Elsensohn v. St. Tammany Parish Sheriff's Office, 07-30693.

• Citation: 530 F.3d 368
• Decision Date: 06 June 2008
• Docket Number: No. 07-30693.,07-30693.
• Parties: Lawrence E. ELSENSOHN, Jr., Plaintiff-Appellant, v. ST. TAMMANY PARISH SHERIFF'S OFFICE; Rodney J. Strain, Jr., St. Tammany Parish Sheriff and Ex Officio Tax Collector; Marlin Peachey, In his capacity as Warden of St. Tammany Parish Jail, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

530 F.3d 368

Lawrence E. ELSENSOHN, Jr., Plaintiff-Appellant, v. ST. TAMMANY PARISH SHERIFF'S OFFICE; Rodney J. Strain, Jr., St. Tammany Parish Sheriff and Ex Officio Tax Collector; Marlin Peachey, In his capacity as Warden of St. Tammany Parish Jail, Defendants-Appellees.

No. 07-30693.

United States Court of Appeals, Fifth Circuit.

June 6, 2008.

Paula Paul Perrone, Chehardy, Sherman, Ellis, Murray, Recile, Griffith & Stakelum, Metairie, LA, for Elsensohn.

Charles Marion Hughes, Jr., Gary L. Hanes, Talley, Anthony, Hughes & Knight, Mandeville, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, WIENER, and ELROD, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Lawrence Elsensohn, Jr. appeals the dismissal of his claim against defendants-appellees St. Tammany Parish Sheriff's Office, Rodney J. Strain, Jr., in his official capacity as Sheriff and Ex Officio Tax Collector of the Parish of St. Tammany, and Marlin Peachey, in his official capacity as Warden of St. Tammany Parish Jail (collectively, "Defendants"), for their alleged interference with, restraint, and denial of his rights under the Family Medical Leave Act. Because we conclude that Elsensohn failed to state a claim for which relief can be granted, we affirm.

I. BACKGROUND

Elsensohn is employed as an officer by the St. Tammany Parish Sheriff's Office.¹ He was hired in or around August of 1996 and eventually rose to the position of sergeant. Elsensohn's wife, Wendelle Elsensohn, was also once employed by the St. Tammany Parish Sheriff's Office. At some point, however, Mrs. Elsensohn brought a complaint under the Family Medical Leave Act ("FMLA") against Defendants and, sometime thereafter, left the St. Tammany Parish Sheriff's Office.

According to Elsensohn's complaint, "[a]t all times, [Elsensohn] attempted to not involve himself in his wife's FMLA claim except to give her moral support." Accordingly, he continued to perform his job in a professional manner. Of course, "[b]oth [Elsensohn] and Defendants knew that if the matter went to trial, [Elsensohn] would be called as a witness due to the fact that he was familiar with the circumstances surrounding his wife's claim as they worked in the same department."

In or around October 2004, Mrs. Elsensohn settled her FMLA claim against Defendants. But in early 2005, in retaliation for his wife's lawsuit, Elsensohn was harassed by Warden Peachey. Elsensohn reported the harassment to Internal Affairs in early 2005, and, after an investigation, he was assured that he would have no more problems. Indeed, during this time, Elsensohn received excellent job reviews, and he reasonably expected to be promoted. Thus, beginning in January of 2006, Elsensohn sought to advance his career by applying for several different promotions.

Elsensohn alleges that despite his excellent job performance and the fact that he was the most qualified applicant for the positions, he was denied every promotion for which he applied. In or around February or March of 2006, Elsensohn spoke to his supervisor, Deputy Warden Captain Greg Longino, who informed Elsensohn that he would not receive a promotion of any kind. During a subsequent meeting with Sheriff Strain and Warden Peachey, Elsensohn asked what he needed to do to put himself in a better position for a promotion. In response, he was told "nothing," and further discussions were "closed off."

Shortly after the meeting, Elsensohn was involuntarily placed on a less favorable night shift. As a result, Elsensohn lost his holiday and overtime pay, his ability to work details was reduced, and he was unable to seek secondary and supplemental employment.

On December 28, 2006, Elsensohn filed a two-count complaint against Defendants.² Elsensohn first alleged that "Defendants' actions have resulted in the interference with, restraint, and denial of [his] rights under the FMLA. Further, Defendants' actions were taken with discriminatory and retaliatory intent against [Elsensohn] as a result of [his] association with . . . his wife, who had opposed Defendants' unlawful practices related to the FMLA." Second, Elsensohn alleged that he suffered mental anguish and emotional distress as a result of Defendants' tortious conduct. Elsensohn sought compensation for lost earnings, liquidated damages, compensatory damages, punitive damages, and attorneys' fees and costs.

On February 12, 2007, Defendants moved to dismiss the action in its entirety. Defendants argued that the FMLA action was a putative derivative claim based on both Mrs. Elsensohn's direct FMLA claim and Elsensohn's spousal relationship. Defendants asserted, however, that neither the language of the FMLA itself nor the corresponding regulations permit spouses to bring derivative claims. Alternatively, Defendants argued that Elsensohn's claim could not be brought because Elsensohn neither was "about to testify" in support of Mrs. Elsensohn's claim nor "had testified" in support of Mrs. Elsensohn's claim. Finally, Defendants argued that because the sole basis for federal jurisdiction was an untenable FMLA claim, the state-law claim should be transferred to an appropriate state court.

In response, Elsensohn asserted that he was bringing his own direct retaliation claim. Elsensohn stressed that it was not his familial relationship that served as the basis for his claim, but the fact that Defendants knew that if Mrs. Elsensohn's FMLA lawsuit went to trial, Elsensohn intended to testify on her behalf. Elsensohn also contended that he was protected under 29 U.S.C. § 2615(b)(2)-(3) as "an individual who `ha[d] given, or [was] about to give, any information in connection with any inquiry or proceeding . . .; or (2) ha[d] testified, or [was] about to testify, in any inquiry or proceeding . . . .'" (emphasis in original). Furthermore, Elsensohn argued that the corresponding regulations made it clear that he could bring his own claim because they explicitly stated that "individuals," and not merely employees, are protected from retaliation. Finally, Elsensohn asserted that several courts have recognized that spouses who are co-employees may bring retaliation claims under other anti-discrimination statutes, such as Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (the "ADEA").

On June 18, 2007, the district court dismissed Elsensohn's complaint. The district court determined that Elsensohn's FMLA action did not fall within the terms of § 2615(b) because Elsensohn did not allege that he filed any charge, gave any information, or testified in any proceeding related to his wife's FMLA case. To the contrary, the district court noted that Elsensohn alleged that "[a]t all times[ ] [he] attempted to not involve himself in his wife's FMLA claim except to give her moral support." The court held that Elsensohn's potential participation in his wife's case was not enough to create standing because Defendants' alleged retaliatory acts occurred after the case settled. While the district court considered the conflicting case law concerning the viability of third-party retaliation claims under Title VII and the ADEA, it ultimately concluded that the anti-retaliation provision of the FMLA was narrower and did not create a general cause of action for spouses. Finally, because the district court found that Elsensohn's federal action was not sustainable, it dismissed Elsensohn's state-law claim for emotional distress without prejudice.

On July 17, 2007, Elsensohn filed this timely appeal.³

II. STANDARD OF REVIEW

We review the grant of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo. Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir.2004) (citations omitted). We must construe the complaint in the light most favorable to the plaintiff and draw all reasonable inferences in the plaintiff's favor. See Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir.2004) (citation omitted). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (quotation marks, citations, and footnote omitted); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 n. 10 (5th Cir.2007) (citation omitted) (stating that we no longer apply the minimal standard of adequate pleading set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

III. DISCUSSION

The FMLA was enacted to permit employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition. 29 U.S.C. § 2601(b)(2). "The FMLA has two distinct sets of provisions, which together seek to meet the needs of families and employees and to accommodate the legitimate interests of employers." Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 763 (5th Cir.2001) (citing Nero v. Indus. Molding Corp., 167 F.3d 921, 927 (5th Cir.1999); Bocalbos v. Nat'l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir.1998)). The provisions in the first set are prescriptive: they create a series of substantive rights, namely, the right to take up to twelve weeks of unpaid leave under certain circumstances. Id. (citations omitted). The provisions in the second set are proscriptive: they bar employers from penalizing employees and other individuals for exercising their rights. Id. (citing 29 U.S.C. § 2615(a)(1)-(2); Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999)); see also Bocalbos, 162 F.3d at 383 ("[T]he Act protects employees from interference with their...