Opinion
CASE NO. 02-80936-CIV-DIMITROULEAS
June 23, 2003
ORDER
THIS CAUSE having been heard upon Defendant's May 23, 2003 Motion to Dismiss Count II [DE-26], and the Court having considered Plaintiffs June 6, 2003 Opposition [DE-27] and Defendant's June 13, 2003 Reply [DE-30], and being otherwise fully advised, finds as follows:
FACTS
Less than one week after advising of her pregnancy and requesting benefit information, Plaintiff alleges that she was subjected to unwarranted discipline. She was given a document entitled, "Last chance warning". (See DE-24, para. 17). Plaintiff contends that she never received any prior warnings which pre-dated the "Last Chance Warning." On February 22, 2002, Plaintiff contends that she was terminated, without cause or provocation. (See DE-24, para. 19).
Plaintiff was terminated six days before her one year anniversary with the company, sixteen (16) days after she advised the company of her pregnancy and interest in their medical leave policy. Plaintiffs termination was days before she would have been eligible for leave time under the Family Medical Leave Act (FMLA).
Plaintiff brings a cause of action against her former employer under the theories of both pregnancy discrimination under the Pregnancy Discrimination Act and retaliation under the Family and Medical Leave Act. ["FMLA"]. Defendant challenges Count II of the Complaint, for retaliation, brought pursuant to the FMLA. Defendant argues that Plaintiff is not an "eligible" employee as stated in the statute and therefore not subject to protection under the anti-retaliation portion of the statute. Plaintiff does not dispute that as of the date of her termination she was employed less than one year, but contends that the eligibility requirements of the statute do not apply to her cause of action.
LAW
In its Motion to Dismiss, the Defendant asserts that the Plaintiff's Complaint should be dismissed for failure to state a claim. It is long-settled that a complaint should not be dismissed unless it appears beyond a doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief Conley v. Gibson, 355 U.S. 41 (1957). The allegations of the claim must be taken as true and must be read to include any theory on which the plaintiff may recover. See Linder v. Portocarrero, 963 F.2d 332, 334-336 (11th Cir. 1992) (citing Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967)).
To state a claim under the FMLA, Plaintiff must establish that (1) she availed herself of a protected right under the FMLA; (2) she suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision. Parris v. Miami Herald Pub. Co., 216 F.3d 1298, 1301 (11th Cir. 2000);Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir. 2000).
The FMLA defines an eligible employee as an employee who has been employed "(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C.A. § 2611(2)(A).
A number of federal courts have found that there can be no retaliation under the FMLA unless and until an employee becomes eligible under the FMLA. In Coleman v. Prudential Relocation, 975 F. Supp. 234 (W.D.N.Y. 1997), the court found that the plaintiff could not sustain a retaliation charge because he was not an eligible employee at the time he engaged in protected activity.
In Morehardt v. Spirit Airlines, Inc., 174 F. Supp.2d 1272, 1280 n. 43 (M.D. Fla. 2001), the plaintiff claimed that, although she was not eligible for FMLA benefits, she still had a viable FMLA retaliation claim. The Morehardt court found that "if an employee fails to show that he was eligible under the FMLA he cannot show, as a matter of law, that he was engaging in protected activity." Morehardt, 174 F. Supp.2d at 1280.
The FMLA requires employees to give notice to employers of leave requirements whenever possible. 29 U.S.C.A. § 2612(e)(1) (employee must give 30 days notice if leave is foreseeable). Thus, it can be argued that where the employee, before she becomes eligible for FMLA, is putting the employer on notice of her intent to take FMLA leave after she becomes eligible for FMLA coverage, then the FMLA should be read to allow a retaliation charge. Walker v. Elmore County Board of Education, 223 F. Supp.2d 1255, 1260 (M.D. Ala. 2002).
Here, we need not reach the issue in Walker because Plaintiff alleges that she notified the company of her pregnancy on or about January 30, 2002 and requested further information about the company's policies regarding medical leave. [DE-24, para. 15-16]. Plaintiff does not allege that she requested medical leave. Any retaliation is alleged to have occurred because of her interest in medical leave not because of a request for medical leave.
Consequently, since Plaintiff was not an eligible employee under the FMLA, Defendant can not be held responsible for retaliation.
Wherefore, Defendant's Motion to Dismiss Count II is Granted.
DONE AND ORDERED