Bonzani v. Shinseki, 2:11–cv–0007–EFB.

• Decision Date: 11 September 2012
• Docket Number: No. 2:11–cv–0007–EFB.,2:11–cv–0007–EFB.
• Citation: 895 F.Supp.2d 1003
• Court: U.S. District Court — Eastern District of California
• Parties: Matthew BONZANI, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veterans Affairs; Scott Hundahl, M.D., Defendants.

895 F.Supp.2d 1003

Matthew BONZANI, Plaintiff,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs; Scott Hundahl, M.D., Defendants.

No. 2:11–cv–0007–EFB.

United States District Court, E.D. California.

Sept. 11, 2012.

Joanne Ruth Delong, Law Office of Joanne Ruth Delong, Sacramento, CA, for Plaintiff.

Lynn Trinka Ernce, United States Attorney's Office, Sacramento, CA, for Defendants.

ORDER

EDMUND F. BRENNAN, United States Magistrate Judge.

This action is before the undersigned based on the consent of the parties. See Dckt. No. 18; see alsoE.D. Cal. L.R. 305; 28 U.S.C. § 636(c). Defendants move to dismiss plaintiff's Family Medical Leave Act (“FMLA”) claim against defendant Dr. Scott Hundahl pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim. Dckt. No. 36. Additionally, defendants seek to strike plaintiff's request for a jury trial on plaintiff's FMLA claim against the Secretary. Id. For the reasons stated herein, defendants' motion to dismiss will be denied and defendants' motion to strike will be granted.

I. BACKGROUND

On December 31, 2010, plaintiff Matthew Bonzani, M.D., a former anesthesiologist at the Sacramento VA Medical Center in Sacramento, California, filed a disability discrimination complaint against defendants Eric K. Shinseki, Secretary of Veterans Affairs (the “Secretary”); Scott Hundahl, M.D., also a doctor at the Sacramento VA Medical Center; and ten unnamed doe defendants, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (“Rehabilitation Act”), the FMLA, and 5 U.S.C. § 2302. Compl., Dckt. No. 1.

The complaint alleges that in April 2009, plaintiff exacerbated an injury in his knee, that he was required to have surgery on his knee, and that he had to take four weeks off work to recuperate. Id. ¶¶ 17, 18. Plaintiff alleges that after he returned to work in July 2009, his supervisor, Dr. Hundahl, yelled at plaintiff on more than one occasion, and told plaintiff that his absence caused working conditions to deteriorate. Id. ¶¶ 19, 20. Plaintiff further alleges that from July 2009 to March 2010, Dr. Hundahl required plaintiff to work extra on-call shifts, failed to return plaintiff's emails and phone calls, and would not agree to meet with plaintiff. Id. ¶¶ 21, 22. Plaintiff also alleges that he was excluded from the interviewing and hiring process for an open Staff Anesthesiologist position in the fall of 2009, and that in December 2009, he resigned from his position as Chief of Anesthesiology because Dr. Hundahl's “cold shoulder treatment and other obstructions” made plaintiff unable to perform that role. He alleges that for those reasons he requested that he be reassigned to the open Staff Anesthesiologist position. Id. ¶¶ 23, 24.

Finally, plaintiff alleges that in January 2010, he was notified in writing by Dr. Hundahl that plaintiff's contract would expire on March 18, 2010 and it would not be renewed and that when plaintiff asked Dr. Hundahl why his contract would not be renewed, Dr. Hundahl told him it was because plaintiff took too long to recuperate from his knee surgery and he took too much sick leave. Id. ¶¶ 14, 25.

On September 26, 2011, 2011 WL 4479758, an order issued granting in part and denying in part defendants' motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). Dckt. No. 28. The order dismissed plaintiff's Section 504 Rehabilitation Act claim as to all defendants without leave to amend; dismissed plaintiff's Section 501 Rehabilitation Act claim against defendant Dr. Hundahl without leave to amend; dismissed plaintiff's claim under § 2615(a)(2) or § 2615(b) of the FMLA with leave to amend; and dismissed plaintiff's claim under 5 U.S.C. § 2302 as to all defendants without leave to amend. Id. The order denied defendants' motion to dismiss plaintiff's claim under § 2615(a)(1) of the FMLA. Id. Because plaintiff did not file an amended complaint, plaintiff's remaining claims are: (1) a Section 501 Rehabilitation Act claim against the Secretary, and (2) a claim under § 2615(a)(1) of the FMLA against all defendants. Dckt. No. 32 at 2.

Defendants now move to dismiss plaintiff's FMLA claim against Dr. Hundahl and seek to strike plaintiff's request for a jury trial on plaintiff's FMLA claim. Dckt. No. 36. Plaintiff opposes the motion. Dckt. No. 38.

II. MOTION TO DISMISS

Defendants move to dismiss plaintiff's claim under § 2615(a)(1) of the FMLA as against defendant Dr. Hundahl pursuant to Rule 12(b)(6), arguing that Dr. Hundahl is not a proper defendant because (1) as a public employee, he is not an employer subject to individual liability under the FMLA, and (2) the complaint only alleges actions taken by Dr. Hundahl in his official capacity and such a claim is the equivalent of plaintiff's FMLA claim against the Secretary. Dckt. No. 36. Defendants argue that to the extent plaintiff seeks to impose personal liability on Dr. Hundahl under the FMLA, the complaint does not allege sufficient facts to state such an individual liability claim. Id. Plaintiff opposes the motion, arguing that: (1) public employees can be individually liable as “employers” under the FMLA; and (2) plaintiff has plead sufficient facts to hold Dr. Hundahl individually liable under the FMLA. Dckt. No. 38.

A. Standard of Review

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235–236 (3d ed.2004)). “[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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988).

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404,reh'g denied,396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969). The court will “ ‘presume that general allegations embrace those specific facts that are necessary to support the claim.’ ” Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). However, “[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir.1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (1987), and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir.1986).

B. Public employees can be individually liable as “employers” under the FMLA

Defendants seek to dismiss plaintiff's FMLA claim against Dr. Hundahl, arguing that a public employee cannot be individually liable as an employer under the FMLA. Defendants and plaintiff both acknowledge a split in authority at the circuit and district court levels on this issue. Dckt. Nos. 36, 38. The Ninth Circuit has yet to provide a controlling decision on the interpretation of the FMLA's definition of “employer.”

The circuit courts that have addressed the issue are split on whether a public employee can be individually liable as an employer under the FMLA. The Third, Fifth, and Eighth Circuits have held that public employees can be personally liable under the FMLA, while the Sixth and Eleventh Circuits have held that public employees are not individually liable under the FMLA. Haybarger v. Lawrence County Adult Probation & Parole, 667 F.3d 408 (3d Cir.2012); Modica v. Taylor, 465 F.3d 174 (5th Cir.2006); Darby v. Bratch, 287 F.3d 673 (8th Cir.2002); Mitchell v. Chapman, 343 F.3d 811 (6th Cir.2003); Wascura v. Carver, 169 F.3d 683 (11th Cir.1999).

The district courts are also split, with a majority favoring individual liability for public employees under the FMLA. Compare Sheaffer v. County of Chatham, 337 F.Supp.2d 709, 728 (M.D.N.C.2004); Cantley v. Simmons, 179 F.Supp.2d 654, 657 (S.D.W.Va.2002); Knussman v. State of Md., 935 F.Supp. 659, 663–64 (D.Md.1996); Kilvitis v. County of Luzerne, 52 F.Supp.2d 403, 411–16 (M.D.Pa.1999); Meara v. Bennett, 27 F.Supp.2d 288 (D.Mass.1998); Smith v. Westchester County, 769 F.Supp.2d 448 (S.D.N.Y.2011) (all holding that public employees can be individually liable under FMLA) with Sadowski v. U.S. Postal Serv., 643...