ADAMS v. SHIPMAN et al

Filing 20

MEMORANDUM OPINION AND ORDER signed by JUDGE JAMES A. BEATY, JR. on 09/30/2014 as set out herein. For the foregoing reasons, the Court will GRANT Defendants' Motion to Dismiss [Doc. # 11 . A Judgment dismissing this action will be entered contemporaneously with this Memorandum Opinion and Order. ORDERED that Defendants' Motion to Dismiss [Doc. # 11 ishereby GRANTED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LORI T. ADAMS,
Plaintiff,
v.
PAM SHIPMAN, Chief Executive Officer
of Cardinal Innovations Healthcare
Solutions, STEVEN TIMMONS,
Chief Administrative Officer,
VALERIE HENNIKER, Director of Five
County Community Operations Center, and
MARNI CAHILL, Regional Director of
Mental Health/Substance Abuse Care
Coordination at Five County Community
Operations Center,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

1:13CV858

MEMORANDUM OPINION AND ORDER
BEATY, District Judge.

On September 27, 2013, Plaintiff Lori T. Adams (“Plaintiff”), pro se, filed her original
Complaint (“Original Complaint”) [Doc. #1], which alleges violations of the Family and Medical
Leave Act, 29 U.S.C. §§ 2611 et seq. (the “FMLA”), the Americans with Disability Act, 42 U.S.C.
§§ 12111 et seq. (the “ADA”), and the Rehabilitation Act, 29 U.S.C. § 794 as amended. On
October 9, 2013, Plaintiff filed an Amended Complaint [Doc. #5], which alleges violations under
the FMLA. This matter is before the Court on a Motion to Dismiss [Doc. #11] filed by
Defendants Pam Shipman, Steven Timmons, Valerie Hennike,1 and Marni Cahill (collectively

Plaintiff has alternatively referred to Valerie Hennike’s surname as “Hennike” or
“Henniker.” However Defendants assert that the proper spelling of the name in “Hennike” and,
1

“Defendants”), pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure
for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be
granted. Defendants further request that the Court dismiss Plaintiff’s Amended Complaint
[Doc. #5] as to Defendants Hennike and Cahill pursuant to Rules 12(b)(2) and 12(b)(5) of the
Federal Rules of Civil Procedure for lack of personal jurisdiction and insufficient service of
process. Defendants’ Motion to Dismiss is fully briefed and is now before the Court for

review.2 For the reasons discussed herein, the Court will grant Defendants’ Motion to Dismiss
[Doc. #11].
I.

FACTUAL AND PROCEDURAL BACKGROUND
Based on the allegations in Plaintiff’s Amended Complaint, it appears that Plaintiff was

employed by Cardinal Innovations Healthcare Solutions (“Cardinal Innovations”) and/or Five
County Community Operations Center (“Five County”)3 from December 2008 until on or about
August 15, 2012. (Am. Compl. [Doc. #5], at 4.) Plaintiff asserts on August 15, 2012, she was
out of work on approved leave under the FMLA, which was approved by Cardinal Innovations
through its subcontractor, FMLA Source. (Id.) Plaintiff alleges that her leave was granted

thus, the Court will use the “Hennike” designation.
The Court notes, that it also held a hearing on Defendants’ Motion to Dismiss on
August 12, 2014, wherein the parties presented further argument in support of their respective
positions.
2

Plaintiff alleges that Cardinal Innovations “assumed all rights and responsibilities of Five
County Mental Health Authority,” which included the ability to control “sick, vacation and
seniority time for exiting employees.” (Am. Compl. [Doc. #5], at 5.) Plaintiff alleges that
Cardinal Innovations assumed such rights and responsibilities in January 2012, which was before
the timing of the events that are set forth in the Amended Complaint.
3

2

because she “met all FMLA criteria relative to length of employment and medical need.” (Id.)
Plaintiff also asserts that she was “in good standing relative to her work performance” and that
she “had no unfavorable performance evaluations.” (Id.) Plaintiff further alleges that she was
on FMLA leave when she was terminated from her employment on August 15, 2012. (Id.)
Plaintiff asserts that Defendant Shipman, Chief Executive Officer of Cardinal Innovations, and
Defendant Timmons, Chief Administrative Officer of Cardinal Innovations, provided
“inadequate supervision” to a subordinate, Defendant Hennike, the Executive Director of Five
County. (Id. at 3.) As to Defendant Hennike, Plaintiff alleges that Defendant Hennike “signed
the letters of termination mailed to plaintiff and inadvertently approved the explicit actions of
[Defendant] Cahill.” (Id.) Plaintiff also generally alleges that Defendant Hennike failed to
appropriately supervise Defendant Cahill and specifically alleges that Defendant Cahill ignored
information from Plaintiff, information that addressed “requests for modifications in
employment.” (Id. at 3, 5.) As to Defendant Cahill, Plaintiff alleges that Defendant Cahill
directly participated in “violation of FMLA at Five County.” (Id.) Furthermore, Plaintiff asserts
that after Defendants sent her a letter that denoted her original termination date, Defendants
sent a second letter to Plaintiff with a different termination date, in an effort to “to ensure they
were within the FMLA law and to escape having to pay . . . [P]laintiff[’s] unemployment
benefits.” (Id. at 5.) Plaintiff asserts that this second letter was mailed to Plaintiff after she
applied for unemployment benefits. Thus, based on the allegations stated above, it appears that
Plaintiff has alleged violations under the FMLA and the ADA. In her request for relief, Plaintiff
seeks one year’s salary in the approximate sum of fifty four thousand dollars ($54,000.00).

3

Defendants filed a Motion to Dismiss [Doc. #11] Plaintiff’s Amended Complaint based
on several arguments. First, Defendants argue that insomuch as Plaintiff is attempting to assert
that the named defendants are subject to individual liability under the ADA, such claims must
be dismissed for lack of subject matter jurisdiction because Plaintiff failed to name the individual
Defendants in her charge filed with the EEOC. Further, concerning Plaintiff’s ADA claims,
Defendants argue that even if subject matter jurisdiction existed as to the individual defendants,
there is no personal liability for the alleged violations of the ADA and even so, Plaintiff has
failed to plead sufficient facts to state a claim under the ADA. As to Plaintiff’s FMLA claims,
Defendants argue that there is no individual liability under the FMLA and, furthermore, Plaintiff
fails to state a claim for relief under the FMLA. Lastly, as to Defendants Hennike and Cahill,
Defendants argue that any claims against these particular Defendants should be dismissed for
insufficiency of service of process and for a lack of personal jurisdiction.
II.

DISCUSSION
Defendants have moved to dismiss Plaintiff’s Amended Complaint based on a lack of

subject matter jurisdiction, a lack of personal jurisdiction combined with insufficient service of
process, and for the failure to state a claim as to both Plaintiff’s claims under the ADA and
under the FMLA. Accordingly, the Court will address each basis for dismissal in turn. The
Court must, however, address any jurisdictional issues prior to addressing the motion to dismiss
for the failure to state a claim. Sucampo Pharmaceuticals, Inc. v. Astellas Pharma, Inc., 471 F.3d
544, 548 (4th Cir. 2006) (“[D]ismissal of a case on an issue relating to the merits of the dispute,

4

such as failure to state a claim, is improper without resolving threshold issues of jurisdiction,
including personal jurisdiction.”)
A.

Lack of Personal Jurisdiction and Insufficient Service of Process

Defendants assert that Plaintiff has failed to properly serve Defendants Hennike and
Cahill with a Summons or Amended Complaint in this case and, thus, argue that the claims
asserted against Defendants Hennike and Cahill should be dismissed for insufficient service of
process and lack of personal jurisdiction. Federal Rule of Civil Procedure 12(b)(5) provides for
dismissal of an action for insufficient service of process. The Court can “exercise [personal]
jurisdiction over . . . Defendant[s] only if there is valid service of process upon . . .
Defendant[s].” Shaver v. Cooleemee Volunteer Fire Dep’t, No. 1:07CV175, 2008 WL 942560
(M.D.N.C. Apr. 7, 2008) (citing Armco, Inc. v. Penrod-Stauffer Bldg. Sys., 733 F.2d 1087, 1089
(4th Cir. 1984)). “ ‘In resolving a motion under Rule 12(b)(5), the party making the service has
the burden of demonstrating its validity when an objection to service is made.’ ” United States
v. Sea Bay Dev. Corp., CIV.A.2:06CV624, 2007 WL 1378544 (E.D. Va. May 8, 2007) (quoting
Reed v. Weeks Marine, Inc., 166 F. Supp. 2d 1052, 1054 (E.D. Pa. 2001). Pursuant to Rule 4(m)
of the Federal Rules of Civil Procedure, service of a summons and complaint must be made
within 120 days of the filing of the complaint. If service is not effectuated within the 120-day
time period, the district court “shall dismiss the actions without prejudice against that defendant
or order that service be effected within a specific time.” Fed. R. Civ. P. 4(m).

5

In this case, Plaintiff has conceded that service of process was not completed as to
Defendants Hennike and Cahill.4 (See Pl.’s Resp. [Doc. #16], at 8.) Plaintiff, in her Response,
has stated that she attempted to serve Defendants Hennike and Cahill but asserts that they
“evaded the summons with one saying they were out of town and the other instructed the
sheriff’s office to serve their [sic] corporate office.” (Id.) Indeed, Plaintiff has provided Proof
of Service letters5 (see id. at 28-29) showing that she attempted to serve Defendants Hennike
and Cahill. Plaintiff has requested an extension of time to serve Defendants Hennike and Cahill
in her Response, if the Court determines that her claims against Defendants Hennike and Cahill
should be dismissed because of insufficient service of process.
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, the Court may “extend
the time for service for an appropriate period” if Plaintiff demonstrates good cause for failing
to serve Defendants Hennike and Cahill with process. “[T]he Court may find good cause ‘where
the plaintiff has taken the affirmative action to effectuate service of process upon the defendant
or has been prohibited, through no fault of his own, from taking such an affirmative action.’ ”
Tennenbaum . PNC Bank Nat’l Ass’n, No. DKC-10-2215, 2011 WL 2038550, at *4 (D. Md.
May 24, 2011) (quoting Vincent v. Reynolds Mem’l Hosp., Inc., 141 F.R.D. 436, 437 (N.D.W.
The Court notes that Plaintiff’s Original Complaint was filed on September 27, 2013 and
her Amended Complaint was filed on October 9, 2013. As of the date of this Memorandum
Opinion and Order, it does not appear that Plaintiff has served Defendants Hennike and Cahill
and as such, Plaintiff has failed to served Defendants Hennike and Cahill within the 120-day
period provided under Rule 4 of the Federal Rules of Civil Procedure.
4

The Court may consider materials outside of the pleadings in assessing the sufficiency
of service of process. See Davis v. Matroo, 5:13CV233-BO, 2013 WL 5309662 (E.D.N.C. Sept.
19, 2013) (“Inasmuch as the sufficiency of process and service of process concern the court’s
jurisdiction, consideration of materials outside the pleadings, such as affidavits, is appropriate.”)
5

6

Va. 1992)). In this case, the Court finds that in light of Plaintiff’s contentions and the Proof of
Service letters provided by Plaintiff, that Plaintiff has shown good cause for failing to complete
service of process upon Defendants Hennike and Cahill. However, granting an extension of
time to effectuate service would be futile, because as is explained more fully below, the Court
finds that Plaintiff’s claims must be dismissed pursuant to Rule 12(b)(6). Accordingly, the Court
need not grant any such extension, and Defendants’ Motion to Dismiss pursuant to Rule 12(b)2)
and 12(b)(5) is granted.
B.

Exhaustion of Administrative Remedies and Subject Matter Jurisdiction

Defendants assert that Plaintiff’s ADA claim should be dismissed for lack of subject
matter jurisdiction because Plaintiff failed to name the Defendants, in their individual capacity,
in her EEOC Charge, which Defendants have attached to their brief supporting their Motion
to Dismiss. (See EEOC Charge [Doc. #12-1].)6 Specifically, Defendants assert that Plaintiff
only named “Cardinal Innovations Healthcare Solutions/Five County” as the respondent in her
EEOC Charge. (Id.)
Defendants correctly assert that Defendants must have been named in the EEOC Charge
for the Court to exercise jurisdiction over Plaintiff’s ADA claim against Defendants in their

The Court may consider the EEOC Charge to determine whether the Court has subject
matter jurisdiction over Plaintiff’s ADA claim against Defendants. This is because the Court
may consider evidence outside of the pleadings to determine whether it has jurisdiction without
converting the instant motion to dismiss proceeding into a proceeding for summary judgment.
See Evans, 166 F.3d at 647. Furthermore, the EEOC Charge is a public record that is subject
to judicial notice. Reed v. Md. Dep’t of Human Res., No. ELC-12-0472, 2013 WL 489985, at
*4-5 (D. Md. Feb. 7, 2013) (finding that the court may consider the EEOC charge attached to
the defendant’s motion to dismiss because, inter alia, the EEOC charge was subject to judicial
notice because it was a public record).
6

7

individual capacities. Tuttle v. Anuvia Prevention & Discovery, No. 3:13CV134, 2013 WL
3899666, at *3 (W.D.N.C. July 29, 2013) (dismissing the plaintiff’s Title VII and ADA claims for
lack of subject matter jurisdiction because individual defendants were not named in the EEOC
Charge and reasoning that even though the individual defendants “may have had knowledge of
[the p]laintiff’s EEOC Charge against the company” it did not necessarily put the individual
defendants on notice that they would “be personally liable for the alleged violations.”); Monroe
v. BellSouth Telecomms., Inc., No. Civ. 102CV00591, 2003 WL 22037720, at *3 (M.D.N.C.
Aug. 15, 2003) (dismissing ADA claim, as well as the plaintiff’s claims under Title VII and the
Age Discrimination in Employment Act (“ADEA”), against individual defendants when the
individual defendants were not named in the EEOC Charge); Stafford v. Radford Cmty. Hosp.,
Inc., 908 F. Supp. 1369, 1372-73 (W.D. Va. 1995) (dismissing ADA and ADEA claims against
the defendants that where not named in the EEOC Charge); see Causey v. Balong, 162 F.3d 795,
800 (4th Cir. 1994) (affirming dismissal of ADEA and Title VII claims against individual
defendants that were not named in the EEOC Charge).
In response to Defendants’ argument, Plaintiff asserts that she is pro se and, thus, the
Court should allow her ADA claim to proceed against Defendants in their individual capacities.
However, the Court notes that case law within the Fourth Circuit is contrary to Plaintiff’s
position. Tuttle, 2013 WL 3899666, at *3 (dismissing pro se plaintiff’s Title VII and ADA claims
for failure to name individual defendants in EEOC Charge); Miller v. Ingles, No. 1:09CV200,
2009 WL 4325218, at *9-10 (W.D.N.C. Nov. 24, 2009) (dismissing pro se plaintiff’s ADA and
ADEA claims against individual defendant when EEOC Charge only mentioned the individual

8

defendant in the “Particulars” of the charge but the individual defendant was not named as a
respondent in the charge). Furthermore, even if the naming requirement did not bar Plaintiff’s
ADA claim against Defendants in their individual capacities, “[t]he Fourth Circuit has held that
individual defendants do not face personal liability under the ADA.” Monroe v. BellSouth
Telecomms., Inc., No. Civ. 102CV00591, 2003 WL 22037720, at *3 (citing Baird ex rel. Baird
v. Rose, 192 F.3d 462, 472 (4th Cir. 1999)). Thus, the Court will dismiss the ADA claims against
Defendants in their individual capacity.7
C.

Motion to Dismiss for Failure to State a Claim

In reviewing a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the
Fourth Circuit has directed that courts “ ‘take the facts in the light most favorable to the
plaintiff,’ but ‘[they] need not accept the legal conclusions drawn from the facts,’ and ‘[they] need
not accept as true unwarranted inferences, unreasonable conclusions, or arguments.’ ”

Plaintiff does not respond to Defendants’ argument that her claim under the
Rehabilitation Act is subject to dismissal against Defendants in their individual capacity. As
such, the Court finds that Plaintiff has abandoned this claim and will dismiss it pursuant to Local
Rule 7.3(k). See, e.g., Hold v. United States, No. 1:09CV122, 2010 WL 1286671, at *2
(M.D.N.C. Mar 29, 2010) (Dixon, Mag. J.) (“Under Local Rule 7.3(k), a motion that is
uncontested may be granted without further notice.”), adopted, No. 1:09CV122 [Doc. #15]
(M.D.N.C. August 23, 2010); Wainwright v. Carolina Motor Club, Inc., No. 1:03CV1185, 2005
WL 1168463, at *13 (M.D.N.C. Apr. 27, 2005) (Sharp, Mag. J.) (“Plaintiff’s failure to argue [a]
claim is tantamount to abandonment of the claim.”); see also, Brand v. N.C. Dept’t of Crime
Control and Pub. Safety, 352 F. Supp. 2d 606, 618 (M.D.N.C. 2004) (“In Plaintiff’s brief in
response to Defendants’ motion for summary judgment, Plaintiff does not address . . . his
hostile work environment claim. By failing to respond, Plaintiff concedes that he has not stated
a hostile work environment claim.”). In addressing Plaintiff’s purported individual capacity
claim under the Rehabilitation Act, however, Defendants have not contested whether Plaintiff
has properly stated any official capacity claim under the Rehabilitation Act. Any such claim will
be addressed in association with Plaintiff’s ADA claims.
7

9

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts., Inc. v.
J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000)). “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.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d
868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (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. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “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. “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of “entitlement to relief.” ’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955)
(citations omitted). Thus, dismissal of a complaint is proper where a plaintiff’s factual allegations
fail to “produce an inference of liability strong enough to nudge the plaintiff’s claims ‘across the
line from conceivable to plausible.’ ” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591
F.3d 250, 256 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 683, 129 S. Ct. 1937).
Furthermore, “[a] document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081
(2007) (internal quotations and citations omitted)). However, the Court “may not be an
advocate for a pro se plaintiff and must hold the complaint to certain minimal pleading

10

standards.” Hongan Lai v. Dep’t of Justice, No. 5:13cv00033, 2013 WL 3923506, at *3 (W.D.
Va. July 29, 2013) (citing Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985);
Switzer v. Town of Stanley, No. 5:10cv00128, 2010 WL 4961912, at *2-3 (W.D. Va. December
1, 2010); Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981)).
Defendants argue that notwithstanding the jurisdictional issues involved with Plaintiff’s
Amended Complaint, Plaintiff has also generally failed to state a claim pursuant to either the
ADA or the FMLA. Accordingly, the Court will address each in turn.
1.

ADA Claims8

Defendants assert that even if Defendants were subject to liability under the ADA,
Plaintiff’s ADA claim cannot succeed because Plaintiff fails to state a cognizable ADA claim
sufficient to withstand a motion to dismiss. Initially, the Court notes that it is not clear whether
Plaintiff intended to assert claims against the individual defendants in their official capacity or
against Cardinal Innovations/Five County. Further, the Court notes that Plaintiff’s Amended
Complaint does not include any assertions that Defendants violated the ADA, nor does the
Amended Complaint even mention the ADA. Once an amended pleading is filed, “the original
pleading no longer performs any function in the case.” 6 Charles Alan Wright et al., Federal
Practice and Procedure § 1476, 636-37 (3d ed. 2010). Although “an amended pleading may

To the extent Plaintiff’s Amended Complaint attempts to assert any claims pursuant to
the Rehabilitiation Act, 29 U.S.C. § 794, the Court notes that any such claims fail for the reasons
set forth as to Plaintiff’s ADA claims. See Baird, 192 F.3d at 468 (noting that a single statement
of the elements of both claims is proper due to the language of the two statutes being
substantially the same (citing Doe v. University of Maryland Medical System Corp., 50 F.3d
1261, 1264 n. 9 (4th Cir. 1995)).
8

11

adopt some or all of the averments of the original pleading,” id. at 640, Plaintiff has failed to
even reference her Original Complaint in her Amended Complaint, which does make allegations
regarding the ADA. Defendants, however address Plaintiff’s ADA claim extensively in their
Motion to Dismiss. Further, based on Plaintiff’s arguments during the hearing concerning the
Motion to Dismiss, it appears that Plaintiff is attempting to assert an ADA claim against
Defendants. Accordingly, the Court will analyze any such claim, to the extent Plaintiff has
attempted to assert a claim under the ADA.
The ADA, 42 U.S.C. § 12101, et seq., prohibits covered entities, including private
employers, from discriminating against “a qualified individual on the basis of disability in regard
to job application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). Under the ADA, if Plaintiff is asserting a claim for either wrongful discharge
or failure to accommodate “both require a showing that she was ‘disabled’ within the meaning
of the ADA.” Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 (4th Cir. 2001). The ADA
defines “disability” as “(A) a physical or mental impairment that substantially limits one or more
major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded
as having such an impairment.” 42 U.S.C. § 12102(1).
In Plaintiff’s Original Complaint [Doc. #1], Plaintiff alleges, regarding her asserted
disability, that she “met all FMLA criteria relative to . . . medical need.” (Original Compl., at 2.)
Plaintiff also alleges that Cardinal Innovations terminated her employment “due to [Plaintiff’s]
expressed but otherwise non-obvious disability.” (Id., at 4.) Plaintiff also alleges that Cardinal

12

Innovations terminated her employment “due to [Plaintiff’s] expressed but otherwise nonobvious disability.” (Id., at 4.) First, the Court notes that, to the extent Plaintiff alleges that her
disability qualified as a FMLA illness, the “ADA’s ‘disability’ and the FMLA’s “serious health
condition” are “distinct concepts that require different analyses.” Rhoads, 257 F.3d at 387
(quoting 29 C.F.R. § 825.702(b)). As such, Plaintiff’s allegation that her disability was sufficient
for her to obtain leave under the FMLA, without more, is insufficient to allege a disability under
the ADA. Furthermore, Plaintiff fails to allege any facts regarding the specific nature of her
disability or facts regarding how, if at all, such a disability qualifies as an impairment that
substantially limits a major life activity for Plaintiff. See 42 U.S.C. § 12102(1) (stating that one
definition of disability is “a physical or mental impairment that substantially limits one or more
major life activities of [an] individual”).
Additionally, in the alternative to proceeding under either of the first two definitions of
“disability” under 42 U.S.C. § 12102(1), a plaintiff could allege that her employer “regarded” her
as having an impairment that substantially limits a major life activity and discriminated against
her on that basis. For claims relying on the “regarded as” definition of “disability,” the employer
“must entertain a misperception: it must believe . . . that [an individual] has a substantially
limiting impairment when, in fact, the impairment is not so limiting.” Stukes v. Locke, No.
RWT 12cv681, 2012 WL 5829066, at *3 (D. Md. Nov. 15, 2012) (internal quotations and
citations omitted) (alterations in original)). However, as previously noted, Plaintiff only alleges
that Cardinal Innovations knew of her “non-obvious disability” but does not allege that Cardinal
Innovations regarded her as having a “substantially limiting impairment.” Therefore, Plaintiff

13

has failed to sufficiently allege facts to show that she had a “disability” under the ADA.
The Court recognizes that Plaintiff alleges additional facts in, and attaches documents
to, her Response [Doc. #16] to Defendants’ Motion to Dismiss that address her medical
condition. Defendants correctly assert in their Reply [Doc. #17], however, that the Court may
not consider Plaintiff’s new allegations raised in her Response, or the attachments to her
Response on a Rule 12(b)(6) motion to dismiss without converting the proceeding to one for
summary judgment. Bailey v. Va. High School League, Inc., 488 F. App’x 714, 715-16 (4th Cir.
2012) (“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the
complaint and any documents attached or incorporated by reference[; h]owever, the district
cannot go beyond these documents on a Rule 12(b)(6) motion without converting the motion
into one for summary judgment.” (citations omitted)); see Bala v. Commonwealth of Va. Dep’t
of Conservation & Recreation, 532 F. App’x 332, 334 (4th Cir. 2013) (“The district court may
go beyond the complaint and attached documents, which constitute ‘the pleadings,’ in a Rule
12(b)(6) proceeding if the court converts the proceeding to one for summary judgment.” (citing
Fed. R. Civ. P. 12(d))). As such, the Court will not consider any new allegations that Plaintiff
purports to raise in her Response.
a.

Wrongful Discharge

Even assuming that Plaintiff could establish that she has a disability, however, the Court
finds that, based on Plaintiff’s Amended Complaint and clarification provided during the hearing
concerning Defendants’ Motion to Dismiss, Plaintiff still cannot not state a claim under the

14

ADA for either wrongful discharge or failure to accommodate.9 First, as to any claim of
wrongful discharge under the ADA, Plaintiff must show that (1) she is within the ADA’s
protected class—that is, that she was disabled within the meaning of the Act; (2) she was
discharged; (3) at the time of his discharge, she was performing the job at a level that met her
employer’s legitimate expectations; and (4) her discharge occurred under circumstances that raise
a reasonable inference of unlawful discrimination. Haulbrook v. Michelin N. Am., 252 F.3d 696,
702 (4th Cir. 2001). After reviewing Plaintiff’s Amended Complaint and hearing her arguments
at the hearing, the Court finds that Plaintiff has not alleged and cannot allege any facts that
would raise a reasonable inference that her discharge was the result of unlawful discrimination.
The only statements in Plaintiff’s Amended Complaint concerning her disability are allegations
that Ms. Hennike and Ms. Cahill ignored their responsibility of ensuring that employees were
granted appropriate treatment in spite of their disability or ensuring their actions were “legally
accommodating.” (Am. Compl. [Doc. #5], at 3.) There is no allegation, however, that Plaintiff’s
discharge was the result of any discrimination based on her disability. Further, when asked
about whether any allegation existed that she was discharged based on her disability at the
hearing on the Motion to Dismiss, Plaintiff only provided a conclusory statement that there was
no other reason for her discharge. Such allegations are not sufficient to state a claim for
wrongful discharge that is plausible on its face.

It is not clear from the Amended Complaint, but at the hearing concerning Defendants’
Motion to Dismiss, it appears that Plaintiff is only attempting to make an argument based on
Defendants’ alleged failure to accommodate. In order to be thorough, however, the Court will
nonetheless discuss claims for wrongful discharge and failure to accommodate under the ADA.
9

15

b.

Failure to Accommodate

In order to establish a prima facie case of a failure to accommodate under the ADA,
Plaintiff must show: (1) that he was an individual who had a disability within the meaning of the
Act; (2) that the employer had notice of his disability; (3) that with reasonable accommodation
she could perform the essential functions of the position; and (4) that the employer refused to
make such accommodations. Rhoads, 257 F.3d at 387 n. 11. Even assuming Plaintiff could
establish the first two elements, Plaintiff’s Amended Complaint does not state sufficient facts
to establish a failure to accommodate claim against Defendants. As stated above, Plaintiff
alleges that Ms. Hennike and Ms. Cahill ignored their responsibility of ensuring that employees
were granted appropriate treatment in spite of their disability or ensuring their actions were
“legally accommodating.” (Am. Compl. [Doc. #5], at 3.) These statements alone, however, do
not amount to a statement that Defendants refused to provide an accommodation to Plaintiff.
Furthermore, Plaintiff makes no allegation that with any reasonable accommodation she could
perform the essential functions of her job. At the hearing on Defendants’ Motion to Dismiss,
Plaintiff asserts that she should have been given the opportunity during her 12-week FMLA
leave to create a plan to go back to work or ask for some type of modification to her work
schedule. Even assuming that by allowing Plaintiff to amend her complaint to add such
modification as her reasonable accommodation, there is no evidence that Defendants ever
refused to make such accommodation. In fact, it is clear from Plaintiff’s assertions at the
hearing that she never requested such accommodation. Accordingly, the Court finds that for
these reasons, Plaintiff has not and cannot state a claim based on a failure to accommodate

16

under the ADA.
2.

FMLA Claim

Defendants first argue that Plaintiff’s FMLA claim against Defendants is subject to
dismissal because there is no clear individual liability under the FMLA, and even so, Plaintiff has
failed to plead sufficient facts to assert individual liability. Accordingly, the Court will first
address individual liability under the FMLA before addressing whether Plaintiff has failed to
state an interference or retaliation claim under the FMLA. If individual liability does not exist
or is not sufficiently plead, it is unnecessary to address the sufficiency of any interference or
retaliation claim.
a.

Individual Liability Under the FMLA

Defendants correctly assert that “whether the FMLA imposes liability on employee
supervisors in their individual capacities is an open question” in the Fourth Circuit. Jones v.
Sternheimer, 387 F. App’x 366, 368 (4th Cir. 2010). However, this debate appears to be more
narrowly focused on whether such individual liability exists in the public sector. See Caire v.
Conifer Value Based Care, LLC, 982 F. Supp. 2d 582, 597 n.11 (D. Md. 2013) (comparing
Sandowski v. U.S. Postal Serv., 643 F. Supp. 2d 749, 752-57 (D. Md. 2009) with Reed, 2013 WL
489985, at *7-14). Indeed “a majority of federal courts to address the issue of private supervisor
liability have concluded that such liability exists.” Caire, 982 F. Supp. 2d at 597 n.10 (emphasis
added) (citing Benton v. Belk, Inc., No. 9:12-766-RMG-BHH, 2012 WL 5381209, at *2 (D.S.C.
Sept. 20, 2012) (noting the majority rule and collecting cases), report and recommendation
adopted in full, 2012 WL 5381335 (D.S.C. Oct. 31, 2012); see Reed, 2013 WL 489985, at *13

17

(“Congress specifically provided for individual liability in the private sector under §
2611(4)(A)(ii)(I).”).
Defendants argue that “[e]ven if this Court were to conclude that there is individual
liability under the FMLA, Plaintiff in the present case has not plead [sic] sufficient allegations
to support her conclusions that the named Defendants were liable.” (Defs.’ Mem. [Doc. #12],
at 10.) “In the private sector, a supervisor must have ‘sufficient responsibility or stature within
the [defendant employer] to warrant the imposition of personal liability under the FMLA’ ” and
the “relevant inquiry is to what extent the supervisor exerted control over the plaintiff’s FMLA
rights.” Caire, 982 F. Supp. 2d at 598 (quoting Benton, 2012 WL 5381209, at *2). In this case,
Plaintiff has alleged that Defendant Hennike, Executive Director of Five County, (1) “ignored
her responsibility of ensuring all employees are granted appropriate treatment in spite of
disability and status in the FMLA’s legal process,” (2) “approved the actions of [Defendant]
Cahill without employing an independent investigation into the facts of occurrences, leading to
[P]laintiff’s dismissal,” and (3) “signed the letters of termination mailed to [P]laintiff and
inadvertently approved the explicit actions of [Defendant] Cahill.” (Am. Compl. [Doc. #5], at
3.) Furthermore, Plaintiff has alleged that Defendant Cahill, Regional Director of Mental
Health/Substance Abuse Care Coordination at Five County, “ignored information provided to
her by [P]laintiff to address requests for modifications in employment” and “directly participated
in violation of FMLA at Five County.” (Id. at 5.) In liberally construing the allegations of
Plaintiff’s pro se Amended Complaint, the Court finds that Plaintiff has sufficiently stated a claim
to impose individual liability under the FMLA as to Defendant Hennike. Although far from a

18

model of clarity, Plaintiff has alleged facts to show that Defendant Hennike had supervisory
control over Plaintiff’s FMLA leave and that Defendant Hennike was directly involved in
administering Plaintiff’s termination. The Court does not find that Defendants’ reference to the
facts in Benton to alter this conclusion. In Benton, the plaintiff alleged that her immediate
supervisor was individually liable under the FMLA. Benton, 2012 WL 5381209, at *3. However,
in Benton, the court held that the plaintiff had not pled sufficient facts to show that her
supervisor participated in denying her FMLA leave because the plaintiff only alleged facts
relating to her supervisor’s actions that were unrelated to the plaintiff’s FMLA leave. (Id.)
Specifically, the plaintiff alleged that her supervisor improperly disciplined and inconvenienced
the plaintiff by “removing a fan from her office or [by] not providing customer[s with] gifts.”
(Id.) Distinguishably, in this case, Plaintiff has alleged direct involvement and supervisory
control by Defendant Hennike as it relates to Plaintiff’s FMLA leave and termination. As such,
the Court finds that Plaintiff may assert her FMLA claims against Defendant Hennike in her
individual capacity.
As to Defendants Cahill, Shipman, and Timmons, however, the Court finds that
Plaintiff’s allegations are insufficient to impose individual liability against them for FMLA
violations. First, as to Defendant Cahill, Plaintiff merely alleges that Defendant Cahill “ignored
information provided to her by [P]laintiff to address requests for modifications in employment”
and “directly participated in violation of FMLA at Five County.” (Id. at 5.) Although Plaintiff
alleges involvement by Defendant Cahill in violating Plaintiff’s FMLA rights, Plaintiff has not
alleged facts showing that Defendant Cahill had the supervisory authority to grant Plaintiff

19

FMLA leave. Indeed, although not clear, based on the allegations in Plaintiff’s Amended
Complaint, it appears that Defendant Cahill had to first obtain permission from Defendant
Hennike to approve or deny Plaintiff’s request for any FMLA leave in this case. Cf. Haysbarser
v. Lawrence Cnty. Adult Probation & Parole, 667 F.3d 408, 417 (3d Cir. 2012) (“When analyzing
a supervisor’s control, the Court looks to the economic reality of the employment situation and
examines whether the individual supervisor carried out the function of an employer with respect
to the employee.”). As such Plaintiff has failed to allege facts that would warrant imposition of
individual liability against Defendant Cahill.
Second, as to Defendants Shipman and Timmons, Plaintiff has asserted that they
provided inadequate supervision to Defendant Hennike, one of their subordinates. (Id. at 3.)
Plaintiff alleges that Defendants Shipman and Timmons were corporate officers that
“represent[ed] Cardinal Innovations” and that Defendants Shipman and Timmons were charged
with supervision of Human Resources which “undoubtedly influenced” the decisions of
Defendants Hennike and Cahill. Although Plaintiff has alleged that Defendants Shipman and
Timmons had supervisory authority over Human Resources and, as an extension, the decisions
of Defendants Hennike and Cahill, Plaintiff has failed to allege any direct involvement in the
alleged FMLA violation by Defendants Shipman and Timmons. See Benton, 2012 WL 5381209,
at *3; see also Crittendon v. Arai Americas, Inc., No. 2:13-CV-567, 2014 WL 354517, at *4 (“An
individual who exercises supervisory authority over the complaining employee and was responsible in whole
or in part for the alleged violation while acting in the employer’s interest is subject to individual
liability under the FMLA.” (emphasis added) (citation omitted)). Thus, Plaintiff has also failed

20

to assert facts to show that Defendants Shipman and Timmons should be individually liable for
Plaintiff’s FMLA claims. As the Court has found that Plaintiff has alleged sufficient facts to
show that Defendant Hennike could be individually liable under the FMLA, however, the Court
will now address whether Plaintiff has sufficiently stated claims under the FMLA against
Defendant Hennike.
b.

FMLA Retaliation Claim

Defendants asserts that, to the extent Plaintiff raises a FMLA retaliation claim, Plaintiff’s
Complaint fails to state such a claim. Pursuant to 29 U.S.C. § 2615(1)(2), “[i]t shall be unlawful
for any employer to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.” To state a prima facie case of a
FMLA retaliation claim, Plaintiff must allege (1) that she “engaged in protected activity”; (2) that
Defendant “took adverse action against h[er]”; and (3) that the “adverse action was causally
connected to . . . [P]laintiff’s protected activity.” Yashenko v. Harrah’s NC Casino Co., LLC,
446 F.3d 541, 551 (4th Cir. 2006) (internal quotation marks omitted) (quoting Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)). In this case, it does not appear from Plaintiff’s
Response that she has addressed Defendants’ contention that she was terminated in retaliation
for taking FMLA leave. As such, the Court finds that Plaintiff has abandoned this claim and will
grant Defendants’ Motion to Dismiss as to any FMLA retaliation claim.10 See, supra note 5, at
9.

Furthermore, Plaintiffs’ Amended Complaint does not contain any allegations that
Plaintiff was discharged on the basis of her taking leave pursuant to the FMLA and Plaintiff
presented no argument at her hearing that she was in fact discharged for taking leave pursuant
to the FMLA.
10

21

c.

FMLA Interference Claim

Defendants assert that Plaintiff has also failed to state a FMLA interference claim. Under
29 U.S.C. § 2615(a)(1), “[i]t shall be unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right” under the FMLA. To prevail on a FMLA
interference claim, Plaintiff must establish 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 “provided sufficient notice of [her] intent to take leave”; and (5) her
“employer denied [her] FMLA benefits to which [she] was entitled.” Burnett v. LFW Inc., 472
F.3d 471, 474 (7th Cir. 2006); see Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011);
Hoge v. Honda Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004); Rodriguez v. Smithfield
Packing Co., 545 F. Supp. 2d 508, 516 (D. Md. 2008) (citing Edgar v. JAC Prods., Inc., 443 F.3d
501, 507 (6th Cir. 2006)).
The parties’ arguments are directed toward the fifth element. In this case, Plaintiff has
failed to allege facts that would plausibly show that she was denied FMLA leave or FMLA
benefits. Plaintiff alleges that she was terminated on August 15, 2012, based upon the first letter
sent to Plaintiff after her FMLA leave had expired in November 2012. Plaintiff asserts that she
was improperly terminated on August 15, 2012, because such date is prior to the expiration of
her approved FMLA leave. Defendants, however, sent a second letter to Plaintiff, correcting
her termination date to a date outside of her approved 12-week FMLA period. Plaintiff does
not contest receipt of the corrected letter. Instead, Plaintiff alleges that her employer sent her
the second termination letter, which had a later termination date, “to ensure they were within

22

the FMLA law and to escape having to pay . . . [P]laintiff[’s] unemployment benefits.” (Am.
Compl. [Doc. #5], at 5.) This statement, however, is not sufficient to assert that she was actually
denied her FMLA benefits. Plaintiff did not attempt to resume her employment during the time
frame of her FMLA leave and Defendants did not send Plaintiff the letter indicating any
termination date until after her FMLA leave had expired. In light of this, Plaintiff has failed to
allege facts to show that she was denied any FMLA leave or benefits during the 12-week period
that she was on FMLA leave or during the period she was entitled to leave under the FMLA.
Accordingly, although Plaintiff stated sufficient facts at this stage to impute individual liability
upon Defendant Hennike as to Plaintiff’s FMLA claim, Plaintiff nonetheless, failed to state
sufficient facts in support of a plausible FMLA claim against Defendant Hennike.
III.

CONCLUSION

For the foregoing reasons, the Court will GRANT Defendants’ Motion to Dismiss [Doc.
#11]. A Judgment dismissing this action will be entered contemporaneously with this
Memorandum Opinion and Order.

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss [Doc. #11] is
hereby GRANTED.
This the 30th day of September, 2014.

United States District Judge

23

24