Ortega v. Mayorkas

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ALEJANDRO ORTEGA, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary of Homeland Security, et al., Defendant.

No. 23-cv-2417 (GMH)

United States District Court, District of Columbia

September 9, 2024

MEMORANDUM OPINION AND ORDER

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

Plaintiff Alejandro Ortega, a Customs and Border Patrol (“CBP”) Officer, has sued Secretary of Homeland Security Alejandro N. Mayorkas and the U.S. Department of Homeland Security (together, “Defendants” or “the agency”) under the Rehabilitation Act, 29 U.S.C. § 791 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Plaintiff's thirteen-count complaint alleges that the agency discriminated against him on the basis of a disability by delaying its responses to or outright denying his requests for reasonable accommodations (Count I) discriminated against him on the basis of sex, discriminated him on the basis of disability, and retaliated against him when it denied his December 2018 request for light duty and a transfer from his duty station in Presidio, Texas, to El Paso, Texas (Counts II (sex discrimination), III (disability discrimination), and IV (retaliation)); discriminated against him on the basis of disability and retaliated against him when it failed to reinstate him to full duty in late 2019 through June 2020 (Counts V (disability discrimination) and VI (retaliation)); discriminated against him on the basis of disability and retaliated against him when it failed to grant him “Weather and Safety Leave” in May 2020 (Counts VII (disability discrimination) and VIII (retaliation)); unlawfully disclosed his private medical information (Count IX); interfered with his rights under the FMLA by unreasonably delaying its response to his May 2019 request for medical leave (Count X); violated the APA by failing to provide him notice that, while he was on medical leave in late 2018, he was required to pay his health insurance premiums (Count XI); and subjected him to a discriminatory and retaliatory hostile work environment (Counts XII (discriminatory hostile work environment) and XIII (retaliatory hostile work environment)). Defendants have moved to dismiss the bulk of Plaintiff's claims under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction due to Plaintiff's alleged failure to properly exhaust administrative remedies and/or Rule 12(b)(6) for failure to state a claim. Specifically, Defendants seek dismissal of Counts I, III, and IV (related to Plaintiff's light duty/transfer request) and Count IX (related to the alleged disclosure of medical information) for failure to exhaust and failure to state a claim; Count II (related to Plaintiff's light duty/transfer request) and Count XI (related to notice regarding payment of health insurance premiums) for failure to exhaust; Counts VII, VIII (both related to Plaintiff's request for Weather and Safety Leave), XII, and XIII (both related to an alleged hostile work environment) for failure to state a claim; and Count X (related to Plaintiff's May 2019 request for FMLA leave) as barred by the statute of limitations.^[1]

After a thorough review of Defendants' motion and the record,^[2]the Court grants in part and denies in part the motion to dismiss.

I. BACKGROUND

A. Factual Background

The following allegations are derived from Plaintiff's Complaint and are taken as true. Therein, he alleges that, on November 17, 2018, while on duty as a CBP officer in Presidio, Texas, he experienced shortness of breath and swelling of his right arm. ECF No. 1, ¶ 16. His first-line supervisor denied his request to leave his shift early to seek medical attention, so he finished his shift and then sought treatment at an emergency room four hours away in El Paso, Texas, where he was informed that he had suffered a life-threatening pulmonary embolism. See id., ¶¶ 12, 1719. On November 18, 2018, Plaintiff was placed on medical leave, which required him to use a combination of unpaid leave, sick leave, annual leave, and donated leave. See id., ¶ 21. In December 2018, Plaintiff's “prescription and medical bills began getting denied retroactively” by his health insurance provider. Id., ¶ 171; see also id., ¶ 22.^[3]Plaintiff alleges this occurred because the agency failed to provide him legally required notice of his option to pay his own health insurance premiums when he entered “leave without pay” status around that time and that the agency also “retroactively terminated” his health benefits. See id., ¶¶ 167-169, 172. The termination of his insurance caused him to suffer “significant economic damages.” Id., ¶ 173.

While he was on medical leave, on December 7, 2018, Plaintiff requested a light duty assignment in El Paso, Texas, the location closest to where he received treatment for his condition.^[4]See id., ¶¶ 24, 26. On December 10, 2018, he requested a medical hardship transfer to that same location. See id., ¶ 24. Plaintiff asserts that two of his first-line supervisors told his colleagues that he was faking his condition so that he would be transferred. See id., ¶ 28. Both requests were denied-the medical hardship request on March 19, 2019, and the light duty request on April 24, 2019-on the basis that there were no vacancies at that duty station. See id., ¶¶ 25-26. According to Plaintiff, however, a number of female officers were granted medical transfers to El Paso at around the time Plaintiff's requests were made and denied. See id., ¶¶ 93-95, 97. Plaintiff filed a grievance with his labor union regarding the denial of his transfer requests. See id., ¶ 27.

At some point in early 2019, the Port Director of the Presidio, Texas station requested that Plaintiff undergo a “fitness for duty” examination. See id., ¶¶ 12, 30. At a meeting with that Port Director on May 3, 2019, Plaintiff provided a medical note allowing him to return to work with certain restrictions. See id., ¶ 29. The Port Director thereafter canceled the examination and Plaintiff began light duty at the Presidio facility on May 9, 2019. See id. ¶¶ 30-31. On May 24, 2019, Plaintiff received a settlement agreement-apparently in connection with the grievance he had filed with his labor union-stating that he would be reassigned to the Santa Teresa Port of entry-a location closer to El Paso-as of June 9, 2019. See id., ¶ 32; ECF No. 9-1 at 9-10; ECF No. 9-2 at 4 (Final Agency Decision).^[5] On August 5, 2019, two months after Plaintiff's transfer to Santa Teresa, one of his first-line supervisors requested that Plaintiff undergo a fitness for duty examination. See ECF No. 1, ¶ 34. Plaintiff complained that Presidio's Port Director had canceled the fitness for duty exam prior to his transfer. See id., ¶ 34-35. The supervisor checked with Santa Teresa's Port Director, Fernando Thome, who, after Plaintiff was escorted to his office, asserted that “people such as [Plaintiff]” were “a liability” and there was “no place for individuals such as [Plaintiff]” at CBP or at the port of Santa Teresa. Id., ¶ 38. Plaintiff submitted to the examination on August 20, 2019. See id., ¶ 39. Then, on September 10, 2019, Linda Rodriguez, the chief of the section to which Plaintiff had been assigned, questioned Plaintiff about his claim for worker's compensation related to the pulmonary embolism. See id., ¶ 40. She also called a Mission Support Specialist, who stated, “No way is this agency responsible for what happened to [Plaintiff] and if the Department of Labor wants to side with him, we will fight it every step of the way.” Id., ¶ 41. Thereafter, Rodriguez offered to be Plaintiff's “advocate” because he was on “Thome's radar.” Id., ¶ 42.

In late September, the final report from Plaintiff's fitness for duty examination found that Plaintiff was not fit for duty. See id., ¶ 43. On October 2, 2019, Plaintiff provided Thome a medical note from a nurse practitioner who worked with Plaintiff's primary care physician asserting that Plaintiff could return to full duty without restrictions. See id., ¶¶ 44-45. Assistant Port Director John Hawkins rejected the opinion because it was made by a nurse practitioner. See id., ¶ 46. Plaintiff then provided a similar note from his primary care physician, as well as one from his hematologist; Thome refused to release Plaintiff to full duty based on that documentation. See id., ¶¶ 47-48. After Plaintiff complained to the Assistant Director of Field Operations, Thome and one of Plaintiff's first-line supervisors herded Plaintiff into Rodriguez's office. See id., ¶ 50. Thome, allegedly angry and threatening, told Plaintiff that his prior medical notes were “too short” and gave Plaintiff a document affording him fifteen days to provide “administratively acceptable” medical documentation before Thome “stormed out.” Id., ¶¶ 51-54. Thereafter, Rodriguez's manner toward Plaintiff changed and he observed her “winking at him in a menacing and taunting” manner. Id., ¶ 55.

On November 8, 2019, Plaintiff met with two labor employment specialists, asserting that he felt harassed by Thome and that, on October 15, 2019, an individual in management had disclosed Plaintiff's medical condition to co-workers. See id., ¶ 57. Plaintiff also sent an email to Thome stating that Plaintiff felt Thome was harassing him. See id., ¶ 56.

Having received an extension of time to supply medical documentation, Plaintiff provided an updated note from his primary care physician on December 13, 2019, which was forwarded to the Medical Review Officer. See id. ¶ 59. On January 30, 2020, Thome responded that the Medical Review Officer required further information and that the note...