Cardwell v. Securitas Critical Infrastructure Services, Inc.
MEMORANDUM OPINION AND ORDER GRANTING 10 MOTION TO DISMISS the plfs' claim under the Family Medical Leave Act; this holding does not affect the plf's remaining discrimination claims as alleged in the Amended Complaint, as further set out in order. Signed by Honorable Judge Danny C. Reeves on 10/21/16. (Attachments: # 1 civil appeals checklist)(djy, )
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
INFRASTRUCTURE SERVICES, INC.,
Civil Action No. 2: 15-869-DCR
On November 19, 2015, Sheila Cardwell filed this action under the Family Medical
Leave Act (hereafter, “FMLA” or the “Act”), 29 U.S.C. § 2601 et seq., alleging that the
defendant, her former employer, interfered with her right to obtain benefits under the Act.
[Record No. 1] The defendant filed a timely motion to dismiss for failure to state a claim under
Rule 12 (B)(6) of the Federal Rules of Civil Procedure. On July 15, 2016, while the motion
to dismiss was still pending, Cardwell was granted leave to file an Amended Complaint.
[Record No. 18] Having been granted a right-to-sue letter by the EEOC, Cardwell added
claims of disability and age discrimination. The motion to dismiss, which is now construed as
a motion to dismiss the Amended Complaint [see Record No. 19], is pending for the Court’s
Cardwell is female and in her mid-fifties. She was employed by Pinkerton Government
Services, which was acquired by Defendant Securitas Critical Infrastructure Services, Inc.
(“SCIS”) around 2011. [Record No. 18, ¶¶ 4, 6] While working as a security officer for the
defendant, she was primarily assigned to work at Sikorsky Aircraft in Troy, Alabama. Id. at ¶
7. Plaintiff contends that, aside from very minor issues, she was never reprimanded for the
quality of her work. Id.
At some point, Cardwell advised management at both Sikorsky and SCIS that she
suffered from high blood pressure. Id. at ¶ 8. Cardwell reports that management of both
companies knew that she received medical care for this condition and would occasionally need
to miss work. Id. On March 27, 2015, Cardwell experienced “an immediate attack of chest
pains.” Id. at ¶ 9. Cardwell contends the pain was so severe, she believed she was having a
heart attack or stroke. Id. She felt required to “immediately leave work to go home, to seek
relief from the pain, and see whether she needed to go to the hospital.” Id. Before leaving
work, Cardwell informed Sikorsky’s human resources manager and he consented. Id. at ¶ 10.
She also informed the human resources manager that she would alert someone from SCIS
regarding the situation. Id.
Cardwell contends there was not an SCIS supervisor on site. As a result, she called Lt.
Mike Burroughs of SCIS before leaving Sikorsky. Id. at ¶ 11. Cardwell contends that
Burroughs told her “ok” and informed her that he would have someone at Sikorsky replace
her. Id. at ¶ 12. Burroughs asked her if she had talked with “the captain,” and she explained
that she had not, because she was concerned about her health. Id. Cardwell asked Burroughs
if he would talk to the captain on her behalf, and Burroughs agreed. Id.
On March 30, 2015, Cardwell went to her doctor who confirmed that her blood pressure
was very high. Id. at ¶ 13. The doctor instructed Cardwell to return home and rest. The same
day, Cardwell contacted Captain Bestiline and reported the situation with her blood pressure.1
Captain Bestiline informed Cardwell that she “had been taken off the schedule, until [Bestiline]
could talk with someone else higher up than him.” Id. Within the following week, Cardwell
also discovered that she was suffering from shingles. Id. at ¶ 14. After a prescribed course of
medication, however, she was “soon doing fine.” Id.
On April 8, 2015, Cardwell received a letter from SCIS notifying her that her
employment was terminated. Id. at ¶ 15. SCIS stated that Cardwell had left her post without
proper relief or authorization from her supervisor or that she had engaged in “no call no show”
conduct. Id. Cardwell contends that these reasons are inaccurate and are a mere pretext for
the actual reasons for her termination—namely, because of her age, SCIS’s perception that she
was suffering from a disability, and the likelihood that she would request FMLA leave. Id. at
In considering the defendant’s motion to dismiss under Rule 12(b)(6), the allegations
of the Amended Complaint are taken as true and are construed in the light most favorable to
the plaintiff. See Davis v. Monroe Cnty. Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997).
To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a
claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim is plausible on its face where “the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops
The plaintiff is uncertain regarding the correct spelling of Captain Bestiline’s name.
Additionally, it is unclear whether this is the “captain” referred to in Paragraph 12.
short of the line between possibility and plausibility of entitlement to relief.” Id. The
determination of 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.”
Id. at 679.
The FMLA provides, in part, as follows:
The term “eligible employee” means an employee who has been employed—
(i) for at least 12 months by the employer with respect to whom leave is
requested under [the Act]; and
(ii) for at least 1,250 hours of service with such employer during the
previous 12-month period. . . .
The term “eligible employee’ does not include—
(ii) any employee of an employer who is employed at a worksite at which
such employer employs less than 50 employees if the total number of employees
employed by that employer within 75 miles of that worksite is less than 50.
29 U.S.C. § 2611(2)(A), (B).
SCIS contends that Cardwell has failed to allege sufficient facts to establish that she is
an eligible employee under the Act. While Cardwell became employed by the defendant in
2011 or earlier, she makes no allegations regarding the number of hours she worked during
her employment period. Further, her Complaint and Amended Complaint are devoid of any
allegation regarding the number of employees at her worksite or those within 75 miles. SCIS
correctly argue that these deficiencies warrant dismissal of the FMLA claim.
To state a claim of interference under the FMLA, a plaintiff must allege sufficient facts
to plausibly suggest that she was entitled to a benefit under the Act and that she was denied
that benefit. Surtain v. Hamlin Terrace Found., 789 F.3d 1239 (11th Cir. 2015) (citing
Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206–07 (11th Cir.
2001)). Conclusory allegations are not sufficient with respect to the “eligible employee”
requirement. See id. at 1247.
In Surtain, the plaintiff sued her former employer on a variety of claims, including
interference under the FMLA. After the employer did not file an answer, Surtain moved for
default judgment. Although Surtain alleged that she had worked for the defendant employer
for more than 12 months, she made no allegations concerning her length of employment or the
number of employees. Surtain v. Hamlin Terrace Found., No. 12-81401, 2014 WL 11443907,
at *5 (S.D. Fla. May 20, 2014). There were no facts from which the court could reasonably
infer that the plaintiff was an eligible employee within the meaning of the Act. Because the
standard for default judgment is akin to that for a motion to dismiss under Rule 12(b)(6), the
court denied the plaintiff’s motion for default judgment. On appeal, the Eleventh Circuit
agreed that Surtain’s complaint contained insufficient allegations to state a plausible claim
under the FMLA.2 Surtain, 789 F.3d at 1248. See also Shanks v. Potter, 451 F. App’x 815
(11th Cir. 2011) (affirming dismissal of FMLA claim where plaintiff failed to plead sufficient
facts regarding “eligible employee” status).
In her memorandum in response to the motion to dismiss, Cardwell argues that SCIS
was her employer—not Sikorsky, and that SCIS’s headquarters is the worksite for purposes of
In Surtain, the Eleventh Circuit reversed and remanded the district court’s sua sponte dismissal
of the plaintiff’s FMLA interference claim. 789 F.3d at 1248. Dismissal on the merits is
appropriate only when the party who brought the suit has been given notice and a chance to
respond. Id. (citations omitted). Unlike the instant matter, Surtain had not received notice that her
FMLA claim was deficiently pled. It is noteworthy that the FMLA allegations in the Amended
Complaint, which was filed after the defendant’s motion to dismiss, are the same as those in the
29 U.S.C. § 2611(2)(B)(ii). She did not amend her Complaint, however, to include an
allegation regarding the “worksite requirement.” Further, Cardwell has entirely failed to
address the § 2611(2)(A)(ii) requirement that she must have worked at least 1,250 hours with
SCIS during the previous 12-month period. Each of these elements is required to state a claim
under the FMLA.
The Court follows a two-pronged approach in evaluating the sufficiency of a complaint:
(1) eliminate any allegations in the complaint that are mere legal conclusions; and (2) assume
the veracity of the well-pleaded factual allegations and determine whether they plausibly
suggest entitlement to relief. Iqbal, 556 U.S. 662 (2009). With respect to Cardwell’s status as
an eligible employee, she has offered little more than legal conclusions.
conclusions are omitted from the Amended Complaint, the Court is left with nothing more
than a statement regarding the duration of the plaintiff’s employment. The allegations that
remain do not suggest that Cardwell is an eligible employee under the Act.
Accordingly, it is hereby
ORDERED that the defendant’s motion to dismiss the plaintiff’s claim under the
Family Medical Leave Act [Record No. 10] is GRANTED. This holding does not affect the
plaintiff’s remaining discrimination claims as alleged in the Amended Complaint.
This 21st day of October 21, 2016.
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