Opinion
No. CV-21-00306-TUC-JGZ
2022-01-10
David PROCTOR, Plaintiff, v. RILEY INDUSTRIES, INC., Defendant.
Joshua William Carden, Carden Livesay Limited, Mesa, AZ, for Plaintiff. David Calvin Potts, Jones Skelton & Hochuli PLC, Phoenix, AZ, for Defendant.
Joshua William Carden, Carden Livesay Limited, Mesa, AZ, for Plaintiff.
David Calvin Potts, Jones Skelton & Hochuli PLC, Phoenix, AZ, for Defendant.
ORDER
Jennifer G. Zipps, United States District Judge
Pending before the Court is Defendant Riley Industrial Services, Inc.’s Partial Motion to Dismiss. (Doc. 7.) Defendant seeks to dismiss Plaintiff's claims for violations of the Family and Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and the Arizona Civil Rights Act (ACRA). (Id. ) Defendant argues that the FMLA did not require Defendant to reasonably accommodate Plaintiff, and Plaintiff cannot make a prima facie claim of associational disability under the ADA and the ACRA. (Id. )
After Defendant filed its Motion to Dismiss, Plaintiff filed an unopposed motion to file an amended complaint to add allegations solely impacting his Paid Sick Time state law claim. (Doc. 13.) The parties agree that the existing Motion to Dismiss, Response, and Reply filed as to the federal claims in the First Amended Complaint (FAC) are not mooted by the filing of the amended complaint. (Id. ) Therefore, for ease of reference, the Court, like the parties, refers to and cites the FAC in this Order.
Upon consideration of the parties’ filings, the Court will grant Defendant's motion.
I. Standard of Review
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "accept the factual allegations of the complaint as true and construe them in the light most favorable to the plaintiff." L.A. Lakers, Inc. v. Fed. Ins. Co. , 869 F.3d 795, 800 (9th Cir. 2017) (quoting AE ex rel. Hernandez v. County of Tulare , 666 F.3d 631, 636 (9th Cir. 2012) ). All reasonable inferences must be resolved in plaintiff's favor. See id. Applying these standards, the Court's task is to determine whether Plaintiff's complaint includes "well-pleaded facts" that "plausibly give rise to an entitlement to relief." See Whitaker v. Tesla Motors, Inc. , 985 F.3d 1173, 1176 (9th Cir. 2021). As the Supreme Court explained:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of ‘entitlement to relief.’ "
Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). II. FMLA Claim
To establish a prima facie claim of interference with rights under the FMLA, Plaintiff must show: (1) he was eligible for the FMLA's protections, (2) he was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent on taking leave, and (5) the employer denied FMLA benefits to which he was entitled. Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011). Defendant argues that Plaintiff cannot establish that he was taking leave for a qualifying purpose because the FMLA does not cover leave to care for a fiancé or unborn child. (Doc. 7 at 3, Doc. 10 at 2-3.)
In its motion to dismiss, Defendant also argued that Plaintiff could not establish that he was eligible for the FMLA's protections because, as of March 2020, he had not yet worked for Riley for twelve months. (Doc. 7 at 3.) Defendant abandoned this argument in its Reply. (Doc. 10 at 4.) The Court notes that the FAC alleges that on August 19, 2020, Plaintiff informed Defendant that he would miss an out-of-town work assignment on August 20 and 21, 2020. (Doc. 6 at 2-3.) Plaintiff was fired the next day, well over a year after he began his employment with Defendant. (Id. )
Plaintiff argues that, although his relationship with his fiancée does not qualify him for FMLA coverage, his relationship with his unborn child does. (Doc. 9 at 6-8.) Plaintiff urges the Court to find, as a matter of first impression, that FMLA protections for children extend to an unborn child and allow an expectant father to take FMLA leave for prenatal care. (Id. at 6.) Plaintiff reasons that, in enacting the FMLA, Congress found that it "important for the development of child and the family unit that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions." (Id. at 6-7.) Plaintiff argues that interpreting the FMLA to cover unborn children would be consistent with this purpose. Plaintiff further asserts that the FMLA and its applicable regulations do not require that a child be "born"; rather it is only required that the child be "under 18 years of age." (Id. at 7.) Finally, Plaintiff notes that if state law is referenced, which it is for other sections of the FMLA, the state of Arizona recognizes certain legal protections for unborn children. (Id. at 7-8.)
The Court concludes that neither the text of the statute, nor the applicable regulations, suggest that Congress intended to allow an expectant father to take FMLA leave for prenatal care. First, neither the statute nor the regulations include unborn children in the definition of covered children. The FMLA defines "son or daughter" as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis , who is (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability." 29 U.S.C. § 2611(12). The associated regulation similarly defines "son or daughter" as "a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis , who is either under age 18, or age 18 or older and ‘incapable of self-care because of a mental or physical disability’ at the time that FMLA leave is to commence." 29 C.F.R. § 825.102.
Second, the regulations that specifically address leave for prenatal care and birth of a child do not provide for coverage under the circumstances present here. The regulation pertaining to "Leave for pregnancy or birth," allows a father FMLA leave for "the birth of their child," or to be with a "newborn child." 29 C.F.R. § 825.120(a)(1) (2021) ("Both parents are entitled to FMLA leave for the birth of their child. ") (emphasis added); id. § 825.120(a)(2) ("Both parents are entitled to FMLA leave to be with the healthy newborn child ") (emphasis added). More importantly, the regulation expressly addresses who is entitled to take FMLA leave for prenatal care, prior to the birth of a child. Under 29 C.F.R. § 825.120(a)(4), an expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child, but only "a spouse" is entitled to FMLA leave "if needed to care for a pregnant spouse who is incapacitated or if needed to care for her during her prenatal care." 29 C.F.R. § 825.120(a)(5). The FMLA defines "spouse" as "husband or wife, as the case may be." 29 U.S.C. § 2611(13). "Spouse" is defined in the regulations as "a husband or wife," which in turn is defined as "the other person with whom an individual entered into marriage as defined or recognized under state law," including same-sex or common law marriage if recognized by the state. 29 C.F.R. § 825.102. An FAQ page on the Department of Labor's website confirms that a father's leave for prenatal care is limited to fathers who are "spouses." This page explains: "A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or childbirth)." Frequently Asked Questions and Answers About the Revisions to the Family and Medical Leave Act , Department of Labor, https://www.dol.gov/agencies/whd/fmla/final-rule/faq (last accessed Jan. 5, 2022) (emphasis added).
In sum, the statute and supporting regulations show that Congress did consider whom the FMLA should cover for prenatal care of unborn children, and that Congress determined that coverage should be limited to pregnant women and their spouses. Because Plaintiff is not a spouse as defined under the FMLA, he is not entitled to FMLA leave to attend his fiancée's prenatal appointments. The Court is not a proper forum for amendment of Congress's determination.
III. ADA
In order to state a claim for association discrimination under the ADA, Plaintiff must show: (1) he was qualified to perform the job; (2) his employer knew that he had an associate with a disability; (3) he was subjected to an adverse employment action; and (4) there is a causal connection between the adverse employment action and the employee's association with a disabled person. White v. Home Depot USA Inc. , No. CV-16-01185-PHX-JAT, 2018 WL 704328, at *8 (D. Ariz. Feb. 5, 2018). Defendant asserts that Plaintiff has not alleged facts to show that his termination occurred under circumstances raising a reasonable inference that his relative's disability was a determining factor in the employer's decision. (Doc. 10 at 4-6.)
Reading the allegations in the First Amended Complaint (FAC) in the light most favorable to the Plaintiff, the Court concludes that Plaintiff fails to allege sufficient facts from which it could plausibly be inferred that Plaintiff was terminated because of his association with his disabled fiancée. Plaintiff alleges that he told his supervisor in March 2020 that his fiancée was disabled and pregnant with his child, and that he was their primary caretaker. (Doc. 6. ¶ 13.) He informed his supervisor that, due to his fiancée's disability and pregnancy, he would be required to transport her to and attend doctors’ appointments critical to her health every few weeks. (Id. ¶ 14.) His supervisor agreed to this arrangement, and suggested that Plaintiff limit the appointments to Fridays. (Id. ¶ 15.) Plaintiff attended several such appointments without a problem. (Id. ¶ 19.) But, on August 19, 2020, when Plaintiff refused to travel to an out-of-town assignment on August 20-21, 2020, the supervisor terminated Plaintiff. (Id. ¶¶ 20, 21, 24.) Given that Plaintiff's supervisor was aware of Plaintiff's association with a disabled person for five months and accommodated Plaintiff's request to attend appointments with that person (see id. ¶¶ 13-15, 19), it is implausible that Plaintiff was terminated because of that association five months later, particularly when the termination occurred after Plaintiff stated he would not be available to work. (See id. ¶¶ 21-26.)
Plaintiff points to the two statements made by his supervisor as evidence that he was terminated because of his association with his fiancée. On August 19, 2020, when Plaintiff told his supervisor that he could not work on August 20 and 21 because of his fiancée's pregnancy appointment, the supervisor stated, " ‘Well, that's pretty f**ing unfortunate’ or words to that effect." (Id. ¶ 23.) And, one day later, when Plaintiff protested his termination, the supervisor responded, "I am just not going to deal with it anymore." (Id. ¶ 26.) These statements are not sufficient to move Plaintiff's claim into the realm of a plausible claim.
The first sentence suggests anger or frustration on the supervisor's part, but it does not reference or provide evidence of discrimination. The second sentence, in its use of the word "it," is ambiguous as to what the supervisor does not want to deal with anymore. And while Plaintiff suggests that the Court consider that the supervisor could be referring to Plaintiff's association with a disabled person, that inference is not plausible. As that Supreme Court stated, the plausibility standard is not akin to a "probability requirement" but "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. That the supervisor "could" have been referring to Plaintiff's association with his fiancée is not reasonably inferred from this one ambiguous statement given the other factual allegations contained in the FAC. As discussed above, when the statement was made, the supervisor had been aware of Plaintiff's association with a disabled person for five months. (See id. ¶¶ 13-15, 19.) The supervisor had accommodated Plaintiff's requests to attend that person's medical appointments during that period. In addition, in making the statements, the supervisor was responding to Plaintiff's assertion that he could not work as requested. In this factual context, it is implausible that Plaintiff was terminated because of association with a disabled person rather than because of his scheduling of appointments that interfered with the supervisor's ability to assign work. (See id. ¶¶ 13-15, 19.) In other words, here the supervisor's hostility to Plaintiff's leave request does not, by itself, plausibly equate to hostility to the Plaintiff's fiancée's underlying disability. Thus, because Plaintiff has not alleged "enough fact[s] to raise a reasonable expectation" that discovery would produce evidence of his claim, see Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Court will grant Defendant's motion to dismiss Plaintiff's ADA claim. IV. Subject Matter Jurisdiction
The parties acknowledge that provisions of the ACRA are "modeled after and generally identical to" the ADA. (Doc. 9 at 3; see also Doc. 10 at 4.) See, e.g., Higdon v. Evergreen Int'l Airlines Inc., 138 Ariz. 163, 673 P.2d 907, 909-10 n.3 (1983). Because of the similarities, the Court concludes that the rationale for dismissing the ADA claim would also support dismissal of Plaintiff's ACRA claim. However, because the Court concludes that it lacks subject matter jurisdiction over this action, it does not rule on Defendant's request to dismiss the ACRA claim.
Plaintiff invoked the jurisdiction of this Court pursuant to 28 U.S.C. § 1331. (See Doc. 6 ¶ 7, Doc. 15 ¶ 7.) Having found that Plaintiff fails to state claims arising under federal law, the Court concludes that it lacks subject matter jurisdiction over this action, including Proctor's remaining state law claims. See Scott v. Pasadena Unified Sch. Dist. , 306 F.3d 646, 664 (9th Cir. 2002) (citing 28 U.S.C. § 1367(a) ).
Further, the Court finds no basis for granting leave to amend the complaint. "Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile." Bowles v. Reade , 198 F.3d 752, 757 (9th Cir. 1999). Here the Court concludes that a further opportunity to amend would be futile. Plaintiff stated in his Rule 26(f) Settlement Conference report that no further amendments were expected, and later moved to amend only his state law claim. (Doc. 11 at 2; Transcript of Settlement Conference at 65-66, Proctor v. Riley Industrial Servs., Inc. , No. 4:21-CV-00306 (D. Ariz. Dec. 9, 2021.)) Moreover, in opposing the motion to dismiss, Plaintiff has not requested the opportunity to amend his federal claims should the Court find the allegations in the complaint insufficient. Nor has Plaintiff pointed to facts outside of the complaint which could be included in an amendment.
V. Conclusion
For the foregoing reasons,
IT IS ORDERED Defendant's Motion to Dismiss (Doc. 7) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice.