Craft v. Burris et al

Filing 16

ORDER. Defendants Motion to Dismiss (Doc. 6 ) is GRANTED, and Crafts Complaint is hereby DISMISSED without prejudice. Craft is granted leave to amend his Complaint. Craft shall file his amended complaint within twenty-one (21) days of the date of this Order. Should Craft fail to do so, this case will be closed. Signed by Magistrate Judge Timothy J. Cavan on 10/30/2017. (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WILLIAM CRAFT,

CV 16-166-BLG-TJC

Plaintiff,
ORDER
vs.
LOWELL BURRIS, PAUL
CZERKOVICH, JOHN AEROSMITH,
and STILLWATER MINING
COMPANY,
Defendants.
Plaintiff William Craft brings this action under 29 U.S.C. § 2615(a) against
Lowell Burris, Paul Crnkovich, John Arrasmith, 1 and Stillwater Mining Company
(“Stillwater”) (collectively, “Defendants”). Pending is Defendants’ Motion to
Dismiss under Rule 12(b)(6) (the “Motion”). (Doc. 6.) As discussed below, the
Court grants Defendants’ Motion.
This Court has federal question jurisdiction under 28 U.S.C. § 1331, because
Craft asserts claims under 29 U.S.C. § 2615(a) for alleged violations of rights
under the Family Medical Leave Act (“FMLA”).

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The defendants represent that their last names are “Crnkovich” and “Arrasmith,”
not “Czerkovich” and “Aerosmith” as depicted in the Complaint, but they do not
dispute that they are the named defendants. (Doc. 7 at 2.)
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I.

Background
For purposes of the pending motion, the Court accepts as true all factual

allegations contained in the Complaint (Doc. 1), and construes them in the light
most favorable to Craft. Kneivel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
Craft’s Complaint contains the following factual allegations.
Stillwater owns and operates the East Boulder Mine in Montana. Stillwater
employed Craft until December 14, 2014. Defendants Burris, Crnkovich, and
Arrasmith also were agents and employees of Stillwater. (Doc. 1 at ¶ 4.) On or
about December 14, 2014, during a joint telephone conference call, Stillwater
terminated Craft’s employment, effective November 30, 2014. The decision to
terminate was memorialized in writing and signed by Burris. (Id. at ¶ 5.)
Craft suffered from gastrointestinal disorders. In 2014, prior to his
termination, Craft took an undisclosed amount of leave, and had also requested an
undisclosed amount of FMLA leave. (Id. at ¶ 9.)
Craft alleges in Count I of his Complaint that Defendants denied and
interfered with his FMLA rights, and in Count II that Defendants retaliated against
him for the exercise of those rights. (See generally Doc. 1). Craft claims that the
interference and retaliation resulted in his termination, which caused him to suffer
damages, including: (1) loss of wages and benefits; (2) deterioration of his physical
condition; (3) medical expenses; and (4) unspecified out of pocket costs. (Id. at ¶
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1.) Craft also seeks equitable relief, including but not limited to employment
reinstatement. (Id.)
II.

Parties’ Arguments
Defendants advance several arguments in support of their Motion. (Doc. 7

at 3-12.) First, Defendants argue that Craft has not alleged sufficient facts to state
a claim of interference under the FMLA. Specifically, defendants maintain that
Craft has not alleged facts to establish his FMLA eligibility. They argue that his
claims are based on the premises that Craft was eligible for FMLA and that
Stillwater was an employer under the FMLA, but the Complaint does not allege
facts supporting either premise. Rather, Defendants argue, Craft summarily
concludes that he was eligible for FMLA benefits and that Stillwater was an
FMLA employer. (Id. at 4-7.) Defendants further argue that Craft did not allege
facts to show the Defendants’ wrongdoing, and simply state that Defendants
interfered with his FMLA rights without any factual basis. (Id. at 7-9.)
The Defendants also contend that Craft has not alleged facts to state a claim
for retaliation under the FMLA. In this regard, Defendants argue that Craft failed
to allege facts to show when he requested leave, for what purpose, from whom the
leave was requested, who denied the leave, and the temporal relationship between
the leave request and his termination. Without these factual allegations,

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Defendants contend, Craft has not sufficiently alleged a claim for retaliation. (Id.
at 9-10.)
Additionally, Defendants argue that the Complaint fails to state a claim
against Burris, Crnkovich, and Arrasmith in their individual capacities, because the
Complaint includes nothing but a formulaic recitation of the elements required for
personal liability. (Id. at 10-12.)
In response, Craft argues that: (1) Defendants are aware of the factual basis
for the claims because Craft filed an administrative complaint with the Department
of Labor after his termination (Doc. 10 at 2-3); (2) the omitted factual allegations
are more properly asserted as affirmative defenses, and thus are not Craft’s burden
to plead (Id. at 3-5); and (3) if the Court deems the Complaint deficient in some
manner, Craft should be allowed the opportunity to amend to cure the Complaint
(Id. at 4-6).
In reply, Defendants argue that: (1) Craft bears the burden to prove an
employee’s eligibility and an employer’s FMLA coverage as elements of an
FMLA claim; thus, those requirements are not affirmative defenses (Doc. 11 at 13); (2) Craft does not address any of the authority Defendants cited for the
proposition that Craft’s Complaint must contain more than a recitation of elements
of FMLA interference and retaliation claims in order to survive a motion to dismiss

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(Id. at 3-4); and (3) Defendants concede that Craft may be entitled to amend, but
argue that does not provide grounds to deny the motion to dismiss (Id. at 4-6).
III.

Legal Standard
“Dismissal under Rule 12(b)(6) is proper only when the complaint either (1)

lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a
cognizable legal theory.” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013)
(quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.
2008)). The Court’s standard of review under Rule 12(b)(6) is informed by Rule
8(a)(2), which requires that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S
544, 570 (2007). “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.” Id. Plausibility evaluation is “context
specific,” in which courts must “draw on… judicial experience and common
sense.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quotations
omitted).
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A court considering a Rule 12(b)(6) motion must accept as true the
allegations of the complaint and must construe those allegations in the light most
favorable to the nonmoving party. See e.g., Wyler Summit P’ship v. Turner Broad.
Sys., Inc. 135 F.3d 658, 661 (9th Cir. 1998). However, “bare assertions…
amount[ing] to nothing more than a ‘formulaic recitation of the elements’…for the
purposes of ruling on a motion to dismiss are not entitled to an assumption of
truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting
Twombly, 550 U.S. at 555). Such assertions do nothing more than state a legal
conclusion, even if the conclusion is cast in the form of a factual allegation. Id.
IV.

Discussion
Craft’s Complaint does not “contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face,” and therefore must be
dismissed. Iqbal, 556 U.S. at 678. The only factual allegations contained in the
Complaint are that Craft was an employee of Stillwater; Burris, Crnkovich, and
Arrasmith were employees of Stillwater; Craft was terminated from Stillwater; and
some time prior to Craft’s termination, he had requested/taken FMLA leave for
gastrointestinal disorders. As discussed below, these allegations are not sufficient
to allow the Court to draw the reasonable inference that Defendants are liable to
him for either of the claims he alleges. See Iqbal, 556 U.S. at 678.

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At the outset, it is important to distinguish between the interference claim
Craft alleges in Count I, and the retaliation claim he alleges in Count II. The
FMLA sets forth two types of claims, one for interference with FMLA rights (29
U.S.C. § 2615(a)(1)), and the other for retaliation for opposing practices that
violate the FMLA (29 U.S.C. § 2615(a)(2) and (b)). See Gressett v. Central Ariz.
Water Cons. Dist., 2014 WL 4053404 (D. Ariz. Aug. 14, 2014). These claims are
often confused. The confusion may arise in part because the FMLA-implementing
regulations describe 29 U.S.C. § 2615(a)(1)’s prohibition against interference as
prohibiting an employer from “discriminating or retaliating against an employee or
prospective employee for having exercised or attempted to exercise FMLA rights.”
29 C.F.R. § 825.220(c). The Ninth Circuit has clarified, however, that a claim
alleging that an employer has taken adverse action against an employee for the
employee’s exercise of his FMLA rights is properly classified as an interference
claim under 29 U.S.C. § 2615(a)(1) and not as a retaliation claim under 29 U.S.C.
§ 2615(a)(2) or (b). See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124
(9th Cir. 2001).
With respect to a retaliation claim under 29 U.S.C. § 2615(a)(2) and (b), the
Ninth Circuit has explained, “[b]y their plain meaning, the anti-retaliation or antidiscrimination provisions do not cover visiting negative consequences on an
employee simply because he has used FMLA leave.” Id. That circumstance
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describes an interference claim and not a retaliation claim, regardless of whether
the employer can be said to have “retaliated” against the employee in the
vernacular. The claim becomes a retaliation claim under Section 2615(a)(2) only
“where an employee is punished for opposing unlawful practices by the employer.”
Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003) (emphasis in
original). A retaliation claim can also arise under Section 2615(b), “which
prohibits discrimination against any individual for instituting or participating in
FMLA proceedings or inquiries.” Bachelder, 259 F.3d at 1124.
A. Craft Fails to State a Claim for Retaliation under the FMLA
With those distinctions in mind, it is apparent that Craft’s Complaint does
not state a claim for FMLA retaliation. Other than the allegation that Defendants
terminated Craft for exercising his FMLA rights (Doc. 1 at ¶¶ 7, 9), there is no
allegation that Defendants either punished Craft for opposing unlawful practices,
or discriminated against him for instituting or participating in FMLA proceedings
or inquiries. Under his retaliation claim in Count II, Craft simply alleges that
“[e]ach defendant illegally retaliated against Plaintiff because [Plaintiff] acted to
exercise his rights under the FMLA.” (Doc. 1 at ¶ 16). Under Ninth Circuit
precedent, Craft is alleging an interference claim under 29 U.S.C. § 2615(a)(1) and
not a retaliation claim under 29 U.S.C. § 2615(a)(2) or (b). Accordingly, the Court

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will dismiss Count II of Craft’s Complaint for failure to state a plausible FMLA
retaliation claim. The Court now turns to Craft’s interference claim.
B. Craft Fails to State a Claim for Interference under the FMLA
In order to establish a claim for interference, a plaintiff must show the
following: (1) he is an eligible employee; (2) his employer is covered under the
FMLA; (3) he was entitled to take leave; (4) he gave notice of his intention to take
leave; and (5) the defendant denied him the benefits to which he was entitled under
the FMLA. Sanders v. Newport, 657 F.3d 772, 778 (9th Cir. 2011). The plaintiff
has the burden under Rule 12(b)(6) to allege sufficient facts to support a reasonable
inference that these elements are satisfied. See e.g., Lacayho v. Donahoe, 2015
WL 3866070, *8 (N.D. Cal. June 22, 2015) (holding that pure conclusory
allegations of elements defined by the FMLA do not comply with the pleading
standards set forth in Iqbal and Twombly); Reyes v. Fircrest Sch., 2012 WL
5878243, *2 (W.D. Wash. Nov. 21, 2012) (holding that failure to allege facts,
including facts indicating whether plaintiff was eligible for FMLA protections,
warrants dismissal); Bonzani v. Shinseki, 2011 WL 4479758, *6 (E.D. Cal. Sept.
26, 2011) (holding that a claim will be dismissed unless the plaintiff alleges facts
demonstrating an element or facts that would allow the court to draw such
inferences).

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In order to be an “eligible employee,” and thus establish the first element of
an FMLA interference claim, the employee must establish that he has been
employed by the employer for at least twelve months, and has worked 1,250 hours
during the twelve-month period preceding the leave. 29 U.S.C. § 2611(2).
Additionally, in order to establish that an employer is covered under the FMLA, as
required by the second element, it must be shown that the employer employs fifty
or more employees. 29 U.S.C. § 2611(4).
In Craft’s Complaint, he does not allege any facts from which the Court may
reasonably infer that he is an eligible employee or that his employer is covered
under the FMLA. The Eleventh Circuit has found that such an omission renders a
FMLA complaint deficient. Surtain v. Hamlin Terrance Found., 789 F.3d 1239,
1247-1248 (11th Cir. 2015). Surtain involved a review of the district court’s
denial of an employee’s motion for default judgment. Nevertheless, the Eleventh
Circuit Court applied a standard “akin to that necessary to survive a motion to
dismiss for failure to state a claim,” characterizing a motion for default judgment
as a “reverse motion to dismiss for failure to state a claim.” Id. at 1245.
Applying this standard, the Court found that the failure to allege sufficient
facts to establish both the employee’s eligibility and employer’s coverage under
the FMLA was fatal to the complaint. The Court emphasized that “[w]ell-pleaded
facts are required,” and pointed out that the employee “did not allege that she had
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worked at least 1,250 hours,” nor did she allege “facts about home many people
[her employer] employed.” Id. at 1247-48 (emphasis in original). She merely
included a “conclusory allegation that [her employer] is a covered employer.” Id.
at 1248. The Court, therefore found that her complaint “contained insufficient
allegations to state a plausible claim under the FMLA…” Id.
Similarly, in Hager v. Arkansas Department of Health, 735 F.3d 1089 (8th
Cir. 2013), the Eighth Circuit found the district court erred in denying a motion to
dismiss an FMLA complaint for failure to allege sufficient facts. In so holding, the
Eighth Circuit Court recognized that the FMLA requires an employee to provide
notice of an intent to take leave and when the employee anticipates returning to
work. See 29 C.F.R. §§ 825.302 & 825.303. The Court found that plaintiff’s
complaint was not sufficient to state a claim under the FMLA “because [the
employee] failed to plead notice of intent to take FMLA leave, and that she was
qualified for that leave….” Id. at 1017.
In the present case, the Complaint does not allege how long Craft was
employed at Stillwater or the number of hours that Craft worked to support an
inference that he is an eligible employee. Additionally, Craft fails to allege how
many people are employed at Defendants’ worksite to support the inference that
Stillwater is an eligible employer for the FMLA. Craft merely alleges that
“Plaintiff was an eligible employee under the FMLA,” and “Defendants were each
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an employer under the FMLA.” (Doc. 1 at ¶ 8.) These assertions are merely
repetitions of the elements of the claim and are not supported by any facts. As
such, Craft has not alleged sufficient facts from which the Court can infer that he is
an eligible employee under the FMLA or that his employer is covered by the act.
Perhaps more significantly, however, even if the eligibility and coverage
requirements were met, Craft has not alleged sufficient facts to allow the Court to
draw the reasonable inference that the Defendants are liable for the misconduct
alleged. The Complaint is devoid of any facts tending to establish any relationship
between the exercise of Craft’s FMLA rights and his termination. As the
Defendants point out, Craft does not allege when he requested FMLA leave; from
whom he requested leave; who denied the leave; the purpose for the requested
leave; nor any other facts establishing any temporal or factual relationship between
his request for leave and his termination.
Craft nevertheless argues that the filing of his administrative complaint with
the Department of Labor (“DOL”) caused Defendants to be “fully informed of the
details giving rise to the complaint during the course of the administrative
investigation.” Craft cites no authority supporting the proposition that an
administrative filing relieves him of his Fed. R. Civ. P. 8(a)(2) obligation to plead
sufficient facts to state a plausible claim for relief. (See Doc. 1 at 2-3.) Moreover,
even if the administrative proceeding did alert Defendants to facts sufficient to
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state a plausible claim for relief, Craft has not presented those facts to this Court,
and the Court has no way of determining whether those facts would actually cure
the defects in Craft’s Complaint.
Accordingly, Count I of Craft’s complaint will also be dismissed for failure
to state a plausible FMLA interference claim.
C.

Craft Fails to State a Claim for Individual Liability

Though the Court must dismiss Craft’s Complaint for the reasons discussed
above, it is prudent to address another deficiency in Craft’s pleading in order that it
may be addressed if he chooses to file an amended complaint.
Under the FMLA, the term “employer” includes “any person who acts,
directly or indirectly, in the interest of an employer to any of the employees of
such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). Under this definition, supervisors
may be held individually liable under the FMLA; however, “which supervisors
qualify is not a straightforward matter.” Hibbs v. Dep’t of Human Res., 273 F.3d
844, 872 (9th Cir. 2001). The Ninth Circuit has noted the similarities between the
FMLA and the Fair Labor Standards Act (“FLSA”), and has indicated that whether
a supervisory employee serves as an employer for statutory purposes depends on a
number of factors, such as the degree of authority and control. Id. If the FSLA
standard is applied, the Court would employ the FLSA’s “economic reality” test to
analyze individual liability. Under that analysis, the Court considers factors
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including “whether the alleged employer (1) had the power to hire and fire
employees, (2) supervised and controlled employee work schedules or conditions
of payment, (3) determined the rate and method of payment, and (4) maintained
employment records.” Moreau v. Air France, 356 F.3d 942, 947 (9th Cir. 2004)
(quotations omitted).
The Complaint alleges that Burris, Crnkovich, and Arrasmith “participated
in (1) hiring and firing employees, (2) supervising and controlling employee work
schedules or conditions of employment, (3) determining the rate and method of
payments, [and] (4) maintaining employment records relevant to the claims made
herein[.]” (Doc. 1 at ¶ 4.) Once again, these bare assertions are nothing more than
a formulaic recitation of the elements of the claim, and are not entitled to a
presumption of truth. See Moss, 572 F.3d at 969. Therefore, Craft’s allegations
against Burris, Crnkovich, and Arrasmith in their individual capacities are not
sufficient to state a claim, even if Craft’s claims against Stillwater had survived.
D.

Leave to Amend

If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed
with or without prejudice, and with or without leave to amend. “[A] district court
should grant leave to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be cured by the allegation

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of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe
v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
Craft has failed to state a claim upon which relief can be granted, and his
claims are subject to dismissal. Because it may be possible to cure these defects by
alleging additional facts, Defendants’ Motion will be granted without prejudice and
with leave to amend.
V.

Conclusion
For the foregoing reasons, IT IS ORDERED that Defendants’ Motion to

Dismiss (Doc. 6) is GRANTED, and Craft’s Complaint is hereby DISMISSED
without prejudice.
IT IS FURTHER ORDERED that Craft is granted leave to amend his
Complaint. Craft shall file his amended complaint within twenty-one (21) days of
the date of this Order. Should Craft fail to do so, this case will be closed.
DATED this 30th day of October, 2017.

_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

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