Grady v. Wal-Mart Stores, Inc.

Filing 12

ORDER granting in part and denying in part 9 Motion to Amend 1 Complaint. The court grants Grady's request to change the name of the defendant to Wal-Mart Stores East, LP, but denies his request to add a claim from wrongful discharge. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey I. Grady
v.

Civil No. 11-cv-084-SM

Wal-Mart Stores, Inc.

O R D E R
Jeffrey Grady has sued Wal-Mart Stores, Inc. (“Wal-Mart”)
for terminating his employment in violation of his rights under
the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§
2601-2654.

Before the court is Grady’s motion to amend his

complaint to: (1) change the name of the defendant from “WalMart Stores, Inc.” to “Wal-Mart Stores East, LP”; and (2) add a
claim for wrongful discharge.

Defendant does not object to the

first proposed amendment, but objects to the addition of a claim
for wrongful discharge.

For the reasons that follow, Grady’s

motion to amend is granted in part and denied in part.
Legal Principles
A. Amendment
The Federal Rules of Civil Procedure provide that, under
the circumstances of this case, Grady may amend his amended
complaint only with leave of the court.

See Fed. R. Civ. P.

15(a)(2).

However, “[t]he court should freely give leave when

justice so requires.”

Id.

As the United States Supreme Court

has explained:
In the absence of any apparent or declared reason –
such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc. – the
leave sought should, as the rules require, be “freely
given.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
Regarding futility, “[i]f the proposed amendment would be
futile because, as thus amended, the complaint . . . fails to
state a claim, the district court acts within its discretion in
denying the motion to amend.”

Abraham v. Woods Hole Ocean.

Inst., 553 F.3d 114, 117 (1st Cir. 2009) (quoting Boston & Me.
Corp. v. Hampton, 987 F.2d 855, 868 (1st Cir. 1993)).

Thus,

futility “means that the complaint, as amended, would fail to
state a claim upon which relief could be granted.”

Glassman v.

Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996) (citing 3
Moore’s Federal Practice ¶ 15.08[4], at 15-80 (2d ed. 1983);
Vargas v. McNamara, 608 F.2d 15, 17 (1st Cir. 1979)).

“In

reviewing for ‘futility,’ the district court applies the same
standard of legal sufficiency as applies to a Rule 12(b)(6)
motion.”

Glassman, 90 F.3d at 623.

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B. Rule 12(b)(6)
A motion to dismiss for “failure to state a claim upon
which relief can be granted,” Fed. R. Civ. P. 12(b)(6), requires
the court to conduct a limited inquiry, focusing not on “whether
a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.”
Rhodes, 416 U.S. 232, 236 (1974).

Scheuer v.

That is, the complaint “must

contain ‘enough facts to raise a reasonable expectation that
discovery will reveal evidence’ supporting the claims.”

Fantini

v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

When

considering a motion to dismiss under Rule 12(b)(6), a trial
court “accept[s] as true all well-pled facts in the complaint
and draw[s] all reasonable inferences in favor of plaintiffs.”
Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset
Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011) (quoting SEC
v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010)).
“To 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.”

United Auto., Aero.,

Agric., Impl. Workers of Am. Int’l Union v. Fortuño, 633 F.3d
37, 40 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009))

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(internal quotation marks omitted).

On the other hand, a Rule

12(b)(6) motion should be granted if “the facts, evaluated in
[a] plaintiff-friendly manner, [do not] contain enough meat to
support a reasonable expectation that an actionable claim may
exist.”

Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co.,

547 F.3d 48, 51 (1st Cir. 2008) (citations omitted).

Therefore,

if “the factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from
the realm of mere conjecture, the complaint is open to
dismissal.”

Plumbers’ Union, 632 F.3d at 771 (citation

omitted).
Background
In his proposed amended complaint, Grady makes the
following allegations.
Grady has been employed by Wal-Mart since 2007.

In March

of 2010, he submitted a request for FMLA leave, in anticipation
of surgery scheduled for April 2.

His request was granted, for

a period from April 2 through April 9.

“Due to a medical

complication during his surgical appointment, Mr. Grady did not
undergo his scheduled surgery on April 2, 2010.”
(doc. no. 9-1) ¶ 8.

Am. Compl.

The amended complaint includes no factual

allegations that either identify Grady’s “medical complication”

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or describe the effect, if any, that it had on his ability to
work.

“Mr. Grady notified [Wal-Mart]’s Human Resources [“HR”]

Department on April 6, 2010 that he would be able to return to
work on April 8, 2010 if he was needed to work.”

Id. ¶ 9.

For

the purposes of ruling on Grady’s motion to amend, the court
presumes that his “medical complication” on April 2 rendered him
unable to work until April 8.
Upon Grady’s return to work on April 10, he was asked to
meet with his supervisor.

She, in turn, told him “that his

employment with Wal-Mart Stores, Inc. was terminated because he
had ‘cancelled’ his leave of absence and was therefore scheduled
to work on April 5th through the 7th.”

Am. Compl. ¶ 10.

“Mr.

Grady was informed that since he did not work on those dates and
did not call in, he was being considered a ‘no call, no show’ in
violation of company policy and was therefore being terminated.”
Id.

The amended complaint continues:
Wal-Mart then acted in bad faith and
retroactively cancelled [Grady’s] leave of absence,
and terminated him for not calling in on the days he
missed work. Wal-Mart did the foregoing knowing that
it had given approval to Mr. Grady to take the medical
leave from April 2, 2010 through April 9, 2010 and
further knowing that Mr. Grady would not know that he
would be expected to call in.

Am. Compl. ¶ 22.

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Based on the foregoing, Grady claims that he “was
terminated for doing something that public policy would
encourage, namely, notifying his employer that he did not need
his entire requested medical leave.”

Am. Compl. ¶ 21.

Discussion
Grady seeks to amend his complaint to add a claim for
wrongful discharge.

Wal-Mart objects, arguing that Grady’s

proposed amendment would be futile because it does not state a
claim for wrongful discharge.

Wal-Mart is correct.

To prevail on his claim for wrongful discharge, Grady must
prove “that: (1) his termination was motivated by bad faith,
retaliation or malice; and (2) that he was terminated for
performing an act that public policy would encourage or for
refusing to do something that public policy would condemn.”
MacKenzie v. Linehan, 158 N.H. 476, 480 (2009) (citing Lacasse
v. Spaulding Youth Ctr., 154 N.H. 246, 248 (2006)).

“[T]he

public policy violated by a wrongful discharge ‘can be based on
statutory or nonstatutory policy.’”

Karch v. BayBank FSB, 147

N.H. 525, 537 (2002) (citing Cilley v. N.H. Ball Bearings, Inc.,
128 N.H. 401, 406 (1986)).

“In most instances, it is a question

for the jury whether the alleged public policy exists.”

Cilley,

128 N.H. at 406 (citing Cloutier v. Great Atl. & Pac. Tea Co.,

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121 N.H. 915, 922 (1981)).

On the other hand, “at times the

presence or absence of such a public policy is so clear that a
court may rule on its existence as a matter of law.”

Short v.

Sch. Admin. Unit No. 16, 136 N.H. 76, 84 (1992) (citation
omitted).
Wal-Mart argues that Grady has identified no public policy
encouraging the act for which he claims to have been discharged.
That is probably a meritorious argument, but Grady’s claim
suffers from a more fundamental problem.

As with the claim

asserted by the wrongful-discharge plaintiff in MacKenzie, a
rational juror could not find that Grady was discharged for the
reason he says he was.

See 158 N.H. at 480-82.

Grady claims he was discharged for telling Wal-Mart that he
did not need his entire requested medical leave.

A rational

juror could not reasonably find that to have been the case.
Based on Grady’s factual allegations, and all the reasonable
inferences from those allegations that may be drawn in his
favor, the notification he gave Wal-Mart’s HR Department on
April 6 was not the act that caused Wal-Mart to discharge him.
Rather, it was the vehicle through which Wal-Mart discovered the
conduct on which it based its decision to discharge him.

That

conduct was Grady’s decision to remain out on FMLA leave for

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four days before telling Wal-Mart that his surgery had been
cancelled due to a medical complication.

Thus, Grady was not

discharged for the act of notifying Wal-Mart of the change in
his medical situation; he was terminated for failing to notify
Wal-Mart of his situation as soon as he learned of it and for
remaining out of work on leave that was granted for surgery that
he did not have.
Given the facts he has alleged, Grady has failed to state a
claim for wrongful discharge.

He was discharged for waiting

four days after the cancellation of his surgery to inform WalMart that, as a result of the cancellation, he would not need to
use his full FMLA leave.

Grady has identified no public policy,

and the court cannot conceive of one, that would encourage an
employee in Grady’s position to wait four days after the
cancellation of the surgery for which he was granted leave to
tell his employer that the surgery had not taken place.

Again,

the reason for Grady’s discharge was not the fact of his April 6
communication with Wal-Mart; he was discharged for the content
of that communication, which was that he had spent the previous
four days on FMLA leave without having had the surgery for which
leave was granted in the first place.

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Because Grady’s proposed amended complaint does not state a
claim for wrongful discharge, an amendment to add such a claim
would be futile.

Accordingly, Grady’s motion to amend is denied

to the extent he seeks to add a claim for wrongful discharge.
Conclusion
For the reasons given, Grady’s motion to amend, document
no. 9, is granted in part and denied in part.

Specifically, the

court grants Grady’s request to change the name of the defendant
to Wal-Mart Stores East, LP, but denies his request to add a
claim for wrongful discharge.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge

October 28, 2011
cc:

Christopher B. Kaczmarek, Esq.
Jon Nathan Strasburger, Esq.

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