Pereda v. Brookdale Senior Living Communities, Inc.

• Decision Date: 10 January 2012
• Docket Number: No. 10–14723.,10–14723.
• Parties: Kathryn PEREDA, an individual, Plaintiff–Appellant, v. BROOKDALE SENIOR LIVING COMMUNITIES, INC., a Delaware corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

161 Lab.Cas. P 35,981

18 Wage & Hour Cas.2d (BNA) 1003

23 Fla. L. Weekly Fed. C 688

666 F.3d 1269

95 Empl. Prac. Dec. P 44,415

Kathryn PEREDA, an individual, Plaintiff–Appellant,

v.BROOKDALE SENIOR LIVING COMMUNITIES, INC., a Delaware corporation, Defendant–Appellee.

No. 10–14723.

United States Court of Appeals, Eleventh Circuit.

Jan. 10, 2012.

Holiday Hunt Russell, Holiday Russell, PA, Hollywood, FL, for Plaintiff–Appellant.

Aaron Jarett Reed, Littler Mendelson, PC, Miami, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida.Before WILSON and FAY, Circuit Judges, and RESTANI,^*Judge.FAY, Circuit Judge:

Appellant Kathryn Pereda (“Pereda”) appeals the district court's dismissal of her two-count complaint alleging interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., against Appellee Brookdale Senior Living Communities (“Brookdale”). The district court held that because Pereda was not an eligible employee at the time she was terminated, she could not bring either claim under the FMLA. This appeal presents an issue of first impression for this Circuit: whether the FMLA protects a pre-eligibility request for post-eligibility leave. We answer that question in the affirmative, and therefore reverse.

I.

Brookdale operates senior living facilities. Pereda began her employment at the facility located at The Preserve at Palm–Aire in Pompano Beach, Florida on October 5, 2008. She was terminated 11 months later, in September of 2009. In June of 2009, Brookdale was advised that Pereda was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009. Pereda alleges that, prior to Brookdale learning about her pregnancy, she was a top employee. After learning about her pregnancy, Pereda alleges that Brookdale began harassing her, causing stress and other complications in her pregnancy. In addition, Pereda alleges that Brookdale's management began denigrating her job performance and placed her on a performance improvement plan with unattainable goals.

At the time of these complications, Pereda was eligible for accrued sick and personal leave. Pereda alleges that she was told by management that she could make doctors visits. Yet, after placing Pereda on the performance improvement plan, management began writing her up for taking leave to visit the doctor. Pereda alleges that other employees were not written up for taking the same. In August of 2009, Pereda took a few days off, notifying Brookdale via e-mail. When she returned to work, she was again written up by management for not getting verbal authorization for her absence.

Later that same month, Pereda continued to suffer more pregnancy-related medical issues. Pereda alleges that management told her she was eligible for non-FMLA leave, including the use of sick, personal, and vacation days. In early September, she again took time off after her physician instructed that she needed bed rest. She left a message with the Executive Director, but never heard back. Several days after she was finally able to reach someone at Brookdale, she was fired.

On May 11, 2010, Pereda filed her Complaint against Brookdale alleging claims for interference (Count I) and retaliation (Count II) under the FMLA. Her Complaint asserted that “Brookdale [interfered with her] FMLA rights, insofar as Brookdale denied Pereda benefits under the FMLA to which she was entitled, and terminated her for attempting to exercise those rights.” Brookdale moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On September 22, 2010,¹ the district court dismissed Pereda's Complaint. In its order of dismissal, the district court held that Brookdale could not have interfered with Pereda's FMLA rights, because she was not entitled to FMLA leave at the time that she requested it. Moreover, the district court also held that since Pereda was not eligible for FMLA leave, she could not have engaged in protected activity and so Brookdale could not have retaliated against her. Pereda now appeals.

II.

We review a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo. Speaker v. U.S. Dep't. of Health & Human Servs. Centers for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.2010). We “accept[ ] the factual allegations in the complaint as true and construe[ ] them in the light most favorable to the plaintiff.” Id.

III.

Before the Court is the question left open by Walker v. Elmore County Board of Education, 379 F.3d 1249, 1253 (11th Cir.2004): “whether the FMLA protects a pre-eligibility request for post-eligibility maternity leave.”² We resolve that question in the affirmative.

Under section 2615(a) of the FMLA, an employee may bring 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 an activity protected by the Act. Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir.2001) (citations omitted).

In order to receive FMLA protections, one must be both eligible, meaning having worked the requisite hours,³ and entitled to leave, meaning an employee has experienced a triggering event, such as the birth of a child. See 29 U.S.C. § 2612(a)(1) (stating that only an eligible employee shall be entitled to FMLA leave). “The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d).⁴

Here, it is undisputed that Pereda, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child. It is also undisputed that she would have been entitled to FMLA protection by the time she gave birth and began her requested leave.⁵

The district court denied Pereda's interference claim because she had not yet experienced a triggering event when she requested her leave and, thus, “she was not entitled to FMLA leave such that Defendant could have interfered with her right.” Dist. Ct. Order at 4. The district court also denied Pereda's retaliation claim, finding that Pereda's request for leave was not a statutorily protected activity. The district court reasoned that the FMLA did not grant employees the right to request leave before becoming eligible and, because Pereda was not eligible for FMLA leave when she made her request, her request was not an attempt to exercise a protected right.⁶

Pereda argues that if the district court decision is allowed to stand, employees will fear mentioning leave in anticipation of the birth of a child. Moreover, employees would cease to provide their employers with adequate notice of an impeding absence in fear of retaliation. Brookdale counters that Pereda was not an FMLA eligible employee at any point during her employment because she was terminated well before the 12–month/1,250 hour requirement. Because she was not an eligible employee, she was not entitled to any protection pursuant to the FMLA and both her claims were properly dismissed. Moreover, Brookdale argues that Pereda's anticipated eligibility was not sufficient to make her an eligible employee under the FMLA in June 2009, when Brookdale learned of her pregnancy.

After examining the various elements of the FMLA regulatory scheme, such as the 30–day notice requirement and the DOL implementing regulations, we conclude that allowing the district court's ruling to stand would violate the purposes for which the FMLA was enacted. Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA. Thus, this Court disagrees with the district court and finds that Pereda stated sufficient facts to establish prima facie claims for both FMLA interference and retaliation. We address each claim in turn.

A. FMLA Interference⁷

The FMLA makes it illegal “for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). “A Plaintiff claiming interference must demonstrate by a preponderance of the evidence that she was denied a benefit to which she was entitled.” Harley v. Health Ctr. of Coconut Creek, 487 F.Supp.2d 1344, 1357 (S.D.Fla.2006) (citation omitted). In Harley, Judge Gold explained that “unless unique circumstances exist, a pregnant employee is only entitled to protection against interference with her FMLA rights once she delivers her baby and the circumstances of her needing leave arises.” 487 F.Supp.2d at 1358. The district court in this case, following Harley, held that because Pereda had not yet delivered her child, she was not entitled to leave at the time of her request, and, thus, Pereda could not prove she was denied a benefit to which she was entitled. We disagree with such a narrow interpretation of the statute.

We hold that because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child. The FMLA mandates that, “In any case in which the necessity for leave ... is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave....” 29 U.S.C. § 2612(e)(1). The notice period was meant as protection for employers to...