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”),

, 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]

1 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.

. 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.”

. 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.

The

determination further indicated that GWU “was contacted and

instructed to provide proof of misconduct” but GWU did not do

so.

Accordingly, Mr. Chloe was deemed qualified to receive

unemployment benefits effective October 4, 2020.

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.

2 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,

(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,

, (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,

, (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.,

(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."

The

standard does not amount to a "probability requirement," but it

3 does require more than a "sheer possibility that a defendant has

acted unlawfully."

"[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,

(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.,

(D.C. Cir. 1994). A "pro se complaint is

entitled to liberal construction." Washington v. Geren,

(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,

.

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.”

(a)(1),(2).

“[A] plaintiff may bring retaliation claims under 2615(a)(1) by

alleging an employer discriminated against [him] for taking FMLA

4 leave.” Waggel v. George Washington University,

(D.C. Cir. 2020) (citing Gordon v. U.S. Capitol Police,

(D.C. Cir. 2015) (citing Gleklen v. Democratic

Cong. Campaign Comm., Inc.,

, 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,

. “[A] plaintiff may [also] bring interference claims under

§ 2615(a)(a) . . . .” Waggel,

(citing Gordan,

(citing McFadden v. Ballard Spahr Andrews &

Ingersoll, LLP,

(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.”

at 1376 (citing Gordon, 778

F.3d at 164–65; McFadden,

(citing Ragsdale

v. Wolverine World Wide Inc.,

, (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.

5 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,

; 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,

(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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