Spurlin v. Christwood, LLC

Filing 17

ORDER AND REASONS GRANTING 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ivan L.R. Lemelle on 11/2/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHERRY SPURLIN

CIVIL ACTION

VERSUS

NO. 16-12692

CHRISTWOOD, LLC

SECTION “B”(1)
ORDER AND REASONS

Before

the

Court

is

“Defendant’s

Motion

to

Dismiss

Plaintiff’s First Amended Complaint Brought Pursuant to Fed. R.
Civ. P. 12(b)(6).” Rec. Doc. 12. Plaintiff filed a response
memorandum

(Rec.

Doc.

13)

essentially

adopting

an

earlier

opposition (Rec. Doc. 8) to Defendant’s withdrawn motion to dismiss
(Rec. Doc. 5). Defendant then requested (Rec. Doc. 14), and this
Court granted (Rec. Doc. 15), leave to file a reply memorandum
(Rec. Doc. 16). For the reasons outlined below,
IT IS ORDERED that the motion to dismiss is GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This

case

employment

arises

with,

and

out

of

Sherry

subsequent

Spurlin’s

termination

(“Plaintiff”)

from,

Christwood

(“Defendant”), a Louisiana non-profit corporation. Plaintiff began
working for Defendant in September 2013. Rec. Doc. 7 at ¶ 5. Prior
to her employment, in 2010, Plaintiff started to serve as an
“Individual

Assistance

Reservist”

for

the

Management Association (“FEMA”). Id. at ¶ 6.

1

Federal

Emergency

To manage national emergencies, FEMA sometimes deploys the
National Disaster Medical System (“NDMS”). Rec. Doc. 7 at ¶ 7.
“When

NDMS

reservists

are

deployed,

Plaintiff

is

deployed

alongside them as part of the National Disaster Recovery Framework
(“NDRF”). Id.
In March of 2016, Plaintiff was deployed “to assist with
emergency management as a result of flooding in the Baton Rouge
area.” Rec. Doc. 7 at ¶ 9. On March 16, 2016, Plaintiff requested
a leave of absence from Defendant for the 30-day period between
March 22, 2016 and April 21, 2016. Id. Plaintiff was scheduled to
return from leave and resume her full-time duties with Defendant
on April 25, 2016, but on April 21, 2016 she requested that her
leave be extended to June 15, 2016. Id. at ¶¶ 10-11. On April 26,
2016, Defendant informed Plaintiff that her “deployment would put
too much of a burden on the staff.” Id. at ¶ 12. Plaintiff was
terminated “voluntarily” due to her “failure to return” from leave.
Id.
On July 12, 2016, Plaintiff filed suit against Defendant.
Rec. Doc. 1. On September 14, 2016, Defendant filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Rec.
Doc. 5. However, Plaintiff filed an opposition (Rec. Doc. 8) and
an

amended

complaint

(Rec.

Doc.

7)

on

September

27,

2016.

Consequently, Defendant withdrew its first motion to dismiss. Rec.
Docs. 9, 10. On October 10, 2016, Defendant filed the instant
2

motion to dismiss Plaintiff’s amended complaint pursuant to Rule
12(b)(6). Rec. Doc. 12.
II.

THE PARTIES’ CONTENTIONS

In her amended complaint, Plaintiff asserts that she is an
“intermittent disaster-relief appointee.” Rec. Doc. 7 at ¶ 6. More
specifically, she claims that she is in the “category of persons
designated by the President in time of war or national emergency”
and therefore is covered by the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”). Id. at ¶ 8. Plaintiff alleges
that

“Defendant

terminated

[her],

and/or

discontinued

her

benefits, and/or failed to reinstate her after her leave, all in
violation of [the] USERRA.” Id. at ¶ 13.
In its motion to dismiss, Defendant argues that Plaintiff has
failed to allege any facts “to support her contention that she is
protected under [the] USERRA.” Rec. Doc. 12 at ¶ 2. According to
Defendant, the USERRA
against

a

member

of

(1) prohibits employment discrimination
a

“uniformed

service”

and

(2)

provides

reemployment rights to any person whose absence is necessitated by
reason of a person’s “service in the uniformed services,” and
Plaintiff has not shown that she is a member of either of these
two groups. Rec. Doc. 12-1 at 5-6.
Plaintiff’s memorandum in opposition (Rec. Doc. 13) simply
refers this Court to her earlier opposition (Rec. Doc. 8), in which
Plaintiff argues that “Defendant offers no support . . . for its
3

claim that FEMA reservists not deployed pursuant to [the] NDMS are
definitely not covered by the protections of [the] USERRA.” Rec.
Doc. 8 at 3.
III. LAW AND ANALYSIS
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
a party can move to dismiss a complaint for failure to state a
claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6);
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Such
motions are viewed with disfavor and rarely granted. Lowrey v.
Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982)). Nonetheless, “[t]o 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)
(internal quotation marks omitted). A claim is facially plausible
“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. Further, when reviewing a motion to
dismiss, courts must accept all well-pleaded facts as true and
view them in the light most favorable to the non-moving party. See
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

4

In

this

case,

two

sections

of

the

USERRA

may

apply

to

Plaintiff. See Bradberry v. Jefferson Cty., Tex., 732 F.3d 540,
545 (5th Cir. 2013).
First, § 4312 provides that “any person whose absence from a
position of employment is necessitated by reason of service in the
uniformed services” is entitled to the reemployment rights and
benefits enumerated in the USERRA. 38 U.S.C. § 4312(a) (emphasis
added). The USERRA provides that “[t]he term ‘service in the
uniformed services’ means the performance of duty on a voluntary
or

involuntary

basis

in

a

uniformed

service

under

competent

authority and includes” various activities required of members of
the uniformed services. 38 U.S.C. § 4303(13) (emphasis added).
Thus, § 4312 “protects a civilian employee who has been gone for
a period of time on military duty, no matter how brief, and has
not been reemployed because of that military service.” Bradberry,
732 F.3d at 546. Nonetheless, the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 (the “PHSBPRA”)
amended the definition of “service in the uniformed services” to
include “[s]ervice as an intermittent disaster-response appointee
when the Secretary [of Health and Human Services] activates the
National Disaster Medical System . . . .” 42 U.S.C. § 300hh11(d)(3)(A); see also Pub. L. 107-188, June 12, 2002, 116 Stat
594.

An

“intermittent

disaster-response

5

appointee”

is

an

individual appointed by the Secretary to serve as intermittent
personnel of the NDMS. 42 U.S.C. §§ 300hh-11(c)(1), (d)(1).
Defendant correctly notes that “Plaintiff fails to allege
that she served as an intermittent employee of the NDMS” or that
“the NDMS was activated by the Secretary of Health and Human
Services in connection with her FEMA service for the March 2016
flooding.” Rec. Doc. 12-1 at 9-10 (citing Rec. Doc. 7 at ¶¶ 6-7).
Further, Plaintiff fails to argue in her opposition that she
qualifies for the protections of the USERRA because of her “service
in the uniformed services” and she admits that she served as a
“non-NDMS” FEMA reservist. Rec. Doc. 8 at 3. Consequently, it
appears that Plaintiff is not claiming that she so qualifies. “By
failing to advance any argument in opposition, the plaintiff
apparently concedes this point.” Singletary v. Prudential Ins. Co.
of Am., 105 F. Supp. 3d 627, 634 (E.D. La. 2015). Plus, based on
the statutory definitions and her failure to allege that she is an
intermittent employee of the NDMS or that the NDMS was activated
to

respond

to

the

flooding

in

Baton

Rouge,

it

appears

that

Plaintiff would not so qualify. Accordingly, Plaintiff is not
protected by the USERRA under § 4312.
Second, § 4311 provides that “[a] person who is a member of,
. . . performs, . . . or has an obligation to perform service in
a uniformed service shall not be denied . . . reemployment [or]
retention in employment . . . on the basis of that membership, .
6

. . performance of service, . . . or obligation.” 38 U.S.C. §
4311(a) (emphasis added). The USERRA provides that “[t]he term
‘uniformed services’ means the Armed Forces, the Army National
Guard and the Air National Guard

. . . , the commissioned corps

of the Public Health Service, and any other category of persons
designated by the President in time of war or national emergency.”
38 U.S.C. § 4303(16) (emphasis added).
Defendant

argues

that

“Plaintiff

makes

the

conclusory

allegation that her FEMA service falls under the USERRA definition
of ‘uniformed services’ and is, therefore, protected because she
falls within a ‘category of persons designated by the President in
time of war or national emergency.’” Rec. Doc. 12-1 at 7 (citing
Rec. Doc. 7 at ¶ 8). Defendant correctly notes, however, that
“Plaintiff fails to allege the existence of any sort of designation
by the President that encompasses her FEMA service in connection
with the March 2016 flooding in the Baton Rouge area.” Id. at 8.
“[I]n deciding whether dismissal is warranted, the Court will not
accept

conclusory

allegations

in

the

complaint

as

true.”

Singletary, 105 F. Supp. 3d at 633 (citing Kaiser, 677 F.2d at
1050). Indeed, “the Court must first identify allegations that are
conclusory and, thus, not entitled to the assumption of truth.”
Singletary, 105 F. Supp. 3d at 633 (citing Iqbal, 556 U.S. at 67879). In response, instead of providing a factual basis for her
conclusory allegation, Plaintiff makes the convoluted argument
7

that “Congress’s clarifications that reservists deployed under
NDMS are definitely covered by USERRA does not state the opposite:
that no other FEMA reservist can ever be considered a ‘category of
persons

designated

by

the

President’

for

purposes

of

USERRA

protection.” Rec. Doc. 8 at 3.1
Despite Plaintiff’s allegation that Defendant failed to cite
a single case in which a court “dismiss[ed] outright a well-pled
USERRA Complaint brought by a non-NDMS deployed FEMA reservist[],”
(Rec. Doc. 8 at 3), this Court has been unable to find a single
case in which a court found that a non-NDMS deployed FEMA reservist
was

protected

by

the

USERRA.

If

Congress

sought

to

include

reservists not deployed under the NDMS under the protections of
the USERRA, they could have done so when they enacted the PHSBPRA.
Instead, Congress specifically provided that “[s]ervice as an
intermittent

disaster-response

appointee

when

the

Secretary

activates the [NDMS] . . . shall be deemed ‘service in the
uniformed services’ for purposes of chapter 43 of Title 38 . . .
.” 42 U.S.C. § 300hh-11(d)(3)(A) (emphasis added).

Notably, Congress clarified in the PHSBPRA that “service in the uniformed
services,” not “uniformed services,” includes certain qualified FEMA
reservists. See 42 U.S.C. § 300hh-11(d)(3)(A); PL 107-188, June 12, 2002, 116
Stat 594. Plaintiff may be conflating the two categories (service in the
uniformed services and uniformed services). Though, the mistake may be of no
consequence. See Smith v. City of Mobile, No. 06-93, 2007 WL 2580516, *12 (S.D.
Ala. Sep. 5, 2007) (“‘Intermittent disaster-response personnel’ . . . are
considered members of the ‘uniformed services’ for the purposes of USERRA during
those periods of time when the National Disaster Medical System is activated
and Disaster Medical Assistance Teams are deployed.”) (citing 42 U.S.C.A. §
300hh-11(e)(3)(A); 38 U.S.C.A. § 4303(16)).
1

8

“The ‘strong presumption’ that the plain language of the
statute expresses congressional intent is rebutted only in ‘rare
and exceptional circumstances,’ when a contrary legislative intent
is clearly expressed.” Ardestani v. I.N.S., 502 U.S. 129, 135-36
(1991) (internal citations omitted). Plaintiff merely argues that
“[g]iven the ‘liberal’ construction to be given to USERRA

–

particularly in this state, at this time, for FEMA deployment due
to flooding – Defendant’s Motion to Dismiss is due to be denied.”
Rec. Doc. 8 at 3. However, “[v]ague notions of a statute’s ‘basic
purpose’ are . . . inadequate to overcome the words of its text
regarding the specific issue under consideration.” Montanile v.
Bd. of Trs. Of Nat. Elevator Indus. Health Benefit Plan, 136 S.
Ct. 651, 661 (2016) (quoting Mertens v. Hewitt Assocs., 508 U.S.
248, 261 (1993)). Consequently, Plaintiff has failed to show that
she is entitled to the protections of the USERRA under § 4311.
Even though the USERRA “is to be liberally construed for the
benefit of those who [leave] private life to serve their country”
(Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th
Cir. 2005) (internal citations omitted)), this Court cannot read
into the statute that which is not written. This Court simply
“lack[s] the authority to rewrite the statute even if we believed
that” other FEMA reservists were entitled to the protections of
the USERRA. Baker Botts, L.L.P. v. ASARCO LLC, 135 S. Ct. 2158,
2169 (2015). “It is our function to give the statute the effect
9

its language suggests, however modest that may be; not to extend
it to admirable purposes it might be used to achieve.” Morrison v.
Nat’l Austl. Bank Ltd., 561 U.S. 247, 270 (2010).2
IV.

CONCLUSION

For the reasons outlined above, we find that Plaintiff has
failed to show that she is entitled to the protections of the
USERRA and therefore has failed to state a claim upon which relief
can be granted. Accordingly,
IT IS ORDERED that Defendant’s motion to dismiss is GRANTED.
New Orleans, Louisiana, this 2nd day of November, 2016.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

However, in fairness to disaster relief workers not presently covered by clear
statutory language, Congress should revisit this issue for such workers, given
their valuable services on local, state, and federal levels.
2

10