Sumner v. Mary Washington Healthcare Physicians et al

Filing 27

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 5/28/15. (tdai, )

EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
DILLARD L. SUMNER, JR.,
Plaintiff,
v.

Civil Action No. 3:15-CV-42

MARY WASHINGTON HEALTHCARE
PHYSICIANS, et al.,
Defendants.

MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants’ Partial Motion to Dismiss (“Motion”)
(ECF No. 23) pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff filed a response in
opposition on April 28, 2015 (“Opp’n Mem.”) (ECF No. 25), and Defendants subsequently filed a
reply on May 4, 2015 (“Reply Mem.”) (ECF No. 26). The parties have not requested a hearing on
this matter, and the Court finds that oral argument is unnecessary. See E.D. Va. Loc. Civ. R. 7(J).
For the reasons set forth below, the Motion is GRANTED.
I.

BACKGROUND
This civil action against Defendants, Mary Washington Healthcare Physicians d/b/a

Mary Washington Healthcare (“MWHC”), and Kathy Wall (“Wall”) (collectively, the
“Defendants”), alleges interference with the exercise of rights granted under the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., and retaliation in violation of the FMLA
when Plaintiff, D.L. Sumner (“Sumner” or “Plaintiff”), was terminated after exercising his FMLA
rights.
Sumner was employed by MWHC beginning in July 2007 as the “Director,
Compensation and Benefits & HRIS.” (Am. Compl. ¶ 18.) Wall was, and is, the Executive Vice
President of Human Relations for MWHC, and Sumner’s direct supervisor. Sumner was an

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“eligible employee” of MWHC within the meaning of 29 U.S.C. § 2611(2)(A)1, and MWHC and
Wall are “employers” within the meaning of 29 U.S.C. § 2611(4)(A)2.
Sumner has been diabetic for over 20 years, and in October 2012 Sumner required
surgery on his right foot due to an open wound that did not heal properly as a result of diabetesrelated complications, and which became infected, advancing into the bone. The surgery
resulted in amputation of the fifth metatarsal bone of Sumner’s right foot. Sumner was absent
from work on FMLA medical leave for six weeks due to the surgery. During his absence, work in
the Compensation department fell only slightly behind, and the department was able to meet
most schedules on time. Prior to taking this leave, Sumner had explained to Wall about his
underlying medical condition which necessitated the surgery.
On March 5, 2014, Wall received a list of “High Risk Individuals” under the company’s
health plan, which was a list of individuals with higher risk profiles, and therefore higher health
care premiums. Sumner was included on this list and classified as a “substantial risk” since he
possessed three of the four major factors identifying high risk individuals.
In mid-March 2014, Sumner developed another bone infection in his left foot, also from
an open wound which did not heal. This again necessitated surgery and Sumner took six weeks’
leave. However, this time, Sumner delayed the surgery for a week past when it should have been
performed in order to properly brief Wall and his department and to transition work in progress
in anticipation of his upcoming absence.
As with the prior surgery, the March 2014 surgery resulted in amputation of the fifth
metatarsal bone. However, this surgery was more severe as Sumner developed an abnormally
high potassium level and kidney failure due to the one-week delay in surgery. When Sumner was
admitted to the hospital, surgery had to be delayed an additional four days due to the
29 U.S.C. § 2611(2)(A) defines “eligible employee” as one who has been employed “for at least 12 months
by the employer with respect to whom leave is requested under section 2612 of this title; and for at least
1,250 hours of service with such employer during the previous 12-month period.”
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29 U.S.C. § 2611(4)(A) defines an “employer” 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.”
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complications he had developed. Sumner was in the hospital from March 20, 2014 through
March 29, 2014, and subsequently returned to work on April 28, 2014 on a limited basis (20
hours for the first two weeks).
On April 29, 2014, Wall summoned Sumner to a meeting. During that meeting, Wall
presented Sumner with a Performance Improvement Plan (“PIP”). The PIP addressed multiple
areas of alleged performance deficiencies for which Sumner had not been previously counseled
or spoken to about. In the PIP, Wall accused Sumner of not communicating with her about his
medical leave and not providing adequate orientation for a new compensation analyst. Sumner
alleges that the PIP was in retaliation for him exercising his rights under the FMLA, both in
April 2012 and March 2014.
Sumner had previously received positive performance evaluations for each year of his
employment. Specifically, Sumner received ratings of “Successful” for review year 2008, 2009,
2010, and 2011, and received a rating of “Exceeds Expectations” for 2012. Sumner was not given
a performance evaluation in 2013–just the PIP.
On September 2, 2014, during a lunch meeting with Wall and the Director of Associate
Relations, Kim Burch, Sumner was presented with a memorandum informing him that his
position was being eliminated, effective October 3, 2014 due to an effort to “improve efficiency”
and “reduce costs.” There was no mention of performance issues in the memorandum. That was
Sumner’s last day of employment.
Sumner filed his three-count Complaint on January 21, 2015. Count One alleged
interference with rights granted by the FMLA; Count Two alleged retaliation in violation of the
FMLA; and Count Three alleged retaliation in violation of the Affordable Care Act. After
Defendants filed their original partial motion to dismiss, Plaintiff subsequently filed an
Amended Complaint on April 3, 2015, which eliminated Count Three of his original Complaint.
(ECF No. 21.) In his Amended Complaint, Plaintiff requests an award of compensatory damages,
plus demonstrated past and future pecuniary damages, liquidated damages, as well as costs and
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attorneys’ fees. Defendants then filed the present Motion on April 17, 2015. The issues have been
fully briefed, and are now ripe for review.
II.

LEGAL STANDARD
Rule 12 of the Federal Rules of Civil Procedure allows a defendant to raise a number of

defenses to a complaint at the pleading stage, including failure to state a claim. A motion to
dismiss for failure to state a claim upon which relief can be granted challenges the legal
sufficiency of a claim, rather than the facts supporting it. Fed. R. Civ. P. 12(b)(6); Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). A court ruling on a Rule 12(b)(6) motion must accept all of the factual
allegations in the complaint as true, see Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999); Warner v. Buck Creek Nursery, Inc., 149 F. Supp. 2d 246, 254–55 (W.D. Va. 2001),
in addition to any provable facts consistent with those allegations, Hishon v. King & Spalding,
467 U.S. 69, 73 (1984), and must view these facts in the light most favorable to the plaintiff,
Christopher v. Harbury, 536 U.S. 403, 406 (2002).
To survive a motion to dismiss, a complaint must contain factual allegations sufficient to
provide the defendant with “notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Rule 8(a)(2) requires the complaint to allege facts showing that the plaintiff’s claim is
plausible, and these “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 & n.3. In other words, the plaintiff’s complaint
must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked
assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted). The Court need not accept legal conclusions that are presented as factual
allegations, Twombly, 550 U.S. at 555, or “unwarranted inferences, unreasonable conclusions,
or arguments,” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
//
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III.

DISCUSSION

Defendants move the Court to dismiss Count I of the Amended Complaint (“Interference
with Rights Granted by the FMLA”) pursuant to Rule 12(b)(6). In Count I, Sumner alleges that
Defendants “interfered with [his] rights to take leave under the FMLA by placing him on a PIP
on the day after he returned to work, without him having received a sub-standard performance
review which was MWHC’s normal practice and procedure, and without ever having counseled
or otherwise reprimanded [him] on the alleged performance deficiencies contained in the
review.” (Am. Compl. ¶ 87). Sumner alleges that Defendants terminated him “because he
exercised his right to take medical leave consistent with MWHC’s policies, and consistent with
the FMLA.” (Id. at ¶ 91.)
“The FMLA prohibits employers from interfering with the ability of employees to
exercise their substantive (or ‘prescriptive’) rights under the FMLA.” Ainsworth v. Loudon Cnty.
Sch. Bd., 851 F. Supp. 2d 963, 975 (E.D. Va. 2012) (citing 29 U.S.C. § 2615(a)(1)). One such right
under the FMLA is an eligible employee is entitled to a total of 12 workweeks of leave during any
12-month period for, among other reasons, a serious health condition. 29 U.S.C. § 2612(a)(1)(D).
Upon returning from leave, any eligible employee must “be restored by the employer to the
position of employment held by the employee when the leave commenced,” 29 U.S.C.
§ 2614(a)(1)(A), or “be restored to an equivalent position with equivalent employment benefits,
pay, and other terms and conditions of employment,” 29 U.S.C. § 2614(a)(1)(B).
To state a claim for interference with FMLA rights, a plaintiff must plead that “(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.”
Ainsworth, 851 F. Supp. 2d at 975 (citations and internal quotation marks omitted).
Additionally, a plaintiff must show prejudice. Downs v. Winchester Med. Ctr., 21 F. Supp. 3d
615, 617 (W.D. Va. 2014) (citations omitted). Prejudice can be proven by showing that “an
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employee loses compensation or benefits by reason of the violation, sustains other monetary
losses as a direct result of the violation, or suffers some loss in employment status remediable
through appropriate equitable relief.” Reed v. Buckeye Fire Equip., 241 F. App’x 917, 924 (2007)
(internal citations and quotation marks omitted). Defendants take issue with the fifth element,
arguing that the Complaint “affirmatively alleges that Mr. Sumner asked for, received, and took
FMLA leave from his employment with Defendants on at least two separate occasions,” (Mem.
in Supp. of Mot. to Dismiss at 4), and also argue that Plaintiff failed to plead that he was
prejudiced by the alleged interference, (id. at 5–6).3
As an initial matter, no uncertainty exists that Sumner received his FMLA requested
leave and was reinstated after his return as required by the FMLA on two different occasions.
First, in October 2012 Sumner was absent from work for six weeks due to surgery on his right
foot. (Id. at ¶ 39.) He received a rating of “exceeds expectations” on his 2012 performance
evaluation. (Id. at ¶ 49.) Second, in mid-March 2014 Sumner took another six weeks’ leave for
surgery on his left foot. (Id. at ¶ 57.) “Sumner delayed the surgery for a week past when it should
have been performed in order to properly brief Ms. Wall and his department and to transition
work in progress in anticipation of his upcoming absence.” (Id.) He then returned to work on
April 28. (Id. at ¶ 60.)
However, Sumner argues that just because Defendants granted him the requested FMLA
leave and permitted him to return to work, Defendants still interfered with his FMLA rights.
Specifically, Sumner argues that Defendants interfered with his FMLA leave in three distinct
ways: (1) Defendants pressured Plaintiff to delay his FMLA leave by one week to complete
assignments that Defendants believed had to be done before his leave could be taken; (2)
Defendants expected and required Plaintiff to work while he was on FMLA leave; and (3) as

As a subsidiary issue, the Court finds that Sumner clearly pleaded the first four elements required to
state a claim of interference of rights under the FMLA. Sumner pled that he was an eligible employee,
(Am. Compl. at ¶ 4), Defendants were employers as defined under the FMLA, (id. at ¶¶ 5, 8), he was
entitled to take leave, (see id. at ¶¶ 39, 57), and he gave his employer notice of his intention take leave, (id.
at ¶¶ 40, 57). Therefore, these elements will not be addressed in this memorandum opinion.
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soon as Plaintiff returned from his FMLA leave, he was immediately placed on a PIP (and
subsequently terminated), which “chilled” his desire to take future FMLA leave. However, as
detailed below, each of Plaintiff’s arguments fails to establish a claim of interference.
As to Plaintiff’s first claim, Plaintiff is correct that “[i]nterfering with the exercise of an
employee’s rights would include, for example, not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b). However, Plaintiff
fails to plead that Defendants discouraged him from exercising his rights. Plaintiff’s Amended
Complaint states that “Wall expressed concern over the amount of work to be done, which was
the main factor in Mr. Sumner delaying his surgery by a week, at great cost to his own health.”
(Am. Compl. ¶ 69.) The Complaint additionally alleges that delaying his surgery allowed Plaintiff
“more time for projects Ms. Wall had assigned and which she indicated had to be completed.”
(Id. at ¶ 57.) However, these allegations fall far short of those complained of in the cases cited in
Plaintiff’s opposition brief. (See Opp’n Mem. at 9.) For example, in Bravo v. Union County
Board of Elections, No. 12-2848 (DRD), 2013 WL 2285780 (D.N.J. May 23, 2013), plaintiff
requested emergent FMLA leave. Id. at *9. However, her employer told her “it was not a good
time for her to go out on FMLA leave,” and her employer failed to provide plaintiff with FMLA
paperwork in a timely manner. Id. Based on these factors, the New Jersey district court denied
the employer’s motion for summary judgment on plaintiff’s interference claim. Id. Here,
although Plaintiff’s opposition attempts to assert that Plaintiff “felt pressured to delay his
surgery,” (Opp’n Mem. at 8), the Amended Complaint does not support such an assertion.
Rather, the Complaint alleges that Plaintiff “delayed the surgery for a week past when it should
have been performed in order to properly brief Ms. Wall and his department and to transition
work in progress in anticipation of his upcoming absence.” (Am. Compl. ¶ 57.) Therefore,
Plaintiff’s first claim must fail.
Next–Plaintiff’s claim that Defendants’ interfered with his FMLA rights by requiring him
to work while out on FMLA leave. “While the mere fact that an employer communicates with an
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employee during FMLA leave is not per se evidence of interference, calling [the employee] can
be probative of [interference] when the [employee] is asked to continue working.” Chauncey v.
Life Cycle Eng’g, Inc., No. 2:12-cv-968-DCN, 2013 WL 5468237, at *13 (D.S.C. Sept. 30, 2013)
(internal citations and quotation marks omitted). In other words, if the employer requires an
employee to perform work during FMLA leave, then generally the employer’s actions would
constitute interference. Id. In contrast, “fielding occasional calls about one’s job while on leave is
a professional courtesy that does not abrogate or interfere with the exercise of an employee’s
FMLA rights.” Id. (citation and internal quotation marks omitted).
In his Amended Complaint, Plaintiff alleges that during his FMLA absence, he
“attempted to join at lest [sic] one meeting by phone, and stayed in contact with his group,
answering questions by phone when needed.” (Am. Compl. ¶ 61.) Additionally, during his
hospital stay, “Sumner checked in with Ms. Holko [a new compensation analyst] . . . to insure
Ms. Wall received any information she needed.” (Id. at ¶ 72.) These allegations do not rise to the
level of interference. Nowhere in the Amended Complaint does Plaintiff allege that Defendants
required him to work during FMLA leave or that Defendants contacted him during his absence.
Instead, the Amended Complaint alleges that Plaintiff voluntarily checked in and stayed in
contact with his group members. The Complaint simply does not support Plaintiff’s allegation
that Defendants expected him to work while he was on FMLA leave. (See Opp’n Mem. at 9.)
Third, Plaintiff alleges that as soon as he returned from his FMLA leave, he was
immediately placed on a PIP (and subsequently terminated), which “chilled” his desire to take
future FMLA leave. (Opp’n Mem. at 11) (citing Fleck v. WILMAC Corp., No. 10-05562, 2011 WL
1899198 (E.D. Pa. May 19, 2011)). Plaintiff further alleges that “given the serious complications
arising from [the March 2014] surgery (namely kidney failure), it was more than probable that
Mr. Sumner would have [sic] need more FMLA leave to address his lingering health issues.”
(Id.) Although Fourth Circuit precedent relevant to Plaintiff’s third claim is non-existent, other
circuits have adopted a similar “chill theory” for FMLA interference claims. See Conoshenti v.
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Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004); Smith v. BellSouth
Telecomms., Inc., 273 F.3d 1303, 1313 (11th Cir. 2001); Bachelder v. Am. W. Airlines, Inc., 259
F.3d 1112, 1124 (9th Cir. 2001). However, these cases provide little guidance on what must be
pled in order to survive a motion to dismiss. Regardless, here Plaintiff’s Amended Complaint
fails to allege anything regarding “chilling” Plaintiff’s future FMLA requests. Nowhere in the
Amended Complaint does the word “chill” even appear.
Furthermore, 29 C.F.R. § 825.220(c) provides that “employers cannot use the taking of
FMLA leave as a negative factor in employment actions, such as hiring, promotions or
disciplinary actions,” or else employers may be held liable for FMLA interference. Although the
regulation speaks in terms of interference, courts including those within the Fourth Circuit have
held that this regulation instead “unambiguously speaks” in terms of retaliation. Downs, 21 F.
Supp. 3d at 617–18; see also Bullock v. Kraft Foods, Inc., No 3:11CV36-HEH, 2011 WL 5872898,
at *6 (E.D. Va. Nov. 22, 2011); Rountree v. City of Portsmouth, No. 2:11CV106, 2011 WL 5101761
(E.D. Va. Oct. 26, 2011).4 Therefore, Plaintiff’s claim here that he suffered discipline by being
placed on a PIP as the result of taking his FMLA leave will instead be considered under his
retaliation claim.5 For those reasons, the Court finds Plaintiff’s third claim unavailing.
Finally, “because [Sumner] has failed to allege that [he] was actually denied any FMLA
benefits, [Sumner] has failed to allege any prejudice related to FMLA interference.” Downs, 21
F. Supp. 3d at 619; see also 29 U.S.C. § 2617(a)(1)(A)(i) (prejudice exists where an employee
loses compensation or benefits “by reason of the violation” or “as a direct result of the
violation”).
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Defendants concur that at best the allegations asserted in the Amended Complaint allege retaliation, not
FMLA interference. (Mem. in Supp. of Mot. at 5.)
5
In Count II of his Amended Complaint, Plaintiff states that “MWHC and Ms. Wall retaliated against Mr.
Sumner by placing him on a PIP after he returned from taking medical leave under [sic] pursuant to
MWHC’s policy, and consistent with the FMLA.” (Am. Compl. ¶ 97.)
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IV.

CONCLUSION
For the foregoing reasons, the Motion is GRANTED and accordingly Count I of Plaintiff’s

Amended Complaint is hereby DISMISSED.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record.
An appropriate Order will issue.

______________________/s/_________________
James R. Spencer
Senior U. S. District Judge

ENTERED this _ _28th_ _ day of May 2015.

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