Taylor v. JC Penney Company, Inc.

Filing 12

OPINION AND ORDER Granting Defendant's Motion to Dismiss (Dkt. 4 ) and Dismissing Counts One and Two of the Complaint without Prejudice. Motion to amend due by 10/3/2016 Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAULA TAYLOR,
Plaintiff,
Case No. 16-cv-11797
v.
HON. MARK A. GOLDSMITH
J. C. PENNEY COMPANY, INC.,
Defendant.
_____________________________/
OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS (Dkt. 4) AND DISMISSING
COUNTS ONE AND TWO OF THE COMPLAINT WITHOUT PREJUDICE
Plaintiff Paula Taylor was an employee of Defendant J. C. Penney Company, Inc. from
May 1981 to January 2015. Following her termination, Taylor filed a complaint in this Court
alleging unlawful age discrimination in violation of Michigan’s Elliot-Larsen Civil Rights Act
(“ELCRA”), Mich. Comp. Laws § 37.2101, et seq., as well as various violations of the Family
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq.
This matter is before the Court on J. C. Penney’s motion to dismiss two of the three
counts in the complaint (Dkt. 4). The issues have been fully briefed. Because oral argument will
not aid the decisional process, the motion will be decided based on the parties’ briefing. See
E.D. Mich. LR 7.1(f)(2). As discussed below, the Court grants the motion.
I. BACKGROUND
Taylor began working for J. C. Penney at the Alma, Michigan store location in May
1981. Compl. ¶¶ 10, 11 (Dkt. 1). Due to a lower back surgery, Taylor took medical leave under
the FMLA from June 8, 2015 to August 12, 2015. Id. ¶¶ 14, 15. When Taylor returned to work
on August 12, certain physical restrictions were placed on her work, including no excessive
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bending or lifting over twenty-five pounds, and she could only work four-hour days. Id. ¶ 15.
On October 13, 2015, Taylor was allowed to work full time but with the same physical
restrictions. Id. ¶ 16. Taylor was then approved for and used her “Paid Time Off” from October
15 through the 31. Id. ¶ 17. Taylor was scheduled to return to full-time work on November 2,
2015. Id. ¶ 18.
When Taylor arrived to work on November 2, her store manager, Anita Szostek,
informed Taylor that she “couldn’t accommodate the restrictions set by [Taylor’s] doctor,” and
Taylor was sent home. Id. ¶ 19. Taylor continued to show up for work from November 2
through November 8, but was told to return home each day by the acting manager and/or leader
of the day. Id. ¶¶ 20, 32. During this time period, Taylor contacted the “Powerline Specialists”
to coordinate her “Illness Recovery Time.” Id. ¶ 26. The Specialists initially told Taylor that she
was not entitled to Illness Recovery Time, but Taylor could use her Paid Time Off. Id. ¶¶ 27, 30.
Taylor also complained to the Human Resources Department that she felt harassed and
discriminated against by Szostek. Id. ¶ 31.
Following a visit with her doctor on November 10, Taylor’s physical restrictions were
removed and she returned to work on November 11. Id. ¶¶ 33, 34. On November 18, Taylor
received a letter from the Powerline Specialists, which stated that Taylor was approved for
Illness Recovery Time from November 3 through November 10. Id. ¶ 35.
Later, in January 2016, Taylor informed Szostek that Taylor was going to have knee
surgery on February 11, 2016.

Id. ¶ 36.

On January 25, 2016, Taylor was fired for

insubordination and for an incident involving a coupon that a customer had given Taylor on
January 18, which was then supposed to be given to Taylor’s sister. Id. ¶¶ 37-43. Taylor claims
that she “was the eldest salesperson at the time working at [JC Penney’s] Alma store.” Id. ¶ 45.

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Taylor filed her complaint on May 20, 2016, which included one count of age
discrimination under ELCRA, one count of FMLA interference, and one count of FMLA
retaliation.1
II. STANDARD OF DECISION
In evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
“[c]ourts must construe the complaint in the light most favorable to plaintiff, accept all well-pled
factual allegations as true, and determine whether the complaint states a plausible claim for
relief.” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). To survive a motion to dismiss, a
complaint must plead specific factual allegations, and not just legal conclusions, in support of
each claim. Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009).
III. ANALYSIS
A. Count One — Age Discrimination Claim Under ELCRA
In Michigan, an employer must not “discharge” or “discriminate against” an employee
based on the employee’s age.

Mich. Comp. Laws § 37.2202(1)(a).

Under

ELCRA, the

employer’s discriminatory animus must have been a “substantial” or “motivating” factor in the
adverse action. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 818 (6th Cir. 2011). A plaintiff
may establish this through either direct or circumstantial evidence. Tilley v. Kalamazoo Cnty.
Road Comm’n, 777 F.3d 303, 307 (6th Cir. 2015); Howley v. Fed. Express. Corp., __ F. Supp.
3d __, 2016 WL 1223356, at *4 (E.D. Mich. 2016). Taylor does not allege any direct evidence

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J. C. Penney does not challenge the FMLA retaliation claim in its motion to dismiss. See Def.
Mot. at 4 n.1.
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of age discrimination; rather, she advances a disparate-treatment theory of age discrimination
based on circumstantial evidence. See Pl. Resp. at 7-8.2
To establish a prima facie case of age discrimination under this approach, Taylor must
demonstrate that she was a member of a protected class, she was subjected to an adverse
employment action, she was qualified for her job, and she was treated “differently than a
similarly situated employee from outside the protected class.” Hein v. All Am. Plywood Co.,
Inc., 232 F.3d 482, 489 (6th Cir. 2000); see also Tilley, 777 F.3d at 308 (for age discrimination
claim, articulating the fourth element of the prima facie disparate-treatment case as the plaintiff
being treated “differently than persons of a different age class who engaged in the same or
similar conduct” (quoting Provenzano, 663 F.3d at 818)).
In her complaint, Taylor alleges that, from October 2015 through January 2016, she was
subjected to intentional discriminatory treatment by J. C. Penney on the basis of her age, which
included “requiring her to provide medical releases with no restrictions when other younger
employees could work with restrictions.”

Compl. ¶¶ 47-49.

Taylor then claims that this

treatment “constitutes age discrimination in violation of” the ELCRA. Id. ¶ 50.
In its motion to dismiss, J. C. Penney contends that Taylor has failed to sufficiently plead
factual allegations to support her ELCRA claim, because the complaint “is nothing more than a
series of legal conclusions that attempt to formulaically recite the elements of a cause of action,”
Def. Mot. at 8 — namely, that Taylor was an employee, J. C. Penney was her employer, she was
the victim of discrimination, the conduct was intentional, and she suffered damages, id. at 10.
According to J. C. Penney, the only factual allegation relating to Taylor’s age was that she was

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Circumstantial evidence consists of “proof that does not on its face establish discriminatory
animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.”
Tilley, 777 F.3d at 307-308.
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the “eldest salesperson” at the Alma store. Id. at 9 (quoting Compl. ¶ 45). J. C. Penney further
argues that Taylor has failed to: (i) identify any age-related discriminatory comment by any
employee; (ii) name a single employee that was treated more favorably; and (iii) provide any
factual support that the alleged conduct was intentional. Id. at 10. For these reasons, J. C.
Penney seeks to dismiss Taylor’s ECLRA claim.
In response, Taylor claims that she “has made a short and plain statement that she was
treated differently than other, younger employees,” because “[s]he was denied the right to work
while she had medical restrictions while other, younger employees were allowed to work even
with medical restrictions.” Pl. Resp. at 8 (Dkt. 9).
In its reply, J. C. Penney reiterates that Taylor has failed to identify a single employee
who was younger but was treated differently than Taylor. Def. Reply at 8-9 (Dkt. 10). J. C.
Penney also notes that, absent any facts concerning the medical restrictions of the alleged
“younger employees,” Taylor has also failed to show how the comparators were similarly
situated to Taylor. Id. at 9 n.5. The Court agrees with J. C. Penney.
In viewing the complaint in the light most favorable to Taylor, the Court concludes that
Taylor has failed to plead a plausible claim of age discrimination under ELCRA. The complaint
completely fails to identify a younger employee who was treated differently than Taylor. House
v. Rexam Beverage Can Co., 630 F. App’x 461, 464 (6th Cir. 2015); see also Riever v. Saia
Motor Freight Line, Inc., 2009 WL 701397, at *4 (E.D. Mich. Mar. 13, 2009) (dismissing the
plaintiff’s ELCRA age discrimination claim because he did “not identify even one younger
individual who was treated more favorably by Defendant”).
By failing to even identify one younger employee in the complaint, Taylor also failed to
allege sufficient factual allegations concerning whether she and her comparators were similarly

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situated. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 912, 929 (6th Cir.
1999) (“In determining whether an allegedly comparable employee is similarly situated to the
plaintiff, the question is whether all of the relevant aspects of his employment situation were
nearly identical to those of the [younger employee’s] employment situation.”); Howley, 2016
WL 1223356, at *7 (appropriate comparator in a disparate treatment case would be an employee
who is similarly situated to the plaintiff “in all relevant aspects of the employment”). The
complaint does not describe the relative ages or work restrictions of the “other younger
employees,” as compared to Taylor’s age and restrictions. Nor are there any allegations that
Taylor and the younger employees performed similar job functions or posed similar
qualifications. As such, there are no allegations that Taylor and a younger employee were
similar in all of the relevant aspects of their employment to give rise to a plausible claim of age
discrimination.
While the complaint does state that Taylor was treated differently because she was
required “to provide medical releases with no restrictions when other younger employees could
work with restrictions,” Compl. ¶ 48, this bare assertion is essentially a recitation of an element
for an age-discrimination claim, nothing more. House, 630 F. App’x at 463-464. Absent
additional factual allegations, the complaint fails to sufficiently plead a plausible claim for age
discrimination.
Accordingly, the Court grants this portion of J. C. Penney’s motion and dismisses
Taylor’s ELCRA claim without prejudice.
B. Count Two — Interference Claim Under the FMLA
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].” 29 U.S.C.

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§ 2615(a)(1). Unlawful interference includes “refusing to authorize FMLA leave.” 29 C.F.R.
825.220(b). To make out a prima facie case of FMLA interference, a plaintiff must demonstrate
that
(1) she was an eligible employee, (2) the defendant was an
employer as defined under the FMLA, (3) she was entitled to leave
under the FMLA, (4) she gave the employer notice of her intention
to take leave, and (5) the employer denied or interfered with the
employee’s FMLA benefits to which she was entitled.
Wallace v. FedEx Corp., 764 F.3d 571, 585 (6th Cir. 2014).
“Employees are required to provide employers with thirty days[’] notice when the
necessity for FMLA leave is foreseeable and ‘such notice as is practicable’ when the need for
FMLA leave is not foreseeable.” Beaver v. RGIS Inventory Specialists, Inc., 144 F. App’x 452,
456 (6th Cir. 2005) (quoting 29 U.S.C. § 2612(e)(1)); see also 29 C.F.R. §§ 825.302-.303.
Notably, the employee is not required to expressly state that he or she is seeking FMLA leave “or
even mention the FMLA.” Beaver, 144 F. App’x at 456. Rather, the employee need only make
the employer aware that leave is needed for an FMLA purpose: “[t]he relevant inquiry is
whether the information imparted to the employer is sufficient to reasonably appraise it of the
employee’s request to take time off for a serious health condition.” Id.
The plaintiff must also demonstrate “that the employer’s violation caused them harm.”
Wallace, 764 F.3d at 585. Because the remedy under the FMLA is tailored to the harm the
plaintiff suffered, 29 U.S.C. § 2617 provides no relief unless the employee has been prejudiced
by the violation. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). For a
violation of § 2615, an employer is liable only for compensation and benefits lost “by reason of
the violation,” for other monetary losses sustained “as a direct result of the violation,” and/or for

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“appropriate” equitable relief, including employment, reinstatement, and promotion. Id.; 29
U.S.C. § 2617(a)(1)(A)(i).
In her complaint, Taylor alleges that (i) she was an eligible employee, Compl. ¶ 54; (ii)
J. C. Penney was an employer under the FMLA, id. ¶ 55; (iii) she was entitled to FMLA leave
because she “had a serious medical condition, her back surgery that adversely affected her ability
to perform her job duties,” id. ¶ 56(a); (iv) she made an “attempt to take intermittent FMLA
leave to care for back surgery recovery,” id. ¶ 54; and (v) she “should have been approved for
and certified for intermittent FMLA through her medical provider,” id. ¶ 56(b).
In its motion to dismiss, J. C. Penney argues that Taylor has failed to plead facts that J. C.
Penney interfered with Taylor’s rights to FMLA intermittent leave, because the complaint “does
not allege any facts showing when she required intermittent leave; that she was entitled to or
eligible for intermittent leave; that she applied for intermittent leave; or that [J. C. Penney]
denied her request for intermittent leave.” Def. Mot. at 7-8. Instead, J. C. Penney contends that
the complaint demonstrates that Taylor received eight weeks of FMLA leave, she returned to
work with restrictions in August 2015, she took approved Paid Time Off leave in October, she
received approval for short-term disability from November 3-10, and she then returned to fulltime work without restrictions on November 11. See id. at 8. According to J. C. Penney, an
FMLA interference claim fails when an employee receives her FMLA leave. Id.
The Court agrees that Taylor has failed to sufficiently allege facts that she was prejudiced
by the violation. Although not expressly alleged in her complaint, Taylor’s FMLA interference
claim is clearly premised on her attempt to take intermittent leave in November 2015 to care for
her back following her surgery. See Compl. ¶ 54 (stating that Taylor made an “attempt to take
intermittent FMLA leave to care for back surgery recovery”); Pl. Resp. at 2 (“Defendant’s

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Human Resources interfered with Plaintiff’s short term disability benefits.”); see also id. at 3
(“JC Penney’s Human Resources refused to allow Plaintiff to use short term disability benefits to
which she was entitled for the time off.”). The complaint’s allegation that Taylor “should have
been approved for and certified for intermittent FMLA through her medical provider,” Compl.
¶ 56(b), suggests that the alleged interference at issue in this claim amounted to J. C. Penney not
approving her for such leave. This allegation seems to refer to Taylor being initially informed
that she was not entitled to Illness Recovery Time by J. C. Penney’s Powerline Specialists. See
id. ¶¶ 27, 29 (Powerline Specialists informed Taylor that she was not entitled to Illness Recovery
Time and could only use Paid Off Time). Assuming Taylor was entitled to intermittent leave in
November when she notified J. C. Penney’s Powerline Specialists to coordinate the Illness
Recovery Time, the initial denial would have plausibly stated a violation of the FMLA.
However, as pleaded, Taylor acknowledges that she received a letter on November 18,
2015, which stated that she was subsequently “approved for Illness Recovery Time from
November 3, 2015 through November 10, 2015.” Id. ¶ 35. With no other allegations of harm,
Taylor has failed to plead specific factual allegations that she was prejudiced by the alleged
violation that would support a plausible claim for FMLA interference. Therefore, the Court
grants this portion of J. C. Penney’s motion and dismisses Taylor’s FMLA interference claim
without prejudice.
Taylor’s arguments in her response brief do not warrant a different outcome. First,
Taylor contends that Szostek interfered with Taylor’s right to return to work in November 2015,
while allowing other employees to work with restrictions. See Pl. Resp. at 9-11. However,
Taylor does not raise this allegation in her interference claim, and she may not amend her
complaint through her response brief. Jocham v. Tuscola Cnty., 239 F. Supp. 2d 714, 732 (E.D.

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Mich. 2003). But even if she did, as noted above, there are no facts alleged concerning similarly
situated employees. See 29 U.S.C. § 2614(a)(4) (“As a condition of restoration . . . the employer
may have a uniformly applied practice or policy that requires each such employee to receive
certification from the health care provider of the employee that the employee is able to resume
work[.]”); 29 C.F.R. § 825.312(a) (“[A]n employer may have a uniformly-applied policy or
practice that requires all similarly-situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present certification from the
employee’s health care provider that the employee is able to resume work.”).
Second, Taylor argues that Szostek’s marking of Taylor as “Failure to Report” for each
day Taylor was absent in November amounted to FMLA interference. Pl. Resp. at 11-12.
Again, Taylor does not make this allegation in her interference claim as pled in her complaint.
Furthermore, Taylor does not provide any allegations that these failure-to-report marks
prejudiced her in any manner.
Third, Taylor claims that Szostek interfered with Taylor’s anticipated FLMA leave in
February 2016 by firing Taylor before she could take the leave. Pl. Resp. at 13. Once again,
Taylor does not raise this allegation in her interference claim as pled in her complaint.
IV. CONCLUSION
For the reasons stated above, the Court grants J. C. Penney’s motion to dismiss (Dkt. 4)
and dismisses counts one and two of Taylor’s complaint without prejudice. Although Taylor has
not filed a motion for leave to file an amended complaint, the Court will afford her the

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opportunity to file such a motion on or before October 3, 2016.3 Should Taylor fail to timely file
a motion to amend, these counts will be dismissed with prejudice.
SO ORDERED.

Dated: September 19, 2016
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on September 19, 2016.
s/Karri Sandusky
Case Manager

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In her response brief, Taylor requests that, “if these allegations are insufficient, [she] should be
given the opportunity to amend to address the deficiency prior to suffering dismissal with
prejudice of this claim.” Pl. Resp. at 8. This request is insufficient under Federal Rule of Civil
Procedure 15, because that rule requires the filing of a motion. See Kuyat v. BioMimetic
Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014) (Although [Rule 15] instructs courts to
‘freely give leave’ to amend, that liberal policy does not apply to the plaintiffs’ one-sentence
request. A request for leave to amend almost as an aside, to the district court in a memorandum
in opposition to the defendant’s motion to dismiss is not a motion to amend.”); E.D. Mich. LR
15.1 (“A party who moves to amend a pleading shall attach the proposed amended pleading to
the motion. Any amendment to a pleading, whether filed as a matter of course or upon a motion
to amend, must, except by leave of court, reproduce the entire pleading as amended, and may not
incorporate any prior pleading by reference.”). Because Taylor has not filed a motion to amend
with an attached proposed amended pleading, the issue of granting leave to amend is not
properly before the Court. Because the current motion to dismiss is premised entirely on a
failure to plead sufficient facts under Iqbal, the Court grants Taylor leave to file a motion to
amend, rather than dismiss with prejudice.
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