Opinion
No. 5:17-CV-609-BR
07-27-2018
FLECHERLENE MCNEILL Plaintiff, v. FAYETTEVILLE STATE UNIVERSITIY, Defendant.
MEMORANDUM & RECOMMENDATION
This case is before the court on Defendant's motion to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) [DE #11]. Plaintiff has responded [DE #13], and Defendant has replied [DE #14]. Where this matter has been referred to the undersigned and the parties have not consented to the jurisdiction of the magistrate judge, Defendant's motion is undertaken pursuant to 28 U.S.C. § 636(b)(1)(B) for memorandum and recommendation. For the reasons stated below, it is recommended that Defendant's motion to dismiss be granted as to Plaintiff's claim for punitive damages and otherwise denied.
BACKGROUND
Plaintiff brought this action pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (ADA), and the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA), alleging Defendant wrongfully discharged her because of her disabilities, Defendant unlawfully interfered with her use of FMLA benefits, and Defendant retaliated against her for taking FMLA leave. Defendant has moved to dismiss each of Plaintiff's claims pursuant to Rule 12(b)(6). Defendant has also moved to dismiss Plaintiff's request for punitive damages. The facts below are presented in the light most favorable to Plaintiff. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
Plaintiff began working for Defendant in November 2005, and transitioned to a Cashier Supervisor position in April 2009. (Compl. [DE #1] ¶¶ 6-7.) Part of Plaintiff's duties in this supervisory position entailed responsibility for the Imprest Change Fund ("change fund"), which is a cash currency fund maintained for the purpose of providing change at university functions such as sporting events and theater performances. (Id. ¶¶ 24-25.) This fund must be deposited at the end of each fiscal year, which is June 30. (Id. ¶¶ 24.) Since Plaintiff began work as a Cashier Supervisor in April 2009, Defendant's policy has been to deposit the change fund only after the last event occurring before the end of the fiscal year. (Id. ¶ 26.) For example, if there was a university sporting even scheduled for June 25, Plaintiff would wait until after that event to deposit the change fund. Plaintiff followed this policy since she began the job, and, to Plaintiff's knowledge, her predecessor in the Cashier Supervisor position also followed the policy. (Id. ¶ 27.)
Plaintiff suffers from short-term memory problems caused by a stroke, severe anxiety, and Post-Traumatic Stress Disorder (PTSD). (Compl. ¶ 8.) Plaintiff's supervisor, Cynthia Jones (Jones), was at least aware of Plaintiff's memory-related disability because she made snide comments about it in front of other employees. (Id. ¶ 9.) In November 2013, Plaintiff sought and was approved for FMLA leave to care for her mother who had been recently released from the hospital. (Id. ¶¶ 10-11.) Jones verbally expressed displeasure over this leave request, both before and after Plaintiff took leave. (Id. ¶ 11-12.) When Jones started an argument with Plaintiff upon her return from this initial FMLA leave period, Plaintiff reported it to management on a higher level, who in turned advised Plaintiff to report the incident to Human Resources. (Id. ¶ 14.) A Human Resources employee referred Plaintiff to a therapist, who in turn recommended that Plaintiff take FMLA leave from March 2014 through June 2014 due to Plaintiff's anxiety and PTSD. (Id. ¶ 15.) Upon Plaintiff's return from this FMLA leave period, Jones again made snide comments about Plaintiff's disabilities. (Id. ¶ 16.)
In November 2014, Plaintiff's mother died, and Plaintiff requested and was approved for FMLA leave to address this. (Compl. ¶ 17.) Jones acted with hostility towards this FMLA leave as well. (Id.)
In May and June 2016, after a referral from her primary doctor, Plaintiff sought medical treatment from a psychiatrist, who recommended Plaintiff take FMLA leave from June 14, 2016, through August 1, 2016. (Compl. ¶¶ 19-21.) Plaintiff requested and was approved for FMLA leave for this period. (Id. ¶ 22.) Plaintiff also requested and was approved to use personal vacation leave for June 9, 2016, through June 13, 2016. (Id. ¶ 23.) Because there was a university sporting event scheduled during Plaintiff's approved FMLA leave period and before the end of the fiscal year on June 30, 2016, Plaintiff did not deposit the change fund before taking leave. (Id. ¶ 28.) In preparation for her leave, Plaintiff gave Jones the alarm code and keys needed to access the change fund in the university's vault. (Id. ¶ 29.) Another of Defendant's employees, a cashier named Katrina Hoffman (Hoffman), was trained to perform Plaintiff's duties during Plaintiff's leave period. (Id. ¶ 30.) Before Plaintiff took her approved leave, she instructed Hoffman to put the cash drawer that held the change fund in the vault over the weekend of June 11-12, 2016, and to remove the drawer containing the change fund on June 13, 2016. (Id.)
On June 14, 2016, Jones telephoned Plaintiff to inquire about Plaintiff's absence. (Compl. ¶ 32.) When Plaintiff advised Jones that she was away on approved FMLA leave, Jones became angry. (Id.) Jones was not supposed to call Plaintiff while on leave because Jones was identified as one of Plaintiff's primary stressors. (Id. ¶ 31.)
On June 28, 2016, Jones again telephoned Plaintiff to inform her that the change fund was missing from the vault and that a locksmith had to be called to access the vault. (Compl. ¶¶ 33-35.) Plaintiff telephoned Defendant's Human Resources department the following day to inquire about Jones calling her while she was on approved leave. (Id. ¶ 36.) Human Resources suggested Plaintiff file a grievance, but Plaintiff did not file a grievance because she believed this would make the situation worse. (Id.¶ 37.)
On June 30, 2016, a police detective from Defendant's university police force telephoned Plaintiff to arrange a meeting for purposes of investigating the missing change fund. (Compl. ¶ 38.) Plaintiff met with this detective briefly on July 5, 2016, and again on July 13, 2016. (Id. ¶¶ 40, 42.) The detective, who may have been in an amorous relationship with Hoffman (Hoffman would subsequently be promoted to Plaintiff's Cashier Supervisor job), accused Plaintiff of stealing the change fund. (Id. ¶¶ 39, 43-44, 52.)
As a result of Jones' telephone calls and the police investigation in June 2016, Plaintiff's stress increased and her psychiatrist recommended that her leave be extended until August 29, 2016. (Compl. ¶ 46.) Plaintiff submitted the FMLA leave request to Human Resources, and also requested shared leave. (Id. ¶ 47.) Jones denied the shared leave request, despite Defendant's policy, as reflected on its internal website, stating that only Human Resources can deny shared leave requests. (Id. ¶¶ 48-49.)
Jones and a Human Resources representative next advised Plaintiff that she was placed on investigatory leave. (Compl. ¶ 51.)
Plaintiff was then summoned by Defendant's Human Resources department to a pre-disciplinary meeting scheduled for August 24, 2016. (Compl. ¶¶ 53-54.) During this meeting, the embezzlement accusation and the missing money from the change fund were not discussed. (Id. ¶ 54.) Plaintiff was advised, however, that she was being terminated for failing to follow proper procedure by not depositing the change fund before she took leave. (Id. ¶¶ 55, 57.) Plaintiff explained that she did not deposit the change fund before she took her approved leave because of the policy not to deposit the change fund until after the last event of the fiscal year. (Id. ¶ 56.)
Plaintiff then filed a complaint with the Equal Employment Opportunity Commission (EEOC) and received a right-to-sue letter on September 18, 2017. (Compl. ¶ 58.)
DISCUSSION
I. Rule 12(b)(6) Standard
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint or any claims contained therein that fail to state a claim upon which relief may be granted. The intent of Rule 12(b)(6) is to test the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (all reasonable inferences drawn in favor of plaintiff). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
In order to survive a 12(b)(6) motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 544 (2007). A complaint need not contain detailed factual allegations, but it must give a defendant fair notice of what the claim is and the grounds upon which it rests. Id. at 555. A "formulaic recitation of the elements of a cause of action will not do." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations," which are sufficient to raise a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Facial plausibility is more than "a sheer possibility that a defendant has acted unlawfully." Id. at 678. It requires the plaintiff to articulate facts "that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In the employment discrimination context, a plaintiff is not required to plead a prima facie case of discrimination to survive a 12(b)(6) motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (explaining Iqbal, Twombly, and Swierkiewicz).
II. Analysis
A. Americans with Disabilities Act - Wrongful Discharge
Plaintiff has alleged Defendant discriminated against her by wrongfully discharging her because of her disabilities. (Compl. at 8.) To survive the 12(b)(6) motion on her ADA claim, Plaintiff must plead facts plausibly demonstrating that (i) she was a qualified individual with a disability, (ii) she was discharged, (iii) she was meeting Defendant's legitimate expectations at the time of discharge, and (iv) the circumstances of her discharge raise a reasonable inference of unlawful discrimination. See Reynolds v. American Nat'l Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (elements of ADA claim necessary to survive summary judgment motion); Feldman v. Law Enforcement Assocs. Corp., 779 F. Supp. 2d 472, 481 (E.D.N.C. 2011) (Britt, J.) (applying ADA wrongful discharge elements at 12(b)(6) stage); Calloway v. Durham Cnty. Pub. Sch. Bd. of Educ., No. 1:15-CV-187-WO, 2016 WL 634878, at *10 (M.D.N.C. Feb. 17, 2016) (same).
Defendant raises three arguments to support its motion to dismiss Plaintiff's ADA claim: (1) Plaintiff conceded the reason for her termination was misconduct; (2) Plaintiff failed to allege her disabilities limit one or more major life activities; and (3) Plaintiff failed to allege any facts supporting "the legal conclusion that she was fulfilling [Defendant]'s legitimate expectations at the time of discharge." (Def.'s Mem. Supp Mot. Dismiss [DE #12] at 5). The undersigned rejects Defendant's arguments for the following reasons.
Plaintiff has pleaded facts that, if true, would support a reasonable inference that the reason for her termination was not misconduct but was instead related to Jones' animus towards her disabilities. Defendant's contention that Plaintiff has conceded the reason for her termination was unrelated to her disability is belied by the totality of Plaintiff's factual allegations and her filing of an EEOC complaint before initiating this lawsuit. Plaintiff's assertion in Paragraph 57 of her complaint, upon which Defendant relies (Def.'s Mem. Supp. Mot. Dismiss at 5), reasonably appears to be a description of the reason Defendant provided to Plaintiff to justify its termination of her. Indeed, in the immediately preceding paragraph, Plaintiff alleges facts showing that she did not engage in misconduct regarding the change fund but was, contrary to Defendant's assertions, following policy that had been in effect for at least nine years. (Compl. ¶ 56.) Moreover, Plaintiff has alleged facts showing that her supervisor was publicly hostile towards Plaintiff's disabilities. (Id. ¶¶ 9, 16.) Thus, Defendant's argument that Plaintiff conceded in her Complaint the reason for her termination was unrelated to her disabilities should be rejected.
Defendant next attacks the Complaint for failing to allege that Plaintiff's disabilities limit one or more major life activities. Plaintiff has alleged that she has "severe anxiety," PTSD, and memory loss caused by a stroke. (Compl. ¶ 8.) She has also alleged the need to seek psychiatric treatment. (Id. ¶ 20.) Plaintiff also alleged that Defendant itself approved, on more than one occasion, FMLA leave related to these very disabilities. Plaintiff has even alleged that Defendant's Human Resources initially referred Plaintiff to a therapist, which resulted in Plaintiff's first FMLA leave period related to her anxiety and PTSD. (Id. ¶ 15.) PTSD is explicitly identified in EEOC regulations as an example of a qualified disability. 29 C.F.R. § 1630.2(j)(3)(iii); see also Feldman, 779 F. Supp. 2d at 484 (consulting proposed regulations to determine whether plaintiff pleaded a qualified disability so as to survive a 12(b)(6) motion). A reasonable inference can be drawn that severe anxiety and PTSD which require psychiatric treatment, in addition to short-term memory deficiencies caused by a stroke, could affect major life activities such as work. Thus, given the early stage of the lawsuit, the undersigned rejects Defendant's argument. See Feldman, 779 F. Supp. 2d at 485.
Finally, Defendant argues Plaintiff failed to allege she was meeting legitimate job expectations at the time she was terminated. While it is true Plaintiff did not explicitly state that she was meeting her employer's expectations, she did allege that she had been employed by Defendant for eleven years, transitioned to a supervisory position four years after her initial appointment, and held that position until her termination. Moreover, Plaintiff has alleged that the only reason provided by Defendant to justify her termination pertains to an isolated incident regarding the change fund and that this reason was pretextual. Indeed, Plaintiff's complaint indicates that she was following proper procedure as to the change fund. Thus, it can reasonably be inferred that Plaintiff was meeting job expectations up to the point she was terminated, setting aside the factual dispute regarding the change fund incident. See Calloway, 2016 WL 634878, at *8 (finding plaintiff sufficiently pleaded satisfactory job performance for purposes of 12(b)(6) motion by indicating no repeated pattern of negative behavior and focusing on an isolated and disputed incident as the basis for termination).
In sum, Plaintiff has put Defendant on fair notice of her ADA claim and pleaded sufficient facts to satisfy Swierkiewicz, Twombly, and Iqbal. The undersigned, therefore, recommends that Defendant's motion to dismiss the ADA claim be denied.
B. Family Medical Leave Act - Interference
It is unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise" any FMLA rights. 29 U.S.C. § 2615(a)(1). FMLA interference claims require a plaintiff to show that (i) she is entitled to an FMLA benefit, (ii) her employer interfered with an FMLA benefit, and (iii) that interference caused harm. Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). While interference in this context can be shown by proof that an employer denied FMLA leave, it can also be shown by proof than an employer discouraged an employee from using FMLA leave. Id. (citing 29 C.F.R. § 825.220(b)). The required showing of harm or prejudice can also be satisfied if an employee provides evidence that she would have structured her leave differently absent the interference. See Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 302 (4th Cir. 2016) (plaintiff met prejudice showing in FMLA right-to-notice-of-reinstatement context where plaintiff offered evidence that "he would have structured his leave differently").
Defendant argues Plaintiff failed to allege she was harmed by the alleged interference with her FMLA benefits and that, more generally, Plaintiff has offered mere threadbare recitals of elements rather than sufficient facts from which it could reasonably be inferred that Defendant interfered with Plaintiff's FMLA rights. (Def.'s Mem. Supp. Mot. Dismiss at 9-10.) The undersigned rejects these arguments for the following reasons.
First, Plaintiff alleged that Jones verbally expressed her displeasure (and sometimes, anger) with Plaintiff's use of FMLA leave on more than one occasion. (Compl. ¶¶ 12, 13, 17, 32.) Such displeasure from a supervisor could reasonably discourage an employee from taking FMLA leave.
Second, Plaintiff alleged that Jones telephoned her while she was on approved FMLA leave on June 14, 2016, to inquire about Plaintiff's whereabouts, despite Plaintiff providing Jones with the change fund vault's alarm code and keys a few days earlier because she would be out on leave and despite Defendant approving the leave. (Compl. ¶¶ 22, 23, 29, 32.) It could reasonably be inferred from Jones' actions, which simply do not make sense given that Plaintiff had previously informed Jones about her approved FMLA leave, that Jones was again displeased, if not hostile, towards Plaintiff's use of FMLA leave. Such displeasure from a supervisor could reasonably discourage an employee from taking FMLA leave, and, as a consequence, cause an employee to structure her leave differently.
Third, Jones called Plaintiff on June 28, 2016, while Plaintiff was still on approved FMLA leave and informed Plaintiff that the change fund was missing and that a locksmith had to be called to access the vault. (Compl. ¶¶ 33, 34, 35.) It is not speculative to infer that the nature of this telephone call was accusatory. Moreover, only two days later a university police detective contacted Plaintiff to investigate her as a suspect in the change fund's disappearance. It is not speculative to infer that Jones contacted the police and identified Plaintiff as a potential suspect. An accusatory phone call from Jones, followed only two days' later by a police investigation regarding the same accusation, could reasonably convey to Plaintiff that Jones was displeased, if not angry, about her use of FMLA leave. Such an inference is even more reasonable when considered in context with Plaintiff's foregoing allegations about Jones' displeasure with her use of FMLA leave.
Fourth, Plaintiff alleged that her psychiatrist extended her FMLA leave by approximately two weeks because of the stress caused by being accused of stealing the change fund and investigated by police. (Compl. ¶ 46.) Thus, Plaintiff has alleged she had to use more FMLA leave because of Jones' animus.
Fifth, Plaintiff alleged that Jones denied her shared leave request in violation of policy stated on Defendant's internal website. (Compl. ¶¶ 47-49.) It is reasonable to infer that Jones was hostile towards Plaintiff's shared leave request and, in turn, that Plaintiff would be discouraged from requesting such leave. While not specifically pertaining to FMLA leave, this allegation bolsters Plaintiff's other allegations that Jones was hostile towards her use of leave in general.
These factual allegations are not threadbare and provide a sufficient basis from which to reasonably infer that Jones was hostile towards Plaintiff's use of FMLA leave, that Jones made that hostility clear to Plaintiff, and that Plaintiff was therefore discouraged from taking FMLA leave. See Adams, 789 F.3d at 427. Moreover, that Plaintiff requested additional leave because of stress brought on by Jones' conduct during the last leave period provides a basis for reasonably inferring that Plaintiff would have structured her leave differently absent Jones' interference. See Vannoy, 827 F.3d at 302. Thus, the undersigned recommends that the motion to dismiss the FMLA interference claim be denied.
C. Family Medical Leave Act - Retaliation
It is also unlawful for an employer to retaliate against an employee for exercising FMLA rights by, among other things, discharging that employee. See Adams, 789 F.3d at 429 (citing 29 U.S.C. § 2615(a)(2) and 29 C.F.R. § 825.220(c)). FMLA retaliation claims based on indirect proof of discrimination are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Vannoy, 827 F.3d at 304; Adams, 789 F.3d at 429. A prima facie FMLA retaliation case requires a plaintiff to show that (i) she engaged in protected activity, (ii) her employer took an adverse action against her, and (iii) the adverse action was causally connected to the protected activity. Vannoy, 827 F.3d at 304 (quoting Yashenko v. Harrah's NC Casino Co, LLC, 446 F.3d 541, 551 (4th Cir. 2006)). Then, the employer can rebut the prima facie case by offering a non-retaliatory reason for the adverse action, which the plaintiff can rebut by showing that the non-retaliatory reason was pretextual. Id. (citing Yashenko, 446 F.3d at 551).
Defendant argues Plaintiff failed to allege a causal connection between her FMLA leave and her termination in August 2016. More specifically, Defendant argues Plaintiff failed to allege any causal connection between FMLA leave taken in November 2013, March-June 2014, and November 2014, and Plaintiff's termination in August 2016. (Def.'s Mem. Supp. Mot. Dismiss at 11 (citing Compl. ¶¶ 10, 15, 17).) If that were all Plaintiff had alleged, Defendant's argument would have more potency. It would be speculative for Plaintiff to suggest Defendant retaliated against her use of FMLA leave time years after its use. However, Plaintiff has alleged that she had taken approved FMLA leave June-August 2016 (Compl. ¶¶ 21-22), and that Jones expressed anger with Plaintiff about this leave even before the alleged misconduct regarding the change fund (id. ¶ 32). Assuming the truth of Plaintiff's factual allegations, and construing those in Plaintiff's favor, it is not speculative to infer that, over time, Jones' hostility towards Plaintiff's use of FMLA leave had been building, and that Plaintiff's last period of leave in the summer of 2016 was the final straw which caused Jones to terminate her and to blame the missing change fund on Plaintiff as a pretext. Indeed, that Plaintiff has alleged Jones was explicitly displeased and angry with her earlier FMLA leave periods makes such an inference more reasonable. Therefore, the undersigned recommends that Defendant's motion to dismiss the FMLA wrongful discharge claim be denied.
Defendant also repeats her argument from the ADA wrongful discharge claim that Plaintiff has conceded the reason for her termination was misconduct regarding the change fund. (Def.'s Mem. Supp. Mot. Dismiss at 12.) For the reasons stated above in the ADA claim analysis, this argument should be rejected here, too. --------
D. Punitive Damages
Lastly, Defendant correctly argues that Defendant, as an agency of the State of North Carolina, cannot be liable for punitive damages under the ADA and FMLA. (Def.'s Mem. Supp. Mot. Dismiss at 12-13.) Plaintiff has not responded to this argument. The undersigned, therefore, recommends that any claim for punitive damages be dismissed.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendant's motion to dismiss [DE #12] be GRANTED IN PART AND DENIED IN PART. Specifically, it is recommended that the court grant Defendant's motion to dismiss Plaintiff's claim for punitive damages and deny Defendant's motion to dismiss Plaintiff's remaining claims under the ADA and FMLA.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 10, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Dec. 2017).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 27th day of July 2018.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge