Horton v. Channel et al
ORDER granting in part and denying in part 13 Motion to Dismiss Plaintiff's Second Amended Complaint. Signed by Judge James M. Moody on 7/24/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 4:11CV00911 JMM
CHANNEL, ET AL.
Pending before the Court is Defendants’ second Motion to Dismiss Plaintiff’s Amended
Compliant and Plaintiff’s response. For the reasons stated below the motion is granted in part and
denied in part (#13). Plaintiff’s Title VII gender discrimination claim is dismissed and Plaintiff’s
FMLA retaliation claim remains.
Plaintiff brings this lawsuit alleging violation of the Family Medical Leave Act (”FMLA”),
Title VII, 42 U.S.C. § 1983, the Arkansas Civil Rights Act (“ACRA”), and the Arkansas
Constitution. Defendants’ Federal Rule of Civil Procedure 12(b)(6) motion contends Plaintiff’s
Amended Complaint fails to state a claim of FMLA interference and that the Court lacks
jurisdiction over Plaintiff’s Title VII Gender Discrimination claim.
Plaintiff, in her response, does not object to the dismissal of her Title VII gender
discrimination claim. However, she does object to dismissal of her FMLA interference claim
contending she has alleged sufficient facts to state such a claim.
When analyzing a Rule 12(b)(6) motion, the Court construes the complaint in the light
most favorable to the nonmoving party. Ritchie v. St. Louis Jewish Ligfht, 630 F.3d 713, 715-16
(8th Cir. 2011). “To survive a motion to dismiss, the factual allegations in a complaint, assumed
true, must suffice ‘to state a claim to relief that is plausible on its face.’ ” Northstar Indus., Inc. v.
Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when
the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1940121 F3d 446, 173 L.Ed.2d 868 (2009).
There are two types of claims under the FMLA: “(1) ‘interference’ or ‘(a)(1)’ claims in
which the employee alleges that an employer denied or interfered with his substantive rights
under the FMLA and (2) ‘retaliation’ or ‘(a)(2)’ claims in which the employee alleges that the
employer discriminated against him for exercising his FMLA rights.” Stallings v. Hussmann
Corp., 447 F.3d 1041, 1050 (8th Cir.2006) (citing 29 U.S.C. § 2615(a)(1)-(2)). Defendants
concede that Plaintiff has stated sufficient facts to state a retaliation claim, but deny that she has
stated an interference claim because she has failed to allege facts that she was prevented from
taking FMLA leave.
The FMLA's anti-interference provision encompasses more than an employer’s mere
denial of an employee's request for FMLA leave. See Stallings v. Hussmann Corp., 447 F.3d at
1050; Throneberry v. McGEhee Desha County Hosp., 403 F.3d 972 (8th Cir. 2005). “An
employer is prohibited from interfering with, restraining, or denying an employee's exercise of or
attempted exercise of any right contained in the FMLA.” Stallings, 447 at 1050 (citing 29 U.S.C.
§ 2615(a)(1)). “Interference includes ‘not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave. It would also include manipulation by a
covered employer to avoid responsibilities under FMLA.’” Id. (citing 29 C.F.R. § 825.220(b)).
“An employer's action that deters an employee from participating in protected activities
constitutes an ‘interference’ or ‘restraint’ of the employee's exercise of his rights.” Id. The
Eighth Circuit has held that “every discharge of an employee while he is taking FMLA leave
interferes with an employee's FMLA rights.” Throneberry, 403 F.3d at 980. Moreover, “[a]n
employer ‘cannot use the taking of FMLA leave as a negative factor in employment actions, such
as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under ‘no fault’
attendance policies.’” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012) (citing 29
C.F.R. § 825.220(c)).
Plaintiff’s amended complaint states that (1) she gave notice of the need of FMLA leave;
(2) she was accused of faking illness; (3) she was accused of not calling in when she was ill; and
(4) she was terminated on the day she returned to work from FMLA leave.
At this stage of the litigation, the Court finds that Plaintiff has alleged sufficient facts to
state an interference claim.
IT IS SO ORDERED THIS
July , 2012.
James M. Moody
United States District Judge
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