Battle v. City Of Alexandria
Filing
14
MEMORANDUM OPINION in re 5 Motion to Dismiss. Signed by District Judge James C. Cacheris on 04/14/2015. (jlan)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MISTI BATTLE,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CITY OF ALEXANDRIA,
Defendant.
M E M O R A N D U M
1:14cv1714 (JCC/MSN)
O P I N I O N
This action, brought under the Family Medical Leave
Act, 29 U.S.C. § 2601 et seq., is before the Court on Defendant
City of Alexandria’s Motion to Dismiss for Failure to State a
Claim, filed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
[Dkt. 5.]
For the following reasons, the
Court will grant the motion in part.
I. Background
At the motion to dismiss stage, the Court must read
the complaint as a whole, construe the complaint in a light most
favorable to the plaintiff, and accept the facts alleged in the
complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On December 4, 2004, Defendant City of Alexandria
(“Defendant”) hired Plaintiff Misti Battle (“Plaintiff”) as a
“Police Officer I.”
(Compl. [Dkt. 1] ¶ 8.)
Over six years
later, in January of 2011, Plaintiff was promoted to the rank of
1
Sergeant and placed on a twelve-month probationary period
pursuant to Defendant’s Administrative Regulation 6-8.
¶¶ 8-9.)
(Id. at
For the first six months, Plaintiff received favorable
performance reviews from her supervisor, Lieutenant Bartlett.
(Id. at ¶ 10.)
In June of 2011, Plaintiff started working the night
shift under the supervision of Lieutenant Shirl Mammarella (“Lt.
Mammarella”).
(Compl. ¶ 13.)
On August 11, 2011, Plaintiff
informed Lt. Mammarella that she needed to take a period of
leave from work to care for her husband as he received emergency1
medical treatment for a hernia.
(Id. at ¶ 14.)
On August 19,
2011, Lt. Mammarella met with Plaintiff and “told her that her
leave balances were too low for someone with her ‘amount of time
on.’”
(Id. at ¶ 17.)
At that time, Plaintiff had accumulated
approximately 40-50 hours of annual leave, 100 hours of sick
leave, and a minimal amount of compensatory time.
(Id.)
Nonetheless, Plaintiff confirmed her intention to take leave
during her husband’s treatment, and made arrangements for other
officers to cover her normal shifts.
(Id. at ¶¶ 20-21.)
Defendant never informed Plaintiff or provided her
notice of her rights under the Family and Medical Leave Act
1
Defendant’s Administrative Regulation states: “If the need for
leave is not foreseeable, the employee shall give as much notice
as is practicable, or at least one or two business days.”
(Compl. ¶ 35.)
2
(“FMLA”).
(Id. at ¶ 22.)
From August 21, 2011 through
September 1, 2011, Plaintiff was on leave from work.
21.)
(Id. at ¶
Under Defendant’s Administrative Regulation 6-18, “[w]hile
on full-time FMLA leave, City employees are not eligible, nor
can they be required, to work overtime assignments . . . .”
While on leave, however, Plaintiff worked many overtime shifts
because she did not know of her right to take FMLA leave.
at ¶ 22.)
(Id.
Plaintiff worked overtime during her period of leave
“to minimize the disruption to other officers’ schedules . . .
and because [she] believed she was required to work the shifts
she had signed-up for.”
(Id. at ¶ 37.)
Working overtime shifts
while caring for her husband caused Plaintiff undue stress and
anxiety.
(Id. at ¶ 22.)
On September 2, 2011, Plaintiff returned to work and
assumed her duties as a Sergeant.
(Compl. ¶ 23.)
On September
7, 2011, Lt. Mammarella rated Plaintiff as “Below Requirements”
for “Reliability” and “Responsibility” in her nine-month
progress review, and noted that Plaintiff’s leave balances were
“seriously low,” even though Plaintiff’s leave balances were
still positive with 19 hours of annual leave, 19 hours of sick
leave, and less than one hour of compensatory time.
24.)
(Id. at ¶
Specifically, Lt. Mammarella criticized Plaintiff for
using leave, stating:
[Plaintiff’s] routine absences have impacted
3
her ratings in nearly every category.
When
asked, she offered no explanation for her
deterioration of performance.
Sergeant
Battle needs to take her assignment as a
sergeant seriously and make it her highest
priority in order to improve. She needs to
be present during normal work hours for her
officers.
She needs to increase her leave
balances . . . .
(Id. at ¶ 26.)
Despite these concerns, Lt. Mammarella approved
every leave request submitted by Plaintiff.
(Id. at ¶ 27.)
On
November 17, 2011, Lt. Mammarella verbally reprimanded Plaintiff
for low leave balances and informed Plaintiff that she intended
to recommend a 90-day extension of her probationary period,
which she memorialized in a written memorandum to the Chief of
Police on November 30, 2011.
(Id. at ¶¶ 29-30.)
On December 14, 2011, Plaintiff was demoted to the
position of Police Officer II because of the “Below
Requirements” ratings from Lt. Mammarella due to Plaintiff’s low
leave balances.
(Id. at ¶¶ 31-32.)
For the first six months
following her demotion, Defendant informed Plaintiff that she
was on probation and that she could not apply for the Sergeant
position again because she had not successfully completed her
last period of probation.
(Id. at ¶¶ 49-50.)
On November 8,
2012, Plaintiff was elevated, but not promoted, to the position
of Police Officer III and given a pay increase, retroactive to
September of 2012.
(Id. at ¶ 53.)
On May 5, 2014, Plaintiff
was promoted to Sergeant, her current position.
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(Id. at ¶ 54.)
On December 15, 2014, Plaintiff filed a Complaint
under the FMLA alleging two counts: (1) interference with the
exercise of her FMLA rights under 29 U.S.C. § 2615(a)(1), and
(2) retaliation for exercising her FMLA rights under 29 U.S.C. §
2615(a)(2).
(Compl. ¶¶ 56-98, 99-108.)
On February 26, 2015,
Defendant filed the instant motion to dismiss for failure to
state a claim, with a memorandum in support.
5]; Def.’s Mem. in Supp. [Dkt. 6].)
(Def.’s Mot. [Dkt.
Plaintiff filed an
opposition memorandum (Pl.’s Opp’n [Dkt. 10]), to which
Defendant replied (Def.’s Reply [Dkt. 11]).
The Court heard
oral argument of counsel on April 9, 2015 and took the matter
under advisement.
Thus, the motion is ripe for disposition.
II. Legal Standard
A court reviewing a complaint on a Rule 12(b)(6)
motion must accept well-pleaded allegations as true, and must
construe all allegations in favor of the plaintiff.
See Randall
v. United States, 30 F.3d 518, 522 (4th Cir. 1994).
However,
the court need not accept as true legal conclusions disguised as
factual allegations.
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 679-81
Therefore, a pleading that offers only a “formulaic
recitation of the elements of a cause of action will not do.”
Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007).
Nor will a complaint that tenders mere “naked
5
assertion[s]” devoid of “further factual enhancement.”
Iqbal,
556 U.S. at 678; Twombly, 550 U.S. at 557.
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [a Rule 12(b)(6)
motion] does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Edwards
v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)
(citation omitted) (internal quotation marks omitted).
In the
instance where sufficient facts are alleged in the complaint to
rule on an affirmative defense, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).
This principle
only applies, however, if all facts necessary to the affirmative
defense “clearly appear[ ] on the face of the complaint.”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007)
(emphasis is original); see also 5B Wright & Miller, Federal
Practice & Procedure § 1357 (“A complaint showing that the
governing statute of limitations has run on the plaintiff’s
claim for relief is the most common situation in which the
affirmative defense appears on the face of the pleading and
provides a basis for a motion to dismiss under Rule 12(b)(6).”).
III. Analysis
Congress enacted the FMLA “to balance the demands of
the workplace with the needs of families.”
2601(b)(1).
29 U.S.C. §
Under the FMLA, eligible employees can take up to
6
twelve weeks of unpaid leave from work during any one-year
period “to care for the spouse . . . of the employee, if such
spouse . . . has a serious health condition.”
2612(a)(1)(C).
29 U.S.C. §
Upon the employee’s return to work, the employee
has the right to be restored to the original, or an equivalent,
position.
29 U.S.C. §§ 2614(a)(1)(A)-(B).
The FMLA creates a private cause of action for
equitable or monetary relief against any employer that violates
an employee’s rights under the statute.
Dotson v. Pfizer, Inc.,
558 F.3d 284, 294 (4th Cir. 2009) (quoting Yashenko v. Harrah’s
N. Carolina Casino Co., 446 F.3d 541, 546 (4th Cir. 2006))
(additional citation omitted); see also 29 U.S.C. § 2617(a).
Two types of claims exist under the FMLA.
First, employees are
entitled to be free from employer interference with their rights
under FMLA.
Yashenko, 446 F.3d at 546 (citations omitted); see
also 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under this
subchapter.”)
(colloquially known as an interference claim).
Second, employees are protected “from discrimination or
retaliation for exercising their substantive rights under the
FMLA.”
Yashenko, 446 F.3d at 546 (citation omitted); see
also 29 U.S.C. § 2615(a)(2) (“It shall be unlawful for any
employer to discharge or in any other manner discriminate
7
against any individual for opposing any practice made unlawful
by this subchapter.”) (colloquially known as a retaliation
claim).
Here, Plaintiff brings both an interference claim
(count one) and a retaliation claim (count two) against
Defendant.
Defendant argues that both counts are barred by the
statute of limitations, and that the Complaint should be
dismissed in its entirety on this basis alone.
7-10.)
(Def.’s Mem. at
Alternatively, Defendant contends that in addition to
being untimely, Plaintiff fails to state an interference claim,
mainly because there is no allegation that she was ever denied
FMLA benefits.
(Id. at 3-6.)
The Court agrees with Defendant
in part, and will dismiss the interference claim in count one as
untimely.
Otherwise, the retaliation claim in count two will
remain.
“The raising of the statute of limitations as a bar to
plaintiffs’ cause of action constitutes an affirmative defense
and may be raised by motion pursuant to Fed. R. Civ. P.
12(b)(6), if the time bar is apparent on the face of the
complaint.”
Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474
(4th Cir. 2005) (citation omitted).
Claims brought under the
FMLA are subject to a two-year statute of limitations period.
29 U.S.C. § 2617(c)(1); Avent v. Kraft Foods Global, Inc., No.
3:11-CV-27, 2012 WL 3555378, at *4 (E.D. Va. Aug. 16, 2012).
8
The period is extended to three years for willful violations of
an employee’s FMLA rights.
29 U.S.C. § 2617(c)(2).
A violation
is willful “where an employer knew or showed reckless disregard
for the matter of whether its conduct was prohibited by the
[FMLA].”
Settle v. S.W. Rodgers, Co., Inc., 998 F. Supp. 657,
663 (E.D. Va. 1998) (quoting McLaughlin v. Richland Shoe Co.,
486 U.S.
128, 130 (1988) (quotation marks omitted)), aff’d, 182
F.3d 909 (4th Cir. 1999) (unpublished).
The Court now turns to
both counts in the Complaint.
A. Count One: Interference Claim
While not expressly defined by the FMLA, “interfering
with the exercise of an employee’s rights under the FMLA would
include violating the FMLA, refusing to authorize FMLA leave,
discouraging an employee from taking FMLA leave, and
manipulating the work force to avoid responsibilities under
FMLA.”
Dodgens v. Kent Mfg. Co., 955 F. Supp. 560, 564 (D.S.C.
1997) (citing 29 C.F.R. § 825.220(b)).
Here, Plaintiff alleges
that Defendant interfered with her rights under the FMLA by
failing to provide the requisite notice (Compl. ¶¶ 80-83, 91),
mischaracterizing Plaintiff’s leave as personal or sick leave
(id. at ¶¶ 84-85), and discouraging Plaintiff from taking leave
(id. at ¶ 17).
Plaintiff also maintains that these violations
were willful and not merely negligent.
(Id. at ¶ 91.)
the statute, assuming for Plaintiff’s benefit that the
9
Under
allegations state a claim for willfulness, she must have brought
this action within three years of the date of “the last event
constituting the alleged violation for which such action is
brought.”
29 U.S.C. § 2617(c)(2).
Under the most liberal
construction of the dates alleged in the Complaint, Plaintiff’s
interference claim is untimely, and the Court will dismiss it
with prejudice.
On August 11, 2011, Plaintiff first informed Lt.
Mammarella and Sergeant Brown of her need to take leave to care
for her husband after his emergency surgery.
(Compl. ¶ 14.)
Eight days later, on August 19, 2011, Plaintiff met with Lt.
Mammarella and confirmed she would take leave from August 21,
2011 through September 1, 2011.
(Id. at ¶¶ 17-21.)
Lt.
Mammaralla tried to discourage Plaintiff from taking leave and
failed to provide her with the requisite notice under the FMLA,
but Plaintiff nonetheless took her leave as scheduled.
Plaintiff returned to work on September 2, 2011.
(Id.)
(Id. at ¶ 23.)
On September 7, 2011, Lt. Mammarella issued Plaintiff’s progress
review that noted her leave balances were “seriously low.”
at ¶ 24.)
(Id.
From August 19, 2011 to September 7, 2011,
Plaintiff’s annual personal leave decreased from 40-50 hours to
19 hours, her sick leave decreased from 100 to 19 hours, and she
maintained a minimal amount of compensatory time.
24.)
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(Id. ¶¶ 17,
The interference claim accrued on the date of the
“last event constituting the alleged violation for which such
action is brought.”
29 U.S.C. § 2617(c)(2).
On August 19,
2011, Lt. Mammarella discouraged Plaintiff’s leave and failed to
provide notice of her FMLA rights.
By September 7, 2011,
Plaintiff’s leave was categorized as personal and sick leave,
and not as FMLA leave.
Thus, the latest possible date of
accrual for the interference claim in count one is September 7,
2011, which means Plaintiff’s Complaint must have been filed by
September 7, 2014.
29 U.S.C. § 2617(c)(2).
By filing on
December 15, 2014, count one is barred by the three-year statute
of limitations.
The Court finds there is no later date alleged in the
Complaint upon which Plaintiff can premise her interference
claim.
Plaintiff attempts to argue under 29 C.F.R. § 825.220(c)
that Defendant also interfered with her FMLA rights when it used
her period of leave as a “negative factor” in her demotion from
Sergeant to police officer, which occurred in December of 2011.
(Compl. ¶¶ 92-95 (“[Plaintiff] suffered a loss in employment
status when Defendant interfered with the exercise of her rights
under FMLA by failing to properly designate her leave as FMLAqualifying leave.”).)
The regulation states, in relevant part:
“employers cannot use the taking of FMLA leave as a negative
factor in employment actions[.]”
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29 U.S.C. § 825.2209(c).
However, an employee’s remedy for this type of violation lies as
a retaliation claim and not as an interference claim.
See,
e.g., Downs v. Winchester Med. Ctr., 21 F. Supp. 3d 615, 617-18
(W.D. Va. 2014).
“Even though 29 C.F.R. § 825.220(c) appears to be an
implementation of the ‘interference’ provisions of the FMLA, its
text unambiguously speaks in terms of ‘discrimination’ and
‘retaliation,’ and we shall, of course, apply it in a manner
consistent with that text.”
Id. (quoting Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 147 n.9 (3d Cir. 2004));
see also Colburn v. Parker Hannifin/Nichols Portland Div., 429
F.3d 325, 331 (1st Cir. 2005).
“While the Fourth Circuit has
not expressed itself in terms as explicit as the Third [and
First], it is nevertheless clear that it views the taking of
FMLA leave as a negative factor in employment actions . . . as
set forth in § 825.220(c) as FMLA retaliation, not
interference.”
Downs, 21 F. Supp. 3d at 618 (citing Dotson v.
Pfizer, Inc., 558 F.3d 284 (4th Cir. 2009)).
Moreover, this
district court has previously agreed that violations of §
825.220(c) constitute retaliation.
Downs, 21 F. Supp. 3d at
618-19 (citing Bullock v. Kraft Foods, Inc., No. 3:11CV36-HEH,
2011 WL 5872898 (E.D. Va. Nov. 22, 2011), aff’d, 501 F. App’x
299 (4th Cir. 2012); Rountree v. City of Portsmouth, No.
2:11CV106, 2011 WL 5101761 (E.D. Va. Oct. 26, 2011), aff’d, 487
12
F. App’x 785 (4th Cir. 2012)).
Accordingly, here, Plaintiff’s
argument that she sufficiently pled a willful violation of FMLA
interference based on her demotion from sergeant to police
officer on December 14, 2011 is contrary to the law of this
circuit.
(See Pl.’s Opp’n at 11-16.)
Plaintiff cannot extend
the accrual date of her interference claim on this basis.
Instead, Plaintiff’s interference claim accrued, at the very
latest, on September 7, 2011, as discussed above.
Therefore,
the Court will dismiss the interference claim with prejudice as
barred by the statute of limitations.
See Keller v. Prince
George’s Cnty., 923 F.3d 30, 33 (4th Cir. 1991) (stating any
amendment of a cause of action barred by the statute of
limitations is futile and therefore any amendment request
regarding an untimely cause of action can be denied).
Thus, the
Court need not address Defendant’s argument that count one also
fails to state a claim for relief.
B. Count Two: Retaliation Claim
Next, Defendant argues that Plaintiff’s retaliation
claim is also barred by the statute of limitations period
because Plaintiff failed to allege sufficient facts to support a
theory of willful retaliation.
(Def.’s Mem. at 7-10.)
Plaintiff’s retaliation claim is based on her demotion from
sergeant to police officer on December 14, 2011.
108.)
(Compl. ¶¶ 99-
Plaintiff filed her Complaint on December 15, 2014.
13
Thus, to be timely under the three-year limitation period,
Plaintiff’s retaliation claim must properly allege willfulness.2
It is well settled that to state a claim for a willful
violation of the FMLA, Plaintiff must allege facts that show “an
employer knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the [FMLA].”
F. Supp. at 663.
Settle, 998
Defendant relies heavily on this Court’s
opinion in Davis v. Navy Fed. Credit Union and argues that
Plaintiff’s conclusory allegations are insufficient to support a
willful violation.
(Def.’s Mem. at 8-10 (citing Davis v. Navy
Fed. Credit Union, No. 1:11cv1282 (JCC/TCB), 2012 WL 948428
(E.D. Va. Mar. 20, 2012)).
The facts of this case, however, are
distinguishable from those in Davis.
Accordingly, the Court
finds that Plaintiff sufficiently alleges willfulness in the
Complaint and count two will remain.
In Davis, the Court could not even determine whether
the pro se Plaintiff’s “claim [was] that Navy Federal interfered
with her FMLA rights or retaliated against her for exercising
her rights under the FMLA.”
2012 WL 948428, at *5.
The word
“willful” was not used once in the plaintiff’s rambling, stream2
Assuming willfulness is properly alleged, Plaintiff’s complaint
is still timely under the three-year limitation period even if
it was filed on December 15, 2014, because December 14, 2014 was
a Sunday. Fed. R. Civ. P. 6(a)(1)(C) (“[I]nclude the last day
of the period, but if the last day is a Saturday, Sunday, or
legal holiday, the period continues to run until the end of the
next day that is not a Saturday, Sunday, or legal holiday.”).
14
of-consciousness, sixty-five-page amended pleading.
Thus, in
attempting to liberally construe the complaint as the Court was
required to do, it attempted to apply the three-year statute of
limitation period, but ultimately could not, based on the
readily apparent deficiency.
Id.
Here, Plaintiff expressly alleges that “Defendant’s
demotion of Battle was willful and in reckless disregard of her
right to take FMLA qualifying leave.”
(Compl. ¶ 107.)
Defendant expects more specificity, but none is required here.
Where “a plaintiff sufficiently alleges facts supporting the
claimed violation of the FMLA, a general averment as to
willfulness should be sufficient to trigger the three-year
limitations period.”
Settle, 998 F. Supp. at 664 (E.D. Va.
1998) (citing Pfister v. Allied Corp., 539 F. Supp. 224, 228
(S.D.N.Y. 1982) (finding a plaintiff who generally avers
willfulness is entitled to three-year statute of limitations
period in ADEA action); Wanamaker v. Columbian Rope Co., 713 F.
Supp. 533, 539-40 (N.D.N.Y. 1998)).
Notably, Defendant does not
contest the sufficiency of Plaintiff’s other allegations
supporting her retaliation claim, as it otherwise did for her
interference claim.
Instead, Defendant asks only that count two
be dismissed for failure to sufficiently plead willfulness.
But
any requirement to allege facts regarding “conditions of the
mind with specificity . . . would be virtually impossible to do
15
. . . without presenting all the evidence bearing on the matter
at length.”
Settle, 998 F. Supp. at 664 (quoting Pfister, 539
F. Supp. at 228 (citing 2A Moore’s Federal Practice ¶ 9.03 (2d
ed.)).
Here, Plaintiff sufficiently alleges facts supporting
her claim of retaliatory demotion in violation of the FMLA, and
avers willfulness in a manner consistent with the requirements
of Rule 9(b) of the Federal Rules of Civil Procedure.
See
Settle, 998 F. Supp. at 664 (“In all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall
be stated with particularity.
Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.”)
(emphasis in original).
Accordingly, Plaintiff’s retaliation
claim in count two will remain.
IV. Conclusion
For the foregoing reasons, the Court will grant
Defendant’s motion to dismiss in part and dismiss count one with
prejudice.
Otherwise, the motion is denied and count two
remains.
An appropriate Order shall issue.
April 14, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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