Colvin v. Volusion, Inc.

Filing 13

REPORT AND RECOMMENDATIONS re 4 Motion to Dismiss filed by Volusion, Inc. Signed by Judge Lee Yeakel. (ml)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GARY COLVIN

§
§
§
§
§

V.
VOLUSION, INC.

A-17-CV-139-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendant’s 12(b)(6) Partial Motion to Dismiss (Dkt. No. 4); Plaintiff’s

Response (Dkt. No. 8); Defendant’s Reply (Dkt. No. 9); and Plaintiff’s Sur-Reply (Dkt. No. 10). The
District Court referred the motion to the undersigned Magistrate Judge for report and
recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.
I. GENERAL BACKGROUND
In November 2014, Volusion, Inc., a website hosting company located in Austin, Texas, hired
Gary Colvin as a Senior Systems Engineer. After suffering an injury to his right hand, Colvin
underwent surgery in April 2015. After the surgery, Colvin continued to have serious problems with
his hand, which limited his ability to work and type on a computer. Colvin alleges that after his
surgery, his supervisors began to treat him negatively because of his hand disability. He pleads:
For example, Volusion management repeatedly asked Mr. Colvin about the condition
of his hand, repeatedly asked about when he would have to miss work because of his
medical treatment, repeatedly pointed out the work that might be effected because of
his medical treatment, and generally conveyed a cold or negative attitude regarding
his hand disability and need for medical treatment.
Dkt. No. 2 at ¶ 12. Because of continuous problems with his hand, Colvin informed his supervisors
that he was scheduled to undergo a second hand surgery on November 2, 2015, and requested time

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off for the surgery and recovery. On October 27, 2015, five days before his scheduled surgery,
Volusion terminated Colvin for purported job performance issues. Colvin contends that he was
terminated not because of job performance issues but because or his hand disability and ongoing
medical treatment.
On February 24, 2017, Colvin filed this suit against Volusion, alleging that his termination
violated the Americans with Disabilities Act, the Family Medical Leave Act, the Fair Labor
Standards Act, the Affordable Care Act, and the Texas Commission on Human Rights Act. In this
motion, Volusion argues that the claims under the FMLA, FLSA and the ACA should be dismissed
for failure to state a claim.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for
failure to state a claim upon which relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as true, viewing them
in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). The
Supreme Court has explained that a complaint must contain sufficient factual matter “to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
[nonmovant] pleads factual content that allows the court to draw the reasonable inference that the
[movant] is liable for the misconduct alleged.” Id. The court’s review is limited to the complaint,
any documents attached to the complaint, and any documents attached to the motion to dismiss that

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are central to the claim and referenced by the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
III. ANALYSIS
A.

FMLA Claims
The FMLA permits an employee to take up to twelve weeks of medical leave for their own

serious medical condition or for the care of a family member with a serious medical condition. 29
U.S.C. § 2612(a)(1). The FMLA prohibits an employer from interfering with, restraining, or denying
the exercise or attempted exercise of an employee’s right to take FMLA leave. Id. at § 2615(a)(1).
The statute also makes it unlawful for an employer to discharge or retaliate against an employee for
opposing the employer’s unlawful FMLA practices. Id. at § 2615(a)(2). Colvin alleges both an
interference claim, and a retaliation claim under the FMLA, contending that Volusion: (a) interfered
with, restrained, or denied the exercise or attempted exercise of his FMLA rights; (b) discriminated
or retaliated against him for exercising or attempting to exercise his FMLA rights, and (c) terminated
him because he exercised his rights FMLA rights. Dkt. No. 2 at ¶ 26. Volusion contends that all of
Colvin’s FMLA claims should be dismissed because he was never eligible for FMLA leave.
1.

Interference Claim

Colvin alleges that Volusion interfered with the exercise of his rights under the FMLA by
terminating his employment after he notified his supervisors that he would be taking FMLA leave
on November 2, 2015, for his hand surgery and recovery. Colvin’s Complaint concedes that he was
not eligible for FMLA leave when he was terminated, stating that he “would have been eligible for
FMLA leave on November 7, 2015, as he would have been employed for more than twelve
months . . . .” Dkt. No. 2 at ¶ 24. To establish a prima facie case of interference under the FMLA,
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among other things, a plaintiff must show he was an eligible employee. Caldwell v. KHOU-TV, 850
F.3d 237, 245 (5th Cir. 2017). Under the FMLA, an “eligible employee” is one who has been
employed “for at least 12 months,” has been employed for at least 1,250 hours of service during the
12-month period immediately preceding the leave and is employed at a worksite where 50 or more
employees are employed. 29 C.F.R. § 825.110(a). Volusion argues that Colvin was not an “eligible
employee” under the Act since he had not been employed for 12 months at the time he requested
leave in October 2015.
“The determination of whether an employee . . . 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.” 29 C.F.R.
§ 825.110(d) (emphasis added). See also, Brown v. Atrium Windows & Doors, Inc., 2015 WL
1736982, at *3 (N.D. Tex. Apr. 16, 2015) (“The determination of whether an employee is eligible
must be made as of the date leave commences”); Pennant v. Convergys Corp., 368 F. Supp. 2d 1307,
1310 (S.D. Fla. 2005) (quoting Walker v. Elmore County Bd. of Educ., 379 F.3d 1249, 1253 n. 10
(11th Cir. 2004)) (same). “There is no claim under the FMLA when an employee is ineligible at
both the time the employee provides notice of her intent to take leave, and the time the leave is to
be taken.” Brown, 2015 WL 1736982, at *3. See also, Pereda v. Brookdale Senior Living Cmty.’s,
Inc., 666 F.3d 1269, 1275 (11th Cir. 2012) (“An employee has to be both eligible and entitled to
FMLA leave on the day her FMLA leave is to commence.”). As noted, Colvin admits he would not
have become eligible for FMLA leave until November 7, 2015—his 12 month anniversary with
Volusion. Dkt. No. 2 at ¶ 24. Colvin alleges that he requested “additional time off for the surgery
and his recovery” on an (unstated) date before his scheduled surgery on November 2, 2015. Thus,
his leave was to begin on November 2, 2015. Because the regulations dictate that the determination
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of whether an employee has been employed for 12 months “must be made as of the date the FMLA
leave is to start,” 29 C.F.R. § 825.110(d), Colvin was not an eligible employee under the FMLA on
November 2, 2015. See Hill v. Walker, 737 F.3d 1209, 1215 (8th Cir. 2013) (holding that plaintiff
was not an eligible employee where she had not been employed for 12 months on the date the
requested leave was to begin); Babcock v. BellSouth Advert. & Publ’g Corp., 348 F.3d 73, 77 (4th
Cir. 2003) (holding that plaintiff not entitled to FMLA coverage for the leave period requested since
she was not an “eligible employee” at that time because she had not yet been employed by the
employer for twelve months); Farrell v. HRI Lodging, Inc., 2011 WL 2413467, at *2 (E.D. La. June
10, 2011) (“Thus, an employee who has been employed for less than twelve months is not entitled
to leave under the FMLA.”).
In his Response Brief, Colvin argues that the FMLA does not permit an employer to
preemptively fire an employee who has given notice of leave even if the employee was not eligible
for leave at the time notice was given. Colvin is only partially correct. While it is true that an
employee who puts his employer on notice before becoming eligible for FMLA leave may still be
entitled to FMLA leave, the courts have made clear that the employee must be an eligible employee
at the time the requested leave will begin.1 In this case, Colvin was not an eligible employee at the

1

See e.g., Brown, 2015 WL 1736982, at *3 (“[A]n employee who gives 30 days’ notice may
be entitled to FMLA leave if the employee would be eligible when the leave will commence, even
if the employee is not eligible at the time the notice is given.”); Pereda, 666 F.3d 1269. 1274 (11th
Cir. 2012) (“An employee has to be both eligible and entitled to FMLA leave on the day her FMLA
leave is to commence.”); Farrell, 2011 WL 2413467, at *2 (noting that “[a] number of courts have
held that an employee who gives 30 days’ notice is entitled to FMLA leave if the employee will be
eligible when that leave will commence, even if the employee is not eligible at the time the leave is
requested.”); Meyer v. Imperial Trading Co., 153 F. Supp.2d 839, 841 n. 1 (E.D. La. 2001) (finding
that plaintiff was entitled to FMLA leave where she sought leave before becoming eligible but leave
would commence after she was eligible).
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time he requested leave or at the time leave was to begin and, therefore, he was not an eligible
employee under the FMLA, and has no FMLA claim. See Hill, 737 F.3d at 1215 (rejecting
plaintiff’s argument that pre-eligibility request should be protected FMLA leave request since
plaintiff sought to take leave before she was eligible to take such leave); Walker, 379 F.3d at 1253
(“There can be no doubt that [a] request—made by an ineligible employee for leave that would begin
when [he] would still have been ineligible—is not protected by the FMLA.”); Farrell, 2011 WL
2413467, at *2 (rejecting plaintiff’s 30 day notice theory since he would not have been eligible for
leave on the date leave was to commence). Accordingly, Colvin’s interference claim under the
FMLA must be dismissed.
2.

Retaliation Claim

The outcome for the retaliation claim is the same. Because requesting to take FMLA leave
before one is eligible to do so is not protected activity under the FMLA, Colvin cannot make out the
first element of a prima facie FMLA retaliation claim: that he was protected under the FMLA.
Lanier v. Univ. of Texas Sw. Med. Ctr., 527 F. App’x 312, 317 (5th Cir. 2013). Accordingly,
Colvin’s FMLA retaliation claim should also be dismissed.
B.

FLSA Retaliation Claim
Colvin alleges that Volusion retaliated against him by firing him in violation of the FLSA,

29 U.S.C. § 215(a)(3), after he complained to his supervisor that Volusion’s policies violated the
FLSA. Specifically, Colvin alleges that after his supervisor informed him that he must begin using
Paid Time Off (“PTO”) for any future doctor’s appointments “in spite of the fact that Mr. Colvin
regularly worked additional hours in excess of the time he took off for his medical care and in excess
of 40 hours per week without any additional compensation,” he made a complaint to his supervisor
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that Volusion was violating the FLSA. Colvin alleges that he was fired five days later. The FLSA
makes it illegal for an employer “to discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or instituted or caused to be instituted any
proceeding under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). In order to make out a prima
facie case of retaliation under the FLSA, a plaintiff must allege (1) he participated in protected
activity under the FLSA, (2) he experienced an adverse employment action, and (3) there is a causal
link between the protected activity and the adverse employment action. Hagan v. Echostar Satellite,
L.L.C., 529 F.3d 617, 624 (5th Cir. 2008). Volusion argues that Colvin has failed to allege facts
establishing a prima facie case of FLSA retaliation because he has failed to sufficiently allege he
engaged in protected activity or that there was a causal link between his complaint and termination.
1.

Protected Activity

To demonstrate that he participated in an FLSA protected activity, Colvin must first
demonstrate that he filed a complaint. Starnes v. Wallace, 849 F.3d 627, 632 (5th Cir. 2017). In
order for an employee’s communication to constitute a complaint the
employer must have fair notice that an employee is making a complaint that could
subject the employer to a later claim of retaliation [and the] complaint must be
sufficiently clear and detailed for a reasonable employer to understand it, in light of
both content and context, as an assertion of rights protected by the [FLSA] and a call
for their protection.
Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011). In addition, “such an
assertion of rights requires that an employee step outside of his normal job role and assert a right
adverse to the company.” Starnes, 849 F.3d at 632. An informal oral complaint to the employer can
satisfy this standard. Kasten, 563 U.S. at 14.

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Colvin alleges that on October 23, 2015, he made a complaint to his supervisor “about what
he reasonably in good faith believed were violations of the FLSA.” Dkt. No. 2 at ¶ 30. Colvin
contends that he filed the complaint after he “researched the issue, felt that he was being singled out,
and believed that his supervisor’s directive violated the FLSA.” Id. at ¶ 29. Colvin complains that
Volusion classified Mr. Colvin as an “exempt” employee, he regularly worked hours
in excess of 40 hours a week and hours that more than made up for any time missed
at doctors appointments without compensation, he had not before been required to
take paid time off for such doctor’s or medical appointments, and other salaried
employees had not been required to use PTO time for such doctor’s appointments.
Id. Volusion argues Colvin’s allegations fail to allege he filed a protected complaint because “[n]o
objectively reasonable person could believe the incredibly common practice of having exempt
employees use PTO when they want to be away from work during business hours somehow violates
the Fair Labor Standards Act.” Dkt. No. 4 at 4. Volusion’s argument is misplaced. “The FLSA
does not require that a plaintiff successfully prove a claim for overtime under the FLSA, but merely
that the plaintiff prove he was engaged in protected activity.” Little v. Techical Specialty Products,
LLC, 940 F. Supp.2d 460, 478 (E.D. Tex. 2013). See also, Marcotte v. City of Rochester, 2017 WL
392013, *2 (2nd Cir. 2017) (“It is possible to state an anti-retaliation claim under the FLSA without
proving an actual violation of the FLSA.”).
In addition, as noted above, the Fifth Circuit only requires that a complaint “be sufficiently
clear and detailed for a reasonable employer to understand it, in light of both content and context,
as an assertion of rights protected by the [FLSA] and a call for their protection.” Starnes, 849 F.3d
at 632. The Court finds that Colvin’s allegations meet this standard. See Little, 940 F. Supp.2d at
478-79 (holding that plaintiff alleged prima facie case despite failing to show that overtime was
illegal where she filed internal oral complaint complaining of policy); Benge v. Highgate Holdings,
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2010 WL 2680113 at *2-3 (N.D. Tex. July 2, 2010) (finding that plaintiff alleged sufficient factual
allegations to withstand motion to dismiss where she voiced concerns over possible illegality of her
employer’s actions). Moreover, the question at the motion to dismiss stage “is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [his]
claims.” Twombly, 550 U.S. at 583.2 Colvin’s allegations on this issue are sufficient to meet this
standard.
2.

Causal Link

Volusion argues that Colvin has failed to allege sufficient facts showing that there was a
causal link between his complaint and his termination. It is incorrect. Colvin’s Complaint alleges
that “[l]ess than five days” after he complained to his supervisor regarding violations of the FLSA
he was terminated. Dkt. No. 2 at ¶ 30. “In this Circuit, temporal proximity between protected
activity and alleged retaliation is sometimes enough to establish causation at the prima facie stage.”
Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir. 2015). “[T]he
protected act and the adverse employment action [must be] ‘very close’ in time” to establish
causation by timing alone.” Id. (quoting Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007)).
Thus, the Fifth Circuit has determined that a six-and-a-half-week timeframe between a plaintiff’s
protected activity and an adverse employment action is sufficient to satisfy the causation prong of
a prima facie case, Porter, 810 F.3d at 949, while a two year period is insufficient to show a causal
connection, Washburn, 504 F.3d at 511. Courts have found causation for three and four month gaps,
2

Because the motion is brought under Rule 12(b)(6), the court is “limited to the complaint,
any documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint.” Lone Star Fund, 594 F.3d at 387.
Accordingly, the Court only considered the facts contained in the complaint, and ignored alleged
facts referenced by the parties in the motion and responses.
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and rejected claims with 20 month gaps. E.g., Clark County School Dist. v. Breeden, 532 U.S. 268,
273–74 (2001) (noting that a three-month or four-month period may be close enough to make a
prima facie showing of causation but holding that a twenty-month period was not). See also,
Guillory v. PF & B Mgmt., LP, 2013 WL 1181439, at *6 (S.D. Tex. Feb. 27, 2013) (finding that a
three-day period between the plaintiff filing the lawsuit and his termination was sufficient to raise
a question of fact as to causation). Based upon the foregoing, Colvin has alleged sufficient facts to
show a plausible causal link between the making of his complaint and his termination five days later.
Accordingly, Volusion’s Motion to Dismiss the FLSA retaliation claim should be denied.
C.

The ACA Retaliation Claim
Finally, Colvin alleges that Volusion retaliated against him under the ACA by firing him after

he complained to his supervisor that Volusion’s policies violated the ACA. See 29 U.S.C. § 218c.
The

anti-retaliation provision of the ACA, in relevant part, prohibits any employer from

discriminating against or discharging any employee because the employee has provided to the
employer “information relating to any violation of, or any act or omission the employee reasonably
believes to be a violation of, any provision of this title.” 29 U.S.C. § 218c(a)(2). Colvin’s
allegations in his Amended Complaint clearly state a plausible claim under § 218c(a)(2) of the
statute. Specifically, Colvin’s Amended Complaint alleges that after he injured his hand and had to
rely on Volusion’s medical insurance for his medical treatment, “he ran into issues relating to
Volusion’s health insurance policy that caused him to reasonably believe that the policy did not
comply with the Affordable Care Act.” Dkt. No. 2 at ¶ 38. Specifically, Colvin alleges that he
discovered Volusion’s health insurance policy “appeared to impose an 11 month ‘year’ for certain
coverage issues rather than a normal, full 12-month year, and effectively required employees to meet
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their deductibles and maximum out of pocket payout over 11 months, rather than a full calendar
year.” Id. at ¶ 39. Colvin alleges that he objected to these issues to management including stating
“his reasonable belief that the Volusion health insurance policy violated the ACA” and his belief that
“other aspects of Volusion’s health insurance and its administration violated the law, including
failing to coordinate benefits with Mr. Colvin’s prior medical insurance company and unauthorized
disclosure of personal health information.” Id. at ¶ 40. Colvin alleges that after he complained to
Volusion management about these policies he was terminated.
Volusion argues that Colvin’s allegations are insufficient to state a plausible claim for relief
because his complaints that Volusion’s policies violated the ACA were not “objectively reasonable.”
It also challenges the sufficiency of his pleadings that his complaints were the cause of his
termination. On the first point, the ACA does not require that the complaint be objectively
reasonable, but rather that “the employee reasonably believes” that the policy violated the ACA. 29
U.S.C. § 218c(a)(2). The Court finds that Colvin’s allegations meet this standard. Volusion appears
to be arguing that Colvin must demonstrate a violation of the ACA in order to allege a prima facie
case of retaliation under the ACA. However, like all of the other federal anti-retaliation statues, the
plain language of the statute does not require such. See Monohon v. BNSF Railway Co., 2016 WL
7426581, * 4 (S.D. Iowa May 11, 2016) (citing ACA and rejecting defendant’s argument that antiretaliation statute required plaintiff to prove violation of the underlying statute, noting that “the Court
cannot find any federal whistleblower or retaliation statute interpreted to require plaintiff’s reports
to be correct.”). Colvin’s allegations are sufficient to show a plausible claim that he engaged in
protected activity under the ACA to withstand a motion to dismiss under Rule 12(b)(6).

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With regard to Volusion’s criticism of the pleading of a causal link between Colvin’s
complaint regarding the ACA and his termination, Volusion is on better footing. Colvin’s Amended
Complaint does not allege the specific date that he complained to his supervisors regarding the
alleged violations of the ACA, nor does he plead any other specific facts from which the Court could
reasonably infer that the termination was connected to his complaint. Accordingly, the undersigned
recommends that the district judge order Colvin amend his complaint to address this deficiency
before dismissing the ACA claim.
IV. RECOMMENDATION
In light of the foregoing the undersigned RECOMMENDS that the District Court GRANT
IN PART AND DENY IN PART Defendant’s 12(b)(6) Partial Motion to Dismiss (Dkt. No. 4).
The Court RECOMMENDS that the District Court GRANT the motion with regard to Colvin’s
claims under the Family and Medical Leave Act, but DENY the Motion with regard to all other
claims. The Court further RECOMMENDS that the District Court order Plaintiff to file by a date
certain an amended complaint repleading his claim under the Affordable Care Act to state with more
specificity the facts supporting the causal connection between his firing and his complaint under the
ACA.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

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A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 28th day of June, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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