.

¶¶ 56–57. When considering the totality of these

18 circumstances then, Baloch,

, Plaintiff has alleged conduct that is sufficiently

severe and pervasive to affect his employment conditions and state a plausible hostile work

environment claim at the motion to dismiss stage, see Kruger v. Cogent Commc’ns, Inc.,

(D.D.C. 2016) (denying motion to dismiss hostile work environment claim).

As a final matter, the Court notes that Defendant does not raise a formal exhaustion defense

against Plaintiff’s hostile work environment claim. Cf. Compl. ¶¶ 8–14 (alleging exhaustion of

administrative remedies). Instead, Defendant contends that some of Plaintiff’s individual hostile

work environment allegations were not “exhausted,” because Plaintiff omitted those allegations

from his underlying EEO complaint with the Agency. See Def.’s Mot. at 12–13. Specifically,

Defendant asserts that because Plaintiff did not allege “increased work assignments” in his EEO

complaint, see Compl. ¶ 46, the Court should now disregard such allegations when evaluating

Plaintiff’s hostile work environment claim in Count I of the Complaint, see Def.’s Mot. at 12.

Defendant also argues that because Plaintiff’s EEO complaint references only the June 26, 2019

email from Mr. Wattman, see Def.’s Mot., Ex. 5, ECF No. 12-7 (June 26, 2019 Email), the Court

should discount any allegations of additional emails that Mr. Wattman may have sent, see Def.’s

Mot. at 13.

The Court is not persuaded by this line of argument. First, even if the Court disregarded

Plaintiff’s allegations of “increased work assignments” and focused on no other email

correspondence but the June 26, 2019 email from Mr. Wattman, Plaintiff’s allegations would still

state a plausible hostile work environment claim. As explained above, Plaintiff’s additional

allegations regarding Mr. Wattman’s repeated derogatory comments about Plaintiff’s cancer, in

conjunction with Mr. Wattman’s “threatening” June 26, 2019 email, are enough to survive a

motion to dismiss under Rule 12(b)(6).

19 More fundamentally though, the “partial exhaustion” rule Defendant advances lacks merit.

See Def.’s Mot. at 12–13. Defendant cites to Marshall v. Fed. Exp. Corp.,

(D.C. Cir. 1997), for the proposition that a plaintiff may only support a properly exhausted claim

with allegations clearly presented at the administrative level. But the holding in Marshall applies

to the exhaustion of entire claims, not to the exhaustion of specific allegations. See

. In

fact, the Marshall court made clear that “[n]aturally every detail of the eventual complaint need

not be presaged in the EEOC filing.”

Moreover, “the exhaustion requirement on a hostile work

environment claim is less stringent than for stand-alone claims of discrimination and retaliation,

as a plaintiff need only have filed an EEOC complaint alleging some of the claims that comprise

the hostile work environment claim.” Leach v. Nat'l R.R. Passenger Corp.,

(D.D.C. 2015) (quotation omitted). Accordingly, the Court finds no basis for selectively

excluding any of the individual hostile work environment allegations in Plaintiff’s Complaint,

particularly where Defendant does not even challenge that this claim itself was properly exhausted.

For the reasons set forth above, the Court DENIES Defendant’s motion to dismiss Count

I of the Complaint under Rule 12(b)(6).

2. Count III – Constructive Discharge Next, Plaintiff asserts a related claim for “constructive discharge” in Count III of his

Complaint, arising from his August 8, 2019 resignation from the Department of Energy. See

Compl. ¶¶ 86–95. To state a claim for constructive discharge,4 a plaintiff must allege that “‘(1)

intentional discrimination existed, (2) the employer deliberately made working conditions

intolerable, and (3) aggravating factors justified the plaintiff’s conclusion that [ ]he had no option

4 “There is some dispute in this district over whether constructive discharge can be a standalone cause of action.” Codgell v. Murphy, No. CV 19-2462 (RC),

, at *13 (D.D.C. Nov. 20, 2020) (collecting cases). But because the Court will dismiss Count III of the Complaint on alternative grounds, this dispute does not impact the disposition of Plaintiff’s constructive discharge claim.

20 but to end h[is] employment.’” Cole v. Powell,

(D.D.C. 2009) (quoting

Turner v. District of Columbia,

(D.D.C. 2005)). “Constructive discharge

does not, however, ‘occur when an employee leaves an unpleasant but objectively tolerable job

because alternatives have become more attractive, even if the employer’s misbehavior creates the

unpleasantness.’” Robinson v. Ergo Sols., LLC,

(D.D.C. 2015) (quoting

Taylor v. FDIC,

(D.C. Cir. 1997)). “The inquiry is objective: Did working

conditions become so intolerable that a reasonable person in the employee’s position would have

felt compelled to resign?” Pa. State Police v. Suders,

(2004).

Within this framework, Plaintiff has not presented sufficient allegations in his Complaint

to state a plausible claim for constructive discharge. The allegations Plaintiff offers in support of

his constructive discharge claim are substantively identical to those allegations supporting his

hostile work environment claim. Compare Compl. ¶ 79; with id. ¶ 91. Indeed, Plaintiff alleges

his constructive discharge claim as the logical continuation of the alleged hostile work

environment created by Mr. Wattman’s conduct. See id. ¶¶ 91–95. “But as the Supreme Court

[has] made clear . . . the standards for hostile work environment and constructive discharge claims

are not coextensive.” Steele v. Schafer,

(D.C. Cir. 2008) (citing Suders, 542

U.S. at 133–34). To the contrary, a plaintiff must allege “something more than, say, a hostile work

environment claim alone,” because “unless conditions are beyond ordinary discrimination, a

complaining employee is expected to remain on the job while seeking redress.” Robinson,

(quotations omitted).

Plaintiff’s Complaint does not allege this additional step. While Plaintiff asserts that he

resigned on August 8, 2019 due to Mr. Wattman’s conduct, see Compl. ¶ 74, he offers no

allegations to plausibly demonstrate why the conditions created by Mr. Wattman’s conduct became

21 “so intolerable that a reasonable person in the [his] position would have felt compelled to resign.”

Suders,

. Relatedly, the Complaint contains no factual allegations to plausibly

demonstrate the absence of an opportunity for “remediation on the job.” Veitch v. England,

(D.C. Cir. 2006). Without any such allegations, Plaintiff has not stated a plausible

claim for constructive discharge. See Robinson,

(dismissing constructive

discharge claim on motion to dismiss). Accordingly, the Court GRANTS Defendant’s motion to

dismiss Count III of the Complaint under Rule 12(b)(6).

3. Count II – Disclosure Of Confidential Medical Information Finally, in Count II of the Complaint, Plaintiff asserts a claim for the wrongful disclosure

of his confidential medical information. See Compl. ¶¶ 82–85. The Rehabilitation Act requires

“that the information disclosed pursuant to an employer’s medical inquiry spreads no farther than

necessary to satisfy the legitimate needs of both employer and employee.” Doe v. United States

Postal Serv.,

(D.C. Cir. 2003) (citing

(d)). “[A] mere

technical violation” of the Rehabilitation Act’s confidentiality requirement, however, “will not in

and of itself give rise to damages liability.” Porfiri v. Eraso,

(D.D.C.

2015) (quotation omitted). Instead, to state a claim for the wrongful disclosure of confidential

medical information, a plaintiff “must show that an unauthorized disclosure of medical information

resulted in a ‘tangible injury.’”

at 199 (quoting Koch v. Walter,

(D.D.C. 2013)).

Plaintiff has provided sufficient allegations to state a plausible claim for the wrongful

disclosure of his medical information under the Rehabilitation Act. First, Plaintiff alleges that in

January 2019, he informed his DOE supervisor, Mr. Wattman, of his bladder cancer after Mr.

Wattman inquired into Plaintiff’s basis for requesting medical leave. See Compl. ¶¶ 30–31.

Plaintiff, however, “did not authorize Mr. Wattman to disclose his disability or [the] reason for his

22 leave to Plaintiff’s customers or coworkers.” Id. ¶ 55. Nonetheless, Mr. Wattman allegedly

disclosed the fact of Plaintiff’s cancer to a number of Plaintiff’s coworkers and customers. See id.

¶¶ 52–57. For example, Plaintiff alleges that Mr. Wattman made references to a coworker named

Dan Monahon in the spring of 2019 regarding Plaintiff’s chemotherapy treatment. See id. ¶ 57.

Plaintiff also alleges that Mr. Wattman disclosed Plaintiff’s cancer status to two individual

customers, Mr. Alex Bapty and Mr. Steven Warner, who then made comments to Plaintiff

regarding his cancer. See id. ¶¶ 61–64. In fact, Mr. Warner allegedly told Plaintiff that “Mr.

Wattman was discussing [Plaintiff] having cancer in his emails to him.” Id. ¶ 63. Finally, Plaintiff

notes that Mr. Wattman stated in his June 26, 2019 email: “I’m stuck between making excuses and

disclosing your private issues that have been distracting for you (health).” Id. ¶ 66; see also Def.’s

Mot., Ex. 5, ECF No. 12-7 (June 26, 2019 Email). Taken together, these allegations plausibly

allege, at the motion to dismiss stage, that Mr. Wattman disclosed Plaintiff’s confidential cancer

treatment without authorization.5

Next, Plaintiff has also alleged a “tangible injury,” resulting from Mr. Wattman’s

disclosure of his cancer. Porfiri,

. Specifically, Plaintiff alleges that he

“suffered emotional distress from Defendant’s disclosure of his medical information to his

coworkers and customers.” Compl. ¶ 85. Plaintiff also asserts that Mr. Wattman’s disclosure of

Plaintiff’s cancer to coworkers and customers contributed to a severe and pervasive hostile work

environment, see

¶¶ 79–81, which led to Plaintiff’s resignation from the Department of Energy

on August 8, 2019, see id. ¶ 74. While there is a dearth of precedent in this jurisdiction addressing

the contours of a “tangible injury” under the Rehabilitation Act’s confidentiality provision, see 42

5 Defendant argues that Plaintiff voluntarily disclosed his cancer in a May 23, 2019 email to Ms. Patricia Hagerty. See Def.’s Mot. at 21–22 (quoting Exhibit 9). This May 23, 2019 email, however, is outside of the pleadings and cannot be considered with Defendant’s motion to dismiss under Rule 12(b)(6). See Fed. R. Civ. P. 12(d); disc. supra at 13–14.

(d), at least one court has cited approvingly to the recognition of emotional distress

as a cognizable injury under the Act, Porfiri,

(citing EEOC v. Ford Motor

Credit Co.,

(M.D. Tenn. 2008) (“[S]hame, embarrassment, and

depression” that is suffered “as a result of [an allegedly improper] disclosure” may count as a

tangible injury under § 12112(d).)). The Court finds this precedent to be persuasive, and Defendant

has not cited any binding authority indicating that such an allegation is inadequate at the motion

to dismiss stage. See Def.’s Mot. at 22–23. Accordingly, the Court concludes that Plaintiff’s

allegations of emotional distress plausibly demonstrate a “tangible injury” resulting from Mr.

Wattman’s disclosure of Plaintiff’s confidential medical information.

Plaintiff has, therefore, adequately stated a claim under the Rehabilitation Act for the

improper disclosure of his confidential medical information. Consequently, the Court DENIES

Defendant’s motion to dismiss Count II of the Complaint under Rule 12(b)(6).

IV. CONCLUSION For the reasons set forth in this Memorandum Opinion, the Court DENIES WITHOUT

PREJUDICE Defendant’s motion for summary judgment under Rule 56. See Fed. R. Civ. P.

56(d). The Court, however, GRANTS IN PART and DENIES IN PART Defendant’s motion to

dismiss pursuant to Rule 12(b)(6). Specifically, the Court denies Defendant’s motion to dismiss

Plaintiff’s claims for a hostile work environment and for the disclosure of confidential medical

information in Counts I and II of the Complaint, respectively. Conversely, the Court grants

Defendant’s motion to dismiss Plaintiff’s claim for constructive discharge and DISMISSES Count

III of the Complaint WITHOUT PREJUDICE.

An appropriate Order accompanies this Memorandum Opinion.

Date: December 11, 2020 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

24