Brown v. HCA Health Services of New Hampshire, Inc.

Filing 17

///ORDER granting in part and denying in part 4 Motion to Dismiss for Failure to State a Claim. So Ordered by Magistrate Judge Andrea K. Johnstone.(jna) Modified on 1/12/2016 to add: "///" (kad).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Rachael K. Brown
v.

Civil No. 15-cv-323-AJ
Opinion No. 2016 DNH 010

HCA Health Services of
New Hampshire, Inc.
O R D E R
Rachael K. Brown (“plaintiff”) filed this action against
her former employer, HCA Health Services of New Hampshire, Inc.
(“HCA” or “defendant”), asserting various claims arising out of
her termination by the defendant in July 2015.
is the defendant’s partial motion to dismiss.

Before the court
Doc. no 4.

For

the reasons that follow, the defendant’s motion is granted in
part and denied in part.

Background
Accepting the factual allegations set forth in the
plaintiff’s complaint as true, doc. no. 1, the relevant facts
are as follows:
The defendant owns and operates the Portsmouth Regional
Hospital (“Hospital”), located in Portsmouth, New Hampshire.
Compl. ¶ 2, Doc. No. 1.
defendant.

Id. ¶ 5.

In 2005, the plaintiff was hired by the

Throughout her employment, the plaintiff

served as Executive Assistant to the Chief Executive Officer of
the Hospital.

Id.

The plaintiff suffers from various health conditions,
including Graves’ disease, carpal tunnel syndrome, and
degenerative rheumatoid arthritis.

Id. ¶ 13.

Despite these

impairments, the plaintiff continued to perform the essential
functions of her work.

Id.

In the spring of 2015, the plaintiff was told that she
would have to undergo surgery to treat the medical conditions
affecting her right hand.

Id. ¶ 14.

After surgery, the

plaintiff would need twelve weeks to recover.

Id.

In April

2015, the plaintiff informed the defendant she needed to take a
leave of absence in the summer of 2015.

Id.

In June 2015, just prior to the plaintiff applying for
twelve weeks of leave under the Family and Medical Leave Act
(“FMLA”), the defendant notified her that it was terminating her
employment effective July 2, 2015.

Id. ¶ 15.

Prior to the

defendant’s notice, the plaintiff was not aware that her
employment was in jeopardy.

Id. ¶ 17.

The plaintiff had never

been previously disciplined, and, in fact, had received multiple
positive performance reviews.

Id.

Yet, relying on the advice of the Hospital’s CEO and Vice
President of Human Resources, the plaintiff proceeded with her
application for FMLA leave.

Id. ¶ 18.
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The defendant’s short-

term disability and leave administrator advised the plaintiff
that if she qualified for FMLA leave, the defendant had to
reinstate her “to the same or an equivalent job with the same
pay, benefits and terms and condition of employment on [her]
return from FMLA-protected leave.”

Id. ¶ 19.

Soon after, the

plaintiff was informed that the defendant had “approved [her]
leave under the [FMLA] from June 17, 2015, through September 8,
2015.”

Id. ¶ 20.

However, contrary to the representations made by the
defendant’s short-term disability and leave administrator, the
plaintiff was still terminated on July 2, 2015.

Id. ¶ 21.

On August 18, 2015, the plaintiff filed this action.
no. 1.

Doc.

The complaint contains four counts against the

defendant: (I) violation of the Fair Labor Standards Act; (II)
interference of the plaintiff’s rights under the FMLA; (III)
interference of the plaintiff’s rights under the Employee
Retirement Income Security Act (“ERISA”); and (IV) wrongful
discharge.

Id.

Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), the court
must accept the factual allegations in the complaint as true,
construe reasonable inferences in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s
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complaint set forth a plausible claim upon which relief may be
granted.”

Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st

Cir. 2014) (citation and quotation marks omitted).

A claim is

facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

Analyzing plausibility is “a

context-specific task” in which the court relies on its
“judicial experience and common sense.”

Id. at 679.

Discussion
The defendant moves to dismiss Counts II, III, and IV of
the plaintiff’s complaint.

Doc. no. 4.

The court examines each

count in turn.
I.

Count II: FMLA Interference
The defendant argues that the complaint fails to

sufficiently allege whether the plaintiff notified her employer
of her intention to seek FMLA leave, a required element of an
FMLA claim.

Specifically, the defendant claims that, although

the plaintiff alleges to have provided notice on two occasions,
the “first notice [was] vague and conclusory, and the second
notice was untimely as a matter of law.”

Doc. no. 4-1 at 8.

her objection, the plaintiff asserts that the complaint
adequately alleges a prima facie case for an FMLA interference
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In

claim.
“[T]he FMLA makes it unlawful for ‘any employer to
interfere with, restrain, or deny the exercise of’ any FMLAprotected right.”

Carrero-Ojeda v. Autoridad de Energía

Eléctrica, 755 F.3d 711, 722 (1st Cir. 2014) (quoting 29 U.S.C.
§ 2615(a)(1)).

To make a prima facie case of FMLA interference,

an employee must show that:
(1) she was eligible for the FMLA's protections; (2)
her employer was covered by the FMLA; (3) she was
entitled to leave under the FMLA; (4) she gave her
employer notice of her intention to take leave; and
(5) her employer denied her FMLA benefits to which she
was entitled.
Id. at 722 n.8.
Here, the complaint alleges enough facts to state an FMLA
interference claim. Accepting the factual allegations set forth
in the plaintiff’s complaint as true, the defendant was covered
by the FMLA and the plaintiff was entitled to leave.
19-20.

Compl. ¶¶

Further, the plaintiff exercised her FMLA rights by

making multiple leave requests under the FMLA.

Id. ¶¶ 14-23.

However, just before applying for leave, she was notified that
her employment was terminated, effectively denying her FMLA
benefits.

Id. ¶¶ 14-15, 34-35.

Therefore, viewing the complaint holistically, the
plaintiff has plausibly alleged that her termination was
triggered by her leave request and that it resulted in the

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denial of FMLA rights to which she was entitled when she
requested leave.

Carrero-Ojeda, 755 F.3d at 720 (holding that

temporal proximity between a request for FMLA leave and
termination “is one factor from which an employer's bad motive
can be inferred . . . .”).

Further, “[i]n alleging that she

received positive performance reviews . . . and had no warning
she was about to be fired, the . . . [c]omplaint permits the
inference that [the plaintiff] would not have been terminated—
that is, the reasons given for termination were pretextual—
except to deny her FMLA benefits.”

Reilly v. Cox Enters., Inc.,

No. CA 13-785S, 2014 WL 4473772, at *5 (D.R.I. Apr. 16, 2014);
Comp. ¶ 17.
The court acknowledges the defendant’s concern of whether
the plaintiff provided adequate or timely notice to her
employer.

That issue, however, better lends itself to

resolution at a later stage when the parties will have had the
opportunity to present the court with a more comprehensive
factual record.
Therefore, the defendant’s motion as to Count II is denied.
II.

Count III: ERISA Interference
Similar to its argument to dismiss the plaintiff’s FMLA

interference claim, the defendant argues that the plaintiff’s
ERISA interference claim fails to sufficiently allege whether
the plaintiff notified her employer of her intention to seek
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ERISA benefits.

In addition, the defendant argues that the

complaint fails to allege any plausible basis that the
plaintiff’s employer intended to interfere with her ERISA
benefits.

In her objection, the plaintiff again contends that

the complaint adequately alleges a prima facie case for ERISA
interference.
“Section 510 of ERISA prohibits . . . discharge for the
purpose of interfering with the attainment of rights under an
employee benefit plan.”

Cameron v. Idearc Media Corp., 685 F.3d

44, 48 (1st Cir. 2012) (citing 29 U.S.C. § 1140).

“[T]o

establish a prima facie case under section 510, a plaintiff must
present sufficient evidence from which the employer's specific
intent to interfere with the plaintiff's benefits can be
inferred.”

Barbour v. Dynamics Research Corp., 63 F.3d 32, 38

(1st Cir. 1995).

“Thus, a plaintiff must show that he or she

(1) is entitled to ERISA's protection, (2) was qualified for the
position, and (3) was discharged under circumstances that give
rise to an inference of discrimination.”

Id.

At this early stage, the plaintiff has alleged enough facts
to state an ERISA interference claim.

First, the complaint

attaches two exhibits demonstrating that the plaintiff was a
member of an ERISA plan.

Docs. 1-1, 1-2.

Next, the complaint

alleges that she was qualified for her position based on
multiple positive performance reviews.
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Compl. ¶ 17.

Lastly,

the complaint alleges that circumstances that give rise to an
inference of discrimination occurred when, just before she
applied for FMLA leave, she was notified that her employment was
terminated.

Id. ¶ 15.

The questions of whether the plaintiff’s notice was proper
or if there is any plausible basis that the plaintiff’s employer
intended to interfere with her ERISA benefits should be resolved
on a properly developed summary judgment record, rather than at
this early stage in the proceedings.

See Barbour, 63 F.3d at 37

(“In most cases, given that the employer controls the evidence
related to intent, a plaintiff will be unable to adduce ‘smoking
gun’ evidence that the employer intended to interfere with his
or her benefits.”).
The defendant’s motion as to Count III is denied.
III. Count IV: Wrongful Discharge
As to the plaintiff’s wrongful discharge claim, the
defendant first argues that because the complaint does not
identify whether the plaintiff performed an act encouraged by
public policy, her wrongful discharge claim fails as a matter of
law.

Second, the defendant argues that the plaintiff’s wrongful

discharge claim is preempted by the FMLA.

Specifically, the

defendant contends that because the FMLA provides a remedy for
retaliation, it preempts any common-law wrongful discharge
claims based on the same alleged conduct.
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The plaintiff argues that the complaint sufficiently
alleges that she performed an act encouraged by public policy by
reporting her intent to exercise FMLA leave.

In addition, the

plaintiff asserts that a common-law wrongful discharge claim and
a federal statutory FMLA claim may be pursued simultaneously.
To succeed on a wrongful discharge claim, the plaintiff
must “establish that: (1) h[er] termination was motivated by bad
faith, retaliation or malice; and (2) that [s]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)).
Even if the complaint facially satisfies the elements of a
wrongful discharge claim, it “cannot rest on violation of a
public policy for which there is a preempting statutory remedy.”
See Weeks v. Wal-Mart Stores, Inc., No. 10-CV-336-JD, 2010 WL
3703254, at *2 (D.N.H. Sept. 16, 2010); see also Keele v.
Colonial Imports Corp., No. 12-CV-24-JD, 2012 WL 1000387, at *2
(D.N.H. Mar. 23, 2012) (“[A]bsent preemption, an alternative
statutory remedy does not preclude a wrongful discharge claim
under New Hampshire law.”).
The FMLA provides statutory remedies for interference of
employees' rights under the FMLA.

29 U.S.C. § 2617(a)(2).

“[I]t is generally accepted that Congress intended the FMLA's
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specific remedies to be the exclusive remedies available for a
violation of the FMLA.”

See, e.g., Anderson v. Shade Tree

Servs., No. 4:12CV01066 ERW, 2012 WL 3288120, at *1 (E.D. Mo.
Aug. 10, 2012) (collecting cases); Cisneros v. Colorado, No.
CIV.A.03CV02122WDMCB, 2005 WL 1719755, at *10 (D. Colo. July 22,
2005) (collecting cases); O'Hara v. Mt. Vernon Bd. of Educ., 16
F. Supp. 2d 868, 894 (S.D. Ohio 1998).
Accordingly, “a plaintiff may not assert a state law claim
for wrongful discharge in violation of public policy based
solely on the rights set forth in the FMLA.”

Cavin v. Honda of

Am. Mfg., Inc., 138 F. Supp. 2d 987, 998 (S.D. Ohio 2001)
(emphasis added); see, e.g., Kastor v. Cash Exp. of Tenn., LLC,
77 F. Supp. 3d 605, 615 (W.D. Ky. 2015) (collecting cases);
McAllister v. Quality Mobile X-Ray Servs., No. 3:12-CV-0078,
2012 WL 3042972, at *5 (M.D. Tenn. July 25, 2012); Johnson v.
Dollar Gen., 778 F. Supp. 2d 934, 949 (N.D. Iowa 2011);
Bumgarner v. Grafco Indus., 581 F. Supp. 2d 1052, 1059 (S.D.
Iowa 2008); Johnson v. Honda of Am. Mfg., 221 F. Supp. 2d 853,
859 (S.D. Ohio 2002); Cooper v. Harbour Inns of Baltimore, Inc.,
No. L-98-2173, 2000 WL 351373, at *8 (D. Md. Mar. 20, 2000);
Kiely v. Univ. of Pitt. Med. Ctr., No. 98-1536, 2000 WL 262580,
at *20 (W.D. Pa. Jan. 20, 2000); Phelan v. Town of Derry, No.
98-013, 1998 WL 1285898, at *2 (D.N.H. Dec. 9, 1998).

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In her surreply, the plaintiff cites Danfelt v. Bd. of Cty.
Comm'rs of Washington Cty., 998 F. Supp. 606 (D. Md. 1998), to
briefly argue that the FMLA’s “savings clause . . . fails to
evince an intent to pre-empt completely . . . .”

Id. at 611.

Yet,
there is a vast difference between a case in which a
claim based a violation of the FMLA is joined with a
claim based on another federal or state statute that
has its own provisions for enforcement and remedies,
and a case in which a claim based on a violation of
the FMLA is joined with a claim that is also based on
the rights granted by the FMLA but which circumvents
and conflicts with the enforcement provisions and
remedies set forth in the FMLA. The savings clause
permits the former; it does not save the latter.
Cavin, 138 F. Supp. 2d 987, 993.
The plaintiff also cites Bellido-Sullivan v. Am. Int'l
Grp., Inc., 123 F. Supp. 2d 161 (S.D.N.Y. 2000), to contend that
the FMLA “is not meant to preempt state law.”

Id. at 165.

Bellido, however, concerns the FMLA's preclusive effect on an
action’s removal to federal court.

Id. at 163-64.

In fact,

Bellido concedes that precedent exists for “the FMLA [to]
preclude a state common law claim” when “a plaintiff has pleaded
claims under both the FMLA and state common law . . . .” Id. at
167 n.6.
Here, the plaintiff claims she was wrongfully discharged
because the defendant terminated her employment after she
requested FMLA leave.

See Compl. ¶¶ 15, 34-35, 41-44.

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Thus,

since the plaintiff’s wrongful discharge claim is based solely
on the defendant’s alleged violation of the FMLA, the claim is
dismissed.

Conclusion
For the reasons set forth above, the defendant’s partial
motion to dismiss, doc. no. 4, is granted as to Count IV, and
denied as to Counts II and III.
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 12, 2016
cc:

Benjamin T. King, Esq.
W. Daniel Deane, Esq.
Kevin M. Fitzgerald, Esq.

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