Speight v. Sonic Restaurants, Inc.

Filing 13

MEMORANDUM AND ORDER denying 9 Motion to Dismiss. See order for details. Signed by District Judge Julie A. Robinson on 10/23/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

THERESA L. SPEIGHT,
Plaintiff,
vs.
SONIC RESTAURANTS, INC.,
Defendant.

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Case No. 13-cv-1190-JAR-KGG

MEMORANDUM AND ORDER
Plaintiff filed this action alleging claims of interference with her rights under the Family
and Medical Leave Act (“FMLA”), and discrimination on the basis of her pregnancy under the
Pregnancy Discrimination Act (“PDA”) against her former employer, Defendant Sonic
Restaurants, Inc. (“Sonic”). Before the Court is Defendant’s Rule 12(b)(6) Motion to Dismiss
(Doc. 9), seeking dismissal of both claims. The motion is fully briefed and the Court is prepared
to rule. As described more fully below, Defendant’s motion is denied.
I.

The Complaint
The following facts are alleged in Plaintiff’s Complaint and construed in the light most

favorable to Plaintiff.1
Plaintiff was employed by Defendant as a car-hop at a Sonic Drive-In Restaurant in
Wichita, Kansas for approximately three and a half years. On July 19, 2011, Plaintiff found out
that she was pregnant, and discussed this information with her friend Kimberly Bogle, who was
an associate manager at the Sonic where they both worked. Later, in March 2012, Plaintiff told

1

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Bogle that Plaintiff’s doctor had informed her that he would induce labor if Plaintiff did not
deliver her baby by April 23, 2012.
Plaintiff continued to work until April 14, 2012. At some point that day, Plaintiff learned
that Cobey Smith, an Operating Partner for Defendant, had removed Plaintiff from the Sonic
work schedule. In Plaintiff’s experience working at Sonic for five years, Smith removed Sonic
employees from the work schedule as a method of terminating those employees. Plaintiff tried
to contact Smith by telephone to discuss the work schedule several times, but was unable to
reach him. Plaintiff also sent Smith two text messages to which Smith did not reply. Plaintiff
did not return to work at Sonic after April 14.
Plaintiff went into labor and had her child on April 20, 2012. Plaintiff’s doctor released
her to return to work on April 27, 2012. Sometime later, Plaintiff discussed her work status with
Carol Holland from Sonic’s corporate office and learned of her FMLA rights. Plaintiff also
learned from Holland that the Sonic location in Wichita had never submitted any FMLA leave
requests to the Sonic corporate office regarding Plaintiff’s pregnancy.
Plaintiff believed Sonic terminated her employment when it took her off of the Sonic
work schedule without any request on Plaintiff’s part, and because Smith never returned any of
Plaintiff’s attempted contacts regarding the reason why Plaintiff had been removed from that
schedule. If Plaintiff had been granted FMLA leave, she would have returned to work when her
physician authorized her to return to work.
II.

Rule 12(b)(6) Standard
To survive a motion to dismiss, a complaint must present factual allegations, assumed to

be true, that “raise a right to relief above the speculative level” and must contain “enough facts to

2

state a claim to relief that is plausible on its face.”2 Under this standard, “the complaint must
give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.”3 The plausibility standard does not require a showing of probability
that “a defendant has acted unlawfully,” but requires more than “a sheer possibility.”4
The plausibility standard enunciated in Bell Atlantic Corp. v. Twombly5 seeks a middle
ground between heightened fact pleading and “allowing complaints that are no more than ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’ which the Court
stated ‘will not do.’”6 Twombly does not change other principles, such as that a court must
accept all factual allegations as true and may not dismiss on the ground that it appears unlikely
the allegations can be proven.7
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, ‘[but
is] not bound to accept as true a legal conclusion couched as a factual allegation.’”8 Thus, the
court must first determine if the allegations are factual and entitled to an assumption of truth, or
merely legal conclusions that are not entitled to an assumption of truth.9 Second, the court must

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

3

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in the original).

4

Iqbal, 556 U.S. at 678.

5

550 U.S. 544 (2007).

6

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 555).

7

Id. (citing Twombly, 550 U.S. at 556).

8

Iqbal, 556 U.S. at 678.

9

Id. at 679.

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determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”10 “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.”11
III.

Discussion
A.

FMLA Interference

The FMLA entitles a qualified employee to take up to twelve weeks of leave during any
twelve month period “[b]ecause of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.”12 In addition to the leave, an eligible
employee is entitled to be restored to the same or an equivalent position upon return from
leave.13 Under the FMLA, it is unlawful “for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided under [the FMLA].”14 Under this
theory, if an employer interferes with an employee’s FMLA-created right to a medical leave, it
has violated the FMLA, regardless of its intent.15 But, “[a] reason for dismissal that is unrelated
to a request for an FMLA leave will not support recovery under an interference theory.”16

10

Id.

11

Id. at 678.

12

29 U.S.C. § 2612(a)(1)(D).

13

Id. § 2614(a)(1)(A)-(B).

14

Id. § 2615(a)(1).

15

Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006).

16

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877–78 (10th Cir. 2004) (citing Smith v. Diffee
Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 961 (10th Cir. 2002); Gunnell v. Utah Valley State Coll., 152 F.3d 1253,
1262 (10th Cir. 1998)).

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A prima facie case of interference thus requires a showing that: (1) Plaintiff was entitled
to FMLA leave; (2) that an adverse action by the employer interfered with Plaintiff’s right to
take FMLA leave; and (3) that the employer’s adverse action was related to the exercise or
attempted exercise of Plaintiff’s FMLA rights.17 Defendant does not contest that Plaintiff was
entitled to FMLA leave. Instead, Defendant argues that Plaintiff fails to allege facts to support
(1) an adverse employment action by Sonic, (2) a causal relationship between any adverse
employment action and the exercise of Plaintiff’s rights, and (3) prejudice due to Sonic’s alleged
failure to provide Plaintiff with notice of her FMLA rights.
The second element of the interference claim requires the employee to allege that “she
was prevented from taking the full 12 weeks’ of [sic] leave guaranteed by the FMLA, denied
reinstatement following leave, or denied initial permission to take leave.”18 Viewing the facts
alleged in the Complaint in the light most favorable to Plaintiff, she was prevented from taking
FMLA leave or denied initial permission to take leave when she was removed from the schedule
shortly before her due date. In Plaintiff’s five-year tenure working at Sonic, she understood that
removal from the schedule was her supervisor’s way of terminating employment. Plaintiff’s
understanding was reinforced by the fact that Smith did not respond to her phone calls and text
messages asking why she had been removed from the schedule. These facts are sufficient to
allege an adverse employment action.
Defendant next argues that Plaintiff fails to allege sufficient facts to support the third
element of her claim, causation between her termination and the exercise of her rights. Plaintiff

17

Metzler, 464 F.3d at 1180. The McDonnell Douglas burden-shifting framework does not apply to FMLA
interference claims. Id.
18

Campbell v. Gambro Healtcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007).

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had shared her induction date with Bogle, an associate manager, and it is reasonable to infer that
Bogle communicated this timing to Smith if he was not already aware. However, there are no
allegations in the Complaint that Plaintiff asked for time off for the birth, or for any period
thereafter. According to the Complaint, she was not aware of her rights under the FMLA until
after the birth of her child when she contacted Sonic’s corporate office. While close temporal
proximity between a Plaintiff’s FMLA leave request and the adverse employment action can
support the element of causation on an interference claim, Defendant argues that the Complaint
fails to allege that Plaintiff attempted to exercise her rights under the FMLA.19
Plaintiff responds that Defendant interfered with her FMLA rights by failing to provide
her with written notice of her rights and entitlements under the FMLA, citing the Department of
Labor regulations pertaining to FMLA notice.20 Under 29 C.F.R. § 825.300(b)(1), when an
employer “acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason,
the employer must notify the employee of the employee’s eligibility to take FMLA leave within
five business days, absent extenuating circumstances.” That regulation also provides that the
employer’s failure to follow the notice requirements
may constitute an interference with, restraint, or denial of the
exercise of an employee’s FMLA rights. An employer may be
liable for compensation and benefits lost by reason of the violation,
for other actual monetary losses sustained as a direct result of the
violation, and for appropriate equitable or other relief, including
employment, reinstatement, promotion, or any other relief tailored
to the harm suffered.21

19

For example, “[w]henever termination occurs while the employee is on leave, that timing has significant
probative force.” DeFreitas v. Horizons Investment Mgmt. Corp., 577 F.3d 1151, 1160 (10th Cir. 2009).
20

See 29 U.S.C. § 2654.

21

29 C.F.R. § 825.300(e).

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It is reasonable to infer from the facts alleged in the Complaint that Sonic knew that Plaintiff
qualified for FMLA leave during and after the birth of her child and was therefore required to
provide her with the requisite notice as set forth in the Department of Labor regulations.
Still, in order for an interference claim to be actionable, Plaintiff must show prejudice as
a result of the FMLA violation.22 According to Defendant, she offers no allegation in the
Complaint that she suffered prejudice. The Court disagrees. Plaintiff alleges in the Complaint
that if she had been allowed to take FMLA leave, she would have returned to work when her
physician authorized her to return to work, a mere one week after the birth of her child. The
Complaint states that Plaintiff’s doctor released her to return to work on April 27, 2012, but
because she believed she had been terminated when she was taken off the schedule on April 14,
Plaintiff did not return to work. This is a sufficient allegation of prejudice. The Court therefore
finds that Plaintiff has alleged sufficient facts to state a plausible claim for FMLA interference.
B.

Pregnancy Discrimination

Title VII of the Civil Rights Act of 1964 prohibits unlawful employment discrimination
on the basis of sex.23 Congress later passed the PDA, which amended the terms “because of sex”
or “on the basis of sex” in the Title VII definitions, to include “pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or related medical conditions
shall be treated the same for all employment-related purposes.”24
A claim of discrimination based on pregnancy is analyzed in the same manner as any

22

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89–92 (2002); Conoshenti v. Pub. Serv. Elec. &
Gas Co., 364 F.3d 135, 143–44 (3d Cir. 2004) (applying Ragsdale to FMLA notice requirements in general).
23

42 U.S.C. § 2000e-2(a)(1).

24

Id. § 2000e(k).

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other discrimination claim under the Civil Rights Act.25 Plaintiff must show intentional
discrimination because of her pregnancy, childbirth, or related medical condition.26 Defendant
correctly notes that this claim will be analyzed under the McDonnell Douglas burden-shifting
framework if Plaintiff relies on circumstantial evidence to support her claim.27 But McDonnell
Douglas is an evidentiary standard, not a pleading standard.28 In Swierkiewicz v. Sorema N.A.,
the Supreme Court explained that a prima facie case of discrimination “operates as a flexible
evidentiary standard” and not a “rigid pleading standard.”29 Therefore, the plaintiff need not
have “adequately alleged a prima facie case” or “circumstances that support an inference of
discrimination” in order to survive a motion to dismiss.30 In employment discrimination cases,
plaintiffs “must satisfy only the simple requirements of Rule 8(a).”31 Therefore, the Complaint
must provide “fair notice of the basis for [plaintiff’s] claims,”32 as that standard was further
revised in Twombly.33
Here, Plaintiff alleges in the Complaint that she was pregnant and close to her due date

25

E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190–91 (10th Cir. 2000).

26

Id. at 1191.

27

Doc. 10 at 7; see Horizon/CMS Healthcare Corp, 220 F.3d at 1191.

28

See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (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 under McDonnell Douglas also apply to the pleading standard that
plaintiffs must satisfy in order to survive a motion to dismiss.”).
29

Id. at 512.

30

Id. at 509.

31

Id. at 513.

32

Id. at 514.

33

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569–70 (2007).

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when she was terminated. She alleges the basis for her understanding that she was
terminated—she was removed from the schedule shortly before her scheduled induction, and her
supervisor failed to return her phone calls and text messages. Given her long experience
working at Sonic, Plaintiff understood that these measures were used to terminate employees.
Accepting the facts alleged as true and viewing them in the light most favorable to Plaintiff,
Plaintiff has stated a plausible claim of discrimination under the PDA—that she was
intentionally discriminated against on the basis of her pregnancy, child birth, or related medical
condition.34
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to
Dismiss under Fed. R. Civ. P. 12(b)(6) (Doc. 9) is denied.
IT IS SO ORDERED.
Dated: October 23, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

34

See Swierkiewicz, 534 U.S. at 512 (explaining that “[b]efore discovery has unearthed relevant facts and
evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case”
and therefore the prima facie standard “should not be transposed into a rigid pleading standard for discrimination
cases.”).

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