Morkoetter v. Sonoco Products Company

Filing 19

ORDER granting in part and denying in part 15 Motion to Dismiss Plaintiff's First Amended Complaint. The Motion is DENIED as to the Plaintiff's Family Medical Leave Act claim and GRANTED as to Plaintiff's Employee Retirement Income Security Act claim. Signed by Judge Rudy Lozano on 3/29/2013. (tlr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

JAMES G. MORKOETTER,
Plaintiff,
vs.
SONOCO PRODUCTS COMPANY
a/k/a SONOCO FLEXIBLE
PACKAGING CO., INC.,
d/b/a “SONOCO,”
Defendant.

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No. 3:11-cv-485

OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss
Plaintiff’s First Amended Complaint, filed by Defendant, Sonoco
Products

Company

a/k/a

Sonoco

Flexible

Packaging

Co.,

Inc.,

d/b/a “Sonoco” (“Sonoco”), on April 20, 2012. (DE #15). For the
reasons set forth below, the Motion to Dismiss Plaintiff’s First
Amended Complaint is GRANTED IN PART AND DENIED IN PART.
motion is

DENIED

The

as to Plaintiff’s Family Medical Leave Act

claim and GRANTED as to Plaintiff’s Employee Retirement Income
Security Act claim.

BACKGROUND
Plaintiff, James G. Morkoetter (“Morkoetter”), is a former
employee of Sonoco. (First Am. Compl. ¶ 1). While employed by
Sonoco,

Morkoetter

emotional,

and

suffered

mental

from

health

a

variety

conditions.

(Id.

of
¶

physical,
4).

Sonoco

terminated Morkoetter’s employment on November 26, 2009. (Id. ¶
6).
Subsequent to his termination, Morkoetter filed a Complaint
against

Sonoco

on

November

22,

2011,

in

the

Fulton

County

Circuit Court. Sonoco removed the Complaint to this Court on
December 19, 2011, and filed a motion to dismiss Morkoetter’s
Complaint on January 17, 2012. In response to Sonoco’s motion to
dismiss, Morkoetter filed a motion to amend his Complaint on
January

27,

Morkoetter’s

2012.

On

motion

February

to

amend

13,
and

2012,

the

Court

granted

marked

his

First

Amended

Complaint as filed that same day.
Morkoetter’s First Amended Complaint alleges claims under
the

Family

Retirement

Medical
Income

Leave

Act

(“FMLA”)

Security

Act

and

(“ERISA”).

the

With

Employee
regard

to

Morkoetter’s FMLA claim, he alleges that Sonoco is an “employer”
as

defined

by

the

FMLA.

(First

Am.

Compl.

¶

2).

Morkoetter

further alleges that he “intended to take FMLA leave after he
became a qualified employee by being employed [by Sonoco] for at
least

(1)

year”

and

that

“[j]ust
2

before

[his]

one-year

anniversary, [he] informed [Sonoco] of his need to take FMLA in
the

future

and

notified

[Sonoco]

of

his

serious

health

conditions and need to take time off to attend to his own health
care needs.” (Id. ¶ 4). Specifically, Morkoetter alleges that:
[Sonoco] retaliated against him because he gave
advanced notice of his need to take FMLA and [Sonoco]
purposely terminated [him] just prior to [his]
qualification for FMLA leave, and retaliated against
[him] by firing him on or about November 26, 2009,
about five (5) weeks prior to when he would have
qualified for FMLA coverage. [That Sonoco] knew about
[his] serious health conditions and knew that [he] had
plans to take medical leave after becoming eligible
for FMLA [leave].
(Id. ¶ 6) (emphasis added).
With regard to his ERISA claim, Morkoetter alleges that
Sonoco

maintains

a

medical

insurance

plan

(“Plan”)

for

the

benefit of its employees and that the Plan is governed ERISA.
(Id. ¶ 3). As a result of his health conditions, Morkoetter
alleges that he used Plan benefits, including medical insurance
coverage for a hospital stay and various other medical expenses,
and that, by using these benefits, Sonoco knew about his serious
medical conditions. (Id. ¶ 5). Further, Morkoetter alleges “that
[Sonoco] terminated him, in part, because he took advantage of
[Sonoco’s] Plan of health care insurance benefits and utilized
those benefits, and [Sonoco] violated ERISA § 510 by interfering
with [his] job by intentionally firing/laying [him] off because
of his utilization of Plan benefits.” (Id. ¶ 7).

3

Sonoco

filed

its

Motion

to

Dismiss

Plaintiff’s

First

Amended Complaint and supporting brief on April 20, 2012. (DE
#15.)

Morkoetter

filed

a

response

in

opposition

to

Sonoco’s

motion to dismiss on May 2, 2012. (DE #17.) Sonoco filed a reply
to Morkoetter’s response on May 14, 2012. (DE #18.) Therefore,
the matter is fully briefed and ripe for adjudication.

DISCUSSION
Federal

Rule

of

Civil

Procedure

12(b)(6)

provides

for

dismissal for “failure to state a claim upon which relief can be
granted.”

When

considering

a

motion

to

dismiss

under

Rule

12(b)(6), a court must accept all well-pled factual allegations
in the complaint as true and construe all reasonable inferences
in

the

light

most

favorable

to

the

non-moving

party.

Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007)
citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To
survive a motion to dismiss under Rule 12(b)(6) a claim must
plead “enough facts to state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. That is, “[f]actual
allegations must be enough to raise a right to relief above the
speculative

level

allegations

in

the

.

.

.

on

complaint

the
are

fact).” Id. at 555.

4

assumption
true

(even

that
if

all

doubtful

the
in

MORKOETTER’S FMLA RETALIATION CLAIM
The FMLA allows eligible employees to take unpaid leave in
certain

circumstances

when

the

employee

becomes

unable

to

perform their job duties due to a serious health condition. 29
U.S.C. 2612(a)(1)(D); Caskey v. Colgate-Palmolive Co., 535 F.3d
585, 590 (7th Cir. 2008). An “eligible employee” is defined as
“an employee who has been employed for at least 12 months by the
employer . . . and for at least 1,250 hours of service with such
employer

during

the

previous

12-month

period.”

29

U.S.C.

§

2611(2). The applicable authorized implementing regulations note
that “[t]he determination of whether an employee has [met the
eligibility requirements] must be made as of the date the FMLA
leave is to start.”

29 C.F.R. § 825.110(d).

Specifically with

regard to “retaliation,” the FMLA provides that “[i]t shall be
unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice
made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). See
King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.
1999) (noting that 29 U.S.C. section 2615 “affords employees
protection

in

the

event

they

are

discriminated

exercising their rights under the [FMLA]”).

against

for

Put another way, an

employer cannot use an employee’s reliance on the FMLA as a
“negative factor in promotion, termination, and other employment

5

decisions.” James v. Hyatt Regency Chicago, 707 F.3d 775, 781
(7th Cir. 2013) (citation omitted).
Sonoco

argues

that

Morkoetter

conceded

he

was

not

an

“eligible employee” as defined by the FMLA at the time of his
termination, and, consequently, Morkoetter cannot bring an FMLA
retaliation claim. (DE #16, p. 5). Specifically, Sonoco contends
that Morkoetter “admits that he had not worked for at least 12
months

at

interest
argues

the

in

that

time

taking
this

he

allegedly

FMLA

leave.”

type

of

informed
(Id.).

[Sonoco]

of

Essentially,

“pre-eligibility”

his

Sonoco

retaliation

claim

should not be recognized under the FMLA. The relevant question,
therefore, is whether an employee who was not yet eligible for
FMLA coverage can bring a claim for retaliation under the FMLA
when

that

employee

gave

notice

to

their

employer

of

their

intention to take FMLA leave once eligible and was terminated
prior to achieving FMLA eligibility.
The Seventh Circuit has not directly addressed this issue;
however, the Court has found several persuasive on point cases
from surrounding district and circuit courts. For example, in
Reynolds v. Inter-Indus. Conference on Auto Collision Repair,
the court addressed the issue of “whether an employee is barred
from

proceeding

with

an

FMLA

claim

if

he

or

she

has

been

employed for less than twelve months but requests leave to begin
more than a year after employment commenced.” 594 F. Supp. 2d
6

925, 927-28 (N.D. Ill. 2009). In recognizing this type of “preeligibility” FMLA claim, the court first noted that the FMLA
contemplates situations in which employees must provide their
employer with notice of foreseeable future leave. See Id. at
928; 29 U.S.C. § 2612(e)(1). The court explained that:
[i]t would be illogical to interpret the notice
requirement in a way that requires employees to
disclose requests for leave which would, in turn,
expose them to retaliation, or interference, for which
they have no remedy. If employers were not bound by
the FMLA before the employee is eligible, then the
employee should not be required to give the employer
any notice. Logic requires that the FMLA be read to
require that that employee be permitted to make a
charge against the employer for an adverse employment
action. Furthermore, the FMLA protects the ‘attempt’
to exercise a right, which can only mean (in contrast
with the actual exercise of that right) that the FMLA
protects an employee who asks for leave even though he
may not be eligible, such as the case here. 29 U.S.C.
§ 2615(a)(1).
Reynolds, 594 F. Supp. 2d at 928-29 (internal citations and
quotation marks omitted). The court also pointed out that the
implementing

regulations

state

the

eligibility

determination

must be made “as of the date the FMLA leave is to start.” Id. at
929

(emphasis

in

original)

(citing

29

C.F.R.

§

825.110(d)).

Finally, the court noted that it would go against the intent and
purpose

of

the

FMLA

to

allow

an

employer

to

“terminate

an

eleventh month-employee for simply requesting foreseeable leave
for which he is eligible, when that employer would be clearly

7

prohibited from making that same decision a month later.”

Id.

at 930.
Other courts have followed the same reasoning employed in
Reynolds.
that

In a recent Eleventh Circuit case, the court held

the

“FMLA

eligibility

protects

leave.”

a

Pereda

pre-eligibility
v.

Brookdale

request

Senior

Inc., 666 F.3d 1269, 1270-71 (11th Cir. 2012).

for

Living

postCmty.,

The court noted

that:
a pre-eligible request for post-eligible leave is
protected activity because the FMLA aims to support
both employees in the process of exercising their FMLA
rights and employers in planning for the absence of
employees on FMLA leave. Protecting both reflects that
the FMLA should be executed ‘in a manner that
accommodates the legitimate interest of employers’ 29
U.S.C. 2601(b)(3) without abusing the interests of
employees.
Id. at 1276.

See also Gleaton v. Monumental Life Ins. Co., 719

F. Supp. 2d 623, 629 (D.S.C. 2010) (“The court finds that an
employee

may

bring

a

employee

was

terminated

retaliation
prior

to

claim
becoming

under

FMLA

eligible

if
for

the
FMLA

leave, but the employee declared an intention to take leave more
than one year after employment commenced.”).
The Court agrees with the persuasive reasoning of these
cases

and

finds

that

a

pre-eligibility

request

for

post

eligibility leave is protected by the FMLA. Here, Morkoetter
alleges that, just before his one-year anniversary, he informed
Sonoco of his “need to take FMLA in the future” and that Sonoco
8

retaliated against him because it knew of his advance notice and
“plans to take medical leave after becoming eligible for FMLA.”
(First Am. Compl. ¶¶ 4, 6).

Taking these allegations as true

and giving them the reasonable inferences they are due at this
stage, the Court finds that the complaint adequately alleges
that

Morkoetter

retaliation

was

and

eligible

rejects

for

Sonoco’s

FMLA

argument

protection
that

against

dismissal

is

appropriate because Morkoetter was not an “eligible employee” at
the time he notified Sonoco of his intention to take future FMLA
leave.
Sonoco also argues that Morkoetter “fail[ed] to allege all
of the elements of an FMLA retaliation claim.” (DE #16, p. 6).
Sonoco asserts that “[Morkoetter’s] First Amended Complaint is
so vague that it fails to demonstrate that Morkoetter engaged in
any

protected

activity.

It

is

also

devoid

of

any

facts

sufficient to make a plausible casual connection between his
alleged notification…and his termination.” (Id.).
Morkoetter correctly notes in his brief that it is not
necessary to plead the elements of a prima facie case to survive
a motion to dismiss. See Swierkiewicz v. Sorema N. A., 534 U.S.
506,

510-511

(2002)

(“The

prima

facie

case

under

McDonnell

Douglas, however, is an evidentiary standard, not a pleading
requirement.

.

.

.

This

Court

has

never

indicated

that

the

requirements for establishing a prima facie case . . . also
9

apply to the pleading standard that plaintiffs must satisfy in
order to survive a motion to dismiss.”); Twombly, 550 U.S. 544,
547

(2007)

consistent

(indicating
with

that

the

Swierkiewicz

and

“plausibility
that

“the

standard”
Court

is

is
not

requiring heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face”)
(emphasis added). Rather, under current pleading standards, a
complaint must state a claim for relief that is “plausible” to
avoid dismissal. Atkins v. City of Chicago, 631 F.3d 823, 832
(7th Cir. 2011) cert. denied, 132 S. Ct. 1569, 182 L. Ed. 2d 191
(U.S. 2012).
In
approach

Ashcroft
to

be

v.

Iqbal,

used

in

the

Court

evaluating

provided
whether

a
a

two
claim

part
is

sufficiently pled under the “plausibility” standard. 556 U.S.
662, 679 (2009). First, a court should examine the complaint to
distinguish between factual allegations and legal conclusions.
Id.

Unlike

factual

allegations,

legal

conclusions

are

not

afforded an assumption of truth. Second, accepting any remaining
factual allegations as true, the court should determine whether
those factual allegations give rise to a “plausible” claim for
relief. Id. With regard to the notion of a “plausible” claim,
the Seventh Circuit recently explained:
This is a little unclear because plausibility,
probability, and possibility overlap. Probability runs
the gamut from a zero likelihood to a certainty. What
10

is impossible has a zero likelihood of occurring and
what is plausible has a moderately high likelihood of
occurring. But one sees more or less what the Court
was driving at: the fact that the allegations
undergirding a plaintiff's claim could be true is no
longer enough to save it . . . . [T]he complaint taken
as a whole must establish a nonnegligible probability
that the claim is valid, though it need not be so
great a probability as such terms as “preponderance of
the evidence” connote.
Atkins,

631

F.3d

at

831-832

(emphasis

added).

The

Court

concluded that “[a]fter Twombly and Iqbal a plaintiff to survive
dismissal ‘must plead some facts that suggest a right to relief
that is beyond the speculative level.’” Id. at 832; see also
Iqbal 556 U.S. at 678 (“The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”).
Turning to the present case, under the two-part analysis
articulated in Iqbal, the Court must first separate the factual
allegations contained in Morkoetter’s First Amended Complaint
from legal conclusions. This task reveals the following factual
allegations:

(1)

that

Morkoetter

suffered

from

multiple

physical, emotional, and mental health conditions while employed
by Sonoco; (2) that Morkoetter intended to take FMLA leave once
eligible

as

a

result

of

these

health

conditions;

(3)

that

Morkoetter informed Sonoco of this intention just before his
one-year

anniversary

of

employment

with

Sonoco;

(4)

that

Morkoetter was fired by Sonoco on November 26, 2009; and (5)

11

that

Morkoetter

would

have

been

eligible

for

FMLA

leave

approximately 5 weeks after November 26, 2009. Accepting these
factual

allegations

as

true,

the

Court

must

now

determine

whether Morkoetter has stated a plausible claim for relief under
the FMLA.
Although a plaintiff need not plead the elements of a prima
facie

case

in

order

to

survive

a

motion

to

dismiss,

those

elements can serve as guidance when considering the sufficiency
of a complaint. A plaintiff may establish a prima facie case
under

the

FMLA

for

retaliation

by

either

the

“direct”

or

“indirect” method of proof. Caskey v. Colgate-Palmolive Co., 535
F.3d 585, 593 (7th Cir. 2008). Under the direct method of proof,
the

plaintiff

must

“present

evidence

of

(1)

a

statutorily

protected activity; (2) a materially adverse action taken by the
employer; and (3) a causal connection between the two.”
Because

the

Court

finds

Morkoetter’s

First

Amended

Id.

Complaint

states a plausible claim for relief under the direct method, the
Court need not consider the indirect method.
First,

as

described

in

more

detail

above,

Morkoetter

sufficiently alleged that he engaged in “statutorily protected
activity” by giving notice to Sonoco of his intention to take
FMLA leave once eligible in the future. (First Am. Compl. ¶ 4);
see Reynolds, 594 F. Supp. 2d at 927-930. Second, Morkoetter
allegedly suffered a “materially adverse action taken by the
12

employer” when he was fired on November 26, 2009. (First Am.
Compl. ¶ 6); see King, 166 F.3d at 893 (finding that termination
constitutes a materially adverse employment action).
The Court finds the issue of causation more troubling. The
Seventh Circuit has held that causation may be established by a
“temporal proximity” between a plaintiff’s statutorily protected
activity and subsequent termination. King 166 F.3d at 893. Thus,
the crucial time period with regard to causation is the period
between

the

alleged

statutorily

protected

activity

and

the

plaintiff’s termination.
In this case, Morkoetter alleges that he notified Sonoco of
his intention to take FMLA leave “just before [his] one year
anniversary” and that he was terminated “about five (5) weeks
prior to when he would have qualified for FMLA coverage.” (First
Am. Compl. ¶¶ 4 & 6). Thus, Morkoetter alleges a close temporal
proximity between when he gave notice of his intention to take
FMLA leave and when he would become eligible for FMLA coverage.
Additionally,

Morkoetter

alleges

a

close

temporal

proximity

between when he was terminated and when he would become eligible
for FMLA leave. However, nothing in Morkoetter’s First Amended
Complaint specifically alleges a close proximity between when he
gave notice of his intention to take FMLA leave in the future
and the date of his termination. In other words, there is no
clear indication of the timing between the alleged statutorily
13

protected

activity

and

the

termination.

Nevertheless,

the

pleading standards set forth by the Supreme Court in Twombly and
Iqbal

and

interpreted

in

this

Circuit

do

not

require

more

specific factual allegations, rather, they merely require enough
factual allegations to render a claim plausible. The Court finds
that,

although

unclear,

Morkoetter’s

factual

allegations

regarding the timing of events giving rise to this dispute are
sufficient

to

make

a

causal

connection

plausible.

Therefore,

Sonoco’s motion to dismiss Morkoetter’s FMLA claim is DENIED.

MORKOETTER’S ERISA CLAIM
ERISA § 510 provides: “It shall be unlawful for any person
to discharge . . . a participant . . . for exercising any right
to which he is entitled under . . . an employee benefit plan . .
. or for the purpose of interfering with the attainment of any
right to which such participant may become entitled under the
plan.” 29 U.S.C. § 1140. To obtain relief under ERISA § 510, a
plaintiff must establish that “(1) [he] is a member of an ERISA
plan; (2) [he] was qualified for the position; and (3) [he] was
discharged
believing

under
that

circumstances

[the

that

defendant]

provide

intended

to

some
deprive

basis
[him]

for
of

benefits. Kampmier v. Emeritus Corp., 472 F.3d 930, 943 (7th
Cir.

2007).

Furthermore,

a

plaintiff

must

show

that

the

defendant acted with the “specific intent of interfering with
14

his benefit rights.” Teumer v. Gen. Motors Corp., 34 F.3d 542,
550 (7th Cir. 1994).
In

support

of

its

motion

to

dismiss

Morkoetter’s

claim

under ERISA § 510, Sonoco argues that Morkoetter’s “claim fails
to meet the plausibility requirements under Twombly and Iqbal.”
(DE #16, p. 7-8). Employing the same analysis used to address
Morkoetter’s FLMA claim, the Court Finds that Morkoetter’s ERISA
§ 510 must be dismissed for failure to set forth sufficient
allegations to state a plausible claim for relief.
In this case, Morkoetter alleges that Sonoco knew that he
had used Plan benefits in the past and that Sonoco “terminated
him, in part, because he took advantage of [Sonoco’s] Plan of
healthcare insurance benefits and utilized those benefits, and
[Sonoco] violated ERISA § 510 by interfering with Plaintiff’s
job by intentionally firing/laying off Plaintiff because of his
utilization of Plan benefits.” (First Am. Compl. ¶¶ 5 & 7).
Thus, Morkoetter’s ERISA § 510 claim essentially contains three
factual allegations: (1) that he utilized benefits under a plan
of insurance governed by ERISA; (2) that Sonoco knew that he
used these benefits; and (3) that he was terminated. Morkoetter
then jumps to the conclusion that he was terminated because of
his

use

of

plan

benefits.

However,

Morkoetter

provides

no

factual allegations whatsoever to support this conclusion. This
is not sufficient to survive a motion to dismiss.
15

Although it is possible that Sonoco terminated Morkoetter
for prior use of Plan benefits, without any additional factual
allegations,

determining

whether

Morkoetter

has

adequately

alleged that his discharge is attributable to his use of Plan
benefits requires outright speculation. Unlike Morkoetter’s FMLA
claim, Morkoetter sets forth no factual allegations whatsoever
regarding

the

circumstances

surrounding

his

termination

in

relation to his use of Plan benefits. As the Seventh Circuit
explained in Atkins, “the fact that the allegations undergirding
a plaintiff's claim could be true is no longer enough to save
it.” Thus, the Court finds that Morkoetter’s claim under ERISA §
510 must be dismissed for failure to state a plausible claim for
relief.1

CONCLUSION
For the reasons set forth above, the Motion to Dismiss
Plaintiff’s

First

DENIED IN PART.

Amended

Complaint

is

GRANTED

IN

PART

AND

The motion is DENIED as to Plaintiff’s Family

Medical Leave Act claim and GRANTED as to Plaintiff’s Employee
Retirement Income Security Act claim.

DATED:

March 29, 2013

/s/RUDY LOZANO, Judge
United States District Court

1

The Court declines to address Sonoco’s affirmative defense that Morkoetter
failed to exhaust his administrative remedies, as it is not necessary for
disposition of this motion.

16