UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEVIN LEWIS,

Plaintiff,

v. No. 21-cv-3299 (DLF)

EXELON CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Kevin Lewis brings this action against his former employers, Exelon Corporation and

Potomac Electric Power Company (Pepco), alleging that they discriminated and retaliated

against him because of his disability and use of medical leave. Before the Court is the

defendants’ Partial Motion to Dismiss, Dkt. 3. For the reasons that follow, the Court will grant

the motion.

I. BACKGROUND1

Kevin Lewis began working for Exelon and Pepco in February 2020 as a Work Week

Manager. Compl. ¶ 9, Dkt. 1-1. He suffers from asthma, a “disability [that] substantially

limit[s] a major life activity.” Id. ¶¶ 12, 20. Starting in March 2020, he worked remotely from

Chesapeake, Virginia due to the COVID-19 pandemic. Id. ¶ 11. Allegedly, in December 2020,

Lewis contracted COVID-19 and has continued to suffer from its effects, id. ¶ 13, exacerbated by

his asthma, id. ¶ 12. Sometimes, he experienced “significant asthma symptoms” during work

hours that necessitated his use of medical leave. Id. ¶ 14. He told the defendants when he had to

1 On a Rule 12(b)(6) motion, the Court assumes the truth of material factual allegations in the complaint. See Am. Nat. Ins. Co. v. FDIC,

(D.C. Cir. 2011). take medical leave, and he never exhausted his leave.

Lewis took three days of medical

leave starting on April 28, 2021 after an “extremely bad asthma attack.” Id. ¶ 15. He alleges

that when he returned, his supervisor, Steven Omijuanfo, began to criticize his work. Id. ¶ 16.

Lewis claims that Omijaunfo directed him to send an email at the end of each day listing the

work that he had performed—a task that none of his peers were required to do. Id. Further,

Omijuanfo accused him of “failing to perform work” and initiated an investigation against him.

Id. ¶ 17. Lewis asked if these issues should be brought to Human Resources, but Omijuanfo

continued to “micromanag[e]” him and “accuse [him] of not working,” despite the fact that

Lewis claims he was a “high performer” with “some of the highest production numbers in his

Department.” Id. ¶ 17.

On June 25, 2021, Lewis was fired, allegedly “because of his disability and in retaliation

for using medical leave due to his disability.” Id. ¶ 18–19. He filed suit in D.C. Superior Court

on November 2, 2021, bringing claims under the District of Columbia Human Rights Act

(DCHRA),

, et seq, the District of Columbia Family and Medical Leave

Act (DCFMLA),

, et seq, and the federal Family and Medical Leave Act

(FMLA),

, et seq. Compl. ¶ 4. Following removal to this Court, see Notice of

Removal, Dkt. 1, the defendants filed a partial motion to dismiss three of the four counts. See

Mot. to Dismiss at 1.

II. LEGAL STANDARDS

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R.

Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter

sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

, 570 (2007). A facially plausible claim is one that “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). This standard does not amount to a specific probability requirement,

but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see

also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief

above the speculative level.”). A complaint need not contain “detailed factual allegations,” but

alleging facts that are “merely consistent with a defendant’s liability . . . stops short of the line

between possibility and plausibility.” Iqbal,

(internal quotation marks omitted).

Well-pleaded factual allegations are “entitled to [an] assumption of truth,”

, and

the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all

inferences that can be derived from the facts alleged,” Hettinga v. United States,

(D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply,

however, to a “legal conclusion couched as a factual allegation.” Iqbal,

(internal

quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is

not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.”

Ultimately, “[d]etermining whether a

complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.”

.

When deciding a Rule 12(b)(6) motion, the court may generally consider only the

complaint itself, documents attached to the complaint, documents incorporated by reference in

the complaint, and judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997).

3 III. ANALYSIS

The defendants move to dismiss Lewis’s claims under the DCHRA, arguing that he has

not sufficiently alleged a connection between his termination and his disability and that he has

not stated a hostile work environment claim. See Mot. to Dismiss at 3–6. They also seek

dismissal of his DCFMLA claim on the ground that as a remote employee, he is not covered

under the Act. Id. at 7. The Court will address each argument in turn.

A. Disability Discrimination

In Count I of his complaint, Lewis alleges that he faced disability discrimination under

the DCHRA. Compl. ¶¶ 23–26. The DCHRA forbids employers from “discharg[ing]” an

employee “wholly or partially for a discriminatory reason” based on his “actual or perceived . . .

disability.” D.C. Code § 2–1402.11(a). To state a claim for disability discrimination, a plaintiff

must allege that he was disabled as defined by the statute, that he was qualified for the relevant

position with or without a reasonable accommodation, and that he suffered an adverse

employment action because of his disability. Ingram v. D.C. Child & Fam. Servs. Agency,

, 126 (D.D.C. 2019); Chang v. Institute for Public-Private P’ships, Inc.,

(D.C. 2004). The defendants assume for the purposes of this motion that Lewis’s

asthma qualifies as a disability and do not address his qualifications, see Mot. to Dismiss at 3,

and they agree that his termination is an adverse employment action, see

But they contend

that the alleged facts do not give rise to the inference that he was fired due to his disability.

The Court agrees. Lewis’s claim that the defendants fired him because of his disability is

a conclusory allegation unsupported by the facts in the complaint. According to the complaint,

Lewis took medical leave for his asthma numerous times throughout his employment, and his

supervisor began to criticize his performance and accuse him of failing to do his work after one

4 of those leaves. Compl. ¶¶ 14, 16–17. Nearly two months after that leave, he was fired. Id. ¶

18. Absent from the complaint is any allegation that Lewis was criticized for taking leave or was

questioned about how his leave affected his work output, let alone that he ever received negative

comments about his asthma. See Abebio v. G4S Gov’t Sols., Inc.,

(D.D.C. 2014) (rejecting a DCHRA family responsibilities discrimination claim where the

plaintiff did not allege that her supervisor discussed the effect of her childcare duties on her work

schedule or said that they contributed to her termination); Miles v. Univ. of D.C., No. 12-cv-378,

, at *13 (D.D.C. Oct. 30, 2013) (allowing a DCHRA family responsibilities

claim to proceed where the plaintiff, among other things, alleged that a supervisor “appear[ed] to

equate [her] maternity leave with” the abandonment of her work). Indeed, Lewis does not

explicitly state that the defendants even knew about his disability—he alleges only that he told

them when medical leave was “necessary.” Compl. ¶ 14. Given that Lewis worked remotely for

most of his employment, see

, it is not clear that the defendants were aware that he

took medical leave because of a disability. See McCaskill v. Gallaudet Univ.,

(D.D.C. 2014) (dismissing a DCHRA discrimination claim in part because the

defendant’s knowledge of the plaintiff’s religious convictions “remain[ed] hazy on the face of

the Complaint”).

Even if the alleged facts support the plausible inference that Lewis was fired because he

took medical leave, the Court cannot, without more, make the inferential leap that the decision

was also motivated by his underlying disability. See Slate v. Pub. Def. Serv. for D.C.,

(D.D.C. 2014) (dismissing gender discrimination case where the plaintiff

alleged that he was suspended in retaliation for his protected EEO activity, as opposed to his

gender). There are no facts alleged in the complaint that support a causal inference that Lewis’s

5 termination was due, in whole or in part, to his disability. Thus, the Court will dismiss his

DCHRA discrimination claim.2

B. Hostile Work Environment

In Count II of his complaint, Lewis asserts a hostile work environment claim under the

DCHRA. Compl. ¶¶ 27–30. To prevail on such a claim, a plaintiff must show that he suffered

“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)); see Briscoe v. Costco Wholesale Corp.,

(D.D.C. 2014)

(explaining that the legal standard under the DCHRA is substantially similar to the standard

under Title VII). To assess whether a hostile work environment exists, courts “look[] 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,

. “The Supreme Court has made it clear that conduct must be extreme to amount to

a change in the terms and conditions of employment,” George v. Leavitt,

(D.C. Cir. 2005) (internal quotation marks and citation omitted), such that “simple teasing,

2 Lewis argues that his claim should proceed because “proving discrimination under the DCHRA is easier than under Title VII and the ADA.” Pl.’s Opp’n at 5, Dkt. 9. Not so. “DCHRA and federal discrimination claims are analyzed under the same legal standard.” Slate,

n.3. And the Court finds that Lewis has not alleged facts sufficient to support a plausible inference that his termination was caused, even “partially,” by his disability. See D.C. Code § 2– 1402.11(a).

6 offhand comments, and isolated incidents . . . will not” be sufficient. Faragher v. City of Boca

Raton,

(1998)).

According to Lewis, his supervisor’s behavior was “severe and pervasive,” Compl. ¶ 17,

but this is a conclusory allegation that the Court need not take as true. Iqbal,

.

And the only alleged facts that support his hostile work environment claim are that Omijuanfo

“criticized [his] work,” directed him to send daily emails with a summary of his work, “accused

[him] of failing to perform work,” “micromanaged” him, and started an investigation against

him. Compl. ¶¶ 16–17. Taken together, in the light most favorable to Lewis, these alleged facts

do not show a “severe and pervasive pattern of harassment,” Outlaw v. Johnson,

(D.D.C. 2014), that “create[d] an abusive working environment,” Baloch,

(quoting Harris,

).

First, criticisms of an employee’s work product “are the kinds of normal strains that can

occur in any office setting.” Singh v. U.S. House of Representatives,

(D.D.C. 2004); see also Nurriddin v. Bolden,

(D.D.C. 2009) (“[T]he

removal of important assignments, lowered performance evaluations, and close scrutiny of

assignments by management [cannot] be characterized as sufficiently intimidating or offensive in

an ordinary workplace context.”). That Lewis, unlike his co-workers, had to send daily work

summary emails was a “minor inconvenience at best, not the type of behavior that alters the

conditions of the victim’s employment.” Briscoe,

(internal quotation marks

and alteration omitted); see also Truesdale v. District of Columbia, No. 21-cv-315,

, at *5 (D.D.C. Mar. 30, 2022) (“[E]ven accepting as true that [the plaintiff] was

subjected to more scrutiny than other employees . . . there is no indication that [this] interfered

with her ability to perform her job or was sufficiently severe to support a hostile work

7 environment claim.”). Finally, while Lewis claims that he was investigated, he provides no

details about the investigation or what it entailed. “Absent more information regarding the

nature and extent of the [investigation],” the Court cannot find that it helped create an abusive

work environment. Briscoe,

.

In sum, the allegations fail to state a hostile work environment claim. Accordingly, the

Court will dismiss Count II of the complaint.

C. Retaliation and Interference with Rights under DCFMLA

In Count III of his complaint, Lewis asserts claims of retaliation and interference with

rights under the DCFMLA. Compl. ¶¶ 31–39. But as an employee who worked outside of D.C.,

Lewis cannot validly state a claim under the DCFMLA. To be covered under the statute, an

employee must work within the District in one of two ways. First, an employee qualifies “if the

person spends more than fifty percent (50%) of his or her work-time working for the employer in

the District, if the person is employed by the employer in more than one (1) location.” D.C.

Mun. Regs., tit. 4, § 1603.5. Alternatively, an employee works within the District if he or she “is

based in the District of Columbia and regularly spends a substantial part of his or her time

working for the employer in the District of Columbia and does not spend more than fifty percent

(50%) of his or her work-time working for the employer in any particular state.” Id. Lewis

worked remotely from Virginia since the COVID-19 pandemic began in March 2020, see

Compl. ¶ 11, so he is not an eligible employee. See Border v. Nat’l Real Estate Advisors, LLC,

, 253 (D.D.C. 2020) (“Plaintiff spent the majority of her work-time in

Florida, so she is not an eligible employee under the DCFMLA.”).

True, the D.C. Coronavirus Support Emergency Act, D.C. Act 23-326, temporarily

amended the DCFMLA to provide COVID-19-related leave. Pl.’s Opp’n at 12–13. But in

8 arguing that the Act extended DCFMLA coverage to remote employees during the health

emergency, Lewis misreads the D.C. Office of Human Rights’ guidance. Cf.

; Pl.’s

Opp’n, Ex. C (OHR Enforcement Guidance 21-001), Dkt. 9-1. In fact, the guidance makes clear

that the Act amends the definition of eligible “employee” only for the new COVID-19 leave. See

Pl.’s Opp’n, Ex. C at 15 (“No Effect on Traditional Family and Medical Leave: [The Act] does

not change the definitions of employer and employee, or eligibility for traditional family and

medical leave entitlements…”). Lewis took time off for his asthma, not COVID-19, so he used

traditional medical leave. Compl. ¶ 15. Lewis points to an answer in the guidance’s FAQ

section that suggests that an “employee remains covered by the DCFMLA even if the employee

is working from home outside of the District of Columbia during a declaration of health

emergency,” Pl.’s Opp’n, Ex. C at 17. But the question that this statement answers refers only to

the DCFMLA’s “new provisions”—that is, the COVID-19 leave provisions, not traditional

medical leave.

The guidance thus implies that a remote employee is covered by the

DCFMLA only for COVID-19 leave. This reading is reinforced by the fact that the guidance

also states that the Act does not alter the definition of “employee” for traditional leave.

Because Lewis is a remote employee, he cannot bring claims under the DCFMLA, and

therefore, the Court will dismiss Count III.

Accordingly, it is

ORDERED that the defendants’ Partial Motion to Dismiss, Dkt. 3, is GRANTED. It is

further

ORDERED that Counts I, II, and III are DISMISSED WITHOUT PREJUDICE. It is

further

9 ORDERED that the defendants shall file an answer to the plaintiff’s complaint on or

before May 31, 2022.

SO ORDERED.

________________________ DABNEY L. FRIEDRICH United States District Judge May 17, 2022

10