Gleaton v. Monumental Life Ins. Co., C.A. No. 2:09-cv-01667-MBS.

Citation719 F.Supp.2d 623
Decision Date28 January 2010
Docket NumberC.A. No. 2:09-cv-01667-MBS.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesLuisa GLEATON, Plaintiff, v. MONUMENTAL LIFE INSURANCE COMPANY, Defendant.

OPINION TEXT STARTS HERE

Russell M. Bynum, Wigger Law Firm, North Charleston, SC, for Plaintiff.

Reginald W. Belcher, Turner Padget Graham and Laney, Columbia, SC, for Defendant.

ORDER AND OPINION

MARGARET B. SEYMOUR, District Judge.

Plaintiff Luisa Gleaton filed the within action on June 23, 2009 against Defendant Monumental Life Insurance Company alleging sexual harassment and discrimination on the basis of race, color, national origin, and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; violation of 42 U.S.C. § 1981; wrongful termination/violation of public policy; violation of the Family Medical Leave Act (“FMLA”), 26 U.S.C.A. § 2601 et seq. ; and violation of the South Carolina Human Affairs Law (“SCHAL”), S.C.Code § 1-13-10 et seq. This case is before the court on Defendant's motion to dismiss and/or motion to strike, which was filed on August 7, 2009. Defendant seeks to dismiss Plaintiff's wrongful termination/violation of public policy, FMLA, and SCHAL claims as well as to strike all claims and/or references to the Age Discrimination in Employment Act (ADEA) and the Equal Employment Opportunity (EEO) Act. On August 25, 2009, Plaintiff responded. In her response, Plaintiff consented to the motion to strike. On September 1, 2009, Defendants replied to Plaintiff's response to Defendants' motion to dismiss and/or motion to strike.

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, this matter was referred to United States Magistrate Judge Bristow Marchant for pretrial handling. On November 12, 2009, the Magistrate Judge issued a Report and Recommendation recommending that: 1) Defendant's motion to strike be granted; 2) Plaintiff's state law claim for wrongful termination/violation of public policy be dismissed with prejudice, and 3) the remainder of Defendant's motion to dismiss be denied without prejudice. On November 30, 2009, Defendant filed objections to the Magistrate Judge's Report and Recommendation, arguing that the Magistrate Judge erred in concluding that Plaintiff's FMLA and SCHAL claims should not be dismissed at this time.

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The court has considered the pleadings, motion, and memoranda offered by the parties in support of their respective positions. The court concludes that Defendant's motion to strike should be granted; and that Defendant's motion to dismiss should be granted with respect to Plaintiff's claim for wrongful termination/violation of public policy and denied with respect to the respect to Plaintiff's FMLA and SCHAL claims.

I. FACTS

Plaintiff's complaint alleges that she began working for Defendant in November 2006. Plaintiff avers that she is a Hispanic female and that she was assigned to report to Drew Sasko (“Sasko”), a Caucasian male District Manager. Plaintiff avers that Sasko discriminated against 2 her by making explicit sexual comments about Plaintiff's looks, racial preferences, lifestyle and national origin. Plaintiff further avers that she reported Sasko's conduct and that Sasko subsequently harassed and retaliated against her. Plaintiff also alleges that on October 1, 2007, she was placed on a performance enhancement plan while other non-Hispanic and male employees who had lower performance rates were not put on such a plan. Plaintiff avers that during October 2007 she became seriously ill and sought medical attention, and informed Defendant that she would need to take short term disability and FMLA leave in November 2007. Plaintiff alleges that she was wrongfully discharged on October 26, 2007. Plaintiff would have become eligible for FMLA leave in November 2007.

II. DISCUSSION
A. Motion to Strike

The Magistrate Judge recommended that all references to the ADEA and EEO be stricken from the Complaint. Given Plaintiff's consent to this motion, the court concurs with this recommendation and orders that all references to the ADEA and EEO be stricken from the Complaint.

B. Motion to Dismiss i. Standard

A court should grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) only if it finds that the complaint does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The claims in the complaint must be accepted and construed in the light most favorable to the plaintiff. See Martin Marietta Corp. v. Int'l Telecomms. Satellite Org., 991 F.2d 94, 97 (4th Cir.1992).

iii. Claim for Wrongful Termination/Violation of Public Policy

The Magistrate Judge recommended that Plaintiff's wrongful termination/violation of public policy claim be dismissed because 1) Plaintiff was not wrongfully discharged because of the violation of any clearly mandated public policy and 2) Plaintiff is limited to her statutory remedies under Title VII and § 1981. Plaintiff does not object to this dismissal. In the absence of objections, this court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983). Nevertheless, the court has carefully reviewed the record and concurs in the Magistrate Judge's conclusion that this claim should be dismissed with prejudice.

iii. FMLA Claim

Defendant seeks to dismiss Plaintiff's FMLA claim because Plaintiff was ineligible to take a leave of absence both when she requested leave and when she was terminated. The Magistrate Judge recommended that the court decline to dismiss Plaintiff's FMLA claim at this stage of the proceedings because the issue of whether an ineligible employee may declare an intention to take FMLA leave once they become eligible is an issue of first impression in the Fourth Circuit. Defendant argues that the Magistrate Judge erred in this recommendation and that Plaintiff's FMLA claim should be dismissed. Defendant argues that this outcome is required by the Fourth Circuit's ruling in Babcock v. BellSouth Advertising and Publ'g Corp., 348 F.3d 73 (4th Cir.2003). Defendant also argues that giving employees a right to “reserve” FMLA leave before they are eligible would extend the obligations of employers in ways that Congress never intended by preventing employers from taking any adverse action against such an employee before he or she actually takes FMLA leave.

The FMLA entitles eligible employees to 12 workweeks of unpaid leave during any 12-month period for numerous serious health conditions. 29 U.S.C. § 2612(a)(1)(A)-(D); Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721, 724, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). The FMLA defines an “eligible employee” as an employee who has been employed (1) for at least 12 months by the employer, and (2) for at least 1,250 “hours of service” with such employer during the previous 12-month period. Id. at § 2611(2)(A)(i)-(ii); see also Babcock, 348 F.3d at 76-77. “The determination whether an employee has been employed by the employer for at least twelve months must be made ‘as of the date leave commences.’ Babcock, 348 F.3d at 77 (citing 29 C.F.R. § 825.110(d)). “An employee may sue to recover damages or equitable relief when her employer ‘interfere[s] with, restrain[s], or den[ies] the exercise or attempt to exercise’ the rights guaranteed by the statute.”

Id. at 76 (citing 29 U.S.C. §§ 2615(a)(1), 2617(a)(2)). Title 29 United States Code Section 2612(e) requires an employee to provide notice to his or her employer at least 30 days before the date of leave is to begin when leave is foreseeable and such notice is practicable. Id.

Defendant asserts that Babcock stands for the proposition that employees who are ineligible for leave under FMLA have no FMLA rights prior to their one-year anniversary. Defendant also contends that Babcock holds that employees who are ineligible for FMLA leave cannot establish either interference or retaliation claims when an employer denies the ineligible employee's request for FMLA leave or subsequently takes an adverse action against the employee. The court disagrees.

In Babcock, an employee requested FMLA leave before she was an “eligible employee” for FMLA purposes. Id. at 75. Because the employee was not yet eligible for FMLA leave, the employee took short-term disability leave pursuant to her employer's policies followed by an unexcused absence. Id. at 77. The employee subsequently requested additional unpaid medical leave after becoming eligible for FMLA leave. Id. at 77-78. The Babcock court found that because the employee re-requested leave after twelve months of employment, the employee was an eligible employee for FMLA purposes. Id. at 78. The Babcock court noted that the employer could have disciplined the employee for her un-excused absence, but that because the employer did not terminate the employee's employment, the employee's one-year anniversary triggered FMLA eligibility for the second leave request, preventing the employee's termination. Id. at 78 n. 6. The Babcock court thus affirmed a jury verdict for the employee. Babcock, 348 F.3d at 77.

In the court's view, Babcock is distinguishable because it only addresses an interference claim under 29 U.S.C. § 2615(a)(1), and does not address a retaliation claim...

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