Earp v. Eucalyptus Real Estate LLC et al

Filing 34

ORDER denying 23 Motion to Strike Portions of Second Amended Complaint; granting in part and denying in part 24 Partial Motion to Dismiss Second Amended Complaint. Signed by Honorable Timothy D. DeGiusti on 5/19/2016. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DARLA EARP,
Plaintiff,
vs.
EUCALYPTUS REAL ESTATE, LLC,
DOVER GROUP, LLC, and
CONSOLIDATED CAPITAL
INVESTMENTS, LLC,
Defendants.

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Case No. CIV-14-1195-D

ORDER
Before the Court are Defendants’ Motion to Strike Portions of Plaintiff’s Second
Amended Complaint [Doc. No. 23] and Defendants’ Partial Motion to Dismiss Plaintiff’s
Second Amended Complaint [Doc. No. 24]. Plaintiff has responded in opposition to the
Motions, which are fully briefed. Defendants’ Motions present alternative requests that
certain allegations be stricken from Plaintiff’s Second Amended Complaint [Doc. No. 22]
and that certain claims be dismissed. Thus, the Motions are taken up together.
Plaintiff brings suit against her former employer or joint employers to remedy alleged
violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.1 Plaintiff also asserts a pendent
state law claim for intentional infliction of emotional distress. In ruling on an initial motion
to dismiss, the Court determined that the Complaint failed to state a claim of interference

1

Plaintiff initially asserted an FLSA claim for a collective action on behalf of a class of similarly
situated employees, but Plaintiff later abandoned her class claim.

with FMLA rights or intentional tort, and dismissed those two claims. Within the deadline
set by the Scheduling Order, Plaintiff filed a motion to amend the Complaint, which was
granted. Plaintiff then filed an Amended Complaint and, with the Court’s authorization, a
Second Amended Complaint. The events leading to these amendments form the basis of
Defendants’ Motion to Strike, and are explained infra. Defendants’ Motion to Dismiss again
challenges the sufficiency of Plaintiff’s pleading to state an FMLA interference claim and
a tort claim, and challenges for the first time Plaintiff’s FMLA retaliation claim.
MOTION TO STRIKE
When Plaintiff moved to amend the original Complaint, she proposed to cure the
pleading deficiencies identified in her dismissed claims and to omit an FLSA class claim.
See supra note 1. The pleading actually filed, however, mistakenly retained allegations
regarding the class claim. See First Am. Compl. [Doc. No. 16], ¶¶ 1.1, 3.2-3.3, 4.43-4.49,
7.4-7.8. Within the time period for a responsive pleading, Plaintiff filed a notice purporting
to dismiss this claim. The Court found the Notice of Dismissal [Doc. No. 17] was ineffectual
to accomplish a voluntary dismissal under Fed. R. Civ. P. 41(a)(1), and authorized Plaintiff
to file a second amended pleading to correct the error. See Order of Oct. 2, 2015 [Doc.
No. 18]. In the amendment, Plaintiff omitted the class claim but made other changes to the
First Amended Complaint. Defendants ask the Court to strike from the Second Amended
Complaint new allegations added by Plaintiff (which are enumerated in the Motion to Strike
at pages 5-7) that Defendants believe are significant and were unauthorized. In some

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instances Plaintiff has added a word or phrase, but other changes involve new sentences or
paragraphs.
As authority for the relief requested by the Motion to Strike, Defendants cite
Rule 15(a)(2), Fed. R. Civ. P. This rule addresses amended pleadings and is pertinent only
to the extent Plaintiff failed to comply with its terms. A district court’s authority to strike
parts of a pleading appears in Rule 12(f), which provides: “The court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous
matter.” Defendants do not contend the portions of the Second Amended Complaint to
which they object contain this type of matter. Therefore, the Court finds the Motion to Strike
lacks merit.
Further, Rule 15(a)(2) directs district courts to “freely give leave [to amend] when
justice so requires.” Under this rule, “[r]efusing leave to amend is generally only justified
upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (internal quotation
omitted). The Court is not persuaded that Plaintiff should be precluded from adding
allegations to her amended pleading at this early stage of the litigation. Defendants’ Motion
to Dismiss challenges the sufficiency of the Second Amended Complaint and seeks the
dismissal of claims allegedly affected by the amendment. “The purpose of [Rule 15(a)(2)]
is to provide litigants the maximum opportunity for each claim to be decided on its merits
rather than on procedural niceties.” See Minter v. Prime Equip. Co., 451 F.3d 1196, 1204
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(10th Cir. 2006) (internal quotation omitted). Disregarding allegations that were timely made
and may support a claim would elevate form over substance.
For these reasons, the Court finds that Defendants’ Motion to Strike Portions of
Plaintiff’s Second Amended Complaint should be denied.
MOTION TO DISMISS
The applicable standard of decision is stated in the Court’s order granting Defendants’
initial Rule 12(b)(6) motion, and will not be repeated. See Order of July 9, 2015 [Doc.
No. 7], p.2. Similarly, the factual allegations underlying Plaintiff’s claims are set forth in
detail in that order and need not be recited here. Id. at pp.2-6. Briefly stated, Plaintiff was
employed as a manager of subsidized-rent apartment complexes owned or managed by
Defendants.2 She was terminated May 12, 2014, upon returning to work from a leave of
absence for stress-related medical problems triggered or exacerbated by difficulties she had
experienced at work. The difficulties began April 30, 2014, when Plaintiff was assaulted by
an angry female tenant who yelled profanities at Plaintiff and threw a can at Plaintiff’s head;
the tenant’s adult son also yelled profanities at Plaintiff. The next day, the tenant and her son
continued their intimidation of Plaintiff and verbally threatened her with physical violence.
The following morning, the tenant approached Plaintiff in the parking lot using profanity and
threats, followed Plaintiff to her office, tried to kick open the office door as Plaintiff was
attempting to close it, and remained outside the office cursing and making threats after

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As required by Rule 12(b)(6), the factual allegations of the Second Amended Complaint are
accepted as true and stated in the light most favorable to Plaintiff. See Berneike v. CitiMortgage, Inc., 708
F.3d 1141, 1144 (10th Cir. 2013).

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Plaintiff succeeded in locking the door. On both of these days, Plaintiff called for police
assistance, and police officers responded to the calls but took no action other than cautioning
the tenant. After police left the second day, the tenant and her son continued to threaten
Plaintiff, including making a death threat verbally and by hand gestures outside the office
window. During or after each incident, Plaintiff reported the situation by telephone to a
supervisor or manager. On the third day (May 3), the tenant came to the office to pay rent,
and Plaintiff was instructed to accept the payment.
Although Plaintiff reported to her superiors that she was afraid for her personal safety
and was suffering emotionally, no action was taken on Plaintiff’s request for eviction of the
tenant, and no direct assistance was provided to Plaintiff for dealing with the situation.
Defendants did not conduct an investigation or take any remedial measures. They did not
engage private security services, which they had done in the past, nor did they reassign
Plaintiff to another property. Plaintiff’s work environment caused her to suffer emotional
distress and to become physically ill.
The following Monday morning (May 5), Plaintiff experienced a headache, ringing
in her ears, dizziness, and blurred vision at work, and called a supervisor to request
immediate leave to seek medical treatment. This request was denied, but later the same day,
two supervisors visited the property and granted a second request by Plaintiff to leave work
to obtain treatment. Plaintiff went to a hospital emergency room but left after a long wait
without treatment. She visited another emergency room the next morning because she
continued to experience the same symptoms. Plaintiff received treatment May 6 and was
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hospitalized. She was released from the hospital May 7 with instructions not to return to
work until May 12. Plaintiff advised her employer of the need for a leave of absence from
work, and was instructed to appear at the corporate office with a doctor’s note on May 12.
Plaintiff complied and was terminated on that date.
As pertinent to Defendants’ Motion to Dismiss, Plaintiff asserts in Count I of the
Second Amended Complaint two claims under FMLA: 1) Defendants interfered with her
exercise or attempted exercise of a right to medical leave for a serious health condition, in
violation of 29 U.S.C. § 2615(a)(1); and 2) Defendants retaliated against her for exercising
her leave right in violation of 29 U.S.C. § 2615(a)(2). In Count II, Plaintiff asserts a claim
for intentional infliction of emotional distress based on allegations that Defendants’ actions
and omissions with regard to the conduct of the tenant and her son were outrageous and
caused Plaintiff severe emotional distress. The Court previously found that the factual
allegations of the Complaint were insufficient to state a plausible claim of either FMLA
interference or intentional tort. By their Motion to Dismiss, Defendants contend that Plaintiff
has failed to cure the deficiencies in her initial pleading, despite the additional allegations of
the Second Amended Complaint. They also make a new assertion that Plaintiff’s pleading
fails to state a plausible FMLA retaliation claim.
A.

FMLA Interference Claim
The law governing Plaintiff’s claim that Defendants interfered with her exercise of

FMLA rights is well-settled.

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To establish a claim of FMLA interference under § 2615(a)(1), an
employee must show “(1) that she was entitled to FMLA leave, (2) that some
adverse action by the employer interfered with her right to take FMLA leave,
and (3) that the employer’s action was related to the exercise or attempted
exercise of her FMLA rights.” Campbell, 478 F.3d at 1287 (internal quotation
marks and brackets omitted). To satisfy the second element of an interference
claim – adverse action interfering with the right to take FMLA leave – “the
employee must show that she was prevented from taking the full 12 weeks[]
of leave guaranteed by the FMLA, denied reinstatement following leave, or
denied initial permission to take leave.” Id. Thus, an interference claim arises
when an adverse employment decision is made before the employee has been
allowed to take FMLA leave or while the employee is still on FMLA leave.
Id.
Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1132 (10th Cir. 2014) (footnote omitted) (quoting
Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)). “The
interference or entitlement theory is derived from the FMLA’s creation of substantive rights.
If an employer interferes with the FMLA-created right to medical leave . . . , a deprivation
of this right is a violation regardless of the employer’s intent.” Smith v. Diffee Ford-LincolnMercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002).
Defendants first assert that the Second Amended Complaint contains insufficient
factual allegations to support the first element because Plaintiff does not allege that a “serious
health condition,” as defined by FMLA, existed when she initially requested leave to seek
treatment. A “serious health condition” includes “an illness, injury, impairment, or physical
condition that involves . . . inpatient care in a hospital . . . .” See 29 U.S.C. § 2611(11)(A).
Because Plaintiff experienced an illness or condition that required inpatient treatment, the
Court finds that a serious health condition is sufficiently alleged. Further, because Plaintiff
began experiencing on May 5 the same symptoms that caused her to be hospitalized on
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May 6, the Court finds that Plaintiff has sufficiently alleged she had a serious health
condition on May 5, 2014. See, e.g., Caldwell v. Holland of Tex., Inc., 208 F.3d 671, 676
(8th Cir. 2000) (symptoms later diagnosed as constituting serious health condition may be
protected by FMLA right to medical leave).
An employee’s entitlement to FMLA-protected leave requires sufficient notice to the
employer that the employee is claiming a right to medical leave. Plaintiff plainly alleges that
she notified her supervisor she was experiencing physical symptoms at work that were severe
enough to warrant immediate medical attention and she wanted to seek emergency treatment.
These factual allegations are sufficient to put the employer on notice of a request for medical
leave under FMLA. See Tate v. Farmland Indus., Inc., 268 F.3d 989, 997 (10th Cir. 2001)
(FMLA does not require “a covered employee to specifically ask for FMLA benefits. An
employee need not expressly assert rights under the FMLA or even mention the FMLA.”)
(citations omitted).
However, FMLA does permit “[a]n employer [to] require an employee to comply with
the employer’s usual and customary notice and procedural requirements for requesting leave”
and, absent unusual circumstances, where the employee fails to comply “FMLA-protected
leave may be delayed or denied . . . .” See 29 C.F.R. § 825.302(d). Plaintiff has added to the
Second Amended Complaint allegations stating that she complied with all policies and
procedures of her employer regarding an unforeseeable request for medical leave.
Defendants contend these conclusory allegations are insufficient to show Plaintiff satisfied
her obligation to give adequate notice of a request for FMLA leave and, thus, to show her
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entitlement to leave. Upon consideration, the Court finds that Plaintiff’s allegations are
minimally sufficient to show she was entitled to FMLA medical leave.
Defendants also assert Plaintiff does not sufficiently allege an adverse employment
action that interfered with any FMLA right to medical leave. Defendants note that Plaintiff
was allowed to leave work on May 5, the same day she asked to obtain medical treatment,
and she remained off work until May 12, when her medical restriction was lifted. Plaintiff
does not allege she requested additional leave prior to the termination of her employment or
that she was denied medical leave for the time she was absent from work.
The only adverse action shown by the Second Amended Complaint is the denial of
Plaintiff’s first request to immediately leave work on May 5. Plaintiff claims: “By refusing
Plaintiff leave to treat her serious health condition, Defendants have interfered, restrained and
denied FMLA leave.” See Second Am. Compl. [Doc. No. 22], ¶ 4.26. The Second Amended
Complaint specifies that Defendants interfered Plaintiff’s right to “FMLA qualified leave by
denial of her first request,” thereby delaying medical treatment, and that Defendants could
not cure the FMLA violation “by later approving FMLA qualified leave to Plaintiff from
multiple leave request(s).” Id. ¶ 5.6. In her brief, Plaintiff confirms her position that FMLA
interference occurred when she was refused permission to leave work on the morning of
May 5 to obtain treatment, and that delaying her absence until she made a second request in
the afternoon is actionable because “Defendants did not have discretion to deny her leave for
emergency treatment.” See Pl.’s Resp. Br. [Doc. No. 26], pp.5,6-7. Thus, Plaintiff’s FMLA
interference theory is that the initial denial of a request to immediately leave work to seek
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emergency medical care was an adverse employment decision related to her attempted
exercise of FMLA rights.
Plaintiff provides no legal authority for this novel FMLA interference theory, and the
Court has found none. Research has revealed cases in which an employee took immediate
leave from work to attend an urgent medical need and the employee’s absence from work
was later found to be protected by FMLA, such as a diabetic taking a break to treat low blood
sugar (Sabbrese v. Lowe’s Home Ctrs., Inc., 320 F. Supp. 2d 311, 322 (W.D. Pa. 2004);
Collins v. U.S. Playing Card, Co., 466 F. Supp. 2d 954, 965-66 (S.D. Ohio 2006)), or an
employee with an abscessed tooth leaving work early to obtain emergency care (Beekman
v. Nestle Purina Petcare Co., 635 F. Supp. 2d 893, 900 (N.D. Iowa 2009)). The actionable
interference by the employer in these cases, however, was a refusal to count the employee’s
absence as FMLA leave or an imposition of discipline for noncompliance with the
employer’s leave policy. See Beekman, 635 F. Supp. 2d at 911-12 (points assessed under
attendance policy for FMLA-protected leave, leading to termination); Sabrese, 320 F. Supp.
2d at 330 (employee disciplined for FMLA leave); Collins, 466 F. Supp. 2d at 961 (same).
In this case, the hours-long delay on which Plaintiff relies to establish an FMLA
violation had no alleged employment-related consequences. Although FMLA is a remedial
statute, it “provides no relief unless the employee has been prejudiced by the violation.” See
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, (2002). FMLA provides only limited
remedies. It authorizes compensatory damages for actual monetary losses and equitable
relief; it does not permit recovery of consequential or emotional distress damages, or nominal
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damages. See Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1277 (10th Cir. 2001).
Plaintiff does not allege she suffered any monetary loss or any employment action that
caused a monetary loss. The Second Amended Complaint seeks no equitable relief on
Plaintiff’s FMLA claim. Therefore, the Court finds that Plaintiff has alleged no interference
with an FMLA-created right for which relief can be granted and Plaintiff has no actionable
claim under the alleged circumstances.
For these reasons, the Court finds that the Second Amended Complaint fails to state
a plausible FMLA interference claim.
B.

FMLA Retaliation Claim
“Retaliation claims under the FMLA are subject to the burden-shifting analysis of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973).” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006)).
“To make out a prima facie retaliation claim, [a plaintiff] must show that: ‘(1) she engaged
in a protected activity; (2) [the employer] took an action that a reasonable employee would
have found materially adverse; and (3) there exists a causal connection between the protected
activity and the adverse action.’” Campbell, 478 F.3d at 1287 (quoting Metzler, 464 F.3d at
1171). With regard to the third element, the Tenth Circuit “ha[s] repeatedly recognized
temporal proximity between protected conduct and termination as relevant evidence of a

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causal connection sufficient to justify an inference of retaliatory motive.” Metzler , 464 F.3d
at 1171 (10th Cir. 2006) (internal quotation omitted).3
Defendants assert that Plaintiff’s pleading contains only a formulaic recitation of the
elements of a retaliation claim that is insufficient under Khalik v. United Airlines, 671 F.3d
1188, 1192-93 (10th Cir. 2012). The Court disagrees. Accepting the factual allegations of
the Second Amended Complaint as true and reading them in the light most favorable to
Plaintiff, as required by Rule 12(b)(6), the Court finds sufficient facts to state a plausible
claim that Plaintiff was terminated in retaliation for her exercise of an FMLA-protected right
to take leave from work for a serious health condition.
C.

Intentional Infliction of Emotional Distress
To prevail on a claim of intentional infliction of emotional distress under Oklahoma

law, a plaintiff must show: “(1) the defendant acted intentionally or recklessly, (2) the
defendant’s conduct was extreme and outrageous, (3) the defendant’s conduct caused the
plaintiff emotional distress, and (4) the resulting emotional distress was severe.” See
Computer Publ’ns, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002). To satisfy the second
element, the defendant’s conduct must be so extreme and outrageous as to be “beyond all
possible bounds of decency” in the setting in which it occurred, or “utterly intolerable in a
civilized community.” See Eddy v. Brown, 715 P.2d 74, 77 (Okla. 1986); see also Welton,

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“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her
complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a
plausible claim.” Khalik v. United Airlines, 671 F.3d 1188, 1191 (citing Swierkiewicz v. Sorema N.A., 534
U.S. 506, 515 (2002)).

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49 P.3d at 735; Kraszewski v. Baptist Medical Center of Okla., Inc., 916 P.2d 241, 248 (Okla.
1996). “In general, a plaintiff must prove that the recitation of defendant’s conduct to an
average member of the community would arouse the listener’s resentment against the
defendant and would lead the listener to exclaim ‘Outrageous!’” Welton, 49 P.3d at 735.
The Court previously found the allegations of Plaintiff’s Complaint that Defendants
failed to make a timely and reasonable response to the verbal and physical assaults of
Plaintiff by the tenant and her son, did not show conduct of Defendants that was sufficiently
outrageous to hold them liable in tort. The Court relied, in part, on the holding of Miner v.
Mid-America Door Co., 68 P.3d 212, 224 (Okla. Civ. App. 2002), that no claim of outrage
was presented under arguably analogous facts. Plaintiff has added no material factual
allegations of substance to her pleading that would alter this finding.
Further, Defendants correctly assert in their present Motion to Dismiss that Plaintiff
has failed to identify what any named defendant did or failed to do that could be considered
outrageous. Upon consideration of allegations of the Second Amended Complaint, the Court
agrees that Plaintiff has not stated sufficient facts to state a plausible intentional tort claim
against any particular defendant.
Unlike Plaintiff’s FMLA and FLSA claims, which permit liability of joint employers
(see Order of July 9, 2015 [Doc. No. 7], pp.9-10,11-12), tort liability for intentional infliction
of emotional distress requires the requisite level of conduct by the defendant. To establish
egregious conduct, Plaintiff points to Defendants’ collective failure to evict the tenant, to
engage private security services, or to reassign her to a different apartment complex.
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Plaintiff argues that “[h]er managers were only interested in collecting rent from the tenant,
not [Plaintiff’s] physical and emotional health.” See Pl.s’ Resp. Br. [Doc. No. 26], p.11.
Plaintiff fails to allege any facts, however, from which a reasonable fact-finder could
conclude that any defendant could or should have accomplished the desired changes within
the 4- or 5-day period during which the threatening conduct allegedly occurred.4
Defendants’ collective failure during this time to assist Plaintiff in handling a stressful
situation that she was forced to face alone, would not cause an average member of the
community to find the conduct of any particular defendant to be extreme and outrageous.
Accepting the factual allegations of Plaintiff’s pleading as true, it relates a brief
period of time during Plaintiff’s employment when employees or managers of one or more
Defendants failed to assist Plaintiff in dealing with threatening behavior of a tenant and her
son, and failed to respond to Plaintiff’s complaints about fear for her personal safety. While
the third-party behavior and the circumstances described in Plaintiff’s pleading caused her
emotional distress resulting in a hospitalization, the Court finds that the Second Amended
Complaint fails to set forth conduct of any defendant – Eucalyptus Real Estate LLC; Dover
Group, LLC; or Consolidated Capital Investments, LLC, or any agent or employee of any
of these entities – that could reasonably be viewed as so extreme and outrageous as to be
beyond all possible bounds of decency and utterly intolerable in a civilized community.
4

Plaintiff makes no effective response to Defendants’ argument that a landlord’s ability to evict a
tenant is constrained by procedural protections afforded by the Oklahoma Residential Landlord and Tenant
Act, Okla. Stat. tit. 41, §§ 101-131. Plaintiff points to a footnote in the Second Amended Complaint stating
that criminal activity may be grounds for immediate lease termination. This possibility is inconsistent with
the alleged facts that police officers responded to Plaintiff’s complaints about the tenant’s behavior and
neither made an arrest nor issued any citation.

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“[A]llegations that simply name the ‘Defendants’ generically . . . are [not] helpful in figuring
out what facts [Plaintiff] means to allege about [a particular defendant’s] conduct.” Bryson
v. Gonzales, 534 F.3d 1282, 1290 (10th Cir. 2008) (emphasis omitted).
For these reasons, the Court finds that the Second Amended Complaint fails to state
a plausible claim of intentional infliction of emotional distress.
Conclusion
Assessing Plaintiff’s pleading under the governing Rule 12(b)(6) standard, the Court
finds the Second Amended Complaint fails to state a claim upon which relief can be granted
under an FMLA interference theory or Oklahoma tort law, but it is minimally sufficient to
state an FMLA retaliation claim.
IT IS THEREFORE ORDERED that Defendants’ Motion to Strike Portions of
Plaintiff’s Second Amended Complaint [Doc. No. 23] is DENIED and Defendants’ Partial
Motion to Dismiss Plaintiff’s Second Amended Complaint [Doc. No. 24] is GRANTED in
part and DENIED in part. Having previously dismissed the claims with leave to amend,
Plaintiff’s claims of interference with FMLA rights and intentional infliction of emotional
distress are now DISMISSED with prejudice. The case shall proceed on Plaintiff’s FMLA
retaliation and FLSA claims.
IT IS SO ORDERED this 19th day of May, 2016.

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