Mazeau v. SHPS Acquisition Corporation

Filing 34

ORDER DISMISSING CASE, Defendants' Motion to Dismiss 20 is granted; this case is dismissed with prejudice; all pending motions are denied as moot. Signed by Senior Judge James A Teilborg on 3/24/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rebecca D. Mazeau,

No. CV-14-00080-PHX-JAT
Plaintiff,

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v.

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ORDER

SHPS Acquisition Corporation, et al.,

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Defendants.

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Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint.

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(Doc. 20). The Court now rules on the motion.

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I.

Background

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A.

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Plaintiff initially filed a complaint on April 19, 2013, but later withdrew this

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complaint. (Doc. 20 at 3, 6). On December 13, 2013, Plaintiff filed another complaint in

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the Arizona Superior Court for Maricopa County. (Doc. 20 at 3; Doc. 1 at 11). This case

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was then removed to the U.S. District Court for the District of Arizona. (Doc. 1).

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Plaintiff amended her complaint several times and defendant now moves to dismiss the

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amended complaint. (Doc. 20).

Procedural History

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B.

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On November 4, 2009, Plaintiff was hired by Defendants as a “Quality Assurance

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Lead.” (Doc. 19 at ¶ 1). Plaintiff suffered a stroke in July of 2010 that “required [] long

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term hospitalization.” (Id. at ¶ 2). Plaintiff “utilized her short term disability coverage

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from July 2010 through December 2010. (Id. at ¶ 5). After Plaintiff’s short term

Factual History

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disability coverage had run out, Plaintiff then inquired as to whether FMLA leave was

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available and elected to take FMLA leave in January 2011. (Id. at ¶ 7). While Plaintiff

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was on FMLA leave, Defendants terminated Plaintiff’s employment on February 28,

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2011. (Doc. 20 at 6). Plaintiff filed a claim with the EEOC, who decided not to pursue

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her claim and mailed her a right-to-sue letter on January 10, 2013. (Doc. 20 at 5; Doc. 8

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at Ex. C). Plaintiff filed her initial Complaint alleging FMLA and ADA violations on

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April 19, 2013. (Doc. 21 at 5; Doc. 20 at 6). Plaintiff alleges in her Complaint general

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factual violations of the FMLA and ADA:
9. SHPS failed to offer Petitioner FMLA leave at any time, rather,
Petitioner had to inquire as to whether this was an option after her short
term disability ended.
10. Pursuant to 29 U.S.C. § 2612(a)(1)(D), SHPS unlawfully
interfered with Petitioner’s FMLA rights by failing to offer her the options
to take FMLA leave after a triggering event occurred. . . .
13. While Petitioner was on FMLA leave, SHPS terminated
Petitioner’s employment.
14. SHPS unlawfully interfered with Petitioner’s FMLA and ADA
rights by failing to hold an employment position open for Petitioner during
her leave, and terminating a person with a known and recorded disability.

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(Doc. 19 at ¶¶ 9, 10, 13, 14).

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II.

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Defendants move to dismiss both the Americans with Disabilities Act (“ADA”)

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and the Family and Medical Leave Act (“FMLA”) claims2 arguing that the claims are

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time-barred. (Doc. 20 at 1). Defendants do not specify whether they move to dismiss

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pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(6) or 12(b)(1), but the Court

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interprets this motion as being pursuant to Rule 12(b)(1). See Sisseton-Wahepton Oyate

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of Lake Traverse Reservation v. U.S. Corps. Of Engineers, 918 F. Supp. 2d 962, 967

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(D.S.D. 2013) (“the statute of limitations is a jurisdictional limit”); see also St. Clair v.

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City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (“Like other challenges to a court’s

Discussion1

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Defendants also assert a motion to strike the response to the motion to dismiss
and a motion to dismiss for repeated rule violations. Doc. 22 at 3–4. However, due to
the Court granting Defendants motion to dismiss, these motions are both moot.
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subject matter jurisdiction, motions raising the ripeness issue are treated as brought under

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Rule 12(b)(1) even if improperly identified by the moving party as brought under Rule

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12(b)(6).”).

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The defense of lack of subject matter jurisdiction may be raised at any time by the

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parties or the court. See Fed. R. Civ. P. 12(h)(3).

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“for lack of subject matter jurisdiction may either attack the allegations of the complaint

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or may be made as a ‘speaking motion’ attacking the existence of subject matter

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jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs., 594 F.2d 730, 733 (9th

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Cir. 1979). Here, it appears that Defendants make a facial attack because their briefs

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“examine[] whether the complaint has sufficiently alleged subject matter jurisdiction.”

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Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other

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grounds by Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (U.S. 2012). In resolving

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a “facial attack” under Rule 12(b)(1), the district court must accept the allegations of the

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complaint as true, see Valdez v. United States, 837 F. Supp. 1065, 1067 (E.D. Cal. 1993),

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aff’d, Valdez v. United States, 56 F.3d 1177 (9th Cir. 1995), and “draw all reasonable

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inferences in [the Plaintiff’s] favor.” Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.

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2009) (citing Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)); see also Jetform

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Corp. v. Unisys Corp., 11 F. Supp. 2d 788, 789 (E.D. Va. 1998) (“The plaintiff is then

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afforded the same procedural protection as he would receive under Rule 12(b)(6)

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consideration.”).

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a.

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ADA claims must be filed with the Court ninety days from the receipt of the Equal

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Employment Opportunity Commission’s (“EEOC”) right-to-sue letter. See 42 U.S.C. §

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2000e-5(f)(1). There is a “presumption that the letter issuance date is also the date on

A Rule 12(b)(1) motion to dismiss

ADA Claim

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The Complaint also mentions COBRA, life insurance, and social security
damages, along with a HIPAA violation. (Doc. 19 at 1, 4). To the extent that these
allegations constitute legal claims, the Court agrees with Defendants that HIPAA does
not provide a private right of action, Webb v. Smart Document Solutions, LLC, 499 F.3d
1078, 1082 (9th Cir. 2007), and Plaintiff’s mention of COBRA life insurance, and social
security damages are tied up with Plaintiff’s FMLA claim. (Doc. 19 at 1, 4).
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which the letter was mailed.” Payan v. Aramark Mgmt. Serv.s Ltd. P’ship, 495 F.3d

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1119, 1123 (9th Cir. 2007). After the letter is mailed there is a further presumption that

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the recipient received the letter three days after it was mailed. Id. at 1125–26.

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The EEOC issued their right-to-sue letter on Thursday, January 10, 2013. (Doc. 8

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at Ex. C).3 Presuming three days from issuance to receipt, Plaintiff received the right-to-

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sue letter on Monday, January 14, 2013. See Payan, 495 F.3d at 1125–26. Plaintiff filed

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her complaint on December 13, 2013, three hundred and thirty-three days after the

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presumed receipt of the right-to-sue letter from the EEOC. (Doc. 1 at 11). This would

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time-bar Plaintiff’s ADA claim as a matter of law.4

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Even if the Court considers

Plaintiff’s original complaint—filed on April 19, 2013—Plaintiff is still time barred.

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Plaintiff offers no persuasive argument as to why her ADA claim is not time-

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barred. Plaintiff mentions that her EEOC claim was filed “within the time frame required

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by the EEOC – after the charge was perfected internally.” (Doc. 22 at 2). However, the

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statute of limitations begins running when Plaintiff receives a right-to-sue letter, not

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when Plaintiff files an EEOC claim or when the claim is perfected. Furthermore, Plaintiff

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mentions that Defendants’ “internal records related to [Plaintiff’s] short term disability

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leave of absence . . . are incorrect” and that “[t]heir poor record keeping created issues for

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Plaintiff when she applied for unemployment and Social Security Disability Insurance.”

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(Doc. 21 at 2). But again, these records have no bearing on Plaintiff adhering to the

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Plaintiff relies upon this right-to-sue letter as a procedural prerequisite to her
filing of her complaint. Therefore, the Court may consider this document on a motion to
dismiss. Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998) (superseded by
statute on other grounds by Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006))
(Where “an attached document is integral to plaintiff’s claims and its authenticity is not
disputed, the plaintiff ‘obviously is on notice of the contents of the document and the
need for a chance to refute evidence is greatly diminished.”).
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At oral argument, Plaintiff’s counsel stated that the EEOC right-to-sue letter was
not received until April 15, 2013. However, this statement is not supported by any
evidence and was not alleged in the amended complaint. Further, even if the statement is
taken at face value, the EEOC claim would still be time barred. Plaintiff’s claim was not
filed until December 13, 2013, still well outside the ninety day statute of limitations.
Plaintiff’s initial claim, filed on April 19, 2013, was voluntarily dismissed by Plaintiff
and is a nullity. See, e.g., Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995)
(plaintiff’s voluntary dismissal of action “leaves the parties as though no action had been
brought”).
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ninety day filing deadline for a civil action. While this “poor record keeping” may have

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created issues for Plaintiff filing her EEOC claim, the statute of limitations does not start

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to run until Plaintiff received her right-to-sue letter after the EEOC has declined to pursue

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Plaintiff’s EEOC claim. Therefore, the ADA claim is time-barred.

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b.

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FMLA claims may be brought no “later than 2 years after the date of the last event

FMLA Claim

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constituting the alleged violation for which the action is brought.”

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2617(c)(1). However, if there is a willful violation of the FMLA, a claim “may be

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brought within 3 years of the date of the last event constituting the alleged violation.” 29

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U.S.C. § 2617(c)(2). The FMLA does not define willful, but in the context of the Fair

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Labor Standards Act (“FLSA”), willful has been defined as circumstances where “the

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employer either knew or showed reckless disregard for the matter of whether its conduct

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was prohibited by statute.” Hanger v. Lake Cnty., 390 F.3d 579, 583 (8th Cir. 2004); see,

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e.g., Rigel, 2006 WL 3831384, at *13 (“The Court specifically rejected a standard for

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willfulness that ‘would . . . permit a finding of willfulness to be based on nothing more

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than negligence’ . . . .” (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135

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(1988)). The 8th Circuit has thus applied the FLSA’s definition of “willful” to the FMLA

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because both acts use “willful” similarly and in identical contexts. Hanger, 390 F.3d at

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583.

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potential applicability does not prove willfulness.” Id. at 584.

29 U.S.C. §

Under this standard, “an employer’s general knowledge regarding a statute’s

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Here, the last event constituting an alleged violation of the FMLA is the allegedly

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unlawful discharge of Plaintiff, which occurred on February 28, 2011.5 (Doc. 20 at 6).

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Plaintiff’s complaint alleging an FMLA violation was not filed until December 13, 2013,6

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The EEOC right-to-sue letter states that Plaintiff was discharged on February 28,
2011. Plaintiff relies upon this right-to-sue letter as a procedural prerequisite to her filing
of her EEOC complaint. Therefore, the Court may consider this document on a motion to
dismiss. Parrino, 146 F.3d at 706 n.4 (Where “an attached document is integral to
plaintiff’s claims and its authenticity is not disputed, the plaintiff ‘obviously is on notice
of the contents of the document and the need for a chance to refute evidence is greatly
diminished.”).
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Plaintiff initially filed a complaint alleging a FMLA violation on April 19, 2013.
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well past the two year statute of limitations.

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Defendants willfully violated the FMLA, thereby giving Plaintiff three years to file an

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FMLA claim. See 29 U.S.C. § 2617(c)(2).

Thus, Plaintiff is time-bared unless

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Plaintiff directs the Court to no allegations in the Complaint of a willful FMLA

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violation by Defendants and the Court cannot find any, even when drawing all reasonable

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inferences in the Plaintiff’s favor. Indeed, the only allegations of FMLA violations seem

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to simply parallel the statute’s description of a violation. See Doc. 23-1 at ¶¶ 9, 10, 13,

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14. The Complaint contains factual allegations of an FMLA violation, but does not go

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beyond alleging the basic elements of a violation.7 See Doc. 19 at ¶¶ 9, 10, 13, 14.

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Therefore, because the Complaint contains no allegations of “willful” FMLA violations,

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the FMLA claim is time-barred.

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III.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 20) is GRANTED.

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This case is dismissed with prejudice.

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IT IS FURTHER ORDERED all pending motions are denied as moot.

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Dated this 24th day of March, 2015.

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Even if the Court used this earlier filing date, Plaintiff still filed over two years from
Plaintiff’s discharge.
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At oral argument, Plaintiff’s counsel was urged to point to the record where a
“willful” violation of the FMLA is alleged. Plaintiff was unable to do so.
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