Tognozzi v. Mastercard International Incorporated et al

Filing 24

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that defendant Griffin's motion to dismiss 11 is granted as to Counts II and V and denied as to Counts III and IV. IT IS FURTHER ORDERED that Mastercard's motion to dismiss 9 is denied as to Counts III, IV, and V. This case will be set for a Rule 16 scheduling conference by separate order. Signed by District Judge Catherine D. Perry on 5/22/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AMY TOGNOZZI,

)
)
Plaintiff,
)
)
vs.
)
)
MASTERCARD INTERNATIONAL
)
INCORPORATED d/b/a
)
MASTERCARD WORLDWIDE, et al., )
)
Defendants.
)

Case No. 4:16 CV 2045 CDP

MEMORANDUM AND ORDER
Plaintiff Amy Tognozzi worked as a vice president for defendant Mastercard
International Incorporated from 2011 until her termination in January of 2015. She
alleges that her supervisor, defendant Mary Griffin, continually gave preferential
treatment to Tognozzi’s male counterpart, interfered with Tognozzi’s right to take
FMLA leave, and ultimately terminated her for discriminatory reasons in January
2015. Tognozzi brings claims of sex and disability discrimination and retaliation
under the Americans with Disabilities Act, the Missouri Human Rights Act, the
Family Medical Leave Act, and Title VII.
Defendants Mastercard and Griffin have moved to dismiss certain of the
claims. Mastercard argues that plaintiff’s FMLA claim is barred by the two-year
statute of limitations to the extent it is based on a claim that Mastercard wrongfully

discouraged her from taking leave. It also argues that she has failed to allege
sufficient facts to show that she was discriminated against on the basis of her
gender or in retaliation for complaints of sex discrimination. Griffin makes the
same arguments but also seeks to dismiss the ADA and Title VII claims against
her. Tognozzi concedes that her claims under the ADA and Title VII against
defendant Griffin must be dismissed because these claims cannot be brought
against an individual supervisor, and so I will grant the motion to dismiss those
claims. Plaintiff’s claims otherwise are pleaded sufficiently to survive the motions
to dismiss, so I will deny the motions in all other respects.
I.

Motion to Dismiss Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal

sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
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to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.
The issue in considering such a motion is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Neitzke, 490 U.S. at 327.
II.

Background1
Tognozzi began working as a Vice President/Senior Business leader of

Financial Analysis for Mastercard in March 2011. At the time of the events in
question, she managed a team of twelve people – four managers and eight
supporting team members. During her employment, Tognozzi consistently
received positive performance reviews.2 In April 2013, defendant Griffin became
Tognozzi’s supervisor and at the same time became supervisor to David Lillis, a
male employee with the same job title and a similar skill set to Tognozzi. From
April 2013 through October 2014, Griffin consistently gave preferential treatment
to Lillis, primarily by increasing Tognozzi’s responsibilities and workload, while
decreasing Lillis’s. On several occasions from March through September 2014,
1

The facts contained herein are taken from the allegations set out in Tognozzi’s complaint.
They are considered true for the purpose of this Memorandum and Order. See Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009); Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
2

Tognozzi also received favorable People Manager Effectiveness Surveys and was awarded
Mastercard’s prestigious Chief Financial Officer Award in 2013. Tognozzi’s February 2013
performance review was positive, noting she “works hard and has high standards.” (ECF # 3 at ¶
15).

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Tognozzi discussed these problems with Griffin, but Griffin refused to consider
rebalancing the workload and told Griffin her team was overstaffed for its relative
workload.3 In August 2014, Tognozzi shared her frustrations about the workload
inequities with a human resources representative, but received no response. Two
of the managers on Tognozzi’s team also expressed concerns about the unequal
work distribution between Tognozzi’s and Lillis’s teams to the same HR
representative.
In July 2014 Tognozzi had surgery on her hand and was required to wear a
cast for ten weeks afterward that immobilized two fingers, her hand, and forearm.
The hand caused Tognozzi constant, extreme pain, affected her ability to type and
drive a car and required her to take pain medication. Tognozzi’s doctor
recommended she take some medical leave after her surgery. When Tognozzi
approached Griffin about the possibility of taking FMLA leave to recuperate,
Griffin discouraged Tognozzi from doing so by recounting her own history of
working while recovering from leg surgery. Based on this discussion, Tognozzi
did not take FMLA leave because she feared retaliation from Griffin. No
accommodations were made for Tognozzi during this time, and Griffin’s attitude
became increasingly hostile. Tognozzi began to experience physical symptoms of

3

Between February and July 2014, after a corporate reorganization, eight of the twelve positions
on Tognozzi’s team were vacated. At the same time, a hiring freeze prevented her from actively
recruiting and hiring sufficient replacements, causing her team to be extremely short-staffed.

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the stress caused by her job situation, including severe hair loss, weight loss, an
unexplained rash, and loss of sleep. However, Tognozzi continued to perform and
complete her work duties. In September 2014, Griffin stated Tognozzi was not
performing “at her level,” but was unable to articulate any specifics as to what
Tognozzi should do differently and acknowledged that the work was getting done.
In October 2014, upon the advice of her doctor, Tognozzi took three
months’ FMLA leave to address her deteriorating health problems. She was not
advised of any performance deficiencies or intent to terminate her employment at
any point during her leave. On the same day she returned to work, January 5,
2015, Griffin and Mastercard terminated Tognozzi’s employment.
In Count I of her complaint, Tognozzi alleges disability discrimination and
retaliation in violation of the MHRA. In Count II she alleges disability
discrimination and retaliation in violation of the ADA; in Count III she alleges
interference and retaliation in violation of the FMLA; in Count IV she alleges sex
discrimination and retaliation in violation of the MHRA; and in Count V she
alleges sex discrimination and retaliation in violation of Title VII. All five counts
are asserted against both defendants.
III.

Discussion
In her opposition to the motions to dismiss, Tognozzi concedes Counts II

and V should be dismissed as to defendant Griffin. Therefore, I will grant
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Griffin’s motion to dismiss as to these two counts without further discussion. As
to the remaining counts, I will address defendants’ essentially identical arguments
to dismiss Count III together. Then I will consider defendants’ discrimination and
retaliation claims under Count IV and Mastercard’s discrimination and retaliation
claim under Count V.
A.

Count III – Interference and Retaliation (Family Medical Leave
Act)

Count III alleges a claim of FMLA interference and a claim of FMLA
retaliation. Defendants argue that Count III must be dismissed to the extent it
alleges a claim of FMLA interference because a two-year statute of limitations
applies to the claim and the case was filed more than two years after defendants’
alleged violation. Specifically, defendants note Tognozzi claims she was
discouraged from taking FMLA leave by Griffin in July 2014, and this case was
filed in state court in November 2016. Defendants argue Tognozzi has failed to
assert sufficient facts to demonstrate that the three-year statute of limitations for
willful violations should apply here.
The FMLA entitles an employee to twelve weeks of unpaid leave during any
twelve-month period if the employee has a “serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D), (c). The Eighth Circuit recognizes the existence of three

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types of claims under the FMLA. Under 28 U.S.C. § 2615(a)(1)4, a plaintiff may
bring either an “entitlement” claim, in which she alleges the employer refused to
authorize FMLA leave or took other action to avoid FMLA responsibilities; or a
“discrimination” claim, in which she alleges an employer took adverse action
against her because she exercised rights to which she was entitled under the
FMLA. Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005-06 (8th
Cir. 2012); Hudson v. Tyson Fresh Meats, Inc., 787 F.3d 861, 864-65 (8th Cir.
2015); see also Massey–Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d
1149, 1157 (8th Cir. 2016). Additionally, under 28 U.S.C. § 2615(a)(2)5, a
plaintiff may bring a “retaliation” claim in which she alleges an employer took
adverse action against her for opposing any practice made unlawful under the
FMLA. Pulcinski, 691 F.3d at 1005-06.
Congress created a two-tiered statute of limitations for FMLA claims.
Generally, the statute of limitations for an FMLA violation is “not later than 2
years after the date of the last event constituting the alleged violation for which the
action is brought.” 29 U.S.C. § 2617(c)(1). However, where an employer engages
in a “willful violation” of the FMLA, the statute of limitations is extended to three
4

“It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchapter.” 29 U.S.C.A. § 2615(a)(1).
5

“It shall be unlawful for any employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C §
2615(a)(2).

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years. 29 U.S.C. § 2617(c)(2); Hanger v. Lake Cty., 390 F.3d 579, 582 (8th Cir.
2004). The FMLA itself does not define willful, but the Eighth Circuit has held an
FMLA violation is willful where “the employer either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by statute.” Hangar,
390 F.3d at 583 (internal citations omitted).
Tognozzi alleges that her hand injury and subsequent surgery affected her
ability to work, and her doctor recommended she take leave from her job. She
claims that she approached Griffin for the purpose of exercising her rights under
the FMLA, but “Griffin discouraged Tognozzi from taking FMLA leave by
recounting the events after Griffin underwent surgery….” (ECF #3 at ¶ 32).
Tognozzi alleges that as a result of the conversation with Griffin, she did not take
leave related to her hand injury for fear of retaliation.
Construing the facts in Tognozzi’s favor, I conclude that she has alleged
enough to show that Griffin demonstrated reckless disregard for whether her
conduct was prohibited. As a high level supervisor, and as someone who had
previously had surgery while employed, Griffin would likely have known of
Tognozzi’s rights under the FMLA. Accordingly, the allegations in the complaint
are sufficient, at this stage, to invoke the three-year statute of limitations in U.S.C.
§ 2617(c)(2) for a willful violation. See Quinn v. St. Louis Cty., 653 F.3d 745, 753
(8th Cir. 2011)(“FMLA interference includes ‘not only refusing to authorize
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FMLA leave, but discouraging an employee from using such leave,’ as well as
‘manipulation by a covered employer to avoid responsibilities under [the]
FMLA.’”)(quoting 29 C.F.R. § 825.220(b)). See also Beekman v. Nestle Purina
Petcare Co., 635 F. Supp. 2d 893, 909 (N.D. Iowa 2009)(willful conduct must only be alleged

generally; allegations that “inherently state” willful conduct are sufficient).
B.

Counts IV and V6 – Sex Discrimination and Retaliation

In Counts IV and V, Tognozzi brings claims of sex discrimination and
retaliation—Count IV under the MHRA and Count V under Title VII. Specifically,
Tognozzi alleges defendants discriminated against her based on sex by giving
preferential treatment to a male employee. Tognozzi claims that after she
complained about the preferential treatment, defendants retaliated against her by
terminating her employment.
Sex Discrimination Claims
In their motions to dismiss, defendants argue Tognozzi’s allegations of
preferential treatment are insufficient to give rise to a claim of sex discrimination.
Defendants contend Tognozzi’s increased workload does not constitute an adverse
employment action that “materially disadvantaged” her. In response, Tognozzi
argues that defendants take a piecemeal approach to reading her complaint and fail
to consider all the allegations she set forth, which are incorporated into each count.
6

Claims under Count V pertain to Mastercard only as Tognozzi has conceded her claims against
Griffin should be dismissed.

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On a motion to dismiss, I am required to read the complaint “as a whole, not
parsed piece by piece to determine whether each allegation, in isolation, is
plausible.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
Under both the MHRA and Title VII, to set forth a prima facie case of sex
discrimination, a plaintiff must show she suffered an adverse employment action.
See Denn v. CSL Plasma, Inc., 816 F.3d 102, 1032 (8th Cir. 2016); see also Lewis
v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1038 (8th Cir. 2010). “An adverse
employment action is a tangible change in working conditions that produces a
material employment disadvantage.” Wedow v. City of Kan. City, Mo., 442 F.3d
661, 671 (8th Cir. 2006) (quotation omitted).
Taking the complaint here as a whole, I find Tognozzi has pleaded sufficient
facts to demonstrate she suffered an adverse employment action that materially
disadvantaged her. From April 2013 through October 2014, Tognozzi claims
Griffin consistently gave preference to Lillis—increasing Tognozzi’s
responsibilities and workload, while decreasing Lillis’s. After her surgery, the
increased demands of her job caused Tognozzi to experience physical symptoms of
stress—hair loss, weight loss, an unexplained rash, and loss of sleep. Tognozzi was
forced to take leave to address her deteriorating health, and upon returning from
leave, she was terminated. Accordingly, as Tognozzi has asserted sufficient facts

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to demonstrate an adverse employment action, I will deny defendants motions to
dismiss her discrimination claims under Counts IV and V.
Retaliation Claims
Defendants next argue Tognozzi failed to plead a claim of retaliation under
the MHRA and Title VII because she “does not allege that she complained about
sex discrimination; rather, she…complained about workload distribution between
Plaintiff’s team and another manager’s team.” [Griffin’s Motion to Dismiss, ECF
#12, at p. 8] (emphasis added). While this may be a correct literal recitation of the
complaint’s allegations, I am required to draw all reasonable inferences in favor of
the nonmoving party. Martin v. Iowa, 752 F.3d 725, 727 (8th Cir. 2014). Here, it
is reasonable to infer that when Tognozzi complained about “workload inequities”
between her and her male colleague, she was complaining about workload
discrimination based on sex.
Mastercard makes an additional argument under Count V regarding
Tognozzi’s Title VII claim for retaliation. Mastercard claims Tognozzi failed to
adequately plead the causation element of her prima facie case as she exclusively
relies on the temporal proximity between her complaints and her termination.
In order for a plaintiff to allege a causal connection between her protected
conduct and the adverse employment action, she must demonstrate her “protected
activity was the but-for cause of the alleged adverse action by the employer.” Univ.
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of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013).
“Generally, more than a temporal connection between the protected conduct and
the adverse employment action is required ….” Kiel v. Select Artificials, Inc., 169
F.3d 1131, 1136 (8th Cir. 1999).
Tognozzi alleges she was terminated less than four months after her last
complaint. Even if the temporal proximity between these two events alone is
insufficient, Tognozzi sets forth additional facts that strengthen the inference of a
causal link. For example, Tognozzi alleges that until she complained in March
2014, she had consistently received positive reviews and feedback about her job
performance. Tognozzi also maintains that although Griffin stated she was not
performing at her level shortly before she took leave, Griffin was unable to
articulate specifics reasons for this assessment and acknowledged Tognozzi was
getting her work done. Construing the facts in Tognozzi’s favor, I find she has
offered sufficient allegations to state a claim for retaliation. Because Tognozzi has
adequately pleaded discrimination and retaliation claims, I will deny defendants’
motion to dismiss Count IV and Mastercard’s motion to dismiss Count V.
Finally, to the extent defendant Griffin seeks attorney fees in connection
with the dismissal of Counts II and V, I do not find Tognozzi’s conduct in bringing
her claims was groundless, unreasonable, or frivolous in a manner that warrants fee
shifting. CRST Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642, 1652, 194 L. Ed.
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2d 707 (2016)(citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422
(1978)).
Accordingly,
IT IS HEREBY ORDERED that defendant Griffin’s motion to dismiss
[#11] is granted as to Counts II and V and denied as to Counts III and IV.
IT IS FURTHER ORDERED that Mastercard’s motion to dismiss [#9] is
denied as to Counts III, IV, and V.
This case will be set for a Rule 16 scheduling conference by separate order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of May, 2017.

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