Jacobs v. York Union Rescue Mission, Inc.

Filing 18

MEMORANDUM AND ORDER re: deft York Union Rescue Mission's motion 6 to dismiss or in alternative for summary jdgmt - It is hereby ORDERED that motion GRANTED in part & DENIED in part as follows: 1. Deft's MTD GRANTED w/out prejudice - plt f has leave to amend complaint w/in 30 days from date of this order - pltf's FMLA claim will be dismissed w/ prejudice if pltf does not amend her complaint in 30 days to correct deficiencies in ct's memo.; 2. Deft's MSJ DENIED w/out prejudice to deft re-filing MSJ following limited discovery on whether deft was employer regulated under FMLA during pltf's employment. (See memo & order for complete details.)Signed by Honorable Christopher C. Conner on 2/5/13. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TANYA JACOBS,

:
:
Plaintiff,
:
:
v.
:
:
YORK UNION RESCUE
:
MISSION, INC., d/b/a YORK RESCUE :
MISSION,
:
:
Defendant
:

Civil Action No. 1:12-CV-0288
(Judge Conner)

MEMORANDUM
Presently before the court is defendant York Union Rescue Mission, Inc.’s
(“Mission”) motion to dismiss, or, in the alternative, for summary judgment.
(Doc. 6). For the reasons that follow, the court will grant Mission’s motion to
dismiss but will also provide plaintiff Tanya Jacobs (“Jacobs”) with leave to amend
her complaint. The court will deny Mission’s motion for summary judgment
without prejudice to provide the parties with an opportunity to conduct discovery
on whether Mission was subject to regulations under the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. § 2601 et seq, during Jacobs’s employment.

I.

Background1
This case arises out of incidents that occurred in late 2009 and early 2010

while Jacobs was employed at Mission. Mission is a business entity offering
humanitarian services in Central Pennsylvania. (Doc. 17 ¶ 7). Jacobs worked for
Mission for five years as a cashier and stocker at a thrift store. (Id. ¶ 12).
Jacobs suffers from a number of health problems, including carpal tunnel
syndrome, nerve/tendon problems, and a history of migraine headaches. (Id. ¶ 14).
Jacobs required intermittent time off for her health problems while working for
Mission. (Id. ¶ 15). In late 2009, Jacobs took additional time off to treat injuries
sustained as a result of car accidents. (Id.) Mission’s management personnel
purportedly warned Jacobs against and discouraged Jacobs from taking time off for
medical reasons. (Id. ¶ 16). According to the pleadings, Mission allegedly
terminated Jacobs on April 2, 2010, in conjunction with someone’s discriminatory
comments about her need for time off work for medical reasons. (Id. ¶ 17).
On February 13, 2012, Jacobs filed a complaint (Doc. 1) alleging violations of
the FMLA and violations of the Pennsylvania Human Relations Act (“PHRA”),
43 P.S. 951 et seq. Mission filed the instant motion to dismiss, or in the alternative,
for summary judgment on April 12, 2012. (Doc. 6). Mission asserts that Jacobs’s

1

In accordance with the standard of review for a motion to dismiss pursuant
to Rule 12(b)(6), the court will present the facts as alleged in the complaint. See
infra Part II. However, those portions of the complaint which consist of no more
than legal conclusions or a formulaic recitation of the elements of a cause of action
have been disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Santiago v.
Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010).
2

complaint fails to state a claim under the FMLA upon which relief may be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6) and that therefore, the court
lacks subject matter jurisdiction over the state PHRA claim. (Doc. 7). In the
alternative, Mission contends that the court should enter summary judgment in its
favor on Jacobs’s FMLA claim because Mission did not employ a sufficient number
of employees during Jacobs’s employment to fall under the FMLA’s
regulations. (Id.)
Jacobs asserts that her complaint adequately states an FMLA claim.
Alternatively, if the court decides to dismiss the FMLA claim, Jacobs argues that
she should be given the opportunity to file an amended complaint curing any
perceived deficiencies. (Doc. 12). Jacobs also requests that the court reserve ruling
on Mission’s motion for summary judgment and provide time for limited discovery
on whether the FMLA regulations applied to Mission during Jacobs’s employment.
(Id.)
On August 24, 2012, the parties filed a stipulation (Doc. 15) allowing for
Jacobs to amend her complaint to include a cause of action under the Americans
with Disabilities Act (“ADA”). The parties also stipulated that the court would not
lose subject-matter jurisdiction over the remaining claims if the court dismissed or
awarded Mission summary judgment for Jacobs’s FMLA claim. (Doc. 15). The
court accepted the stipulation and deemed any portion of Mission’s motion to
dismiss (Doc. 6) based on a lack of subject-matter jurisdiction as moot. (Doc. 16).

3

Jacobs filed her amended complaint (Doc. 17), including all three causes of action,
on August 30, 2012.
II.

Legal Standard
When ruling on a motion to dismiss under Rule 12(b)(6), the court must

“accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine, whether under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Gelman v. State Farm Mut.
Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170,
177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). The
plaintiff must plead sufficient factual content to 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). A complaint must assert sufficient facts
“to raise a reasonable expectation that discovery will reveal evidence” of the
elements necessary for relief. Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556
(2007); see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
Ultimately, this analysis is “context-specific” and requires the court to “draw on its
judicial experience and common sense” to determine whether facts alleged in the
complaint suggest “more than the mere possibility of misconduct.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). When the complaint fails to present a prima facie
case of liability, courts should generally grant leave to amend before dismissing a

4

complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002);
Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
III.

Discussion
The main purpose of the FMLA is to “balance the demands of the workplace

with the needs of families” and “to entitle employees to take reasonable leave for
medical reasons . . . .” 29 U.S.C. § 2601(b)(1) and (2). The FMLA provides two
distinct types of protections for eligible employees. The FMLA supplies a number
of substantive rights which set the minimum standards for employer conduct, often
referred to as “entitlement” or “interference” provisions. Callison v. City of
Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). Additionally, the FMLA includes
“discrimination” or “retaliation” provisions. Callison, 430 F.3d at 119. For
example, an employer may not “use the taking of FMLA leave as a negative factor
in employment actions, such as hiring, promotions or disciplinary actions.” 29
C.F.R. § 825.220(c).
Mission moves to dismiss Jacobs’s complaint on the grounds that it fails to
establish an interference or a retaliation claim under the FMLA. Alternatively,
Mission moves for summary judgment on the grounds that Jacobs is not an “eligible
employee” because Mission was not regulated under the FMLA during her
employment. The court shall address each contention in turn.

5

A.

Motion to Dismiss

Mission seeks dismissal of Jacobs’s FMLA claim under Rule 12(b)(6). With
respect to Jacobs’s interference claim, Mission avers that the complaint does not
show that (1) Jacobs was entitled to FMLA leave due to a “serious health
condition;” (2) that Jacobs notified Mission of her need for leave or requested any
FMLA leave; and (3) that any interference with Jacobs’s right to take leave resulted
in prejudice. Mission also moves to dismiss Jacobs’s retaliation claim because the
complaint does not adequately allege that she invoked her right to FMLA leave or
that Jacobs’s termination was causally related to her need for medical leave.
1.

Interference Claim

An FMLA employer may not “interfere with, restrain, or deny the exercise of
or the attempt to exercise” any FMLA rights. 29 U.S.C. § 2615(a)(1). To plead a
FMLA interference claim, Jacobs must allege that (1) she is an eligible employee
under the FMLA; (2) defendant is an eligible employer under the FMLA; (3) she was
entitled to leave under the FMLA; (4) she provided the defendant with adequate
notice of her intention to take FMLA leave; and (5) defendant denied or otherwise
interfered with plaintiff’s FMLA rights. Parker v. Hanhemann Univ. Hosp., 234 F.
Supp. 2d 478, 483 (D. N. J. 2002). Mission challenges the latter three elements in its
motion to dismiss.

6

i.

Entitlement to Leave: “Serious Health Condition”

Mission asserts that Jacobs’s complaint does not sufficiently allege that she
was entitled to FMLA leave. Under the FMLA, an eligible employee is entitled to 12
workweeks of leave in any 12-month period for a “serious health condition that
makes the employee unable to perform the functions of the position of such
employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” includes an
“illness, injury, impairment, or physical or mental condition that involves inpatient
care in a hospital, hospice, or residential medical care facility; or continuing
treatment by a health care provider.” § 2611(11). 29 C.F.R. §§ 825.113, 825.114, and
825.115 further delineate the requirements for a medical issue to qualify as a serious
health condition. The Third Circuit has held that even relatively minor conditions –
such as a peptic ulcer – may qualify as “serious health conditions” if they meet
regulatory criteria. Victorelli v. Shadyside Hosp., 128 F.3d 184, 189-90 (3d Cir. 1997).
Jacobs’s complaint alleges that she “has suffered from an array of health
problems including but not limited to carpel tunnel syndrome, nerve/tendon
problems, and a history of migraine headaches that can - at times - limit her life
activities.” (Doc. 17, ¶ 14). Jacobs also alleges that she sustained injuries in car
accidents. (Id. ¶ 15). Jacobs does not provide details on the type of treatment
sought for her maladies but, at this stage of the litigation, the factual allegations are
sufficient to raise an inference that her conditions qualify under the Act.

7

ii.

Notification or Request for Leave

Mission further contends that Jacobs’s interference claim should be
dismissed because it does not include allegations that Jacobs requested FMLA
leave or notified Mission of any serious health condition. (Doc. 7). An employee
must provide an employer 30 days advance notice before FMLA leave is to begin or
“as soon as practicable” if 30 days notice is not possible. 29 U.S.C. § 2612(e)(1).
When FMLA leave is foreseeable, an employee must provide notice sufficient to
show that the employee needs FMLA-qualifying leave, the anticipated timing of the
leave, and the duration of the leave. 29 C.F.R. § 825.302(c). When FMLA leave is
unforeseeable, an employee must provide sufficient information for the employer to
determine whether the FMLA applies to the leave request. § 825.303(b). When an
employee seeks FMLA leave for the first time, the employee need not mention the
FMLA by name. §§ 825.302(c), 825.303(b). However, the employee must
“specifically reference the qualifying reason for leave or the need for FMLA leave”
if the employer has previously provided the employee with FMLA-protected leave.
§ 825.302(c). Simply calling in “sick” will not trigger an employer’s FMLA
obligations. § 825.303(b). See Viereck v. City of Gloucester City, 961 F. Supp. 703,
707 (D.N.J. 1997) (allowing plaintiff-employee to survive summary judgment where
she provided notice by describing the nature and extent of her injuries to her
employer, informed him that she would be hospitalized, and told him that she
would be unable to return to work for some time).

8

Jacobs’s complaint does not include any allegations of notice to Mission.
Viewing the complaint in its entirety, one may imply that there were
communications between Jacobs and Mission regarding her need for medical leave,
but the complaint fails to set forth any facts or allegations regarding the substance
and form of Jacobs’s notice to Mission. Jacobs’s complaint is deficient without
specific factual allegations setting forth how she provided Mission with adequate
notice of her intention to take FMLA leave.
iii.

Interference Resulting in Prejudice or Injury

Mission also claims that Jacobs’s complaint fails to state how Mission
specifically interfered with any claim for FMLA leave or how she sustained injury
or prejudice as a result. Mission emphasizes that there is no indication from the
complaint that Mission ever refused to provide Jacobs with requested leave. (Doc.
7, at 9-10). The basis for an FMLA interference claim may involve, but is not limited
to, (1) refusing to authorize FMLA leave; (2) discouraging an employee from using
FMLA leave; (3) terminating an employee based on his or her requests for FMLA
leave; and (4) failing to advise an employee of his or her FMLA rights. See 29 C.F.R.
§ 825.220(b) (refusal to authorize and discouragement); Erdman v. Nationwide Ins.
Co., 582 F.3d 500, 509 (3d Cir. 2009) (termination); Conoshenti v. Pub. Serv. Elec. &
Gas Co., 364 F.3d 135, 144 (3d Cir. 2004) (failure to advise).
Jacobs alleges that she was “warned about taking time off for medical
reasons and discouraged from taking time off from work for medical reasons by
Defendant’s management.” (Doc. 17 ¶ 16). Jacobs’s complaint also avers that
9

Mission did not properly advise her of her rights under the FMLA or designate her
leave as FMLA qualifying. (Doc. 17 ¶ 24). Finally, Jacobs contends that she was
terminated due to her requests for medical leave. (Doc. 17 ¶ 18). Each of these
allegations may constitute a valid basis for an FMLA interference claim.2
No matter the basis for the interference claim, Jacobs must also establish
that she was prejudiced or injured by defendant’s interference. See Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (noting that the FMLA provides
no relief unless the employee has been prejudiced by the employer’s interference
with her rights). Jacobs provides no such allegations in her complaint for any of
her interference claims. For example, Jacobs could allege that she would have
structured her leave differently if she was aware of her rights under the FMLA or if
she was not discouraged from using her medical leave. See Nusbaum v. CB
Richard Ellis, Inc., 171 F. Supp. 2d 377, 386 (D.N.J. 2001) (“The overall intent of the
FMLA is lost when an employer fails to provide an employee with the opportunity
to make informed decisions about her leave options and limitations.”). Without
allegations of prejudice or injury, Jacobs’s complaint does not adequately plead an
interference claim.

2

As discussed infra in Part III.A.2, Jacobs must allege more specific facts in
her complaint to support her claim that she was terminated due to her requests for
medical leave. Namely, she must allege that Mission or an agent of Mission made
the discriminatory comments regarding her need for medical leave prior to her
termination.
10

2.

Retaliation Claim

Mission also contends that the complaint does not establish an FMLA
retaliation claim. Jacobs must allege the following to establish retaliation: that (1)
she invoked her right to FMLA leave; (2) she suffered an adverse employment
action, such as termination; and (3) the adverse action was causally connected to
her invocation of FMLA rights. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691
F.3d 294, 301-302 (3d Cir. 2012)
As discussed supra, Jacobs’s complaint does not satisfy the first prong of an
FMLA retaliation claim because she does not allege that she provided adequate
notice to Mission regarding her desire for FMLA leave. There are no allegations in
the complaint showing that she ever invoked her right to FMLA leave. Assuming
this deficiency can be cured through amendment, the court finds that Jacobs
adequately alleges the second prong because termination qualifies as an adverse
employment decision. Id. at 302.
The complaint does not allege sufficient causation under the third prong.
Jacobs alleges only that she was terminated “following discriminatory comments
about her need for time off from work for medical reasons.” (Doc. 17 ¶ 17). Such
antagonism, on behalf of Mission, could be circumstantial evidence sufficient to
raise an inference that Jacobs’s medical absences caused her termination. See
Peace-Wickham v. Walls, 409 Fed. App’x 512, 522 (3d Cir. 2010) (for a Title VII
retaliation claim, “a causal link between protected activity and adverse action may
be inferred from an unusually suggestive temporal proximity between the two, an
11

intervening pattern of antagonism following the protected conduct, or the proffered
evidence examined as a whole.”). However, Jacobs never alleges that the
comments were made by Mission or an agent of Mission. Jacobs may be able to
cure this deficiency provided, however, that she amends her complaint and
includes allegations of adequate notice to Mission, and specifies Mission as the
source of the alleged discriminatory comments.
3.

Leave to Amend

Jacobs’s complaint does not include any allegations of notice to Mission of
her desire to take FMLA leave or any allegations of prejudice as a result of
Mission’s interference with her right to FMLA leave. Her complaint also does not
identify that Mission or an agent of Mission made discriminatory comments to her
regarding her need for medical leave before her termination. Without such
allegations, Jacobs’s complaint does not adequately plead an interference or
retaliation claim under the FMLA. The court shall provide Jacobs 30 days to file a
second amended complaint in accordance with the court’s reasoning. See Alston v.
Parker, 363 F.3d 229, 235 (3d Cir. 2004) (“Even when a plaintiff does not seek leave
to amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must
permit a curative amendment, unless an amendment would be inequitable or
futile.”). Jacobs’s FMLA claim will be dismissed with prejudice if she does not
amend her complaint.

12

B.

Motion for Summary Judgment

In the alternative, Mission requests the court to grant summary judgment in
its favor on Jacobs’s FMLA claim because Mission was not an “employer” under
the Act during Jacobs’s employment. An FMLA “eligible” employee must have
worked for an “employer” for at least 12 months and for 1,250 hours during the
previous 12-month period. 29 U.S.C. § 2611(2)(A). An employee is not “eligible”
under the FMLA if she is employed at a worksite that employs less than 50
employees within 75 miles. § 2611(2)(B)(ii). Further, an “employer” is defined as
any person or business “who employs 50 or more employees for each working day
during each of 20 or more calendar workweeks in the current or preceding calendar
year.” § 2611(4)(A)(i).
In support, Mission attaches the affidavit of Tiffany Glatfelter, the Office
Manager/Bookkeeper for Mission. (Doc. 6-1, Ex. A). Ms. Glatfelter has compiled a
list of employees who were on the payroll for each workweek, week by week, from
January 2009 through April 2, 2010. (Id.) Ms. Glatfelter asserts that Mission did not
exceed 50 or more employees for 20 workweeks in 2009 and 2010, as required for an
“employer” to be regulated under the FMLA for that time period. (Id.) Jacobs
requests the court to reserve ruling on Mission’s motion for summary judgment and
provide time for her to conduct limited discovery on whether Mission was regulated
under the FMLA during this time period. (Doc. 12).

13

When a motion to dismiss is submitted with evidence outside of the
pleadings, the court may either exclude the evidence or treat the motion as a Rule
56 motion for summary judgment. FED . R. CIV . P. 12(d). In that case, “[a]ll parties
must be given a reasonable opportunity to present all the material that is pertinent
to the motion.” Id. Additionally, if the opposing party shows “by affidavit or
declaration” that “it cannot present facts essential to justify its opposition,” the
court may defer the motion, deny it, allow time to take discovery, or issue any other
appropriate order. FED . R. CIV . P. 56(d).
In the case sub judice, Jacobs did not file an affidavit or declaration
requesting further discovery. Nevertheless, Jacobs contends in her opposition brief
that she is entitled to further discovery because Mission “did not attach the actual
payroll documents from which it allegedly obtained the information” contained in
Ms. Glatfelter’s affidavit. (Doc. 12, at 7). Jacobs asserts that she is entitled to obtain
those payroll documents to confirm Mission’s calculations.
Ordinarily a party requesting further discovery in light of a summary
judgment motion should file an affidavit or declaration in conformance with Rule
56(d). See Miller v. Beneficial Mgmt. Corp., 977 F.2d 834 (3d Cir. 1992); Radich v.
Goode, 886 F.2d 1391, 1392 (3d Cir. 1989) (quoting First Chicago International v.
United Exch. Co., Ltd., 836 F.2d 1375 (D.C. Cir. 1988) (“The purpose of the affidavit
is to ensure that the nonmoving party is invoking the protection of [Rule 56(d)] in
good faith and to afford the trial court the showing necessary to assess the merit of
a party’s opposition.”). However, the court shall overlook Jacobs’s failure to file
14

such an affidavit because the motion for summary judgment is premature and the
relevant facts are solely in the possession of Mission, the moving party. See Mejias
v. Am. Boychoir Sch., Civ. A. No. 11-0562, 2011 WL 3235711, at *3 (D.N.J. 2011)
(declining to convert the motion to dismiss to a motion for summary judgment
because no discovery had been conducted by the parties); ITT Indus., Inc. v.
Wastecorp. Inc., 87 Fed. App’x 287, 297 (3d Cir. 2004) (quoting Costlow v. United
States, 552 F.2d 560, 564 (3d Cir. 1977)) (“[W]here the facts are in possession of the
moving party a continuance of a motion for summary judgment for purposes of
discovery should be granted almost as a matter of course.”). Jacobs’s opposition
brief delineates the specific discovery information she seeks to resolve this issue.
(See Doc. 12, at 7).
Mission raises the concern that Jacobs’s “blanket request to review ‘payroll
records’ will reveal personal and sensitive information about citizens who are not
litigants to this proceeding.” (Doc. 13, at 2). The court is confident that the parties
will be able to balance Jacobs’s need for discovery with the privacy of Mission’s
employees by agreeing to redact non-pertinent information contained in the payroll
records and paystubs. Mission is also free to file a motion for a protective order if
such efforts fail. The court will deny Mission’s motion for summary judgment
without prejudice, so that Mission may re-file it when Jacobs has completed
discovery on the total number of Mission’s employees during Jacobs’s employment.

15

IV.

Conclusion
For the foregoing reasons, the court will grant Mission’s motion (Doc. 6) to

dismiss without prejudice and will provide Jacobs with leave to amend her
complaint. The court will also deny Mission’s motion (Doc. 6) for summary
judgment without prejudice. An appropriate order follows.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

February 5, 2013

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TANYA JACOBS,

:
:
Plaintiff,
:
:
v.
:
:
YORK UNION RESCUE
:
MISSION, INC., d/b/a YORK RESCUE :
MISSION,
:
:
Defendant,
:
:

Civil Action No. 1:12-CV-0288
(Judge Conner)

ORDER
AND NOW, this 5th day of February, 2013, upon consideration of defendant
York Union Rescue Mission, Inc.’s motion (Doc. 6) to dismiss or, in the alternative,
for summary judgment, and for the reasons set forth in the accompanying
memorandum, it is hereby ORDERED that Defendant’s motion (Doc. 6) to dismiss,
or, in the alternative, for summary judgment is GRANTED in part and DENIED in
part as follows:
1.

Defendant’s motion to dismiss is GRANTED without prejudice.
Plaintiff has leave to amend her complaint within thirty (30) days from
the date of this order. Plaintiff’s Family and Medical Leave Act
(“FMLA”) claim will be dismissed with prejudice if plaintiff does not
amend her complaint in thirty (30) days to correct the deficiencies set
forth in the court’s Memorandum.

2.

Defendant’s motion for summary judgment is DENIED without
prejudice to defendant re-filing a motion for summary judgment
following limited discovery on whether the defendant was an employer
regulated under the FMLA during plaintiff’s employment.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge