Dunn v. Chattanooga Publishing Company
Filing
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MEMORANDUM with order to follow; Signed by District Judge Curtis L Collier on 1/14/2013. (AWH, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
DEBRA DUNN,
Plaintiff,
v.
CHATTANOOGA PUBLISHING
COMPANY,
Defendant.
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1:12-CV-252
Judge Curtis L. Collier
MEMORANDUM
Before the Court is Defendant Chattanooga Publishing Company’s (“Defendant”) partial
motion to dismiss for failure to state a claim (Court File No. 6). Plaintiff Debra Dunn (“Plaintiff”)
responded to Defendant’s motion (Court File No. 12) and Defendant replied to her response (Court
File No. 14). For the following reasons, the Court GRANTS Defendant’s partial motion to dismiss
(Court File No. 6).
I.
RELEVANT FACTS
On September 17, 2010, Plaintiff began working as a full-time Administrative Assistant to
Defendant’s Chief Financial Officer, Russell Lively (“Lively”) (Court File No. 1, Comp.). In Spring
2011, Plaintiff was diagnosed with cancer and continued working on a flex schedule. On August
18, 2011, Plaintiff informed Defendant she would require surgery in September 2011, after she
would have been employed for one year, and would need to take medical leave at that time. Thirty
minutes later, Lively told Plaintiff he was expecting a promotion and would need an assistant who
could work full time. Because of her planned medical leave, Lively terminated Plaintiff.
Plaintiff then filed a charge of discrimination with the EEOC, which issued her a Notice of
Right to Sue. She filed a complaint alleging violations of the Tennessee Disability Act, Tenn. Code
Ann. § 8-50-103, the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq., and the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 601, et. seq. Defendant filed the instant motion
seeking dismissal of Plaintiff’s FMLA claim (Court File No. 6).
II.
STANDARD OF REVIEW
A Rule 12(b)(6) motion should be granted when it appears “beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.” Lewis v. ACB
Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998). For purposes of this determination, the Court
construes the complaint in the light most favorable to the plaintiff and assumes the veracity of all
well-pleaded factual allegations in the complaint. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th
Cir. 2007). The same deference does not extend to bare assertions of legal conclusions, however,
and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
The Court next considers whether the factual allegations, if true, would support a claim
entitling the plaintiff to relief. Thurman, 484 F.3d at 859. Although a complaint need only contain
a “short and plain statement of the claim showing that the pleader is entitled to relief,” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)), this statement must
nevertheless contain “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “[T]o 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.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility as
explained by the Court “is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
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U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III.
DISCUSSION
Defendant argues Plaintiff’s claim under the FMLA must be dismissed because she was not
an “eligible employee” as defined by statute. Among other things, the FMLA requires an employee
be employed for twelve months before she is eligible for FMLA leave. The only question before
the Court is purely legal: whether under the FMLA a pre-eligibility employee may nonetheless make
a valid FMLA claim where she notified her employer of planned post-eligibility leave. Defendant
cites two of the Court’s previous decisions based on similar facts answering that question in the
negative: Wilkes v. T-Mobile, No. 1:09-CV-329, 2011 WL 1113397 (E.D. Tenn. Mar. 24, 2011);
Wright v. Marshal Mize Ford, Inc., No. 1:09-CV-139, 2010 WL 3843780 (E.D. Tenn. Sept. 27,
2010). Plaintiff does not dispute she fails to qualify as an eligible employee, but argues the Court
should reconsider its previous legal conclusion in light of Pereda v. Brookdale Senior Living
Communities, Inc., 666 F.3d 1269 (11th Cir. 2012), an Eleventh Circuit case decided since the Court
last had cause to consider this issue. For the following reasons, the Court will not do so, and will
grant Defendant’s motion.
As discussed in Wilkes and Wright, the FMLA provides eligible employees with up to twelve
weeks of leave per twelve month period due to a number of health or family events, including “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). An “eligible employee” is defined as an employee who
has been employed “for at least 12 months” and “for at least 1,250 hours of service” by the employer
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with respect to whom the leave is requested. 29 U.S.C. § 2611(2)(A). The Court of Appeals for the
Sixth Circuit acknowledges two theories of recovery under the FMLA. Edgar v. JAC Products, Inc.,
443 F.3d 501, 507-08 (6th Cir. 2006). The “entitlement” or “interference” theory recognizes
employers may not “interfere with, restrain, or deny the exercise or attempt to exercise any right
provided” by the FMLA. 29 U.S.C. § 2615(a)(1). The “retaliation” or “discrimination” theory
arises from the provision making it “unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by this subchapter.”
29 U.S.C. § 2615(a)(2).
To prevail on an interference claim, a plaintiff must show Defendants interfered with a
FMLA right to medical leave or to reinstatement following FMLA leave. Arban v. West Pub. Corp.,
345 F.3d 390, 401 (6th Cir. 2003). Plaintiff must show: “(1) she was an eligible employee, (2) the
defendant was an employer as defined under the FMLA, (3) she was entitled to leave under the
FMLA, (4) she gave the employer notice of her intention to take leave, and (5) the employer denied
the employee FMLA benefits to which she was entitled.” Edgar, 443 F.3d at 507. Under the
retaliation theory, Plaintiff must establish she: (1) engaged in a statutorily protected activity, (2) she
suffered an adverse employment action, and (3) there was a causal connection between the exercise
of her rights under the FMLA and the adverse employment action. Id. (citing Skrjanc v. Great Lakes
Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001)).
Plaintiff undisputedly worked for Defendants for less than twelve months and is not within
the statutory definition of an eligible employee. In Wilkes and Wright, the Court held recovery
under either the interference or retaliation theories is limited to “eligible employees,” rejecting the
argument an ineligible employee could recover for interference with or discrimination for
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anticipated post-eligibility leave. Wilkes, 2011 WL 1113397, at *9 (denying claim of an elevenmonth employee who expected giving birth after she would become eligible); Wright, 2010 WL
3843780, at * 7 (denying claim of an eleven-month employee who anticipated having surgery and
requiring medical leave after he would become eligible). In so holding, the Court followed the
controlling authority of Sixth Circuit decisions, which, although not addressing this precise issue,
hold that ineligible employees are barred from making FMLA claims. See, e.g., Staunch v. Cont’l
Airlines, Inc., 511 F.3d 625, 629-31 (6th Cir. 2008) (finding Plaintiff’s FMLA claims fail as a matter
of law where employer established the plaintiff worked less than the requisite 1,250 hours preceding
her request for FMLA leave); see also Davis v. Mich. Bell Tel. Co., 543 F.3d 345, 354 (6th Cir.
2008) (“To the extent that [the plaintiff] is claiming that she was terminated because of her attempt
to obtain FMLA leave in January of 2005, her claim must fail as a matter of law because she was
not eligible for FMLA benefits”); Humenny v. Genex Corp., Inc., 390 F.3d 901, 905-06 (6th Cir.
2004) (“[I]n an FMLA retaliation case . . . if the plaintiff does not qualify as an ‘eligible employee,’
the plaintiff does not state a claim for relief under the FMLA.”); Stimpson v. United Parcel Serv.,
351 F. App’x 42, 45 (6th Cir. 2009) (“The FMLA thus makes clear that only ‘eligible employees’
may recover under the statute.”).
Under Sixth Circuit and this court’s precedent, Plaintiff’s FMLA claim must be dismissed
because she never qualified as an “eligible employee.” The Eleventh Circuit, however, recently
concluded a pre-eligibility employee who notifies her employer of expected post-eligibility medical
leave is entitled to FMLA protection. See Pereda, 666 F.3d at 1274. In Pereda, the plaintiff worked
at a senior living facility for eleven months before her termination. After working for the facility
for several months, the plaintiff became pregnant. She was fired when she informed her employer
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she would require medical leave in a number of months, when she would have been eligible for
FMLA leave. Being one month shy of the minimum tenure required to secure eligibility under the
FMLA, the district court dismissed her interference claim reasoning she was not an eligible
employee. The district court also held the plaintiff’s claim failed because her triggering event, the
expected birth of her child, had not yet occurred. Because FMLA protection for childbirth only
attaches after the child is born, the district court concluded there was no FMLA protection with
which the employer could interfere. The district court also concluded the plaintiff failed to establish
a retaliation claim because an ineligible employee could not participate in statutorily protected
activity.
The Eleventh Circuit reversed. The court noted the FMLA requires an employee seeking
leave under the Act to first provide her employer thirty days notice of leave for a foreseeable birth
or the placement of a foster child in the employee’s care.1 Pereda, 666 F.3d at 1274 (citing 29
U.S.C. § 2612(e)(1)).
The court concluded that applying the notice requirement while
simultaneously withholding protection to pre-eligible employees seeking post-eligibility leave
creates a hole of protection incompatible with the purposes of the FMLA. The Eleventh Circuit also
pointed to Department of Labor regulations, which require “a determination as to FMLA eligibility
be made ‘as of the date the FMLA leave is to start.’” 666 F.3d at 1274 (quoting 29 C.F.R. §
825.110(d)). Further, the court noted, the reference to “employee” rather than “eligible employee”
in the statute’s notice requirement, 29 U.S.C. § 2612(e)(1), is a recognition that some ineligible
employees will be required to notify employers of expected post-eligibility leave. Because the court
concluded the employee was protected under the interference theory, it also concluded asserting
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Although not relevant in Pereda, employees anticipating medical leave must also provide
notice to their employers. 29 U.S.C. § 2612(e)(2).
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post-eligibility FMLA rights was statutorily protected activity under a retaliation theory. Thus the
court concluded a pre-eligibility employee notifying an employer of post-eligibility leave is entitled
to protection from both interference and retaliation under the FMLA.
Plaintiff urges the Court to reverse course and adopt the Eleventh Circuit’s view. The Court
must reject Plaintiff’s argument. As an initial matter, the Court notes, beyond an intervening
Eleventh Circuit opinion, nothing has changed between the Court’s decisions in Wilkes and Wright
and the instant case. The Court’s application of the statute in those cases was not concocted in a
vacuum, but was based on binding Sixth Circuit precedent. The Court will not ignore that precedent,
which itself has not changed, in favor of another circuit’s more specific decision. The Court
concedes that the interpretation of the statute the Court established in Wilkes and Wright leaves a
small class of employees without the FMLA’s protection. However, Congress intended to omit
certain employees from protection. Among those omitted were employees who have been employed
for less than one year. The Court cannot itself alter the statute and expand its protections to such
employees. The Court defers to binding Sixth Circuit precedent, and declines to reach a different
conclusion in light of Pereda.
Moreover, it is not clear the regulation cited in Pereda is controlling in this case.2 The full
subsection cited by the Eleventh Circuit states,
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Plaintiff does not provide significantly detailed argument on this point, but she contends
the Court should defer to the Department of Labor’s interpretation of “eligible employee” pursuant
to Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). If the Court were
to do so here, Plaintiff argues, it would compute eligibility from the “date the FMLA leave is to
start,” which would render Plaintiff an eligible employee in this case. See 29 C.F.R. § 825.110(d).
Because the Court concludes the regulation does not compel the conclusion Plaintiff draws, it need
not consider whether to defer under Chevron.
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The determination of whether an employee has worked for the employer for at least
1,250 hours in the past 12 months and has been employed by the employer for a total
of at least 12 months must be made as of the date the FMLA leave is to start. An
employee may be on “non–FMLA leave” at the time he or she meets the eligibility
requirements, and in that event, any portion of the leave taken for an
FMLA–qualifying reason after the employee meets the eligibility requirement would
be “FMLA leave.”
29 C.F.R. § 825.110(d). The Sixth Circuit has considered a prior and similar iteration of this section
and interpreted it to mean an employer may not terminate an employee after he takes FMLA leave
on the theory his eligibility lapses during his time off; for example, because he has no longer worked
for 1,250 hours in the past twelve months. See Butler v. Owens-Brockway Plastics Products, Inc.,
199 F.3d 314, 316 (6th Cir. 1999) (analyzing 29 C.F.R. § 825.110 (1999) (“The determinations of
whether an employee has worked for the employer for at least 1,250 hours in the past 12 months .
. . must be made as of the date leave commences.”)). That is, the employee need only be eligible
when he begins his leave, rather than maintaining eligibility throughout his leave. Plaintiff here,
however, was never an eligible employee.
Section 825.110(d) also distinguishes between FMLA and non-FMLA leave when an
employee becomes eligible in the middle of taking leave. Indeed, the regulation reinforces that any
leave taken before an employee has worked for his employer at least twelve months is non-FMLA
leave because the employee has yet to meet the eligibility requirements. Section 825.110(d), then,
merely tells the Court what it already knew: an employee will be eligible to take FMLA leave when
he meets the eligibility requirements. Plaintiff, however, never met the eligibility requirements.
Sixth Circuit precedent makes clear “[w]here a plaintiff does not qualify as an ‘eligible employee,’
the court lacks jurisdiction to decide the FMLA case.” Humenny, 390 F.3d at 904. Plaintiff does not
dispute she never qualified as an eligible employee. The Court therefore lacks jurisdiction to decide
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her FMLA claim.
Plaintiff also points to a First Circuit case, in which the court concluded the term “employee”
as used in the FMLA is ambiguous and deferred to the Department of Labor’s interpretation.
Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st Cir. 1998). Duckworth involved a former
employee who brought an FMLA claim after his former employer refused to rehire him. He based
his FMLA claim on previous FMLA leave taken when he was an eligible employee. The court
concluded “employee” in 29 U.S.C. § 2617(a)(2), which creates a private right of action, was
ambiguous and deferred to the Department of Labor’s interpretation prohibiting employers from
taking adverse actions in hiring. See 29 C.F.R. § 825.220(c). Because the FMLA protects against
hiring retaliation, the court concluded, it must not solely apply to current employees, but must
extend to former and prospective employees as well.
However, Duckworth was distinguished by the Sixth Circuit in Humenny, 390 F.3d at 905.
In Humenny, the plaintiff did not qualify as an eligible employee because her office employed too
few employees. She argued, citing Duckworth, she should be entitled to bring an FMLA retaliation
case regardless of her eligibility if she was fired for asserting FMLA rights. The Sixth Circuit
rejected her argument, noting Duckworth and a similar Eleventh Circuit case
held only that a former employee may state a claim for retaliation where the former
employer refuses to re-hire the employee for exercising FMLA leave rights while
employed. In both cases, the plaintiffs qualified as “eligible employees” at the time
they took FMLA leave. Appellant in this case never qualified for FMLA leave.
390 F.3d at 905 (citations omitted). Plaintiff similarly never qualified for FMLA leave. At best,
Plaintiff states a retaliation claim for her intention to take FMLA leave, which is a generally
cognizable claim for eligible employees. See Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309,
314 (6th Cir.2001) (“The right to actually take [FMLA] leave . . . includes the right to declare an
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intention to take such leave in the future.”). But as the Sixth Circuit and this court have repeatedly
made clear, a prerequisite to asserting an FMLA claim is eligibility, even if an employer retaliates
for asserted FMLA rights. See Humenny, 390 F.3d at 905. Plaintiff here fails that prerequisite and
accordingly may not raise such a claim.
In Humenny, the Sixth Circuit also rejected an argument similar to the Pereda court’s
emphasis on the use of “employee” rather than “eligible employee” in 29 U.S.C. § 2612(e)(1). The
plaintiff in Humenny argued the use of the words “employee” and “individual” in the FMLA’s
retaliation provisions, rather than “eligible employee,” indicates the retaliation provisions were
meant to protect more than just eligible employees. However, the court disagreed noting
a close reading of the statute reveals that the retaliation provisions prohibit
employers from retaliating based on the exercise of a “right” under the statute. The
regulations provide similar protection by prohibiting retaliation based on the exercise
of “any rights provided by the Act.” 29 C.F.R. § 825.220(a)(1). Because Appellant
is not an eligible employee, Appellant has never exercised or attempted to exercise
any “rights” provided to her by the FMLA.
390 F.3d at 905. The Sixth Circuit, therefore, has concluded the use of the word “employee” rather
than the phrase “eligible employee” in the FMLA is insufficient to expand the FMLA’s protection
beyond eligible employees. The Court will not ignore that determination here.
Based on Sixth Circuit precedent, as well as the Sixth Circuit’s past handling of critical
elements of Pereda’s analysis, the Court concludes it is bound to the same analysis underlying its
decisions in Wilkes and Wright. Plaintiff in this case concedes she does not qualify as an eligible
employee; thus, the Court lacks jurisdiction to decide her FMLA claim.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s partial motion to dismiss (Court
File No. 6).
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An order shall enter.
/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
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