Armstrong v. Doherty Florida North Port, LLC

Filing 27

ORDER: Defendant Doherty Florida North Port, LLC's Motion to Dismiss 6 is GRANTED. Plaintiff David A. Armstrong has until and including August 15, 2014, to file a Second Amended Complaint. Signed by Judge Virginia M. Hernandez Covington on 7/21/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID A. ARMSTRONG,
Plaintiff,
v.

Case No. 8:14-cv-1270-T-33MAP

DOHERTY FLORIDA NORTH
PORT, LLC,
Defendant.
____________________________/
ORDER
This cause is before the Court pursuant to Defendant
Doherty Florida North Port, LLC’s Motion to Dismiss filed on
June 5, 2014. (Doc. # 6). Plaintiff David A. Armstrong filed
a response in opposition to the Motion on June 19, 2014. (Doc.
# 10). For the reasons stated below, and for the reasons
stated at the hearing on July 18, 2014, the Court grants
Defendant’s

Motion.

However,

the

Amended

Complaint

is

dismissed without prejudice, so that Plaintiff may file a
Second Amended Complaint by August 15, 2014, to state a claim,
if possible.
I.

Background

Armstrong was employed at an Applebee’s operated by
Gator Apple, LLC until the company sold the Applebee’s to
Doherty. (Doc. # 2 at ¶¶ 9-10). According to Armstrong, he
was offered a position by Doherty on July 24, 2013. (Id. at
¶ 11). On July 27, 2013, Armstrong allegedly injured his knee
while working. (Id. at ¶ 12). Armstrong contends that his
doctor gave him medical restrictions and further claims that
his work-related injury was a “serious health condition” that
rendered him unable to work for almost one month. (Id. at ¶¶
12-13).
Armstrong informed Doherty “of his [s]erious [h]ealth
[c]ondition

and

of

his

need

to

take

leave

to

receive

treatment.” (Id. at ¶ 14). According to Armstrong, Doherty
did not inform Armstrong of his FMLA rights or grant his FMLA
leave despite the fact that he was eligible for such leave.
(Id. at ¶ 15). Armstrong argues that Doherty terminated his
employment on August 14, 2013. (Id. at ¶ 16). Armstrong thus
contends that Doherty interfered with his rights under the
FMLA and retaliated against his exercise of those rights.
(Id. at ¶¶ 19, 24-25).
Armstrong brought this action in state court against
Doherty on February 19, 2014, and filed an Amended Complaint
on April 17, 2014 (Doc. # 2), alleging Family and Medical

2

Leave Act interference (Count I), Family and Medical Leave
Act

retaliation

(Count

II),

and

worker’s

compensation

retaliation (Count III). (Id. at ¶¶ 18-19, 24-25, 29-30).
Doherty timely removed this action on May 29, 2014, contending
that this Court has jurisdiction pursuant to 28 U.S.C. § 1331
because the FMLA claims arise under the laws of the United
States.

(Doc.

#

1).

The

Court

remanded

the

worker’s

compensation claim to state court on May 30, 2014, for lack
of subject matter jurisdiction. (Doc. # 4).
Doherty filed the present Motion on June 5, 2014 (Doc.
# 6), to which Armstrong responded on June 19, 2014 (Doc. #
10). This Court held a hearing on the Motion on July 18, 2014.
The Court has reviewed the Motion and the response thereto
and is otherwise fully advised in the premises.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this

Court

favors

the

plaintiff

with

all

reasonable

inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (“On a motion to dismiss, the facts stated in [the]

3

complaint and all reasonable inferences therefrom are taken
as true.”). However:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).

Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of

review

must

be

limited

to

the

four

corners

of

the

complaint.” St. George v. Pinellas Cnty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
Under the FMLA, an eligible employee is entitled to take
up to twelve workweeks of unpaid leave every twelve months
due to, for example, “a serious health condition that makes
the employee unable to perform the functions of the position
of such employee.” Rivera v. Avis Budget Car Rental, LLC, No.
8:11-cv-1676-T-33EAJ, 2012 WL 1656907, at *5 (M.D. Fla. May
10, 2012) (quoting 29 U.S.C. § 2612(a)(1)). Employees may
bring a cause of action for interference, retaliation, or

4

both to protect their right under the FMLA. See id. To assert
an interference claim under the FMLA, “an employee must allege
that [he] was denied a benefit to which [he] was entitled
under the FMLA.” Chapman v. United States Postal Serv., 442
F. App’x 480, 483 (11th Cir. 2011). To claim retaliation under
the FMLA, the employee must assert that: “(1) [he] engaged in
statutorily
adverse

protected

employment

activity;

action;

and

(2)

[he]

(3)

experienced

there

is

a

an

causal

connection between the protected activity and the adverse
action.” Id. (quoting Hurlbert v. St. Mary’s Health Care Sys.,
Inc.,

439

F.3d

1286,

1293

(11th

Cir.

2006)

(internal

quotations omitted)).
Doherty moves to dismiss Armstrong’s Amended Complaint,
claiming that Armstrong failed to plead his FMLA claims with
sufficient specificity. (Doc. # 6 at ¶ 7). Particularly,
Doherty

contends

that

Armstrong

never

submitted

that

he

accepted a position with Doherty or that he was employed by
Doherty at any time, especially at the time of his alleged
injury. (Id. at ¶¶ 8-9). Thus, Doherty submits that Armstrong
did not plead “enough facts to state a claim for relief that
is plausible on its face,” and as a result his “Amended
Complaint is not supported by factual allegations.” (Id. at

5

¶ 11) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009);
Twombly, 550 U.S. at 570).
Conversely, Armstrong asserts that under Skinner v.
Switzer, 131 S. Ct. 1289 (2011), he sufficiently pled his
FMLA interference and retaliation claims. (Doc. # 10 at 23). Armstrong contends that because the Skinner opinion cited
the pre-Twombly case of Swierkiewicz v. Sorema, N.A., 534
U.S.

506

(2001),

discrimination
“reinvigorate
Swierkiewicz

when

claim,
and

faced
the

with

Supreme

re-stress

pleading

standard

the
for

a

29
Court

U.S.C.

§

intended

importance

1983
to

of

the

discrimination

and

retaliation claims with only the Twombly and Iqbal additional
gloss that the pleadings must contain a ‘plausible’ short and
plain statement of the claim.” (Doc. # 10 at 2-3) (citing
Skinner, 131 S. Ct. at 1296).
Armstrong submits that under the Swierkiewicz pleading
standard, Title VII discrimination and retaliation claims do
not require a heightened pleading standard, and Title VII
plaintiffs need not allege “specific facts in support of their
claims.”

(Id.

at

3)

(internal

quotation

marks

omitted)

(citing Twombly, 550 U.S. at 570 (citing Swierkiewicz v.
Sorema, N.A., 534 U.S. 506, 508 (2001))).

6

The Court acknowledges Armstrong’s argument regarding
the pleading standard in this action, but is inclined to
disagree with his interpretation. In Swierkiewicz, 534 U.S.
at

506,

the

Supreme

Court

held

that

a

complaint

in

an

employment discrimination lawsuit need not contain specific
facts establishing a prima facie case of discrimination under
McDonnell Douglas, but must contain only a short and plain
statement of the claim showing that the pleader is entitled
to relief. See Uppal v. Hosp. Corp. of Am., 483 F. App’x 394,
396 (11th Cir. 2012)(quoting Swierkiewicz, 534 U.S. at 511)
(“Although a plaintiff need not satisfy the McDonnell Douglas
framework at the pleading stage in order to state a claim for
disparate treatment, the ‘ordinary rules for assessing the
sufficiency of a complaint [still] apply.’”).
Therefore, at this stage of the proceedings, although
Armstrong need not provide the specific factual allegations
to support his FMLA claims, he must still provide sufficient
information

to

establish

his

entitlement

to

relief.

See

Skinner, 131 S. Ct. at 1296 (“[U]nder the Federal Rules of
Civil Procedure, a complaint need not pin plaintiff’s claim
for relief to a precise legal theory. Rule 8(a)(2) of the
Federal Rules of Civil Procedure generally requires only a
plausible ‘short and plain’ statement of the plaintiff’s

7

claim, not an exposition of his legal argument.”); see also
Uppal, 482 F. App’x at 396.
Furthermore, although Fed. R. Civ. P. 8 constitutes a
liberal

pleading

standard,

legal

conclusions

must

be

supported by factual allegations. See Iqbal, 556 U.S. at 664.
For

example,

a

plaintiff’s

FMLA

complaint

must

contain

sufficient facts to allege that he or she is an “eligible
employee” under the FMLA. See Saavedra v. USF Bd. of Trustees,
No. 8:10-CV-1935-T-17TGW, 2011 WL 1742018, at *3 (M.D. Fla.
May 6, 2011) (granting defendant’s 12(b)(6) motion with leave
to amend because plaintiff’s complaint pled insufficient
facts to support the legal conclusion that plaintiff was an
eligible employee under the FMLA); Shanks v. Potter, No. CV
110-045, 2010 WL 8347107, at *6 (S.D. Ga. Dec. 28, 2010) (“To
survive a motion to dismiss, a plaintiff's complaint must
contain sufficient factual matter to allow for an inference
that the employee has been employed for at least 12 months by
the employer and for at least 1,250 hours in the last 12
months.”).
Viewing all reasonable inferences in the light most
favorable to Armstrong, this Court finds that Armstrong did
not sufficiently plead his FMLA claims. See Randall v. Scott,
610 F.3d 701, 705 (11th Cir. 2010) (“[The Court must] draw

8

all reasonable inferences in the plaintiff’s favor.”). In
Shanks, 2010 WL 8347107 at *6, the court found that the
plaintiff had not sufficiently pled his FMLA claim as he
“failed to make any mention whatsoever of his status as an
‘eligible

employee’

under

the

FMLA”

in

his

complaint.

Likewise, although Doherty fails to raise the issue in its
Motion, Armstrong failed to mention his status as an eligible
employee under the FMLA in his Amended Complaint. While
Armstrong

states

in

conclusory

fashion

that

he

was

“an

employee within the meaning of the FMLA” and “eligible for
FMLA leave,” he does not provide any facts to support those
contentions,

including

when

his

employment

with

Doherty

commenced. (See Doc. # 2 at ¶¶ 3, 15).
Therefore,

based

solely

on

the

four

corners

of

Armstrong’s Amended Complaint, the alleged job offer, injury,
and termination dates provided by Armstrong do not support a
reasonable inference that Armstrong was an eligible employee
under the FMLA. Armstrong alleges that he was employed by
Gator Apple, LLC; that he was offered a position by Doherty
on July 24, 2013; that he was injured while working on July
27, 2013; and that Doherty terminated his employment on August
14, 2013. (Id. at ¶¶ 9, 11-12, 16). Armstrong provides no
facts to allege that he was employed “for at least 12 months

9

. . . and for at least 1,250 hours of service,” and thus does
not factually support the legal conclusion that he was an
eligible employee. See 29 U.S.C. § 2611(2)(A).
Furthermore, although Armstrong alleges that Doherty was
an “employer” as well as a “successor in interest” to Gator
Apple, LLC, he does not assert any facts to support either of
those labels by, for example, addressing the qualification
factors listed in 29 U.S.C. § 2611(4) and 29 C.F.R. § 825.107,
respectively. See 29 U.S.C. § 2611(4); 29 C.F.R. § 825.107;
(Doc. # 2).
Upon due consideration, this Court finds that Armstrong
failed to sufficiently plead his FMLA claims of interference
and retaliation as he did not allege sufficient facts to
support the legal conclusion that he was an eligible employee
under the FMLA. Additionally, he did not allege facts to
support the legal conclusions that Doherty was an employer
and a successor in interest within the meaning of the FMLA.
Thus, Doherty’s Motion is granted, and Armstrong has until
August 15, 2014, to file a Second Amended Complaint to state
a claim, if possible.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

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(1)

Defendant Doherty Florida North Port, LLC’s Motion to
Dismiss (Doc. # 6) is GRANTED.

(2)

Plaintiff David A. Armstrong has until and including
August 15, 2014, to file a Second Amended Complaint.
DONE and ORDERED in Chambers, in Tampa, Florida, this

21st day of July, 2014.

Copies: All Counsel of Record

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