Diby v. Kepco Inc. et al

Filing 6

ORDER. For the reasons stated in the annexed memorandum and order: (1) plaintiff's request to proceed in forma pauperis is GRANTED; (2) plaintiff's interference claims under the FMLA against Kepco and Wu will be dismissed unless plaintiff a mends her complaint within 30 days of the date of this Memorandum and Order to address the deficiencies outlined herein; (3) plaintiff's retaliation claim under the FMLA against Kepco survives sua sponte review pursuant to 28 U.S.C. § 1915; and (4) plaintiff's retaliation claim against Wu will be dismissed unless plaintiff amends her complaint within 30 days of the date of this Memorandum and Order to address the deficiencies outlined herein. The Clerk of Court is respectfully directed to serve a copy of the complaint, a summons, and this Memorandum and Order on Kepco at the address provided in plaintiff's complaint. Ordered by Judge Kiyo A. Matsumoto on 10/7/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
NDRI DIBY,
MEMORANDUM & ORDER
16-CV-583(KAM)(LB)

Plaintiff,
-againstKEPCO INC. and JULIE WU,
Defendants.
---------------------------------X
MATSUMOTO, United States District Judge:

Plaintiff Ndri Diby, proceeding pro se, brings this
action against her former employer Kepco Inc. (“Kepco”) and her
former supervisor Julie Wu (“Wu”) (collectively, “defendants”),
alleging that defendants violated her rights under the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. For the
reasons stated below: (1) plaintiff’s request to proceed in forma
pauperis is GRANTED; (2) plaintiff’s interference claims under the
FMLA against Kepco and Wu will be dismissed unless plaintiff amends
her complaint within 30 days of the date of this Memorandum and
Order to address the deficiencies outlined below; (3) plaintiff’s
retaliation claim under the FMLA against Kepco survives sua sponte
review

pursuant

to

28

U.S.C.

§ 1915;

and

(4)

plaintiff’s

retaliation claim against Wu will be dismissed unless plaintiff
amends her complaint within 30 days of the date of this Memorandum
and Order to address the deficiencies outlined below.

BACKGROUND
The following facts are drawn from the complaint, and
are

assumed

true

for

purposes

of

this

Memorandum

and

Order.

Plaintiff worked as a junior accountant for Kepco, an electronic
parts supplier, from May 7, 2012, until she was terminated on
January 10, 2014. (ECF No. 2, Complaint, Ex. A (“Compl.”) ¶¶ 12). Defendant Wu was the controller at Kepco, and was plaintiff’s
direct supervisor. (Id. ¶ 2.)
In mid-October 2013, plaintiff asked Wu for two weeks of
leave time to seek medical care for a knee injury. (Id. ¶ 3.) Wu
denied plaintiff’s request. (Id. ¶¶ 3-4.) On November 14, 2013,
plaintiff sent an email to Wu again seeking leave to address her
knee injury. (Id. ¶ 5.) Wu forwarded plaintiff’s request to Kepco
Human Resources Department Director Susan Lipsky (“Lipsky”). (Id.)
On or about November 21, 2013, plaintiff was provided with an FMLA
leave request form. (Id.) In early December, plaintiff submitted
the FMLA form to the Human Resources Department. (Id.) A Human
Resources Department employee informed plaintiff that she had
exhausted her sick and vacation time and that she did not meet the

2

eligibility requirements under the FMLA. 1 (Id. ¶¶ 5-6.) Plaintiff
subsequently met with a Human Resources Department employee who
again informed her that any leave she took would not be covered by
the FMLA. (Id. ¶ 7-8.)
On December 19, 2013, plaintiff’s last day of work before
she intended to take time off to address her knee injury, plaintiff
met

with

Lipsky,

“who

reiterated

the

same

statements

that

[plaintiff had] to be aware of the fact that [she was] not covered
by [the FMLA] and [her] leave [was] not under [the FMLA].” (Id.
¶ 10.) Lipsky told plaintiff that she was free to take time off,
but Lipsky said that Kepco “may not have a job available for
[plaintiff] when” plaintiff returned. (Id. ¶ 10.)
Plaintiff subsequently traveled to a foreign country
where her parents reside for medical treatment. (Id. ¶¶ 6, 11.) On
January 9, 2014, plaintiff emailed Lipsky, requesting another week
off to “physically prepare for the travel following [her] medical
treatment.” (Id. ¶ 11.) The following day, January 10, 2014, Lipsky
terminated

plaintiff

in

an

email.

1

(Id.

¶ 12.)

According

to

Plaintiff’s complaint lacks clarity regarding whether the
individual with whom she met at the Human Resources Department was Lipsky
or a different Kepco employee.

3

plaintiff,

Lipsky

stated

in

the

January

10,

2014

email

that

plaintiff’s leave was not covered under the FMLA and that plaintiff
had committed “misconduct” by “fail[ing] to give [Lipsky] a call
on January 8, 2014.” (Id.)
On January 8, 2016, plaintiff brought the instant action
in the Southern District of New York and requested to proceed in
forma pauperis. (See Compl.; see also ECF No. 2.) The action was
subsequently transferred to the Eastern District of New York. (ECF
No. 3.)
STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face,” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
At the pleading stage of the proceeding, the court must assume the
truth of “all well-pleaded, nonconclusory factual allegations” in
the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111,
124 (2d Cir. 2010) (citing Iqbal, 556 U.S. at 679). The court need
not

accept

as

true

allegations

that

are

effectively

legal

conclusions. See Iqbal, 556 U.S. at 678. In addition, a pro se
4

complaint is “to be liberally construed,” Ahlers v. Rabinowitz,
684 F.3d 53, 60 (2d Cir. 2012) (internal quotation marks and
citation

omitted),

and

interpreted

“to

raise

the

strongest

arguments that [it] suggest[s].” Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996) (internal quotation marks and citation omitted).
Under

the

in

forma

pauperis

statute,

28

U.S.C.

§ 1915(e)(2)(B), the court is required to dismiss a complaint if
the complaint “(i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” An
action is frivolous as a matter of law when, inter alia, it is
based on an “indisputably meritless legal theory.” Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal
quotation marks and citation omitted). A claim is based on an
“indisputably meritless legal theory” when “either the claim lacks
an arguable basis in law, or a dispositive defense clearly exists
on the face of the complaint.” Id. (citations omitted). The court
should generally not dismiss a pro se complaint without granting
the plaintiff leave to amend if a liberal reading of the complaint
suggests

that

a

valid

claim

could

be

stated.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
5

See

Cuoco

v.

DISCUSSION
I.

The Family and Medical Leave Act
The FMLA was enacted by Congress in 1993 “to balance the

demands of the workplace with the needs of families, to promote
the stability and economic security of families, and to promote
national interests in preserving family integrity.” 29 U.S.C.
§ 2601(b)(1). In order to bring a successful claim under the FMLA,
an employee-plaintiff must demonstrate “(1) that the employer
interfered with, restrained, or denied the rights protected by the
FMLA,

and

(2)

that

the

employee

has

been

prejudiced

by

the

violation.” Roberts v. Health Ass'n, 308 F. App’x. 568, 569 (2d
Cir. 2009) (citing Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 89 (2002)).
“The FMLA entitles covered employees to take up to 12
weeks of leave per year to care for a spouse, parent, or child
that has a serious health condition, or for the employee's own
serious health condition that makes the employee unable to perform
the functions of his or her position.” Higgins v. NYP Holdings,
Inc., 836 F. Supp. 2d 182, 193 (S.D.N.Y. 2011) (citing 29 U.S.C.
§§ 2612(a)(1)(C), (a)(1)(D), (b)). Upon return from FMLA leave, an
employer must restore an employee to her former job or another
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position

with

equivalent

pay,

benefits,

and

conditions

of

employment. 29 U.S.C. § 2614(a)(1). An employer who fails to
provide an eligible employee with FMLA leave may be held liable
for damages and may also be required to reemploy, reinstate, or
promote the employee. See 29 U.S.C. § 2617(a)(1).
Additionally, an individual can face personal liability
under the FMLA under certain circumstances. Personal liability
under the FMLA is appropriately only if the individual defendant
is

an

“employer”

within

the

definition

of

the

statute.

See

Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 422 (2d Cir.
2016). The term “employer” in this context can include “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); see also 29 C.F.R. § 825.104(d). The Second
Circuit applies an “economic reality” test to evaluate whether an
individual

qualifies

as

an

“employer”

for

purposes

of

FMLA

liability. Graziadio, 817 F.3d at 422. A nonexhaustive list of
factors for consideration includes:
whether the alleged employer (1) had the power to hire
and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3)
determined the rate and method of payment, and (4)
maintained employment records.
7

Id.
A plaintiff may bring two kinds of claims under the FMLA:
a claim based on “interference” with his or her rights under the
Act and a claim based on “retaliation” for his or her exercise of
rights under the Act. See Potenza v. City of New York, 365 F.3d
165, 168 (2d Cir. 2004) (per curiam); Smith v. Westchester Cty.,
769 F. Supp. 2d 448, 463 (S.D.N.Y. 2011) (“The Second Circuit has
recognized two types of FMLA claims — ‘interference’ claims and
‘retaliation’ claims.”). Here, plaintiff asserts both interference
and retaliation claims.
II.

Plaintiff’s Interference Claims
In order to state a prima facie claim for interference

under the FMLA, a plaintiff must show that (1) she was an eligible
employee under the FMLA; (2) defendant is an employer under the
FMLA; (3) she is entitled to leave under the FMLA; (4) she gave
notice to defendant of her intention to take leave; and (5) she
was denied the benefits to which she was entitled under the FMLA.
See Pearson v. Unification Theological Seminary, 785 F. Supp. 2d
141, 161-62 (S.D.N.Y. 2011).
Plaintiff's complaint as presently pled fails to state
an interference claim under the FMLA. First, plaintiff fails to
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adequately plead that she is an eligible employee under the FMLA.
To be “eligible” under the FMLA, an employee must have been
employed “(i) for at least 12 months by the employer . . . and
(ii) for at least 1,250 hours of service with such employer during
the previous 12–month period.” 29 U.S.C. § 2611(2)(A); see also
Woodford v. Cmty. Action of Greene Cnty., Inc., 268 F.3d 51, 54
(2d Cir. 2001) (“In order to be eligible for FMLA benefits, an
employee must have been employed for at least twelve months with
an employer and have worked at least 1,250 hours in the twelve
months preceding the date on which eligibility is determined.”).
Here, although plaintiff alleges that she was employed by Kepco
for more than twelve months before requesting leave (see Compl.
¶¶ 1, 3), she has not alleged that she worked at least 1,250 hours
in the twelve months before she filed for FMLA leave.
Second, plaintiff fails to plead that defendant is an
employer

under

the

FMLA.

Her

pleadings

fails

to

allege

that

defendant employed fifty or more employees for each working day
during each of twenty or more calendar workweeks in the calendar
year of the request or the preceding calendar year. See 29 U.S.C.
§ 2611(4) (defining “employer” for purposes of the FMLA). Third,
to the extent that she claims that she was entitled to leave under
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the FMLA based on a “serious health condition,” she does not allege
sufficient facts regarding the nature of her health condition.
Plaintiff simply asserts that she had an injury to her knee. (E.g.,
Compl. ¶ 3.) Not all health-related ailments are covered by the
FMLA. “The term ‘serious health condition’ means an illness,
injury, impairment, or physical or mental condition that involves
(A) inpatient care in a hospital, hospice, or residential medical
care

facility;

or

(B)

continuing

treatment

by

a

health

care

provider.” 29 U.S.C. § 2611(11). Accordingly, plaintiff fails to
allege

facts

sufficient

to

assert

a

prima

facie

case

of

interference under the FMLA.
Plaintiff’s interference claim against Wu fails for an
additional reason. As discussed above, a nonexhaustive list of
factors for consideration in determining whether an individual can
be held personally liable under the FMLA includes:
whether the alleged employer (1) had the power to hire
and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3)
determined the rate and method of payment, and (4)
maintained employment records.
Id. Here, plaintiff has failed to allege sufficient facts regarding
the above factors to establish that Wu was an “employer” for
purposes of the FLSA. For example, there is no indication in the
10

complaint that Wu had the power to hire and fire employees,
determined

the

rate

and

method

of

payment

for

employees,

or

maintained employment records.
Accordingly,

plaintiff’s

interference

claims

are

insufficient. Plaintiff is granted 30 days from the date of this
Memorandum

and

Order

to

amend

her

complaint

to

address

the

deficiencies regarding her interference claims against Kepco and
Wu.
III. Plaintiff’s Retaliation Claims
Retaliation claims under the FMLA are evaluated under
the burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Potenza,
365 F.3d at 168. Specifically, a plaintiff must point to evidence
indicating that (1) she exercised rights protected under the FMLA;
(2) she was qualified for her position; (3) she suffered an adverse
employment action; and (4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory
intent. See id.
Plaintiff appears to contend that she was exercising
rights protected under the FMLA by contesting the denial of her
FMLA leave request. (Compl. ¶¶ 5-6.) Employees are protected “if
11

they oppose any practice which they reasonably believe to be a
violation

of

the

Act

or

regulations.”

29

C.F.R.

§

825.220.

Plaintiff also appears to allege that she was qualified enough at
her job to train another individual on a particular system. (Compl.
¶ 9.) Finally, plaintiff alleges that she was terminated within a
few weeks of asking for leave under the FMLA. At this time the
court declines to dismiss plaintiff’s retaliation claim against
Kepco pursuant to 28 U.S.C. § 1915.
Plaintiff’s retaliation claim against Wu, however, fails
because — as outlined above in the court’s discussion regarding
the interference claims (see supra Discussion Part II) — plaintiff
has not adequately pled that Wu was an “employer” within the
meaning of the FMLA. Plaintiff is granted the opportunity to allege
facts that show Wu was an employer pursuant to the factors set
forth above.
Accordingly, plaintiff’s retaliation claim against Kepco
survives,

but

plaintiff’s

retaliation

claim

against

Wu

is

deficient. Plaintiff will be permitted 30 days from the date of
this Memorandum and Order to amend her complaint to address the
deficiencies regarding her retaliation claim against Wu.

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CONCLUSION
Accordingly:
(1)

Plaintiff’s

request

to

proceed

in

forma

pauperis

is

GRANTED;
(2)

Plaintiff’s interference claims under the FMLA against
Kepco and Wu will be dismissed unless plaintiff amends her
complaint within 30 days after the date of this Memorandum
and Order to address the deficiencies outlined above.

(3)

Plaintiff’s retaliation claim under the FMLA against Kepco
survives sua sponte review pursuant to 28 U.S.C. § 1915;

(4)

Plaintiff’s retaliation claim against Wu will be dismissed
unless plaintiff amends her complaint within 30 days after
the date of this Memorandum and Order to address the
deficiencies outlined above.

(5)

The Clerk of Court is respectfully directed to serve a copy
of the complaint, a summons, and this Memorandum and Order
on Kepco at the address provided in plaintiff’s complaint.
Plaintiff is informed that if she elects to file an

amended complaint, she must plead sufficient facts to address the
deficiencies outlined above. If possible, plaintiff should annex
a copy of the FMLA form that she completed and submitted to Kepco.
13

The amended complaint must be captioned “Amended Complaint,” and
bear the same docket number as this Memorandum and Order. Plaintiff
is reminded that an amended complaint completely replaces the prior
complaint. The court certifies pursuant to 28 U.S.C. § 1915 (a)(3)
that any appeal from this order would not be taken in good faith
and therefore in forma pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

October 7, 2016
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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