Opinion
C/A 3:20-4090-MGL-PJG
02-23-2021
Cheryl Simpson, Plaintiff, v. CDM Smith, Inc., Defendant.
REPORT AND RECOMMENDATION
Paige J. Gossett UNITED STATES MAGISTRATE JUDGE
Defendant CDM Smith, Inc., removed this counseled employment discrimination action from the Richland County Court of Common Pleas. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on CDM Smith's motion for partial dismissal. (ECF No. 6.) Plaintiff Cheryl Simpson filed a response in opposition to the motion (ECF No. 9), and CDM Smith filed a reply (ECF No. 10). Having reviewed the record presented and the applicable law, the court finds CDM Smith's motion should be denied.
BACKGROUND
The following allegations are taken as true for purposes of resolving CDM Smith's motion to dismiss. In 2006, Simpson began working for the engineering and transportation firm Wilbur Smith Associates. Wilbur Smith Associates was acquired by CDM Smith in 2011. At that time, Simpson worked as a contract administrator in the Finance Department where she worked on project billing and administration. Simpson's work was virtual and did not involve in-person or on-site work, though Simpson worked in CDM Smith's office.
Simpson suffers from severe environmental allergies that were triggered in February 2015 when CDM Smith transitioned to a new office building that was still under construction. On February 19, 2015, Simpson requested a medical accommodation to work from home based on her allergies. The accommodation request was approved by CDM Smith on March 5, 2015 and Plaintiff began working from home. But, Simpson returned to the office on April 6, 2015 at the request of CDM Smith and immediately had a severe allergic reaction to the office space that required that she take three days of personal time off. After that, Simpson continued to work from home for years while she attempted to have her allergies diagnosed by medical professionals.
On March 10, 2016, Simpson received a lower than expected pay increase. On May 10, 2017, Plaintiff was not promoted when a round of promotions were given to other employees. On July 9, 2017, Simpson applied for and was granted intermittent leave under the Family and Medical Leave Act because her mother became sick. Simpson's supervisor at the time, Loretta Donofrio stated that Simpson's work needed to continue unchanged despite her mother's illness. Simpson felt harassed by Donofrio's statement. Simpson raised concerns about her low pay increase and lack of promotion, but Donofrio and two other coworkers responded that they needed to stop “tip toeing behind” Simpson, that Simpson should seek employment elsewhere, and that Simpson was not promoted because of her request to work from home.
On February 15, 2018, Simpson sent a letter to Donofrio and human resources stating that Simpson was not being paid for her overtime work. Simpson was eventually paid for that work in September 2018. Simpson also stated in the letter that CDM Smith failed to obtain her consent before transferring projects from Simpson to a peer. In March 2018, Simpson informed CDM Smith that her pay increases from previous years were lower than that of her peers. Simpson, who is African American, noted that all of her peers received higher raises, except for herself and one other African American female.
In June 2018, Simpson was given a billing target that was excessively high and made her performance expectations impossible to meet. Simpson would later learn, after her termination, that the target billing amount for her position had been reduced for her successor. Simpson was terminated on October 3, 2018.
Simpson filed a charge of discrimination against CDM Smith with the United States Equal Employment Opportunity Commission (“EEOC”) on December 14, 2018. Simpson eventually filed this action on October 21, 2020. Here, Simpson brings claims of: violations of the antiretaliation provision of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., and the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq.; disability discrimination and retaliation pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.
DISCUSSION
A. Rule 12(b)(6) Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
B. CDM Smith's Motion
1. Statutes of Limitations (FMLA & FLSA)
CDM Smith argues Simpson fails to state a claim upon which relief can be granted as to her claims pursuant to the FMLA and FLSA because this action was filed after the statutes of limitations expired.
A plaintiff bringing a legal action pursuant to the FMLA must file the action no later than two years “after the date of the last event constituting the alleged violation for which the action is brought, ” or three years if the alleged violation was “willful.” 29 U.S.C. § 2617(c)(1-2). Similarly, under the FLSA, a cause of action must be commenced “within two years after the cause of action accrued, ” or three years if the violation was “willful.” 29 U.S.C. § 255(a). The plaintiff has the ultimate burden of proving a willful violation-that is, the employer knew or should have known that its conduct was prohibited. Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 358 (4th Cir. 2011) (FLSA) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129 (1988)).
Simpson asserts that her October 3, 2018 termination violated the FMLA and FLSA, and Simpson filed this action on October 21, 2020. Accordingly, Simpson's claims are timely only if the purported violations are willful. But CDM Smith argues that, contrary to the pleading standards enunciated in Iqbal and Twombly, Simpson has failed to plead any facts that would plausibly show that CDM Smith acted willfully. Specifically, CDM Smith argues that Simpson only used the word “willful” to describe the purported violations in the Complaint, without providing any specific facts to support the claims.
The United States Court of Appeals for the Fourth Circuit has not addressed whether conclusory allegations of willfulness are enough to survive a motion to dismiss FMLA and FSLA claims based on untimeliness, and there is a split of authority among other circuits and district courts. Compare Crugher v. Prelesnik, 761 F.3d 610, 617 (6th Cir. 2014) (stating that “a plaintiff must do more than make a conclusory assertion that that a defendant acted willfully” to state a claim for a willful violation of the FMLA because, “although conditions of a person's mind may be alleged generally, the plaintiff still must plead facts about the defendant's mental state, which, accepted as true, make the state-of-mind allegation plausible on its face”) (internal quotation marks omitted) (quoting Katoula v. Detroit Ent't, LLC, 557 Fed.Appx. 496, 498 (6th Cir. 2014)); and Offer v. Mercy Med. Ctr., 676 Fed.Appx. 51, 54 (2d Cir. 2017) (finding the district court properly granted the defendant's motion to dismiss the plaintiff's FMLA claim because the complaint did not include facts that would plausibly show the violation was willful); with Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018) (holding that conclusory assertions of willful violations of FLSA in a complaint are sufficient to survive a motion to dismiss because statutes of limitations are affirmative defenses that are only appropriately disposed in a Rule 12(b)(6) motion where the complaint itself admits the elements of an affirmative defense); Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) (providing that the timeliness of FLSA claims should only be addressed on a motion to dismiss where the statute of limitations defense is apparent on the face of the complaint); Aviles-Cervantes v. Outside Unlimited, Inc., 276 F.Supp.3d 480, 491 (D. Md. 2017) (stating that “because the question of whether a defendant's alleged FLSA violations were ‘willful' is not an element of plaintiffs' claims but rather an anticipation of a limitations defense that the defendant may raise, plaintiffs do not need to allege specific facts that the defendant willfully violated the FLSA” to survive a motion to dismiss) (internal quotation marks and alterations omitted) (quoting Rose v. Harloe Mgmt. Corp., Civil Action No. GLR-16-761, 2017 WL 193295, at *4 (D. Md. Jan. 17, 2017)); Settle v. S.W. Rodgers, Co., 998 F.Supp. 657, 664 (E.D. Va. 1998) (“Thus, where, as here, a plaintiff sufficiently alleges facts supporting the claimed violation of the FMLA, a general averment as to willfulness should be sufficient to trigger the three-year limitations period.”), affd, 182 F.3d 909 (4th Cir. 1999); and Teasley v. Southwark Metal Mfg. Co. Inc., No. 6:11-CV-01276-JMC-JDA, 2011 WL 6843013, at *4 (D.S.C. Dec. 7, 2011) (citing Settle), report and recommendation adopted, No. 6:11-CV-01276-JMC, 2011 WL 6843008 (D.S.C. Dec. 29, 2011).
But see Butler v. DirectSat USA, LLC, 800 F.Supp.2d 662, 668-69 (D. Md. 2011) (denying the defendant's motion to dismiss the plaintiff's FLSA claim for failure to plead facts showing willfulness, finding that the plaintiff specifically alleged that the defendant trained, directed, and encouraged its employees to violate FLSA); Orellana v. Cienna Properties, LLC, No. CIV.A. JKB-11-2515, 2012 WL 203421, at *3 (D. Md. Jan. 23, 2012) (finding that, on a motion for default judgment, Plaintiff's allegation that the defendant's conduct was “willful, ” without more, failed to state a claim upon which relief can be granted).
The court finds the decisions in Fernandez and Aviles-Cervantes persuasive. The willfulness of CDM Smith's purported FMLA and FLSA violations is not an element of Simpson's claims. Rather, the question of willfulness relates to CDM Smith's statute of limitations defense, which must be affirmatively pled by CDM Smith, not Simpson. See Fernandez, 883 F.3d at 1299 (“A plaintiff need not anticipate in the complaint an affirmative defense that may be raised by the defendant; it is the defendant's burden to plead an affirmative defense.”). Therefore, Simpson is not obligated to plead specific facts about CDM Smith's willfulness to avoid the statute of limitations defense, and the court cannot apply the statute of limitations defense unless all of the elements of the defense are admitted by the pleading. See Fernandez, 883 F.3d at 1299. Here, Simpson plainly alleges that CDM Smith's violations were “willful, ” which, without more, is sufficient to state a claim upon which relief can be granted for violations of the FMLA and FLSA. See Fed.R.Civ.P. 9(b) (“Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.”); see also Rivera, 735 F.3d at 903 (“At the pleading stage, a plaintiff need not allege willfulness with specificity.”). Consequently, CDM Smith's motion to dismiss Simpson's FMLA and FLSA claims as untimely should be denied without prejudice to raise the statute of limitations defense on a more fully developed record.
2. Statutes of Limitations (ADA & Title VII)
CDM Smith argues that the statutes of limitations for the ADA and Title VII bar Simpson's “allegations” about events that took place prior to February 14, 2018. (Def.'s Mot., ECF No. 6-1 at 12.) Specifically, CDM asks the court to “dismiss” paragraphs twelve through sixty-one of the Complaint because they contain allegations that occurred outside of the 300-day statutes of limitations for Title VII and ADA claims. The court disagrees.
Statutes of limitations are defenses to claims, not allegations. Therefore, a motion to dismiss for failure to state a claim is not the proper method or basis for removing specific allegations from a pleading. See generally 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1356 (3d ed. Oct. 2020) (distinguishing motions to dismiss claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) from other responsive motions under Rule 12 that can be used to eliminate or strike matters from a pleading). To the extent CDM Smith's argument can be construed to assert that Simpson's ADA and Title VII claims should be dismissed, Simpson correctly points out that the allegations supporting her causes of action under the ADA and Title VII do not rely on the facts that CDM Smith argues occurred outside of the statute of limitations. Consequently, CDM Smith's motion to dismiss some of the allegations in the Complaint should be denied.
3. Claims Pursuant to the ADA
CDM Smith argues that Simpson's disability discrimination and retaliation claims pursuant to the ADA should be dismissed for failure to state a claim. Specifically, CDM Smith argues that the claims fail to plausibly allege retaliation or discrimination because CDM Smith “continuously accommodated her alleged disability.” (Def.'s Mot., ECF No. 6-1 at 9.) The court disagrees.
Initially, the court notes that Simpson does not allege a cause of action for failure to accommodate. See generally Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001) (providing the elements of a disability discrimination claim under the ADA); see also Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (providing the elements of a retaliation claim under the ADA). Therefore, to the extent CDM Smith seeks dismissal of such a claim, the motion is moot. (See Def.'s Mot., ECF No. 6-1 at 9) (reciting the elements of a failure to accommodate claim under the ADA). Otherwise, Simpson's disability discrimination claim is not based on an alleged failure to accommodate. (Compl. ¶¶ 80-81, ECF No. 1-1 at 17.) Similarly, Simpson's retaliation claim is based on her request for accommodation, not a purported failure to accommodate. (Id. ¶ 86, ECF No. 1-1 at 18-19.) Consequently, CDM Smith's motion to dismiss the ADA claims for failure to state a claim should be denied.
RECOMMENDATION
Based on the foregoing, the court recommends that CDM Smith's motion for partial dismissal be denied. (ECF No. 6.)
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).