Something Smells Funny in this FMLA Case

Darrell VanDeusen
Darrell VanDeusen

The internet is for … looking stuff up.  Sometimes I become interested in the possible back story of a case that, on it’s face, seems boring.  That’s what happened today.

A recent FMLA case (yes, it’s time to begin my book update) seemed pedestrian enough:  a federal court denied the employer’s motion to dismiss the FMLA claims of an employee who alleges he was denied benefits and disciplined in violation of the Act.  Diorio v. City of Phila., 2022 U.S. Dist. LEXIS 20279 (E.D. Pa. Feb. 4, 2022). But reading the judge’s ruling made me start to ask questions.  That’s when I went down a rabbit hole.

Caveat here: the ruling was on the employer’s motion to dismiss, which means that the court had to consider the allegations of the complaint to be true in deciding whether the case could proceed. 

Joseph Diorio works for the City of Philadelphia as the Director of Audits and Investigations, in the Department of Licenses and Inspections.  He was hired in 1993.  He’s taken lots of FMLA time over the years:  101 days between 2009 and 2018, with 12 of those days in 2018.  He took FMLA leave for chronic sinusitis and to care for an ailing family member.

According to the complaint (and this is just a smattering of the allegations), “[i]n June of 2018, Diorio’s supervisors reduced his job responsibilities, and reassigned much of his work to another individual. Although no reason was provided for the reduction in his responsibilities at the time, Diorio ‘later learned that several members of Senior Management had been discussing his use of intermittent FMLA for several years, in the context of determining whether it impacted his ability to do his job.’”

Diorio was then subjected to disciplinary proceedings for mismanaging another employee, but the event occurred when – wait for it – Diorio was on FMLA leave.  There were other reasons he was to be disciplined as well, but he proved those reasons to be false.  Diorio got a nine day suspension.  He was then told to vacate his office and move to a cubicle (this allegation made me think of Milton in Office Space).

In April 2019 he was told he could not take 60 days of FMLA leave in a year, but only 20 days.  In August 2019, while he was on FMLA leave the supervisor acting for him called him and asked him questions about whether, among other things, he had ever considered having sinus surgery or getting a second medical opinion.  Diorio thought this was an intrusive call and claimed it violated City policy. 

As a result of all of these alleged actions by the City, Diorio claimed that he took about 17 FMLA days fewer than he would have – interfering with his FMLA rights.  He sued.  The City filed a motion to dismiss, which basically means that even if everything Diorio alleged is true, there was no possible violation of the FMLA.  

Now, no one asked me, but if they had I would have told the City to save its time and money, these allegations will likely get past a motion to dismiss.  Okay, maybe there was stuff I didn’t know.  Sometimes employers don’t file a motion to dismiss thinking the whole case will get tossed, only part of it.  That could certainly be the case here.

That’s when I saw the rabbit hole.  First, I found this:  Joseph Diorio v. City of Phila., 1997 U.S. Dist. LEXIS 3920 (E.D. Pa. Mar. 31, 1997).  Here’s the summary from that case:  “at approximately 3:30 a.m. on March 21, 1994, the Director of Security for the Philadelphia Sheraton Hotel was awakened by Diorio, who was banging a fire extinguisher on a hotel room door. When confronted . . . Diorio displayed a photo identification card and a gold badge identifying him as a Special Deputy Sheriff with the rank of Chief Inspector.  Using the card, Diorio asked the Director of Security to extend ‘professional courtesy’ and open the door to the room behind which was a woman Diorio had met earlier at a nightclub. . . . Diorio showed his identification to a Philadelphia police officer who rejected it and arrested Diorio for impersonating a public official, disorderly conduct and criminal mischief.”

He was suspended by the City and brought a Section 1983 claim alleging he was denied due process.  The case was dismissed.  Same guy?  I don’t know.  But this Joe Diorio was employed same City “L&I” department. 

And then there’s this:  according to a 2020 article in the The Philadelphia Inquirer, Joseph A. Diorio Jr. “a veteran inspector for the city Department of Licenses and Inspections, complained that his unit had been shut for three months in early 2019 – after senior L&I officers accused his group of being too sympathetic to organized labor, and which has spilled into court” when Diorio filed suit in state court. The article continued that “the city’s lawyers . . . denied Diorio’s unit was actually suspended or that he was punished for targeting nonunion businesses. . . . [T]hey asked the court to dismiss Diorio’s complaint.  The judge refused.

The takeaway here?  And you thought FMLA cases were boring didn’t you.

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