MARVIN J. GARBIS, District Judge.
The Court has before it Defendant's Motion to Dismiss
Plaintiff Randy L. Greene ("Plaintiff" or "Greene") was employed by YRC Inc. ("Defendant" or "YRC Freight") from 2002 until 2012. On October 26, 2012, YRC Freight terminated Greene's employment. On January 31, 2013, Plaintiff the instant lawsuit in the Circuit Court for Baltimore City, Maryland. On February 28, 2013, Defendant timely removed the case to federal court.
In the Amended Complaint [Document 16], Green presents claims in three counts:
By the instant motion, Defendant seeks dismissal of all claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6)
From 2002 until October 26, 2012, Plaintiff was employed by YRC Freight as a truck driver. In or around 2011, Plaintiff began receiving treatment for high blood pressure from his primary care physician Dr. Carl W. Brango.
When he arrived at work at Defendant's Baltimore Terminal on October 26, 2012, Plaintiff and his supervisor Gary Chapman ("Chapman") had a fifteen-minute discussion "about a pay shortage" that left Plaintiff "experience[ing] pain and pressure in the chest, stomach pains, severe stress and anxiety resulting, and shaking of the hands." Id. at 1-2. The "pressure" in Plaintiff's "chest, stomach pain, stress, and anxiety" did not abate as Plaintiff prepared his truck for an out-of-state delivery. Id. at 2.
Believing that these symptoms impaired his ability to make the long-distance delivery, Plaintiff asked a fellow employee to inform Chapman that he was experiencing chest pain, chest pressure, and anxiety that substantially impaired his ability to make the scheduled delivery and that he was going home to seek medical treatment. Roughly seven minutes after speaking with his fellow employee, Plaintiff telephoned Chapman directly:
Id.
Plaintiff was examined by Dr. Brango that day — October 26, 2012. Dr. Brango "determined that [Plaintiff's] blood pressure was elevated and recommended that the Plaintiff take one week off from work. Documentation from [Dr. Brango] was faxed over to Gary Chapman [that afternoon]."
[Document 8] at 2.
Chapman telephoned Plaintiff later in the afternoon on October 26, 2012. Chapman informed Plaintiff that "[his] leaving the premises" was being treated "as a voluntary quit." [Document 16] at 2. "Plaintiff understood this to mean that he was terminated and that he should not return to work." Id. Chapman neither discussed the note from Dr. Brango, nor requested additional documentation from Plaintiff. "After his termination Plaintiff requested appropriate FMLA forms from the Defendant to document his FMLA request," but Defendant refused to provide the forms. Id.
Under the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). It is "unlawful for any employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." Id. § 2615(a)(1).
Rodriguez v. Smithfield Packing Co., Inc., 545 F.Supp.2d 508, 516 (D.Md.2008); see also Sanders v. City of Newport, 657 F.3d 772 (9th Cir.2011); Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.2006).
Defendant contends that Plaintiff's Amended Complaint fails to allege adequately the eligibility, entitlement, and notice elements.
Defendant asserts that "Plaintiff's Complaint fails to include allegations that he was indeed eligible for the FMLA's protections." [Document 19-1] at 5. An "eligible employee" is an individual:
who has been employed —
29 U.S.C. § 2611(2)(A) (emphasis added). Thus, a plaintiff's complaint must allege both that the plaintiff worked for the employer for at least 12 months prior to the FMLA request and that in the 12 months prior to the request, the plaintiff worked for the employer for at least 1,250 hours. See Anusie-Howard v. Bd. of Educ. of Baltimore Cnty., No. WDQ-12-0199, 2012 WL 1964097, at *3 (D.Md. May 30, 2012).
The Amended Complaint states that Plaintiff was employed by YRC Freight from 2002 until his termination on October 26, 2012, thus satisfying the one-year element of the "eligible employee" standard. However, as to the 1,250-hour element, the Amended Complaint does not state explicitly that Plaintiff worked the requisite number of hours necessary to be an eligible employee. Because Plaintiff could simply allege that he met the hour requirement, the Court shall require an explicit statement to this effect in an amendment to the Complaint.
The Court will assume that Plaintiff will file a Supplement adequately alleging his eligible employee status and will address the other issues presented by the instant motion.
An eligible employee is entitled to FMLA leave in five circumstances. See 29 U.S.C § 2612(a)(1). Plaintiff has alleged facts sufficient to present a plausible claim that he was entitled to take FMLA leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." Id. § 2612(a)(1)(D).
"The term `serious health condition' means an illness, injury, impairment, or physical or mental condition that involves... continuing treatment by a health care provider." Id. § 2611(11)(B). More specifically:
29 C.F.R. § 825.115(a, c).
The Amended Complaint alleges that "[t]he chronic high blood pressure, severe chest pains, [and] severe anxiety experienced by the Plaintiff on October 26, 201[2] constituted serious health conditions."
Plaintiff has alleged that he experienced high blood pressure, chest pains, and anxiety. A determination of whether those symptoms qualify as a "serious health condition" or "chronic serious health condition" under the FMLA is inappropriate at the dismissal stage. Cf. Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1294-96, 1299 (11th Cir. 2006) (noting that there was a genuine issue of material fact as to whether plaintiff's anxiety constituted a chronic serious health condition, which precluded summary judgment on the issue). This Court has acknowledged that "it is questionable whether `high blood pressure' ... qualif[ies] as a `serious health condition' that ma[kes an individual] `unable to perform the functions' of his delivery position and thus eligible for FMLA leave." Mondonedo v. Frito-Lay, Inc., No. PJM 11-570, 2012 WL 1632834, at *4 (D.Md. May 8, 2012). However, other courts and quasi-judicial agencies have determined that the individual symptoms Plaintiff experienced on October 26, 2012 can qualify as a serious health condition under the FMLA. See, e.g., Oswalt v. Sara Lee Corp., 74 F.3d 91, 93 (5th Cir.1996) (High Blood Pressure — "The high blood pressure, however, did apparently involve continued treatment and therefore could be considered a `serious health condition.'"); Hayduk v. City of Johnstown, 580 F.Supp.2d 429, 466 (W.D.Pa.2008) (High Blood Pressure — "His high blood pressure certainly qualifies [as a chronic serious health condition]; he has been diagnosed since at least 2001, visits his cardiologist once or twice a year for follow[-]up evaluations, and takes prescription medications to control it."); Young v. U.S. Postal Serv., 79 M.S.P.R. 25 (M.S.P.B.1998) (Anxiety — "[T]he evidence shows that the appellant suffered from a serious health condition, i.e., depression and anxiety,...."). But see Boyce v. New York City Mission Soc., 963 F.Supp. 290, 299 (S.D.N.Y.1997) (Chest Pain — "Plaintiff's alleged condition of `shortness of breath and chest pains' ... qualifies as a minor health condition and not a `serious health condition' covered by the FMLA.").
Defendant contends that Plaintiff was not entitled to FMLA leave because he was not diagnosed with a functional impairment. However, "[t]here is no requirement in the [FMLA] that an employee
Plaintiff is not required to plead facts sufficient to prove his claim, but must only plead facts sufficient to present a plausible, rather than a merely conceivable, claim. See Monroe v. City of Charlotesville, Va., 579 F.3d 380, 385-86 (4th Cir. 2009) (summarizing 12(b)(6) standard). The Court finds it unreasonable to require Plaintiff to allege detailed facts as to every element required to establish that he had a serious health condition. Plaintiff has alleged that he experienced severe chest pains and anxiety on October 26, 2012, that he has been treated for high blood pressure for about two years, that he regularly takes blood pressure medication, that he visits Dr. Brango approximately every three months to monitor his condition, and that Dr. Brango determined his blood pressure was elevated on October 26, 2012 and recommended Plaintiff take one week off from work. Thus, the Court determines that Plaintiff has pled adequately that he had a serious health condition, as defined by the FMLA and its corresponding regulations, on October 26, 2012.
"An employee is mandated to provide notice to her employer when she requires FMLA leave." Rhoads v. F.D.I.C., 257 F.3d 373, 382 (4th Cir.2001); see also; 29 U.S.C. § 2612(e)(2); 29 C.F.R. §§ 825.302, 825.303. When an employee seeks to take FMLA leave due to a serious health condition, and the need for leave is foreseeable, the employee is required to:
29 U.S.C. § 2612(e)(2).
However, the FMLA regulations acknowledge that an employee's need for FMLA-qualifying leave may be unforeseeable.
"Case law and federal regulations make it clear ... that employees do not need to invoke the FMLA in order to benefit from its protections. The regulations do not require the employee to `expressly assert rights under the FMLA or even mention the FMLA....'"
After an employee provides the required notice in circumstances when the need for leave was unforeseeable, "[t]he employer will be expected to obtain any additional required information through informal means."
Defendant contends that dismissal is appropriate because Plaintiff did "not allege[] that he expressly asked Defendant for FMLA leave or otherwise communicated... an alleged history of chronic high blood pressure," but instead asked a coworker "to vaguely notify [Chapman]," subsequently made similar "vague remarks about his bodily aches" to [Chapman], and then "fax[ed] a vague doctor's note." [Document 19-1] at 8. Defendant relies heavily on Mondonedo v. Frito-Lay, Inc., a decision from this Court that granted summary judgment in favor of the employer on an FMLA interference claim. In that case, plaintiff Mondonedo called his supervisor "and informed her that he was not `feeling well'" and would not be coming to work. Mondonedo, 2012 WL 1632834, at *2 (emphasis added). He did not provide his employer with doctors' notes until six days after initially calling in sick, even though he visited the doctor twice during that period. In addition, the notes came from two different doctors and were conflicting — one called for "sick leave" from 01/09/2009 to 01/23/2009 and one stated "off work" from 01/12/2009 to 01/14/2009. Further, Mondonedo was not
The instant case does not present the situation addressed in Mondonedo. First, Plaintiff asked a fellow employee to inform his supervisor Chapman that he was experiencing chest pain, chest pressure, and anxiety that substantially impaired his ability to make a scheduled out-of-state delivery and that he was going home to seek medical treatment. Second, Plaintiff then telephoned Chapman and informed him that he:
[Document 16] at 2. Contrary to Defendant's contention, this qualifies as more than "vague remarks about [Plaintiff's] bodily aches." [Document 19-1] at 8. Third, after Plaintiff saw Dr. Brango on the afternoon of October 26, 2012, a note from Dr. Brango was faxed to Chapman that day. The note indicated that Plaintiff was "having health issues," was excused from work from October 26 to November 4, and that he should return to work on November 5 with no restrictions. [Document 8] at 2. That same afternoon, Chapman telephone Plaintiff and stated that his leaving the work site was being considered a voluntary quit.
Defendant contends that the note from Dr. Brango was insufficient to put Defendant on notice that Plaintiff had a serious health condition and needed FMLA leave. In support of its position, Defendant cites to Lackey v. Jackson County, an unreported case from the U.S. District Court for the Middle District of Tennessee. In Lackey, the court concluded that the doctors' notes provided by plaintiff Lackey were insufficient to put the defendant employer on notice of the need for FMLA leave because the notes gave excuses for only three days of absence from work, one of which Lackey was not scheduled to work, when Lackey actually missed at least eight additional days of work for which no notes were provided. No. 2:01-0058, 2003 U.S. Dist. LEXIS 25686, at *19-20, 50-51, 56-58 (M.D.Tenn. Jan. 3, 2003). The notes stated that Lackey was excused from work and that his "condition" caused his absence. The court determined that those notes, combined with the fact that whenever Lackey was absent from work his wife would inform his employer that he was "sick" and would be out of work for three or four days, were insufficient to apprise the employer of Lackey's need to take FMLA-qualifying leave. Id.
It is important to recognize that "[w]hen the need for FMLA is unforeseen, the Court's analysis of the adequacy of notice does not occur in a factual vacuum." Rodriguez, 545 F.Supp.2d at 516. In this case, while Plaintiff's note from Dr. Brango is by no means detailed, it is at least plausible that the note, combined with Plaintiff's notice to his colleague, and telephone conversation with his supervisor Chapman, were sufficient to put Defendant on notice that Plaintiff was requesting FMLA leave.
It is also plausible that Plaintiff's notice to Defendant triggered Defendant's obligations as an employer under the FMLA to obtain more information. However, Plaintiff was not given an opportunity to provide that information, as Defendant terminated
The Court finds that Plaintiff has alleged facts sufficient to present a plausible claim that Defendant had adequate notice of his intent to take FMLA leave.
Plaintiff alleges that Defendant interfered with his rights under the FMLA by terminating his employment after he requested FMLA leave. [Document 16] at 3. Defendant contends that it terminated Plaintiff's employment because he left the worksite without permission. Specifically, Defendant claims that Plaintiff received a letter of discharge on October 26, 2012 because he "le[ft] the worksite without first obtaining approval from management[, which] amounted to a voluntary quit and loss of seniority." [Document 19-1] at 3.
"[I]nterference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct." Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir.2006). Regarding termination of employment, "[a]n employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave." Arban v. W. Pub. Corp., 345 F.3d 390, 401 (6th Cir.2003).
Plaintiff does not contend that he was already on FMLA leave when he left the worksite on October 26, 2012. Instead, Plaintiff left work that day because he felt medically unable to drive a commercial vehicle and wanted to see a doctor. That same day, Defendant terminated Plaintiff's employment. Assuming the facts alleged by Plaintiff, it is plausible to conclude that Plaintiff would not have been terminated that day had he not left the work site to seek medical treatment.
Plaintiff alleges that Defendant unlawfully retaliated against him in violation of the FMLA by terminating his employment on October 26, 2012 "because he exercised, or attempted to exercise his rights under the [FMLA]." [Document 16] at 3.
The rights afforded to employees under the FMLA include protection from retaliation for exercising their rights under the FMLA. See Dotson v. Pfizer, Inc., 558 F.3d 284, 294 (4th Cir.2009). Although the FMLA does not contain an explicit prohibition against retaliation, the FMLA regulations state that the "prohibition against `interference' prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights." 29 C.F.R. § 825.220(c). Specifically, "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." Id. To succeed on an FMLA retaliation claim, a plaintiff must prove:
Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir.2006) (internal quotation marks omitted).
Plaintiff has pled adequately that he engaged in protected activity by attempting to take FMLA leave. Further,
In this case, the close temporal connection between Plaintiff's attempt to exercise FMLA rights and his termination — the same day, October 26, 2012 — satisfies the pleading standard for a causal connection between the protected activity and the adverse action.
42 U.S.C. § 1981 was originally enacted by Congress during the post-Civil War Reconstruction Era as part of the Civil Rights Act of 1886. It provides:
42 U.S.C. § 1981(a) (2006). Section 1981 explains that "`make and enforce contracts'" includes the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b).
In its Motion to Dismiss, Defendant incorrectly argues that Plaintiff must set forth a prima facie case of discrimination under § 1981 to survive dismissal. See [Document 19-1] at 11-12. However, the United States Supreme Court has noted that "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002),
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993); see also Jordan v. Alternative Res. Corp., 458 F.3d 332, 345 (4th Cir.2006) ("For a
Plaintiff is a 54-year-old Caucasian male, and Chapman is an African-American male. Chapman is the Terminal Manager at Defendant's Baltimore Terminal. According to the Amended Complaint, when Chapman was the Operations Manager at Defendant's Washington, DC Terminal, he "announced ... that he was going to make the DC YRC Terminal into an `all black terminal.'" [Document 16] at 4. Chapman has used Defendant's "disciplinary rules to terminate older Caucasian employees from YRC" since he became the Terminal Manager at Defendant's Baltimore Terminal in or around 2011. Id.
Chapman has engaged in "racially disparate treatment practices" on multiple occasions. Id. An African-American employee who allegedly stole another employee's paycheck and another African-American employee who allegedly stole YRC Freight property were neither disciplined, nor terminated. Chapman terminated an older Caucasian employee who "was charged with stealing a magazine and a pair of gloves at a Sheetz facility in North Carolina, while driving for [YRC Freight]," but who was not convicted, without asking the employee "to explain the event." Id. In addition, Plaintiff "complained to the Human Resources Department that Gary Chapman had stolen $300.00 from the Plaintiff, but he has not been disciplined for it." Id.
Since beginning as the Terminal Manager in Baltimore, Chapman has terminated at least eight "older Caucasian employees on, what are believed to be pre-textual reasons, usually related to illness or injury." Id. "The termination of the older Caucasian employees is out of proportion to the [termination] of African American employees." Id. Plaintiff alleges that he is also an "older Caucasian employee" who was subsequently removed "from the employment rolls of the Baltimore Terminal" after making a request for medical leave. Id. at 5.
Plaintiff alleges that his termination from YRC Freight was a violation of 42 U.S.C. § 1981 because Chapman terminated him "because of his Caucasian race." Id. Defendant contends that dismissal is appropriate because "Plaintiff's vague and conclusory assertions regarding the alleged treatment of African Americans as compared to Caucasian employees is not enough to prevent the dismissal of his Section 1981 claim." [Document 19-1] at 12.
Plaintiff alleges that Chapman used Plaintiff's FMLA leave request "as a convenient excuse to remove another older Caucasian employee from [Defendant's] employment," which amounted to discrimination on the basis of race in violation of § 1981. See [Document 16] at 5. In support of that claim, Plaintiff provides four examples of allegedly "racially disparate treatment practices employed by Gary Chapman." See id. at 4. Three of the four examples involve allegations of theft by YRC Freight employees. Plaintiff alleges that an African-American employee of Defendant who stole another employee's paycheck and another African-American employee
Plaintiff also supports his § 1981 claim by listing the names of eight "older Caucasian employees" who were purportedly fired "on, what are believed to be pre-textual reasons." Id. However, Plaintiff fails to provide any specific allegations regarding the termination of those individuals' employment, other than to state that the purported pretext was "usually related to illness or injury." Id.
"Legal inferences drawn from the facts, unwarranted inferences, unreasonable conclusions, or arguments are not part of the consideration" for whether a complaint will survive a motion to dismiss filed pursuant to Rule 12(b)(6). Dolgaleva v. Virginia Beach City Pub. Sch., 364 Fed. Appx. 820, 827 (4th Cir.2010). The factual allegations in the Amended Complaint, present no more than a possibility that Chapman violated § 1981. See Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) ("The plausibility standard requires a plaintiff to demonstrate more than `a sheer possibility that a defendant has acted unlawfully.'" (citation omitted)).
The Court concludes that Plaintiff has failed to plead a plausible race-based discrimination claim under § 1981.
The Court has determined that Plaintiff has not pled adequately his FMLA claims because he did not present a specific allegation establishing that he met the 1,250-hour requirement. It is doubtful that there will be a genuine issue as to this element. Moreover, Plaintiff has pled adequately the remaining elements of his FMLA claims. Therefore, the Court will defer dismissal of the claims in Counts One and Two to allow Plaintiff to file a Supplement to the Amended Complaint to add allegations relating to the 1,250-hour requirement.
The Court has determined that Plaintiff has failed to plead adequately a § 1981 claim. The Court will not now permit Plaintiff to file a Second Amended Complaint to restate the claim. However, assuming that Plaintiff files the requisite Supplement regarding his FMLA claims, he will be able to engage in discovery relating to the reasons why YRC Freight terminated his employment. This discovery may include discovery into alleged racial and/or age discrimination to refute YRC Freight's contention that there were valid reasons for the termination. Therefore, dismissal of Count Three will be without prejudice to a motion seeking to reassert the § 1981 claim should Plaintiff present an adequate evidentiary basis for such a claim.
For the foregoing reasons:
Further, the Motion to Dismiss does not state that Plaintiff failed to allege sufficiently the "denial" element. The Amended Complaint states that "Defendant refused to provide the [FMLA] forms" Plaintiff requested and that "[t]erminating the Plaintiff on October, 26, 2012 because he requested FMLA qualifying medical leave, constituted unlawful interference with Plaintiff's rights under the FMLA." [Document 16] at 2-3. Assuming that Plaintiff was entitled to FMLA leave, the Court finds that Plaintiff has pled adequately the "denial" element.
29 C.F.R. §§ 825.302(c) (foreseeable leave), 825.303(b) (unforeseeable leave).
