MEMORANDUM AND ORDER RE: MOTION TO DISMISS
The Court has before it Defendant’s Motion to Dismiss
I. BACKGROUND
Plaintiff Randy L. Greene (“Plaintiff’ or “Greene”) was employed by YRC Inc. (“Defendant” or ‘YRC Freight”) from 2002 until 2012. On October 26, 2012, YRC Freight terminated Greene’s employment. On January 31, 2013, Plaintiff the instant lawsuit in the Circuit Court for Baltimore City, Maryland. On February 28, 2013, Defendant timely removed the case to federal court.
In the Amended Complaint [Document 16], Green presents claims in three counts:
Count One: Interference with Family Medical Leave Act (“FMLA”) Rights, 29 U.S.C. § 2601 et seq.
Count Two: Retaliation for Exercising FMLA Rights
Count Three: Violation of 42 U.S.C. § 1981
By the instant motion, Defendant seeks dismissal of all claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
II. DISMISSAL STANDARD
A motion to dismiss filed pursüant to Federal Rule of Civil Procedure 12(b)(6)
III. DISCUSSION
A. Family Medical Leave Act
1. Alleged Facts
From 2002 until October 26, 2012, Plaintiff was employed by YRC Freight as a truck driver. In or around 2011, Plaintiff began receiving treatment for high blood pressure from his primary care physician Dr. Carl W. Brango.
When he arrived at work at Defendant’s Baltimore Terminal on October 26, 2012, Plaintiff and his supervisor Gary Chapman (“Chapman”) had a fifteen-minute discussion “about a pay shortage” that left Plaintiff “experiencefing] pain and pressure in the chest, stomach pains, severe stress and anxiety resulting, and shaking of the hands.” Id. at 1-2. The “pressure” in Plaintiffs “chest, stomach pain, stress, and anxiety” did not abate as Plaintiff prepared his truck for an out-of-state delivery. Id. at 2.
Believing that these symptoms impaired his ability to make the long-distance delivery, Plaintiff asked a fellow employee to inform Chapman that he was experiencing chest pain, chest pressure, and anxiety that substantially impaired his ability to make the scheduled delivery and that he was going home to seek medical treatment. Roughly seven minutes after speaking with his fellow employee, Plaintiff telephoned Chapman directly:
advis[ing] him that Plaintiff was feeling pain and pressure in his chest and a lot of stress and anxiety, and did not feel medically able to drive a commercial vehicle, that he was going home to obtain medical treatment with his primary care physician, and that he would have a doctor’s note for him.
Id.
Plaintiff was examined by Dr. Brango that day — October 26, 2012. Dr. Brango “determined that [Plaintiffs] blood pressure was elevated and recommended that the Plaintiff take one week off from work. Documentation from [Dr. Brango] was faxed over to Gary Chapman [that afternoon].”
RANDY GREENE was seen in the office on Oct 26, 2012.
He is having health issues..
Excused for period from 10/26/2013 to 11/4/2012.
RANDY should return to work on 11/5/2012.
Restrictions: None.
[Document 8] at 2.
Chapman telephoned Plaintiff later in the afternoon on October 26, 2012. Chapman informed Plaintiff that “[his] leaving the premises” was being treated “as a voluntary quit.” [Document 16] at 2. “Plaintiff understood this to mean that he was terminated and that he should not return to work.” Id. Chapman neither discussed the note from Dr. Brango, nor requested additional documentation from Plaintiff. “After his termination Plaintiff requested appropriate FMLA forms from the Defendant to document his FMLA request,” but Defendant refused to provide the forms. Id.
2. Interference Claim (Count I)
the FMLA, “an eligible ememshall be entitled to a total of 12 workweeks of leave during any 12-month period ... [b]eeause of 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). It is “unlawful for any employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].” Id. § 2615(a)(1).
To establish unlawful interference with an entitlement to FMLA benefits, an employee must prove that:
(1) she was an eligible employee;
(2) her employer was covered by the statute;
(3) she was entitled to leave under the FMLA;
(4) she gave her employer adequate notice of her intention to take leave; and
(5) the employer denied her FMLA benefits to which she was entitled.
Rodriguez v. Smithfield Packing Co., Inc.,
Defendant contends that Plaintiffs Amended Complaint fails to allege adequately the eligibility, entitlement, and notice elements.
a. “Eligible Employee”
Defendant asserts that “Plaintiffs Complaint fails to include allegations that he was indeed eligible for the FMLA’s protections.” [Document 19-1] at 5. An “eligible employee” is an individual:
who has been employed—
(i) for at least 12 months by the employer with respect to whom leave isrequested under section 2612 of this title; and
(ii) for at least 1,250 hours of service with such employer during the previous 12-monbh period.
29 U.S.C. § 2611(2)(A) (emphasis added). Thus, a plaintiffs complaint must allege both that the plaintiff worked for the employer for at least 12 months prior to the FMLA request and that in the 12 months prior to the request, the plaintiff worked for the employer for at least 1,250 hours. See Anusie-Howard v. Bd. of Educ. of Baltimore Cnty., No. WDQ-12-0199,
The Amended Complaint states that Plaintiff was employed by YRC Freight from 2002 until his termination on October 26, 2012, thus satisfying the one-year element of the “eligible employee” standard. However, as to the 1,250-hour element, the Amended Complaint does not state explicitly that Plaintiff worked the requisite number of hours necessary to be an eligible employee. Because Plaintiff could simply allege that he met the hour requirement, the Court shall require an explicit statement to this effect in an amendment to the Complaint.
The Court will assume that Plaintiff will file a Supplement adequately alleging his eligible employee status and will address the other issues presented by the instant motion.
b. “Entitled to Leave”
An eligible employee is entitled to FMLA leave in five circumstances. See 29 U.S.C § 2612(a)(1). Plaintiff has alleged facts sufficient to present a plausible claim that he was entitled to take FMLA leave “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” Id. § 2612(a)(1)(D).
“The term ‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider.” Id. § 2611(11)(B). More specifically:
A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.
(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3)May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
29 C.F.R. § 825.115(a, c).
The Amended Complaint alleges that “[t]he chronic high blood pressure, severe chest pains, [and] severe anxiety experienced by the Plaintiff on October 26, 201[2] constituted serious health conditions.”
Plaintiff has alleged that he experienced high blood pressure, chest pains, and anxiety. A determination of whether those symptoms qualify as a “serious health condition” or “chronic serious health condition” under the FMLA is inappropriate at the dismissal stage. Cf. Hurlbert v. St. Mary’s Health Care Sys., Inc.,
[5]Defendant contends that Plaintiff was not entitled to FMLA leave because he was not diagnosed with a functional impairment. However, reis no requirement in the [FMLA] that an employ
Plaintiff is not required to plead facts sufficient to prove his claim, but must only plead facts sufficient to present a plausible, rather than a merely conceivable, claim. See Monroe v. City of Charlotesville, Va.,
c. “Adequate Notice”
“An employee is mandated to provide' notice to her employer when she requires FMLA leave.” Rhoads v. F.D.I.C.,
make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer ... and ... shall provide the employer with not less than 30 days’ notice, ... except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
29 U.S.C. § 2612(e)(2).
However, the FMLA regulations acknowledge that an employee’s need for FMLA-qualifying leave may be unforeseeable.
“Case law and federal regulations make it clear ... that employees do not need to invoke the FMLA in order to benefit from its protections. The regulations do not require the employee to ‘expressly assert rights under the FMLA or even mention the FMLA....’ ”
After an employee provides the required notice in circumstances when the need for leave was unforeseeable, “[t]he employer will be expected to obtain any additional required information through informal means.”
contends that dismissal is appropriate because Plaintiff did “not allege[] that he expressly asked Defen-Defenfor FMLA leave or otherwise commucommu... an alleged history of chronic high blood pressure,” but instead asked a coworker “to vaguely notify [Chapman],” subsequently made similar “vague remarks about his bodily aches” to [Chapman], and then “fax[ed] a vague doctor’s note.” [Document 19-1] at 8. Defendant relies heavily on Mondonedo v. Frito-Lay, Inc., a decision from this Court that granted summary judgment in favor of the employemployon an FMLA interference claim. In that case, plaintiff Mondonedo called his supervisor “and informed her that he was not feeling well ’ ” and would not be comcomto work. Mondonedo,
The instant case does not present the situation addressed in Mondonedo. First, Plaintiff asked a fellow employee to inform his supervisor Chapman that he was experiencing chest pain, chest pressure, and anxiety that substantially impaired his ability to make a scheduled out-of-state delivery and that he was going home to seek medical treatment. Second, Plaintiff then telephoned Chapman and informed him that he:
was feeling pain and pressure in his chest and a lot of stress and anxiety, and did not feel medically able to drive a commercial vehicle, that he was going home to obtain medical treatment with his primary care physician, and that he would have a doctor’s note for him.
[Document 16] at 2. Contrary to Defendant’s contention, this qualifies as more than “vague remarks about [Plaintiffs] bodily aches.” [Document 19-1] at 8. Third, after Plaintiff saw Dr. Brango on the afternoon of October 26, 2012, a note from Dr. Brango was faxed to Chapman that day. The note indicated that Plaintiff was “having health issues,” was excused from work from October 26 to November 4, and that he should return to work on November 5 with no restrictions. [Document 8] at 2. That same afternoon, Chapman telephone Plaintiff and stated that his leaving the work site was being considered a voluntary quit.
Defendant contends that the note from Dr. Brango was insufficient to put Defendant on notice that Plaintiff had a serious health condition and needed FMLA leave. In support of its position, Defendant cites to Lackey v. Jackson County, an unreported case from the U.S. District Court for the Middle District of Tennessee. In Lackey, the court concluded that the doctors’ notes provided by plaintiff Lackey were insufficient to put the defendant employer on notice of the need for FMLA leave because the notes gave excuses for only three days of absence from work, one of which Lackey was not scheduled to work, when Lackey actually missed at least eight additional days of work for which no notes were provided. No. 2:01-0058,
It is important to recognize that “[w]hen the need for FMLA is unforeseen, the Court’s analysis of the adequacy of notice does not occur in a factual vacuum.” Rodriguez,
It is also plausible that Plaintiffs notice to Defendant triggered Defendant’s obligations as an employer under the FMLA to obtain more information. However, Plaintiff was not given an opportunity to provide that information, as Defendant ter
The Court finds that Plaintiff has alleged facts sufficient to present a plausible claim that Defendant had adequate notice of his intent to take FMLA leave,
d. Denial of FMLA Benefits
Plaintiff alleges that Defendant interfered with his rights under the FMLA by terminating his employment after he requested FMLA leave. [Document 16] at 3. Defendant contends that it terminated Plaintiffs employment because he left the worksite without permission. Specifically, Defendant claims that Plaintiff received a letter of discharge on October 26, 2012 because he “le[ft] the worksite without first obtaining approval from management[, which] amounted to a voluntary quit and loss of seniority.” [Document 19-1] at 3.
“[I]nterference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Edgar v. JAC Products, Inc.,
does not contend that he was already on FMLA leave when he left the worksite on October 26, 2012. InInPlaintiff left work that day because he felt medically unable to drive a comcomvehicle and wanted to see a doctor. That same day, Defendant terminated Plaintiffs employment. Assuming the facts alleged by Plaintiff, it is plausible to conclude that Plaintiff would not have been terminated that day had he not left the work site to seek medical treatment.
3. Retaliation Claim (Count II)
Plaintiff alleges that Defendant unlawfully retaliated against him in violation of the FMLA by terminating his employment on October 26, 2012 “because he exercised, or attempted to exercise his rights under the [FMLA].” [Document 16] at 3.
[13] rights afforded to employees under the FMLA include protection from retaliation for exercising their rights under the FMLA. See Dotson v. Pfizer, Inc.,
[1] that he engaged in protected activity,
[2] that the employer took adverse action against him, and
[3] that the adverse action was causally connected to the plaintiffs protected activity
Yashenko v. Harrah’s NC Casino Co., LLC,
[14] has pled adequately that he engaged in protected activity by atatto take FMLA leave. Further,
In this case, the close temporal connection between Plaintiffs attempt to exercise FMLA rights and his termination — the same day, October 26, 2012 — satisfies the pleading standard for a causal connection between the protected activity and the adverse action.
B. 42 U.S.C. § 1981 Claim (Count III)
1. The Statute
42 U.S.C. § 1981 was originally enacted by Congress during the post-Civil War Reconstruction Era as part of the Civil Rights Act of 1886. It provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit' of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....
42 U.S.C. § 1981(a) (2006). Section 1981 explains that “ ‘make and enforce contracts’ ” includes the “termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b).
In its Motion to Dismiss, Defendant incorrectly argues that Plaintiff must set forth a prima facie case of discrimination under § 1981 to survive dismissal. See [Document 19-1] at 11-12. However, the United States Supreme Court has noted that “under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case.” Swierkiewicz v. Sorema N.A.,
a plaintiff [to] allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
2. The Alleged Facts
Plaintiff is a 54-year-old Caucasian male, and Chapman is an African-American male. Chapman is the Terminal Manager at Defendant’s Baltimore Terminal. According to the Amended Complaint, when Chapman was the Operations Manager at Defendant’s Washington, DC Terminal, he “announced ... that he was going to make the DC YRC Terminal into an ‘all black terminal.’ ” [Document 16] at 4. Chapman has used Defendant’s “disciplinary rules to terminate older Caucasian employees from YRC” since he became the Terminal Manager at Defendant’s Baltimore Terminal in or around 2011. Id.
Chapman has engaged in “racially disparate treatment practices” on multiple occasions. Id. An African-American employee who allegedly stole another employee’s paycheck and another African-American employee who allegedly stole YRC Freight property were neither disciplined, nor terminated. Chapman terminated an older Caucasian employee who “was charged with stealing a magazine and a pair of gloves at a Sheetz facility in North Carolina, while driving for [YRC Freight],” but who was not convicted, without asking the employee “to explain the event.” Id. In addition, Plaintiff “complained to the Human Resources Department that Gary Chapman had stolen $300.00 from the Plaintiff, but he has not been disciplined for it.” Id.
Since beginning as the Terminal Manager in Baltimore, Chapman has terminated at least eight “older Caucasian employees on, what are believed to be pre-textual reasons, usually related to illness or injury.” Id. “The termination of the older Caucasian employees is out of proportion to the [termination] of African American employees.” Id. Plaintiff alleges that he is also an “older Caucasian employee” who was subsequently removed “from the employment rolls of the Baltimore Terminal” after making a request for medical leave. Id. at 5.
3. Sufficiency
Plaintiff alleges that his termination from YRC Freight was a violation of 42 U.S.C. § 1981 because Chapman'terminated him “because of his Caucasian race.” Id. Defendant contends that dismissal is appropriate because “Plaintiffs vague and conclusory assertions regarding the alleged treatment of African Americans as compared to Caucasian employees is not enough to prevent the dismissal of his Section 1981 claim.” [Document 19-1] at 12.
Plaintiff alleges that Chapman used Plaintiffs FMLA leave request “as a convenient excuse to remove another older Caucasian employee from [Defendant’s] employment,” which amounted to discrimination on the basis of race in violation of § 1981. See [Document 16] at 5. In support of that claim, Plaintiff provides four examples of allegedly “racially disparate treatment practices employed by Gary Chapman.” See id. at 4. Three of the four examples involve allegations of theft by YRC Freight employees. Plaintiff alleges that an African-American employee of Defendant who stole another employee’s paycheck and another African-American em
Plaintiff also supports his § 1981 claim by listing the names of eight “older Caucasian employees” who were purportedly fired “on, what are believed to be pretextual reasons.” Id. However, Plaintiff fails to provide any specific allegations regarding the termination of those individuals’ employment, other than to state that the purported pretext was “usually related to illness or injury.” Id.
“Legal inferences drawn from the facts, unwarranted inferences, unreasonable conclusions, or arguments are not part of the consideration” for whether a complaint will survive a motion to dismiss filed pursuant to Rule 12(b)(6). Dolgaleva v. Virginia Beach City Pub. Sch.,
The Court concludes that Plaintiff has failed to plead a plausible race-based discrimination claim under § 1981.
C. Amendment
The Court has determined that Plaintiff has not pled adequately his FMLA claims because he did not present a specific allegation establishing that he met the Í,250hour requirement. It is doubtful that there will be a genuine issue as to this element. Moreover, Plaintiff has pled adequately the remaining elements of his FMLA claims. Therefore, the Court will defer dismissal of the claims in Counts One and Two to allow Plaintiff to file a Supplement to the Amended Complaint to add allegations relating to the 1,250-hour requirement.
The Court has determined that Plaintiff has failed to plead adequately a § 1981 claim. The Court will not now permit Plaintiff to file a Second Amended Complaint to restate the claim. However, assuming that Plaintiff files the requisite Supplement regarding his FMLA claims, he will be able to engage in discovery relating to the reasons why YRC Freight terminated his employment. This discovery may include discovery into alleged racial and/or age discrimination to refute YRC Freight’s contention that there were valid reasons for the termination. Therefore, dismissal of Count Three will be without prejudice to a motion seeking to reassert the § 1981 claim should Plaintiff present an adequate evidentiary basis for such a claim.
For the foregoing reasons:
1. Defendant’s Motion to Dismiss [Document 19] is GRANTED IN PART.
2. All claims in Counts One and Two shall be dismissed unless Plaintiff files a Supplement to the Amended Complaint by January 12, 2014 alleging facts that present a plausible claim that he met the 1,250-hours-worked standard of 29 U.S.C. § 2611(2)(A)(ii).
3. All claims in Count Three are dismissed without prejudice to the ability of Plaintiff to seek leave, subject to a deadline to be set by further Order, to reassert the claim upon a showing of an adequate evidentiary basis for such a claim.
4. Plaintiff shall arrange a telephone conference to be held by January 12, 2014 regarding the scheduling of further proceedings herein.
Notes
.The Memorandum filed in support of the instant motion indicates that the motion applies to Plaintiff's Amended Complaint. See Memorandum in Support of Defendant's Motion to Dismiss Amended Complaint [Document 19-1].
. The "facts” herein are as alleged by Plaintiff and are not necessarily agreed upon by Defendant.
. All "Rule” references herein are to the Federal Rules of Civil Procedure.
. The parties' filings refer to Dr. Brango as "Dr. Carl E. Brago.” However, a note from Plaintiff's physician contains the signature of "Carl W. Brango MD.” [Document 8] at 2. Accordingly, the Court will refer to the physician as "Dr. Brango.”
. The Amended Complaint does not state whether Plaintiff or Dr. Brango faxed the documentation to Chapman.
. Defendant's Motion to Dismiss does not state that Plaintiff failed to allege sufficiently the "employer” element. The FMLA defines an "employer” as “any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C. § 2611(4)(A)(i). The Amended Complaint states that "Defendant YRC, Inc. is an employer, with more than 50 employees, and subject to the [FMLA].” [Document 16] at 1. The Court finds that Plaintiff has pled adequately the "employer” element.
Further, the Motion to Dismiss does not state that Plaintiff failed to allege sufficiently the “denial” element. The Amended Complaint states that "Defendant refused to provide the [FMLA] forms” Plaintiff requested and that "[germinating the Plaintiff on October, 26, 2012 because he requested FMLA qualifying medical leave, constituted unlawful interference with Plaintiff's rights under the FMLA.” [Document 16] at 2-3. Assuming that Plaintiff was entitled to FMLA leave, the Court finds that Plaintiff has pled adequately the "denial” element.
. The Amended Complaint indicates that these symptoms were "experienced by Plaintiff on October 26, 2013.” [Document 16] at 3 (emphasis added). As that date had not yet occurred at the time of the filing of the Amended Complaint, the Court takes this to be a typographical error.
. Although neither the Amended Complaint, nor the Motion to Dismiss addresses this issue, given that Plaintiff sought leave after experiencing “pressure in the chest, stomach pain, stress, and anxiety” that arose on October 26, 2012 [Document 16] at 1-2, there is a plausible claim that the need for leave was not foreseeable. Thus, the applicable federal regulation in this case is 29 C.F.R. § 825.303 — Employee notice requirements for unforeseeable FMLA leave, and not 29 C.F.R. § 825.302 — Employee notice requirements for foreseeable FMLA leave. However, the Fourth Circuit has acknowledged that “the ‘substance and other particulars of [a § 303(b) notice] must conform to § 825.302 (relating to notice of a need for leave that is foreseeable), and only the timing of its delivery is affected by § 825.303.’ ” Peeples v. Coastal Office Products, Inc.,
. The FMLA regulations explain this requirement in detail:
When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA. When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.
29 C.F.R. §§ 825.302(c) (foreseeable leave), 825.303(b) (unforeseeable leave).
. For example, after an employee makes a request for FMLA-protected leave due to a serious health condition,, the "employer may require that [the] request for leave ... be supported by a certification issued by the health care provider of the eligible employee.” 29 U.S.C. § 2613(a).
. Swierkiewicz dealt with a claim brought pursuant to Title VII of the Civil Rights Act of 1964, 42 tTS.C. § 2000e el seq., which is analyzed under McDonnell Douglas. See generally Swierkiewicz,
. “Despite its language ‘as is enjoyed by white citizens/ § 1981 prohibits intentional racial discrimination against whites....” Stock v. Universal Foods Corp.,
. Plaintiff alleges that he complained to the YRC Freight Human Resources Department that Chapman stole $300.00 from him but that Chapman has not been disciplined for the alleged theft. [Document 16] at 4. Plaintiff has not alleged that Chapman was aware of this complaint to Human Resources. Therefore, any implication that these facts reflect racially disparate treatment by Chapman cannot be attributed to Chapman’s conduct, which is the subject of the Amended Complaint, because the Human Resources Department received a complaint about Chapman, not from him.