Scudder, Terri v. The Fall River Group, Inc.

Filing 17

ORDER denying 9 Defendant's Motion to Dismiss. Plaintiff's request for costs and fees is denied. Signed by District Judge Barbara B. Crabb on 7/19/13. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TERRI M. SCUDDER,
ORDER
Plaintiff,
13-cv-200-bbc
v.
THE FALL RIVER GROUP, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Terri Scudder had worked as a shipping and receiving clerk for defendant The
Fall River Group, Inc. for several years when defendant terminated her employment on October
22, 2012. Plaintiff contends that defendant violated the Family and Medical Leave Act, 29
U.S.C. § 2615, by interfering with her right to take FMLA leave and terminating her
employment in retaliation for asserting her rights under the FMLA. Now before the court is
defendant’s motion to dismiss plaintiff’s retaliation claim (claim 2) under Fed. R. Civ. P.
12(b)(6) and Fed. R. Civ. P. 8(a) on the grounds that plaintiff has failed to plead a claim for
retaliation under Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
I am denying the motion. To succeed on her FMLA retaliation claim, plaintiff must
prove that (1) she engaged in a protected activity under the FMLA; (2) that defendant took a
materially adverse action against her; and (3) that there is a causal connection between the two
events. Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 670 (7th Cir. 2011). Although

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defendant argues that plaintiff has not pleaded facts sufficient to show that she engaged in a
protected activity or that defendant terminated her because of her protected activity, I disagree.
In her complaint, plaintiff alleges that she notified defendant that she needed medical leave,
Cpt., dkt. #1, at ¶¶ 12, 17 (a statutorily protected activity), and that defendant fired her the
same day (a materially adverse action). Id. at ¶ 20. At this stage of the case, the allegations are
sufficient to permit an inference of causation between the two. Thus, plaintiff has adequately
pleaded a retaliation claim.
In her brief in opposition, plaintiff asks the court to grant her costs and fees incurred in
responding to defendant’s motion. She cites 29 U.S.C. § 2617(a)(3) as the basis for an award
of fees, but that provision authorizes fees when a plaintiff prevails in an FLMA case. Plaintiff
has succeeded in defeating defendant’s motion, but she has not prevailed on her FMLA claims.
Thus, she is not entitled to fees under that provision.

ORDER
IT IS ORDERED that defendant The Fall River Group, Inc.’s motion to dismiss plaintiff
Terri Scudder’s claim of retaliation under the Family and Medical Leave Act, dkt. #9, is
DENIED. Plaintiff’s request for costs and fees is DENIED.
Entered this 19th day of July, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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