Acker v. General Motors LLC et al
Filing
25
Memorandum Opinion and Order granting 14 Motion to Dismiss filed by Sedgwick Claims Management Services, Inc. (Ordered by Judge John McBryde on 12/8/2015) (tln)
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IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
LONNY ACKER,
~----
---,
I DEC -8 2015
~----~~-----J)cputy
§
§
§
vs.
§
NO. 4:15-CV-706-A
§
GENERAL MOTORS LLC, ET AL.,
§
§
Defendants.
§
MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion to dismiss pursuant to
Rule 12(b) (6) of the Federal Rules of Civil Procedure, filed in
the above-captioned action by defendant Sedgwick Claims
Management Services, Inc.
has responded.
\
CU:R:(, U.S. DISTRICT COCRT
§
Plaintiff,
;·
i ;1; JEXAS
11
("Sedgwick"). Plaintiff, Lonny Acker,
Having considered the motion, the complaint, and
the applicable legal authorities, the court concludes that the
motion should be granted.
I.
Background
In summary form plaintiff makes the following allegations in
his complaint:
Defendants, Sedgwick and General Motors LLC ("GM"),
interfered with his rights under the
Family Medical Leave Act
("FMLA") . 1 Plaintiff suffers from acute iron-deficiency anemia
and due to that condition, he is at times unable to perform his
job at GM. As a part of GM's policy to take FMLA leave, plaintiff
is required to notify Sedgwick that he is taking FMLA leave.
Sedgwick then makes a recommendation to GM regarding the FMLA
leave, and GM may adopt Sedgwick's finding. Plaintiff has been
disciplined for taking unapproved FMLA leave. He notified
Sedgwick that he was taking FMLA leave, but Sedgwick claims that
it was not informed of such leave. Sedgwick illegally denied
plaintiff's requests for FMLA leave, and GM adopted Sedgwick's
illegal denial.
II.
Standards Applicable to the Motion to Dismiss
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests."
Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis
omitted) . Although a complaint need not contain detailed factual
1
The remainder of plaintiffs claims are alleged against GM only.
2
allegations, the "showing" contemplated by Rule 8 requires the
plaintiff to do more than simply allege legal conclusions or
recite the elements of a cause of action. Id. at 555 & n.3. Thus,
while a court must accept all of the factual allegations in the
complaint as true, it need not credit bare legal conclusions that
are unsupported by any factual underpinnings. See Iqbal, 556 U.S.
at 679 ("While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12{b) {6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible. Id. at 678. To allege a plausible right to relief, the
facts pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Twombly, 550
U.S. at 566-69. "Determining whether a complaint states a
[is] a context-specific task
plausible claim for relief .
that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S. at 679.
The court generally is not to look beyond the pleadings in
deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772,
774 {5th Cir. 1999). "Pleadings" for purposes of a Rule 12{b) (6)
motion include the complaint, its attachments, and documents that
are referred to in the complaint and central to the plaintiff's
3
claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498-99 (5th Cir. 2000}.
III.
Application of Law to Facts
A.
FMLA Requirements
The FMLA provides a cause of action to an employee against
an employer for interfering with any right provided by the FMLA.
29 U.S.C.
§§
2615
&
2617 (a} (2}. An employer is defined as "any
person engaged in commerce or in any industry or activity
affecting commerce 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" and includes "any person who
acts, directly or indirectly, in the interest of an employer to
any of the employees of such employer." 29 U.S.C.
§
2611(4} (A}.
The definition of employer under the FMLA and the Fair Labor
Standards Act
("FLSA"}
is substantially identical and decisions
interpreting the FLSA provide guidance for interpreting the
definition of employer under the FMLA. See Modica v. Taylor, 465
F.3d 174, 186 (5th Cir. 2006}.
Under the FLSA definition, an employer has "managerial
responsibilities" and "substantial control of the terms and
conditions of the work of [the] employees." Falk v. Brennan, 414
U.S. 190, 195 (1973}. The ultimate question for determining
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employer status is "whether an alleged employer had 'supervisory
authority over the complaining employee.'" Shores v. United
Cont'l Holdings, Inc., No. H-13-2745, 2015 WL 136619 at* 3 (S.D.
Tex. Jan. 7, 2015) (quoting Rudy v. Consol. Rest. Cos., Inc., No.
3:08-C-0904-L(BF), 2010 WL 3565418 at* 6 (N.D. Tex. Aug. 18,
2010)).
While the employer is normally the entity that employs an
employee, it is possible that an employee has more than one
employer, referred to as joint employers. 2 29 C.F.R. §§
825.104(c) & 825.106(a). To determine joint employer status, the
relationship must "be viewed in its totality." 29 C.F.R.
§
825.106 (b) (1).
The FMLA anticipates a situation wherein an employer
contracts with another entity "to perform administrative
2
The joint employer coverage regulation, 29 C.F.R. § 825.106 provides, in pertinent part, that:
Where two or more businesses exercise some control over the work or working
conditions of the employee, the businesses may be joint employers under FMLA.
Joint employers may be separate and distinct entities with separate owners,
managers, and facilities. Where the employee performs work which
simultaneously benefits two or more employers, or works for two or more
employers at different times during the workweek, a joint employment relationship
generally will be considered to exist in situations such as: ( 1) Where there is an
arrangement between employers to share an employee's services or to interchange
employees; (2) Where one employer acts directly or indirectly in the interest of the
other employer in relation to the employee; or (3) Where the employers are not
completely disassociated with respect to the employee's employment and may be
deemed to share control of the employee, directly or indirectly, because one
employer controls, is controlled by, or is under common control with the other
employer.
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functions such as payroll, benefits, regulatory paperwork, and
updating employment policies." 29 C.F.R.
§
825.106 (b) (2}. The
entity that performs such administrative functions is referred to
as a Professional Employer Organization or PEO. 29 C.F.R.
§
825.106(b} (2}. A PEO is not a joint employer when "it merely
performs . . . administrative functions." 29 C.F.R.
§
825.106(b} (2}. Factors that may lead to a determination that a
PEO is a joint employer include: "the right to hire, fire,
assign, or direct and control the client's employees
C.F.R.
B.
§
" 29
825.106(b} (2}.
Sedgwick is not an Employer Under the FMLA
Sedgwick contends in its motion to dismiss that Sedgwick is
merely a third-party claims administrator and is not an employer
within the definition of the FMLA, thus, cannot be liable for
FMLA interference. Doc. 3 15 at 4-8. Plaintiff argues that
Sedgwick is plaintiff's joint employer, along with GM, and
specifically, that Sedgwick is a joint employer falling under the
PEO definition. Doc. 19 at 4-5.
The Fifth Circuit has yet to determine if a third-party
claims administrator falls within the definition of an employer
under the FMLA. District courts that have addressed this issue
3
The "Doc. _" references are to the numbers assigned to the referenced documents on the
docket ofthis case, No. 4:15-CV-706-A.
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have found that third-party claims administrators do not exercise
sufficient control over the employee to fall under the definition
of employer for the FMLA.
See~
Zolner v. U.S. Bank Nat'l
Ass'n, No. 4:15-cv-00048, 2015 WL 7758543 at * 4 (W.D. Ky. Dec.
1, 2015)
(dismissing plaintiff's claims against a third-party
administrator for FMLA leave because plaintiff failed to show
that the third-party admistrator was her employer);
Shoemaker v.
Conagra Foods, Inc., No. 2:14-CV-153, 2015 WL 418271 at *4-5
(E.D. Tenn. Feb. 2, 2015)
(holding that the only proper defendant
in the case was Conagra who hired and employed the plaintiff, not
the third-party FMLA claims administrator); Marshall v. Whirlpool
Corp., No. 07-CV-534-JHP-TLW, 2010 WL 348344 at *6 (N.D. Okla.
Jan. 26. 2010)
(determining that the third-party claims
administrator was not an employer because the entity did not make
employment related decisions it merely made benefit
determinations and acted as a disbursing agent for benefits) . In
fact, plaintiff points to no case wherein a court has held that a
third-party claims administrator is an employer under the FMLA. 4
4
Plaintiff relies heavily on Salas v. 3M Company, wherein a motion for summary judgment filed
by Sedgwick was denied. No. 08-C-1614, 2009 WL 2704580 at* 11 (N.D. III. Aug. 25, 2009). In Salas,
Sedgwick was retained by 3M to perform many of the same duties that Sedgwick provides for GM. See
id. at *2-3; Doc. 19 at 6. In Salas, Sedgwick argued that it was not an employer within the definition of
the FMLA. See id. at *9-10. The court denied Sedgwick's motion for summary judgment, but not
because the court found that Sedgwick was an employer within the definition of the FMLA, but because
Sedgwick relied on inadmissable evidence. !fLat *9-11. Thus, Salas provides no support to plaintiff's
position that Sedgwick is an employer within the definition of the FMLA.
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In addition, plaintiff merely alleges that Sedgwick is an
employer because it exercised control over plaintiff's FMLA leave
and that GM does not make the determination of FMLA approval.
Doc. 19 at 7. However, this statement is contrary to plaintiff's
pleadings which twice state that GM adopted Sedgwick's findings
on FMLA leave, implying that it was GM, not Sedgwick, that made
the ultimate determination on FMLA leave. Doc. 1 at 2 & 5.
Plaintiff's pleadings wholly fail to establish that Sedwick is a
proper party in this FMLA claim because plaintiff has not
established that Sedgwick was plaintiff's employer. Plaintiff's
conclusory allegations do not amount to a valid claim for FMLA
interference against Sedgwick.
C.
Plaintiff's Request for Leave to Amend Complaint
Plaintiff's response to the motion to dismiss includes a
request that should the court find that plaintiff has not stated
a claim against Sedgwick, the court allow plaintiff to amend his
complaint. Doc. 19 at 9. The court notes that it is the duty of
plaintiff, not the court, to evaluate the need to amend the
complaint after reviewing the motion to dismiss filed by
defendant. In any event, this request is not stated in an
appropriate motion.
The court also notes that on November 19, 2015, plaintiff
filed a motion for leave to file plaintiff's first amended
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complaint. Doc. 20. Such motion was unfiled because it did not
comply with the Local Civil Rules of the United States District
Court for the Northern District of Texas. Doc. 21. To date,
plaintiff has not refiled an amended complaint.
IV.
Order
Therefore,
The court ORDERS that Sedgwick's motion to dismiss be, and
is hereby, granted, and plaintiff's claims against Sedgwick be,
and are hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of plaintiff's claims against Sedgwick.
SIGNED December 8, 2015.
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