Mell v. Minnesota State Agricultural Society, TheMell v. Minnesota State Agricultural Society, The
OPINION AND ORDER
Bryan J. Morben and Erin M. Edgerton Hall, Fredrikson & Byron, P.A., Minneapolis, MN, for Defendant Minnesota State Agricultural Society.
After she had been working at The Minnesota State Agricultural Society—which does business as the Minnesota State Fair (“the Fair“)—for more than 30 years, Josianne Mell was diagnosed with cancer. Mell underwent surgery at the recommendation of her doctor and took nearly six months off work to recover. When she returned to work without restrictions in June 2020, the Fair demoted her and eventually terminated her. Mell claims that these actions violated several federal and state statutes. The Fair has moved to dismiss Mell‘s complaint in its entirety.
The Fair‘s motion will be granted in part and denied in part. Mell has plausibly alleged that the Fair violated the Family and Medical Leave Act (“FMLA“) when it refused to restore her to her prior position upon her return from medical leave, and the complaint does not establish the Fair‘s asserted defenses. Mell‘s FMLA entitlement claim may therefore proceed. Mell has not plausibly alleged that the Fair discriminated against her for taking FMLA leave, that it took adverse employment actions against her because of her disability, that it failed to reasonably accommodate her disability, or that it retaliated against her for engaging in statutorily protected activity. Her remaining claims will therefore be dismissed without prejudice.
I1
Mell has worked for the Fair in several different roles since 1983, taking on a full-time schedule in 2002. Compl. ¶ 8 [ECF No. 1]. During the time period relevant to this case, she was a finance supervisor in the Fair‘s Administration Department. Id. She received “positive annual performance reviews” and had no documented instances of discipline. Id. ¶ 9.
Mell went through with the January 14 surgery and soon discovered “that she needed more time off to recover.” Compl. ¶ 13. She requested a four-week extension of her leave, and the Fair approved that request on March 18. Id. ¶ 14. The approval letter informed her that she would “exhaust all 12 weeks of [her] leave entitlement under the Family and Medical Leave Act on April 8, 2020.” Edman Decl., Ex. B at 19.
This is when miscommunications between Mell and the Fair seem to have begun. At first, a fitness-for-duty certification from Mell‘s physician indicated that Mell would not be able to return to work until June 22, 2020. Edman Decl., Ex. C; see Compl. ¶ 16. In early April, Mell told another Fair supervisor, Debbie Edman, that her physician had released her to work without restrictions on April 13, 2020. Compl. ¶ 15; see Edman Decl., Ex. D. Edman said that she was “surprised” by this and “needed to speak with legal counsel.” Compl. ¶ 15.
Shortly after this conversation, Edman and Schoen called Mell to ask why the doctor had changed her return-to-work date. Id. ¶ 16. When Mell replied that she “did not want to lose her job and health insurance,” Schoen told her to change her return date back to June 22 “because of the COVID-19 pandemic.” Id. Mell did so, requesting additional leave through that date. Id. ¶ 17; see Edman Decl., Ex. E. The Fair approved her request effective April 29. Compl. ¶ 17.3
On June 19, Mell submitted an updated fitness-for-duty certification confirming that her doctor had released her to work without restrictions starting June 22. Compl. ¶ 19; see Edman Decl., Ex. F. According to the job description attached to this certification (which was meant to be used as a reference when determining Mell‘s work restrictions), Fair employees were expected to take on additional duties due to the “cancellation of the 2020 fair.” Edman Decl. ¶ 7, Ex. F at 35. These included “[p]hysical activity such as[] maintenance, care and upkeep of plants, flowers, [and] garden areas“; working in an environment with “hazardous substances” and “heat/cold“; and “heavy lifting (up to 50 pounds).” Id., Ex. F at 35.
Mell attempted to return to her desk job on June 23, 2020. Compl. ¶ 20. In a meeting that day, Schoen and Edman informed her that, going forward, she would be “assigned ‘special projects’ [as] a Floating Laborer,” and Schoen would assume “most
Finally, on October 6, Schoen and Edman told Mell that she would be terminated, with her last day scheduled for October 30. Id. ¶ 23. The Fair offered her a separation agreement which would have required her, among other things, to waive a number of legal claims in exchange for a severance payment. Edman Decl., Ex. G. Mell did not sign the agreement. Compl. ¶ 23.
Mell filed this lawsuit on April 23, 2021, about six months after her termination. ECF No. 1. She asserts the following claims: (1) disability discrimination under the Minnesota Human Rights Act (“MHRA“),
II
In reviewing a motion to dismiss for failure to state a claim under
At the pleading stage, a plaintiff raising a discrimination or retaliation claim “need not plead facts establishing a prima facie case[.]” Warmington v. Bd. of Regents of Univ. of Minn., 998 F.3d 789, 796 (8th Cir. 2021); see also Hager v. Ark. Dep‘t of Health, 735 F.3d 1009, 1016 (8th Cir. 2013). “However, the ‘elements of the prima facie case are [not] irrelevant to a plausibility determination in a discrimination suit.‘” Warmington, 998 F.3d at 796 (quoting Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016)). Rather, the allegations in the complaint must “‘give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas,’ which in turn ‘reduces the facts needed to be pleaded under Iqbal.‘” Wilson v. Arkansas Dep‘t of Human Servs., 850 F.3d 368, 372 (8th Cir. 2017) (quoting Littlejohn v. City of New York, 795 F.3d 297, 310, 316 (2d Cir. 2015)). In other words, the elements of the prima facie case are “part of the background against which a plausibility determination should be made.” Blomker, 831 F.3d at 1056 (citation omitted).
III
Start with Mell‘s FMLA claims. “The FMLA entitles eligible employees to
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.(2) Discrimination
It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
Our Eighth Circuit Court of Appeals “has recognized three types of claims arising under these two subsections. The first type, arising under
arises when an employer takes adverse action against an employee because the employee exercises rights to which he is entitled under the FMLA. In this scenario, the employer does not prevent the employee from receiving FMLA benefits. Rather, it is alleged that after the employee exercised his statutory rights, the employer discriminated against him in the terms and conditions of employment. An employee making this type of claim must prove that the employer was motivated by the employee‘s exercise of rights under the FMLA. The textual basis for such a claim is not well developed in [the Eighth Circuit‘s] cases, but the claim likely arises under the rule of
§ 2615(a)(1) that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” rights defined by the FMLA. To distinguish the “entitlement” claim under§ 2615(a)(1) , and the “retaliation” claim under§ 2615(a)(2) , we think it helpful to describe this sort of complaint as a “discrimination” claim.
Pulczinski, 691 F.3d at 1006 (citations omitted); see also Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1157 n.5 (8th Cir. 2016) (noting “an unresolved difference of opinion” in the Eighth Circuit as to whether a discrimination claim arises under
First, Mell alleges that she was entitled to be restored to her prior desk job when she returned from her medical leave. Compl. ¶ 49. The Fair argues that Mell did not have this right because she was unable to return to work when her FMLA leave expired and because her position was eliminated while she was on leave. Def.‘s Mem. in Supp. at 18–22 [ECF No. 14]; Def.‘s Reply Mem. at 13–15 [ECF No. 17].
An employee returning from FMLA leave is generally “entitled to be restored to the same position held prior to the beginning of the leave, or its equivalent, in terms of benefits, pay and other terms and conditions.” Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d 1025, 1029 (8th Cir. 2006) (citing
The Fair argues that Mell was not entitled to restoration for two reasons. First, it says that her position was eliminated due to the COVID-19 pandemic and the cancellation of the 2020 Fair. Def.‘s Mem. in Supp. at 21–22. But an employer has the “burden of proving that an employee would have been laid off during the FMLA leave period,”
Second, the Fair argues that Mell was not entitled to be restored to her prior position because she remained unable to perform the job when her leave expired. Def.‘s Mem. in Supp. at 17–21. This argument raises a difficult and unsettled legal question: does Mell have the burden to plausibly allege that she was able to perform the job, or does the Fair have the burden to show, based on the pleading-stage record, that she was unable to do so?
The relevant statutory and regulatory text does not provide a clear answer to the burden-of-proof question. The statute simply limits an employee‘s right of restoration to those “right[s], benefit[s], or position[s] to which the employee would have been entitled had the employee not taken leave.”
Perhaps because of this textual silence, courts have diverged in their approaches. In two opinions issued weeks apart in 2006, the Eighth Circuit hinted at two opposite conclusions. In Battle v. United Parcel Service, Inc., the court affirmed a grant of summary judgment based on a district court‘s conclusion that the plaintiff “failed to establish that he could perform the essential functions of his position[.]” 438 F.3d 856, 864–65 (8th Cir. 2006). By contrast, in Bloom v. Metro Heart Group of St. Louis, Inc., the court determined that summary judgment was appropriate because the employer had “show[n] a lawful reason . . . for not restoring” the plaintiff to her job—namely, her inability to perform essential functions of the job. 440 F.3d at 1029–30 (quoting Throneberry, 403 F.3d at 979). There is reason to believe that neither case definitively resolved the burden-of-proof question. In Battle, the evidence showed that the plaintiff “admitted that he could not perform the[] essential functions” at issue, 438 F.3d at 865, and in Bloom, the only hard evidence in the record suggested that the plaintiff could not do the job, 440 F.3d at 1030. In other words, the burden of proof did not seem to affect the result in either case.4
Beyond the Eighth Circuit, some courts, including at least one in this District, have explicitly placed the burden on the employee to show (or allege) that she was able to do the job. See, e.g., Womack v. RCM Techs. (USA), Inc., No. 07-cv-2111 (DWF/AJB), 2008 WL 5382318, at *5 (D. Minn. Dec. 23, 2008); Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 384 (3d Cir. 2002); Davidson v. Tyco/Healthcare, 416 F. Supp. 2d 690, 710 (E.D. Mo. 2005); Connolly v. Cnty. of Hudson, No. 09-cv-4509 (SRC), 2011 WL 2489815, at *3–4 (D.N.J. June 21, 2011); cf. Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 205–06 (D. Conn. Sept. 25, 2012) (denying a motion to dismiss in part because plaintiff
“plausibly alleged that she had the ability to return to work at the end of her FMLA leave“). Others, including a different court in this District, have placed the burden on the employer. See, e.g., Mathews v. Fairview Health Servs., No. 01-cv-2151 (ADM/AJB), 2003 WL 1842471, at *6 (D. Minn. Apr. 7, 2003); Sanders v. City of Newport, 657 F.3d 772, 780 (9th Cir. 2011); Portillo v. Munoz Trucking, Inc., No. EP-19-CV-00047-MAT, 2019 WL 7761813, at *3 (W.D. Tex. Dec. 20, 2019). Finally, some courts have acknowledged the limitation on an employee‘s right of restoration without needing to address the burden of proof at all. See, e.g., Reynolds v. Phillips v. Temro Indus., Inc., 195 F.3d 411, 413–15 (8th Cir. 1999).
Several reasonable arguments could favor placing the burden on the employee. First, an employee raising an entitlement claim “has the burden of proving that she was entitled to a benefit under the FMLA” in the first place. Massey-Diez, 826 F.3d at 1158. An employee who cannot do the job she seeks arguably should not be able to meet that threshold burden. Second, the fact that earlier provisions of the regulation explicitly place the burden on the employer could suggest that
Notwithstanding these considerations, the better answer is that
The pleading-stage record shows that Mell‘s leave began on January 14, 2020. Compl. ¶ 12; see Edman Decl., Ex. A at 10; Pl.‘s Mem. in Opp‘n at 23. This means the last day of her twelve-week continuous leave was April 7, 2020, and, as alleged in the complaint and confirmed in the Fair‘s letter to Mell, “[h]er FMLA leave was exhausted as of April 8, 2020.” Compl. ¶ 14; see Edman Decl., Ex. B at 19.5 Originally, Mell‘s doctor planned to release her to “unrestricted” work on June 22. Edman Decl., Ex. C. When Mell began to worry that she would lose her job, her doctor moved the release date up to April 13—five days after the expiration of Mell‘s FMLA leave. See Compl. ¶ 15; Edman Decl., Ex. D at 30. In other words, Mell‘s doctor released her to “unrestricted” work, at the earliest, on April 13.6 Beyond these return-to-work certifications, however, the record as it stands now shows nothing about Mell‘s physical condition or ability to perform her prior job on April 8.
Although it is a close call, it would be premature to decide that Mell was “unable to perform an essential function of [her] position because of a physical or mental condition” on April 8.
Turning to the FMLA discrimination claim, Mell alleges that the Fair demoted her and eventually terminated her because she exercised her FMLA rights. Compl. ¶¶ 20, 49; Pl.‘s Mem. in Opp‘n at 25–29. The Fair argues that Mell has not plausibly alleged that her exercise of FMLA rights caused these adverse actions. Def.‘s Mem. in Supp. at 22–23.
To proceed with a discrimination claim, Mell must plausibly allege that the Fair took an adverse employment action against her because she exercised her FMLA rights. See Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013). Mell does not suggest that this case involves any direct evidence of discrimination. Absent such allegations, she will eventually need to establish the elements of a prima facie case: “(1) that [s]he engaged in activity protected under the Act, (2) that [s]he suffered a materially adverse employment action, and (3) that a causal connection existed between [her] action and the adverse employment action.” Brown v. Diversified Distrib. Sys., LLC, 801 F.3d 901, 908 (8th Cir. 2015) (citation omitted); see Pulczinski, 691 F.3d at 1007.
The Fair does not dispute that the complaint plausibly supports the first two elements of the prima facie case. By requesting and taking leave for her surgery and ensuing recovery, Mell engaged in protected activity. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). And although the Fair‘s arguments focus on Mell‘s termination, Mell has alleged several plausible adverse employment actions. “An adverse employment action requires a significant change in an employee‘s status, such as termination, demotion, or reassignment with significantly different job responsibilities.” Quinn v. St. Louis Cnty., No. 09-cv-1372 (ADM/LIB), 2010 WL 3733970, at *5 (D. Minn. Sept. 20, 2010). On her first day back at work in June 2020, Schoen informed Mell that she would be reassigned from her office job to “special projects” as a “Floating Laborer,” that she “would likely be out of a job soon,” and that she should “refrain from asking other managers and employees for work and other opportunities.” Compl. ¶ 20. Shortly thereafter, the Fair cut Mell‘s hours from full time to part time. Id. ¶ 21. Finally, at the end of October, Mell was terminated. Id. ¶ 23. All of these plausibly involve a significant negative change in Mell‘s employment status.
The Parties dispute whether Mell has alleged a causal connection between her use of FMLA leave and any of these adverse actions. To do so, her allegations must make it plausible that her “exercise of FMLA rights played a part in the [Fair‘s] decision.” Pulczinski, 691 F.3d at 1007 (internal quotation marks and citations omitted). “Generally, more than a temporal connection between the protected conduct and the adverse employment action is required[.]” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). Temporal proximity alone may suffice only if it is “very close.” Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (citation omitted). In determining the temporal relationship between the two events, the Eighth Circuit “looks to the date an employer knew of an employee‘s use (or planned use) of FMLA leave, not the date it ended.” Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (citation omitted). The Eighth Circuit has said that, “without something more,” a gap of more than two months between the date the employer knew of the employee‘s planned use of FMLA leave and the adverse action “is too long” to show a causal connection between the two. Id. at 901.
Mell‘s arguments in response do not affect this conclusion. First, she emphasizes that the first adverse employment action—her reassignment to labor tasks—occurred immediately when she returned to work. Pl.‘s Mem. in Opp‘n at 28. But her return-to-work date is not the relevant benchmark. What matters is when the Fair “knew of [Mell‘s] use (or planned use) of FMLA leave[.]” Sisk, 669 F.3d at 900.
Second, Mell cites the Eighth Circuit‘s statement that a “pattern of adverse actions that occur just after protected activity can supply the extra quantum of evidence to satisfy the causation requirement.” Smith, 302 F.3d at 832. The problem with this argument is the same one that undermines Mell‘s temporal-proximity argument more generally. Mell may have alleged a “pattern of adverse actions,” but none of them occurred until nearly six months after the Fair learned that Mell would take FMLA leave. It is not fair to say that any of the actions occurred “just after protected activity.”
Finally, Mell argues she “must be allowed to pursue discovery because it will likely reveal more evidence of causation beyond timing alone[.]” Pl.‘s Mem. in Opp‘n at 28. Because she has not alleged a plausible claim, however, Mell has not shown a “reasonable expectation that discovery will reveal evidence” to support her FMLA claims. Mitchell v. Fed. Cartridge Co., No. 17-cv-610 (PAM/HB), 2017 WL 2345679, at *1 (D. Minn. May 30, 2017) (quoting Twombly, 550 U.S. at 556). Her FMLA discrimination claim will accordingly be dismissed.
IV
A
Now move to Mell‘s state-law claims, beginning with her claim that the Fair discriminated against her based on her disability in violation of the MHRA. See
Mem. in Supp. at 12 (quoting Lewis v. CNA Nat‘l Warranty Corp., 63 F. Supp. 3d 959, 961 (D. Minn. 2014)).7
1
The MHRA defines a “disability” as a “condition or characteristic that renders a person a disabled person.”
Mell has not plausibly alleged that she had an impairment that materially limited her life activities at the time the Fair took any adverse employment actions against her. The term “‘impairment’ includes ongoing conditions, but does not include transient conditions in the past that no longer impair the person.” Clemons v. MRCI WorkSource, No. A13-1994, 2014 WL 2178938, at *5 (Minn. Ct. App. May 27, 2014) (collecting cases). “The degree to which a condition limits one or more major life activities is evaluated based on the plaintiff‘s specific circumstances.” Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 543 (Minn. 2001). The earliest potential adverse action that Mell alleges occurred on June 23, 2020, when she returned to work and was told that Schoen was taking over her duties and that she would be reassigned to manual-labor tasks. Compl. ¶ 20. At point, Mell had been released to work without restrictions. See Edman Decl., Ex. F at 34. Her chemotherapy had ended about a month earlier. Compl. ¶ 18. Mell does not allege that any ongoing effects of her cancer materially limited her ability to work or engage in any other life activities. See Liljedahl v. Ryder Student Transp. Servs., Inc., 341 F.3d 836, 841 (8th Cir. 2003) (holding that summary-judgment record did not support a finding that plaintiff‘s cancer materially limited a major life activity because plaintiff‘s “cancer surgery was successful and her recuperation period was limited“).
To support the opposite conclusion, Mell relies extensively on precedent and administrative guidance interpreting the federal Americans with Disabilities Act to argue that cancer in remission qualifies as an ongoing disability under the MHRA. See Pl.‘s Mem. in Opp‘n at 15–16. It is true that courts frequently treat the ADA and MHRA as interchangeable because their definitions overlap in many respects.8 See,
Mell also has not plausibly alleged that the Fair “regarded” her as having an impairment that materially limited a major life activity.
Nonetheless, Mell has plausibly alleged that she had a “record of” an impairment that materially limited one or more major life activities.
2
Mell must also plausibly allege that the Fair took adverse employment actions against her “because of” her disability.
Mell emphasizes three allegations in the complaint. First, when she attempted to move her start date up from June 22 to April 13, Edman stated that she was “surprised” and “needed to speak with legal counsel.” Compl. ¶ 15. Second, the Fair directed her to stay on leave rather than returning to work in April.
These allegations, even considered together, do not plausibly show that any adverse employment actions were motivated by Mell‘s cancer. It is true that the first alleged adverse action occurred immediately when Mell returned to work. But, as with Mell‘s FMLA discrimination claim, the temporal-proximity clock began to run when the Fair learned of her cancer, not when she returned to work. See E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 969–70 (8th Cir. 2014); Norton, 2021 WL 2002314, at *4 n.16. The Fair knew about
B
Next, Mell asserts that the Fair violated the MHRA by failing to provide a reasonable accommodation for her disability. See
Many of the Fair‘s arguments are unpersuasive. The Fair does not cite authority supporting a categorical rule that restoration to an employee‘s prior position is not a reasonable accommodation under the MHRA simply because it is not required under the FMLA. Cf. Brunckhorst, 914 F.3d at 1182 (holding that a plaintiff had not shown that a return to his original position was a reasonable accommodation because there was “no medical reason” why it was necessary). It is also incorrect to say that Mell never asked for her old job. She alleges that, while she was on leave, she “kept both Schoen and Edman updated on her treatment progress and her intent to return to her position, fulltime.” Compl. ¶ 18 (emphasis added). It is therefore plausible that she made clear her desire for the prior position. Finally, the Fair renews its argument that it would not have been “reasonable” to restore Mell to the prior position because that position had been eliminated. See
Nonetheless, Mell has not plausibly alleged a reasonable-accommodation claim. A “[r]easonable accommodation” is a “step[] which must be taken to accommodate the known physical or mental limitation of a qualified individual with a disability.”
C
Finally, Mell claims that the Fair violated the MHRA‘s prohibition on unlawful reprisal. See
The Fair has the better argument. To the extent Mell relies on her request for FMLA leave as protected activity, this claim fails for the same reason as her FMLA discrimination claim. The Fair learned of Mell‘s request for FMLA leave in December 2019, and nearly six months passed before it took any adverse actions against her. Absent other allegations supporting an inference of causation, this temporal gap is too large.
As for Mell‘s request for a reasonable accommodation in the form of restoration to her prior position, there are two problems. First, it is not clear exactly when Mell made this request, but the complaint says that she made her intent to return to the job clear “[t]hroughout the entire course of her leave and related recovery[.]” Compl. ¶ 18. The only reasonable inference to draw from this allegation is that the Fair was aware of Mell‘s desire to return to her job by at least January or February of 2020. But again, months passed before the Fair took any adverse actions against her, and no allegations beyond that temporal connection support an inference of causation. Second, when an employee does not “specifically tie her request[]” for an accommodation to her disability, the employee has not engaged in protected activity under the MHRA. Hoover v. Norwest Private Mortg. Bank, Nos. A03-1347, A03-1796, 2004 WL 1328057, at *9 (Minn. Ct. App. June 9, 2004) (citing Hoover, 632 N.W.2d at 548). As discussed above, no allegations plausibly show that
V
At the conclusion of her brief, Mell asks for an opportunity to file an amended complaint to “cure any identified shortcomings.” Pl.‘s Mem. in Opp‘n at 36. Rule 15(a) encourages courts to grant leave to amend “when justice so requires,” and the Eighth Circuit has said that “parties should usually be given at least one chance to amend their complaint,” Wisdom v. First Midwest Bank, 167 F.3d 402, 409 (8th Cir. 1999). At the same time, however, parties should generally “not be allowed to amend their complaint without showing how the complaint could be amended to save the meritless claim.” Id.
“[C]ourts ultimately have discretion to decide between a with-prejudice and without-prejudice dismissal.” Miles v. Simmons Univ., 541 F. Supp. 3d 1070, 1080 (D. Minn. 2021). Dismissal with prejudice is often appropriate when a plaintiff has shown “persistent pleading failures despite one or more opportunities to amend. See Milliman v. Cnty. of Stearns, No. 13-cv-136 (DWF/LIB), 2013 WL 5426049, at *16 (D. Minn. Sept. 26, 2013). On the other hand, when a plaintiff‘s claims “might conceivably be repleaded with success,” particularly where discovery might reveal yet-unknown facts relevant to a dismissed claim, dismissal without prejudice may be justified. Washington v. Craane, No. 18-cv-1464 (DWF/TNL), 2019 WL 2147062, at *5 (D. Minn. Apr. 18, 2019), report and recommendation adopted, 2019 WL 2142499 (D. Minn. May 16, 2019).
Mell will not be granted leave to amend her complaint at this time. She had a right to amend her complaint without leave after reviewing the arguments the Fair raised in its motion, see
Nonetheless, to the extent Mell‘s claims are dismissed, they will be dismissed without prejudice. The primary flaw in these claims is a lack of factual allegations, not any insuperable legal bar to relief. It is conceivable that discovery may reveal information that Mell could not have obtained before and that supports the dismissed claims (just as it may reveal information negating the FMLA claim that survives). If it does, Mell will be able to seek leave to amend in accordance with applicable procedural rules.
ORDER
Based on the foregoing, and on all the files, records, and proceedings in this case,
IT IS ORDERED THAT Defendant Minnesota State Agricultural Society‘s Motion to Dismiss [ECF No. 12] is GRANTED IN PART and DENIED IN PART as follows:
- The motion is DENIED as to Count IV insofar as that count alleges an entitlement claim under the Family and Medical Leave Act;
- The motion is GRANTED as to Count IV insofar as that count alleges a discrimination claim under the Family and Medical Leave Act. The FMLA discrimination claim is DISMISSED WITHOUT PREJUDICE; and
- The motion is GRANTED as to Counts I, II, and III, and those counts are DISMISSED WITHOUT PREJUDICE.
Dated: August 30, 2021
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court