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Kastor v. Cash Express of Tennessee, LLC

United States District Court, W.D. Kentucky

January 8, 2015


For Tammy Kastor, Lisa Nevitt, Plaintiffs: Jennifer Leigh McCarty, LEAD ATTORNEY, Abney & McCarty, PLLC, Louisville, KY.

For Cash Express of Tennessee, LLC, Defendant: Craig P. Siegenthaler, Megan R. U'Sellis, LEAD ATTORNEYS, Fisher & Phillips LLP - Louisville, Louisville, KY.

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John G. Heyburn II, Senior United States District Judge.

This case involves quite unusual factual circumstances which then present novel legal questions concerning the Family and Medical Leave Act. First, in light of Thompson v. North American Stainless, LP, 562 U.S. 170, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011), does the FMLA allow third party retaliation suits? And if so, what is required for a plaintiff to bring such a suit? Second, does the FMLA preempt a state claim for intentional infliction of emotional distress arising from conduct made unlawful by the FMLA? The Court will consider these questions in turn.

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Plaintiffs Tammy Kastor and Lisa Nevitt worked for Defendant Cash Express of Tennessee, LLC as store managers at different locations.[1] In early 2013, Kastor learned that her four-year-old daughter needed open-heart surgery. As a result, she needed to take an extended leave of absence. She applied for and was granted FMLA leave for March and April 2013.

On April 12, while Kastor was on leave, she was contacted by her District Manager, Natasha Davis, and told she was being fired. The purported reason for her termination was a misdemeanor DUI conviction from January 2013. Davis claimed that Cash Advance discovered the conviction during a random background check performed during Kastor's leave of absence. Kastor is not aware of any prior occasions when Cash Express performed a random background check into her or any other current employee.

Kastor retained legal counsel following her termination and sent a letter to Cash Express on June 18, 2013, to question Cash Express's motives for firing an employee on FMLA leave. Counsel asserted that Kastor knew of at least one other Cash Express employee who had a felony conviction at the time of that employee's hiring but was nevertheless allowed to continue work. Though the letter did not specify any names, Kastor claims she was referring to Lisa Nevitt.

On June 19--just one day after Kastor's counsel sent this letter--Shannon Watson (Regional Manager) and Jeff Olsen (President) randomly visited Nevitt at work to interview her for the position of District Manager--a position for which Nevitt had not applied and had not expressed any interest in taking. Nevitt told Watson she didn't want the job.

On July 10, Watson told Nevitt she was being terminated because of a prior felony conviction that Cash Express discovered during its unsolicited interview for the District Manager position. Nevitt protested that she had already disclosed this conviction (and that she was on probation) on her application and during her interview over two years prior. Cash Express's CEO admitted as much; and, of course, he hired Nevitt anyway and allowed her to work for over two years. Nevitt believes that Cash Express really fired her after realizing she would be a harmful comparator in Kastor's impending FMLA retaliation suit.

Following their terminations and fruitless pleas with Cash Express management, Kastor and Nevitt filed this lawsuit. Their Complaint alleges three causes of action: (1) retaliation in violation of 29 U.S.C. § 2615; (2) third party retaliation in violation of 29 U.S.C. § 2615; and (3) intentional infliction of emotional distress. Cash Express moved to dismiss Nevitt's third party retaliation claim and both Plaintiffs' intentional infliction of emotional distress claims.


To survive dismissal for failure to state a claim under Rule 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " 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." Id. (citing Twombly, 550 U.S. at 556). " [A] district court must (1) view the complaint in the light

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most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true." Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irvin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).


The Court first considers Cash Express's motion to dismiss Nevitt's third party retaliation claim. The ultimate issue is whether Nevitt, who never engaged in conduct protected by the FMLA, may nevertheless assert a retaliation claim against her employer.

This presents a statutory interpretation matter that neither the Supreme Court nor the Sixth Circuit has addressed. Two district courts have divided on the issue. In Lopez v. Four Dee, Inc., No. 11-CV-1099, 2012 WL 2339289, at *2 (E.D.N.Y. June 19, 2012), the court noted that " [f]ew courts appear to have addressed the third party retaliation question precisely." It concluded: The Supreme Court " has recently determined that . . . Title VII . . . broadly 'prohibits any employer action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination,' including third party retaliation. The FMLA's antiretaliation provision is similarly expansive." Id. (quoting Thompson, 131 S.Ct. at 868) (citation omitted). See also Augustus v. AHRC Nassau, No. 11-cv-15, 2012 WL 6138484, at *9 (E.D.N.Y. Dec. 11, 2012) (same). Neither Lopez nor Augustus included or analyzed the " expansive" FMLA antiretaliation text.

The court in Gilbert v. St. Rita's Professional Services, LLC, 3:11-cv-2097, 2012 WL 2344583 (N.D. Ohio June 20, 2012) reached the opposite conclusion. The court began: " Although it is true that the FMLA often borrows from Title VII jurisprudence, there are limitations." Id. at *6. The Court emphasized that the Supreme Court's decision in Thompson " rested its holding specifically on the broad 'person . . . aggrieved' language of Title VII, language that is notably absent from the FMLA." Id. Without referring to the language in the FMLA's antiretaliation provision, the court concluded that " Congress's intentional omission of Title VII's broad language in the FMLA specifically prohibits" an interpretation that allows for third party FMLA claims based on Thompson. Id.

Neither of these opinions provides definitive answers. This Court will analyze the statutory text and Supreme Court precedent to determine: (A) whether a third party can bring a retaliation claim under the FMLA; (B) what is required of that ...

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