Santana-Colón v. Houghton Mifflin Harcout Publ'g Co., Civil No. 13–1053 PAD.

• Decision Date: 30 September 2014
• Docket Number: Civil No. 13–1053 PAD.
• Parties: SANTANA–COLÓN, et al., Plaintiffs, v. HOUGHTON MIFFLIN HARCOUT PUBLISHING COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

81 F.Supp.3d 129

SANTANA–COLÓN, et al., Plaintiffs

v.HOUGHTON MIFFLIN HARCOUT PUBLISHING COMPANY, et al., Defendants.

Civil No. 13–1053 PAD.

United States District Court, D. Puerto Rico.

Signed Sept. 30, 2014.

Jose E. Cespedes–Sabater, Urb. Eleanor Roosevelt, San Juan, PR, for Plaintiffs.

Jose A. Nolla–Mayoral, Nolla, Palou & Casellas, LLC, San Juan, PR, Jennifer Lopez–Negron, Nolla Palou & Casellas, Bayamon, PR, for Defendants.

OPINION AND ORDER

PEDRO A. DELGADO–HERNANDEZ, District Judge.

Plaintiffs José Santana–Colón, his wife Iris Vizcarrondo, and the conjugal partnership between them initiated this action against defendant Houghton Mifflin Harcourt Publishing Company, claiming defendant violated the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.; Puerto Rico Law No. 80 of May 30, 1976, as amended, P.R. Laws Ann. tit. 29 §§ 185a et seq.; and Puerto Rico Law No. 115 of December 20, 1991, P.R. Laws Ann. tit. 29 §§ 194 et seq. In addition, they have alleged Houghton owes commissions to Santana, and is liable for damages under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141 and § 5142. Jurisdiction has been predicated on 28 U.S.C. § 1331, § 1332, and § 1367.

Before the Court is defendant's “Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted” (Docket No. 18). For the reasons explained below, the motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

Santana was employed with defendant as an Associate Sales Representative. At some point, he began to experience medical problems resulting from stress and physical wear. In December 2010 he fell ill at work, and was taken to a hospital emergency room. In February 2011, he was hospitalized. On August 11, 2011, he sought treatment with the Corporation of the State Insurance Fund of Puerto Rico (“SIF”).¹

Initially, the SIF ordered Santana to rest, but in October 2011 released him to work, finding that his condition was not work related. Given that Santana was in no condition to work, he filled out FMLA paperwork. Defendant designated the leave as FMLA leave to run concurrently with the SIF (worker's compensation) leave. In February 2012, it terminated Santana's employment in what plaintiffs have characterized as a pretextual downsizing.

After plaintiffs initiated the action, defendant moved to dismiss (Docket No. 11), plaintiffs submitted an amended complaint (Docket No. 17), defendant filed a second motion to dismiss (Docket No. 18), plaintiffs opposed the motion, (Docket No. 19), defendant replied (Docket No. 24), and plaintiffs sur-replied (Docket No. 27). Defendant contends all claims should be dismissed under Fed.R.Civ.P. 12(b)(6).

II. STANDARD OF REVIEW

To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must allege a plausible entitlement to relief. Rodríguez–Vives v. Puerto Rico Firefighters Corps, 743 F.3d 278, 283 (1st Cir.2014) ; Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49, 53 (1st Cir.2013) ; Rodríguez–Ortiz v. Margo Caribe, 490 F.3d 92, 95 (1st Cir.2007).

Plausibility involves a context-specific task calling on courts to examine the complaint as a whole, separating factual allegations (which must be accepted as true) from conclusory allegations (which need not be credited). García–Catalán v. United States, 734 F.3d 100, 103 (1st Cir.2013) ; Morales–Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.2012). While detailed factual allegations are not required, more than labels and conclusions are needed.

Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir.2011).

Bare bones recitals of the elements of a cause of action will not do. Mead v. Independence Ass'n, 684 F.3d 226, 231 (1st Cir.2012). Unadorned factual assertions as to those elements are inadequate as well. Peñalbert–Rosa v. Fortuno–Burset, 631 F.3d 592, 596 (1st Cir.2011). Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but has not shown—that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. DISCUSSION

A. Family and Medical Leave Act

Plaintiffs claim defendant knowingly and willfully violated the FMLA by discriminating against Santana and terminating his employment in retaliation for having taken a protected leave (Docket No. 17 at ¶¶ 58–59). Defendant counters plaintiffs failed to allege facts necessary to show Santana was an eligible employee under the FMLA, or that he was discriminated or retaliated against for taking FMLA leave (Docket No. 18 at p. 8).

The FMLA was enacted to help working women and men balance the competing demands of work and personal life. It contains two relatively distinct types of provisions: prescriptive and proscriptive. The former create substantive rights, whereas the latter provide protection for the exercise or the attempt to exercise those rights. Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir.2005). The provisions create two distinct causes of action, to which courts apply different analyses. Id. at 331.

As to substantive rights, the FMLA entitles eligible employees of covered employers to, inter alia, take 12 weeks of leave during any 12–month period for a variety of reasons, and with limited exceptions, to be reinstated to the same position or an alternative position with equivalent pay, benefits, and working conditions, without loss of accrued seniority. Id. at 330.

To ensure these entitlements, the FMLA makes it unlawful for the employer to interfere with, restrain, or deny the exercise of rights under the statute. In such instances, the key issue is whether the employer provided the employee the benefits to which he was entitled under the FMLA. In turn, the FMLA's proscriptive provisions protect the entitlements by prohibiting the employer from retaliating or discriminating against employees who have exercised or attempted to exercise rights created by the FMLA. Id. at 331–332.

The FMLA does not cover every employer and employee. To be considered eligible for statutory protection, the employee must have worked for a covered employer (1) for at least 12 months, (2) not less than 1,250 hours during the 12–month period immediately preceding the date the leave is taken; and (3) at a worksite where the employer employs at least 50 employees within 75 miles as of the date that notice of the need for leave was provided. 29 U.S.C. § 2611(2)(A) and § 2611(2)(B)(ii) ; McArdle v. Town of Dracut/Dracut Public Schools, 732 F.3d 29, 33 (1st Cir.2013).

In their application, these requirements define and limit the class of employees entitled to claim statutory relief. For the same reason, an interference claim brought by an ineligible employee fails. See, Rodríguez v. JSPLTC, LLC, 2013 WL 1791145, *2–3 (D.N.J. April 25, 2013) (dismissing interference action due to plaintiff's failure to plead sufficient factual matter to plausibly infer she was an eligible employee under the FMLA). See also, Walker v. Trinity Marine Products, Inc., 721 F.3d 542, 544–545 (8th Cir.2013) ; Basden v. Professional Transp., Inc., 714 F.3d 1034, 1039 (7th Cir.2013) (summary judgment dismissing interference claim with FMLA rights, since by having been employed less than twelve months, plaintiff was not eligible for statutory protection).

A number of courts have subjected retaliation and discrimination actions to similar constraints. See, Humenny v. Genex Corp., 390 F.3d 901, 905–906 (6th Cir.2004) (to state a claim for retaliation, plaintiff must qualify as an eligible employee under FMLA); Walker v. Elmore County Bd. of Educ., 379 F.3d 1249, 1254 (11th Cir.2004) (eligibility a prerequisite for retaliation claim); McSweeney v. Dinner's Served, Inc., 2010 WL 4853801, at *2–3 (S.D.Texas Nov. 22, 2010) (dismissing FMLA discrimination claim since based on the pleadings, plaintiff was not an eligible employee). See also, Goode v. Heritage Hospice, Inc., 2012 WL 1038669, at *2–3 (E.D.Ky. March 26, 2012) (dismissing interference and retaliation claims under Fed.R.Civ.P. 56 because plaintiff was not an eligible employee covered by FMLA).

The First Circuit has expressed reservations on whether an employee who is ineligible for FMLA leave could never bring a retaliation claim, because that would mean such an employee could be fired for asking if he was eligible for FMLA leave. McArdle, 732 F.3d at 35. Nevertheless, it has recognized that an employee could not successfully argue to have been discharged for taking leave if such leave was not a right protected by the FMLA. Id.; see also, Carrero–Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 719 (1st Cir.2014) (pointing out that to make out a prima facie case of FMLA retaliation, an employee must show that he availed himself of a protected FMLA right); Orta–Castro v. Merck, Sharp & Dohme, 447 F.3d 105, 114 (1st Cir.2006) (same).

With these formulations, it is apparent that compliance with the FMLA's eligibility requirements conditions the viability of FMLA interference claims, and of discrimination and retaliation actions brought by employees who have taken leaves of absence. Consequently, to withstand dismissal, the pleadings must contain sufficient factual allegations to reasonably infer a plaintiff's status as an eligible employee within the meaning of the FMLA.

A careful review of the amended complaint shows plaintiffs have not pled sufficient facts to reasonably infer (1) that Santana worked for defendant at least 1,250 hours during the 12–month period preceding the August 2011 leave, or (2) that defendant employed at least 50 employees within 75 miles of Santana's workplace when it received notice of the employee's need for leave that year. Given that, as discussed, lack of eligibility is fatal to recovery, the allegations do not sustain viable FMLA claims. See, McArdle, 732 F.3d at 35 (employee ineligible for FMLA leave cannot be said to have been fired in retaliation for taking a leave ...