Lesser v. Baltimore City Board of School Commissioners

Filing 16

MEMORANDUM AND ORDER DENYING 9 Motion to Dismiss for Failure to State a Claim; DIRECTING defendant file a consolidated answer to the amended complaint. Signed by Judge James K. Bredar on 6/26/2017. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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LORYN LESSER,
Plaintiff

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v.

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CIVIL NO. JKB-17-046

BALTIMORE CITY BOARD OF SCHOOL *
COMMISSIONERS,
Defendant
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MEMORANDUM AND ORDER
Plaintiff brings the instant case against her former employer, alleging interference under
the Family Medical Leave Act (“FMLA”) (Count I), retaliation under the FMLA (Count II), and
discrimination under the Rehabilitation Act of 1973 (Count III). (Am. Compl., ECF No. 3.) Her
Amended Complaint indicates that she expects to seek class certification on Counts I and III.
(Id.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant has moved to dismiss the
class action portions of the Amended Complaint (ECF No. 9), and has filed an answer to
Plaintiff‟s other allegations (ECF No. 10). Plaintiff has opposed Defendant‟s motion (ECF No.
15), which is now ripe. No hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the
reasons stated below, Defendant‟s motion will be denied.
I.

STANDARD FOR DISMISSAL FOR FAILURE TO STATE A CLAIM
In order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim on which

relief may be granted, 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)). Facial plausibility exists
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of
a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading that offers „labels and conclusions‟ or „a
formulaic recitation of the elements of a cause of action will not do.‟ . . . Nor does a complaint
suffice if it tenders „naked assertion[s]‟ devoid of „further factual enhancement.‟” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations in the complaint, this principle does not
apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
II.

BACKGROUND1
Plaintiff was employed by Defendant as a student support liaison beginning on August 1,

2011. (Am. Compl. ¶ 2.) On August 4, 2013, Plaintiff suffered a head injury. (Id. ¶ 20.) She
subsequently informed Defendant of her medical condition and her need to undergo surgery. (Id.
¶ 22). Despite Plaintiff‟s physician clearing her to return to work beginning on January 21,
2014, Defendant required Plaintiff to undergo a psychological fitness-for-duty evaluation by its
own medical professional. (Id. ¶¶ 29, 34.) Subsequent to an examination that Plaintiff alleges
was incompletely and/or improperly conducted (id. ¶¶ 37–42), Defendant refused to permit
Plaintiff to return to her previous position (id. ¶¶ 43, 44) and ultimately terminated her
employment in August of 2016 (id. ¶ 53).

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Because this memorandum evaluates a Rule 12 motion to dismiss, the Court here summarizes the
allegations as presented by Plaintiff in the Complaint. See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.
1997).

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III. ANALYSIS
Defendant moves to dismiss only the class action portions of the Amended Complaint.
(Def.‟s Mot., ECF No. 9.) However, analysis of a prospective class‟s compliance with Rule 23 is
not appropriately considered on a motion to dismiss, but should instead be addressed in a motion
brought pursuant to Rule 23(c)(1)(A). See Popoola v. Md-Individual Practice Ass’n, Inc., 230
F.R.D. 424, 433 (D. Md. 2005) (citing 7B Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 1798 (3d ed. 2005)). Accordingly, Defendant‟s motion will be denied.
While Defendant‟s motion purports to address only the class action portions of the
Amended Complaint (Def.‟s Mot.), its memorandum in support also appears to challenge the
sufficiency with which Plaintiff alleged willful violations of the FMLA. (See Def.‟s Mem. in
Supp. 6–7, ECF No. 9-1.) Willfulness affects the applicable limitations period. 29 U.S.C.
§ 2617(c) (2017). When a plaintiff must allege a defendant‟s mental state, she may do so
generally.

Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.” (emphasis added)). Courts in
this circuit have applied a general pleading standard to allegations of willful interference and
retaliation under the FMLA. See, e.g., Settle v. S.W. Rodgers, Co., 998 F. Supp. 657, 664 (E.D.
Va. 1998), aff’d, 182 F.3d 909 (4th Cir. 1999). Additionally, under the Fair Labor Standards
Act, a statute with a limitations provision analogous to that in the FMLA, see id. at 663, the
question of whether an alleged violation is willful is not an element of a plaintiff‟s claim
requiring supporting factual allegations in the complaint, but rather an anticipation of a
limitations defense that a defendant might raise as the case advances. Rose v. Harloe Mgmt.
Corp., Civ. No. GLR-16-761, 2017 WL 193295, at *4 (D. Md. Jan. 17, 2017).

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The Amended Complaint alleges that
Defendant willfully violated the FMLA by ordering Plaintiff to take a fitness for
duty examination that did not comply with FMLA regulations, refusing to pay
Plaintiff after she was released to return to work on February 18, 2014, and
terminating her employment following her attempt to exercise her rights under the
FMLA.
Defendant‟s violations of Plaintiff‟s FMLA rights were not done in good faith and
Defendant did not have reasonable grounds for believing that their acts or
omissions were not a violation of § 2615 of the FMLA.
(Am. Compl. ¶¶ 54–55.) The Amended Complaint does not allege fraud or mistake, and its
allegation of the willfulness with which Defendant violated the FMLA meets the general
pleading requirement for mental states under Rule 9(b).

Accordingly, to the extent that

Defendant‟s motion to dismiss challenges the sufficiency with which the Amended Complaint
alleges facts showing willfulness, the motion will be denied.
IV. CONCLUSION
For the reasons stated above, Defendant‟s motion to dismiss (ECF No. 9) is DENIED.
Defendant SHALL FILE a consolidated answer to the Amended Complaint in accordance
with Federal Rule of Civil Procedure 12(a)(4)(A).

DATED this 26th day of June, 2017.
BY THE COURT:

/s/
James K. Bredar
United States District Judge

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