Downs v. Winchester Med. Ctr.
| Decision Date | 12 May 2014 |
| Docket Number | Civil Action No. 5:13cv00083. |
| Citation | 21 F.Supp.3d 615 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | Christy B. DOWNS, Plaintiffs, v. WINCHESTER MEDICAL CENTER, et al., Defendants. |
Annette Kay Rubin, Law Office of Annette Kay Rubin, Leesburg, VA, for Plaintiffs.
Andrew Baugher, Cathleen P. Welsh, Lenhart Pettit, Harrisonburg, VA, for Defendants.
This matter is before the court on defendants Valley Health System's and Valley Regional Enterprises, Inc.'s (collectively “Valley Health”)1 motion to dismiss, in part, plaintiff's second amended complaint. Dkt. No. 33. In the second amended complaint, plaintiff Christy B. Downs (“Downs”) alleges that Valley Health, her former employer, violated the Family Medical and Leave Act, 29 U.S.C. §§ 2601 et seq., (“FMLA”), through both interference (Count I) and retaliation (Count II) as well as the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., (“ADA”) (Count III). In its motion, Valley Health seeks dismissal of Count I and of the request for punitive damages in Count III. For the reasons stated herein, the court will GRANT in part and DENY in part defendants' motion.
Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal based upon a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Here, Valley Health concedes that Downs' allegations of harassment, negative reviews, discipline and, ultimately, termination for her use of FMLA leave establishes a prima facie case of FMLA retaliation. As such, they do not seek dismissal of Count II. But Valley Health asserts that Downs has not alleged that she was actually denied any benefit under the FMLA and has therefore failed to state a claim for FMLA interference. The court agrees.
The Fourth Circuit has interpreted the subsections of 29 U.S.C. § 2615(a) as creating two types of FMLA rights: prescriptive and proscriptive. § 2615(a)(1) claims, known as “interference” or “entitlement” claims, allege violations of prescriptive rights, which set “substantive floors for conduct by employers, and creat[e] entitlements for employees.” Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir.2006) (internal quotation omitted). In contrast, § 2615(a)(2) claims, known as “retaliation” or “discrimination” claims, relate to proscriptive rights, which serve to “protect employees from discrimination or retaliation for exercising their substantive rights under the FMLA.” Id. (citations omitted).
“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., 545 F.Supp.2d 508, 516 (D.Md.2008) (citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir.2006) ; 29 U.S.C. § 2615(a)(1) ). Importantly, a plaintiff must also show prejudice. Croy v. Blue Ridge Bread, Inc., No. 3:12–CV–00034, 2013 WL 3776802, at *8 (W.D.Va. July 15, 2013) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) ); cf. Reed v. Buckeye Fire Equip., 241 Fed.Appx. 917, 924 (4th Cir.2007) (unpublished per curiam opinion) (citing Ragsdale, 535 U.S. at 89, 122 S.Ct. 1155 ) (“To state [a FMLA interference] claim, the employee must prove that the employer: (1) interfered with his or her exercise of FMLA rights; and (2) caused prejudice thereby.”).
The crux of Valley Health's argument against Downs' FMLA interference claim is that she was never denied FMLA leave. Downs admits that she not alleged that she was denied FMLA leave. Indeed, when asked at oral argument whether Downs was ever prevented from taking FMLA leave, plaintiff's counsel said she was not. Furthermore, Downs has not alleged that she would have taken additional FMLA leave were it not for her employer's discouragement. Instead, she argues that her “disciple, negative performance reviews, harassment, and [ ] termination” by Valley Health constitutes FMLA interference. Second Am. Compl., Dkt. No. 30, at ¶ 36. Tellingly, this is precisely the same conduct Downs alleges constitutes FMLA retaliation one paragraph later in her second amended complaint.Id. at ¶ 37.2
Granted, Downs' argument that the adverse employment actions Valley Health allegedly took against her constitute FMLA interference does find some support in the wording of 29 C.F.R. § 825.220(c) :
The [FMLA's] prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies.
(emphasis added); see also Santorocco v. Chesapeake Holding Co., LLC, No. CIV. A. AW–08–3049, 2010 WL 2464972, at *4 (D.Md. June 10, 2010) (citing Bosse v. Baltimore Cnty., 692 F.Supp.2d 574, 584–85 (D.Md.2010) ) ( that “actionable interference” includes instances where an employer uses “the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions”).
Furthermore, numerous district courts within the Fourth Circuit have interpreted violations of § 825.220(c) as retaliation claims. In Bullock v. Kraft Foods, Inc., No. 3:11CV36–HEH, 2011 WL 5872898 (E.D.Va. Nov. 22, 2011)aff'd, 501 Fed.Appx. 299 (4th Cir.2012), the court stated, under the heading “Plaintiff's FMLA Retaliation Claim,” that “ ‘[e]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions.’ ” Id. at *6 (quoting Dotson, 558 F.3d at 294–95 ). Similarly, in Rountree v. City of Portsmouth, No. 2:11CV106, 2011 WL 5101761 (E.D.Va. Oct. 26, 2011)aff'd, 487 Fed.Appx. 785 (4th Cir.2012), the court wrote under the heading “Retaliatory Discrimination,” that “[e]mployers may not use the taking of authorized leave as the basis for negative treatment in hiring, promotion, or discipline.” Id. at *8 (citing 29 C.F.R. § 825.220(c) ).
Finally, because she has failed to allege that she was actually denied any FMLA benefits, Downs has failed to allege any prejudice related to FMLA interference. Downs in fact alleges in her second amended complaint that she received the FMLA leave that she requested, see Second Am. Compl., Dkt. No. 30, at ¶¶ 18–19, and her counsel conceded as much at oral argument. She also does not allege that she would have taken additional FMLA leave, but was discouraged from doing so by Valley Health. Instead, Downs alleges harm as a result of the subsequent actions her employer allegedly took in retaliation for her use FMLA leave. See id. at ¶ 20 (); id. at ¶ 23 (); id. at ¶ 26 (...
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