CARNES v. CAPITAL IMPROVEMENT BOARD OF MANAGERS OF MARION COUNTY, INDIANA

Filing 19

ORDER - Defendant's Motion to Dismiss 12 is GRANTED IN PART as to Plaintiff's Title VII retaliation claim, which is dismissed with prejudice, and DENIED IN PART as to Plaintiff's FMLA retaliation claim. Signed by Judge Sarah Evans Barker on 7/24/2013. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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DAVID CARNES,
Plaintiff,
vs.
CAPITAL IMPROVEMENT BOARD OF
MANAGERS OF MARION COUNTY,
INDIANA,
Defendant.

No. 1:12-cv-01795-SEB-DKL

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS
This cause is before the Court on the Motion to Dismiss [Docket No. 12], filed by
Defendant, Capital Improvement Board of Managers of Marion County, Indiana (“CIB”),
on February 12, 2013, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff, David Carnes, brings this claim pursuant to Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. and the Family Medical Leave Act
(“FMLA”), alleging that CIB, his former employer, terminated him in retaliation for
complaints he made to the human resources department regarding sexual comments
allegedly made to him by his supervisor and for taking FMLA leave. Approximately ten
days after the filing of Defendant’s Motion to Dismiss, on February 21, 2013, Mr. Carnes
filed his First Amended Complaint and, on that same date, his response to Defendant’s
motion to dismiss, directing his arguments therein to the allegations contained in the
Amended Complaint. Defendant subsequently filed its reply, likewise addressing its
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arguments to the allegations set forth in the Amended Complaint. Accordingly, we find
that Plaintiff’s filing of the Amended Complaint has not rendered Defendant’s motion to
dismiss moot, and we shall apply the parties’ arguments to the allegations set forth in that
document. For the reasons detailed below, we GRANT IN PART and DENY IN PART
Defendant’s Motion to Dismiss.
Factual Background
Mr. Carnes was employed with CIB for twenty-three years as a pipefitter until his
termination on August 6, 2012. In Mr. Carnes’s Amended Complaint, he alleges that in
2005 his supervisor “directed obscene comments of a sexual nature” at him and cursed
him for taking a break. Am. Compl. ¶ 8. Mr. Carnes reported the incident to CIB’s
human resource department and claims that, following his complaint, CIB began to treat
him “in an adverse manner” and “less favorably” than similarly situated employees. Id. ¶
11.
Mr. Carnes also alleges that beginning in 2007 he took intermittent leave under the
FMLA on several occasions during a five-year period. Id. ¶¶ 12-13. Upon his return
from his last period of intermittent leave in the middle of 2012, Mr. Carnes maintains that
he was told by CIB’s director of human resources that his use of FMLA leave “was a
source of contention and concern” for CIB’s CEO, Barney Levengood. Id. ¶ 14.
On July 31, 2012, Mr. Carnes accidentally backed into a uniform locker during the
course of his employment, which incident he reported to CIB the following day.
However, CIB terminated him on August 6, 2012, for allegedly failing to report the
accident. Id. ¶¶ 15-20.
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Legal Analysis
I.

Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to withstand the requirements of Federal
Rules of Civil Procedure 8 and 12(b)(6). Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). “[A]t some point, the factual detail in a complaint may be so sketchy that
the complaint does not provide the type of notice of the claim to which the defendant is
entitled under Rule 8.”1 Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499
F.3d 663, 667 (7th Cir. 2007)).
A party moving to dismiss nonetheless bears a weighty burden. “[O]nce a claim
has been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563 (citing Sanjuan v.
American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (“[At
the pleading stage] the plaintiff receives the benefit of imagination, so long as the
hypotheses are consistent with the complaint.”)). In addressing a Rule 12(b)(6) motion,
we treat all well-pleaded factual allegations as true, and we construe all inferences that
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Federal Rule of Civil Procedure 8(a) provides that a complaint must contain “a short and plain
statement of the claim that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a). Under
Seventh Circuit law, the statement must be sufficient “to give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Hillingsworth v. HSBC Bank Nevada,
N.A., 507 F.3d 614, 618 (7th Cir. 2007) (internal citations omitted).
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reasonably may be drawn from those facts in the light most favorable to the non-movant.
Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003); Szumny v. Am. Gen. Fin., 246
F.3d 1065, 1067 (7th Cir. 2001).
II.

Title VII Retaliation Claim
Mr. Carnes has failed to adequately allege a Title VII retaliation claim. First, the

Amended Complaint fails to include any indication that Mr. Carnes’s 2005 report to
human resources of discrimination and harassment was based on his membership in a
protected class or that he had engaged in protected activity as required for a claim of
retaliation under Title VII. Although Mr. Carnes alleges that he complained about his
supervisor directing “obscene comments of a sexual nature” toward him, even assuming
that Mr. Carnes’s sex is the protected classification, Mr. Carnes does not allege that those
comments were directed at him because of his sex. See Tomanovich v. City of
Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) (“Although filing an official complaint
with an employer may constitute statutorily protected activity under Title VII, the
complaint must indicate the discrimination occurred because of sex, race, national origin,
or some other protected class.”) (citation omitted).
Even if Mr. Carnes had properly alleged that he engaged in protected activity as
defined under Title VII, the facts he alleges with regard to the element of causation are
insufficient to state a claim for retaliation. The Amended Complaint alleges nothing
more than a mere temporal relationship between his complaint to human resources and
CIB’s termination of his employment. Although temporal proximity is one factor to
consider in assessing causation, “standing on its own, [it] is insufficient to establish a
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causal connection for a claim of retaliation.” Mobley v. Allstate Ins. Co., 531 F.3d 539,
549 (7th Cir. 2008) (citation omitted). Moreover, the time period between his report of
harassment in 2005 and his termination in 2012 is seven years, which as a matter of law
is insufficient to support a finding of a connection between the two events.2 See, e.g.,
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1010 (7th Cir. 2000) (holding that oneyear interval between protected expression and termination, standing alone, is too long to
raise an inference of discrimination).
III.

FMLA Claim

Although a close question, we find that Mr. Carnes has adequately pled a FMLA
retaliation claim. Defendant again argues that, similar to his Title VII retaliation claim,
Mr. Carnes relies solely on temporal proximity to allege causation for his FMLA
retaliation claim, which it contends is insufficient to state a claim for relief. Mr. Carnes’s
allegations are admittedly sparse, but we think sufficiently substantive, particularly at this
early stage in the litigation, to provide Defendant notice of the claim. Specifically, Mr.
Carnes has alleged that he first took FMLA leave in 2007 and that he continued to take
“intermittent” FMLA leave “several” times over the next five years. Mr. Carnes further
alleges that, following his most recent FMLA leave in mid-2012, he was told by
Defendant’s Director of Human Resources that his use of FMLA leave was “a source of
contention and concern” for Defendant’s CEO. The timeframe is not sufficiently
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It is true that Mr. Carnes cursorily alleges that he was treated in an “adverse manner and less
favorably than similarly situated employees” throughout those seven years following his
complaint to human resources, but this bare assertion is “nothing more than a ‘formulaic
recitation of the elements,’” (Iqbal, 556 U.S. at 681 (quoting Twombly, 550 U.S. at 555)), which
is insufficient to meet even the liberal, Rule 8 notice pleading standard.
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developed in the Amended Complaint to allow us to know for sure, but it appears that
Mr. Carnes is alleging that he was terminated not long after his conversation with human
resources.
Taking these allegations as true, we find that Mr. Carnes has pled sufficient facts
to survive Defendant’s motion to dismiss. As noted above, a plaintiff “receives the
benefit of imagination, so long as the hypotheses are consistent with the complaint.”
Sanjuan, 40 F.3d at 251 (citation omitted). Here, viewing the facts in the light most
favorable to Mr. Carnes, as we are required to do at this stage in the litigation, we can
imagine ways in which the facts could be developed (e.g., depending on the specific
number of times Mr. Carnes used FMLA leave in the five years before he was terminated
and exactly how close in time Mr. Carnes’s termination came after his last use of FMLA
leave and/or his conversation with human resources in which he was told that
Defendant’s CEO was concerned about his use of FMLA leave), that could plausibly
support a claim for relief under the FMLA. Whether Mr. Carnes can prove his FMLA
retaliation claim remains to be seen, but that is not the question before us at the motion to
dismiss stage.
IV.

Conclusion
For the reasons detailed above, Defendant’s Motion to Dismiss is GRANTED IN

PART as to Plaintiff’s Title VII retaliation claim, which is dismissed with prejudice, and
DENIED IN PART as to Plaintiff’s FMLA retaliation claim.
IT IS SO ORDERED.
_______________________________

07/23/2013
Date: __________________________
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SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Andrew W. Gruber
BINGHAM GREENEBAUM DOLL LLP
[e-mail]
David M. Henn
HENN LAW FIRM P.C.
[e-mail]
Paul J. Cummings
HENN LAW FIRM PC
[e-mail]

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