Corbett v. Richmond Metropolitan Transportation Authority et al
Filing
13
MEMORANDUM OPINION. See for complete details. Signed by District Judge Henry E. Hudson on 08/25/2016. (nbrow)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MARIAN CORBETT,
Plaintiff,
Civil Action No. 3:16cv470-HEH
V.
RICHMOND METROPOLITAN
TRANSPORTATION AUHTORITY,
etai.
Defendants.
MEMORANDUM OPINION
(Motion to Dismiss)
Plaintiff Marian Corbett ("Plaintiff) brings suit against her former employer.
Defendant Richmond Metropolitan Transportation Authority ("RMTA"), and two former
coworkers, Defendants Angela Gray ("Gray") and Joi Dean ("Dean"). According to
Plaintiff, the RMTA, Gray, and Dean (collectively "Defendants") discriminated against
Plaintiff in violation of the Americans with Disabilities Act ("ADA"), impermissibly
interfered with Plaintiffs rights in violation of the Family and Medical Leave Act
("FMLA"), and retaliated against her in violation of the FMLA.
This matter comes before the Court on Defendants' Motion to Dismiss (ECF No.
5). Defendants seek dismissal, arguing that Plaintiff has failed to plead sufficient factual
material in support of her claims under the ADA and the FMLA. Further, Defendants
aver Plaintiff may not maintain suit against Gray or Dean in their individual capacities
under the FMLA. For the reasons set forth below, the Court will grant in part and deny in
part Defendants' Motion.' Each side has filed memoranda supporting their respective
positions.
1. BACKGROUND
As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court
assumes Plaintiffs well-pleaded allegations to be true, and views all facts in the light
most favorable to her. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385
F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th
Cir. 1993)). At this stage, the Court's analysis is both informed and constrained by the
four corners of Plaintiffs Complaint. Viewed through this lens, the facts are as follows.
In 2002, the RMTA hired Plaintiff as an administrative assistant to then-General
Manager Michael Berry ("Berry"). (Compl. ^11, ECF No. 1.) During her tenure,
Plaintiff received not only positive performance evaluations, but also performance
bonuses. {Id. H12.) According to Plaintiff, she enjoyed working for the RMTA and met
the RMTA's legitimate expectations for her performance. {Id.)
In 2008, Plaintiff was diagnosed with depression. {Id.
13.) She also suffered
from panic attacks and anxiety as a result of the depression. {Id.) Plaintiff took
prescriptions to keep her symptoms under control, but high levels of stress or emotional
trauma could exacerbate her symptoms. {Id.) Combined, these disorders substantially
' The Court does not address Defendants' argument that Plaintiffis not entitled to punitive
damages. Plaintiff stated in her memorandum opposing Defendants' Motion to Dismiss that the
Complaint contained a scrivener's error asking for punitive damages. (Pis.' Mem. Opp'n Mot.
Dismiss 12 n.l, ECF No. 8.) Accordingly, Plaintiff does "not seek[] punitive damages against
the RMTA under the ADA." {Id.)
affected her cognitive thinking and functioning, impaired her ability to interactwith
others, and interfered with her ability to sleep. (Jd.)
In 2012, Berry retired. The RMTA hired defendantAngela Gray as the new
General Manager, a position later retitled Chief Executive Officer. {Id. ^^114,17.)
Plaintiffpleads that she continued as administrative assistant and reported to Gray, just as
she had served under Berry. {Id.) In September 2013, the RMTA contracted with
defendant Joi Dean as a "peer-level coworker." {Id. ^ 15.) Also in September 2013,
another RMTA employee, Linda McElroy ("McElroy"), resigned. {Id. U16.) Gray
divided McElroy's job duties between Plaintiff and Dean. {Id.) McElroy's
responsibilities had included handing public relations matters and other functions related
to communications with the RMTA Board. {Id.)
Plaintiff and Gray developed a close working relationship after Gray was hired at
the RMTA. {Id. ^ 18.) In fact. Gray began asking Plaintiff to accompany her on social
outings unrelated to work. {Id.) This included furniture shopping, getting coffee, joining
her for lunch during the week and brunch on the weekends, as well as participating in a
Thanksgiving dinner at Keswick Hall near Charlottesville, Virginia. {Id.)
In addition to these social outings. Gray would often sit at Plaintiffs desk during
the day and discuss matters unrelated to work. {Id. H19.) Plaintiff eventually confided in
Gray that Plaintiff suffered from depression, anxiety, and a panic disorder, controlled
with a prescription for Prozac. {Id.)
These visits allegedly caused Plaintiff to fall behind in her work and made it
increasingly difficult to accomplish tasks. {Id. If 20.) According to Plaintiff, she
diplomatically attempted to inform Gray that her presence was distracting and
counterproductive. {Id.) Apparently, Gray "did not get the message." {Id.) Plaintiff
maintains that she became less productive and unable "to correct the cause of the problem
without alienating her superior." {Id.)
In May 2014, Plaintiff conferred with Sheryl Johnson ("Johnson") in Human
Resources regarding Gray's "constant presence" at Plaintiffs desk. {Id. H21.) Johnson
had worked as a Human Resources manager at the RMTA since approximately 2001, and
knew of Plaintiffs depression and related disorders. {Id.) Plaintiff informed Johnson
that Gray's socializing interfered with Plaintiffs work and that her inability to get Gray
to stop exacerbated her disabilities. {Id.) Plaintiff asked that Johnson keep their
conversation confidential, but sought her assistance in encouraging Gray to leave Plaintiff
alone so that she could perform her work. {Id.)
Despite Plaintiffs request to keep the complaint confidential, Johnson reported
Plaintiffs concerns to Gray. {Id. Tf 22.) As a result. Gray became more distant towards
Plaintiff. {Id. ^ 23.) According to Plaintiff, Gray also scrutinized Plaintiffs "every
move" and complained about Plaintiffs work. {Id.) Plaintiff contends that Gray did this
intentionally, knowing that such actions would aggravate Plaintiffs symptoms. {Id.)
Although Gray increased her scrutiny over Plaintiff, the RMTA paid Plaintiff a bonus in
June2014. {Id^lA)
In August 2014, Gray's actions caused Plaintiff to seek medical help from her
physician. {Id. H25.) Plaintiffs doctor suggested that Plaintiff take medical leave. {Id.)
Plaintiff requested—and the RMTA granted—^medical leave for Plaintiff under the
FMLA to address her depression and anxiety. {Id. ^ 27.) Plaintiff ultimately took four
weeks of approved FMLA leave. {Id. H28.)
Plaintiff returnedto work on September 15, 2014. {Id.) Plaintiff was informed by
Johnson that herjob duties and reporting requirements had changed during her absence.
{Id. ^ 29.) Specifically, Plaintiff would no longer report to Gray, but to Dean instead,
who had been promoted to Chief of Staff. {Id. H30.) Further, Plaintiff had been relieved
of her responsibilities related to communicating with the Board and fielding public
relations calls. {Id.) Additionally, Gray refused to speak to Plaintiff after she returned to
work, even though Gray had to walk past Plaintiffs desk to enter or exit the office. {Id. ^
31.) Plaintiff contends that Gray knew such behavior could aggravate Plaintiffs
depression, anxiety, and panic disorder. {Id.)
In the fall of 2014, Plaintiff was called into a meeting with Johnson and Dean. {Id.
1|33.) Dean accused Plaintiff of "making mistakes." {Id.) When asked for specifics
about those mistakes, neither Dean nor Johnson provided any details. {Id.) According to
Plaintiff, Dean and Johnson admitted that they had no documentation to substantiate the
claim that Plaintiff had been making mistakes. {Id.) Plaintiff maintains that these alleged
mistakes were "purely pretextual and were part of a plan by Defendants to bring about
[Plaintiff]'s termination." {Id. 1] 34.)
In January 2015, Plaintiff inadvertently sent a calendar event to members of the
Board with an incorrect date and time. {Id. H35.) Although she corrected her mistake,
she received a written warning. {Id.) According to Plaintiff, others had made similar
mistakes in the past but had neither been warned nor disciplined. {Id.) Plaintiff believes
that the written warning was created by Defendants as a false justificationfor Plaintiffs
eventual termination, ijd.)
That same month. Dean and Johnson met with Plaintiff and suggested that she take
early retirement, (/of. ^ 36.) Plaintiff declined to do so. (Jd.) On January 27, 2015,
Defendants gave Plaintiffa final written warning and suspended her for two days. {Id.)
Plaintiff claims this final written warning also served as a pretext for her dismissal. {Id.)
In March 2015, Plaintiff failed to put a telephone call through to Gray, believing
that Gray was already on a scheduled conference call. {Id. ^ 37.) On March 31,2015,
Plaintiff was terminated for her failure to do so. {Id.)
Plaintiffs Complaint contains three counts. Count I alleges violations of the
ADA. Plaintiff claims that Defendants violated the ADA by 1) discriminating against
Plaintiff in terminating her employment; 2) failing to provide Plaintiffwith a reasonable
accommodation; 3) failing to participate in the interactive process; and 4) retaliating
against Plaintiff. Count II maintains that Defendants unlawfully interfered with
Plaintiffs FMLA rights by relieving her of duties, changing her reporting structure, and
demoting her. Count III seeks redress for retaliation under the FMLA.
II. STANDARD OF REVIEW
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require^ only
'a short and plain statement of the claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41,47 (1957)). A complaint need not assert "detailed factual
allegations," but must contain"more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations
omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above
the speculative level," id. (citation omitted), to one that is "plausible on its face," id. at
570, rather than merely "conceivable." Id. In considering such a motion, a plaintiffs
well-pleaded allegations are taken as true and the complaint is viewed in the light most
favorable to the plaintiff T.G. Slater, 385 F.3d at 841 (citation omitted). Legal
conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662,678 (2009).
III. DISCUSSION
Defendants move to dismiss the ADA count and the FMLA counts. Each will be
discussed in turn.
a. ADA Claims
i. Discriminatory Termination
Defendants first argue that Plaintiff has failed to plead a plausible claim of
discriminatory termination under the ADA. (Defs.' Br. Supp. Mot. Dismiss ("Defs.'
Br.") 4-6, ECF No. 6.) To state an ADA discrimination claim, a plaintiff must show that
(1) she was a qualified individual; (2) was discharged; (3) was fulfilling the legitimate
expectations of her employer; and (4) the circumstances of the discharge raise a
reasonable inference of unlawful discrimination. Reynolds v. Am. Nat'I Red Cross, 701
F.3d 143, 150 (4th Cir. 2012). Defendants challenge the sufficiency of the factual
support for the third and fourth elements.
With respect to the third element, Plaintiff has adequately pleaded that she was
fulfilling the legitimate expectations of her employer. The Complaint alleges that during
her tenure at the RMTA, Plaintiff received not only positive reviews, but also
performance bonuses. (Compl. ^ 12.) This includes a bonus paid in June 2014. {Id. ^
24.) This June 2014 bonus came in the aftermath of Plaintiffs complaints about Gray to
Johnson—the conversation that apparently served as the genesis of the chain of events
that allegedly led to Plaintiffs termination. Viewed in the light most favorable to the
Plaintiff, such positive reviews and bonuses support a reasonable inference that Plaintiff
was meeting the legitimate expectations of her employer at the time of her termination.
Plaintiff has also alleged sufficient facts to make a plausible claim that the
circumstances of her discharge raise a reasonable inference of unlawful discrimination.
According to the Complaint, after Plaintiff discussed Gray's behavior with Johnson, Gray
subjected Plaintiffs performance to more strict scrutiny. (Compl. H23.) After Plaintiff
returned from FMLA leave. Dean and Johnson confronted her about the quality of her
work. However, the Complaint maintains that neither Dean nor Johnson could offer any
specifics. {Id. ^ 33.) Further, Plaintiff alleges she was chastised more harshly than others
for sending out an erroneous calendar invite to the Board. {Id. H35.) Arguably, such
disparate discipline is probative of pretext. See Dotson v. Pfizer, 558 F.3d 284, 297 (4th
Cir. 2009) (stating that firing one employee while declining to discipline others involved
in similar conduct could indicate that the firing was pretextual and a violation of the
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FMLA). Although not every workplace slight amounts to discrimination, Plaintiff, has
pleaded sufficient facts to warrant a reasonable inferenceof unlawful discrimination,
allowing her claim of discriminatory termination to survive at this stage of the
proceedings.
ii. Failure to Accommodate
The second strand of Plaintiff s ADA claim is her assertion that Defendants failed
to accommodate her disability. (Defs.' Br. 7-8.) To support a failure to accommodate
claim, a plaintiff must show that she was disabled, the employer had notice of the
disability, plaintiff could perform the essential functions of the job with a reasonable
accommodation, and the employer refused to provide such an accommodation.
Reyazuddin v. Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015). Defendants argue
that Plaintiffs complaint demonstrates that she was provided her requested
accommodation, specifically that Gray stop visiting her desk so frequently during the
work day. Plaintiff rejoins that Defendants failed to honor her accommodation request,
because according to the complaint, her conversation was revealed to Gray.
While Plaintiff wished to keep the conversation private, she offers no facts to
support her contention that such a request would have served as a reasonable
accommodation or that she could have satisfactorily performed the essential functions of
her job had the conversation been kept confidential. Plaintiff contends that Gray's
constant presence at her desk diverted her attention and caused her to fall behind on
work. However, Plaintiff concedes that Johnson took affirmative steps to alleviate the
distraction. Plaintiff has failed to plead a plausible claim of failure to accommodate.
iii. Failure to Engage in an Interactive Process
Next, Defendants challenge the sufficiency of the factual allegations supporting
plaintiffs claimthat Defendants did not participate in an interactive process, in
contravention of the ADA. (Defs.' Br. 8-10.) The interactive process typically requires
"that employers make a good-faith effort to seek accommodations." Williamson v. Bon
SecoursRichmond Health Sys., Inc., 34 F. Supp. 3d 607, 613 (E.D. Va. 2014) (quoting
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999)). Persistent refusal to
engage in discussions or take any remedial action could arguably constitute failure to
engage in the interactive process. See, e.g.,Jacobs v. N.C. Admin. Office ofthe Courts,
780 F.3d 562, 581-82 (4th Cir. 2015).
Even if all reasonable inferences are drawn in Plaintiffs favor, she has failed to
plead sufficient facts to raise a plausible claim that Defendants failed to engage in an
interactive process. Plaintiffherself identified and requested a specific accommodation
specifically that Gray stop visiting her desk duringthe work day. Johnson asked Gray to
do exactly that. Gray complied. The Complaint does not allege that Plaintiffrequested
any form of accommodation which was rejected out of hand by Defendants prior to her
termination. Accordingly, Plaintiff has failed to plead factual allegations showing that
Defendants did not make a good faith effort to seek an accommodation for Plaintiff. The
Court will dismiss that portion ofPlaintiffs Complaint pertaining to engagement in an
interactive process.
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iv. ADA Retaliation
Also, Defendants seek dismissal ofPlaintiffs ADA retaliation claim. (Defs.' Br.
9-10.) A prima facie showing of retaliationunder the ADA requires a plaintiff to show
that she engaged in a protected activity, that she suffered an adverse employment action,
and that a causal link between the two exists. Reynolds, 701 F.3d at 154. Defendants do
not dispute that Plaintiff has pleaded the first two elements, but rather challenge the
sufficiency of the Complaint on the causal link element. (Defs.' Br. 10.)
Here, the Complaint states that in the immediate aftermath of Plaintiff approaching
Johnson to request an accommodation, Plaintiff was subjected to increased scrutiny.
(Compl. ^ 23.) Plaintiff alleges that Gray knew of Plaintiffs disorders and intentionally
engaged in activity calculated to exacerbate Plaintiffs conditions. {Id.) Additionally,
after Plaintiff returned from her FMLA leave, Johnson and Dean called Plaintiff into a
meeting and accused her of "making mistakes." (Id. ^ 33.) According to Plaintiff,
neither individual substantiated those claims. {Id.) Plaintiff also recounts that simple
mistakes resulted in warnings and suspensions, culminating in Dean suggesting Plaintiff
take early retirement. {Id. UTI35-36.)
Affording all reasonable inferences to Plaintiff, as required under Rule 12(b)(6),
these events, beginning in the immediate aftermath of Plaintiffs meeting with Johnson to
request an accommodation, could be reasonably construed as a continuous chain of
events meant to punish Plaintiff for engaging in protected activity. Defendants'
contention that Plaintiffs mistakes alone led to her termination is irrelevant to the
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Court's analysis at this juncture. Therefore, while perhaps thin, Plaintiff has pleaded
sufficient facts to support a plausible ADA retaliation claim.
b. FMLA Claims
Counts II and III seek redress for violations of the FMLA. As a threshold issue.
Gray and Dean argue that they cannot be held liable under the FMLA in their individual
capacities. Alternatively, Defendants contend that Plaintiff has not pleaded sufficient
facts to state a claim for interference or retaliation in violation of the FMLA.
1. Individual FMLA Liability
As an initial matter, Defendants argue that the FMLA prohibits suits against Gray
and Dean in their individual capacities. (Defs.'Br, 12-15.) Specifically, Defendants
contend that while an individual may be sued if acting in the interests of her employer,
the structure of the statute suggests exclusion of public agencies. {Id. at 14.) The FMLA
states that the term employer:
(i) means 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;
(ii) includes—
(I) any person who acts, directly or indirectly, in the interest of an employer to
any of the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any "public agency", as defined in section 203(x) of this title; and
(iv) includes the Government Accountability Office and the Library of Congress.
29 U.S.C. §2611(4)(A).
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The circuits are split on the question of whether a public official may be sued in
his or her individual capacity under the FMLA. Three circuits hold that public officials
may be sued in their individual capacities, while only two hold to the contrary. Compare
Haybarger v. Lawrence Cty. Adult Prob. & Parole, 667 F.3d 408 (3d Cir. 2012) (holding
that public official may be sued in an individual capacity), Modica v. Taylor, 465 F.3d
174 (5th Cir. 2006) (same), and Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002) (same),
with Mitchell v. Chapman, 343 F.3d 811 (6th Cir. 2003) (rejecting the claim that a public
official may be sued in an individual capacity) and Wascura v. Carver, 169 F.3d 683
(11th Cir. 1999) (same). In the Fourth Circuit, "whether the FMLA imposes liability on
employee supervisors in their individual capacities is an open question." Jones v.
Sternheimer, 387 F. App'x 366, 368 (4th Cir. 2010) (unpublished).
While courts within the Fourth Circuit have not reached a consensus, this Court
has twice found that public officials may be sued in their individual capacities under the
FMLA. See Ainsworth v. Loudon Cty. Sch. Bd., 851 F. Supp. 2d 963, 974 (E.D. Va.
2012); Weth v. O'Leary, 796 F. Supp. 2d 766, 775-77 (E.D. Va. 2011). While not
binding, the Court finds these decisions informative and acknowledges that it is prudent
to "avoid issuing conflicting orders." Feller v. Brock, 802 F.2d 722, 728 (4th Cir. 1986).
For the reasons stated below, the Court joins the majority and holds that the FMLA
allows for suits against public officials in their individual capacity.
The Court first looks to the text of the statute for its plain meaning. See Ramey v.
Dir., Workers' Comp. Program, 326 F.3d 474,476 (4th Cir. 2003). The text of the
statute states that an employer includes "any 'public agency.'" 29 U.S.C. §
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261 l(4)(A)(iii). It also explicitly includes "any person who acts, directly or indirectly, in
the interest of an employer." 29 U.S.C. § 261 l(4)(A)(ii)(I). The most straightforward
reading ofthe text of Section 2611(4)(A) compels the conclusion that the individual
liability provision and public agency provision should be read in tandem, allowing
individual liability for public officials.
Defendants contend that the structure of the FMLA statute precludes individual
liability for public officials. (Defs.' Br. 14.) They maintainthat Congress did not intend
for individual liability to extend to public officials as evidenced by the public agency
provision being located in a separate clause after the individual liability provision. {Id.)
Only a minority of courts agree with this construction, see, e.g., Mitchell, 343 F.3d 811,
829-33, and this Court finds it unconvincing. Subsections (i) through (iv) all modify the
term "employer." The use of the word "and" at the end of subsection (iii) indicates that
all four subsections are intended to be read inclusively. Ainsworth, 851 F. Supp. 2d at
973; Weth, 796 F. Supp. 2d at 111. Therefore, based on the plain language of the FMLA,
this Court finds that Plaintiff may sue Gray and Dean in their individual capacities,
ii. Interference
Turning to the substance of Count II, Defendants contend that Plaintiff has failed
to state an actionable claim that Defendants unlawfully interfered with Plaintiffs FMLA
rights by demoting her upon return from her leave of absence. (Defs.' Br. 16-17.) To
state a claim for FMLA interference, a plaintiff must show that (1) she was an eligible
employee; (2) the defendant was an FMLA-defined employer; (3) plaintiff was entitled to
leave under the statute; (4) plaintiff gave notice to the employer that she would take
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FMLA leave; and (5) the employer denied the plaintiff her FMLA benefits. Ainsworth,
851 F. Supp. 2d at 975. Defendants move to dismiss on the basis that Plaintiffhas failed
to plead sufficient facts to satisfy the fifth element. (Defs.' Br. 16-17.)
The FMLA provides that an employee must be restored upon return firom leave "to
either the same position that she held before her leave or an equivalent one." Laing v.
Fed. Exp. Corp., 703 F3d 713, 723 (4th Cir. 2013). However, "the FMLA provides no
absolute right to restoration to a prior employment position." Yashenko v. Harrah's NC
Casino Co., 446 F.3d 541, 549 (4th Cir. 2006). Under federal regulations, an equivalent
position is one that is "virtually identical to the employee's former position in terms of
pay, benefits and working conditions, including privileges, prerequisites and status." 29
C.F.R. § 825.215(a). While an equivalent position "must involve the same or
substantially similar duties and responsibilities," Id., this requirement "does not extend to
de minimis, intangible, or unmeasurable aspects of the job." 29 C.F.R. § 825.215(f).
The Fourth Circuit has been consistently clear that small changes in an employee's
duties upon return from leave do not violate the FMLA. In Montgomery v. Maryland,
the Fourth Circuit affirmed the district court's dismissal of an FMLA interference claim
at the Rule 12(b)(6) stage. Montgomery v. Maryland, 266 F.3d 334, 341-42 (4th
Cir.2001), vacated on other ground, 535 U.S. 1075 (2002); see Montgomery v. Maryland,
72 F. App'x 17, 19-20 (4th Cir.2003) (reaffirming reasoning and holding on FMLA
interference claim). The plaintiff in that case was an "administrative aide" before her
FMLA leave and returned to the position of "secretary" in another department. 226 F.3d
at 336. The court held that this was merely a de minimis change in position despite her
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allegation that her previous duties were "truly administrative" while her new position
involved only "the simplest, most menial of clerical functions." Id. at 341; 72 F. App'x
at 20. The Fourth Circuit is not unique in this application of the FMLA; other circuits
apply the same reasoning. See, e.g., Brands v. First Transit, Inc., 278 F. App'x722, 725
(9th Cir. 2008) (finding no FMLA interference where bus driver returned to a different
bus route); Smith v. E. Baton Rouge Par. Sch. Bd., 453 F.3d 650, 652 (5th Cir. 2006)
(finding no FMLA interference where plaintiffs new position still involved accounting
but no longerrequired travel to various schools); Mitchell v. Dutchmen Mfg., Inc., 389
F.3d 746, 749 (7th Cir. 2004) (finding no FMLA interference where plaintiff continued to
work in the same manufacturing department but now had to use small hand tools that
were previously unnecessary).
Here, Plaintiff claims that after she returned from FMLA leave, she no longer
reported to Gray, but to Dean. (Compl. ^ 30.) Additionally, Plaintiffno longer was
responsible for communicating with the Board and handling public relations calls. {Id.)
Even taking Plaintiffs allegations as true and viewing them in the light most favorable to
her. Plaintiffhas failed to plead a plausible claim of FMLA interference. Plaintiffhas
proffered no facts to indicate that her pay, benefits, or working conditions changed in any
way upon her return from FMLA leave. Her position after her FMLA leave was
substantially similar to her prior position. All of the changes that Plaintiff alleges fall
squarely into the de minimis category and do not constitute FLMA interference. See
Csicsmann v. Sallada, 211 F. App'x 163, 166 (4th Cir. 2006) (finding no FMLA violation
where plaintiffs salary, title, bonus eligibility, health care, and retirement benefits
16
remained unchanged). Accordingly, the Court will dismiss Plaintiffs FMLA interference
claim.
iii. FMLA Retaliation
Lastly, Plaintiffcontends in Count III that Defendants retaliated against her for
taking protected leave, in violation of the FMLA. (Compl. ^^158-65.) Like the ADA,
the FMLA prohibits retaliation against employees for engaging in protected activity. To
state a claim for retaliation under the FMLA, a plaintiff must show that she engaged in
protected activity and suffered an adverse employment action that was casually linked to
the protected activity. Yashenko, 446 F.3d at 55L As they did with the ADA retaliation
claim. Defendants argue Plaintiffhas failed to plead sufficient facts linking her protected
activity with adverse employment action. (Defs.' Br. 17-18.)
Here, Plaintiff pleads that Defendants accused Plaintiff of making unspecific and
unsupported mistakes. (Compl. H33.) This came shortly after Plaintiffreturned from
FMLA leave to an allegedly reduced role in the office. {Id.
28, 30.) Plaintiff concedes
that she made some minor mistakes, but maintains that they resulted in unwarranted
disciplinary action. (Jd. Tf 35.) Viewed in the light most favorable to the Plaintiff, it is
plausible that Defendants' alleged action was a retaliatory response to Plaintiffs
protected activity. Thus, Defendants' motion to dismiss Plaintiffs FMLA retaliation
claim will be denied at this stage.
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IV. CONCLUSION
Based on the foregoing, Defendants' Motion to Dismiss will be granted as to the
ADA failure to accommodate claim; the ADA failure to engage in an interactive process
claim; and the FMLA interference claim.
Defendants' Motion to Dismiss will be denied as to the ADA discrimination
claim; the ADA retaliation claim; and the FMLA retaliation claim.
An appropriate Order will accompany this Memorandum Opinion.
/s/
Henry E. Hudson
United States District Judge
Date: /Io^ZS12o/4
Richmond, Virginia
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