COMPLIMENT v. SANOFI-AVENTIS US, INC.

Filing 23

ORDER granting in part and denying in part Defendant's 10 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Defendant's Motion to Dismiss is GRANTED with respect to the discrimination, failure to accommodate, and retaliation claims under the ADA and DENIED with respect to all other claims. Signed by Judge William T. Lawrence on 9/14/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KIMBERLEE M. COMPLIMENT,
Plaintiff,
vs.
SANOFI-AVENTIS US, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Cause No. 1:16-cv-3477-WTL-DML

ENTRY ON DEFENDANT’S MOTION TO DISMISS
This cause comes before the Court on the Defendant’s motion to dismiss (Dkt. No. 10)
the Plaintiff’s Complaint. The motion is fully briefed, and the Court, GRANTS the motion IN
PART and DENIES it IN PART, for the reasons set forth below.
I. STANDARD
The Defendant moves to dismiss the Plaintiff's Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing that it fails to state any claim upon which relief can be granted.
A complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are unnecessary, but the complaint
must give the defendant fair notice of what the claim is and the grounds upon which it
rests.” Huri v. Office of the Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826, 832
(7th Cir. 2015). Neither legal conclusions nor recitations of the elements of a cause of action
suffice to state a claim. See id.
To survive a motion to dismiss, a complaint must “‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (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.” Id. at 678.
II. BACKGROUND
The Plaintiff, Kimberlee M. Compliment, brought this action against the Defendant
Sanofi-Aventis US, Inc. under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., as amended; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 1210112113, as amended; and the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. For
the purposes of this motion, the Court accepts the facts alleged in the Complaint as true.
Compliment was employed by Sanofi-Aventis as a Sale Representative beginning in June
2005. She is a female with young children. She “has a disability, a record of disability, and was
regarded by her employer as an individual with a disability.” In July 2013, Sanofi-Aventis hired
Yvonne Tomes, who became Compliment’s manager after Tomes completed her training.
Compliment was pregnant when Tomes became her manager, and Compliment gave birth to her
daughter in April 2014.
Tomes was very upset that Compliment took unpaid childcare leave after her daughter’s
birth. When Compliment returned to work after her leave in the fall of 2014, she was subjected
by Tomes to “constant harassment because she was a female with young children and required
childcare leave.” For example, Tomes took away Compliment’s flex-time and would no longer
allow her to take Fridays off; Tomes increased her direct supervision of Compliment; Tomes
only gave Compliment 15 minutes notice before meetings, which was not customary; Tomes
asked if Compliment was “still sure [she] didn’t want to stay home with [her] kids?”; and Tomes
favored males and eventually removed all females with young children from her team.

2

Compliment complained about this harassment to Human Resources and upper management. By
March 2015, the harassment had become “so intolerable that Compliment was forced to take
leave under Sanofi[-Aventis]’s disability policy.” Sanofi-Aventis was aware of the harassment
but refused to take any action to stop the harassment and allow Compliment to return to work.
Sanofi-Aventis failed to accommodate Compliment’s disability “by refusing to do anything to
stop the workplace harassment and hostile work environment, and instead terminated her
employment” in November 2015.
Compliment alleges Sanofi-Aventis engaged in sex and pregnancy discrimination and
harassment in violation of Title VII by subjecting her to differential treatment and a hostile work
environment and by terminating her employment, all on account of her sex and pregnancy. She
also alleges that Sanofi-Aventis retaliated against her in violation of Title VII by terminating her
because she complained about sex and pregnancy discrimination and harassment. Compliment
claims that she is a qualified individual with a disability, she has a record of disability and she
was regarded as having a disability by Sanofi-Aventis. She also claims that Sanofi-Aventis
discriminated against her in violation of the ADA by failing to provide her with a reasonable
accommodation and by terminating her employment because of her disability and complaints
about differential treatment. Finally, Compliment alleges that when she returned to work after
taking FMLA leave, Sanofi-Aventis retaliated against her in violation of the FMLA “by taking
away her flex-time, telling her she could no longer take Fridays off, and subjecting her to
differential treatment than employees who had not required protected leave.”
III. DISCUSSION
A. Sex/Pregnancy Discrimination and Hostile Work Environment

3

Title VII prohibits an employer from “discriminat[ing] against” an employee “because of
such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act
provides that this prohibition against sex discrimination applies to discrimination “because of or
on the basis of pregnancy, [or] childbirth.” 42 U.S.C. § 2000e(k). A Title VII plaintiff may
bring discrimination claims based on discrete acts, such as the failure to promote or termination
of employment, and based on a hostile work environment. See Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002). To state a claim for discrimination based on a discrete act, a
complaint need allege only “that the employer instituted a (specified) adverse employment action
against the plaintiff on the basis of her sex [or pregnancy].” Luevano v. Wal–Mart Stores, Inc.,
722 F.3d 1014, 1028 (7th Cir. 2013); see also Huri, 804 F.3d at 833 (a complaint states a
discrimination claim where it identifies “‘the type of discrimination’ the plaintiff thought
occurred, [and] ‘by whom, and when’”) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 405
(7th Cir. 2010)).
The Complaint alleges that Tomes subjected Compliment to differential treatment, for
example, by denying her flex-time and Fridays off, and terminated her employment, all on
account of her sex and pregnancy. While the differential treatment by itself or the allegation of
the denial of flex-time and Fridays off may not rise to the level of a materially adverse action,
see Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012) (stating that “an adverse action
must materially alter the terms or conditions of employment to be actionable under the
antidiscrimination provision of Title VII”), the allegation that Compliment’s employment was
terminated is sufficient to state a claim for sex/pregnancy discrimination based on discrete acts.
In a footnote, Sanofi-Aventis argues that even if the loss of flex-time could constitute an
adverse employment action, the discrimination claim fails because Compliment alleges she was

4

denied flex-time in the fall of 2014 and she did not file a Charge of Discrimination until
December 22, 2015, more than 300 days after the alleged adverse action. Further factual
development may show that the discrimination claim based on the denial of flex-time is time
barred, but Sanofi-Aventis’s argument is not sufficiently developed or supported by citation to
any legal authority. Therefore, the Court declines to decide whether the claim is time barred.
Sanofi-Aventis can revisit this argument, if appropriate, on summary judgment.
To state a hostile work environment claim, a complaint must allege that: (1) the plaintiff
was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by
Title VII, such as sex or pregnancy; “(3) the harassment was severe or pervasive so as to alter the
conditions of employment and create a hostile or abusive working environment; and (4) there is
basis for employer liability.” Huri, 804 F.3d at 833-34. The complaint alleges a hostile work
environment and harassment based on Compliment’s sex and pregnancy, by her manager, upon
her return to work in the fall of 2014 from childcare leave. That is enough to state a hostile work
environment claim.
Sanofi-Aventis argues that allegations of a denial of a flexible schedule and Fridays off,
heightened managerial oversight, limited advance notice of meetings, and the one alleged stray
remark by Tomes are not sufficiently severe or pervasive as to create an abusive working
environment. It would be premature at this pleading stage to determine that Compliment’s work
environment was not sufficiently abusive. The Complaint alleges that the harassment was
“constant”, which suggests pervasiveness; it alleges specific incidents by way of “example”; it
further alleges, albeit generally, that Tomes “favored” male employees and removed all females
with young children from her team; and it alleges that the harassment was so intolerable that
Compliment had to take disability leave. While it remains to be seen whether Compliment’s has

5

the evidentiary support necessary to survive the more stringent summary judgment standard, she
has alleged enough facts to withstand the motion to dismiss.
Accordingly, the motion to dismiss is denied with respect to the Title VII sex and
pregnancy discrimination and hostile work environment harassment claims.
B. Title VII Retaliation
Title VII prohibits an employer from “discriminat[ing] against” an employee because she
“opposed any practice” made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). To state a claim
for retaliation under Title VII, a complaint must allege that the plaintiff engaged in statutorily
protected activity and was subjected to an adverse employment action as a result of that activity.
Huri, 804 F.3d at 833; Luevano, 722 F.3d at 1029. In the retaliation context, “adverse
employment action” means an “employer’s action that would dissuade a reasonable worker from
participating in protected activity.” Huri, 804 F.3d at 833; see also id. at 833 n.3 (emphasizing
that the burden for Title VII discrimination claims is heavier than for Title VII retaliation
claims).
The Complaint alleges that in the fall of 2014 when Compliment returned to work from
childcare leave, her manager Tomes constantly harassed her because she was a female with
young children, Compliment complained about this harassment to “Human Resources and upper
management”, and her employment was terminated “because she complained about sex and
pregnancy discrimination/harassment.” (Complaint at ¶¶ 20, 29). These allegations state a
retaliation claim—Compliment’s complaints about sex and pregnancy discrimination/harassment
are protected activities and the termination of her employment is an adverse employment action.
See, e.g., Huri, 804 F.3d at 833 (holding employee sufficiently alleged Title VII retaliation claim
where she alleged she made internal complaints and was subjected to adverse employment

6

actions including screaming and denial of time off). The motion to dismiss is denied with
respect to the Title VII retaliation claim.
C. ADA Discrimination and Failure to Accommodate
The ADA prohibits an employer from discriminating against a qualified individual with a
disability because of her disability. 42 U.S.C. §§ 12203(a), (b), 12112(a). To state a claim of
disability discrimination under the ADA, a complaint must allege that: (1) the plaintiff has a
disability within the meaning of the ADA, (2) she is otherwise qualified to perform the essential
functions of her job either with or without reasonable accommodation, and (3) she suffered an
adverse employment action because of her disability. Tate v. SCR Med. Transp., 809 F.3d 343,
345 (7th Cir. 2015). The complaint must also allege “a specific disability.” Id. at 345-46 (“The
defendant in a disability discrimination suit does not have fair notice when the plaintiff fails to
identify his disability.”).
The Complaint pleads no facts even to permit an inference that Compliment has a
disability within the meaning of the ADA. The conclusory allegation that she has a disability, a
record of disability, and was regarded by Sanofi-Aventis as having a disability is insufficient.
See Iqbal, 556 U.S. at 678, 680 (legal conclusions and recitations of the elements of an action are
insufficient to state a claim). The Complaint does not identify the specific disability Compliment
alleges she has. (Compliment’s opposition brief does not explain what her disability is either.)
Further, the Complaint fails to allege that Compliment is qualified to perform the essential
functions of her job with or without reasonable accommodation.
Under the ADA, an employer’s failure to provide “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability”
constitutes disability discrimination. 42 U.S.C. § 12112(b)(5)(A). To state a claim for failure to

7

accommodate, a complaint must allege that: (1) the plaintiff is a qualified individual with a
disability, (2) the employer was aware of her disability, and (3) the employer failed to reasonably
accommodate the disability. Curtis v. Costco Wholesale Corp., 807 F.3d 849, 853 (7th Cir.
2015) (summary judgment case). As noted, the Complaint does not plead the first element. It
also fails to allege that Sanofi-Aventis was aware of Compliment’s disability. The Complaint
alleges that “Sanofi[-Aventis] refused to accommodate Compliment’s disability by refusing to do
anything to stop the workplace harassment and hostile work environment” (Complaint ¶ 23) and
“refused to provide [her] with a reasonable accommodation.” (Id. at ¶ 35). But these conclusory
allegations are insufficient to state a claim for failure to accommodate. See Iqbal, 556 U.S. at
678, 680 (legal conclusions and recitations of the elements of an action are insufficient to state a
claim). Therefore, dismissal of the ADA discrimination and failure to accommodate claims is
appropriate.
D. ADA Retaliation
The ADA prohibits an employer from retaliating against an employee who asserts her
right to be free from disability discrimination. 42 U.S.C. § 12203(a). To state a claim for ADA
retaliation, a complaint must allege: (1) the plaintiff engaged in statutorily protected activity, (2)
she suffered an adverse action, and (3) a causal connection between the two. Dickerson v. Bd. of
Trs. of Comm. College Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). The Complaint does
not allege that Compliment engaged in any activity protected under the ADA, and Compliment’s
opposition brief does not respond to Sanofi-Aventis’s contention that she failed to state a claim
for ADA retaliation. Instead, she appears to have abandoned such a claim. Thus, the ADA
retaliation claim is dismissed.

8

E. FMLA Retaliation
The FMLA prohibits an employer from discharging or otherwise discriminating against
any individual for exercising FMLA rights. 29 U.S.C. §§ 2612(a)(2), 2615(b) (making it
unlawful for any employer to discharge or discriminate against anyone for exercising rights
under the FMLA); see also Kauffman v. Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir. 2005)
(“We have construed [§ 2615(a)(2) and (b)] to create a cause of action for retaliation.”). To state
a claim for FMLA retaliation, a complaint must allege: (1) the plaintiff engaged in statutorily
protected activity; (2) she suffered an adverse action; and (3) a causal connection between the
two. Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 670 (7th Cir. 2011). The adverse action
must be “materially adverse.” See, e.g., Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009).
Materially adverse actions “‘include any actions that would dissuade a reasonable employee
from exercising [her] rights under the FMLA.’” Id. (quoting Breneisen v. Motorola, Inc., 512
F.3d 972, 979 (7th Cir. 2008)).
The Complaint alleges that Compliment engaged in statutorily protected activity—she
took FMLA leave because of the birth of her daughter. The Complaint further claims that when
she returned to work, her manager Tomes took away her flex-time and would no longer allow
her to take Fridays off, and subjected Compliment to disparate treatment as compared to
employees who had not taken FMLA leave. These types of actions could dissuade a reasonable
employee from exercising her rights to take leave under the FMLA, which is all that is required
for a retaliation claim. And it alleges a connection between the leave and the adverse actions.
Therefore, the Complaint states a claim for FMLA retaliation.
IV. CONCLUSION

9

For the foregoing reasons, the Defendant’s Motion to Dismiss (Dkt. No. 10)
is GRANTED with respect to the discrimination, failure to accommodate, and retaliation claims
under the ADA and DENIED with respect to all other claims.
SO ORDERED: 9/14/17
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

10