United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT’S AMENDED PARTIAL MOTION TO DISMISS
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
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.
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.
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.” [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.
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]
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.
Motion to Dismiss under 12(b)(6)
Standard of Review
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.”
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
Defining Eligible Employees
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 ...