Ferreira v. Monadnock Paper Mills, Inc.

Filing 9

ORDER granting 6 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Ferreira
v.

Civil No. 13-cv-425-PB
Opinion No. 2014 DNH 038

Monadnock Paper Mills, Inc.

MEMORANDUM AND ORDER
James Ferreira claims that his former employer, Monadnock
Paper Mills, Inc., terminated his employment because he
requested sick leave under the Family and Medical Leave Act
(FMLA).

Monadnock moves to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6).

I.

I grant the motion.

BACKGROUND1

James Ferreira began working at Monadnock on August 2,
2010.

He earned $19.17 an hour working as a Class B

Coater, which required him to load and unload rewinding
machines, operate a fork truck, and operate a flatbed truck.
Ferreira became ill during the second week of May 2013.
1

He was

The facts are drawn from the complaint (Doc. No. 1) unless
otherwise noted.

unable to work on May 14, 2013 and saw his physician the
following day.

Ferreira hand-delivered a note from his

physician to a representative of Monadnock on the same day as
his doctor’s appointment.

The note informed Monadnock that

Ferreira would be unable to work that week due to his illness.
Monadnock terminated Ferreira’s employment later that day.
On September 26, 2013, Ferreira filed a complaint against
Monadnock in this court, alleging violations of the FMLA and a
New Hampshire common law claim for wrongful termination.

He

claims that Monadnock is an “employer” as defined in 29 U.S.C.
§ 2611(4), that he is an “eligible employee” as defined in 29
U.S.C. § 2611(2), that he was “entitled to leave” pursuant to 29
U.S.C. § 2612(a)(1), and that Monadnock denied his request for
leave, resulting in his loss of wages and benefits.
moved to dismiss the complaint on November 25, 2013.
6.

Monadnock
Doc. No.

Ferreira objected to the motion but stipulated to the

dismissal of his wrongful termination claim.

II.

Doc. No. 7-1.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff
must make factual allegations sufficient to “state a claim to
relief that is plausible on its face.”
2

See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

A claim is facially plausible when

it pleads “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.

The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”

Id. at 678

(citation omitted).
In deciding a motion to dismiss, I employ a two-step
approach.

See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1,

12 (1st Cir. 2011).

First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact
or threadbare recitals of the elements of a cause of action.”
Id. (alterations and internal quotation marks omitted).

A claim

consisting of little more than “allegations that merely parrot
the elements of the cause of action” may be dismissed.

Id.

Second, I credit as true all non-conclusory factual allegations
and the reasonable inferences drawn from those allegations, and
then determine if the claim is plausible.

Id.

The plausibility

requirement “simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence” of illegal
conduct.

Twombly, 550 U.S. at 556.
3

The “make-or-break

standard” is that those allegations and inferences, taken as
true, “must state a plausible, not a merely conceivable, case
for relief.”

Sepúlveda–Villarini v. Dep’t of Educ. of P.R., 628

F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555
(“Factual allegations must be enough to raise a right to relief
above the speculative level . . . .”).

III.

ANALYSIS

To maintain a claim that he was denied benefits in
violation of the FMLA, Ferreira must prove that: (1) he was an
“eligible employee”; (2) Monadnock was a covered employer; (3)
Ferreira was entitled to FMLA benefits; (4) Ferreira gave
Monadnock notice of his intention to use his benefits; and (5)
Monadnock failed to honor Ferreira’s right to benefits.2

See,

e.g., Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1062
2

The FMLA also makes it unlawful for an employer to retaliate
against an employee for attempting to exercise FMLA rights.
See, e.g., Pagán-Colón v. Walgreens of San Patricio, Inc., 697
F.3d 1, 9 (1st Cir. 2012). In addition to the first four
elements noted above, an FMLA retaliation claim also requires
proof that the employee suffered an adverse employment action
because of the employer’s retaliatory animus. Id. It is
unclear from the complaint whether Ferreira is attempting to
assert a retaliation claim or whether he is making a claim that
Monadnock denied him benefits that he was entitled to under the
FMLA. I assume for the purposes of this decision that he
intends only to assert a denial of benefits claim.
4

(7th Cir. 2014); see also Colburn v. Parker Hannifin/Nichols
Portland Div., 429 F.3d 325, 331 (1st Cir. 2005) (noting that
“no showing as to employer intent is required” to maintain an
FMLA claim for denial of benefits).
To be an “eligible employee,” Ferreira must (1) have been
employed “for at least 12 months by [Monadnock],” (2) have been
employed “for at least 1,250 hours of service with [Monadnock]
during the previous 12-month period,” but (3) not have been
“employed at a worksite at which [Monadnock] employs less than
50 employees if the total number of employees employed by
[Monadnock] within 75 miles of that worksite is less than 50.”
See 29 U.S.C. § 2611(2)(A), -(2)(B)(ii).

To be a covered

employer, Monadnock must have “employ[ed] 50 or more employees
for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year.”
§ 2611(4)(A)(i).

See id.

To be entitled to FMLA benefits, Ferreira must

have had a “serious health condition” that (1) involved either
“inpatient care in a hospital, hospice, or residential medical
care facility” or “continuing treatment by a health care
provider” and (2) rendered him “unable to perform the functions
of” a Class B Coater.

See id. §§ 2611(11); 2612(a)(1)(D).

To

have provided sufficient notice to Monadnock of his intention to
5

use FMLA benefits, Ferreira must have (1) requested leave “as
soon as practicable under the facts and circumstances” and (2)
“provide[d] sufficient information for [Monadnock] to reasonably
determine whether the FMLA may apply to [his] leave request.”
See 29 C.F.R. § 825.303(a-b).
In analyzing Ferreira’s complaint, “I first begin by
identifying pleadings in [the] Complaint that are no more than
legal conclusions, not supported by factual allegations, and
therefore fail entitlement to the assumption of truth.”

See

Johnson v. Dollar Gen., 778 F. Supp. 2d 934, 944 (N.D. Iowa
2011) (citing Iqbal, 556 U.S. at 678-79); accord Ocasio–
Hernández, 640 F.3d at 12.

Bald assertions that Monadnock is an

“employer,” that Ferreira is an “eligible employee,” and that
Ferreira “was entitled to leave” as those terms are defined in
the FMLA are textbook examples of “mere[] . . . legal
conclusions couched as fact.”

See Ocasio–Hernández, 640 F.3d at

12; accord Kiniropoulos v. Northampton Cnty. Child Welfare
Serv., 917 F. Supp. 2d 377, 391 n.18 (E.D. Pa. 2013); Weise v.
Eisai, Inc., No. 11-CV-00713-WJM-MJW, 2012 WL 84701, at *3 (D.
Colo. Jan. 11, 2012).

When these legal conclusions are stripped

from the complaint, the remaining factual allegations, which I
assume at this stage to be true, do not state a plausible case
6

for relief.

See Sepúlveda–Villarini, 628 F.3d at 29; cf.

Kiniropoulos, 917 F. Supp. 2d at 391-92 & n.18; Weise, 2012 WL
84701, at *3; Johnson, 778 F. Supp. 2d at 944.
First, the complaint does not allege sufficient facts to
support a reasonable inference that Ferreira is an “eligible
employee” because it does not mention the number of hours that
he worked during the year prior to his leave request, the number
of individuals employed at his worksite, or the number of
individuals employed by Monadnock within seventy-five miles of
that worksite.

See 29 U.S.C. § 2611(2)(A), -(2)(B)(ii);

Kiniropoulos, 917 F. Supp. 2d at 391-92 & n.18.

Second, the

complaint does not permit a reasonable inference that Monadnock
is a covered employer because it does not allege that Monadnock
employed a sufficient number of employees during the requisite
period prior to the leave request.

See 29 U.S.C.

§ 2611(4)(A)(i); Adams v. High Purity Sys. Inc., No. 1:09-CV354-GBL, 2009 WL 2391939, at *8 (E.D. Va. July 2, 2009), aff’d,
382 F. App’x 269 (4th Cir. 2010).

Third, the complaint does not

permit a reasonable inference that Ferreira was entitled to FMLA
benefits because it does not allege that his illness required
inpatient care or continuing treatment from a health care

7

provider.3

See 29 U.S.C. §§ 2611(11); 2612(a)(1)(D); Johnson,

778 F. Supp. 2d at 947.

Fourth, the complaint does not allege

sufficient facts to permit a reasonable inference that Ferreira
provided Monadnock the requisite notice of his intention to use
FMLA benefits.4

See Johnson, 778 F. Supp. 2d at 949; 29 C.F.R.

§ 825.303(a-b).
Ferreira has sufficiently pled the fifth element of a FMLA
denial of benefits claim – that his termination constituted an
implicit denial of his request for leave – but the scant factual
allegations supporting the other elements do not “raise a right
to relief above the speculative level,” see Twombly, 550 U.S. at
3

Although Ferreira has alleged “an in-person visit to a doctor
of medicine,” that fact alone is insufficient to permit a
reasonable inference that he had a “serious health condition” as
defined in the FMLA. See Johnson, 778 F. Supp. 2d at 947 (“The
continuing treatment test for a serious health condition is met
if an employee is incapacitated . . . for more than three
consecutive days and . . . is treated by a health care provider
on two or more occasions.” (quoting Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005))).
4

Ferreira alleges that he gave an unidentified person at
Monadnock a note from his doctor stating that he would be unable
to work that week due to an unspecified illness, but this
information alone would not notify Monadnock that Ferreira was
requesting FMLA benefits. The note must have also put Monadnock
on notice that Ferreira required “inpatient care . . . or
continuing treatment by a health care provider,” and the
complaint alleges no such facts. See Johnson, 778 F. Supp. 2d
at 947 (quoting Woods, 409 F.3d at 990 (quoting 29 U.S.C. §
2611(11))).
8

555, warranting dismissal of the claim.

Ferreira has requested

leave to amend the complaint, however, see Doc. No. 7-1, which I
am inclined to grant.

See Fed. R. Civ. P. 15(a)(2) (“The court

should freely give leave [to amend a pleading] when justice so
requires.”); Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th
Cir. 2009) (“Dismissal without leave to amend is improper unless
it is clear, upon de novo review, that the complaint could not
be saved by any amendment.” (quoting Gompper v. VISX, Inc., 298
F.3d 893, 898 (9th Cir. 2002))).

IV.

CONCLUSION

For the foregoing reasons, I grant Monadnock’s motion to
dismiss the complaint in its present form (Doc. No. 6).
Ferreira shall file a motion for leave to amend his complaint,
together with a proposed amended complaint addressing the noted
deficiencies, within fourteen days.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
February 25, 2014
cc:

David P. Slawsky, Esq.
Beth A. Deragon, Esq.
R. Matthew Cairns, Esq.
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