Cross v. Dental Assisting Academy of Louisville, LLC

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S AMENDED PARTIAL MOTION TO DISMISS

          CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court on Defendant Dental Assisting Academy of Louisville, LLC, d/b/a Medquest College’s (“Medquest”) Amended Partial Motion to Dismiss. [R. 10] Defendant seeks dismissal of Counts II and III of Plaintiff Christina Cross’s (“Cross”) First Amended Complaint. [R. 9] Plaintiff responded to Defendant’s motion [R. 12], and Defendant filed its brief in reply. [R. 13] This matter, being fully briefed, is now ripe for review. For the reasons stated herein, the Court will DENY Defendant’s Motion.

         I. Background

         The issue in this case involves who qualifies as an “eligible employee” under the Family and Medical Leave Act of 1993 (“FMLA” or the “Act”), 29 U.S.C. § 2601, et seq. To qualify for benefits as an “eligible employee” the employee must have been employed twelve months and worked 1, 250 hours during the preceding twelve months. But what happens when an employee provides notice of intended leave (as the Act requires) which will commence after the employee has been working for twelve months, but the employee is fired just before meeting the twelve-month requirement? Are those employees protected under the Act? For the reasons stated herein, the Court finds that they are.

         Because this matter is before the Court on a motion to dismiss pursuant to Rule 12(b)(6), the “complaint is viewed in the light most favorable to [the plaintiff]; the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in the plaintiff’s favor.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016); Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). Plaintiff began working for Defendant MedQuest College, a private educational institution, as its Director of Education “on or around June 13, 2017.”^[1] [R. 9 p. 2] Plaintiff suffers from diabetes and hypertension, which led to adverse health events throughout her employment at Medquest. [R. 9 pp. 2–3] Plaintiff informed her direct supervisor, Robin Boughey, the Executive Director for Defendant, of her conditions and their accompanying complications. [Id.] Around October 2017, Plaintiff began experiencing several adverse health events, such as severe fluctuations in blood pressure and glucose, and extreme fatigue, all caused by her medical conditions. [Id.] These made performing everyday tasks difficult for Plaintiff, as her ability to even stand, walk, or remain conscious became limited. [Id.] Several times, her symptoms caused her to lose balance and fall, including once on April 1, 2018, when she lost consciousness and hit her head. [Id.] In May, 2018, Plaintiff underwent multiple rounds of diagnostic testing for her condition which revealed she was at immediate risk for heart attack and stroke. [Id. p. 4] Her physician prescribed additional testing and treatment and ultimately recommended that she request intermittent leave under the FMLA in advance of the treatments, and provided a completed medical certification for Plaintiff to request her leave. [Id.]

         On June 1, 2018, Plaintiff submitted a request for FMLA leave to her supervisor Robin Boughey. [Id. p. 5] According to Plaintiff, her leave would have commenced on July 6, 2018, when her first appointment for treatment was scheduled. [R. 9 pp. 4–5] Per Plaintiff, Boughey took no steps to evaluate her eligibility for FMLA leave, was not familiar with FMLA leave, and upon explanation told Plaintiff that “[w]e do not do that here. You can’t have that.” [R. 9 p. 5] After the failed request, Plaintiff says that Boughey began scrutinizing her work at a level far greater than she did to other employees in similar positions. [Id.] Around June 11, Plaintiff contacted her colleague, Larisa Crawley, seeking contact information for Bruce Kepley, Boughey’s direct supervisor. [Id.] Plaintiff wanted to file a complaint against Boughey, and Defendant’s workplace dispute policy required her to contact Boughey’s direct supervisor. [Id.] Plaintiff explained to Crawley the reason for her request. [Id. pp. 5–6] The next day, June 12, Boughey called Plaintiff and told her that she was fired immediately because of her conversation with Crawley the day before. [Id. p. 6]

         Plaintiff filed an Amended Complaint [R. 9] asserting claims of unlawful discrimination under the Kentucky Civil Rights Act and unlawful interference and retaliation under the FMLA. [R. 9] Defendant filed an Amended Motion to Dismiss for failure to state a claim, seeking dismissal of the two FMLA claims. [R. 10]

         II. Motion to Dismiss under 12(b)(6)

         A. Standard of Review

         Rule 12(b)(6) provides for dismissal of an action if the Complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The moving party has the burden of proving that no claim exists. Total Benefits, 552 F.3d at 434. While the Complaint must be liberally construed in favor of the non-moving party, “it is still necessary that the Complaint contain more than bare assertions or legal conclusions.” Id. (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993)) (other citations omitted). Moreover, the Court need not accept unwarranted factual inferences. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is factually plausible if the Complaint contains factual allegations that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This does not require a showing that the defendant is probably liable, but “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. To meet this plausibility standard, the Complaint must contain more than “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id.

         B. Discussion

         The FMLA allows “eligible” employees up to twelve weeks of unpaid leave during any twelve-month period if the employee meets certain requirements under the Act and has experienced a triggering event such as the birth of a child, or a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). If an eligible employee seeks leave under the FMLA, the employer cannot interfere with an employee’s rights under the Act or subject the employee to adverse actions such as termination just because they sought FMLA-protected leave. 29 U.S.C. § 2615(a). The Sixth Circuit recognizes two distinct theories of recovery under the FMLA, an “interference” theory and a “retaliation” theory. See, e.g., Casagrande v. OhioHealth Corp., 666 F. App’x. 491, 495–95 (6th Cir. 2016). Plaintiff asserts both claims in her First Amended Complaint. [R. 9 pp. 9–12] Under either theory, a plaintiff must show that he or she is an “eligible employee” under the Act. Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004). Defendant argues that Plaintiff is not an “eligible employee” under the FMLA because she had not been employed for twelve months on the date that she was terminated. [R 10-1 p. 7] Plaintiff argues that she is an “eligible employee” because on the date that her leave was set to commence, July 6, 2018, she would have met the Act’s twelve-month employment requirement. [R. 12 p. 19]

         a) Defining Eligible Employees

         The FMLA defines an “eligible employee” as one who has been employed “for at least 12 months, ” and “for at least 1, 250 hours of service . . . during the previous 12-month period” by the employer with respect to whom the leave is requested. 29 U.S.C. § 2611(2)(A). Defendant Medquest argues Plaintiff is not an “eligible employee” under the Act because she was fired on June 12, 2018, just shy of meeting the twelve-month requirement. [R. 10-1 p. 5] However, it ...