Finch v. Morgan Stanley & Co.
| Decision Date | 10 August 2016 |
| Docket Number | CASE NO. 15-81323-CIV-MARRA/MATTHEWMAN |
| Parties | FRAN FINCH, Plaintiff, v. MORGAN STANLEY & CO. LLC; MORGAN STANLEY SMITH BARNEY, LLC; and MORGAN STANLEY SMITH BARNEY FA NOTES HOLDINGS LLC, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon Defendants' Partial Motion to Dismiss [DE 16]. The motion is fully briefed and ripe for review. The Court has carefully considered all relevant filings and is otherwise fully advised in the premises.
Plaintiff Fran Finch ("Finch") is a resident of Delray Beach Florida. Finch has been a successful financial advisor since 1980. Amended Complaint ("Compl.") [DE 6], ¶ 12. In 2008, after 28 years with Merrill Lynch, she joined Morgan Stanley's Ridgeland, Mississippi branch office. Compl. ¶ 14. She was employed by Defendants from 2008 to October 31, 2014. Compl. ¶ 10.
Finch is a 64 year-old single mother of two daughters, ages 16 and 12. Compl. ¶ 15. In 2012, her disabled child was sexually assaulted at school in Mississippi. Compl. ¶ 16-17. In the fall of 2012, Finch informed her branch manager, Fred Brister, of this traumatic event. Compl. ¶ 18. While not stated directly, it appears Finch left work to deal with "immediate family issues requiring her urgent attention." Compl. ¶ 23. She remained on leave for at least 16 months (from July 2013, when "Morgan Stanley unilaterally placed her on leave," through her alleged constructive discharge in October 2014), although the Complaint suggests that she never returned to work after leaving in the fall of 2012. Compl. ¶¶ 41, 83
In her Amended Complaint (filed as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)), Finch asserts 14 causes of action against Defendants related to her employment at Morgan Stanley. Regarding her claims of retaliation, the following alleged scenario is relevant: Mr. Wyatt, a colleague, was the subject of "countless customer arbitrations and an investigation by the Mississippi Secretary of State (and possibly FINRA)." Compl. ¶ 103. Finch Compl. ¶ 105. During the course of discovery in an arbitration against Morgan Stanley ("the Lutz Arbitration"), a July 6, 2010 email Finch sent to Mr. Brister (the branch manager) was produced. In part of the email, Finch expressed concern that Mr. Wyatt was "incapacitated." She also reminded Mr. Brister that she had previously notified Morgan Stanley management of her concerns regarding Mr. Wyatt months earlier. Compl. ¶ 85.
Finch was deemed by claimants in the Lutz Arbitration to be a crucial witness for their case. Compl. ¶ 87. Finch was subpoenaed to testify by deposition. Compl. ¶¶ 92, 93. Finch alleges that when Morgan Stanley realized that it would not be able to preclude or discredit her testimony, it decided to retaliate against her by improperly demanding repayment of a loan which had been made to her as a condition of her employment. Compl. ¶ 88. According to Finch, Morgan Stanley wrongfully declared the Promissory Note immediately due and payable, because, by its terms, it was only due if she terminated voluntarily or was terminated by Morgan Stanley for any reason whatsoever. Compl. ¶ 96. "Knowing full well that Ms. Finch had earned no income from Defendants since 2012, Defendants sought to further intimidate her by demanding repayment of" the loan. Finch claims Mr. Wyatt also had a loan and that when he was terminated for performance reasons, Morgan Stanley did not make the same demand of him, proving that Morgan Stanley did not treat similarly situated male employees the same. Compl. ¶¶ 89, 94-97, 100, 103.
Defendants argue that Finch fails to state a claim upon which relief can be granted, and that dismissal is warranted under Fed. R. Civ. P. 12(b)(6) as to Plaintiff's claims of interference and retaliation under the Family and Medical Leave Act ("FMLA"), her retaliation claims under Title VII, the American with Disabilities Act ("ADA"), the Age Discrimination in Employment Act of 1967 ("ADEA"), and FloridaStatute § 448.102,1 and her claims for promissory estoppel and unjust enrichment.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has held that Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly") (internal citations omitted).
"To survive a motion to dismiss, 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 (2009)(quotations and citations omitted). "Aclaim 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. Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
The FMLA entitles an eligible employee to twelve work weeks of unpaid leave during any twelve-month period if she needs the leave in order "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). The FMLA defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves - (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C.A. § 2611(11). The FMLA does not define "continuing treatment by a health care provider," but the Department of Labor has issued a regulation defining that phrase, in relevant part, as follows:
(2) Continuing Treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any oneor more of the following:
(I) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
* * * *
29 C.F.R. § 825.114(a)(2)(I); see Russell v. N. Broward Hosp., 346 F.3d 1335, 1337 (11th Cir. 2003).
The FMLA requires employees to provide 30 days advance notice of the leave, when the need to take leave is foreseeable. 29 U.S.C. § 2612(e)(2)(B); 29 C.F.R. § 825.302(a). If the need for leave is not foreseeable, notice must be given "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). In interpreting the notice requirements of the FMLA, the Eleventh Circuit has held that "where an employee's need for FMLA leave is unforeseeable, theemployee need only provide her employer with notice sufficient to make the employer aware that her absence is due to a potentially FMLA-qualifying reason." Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005) quoting Gay v. Gilman Paper Co., 125 F.3d 1432, 1436 (11th Cir. 1997) (emphasis in original). An employee is not required to assert expressly her right to take leave under the FMLA. 29 C.F.R. §§ 825.302(c), 825.303(b). However, the notice must be "sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." Id. § 825.302(c) (emphasis supplied). Once an employee gives sufficient notice to her employer that potentially FMLA-qualifying leave is needed, the employer must then ascertain whether the employee's absence actually qualifies for FMLA protection. Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1209 (11th Cir. 2001) (citing 29 C.F.R. § 825.303(b)).
The FMLA creates a private right of action to seek equitable relief and money damages against employers who "interfere with, restrain, or deny the exercise of or the attempt to exercise" FMLA rights. 29 U.S.C. §§ 2615(a)(1), 2617(a); see Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25 (2003). Section 2615(a) creates two types of claims: "interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act." Strickland, 239F.3d at 1206 (internal citations omitted). Finch asserts both.
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