Tucker v. Middleburg-Legacy Place

• Decision Date: 29 August 2008
• Docket Number: No. 07-4393.,07-4393.
• Citation: 539 F.3d 545
• Parties: Sonia TUCKER, Plaintiff-Appellant, v. MIDDLEBURG-LEGACY PLACE, LLC, and Jennifer Larsen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

539 F.3d 545

Sonia TUCKER, Plaintiff-Appellant, v. MIDDLEBURG-LEGACY PLACE, LLC, and Jennifer Larsen, Defendants-Appellees.

No. 07-4393.

United States Court of Appeals, Sixth Circuit.

Argued: July 23, 2008.

Decided and Filed: August 29, 2008.

ARGUED: Mark P. Herron, Cleveland, Ohio, for Appellant. Andrew J. Dorman, Janik, Dorman & Winter, Cleveland, Ohio, for Appellees. ON BRIEF: Mark P. Herron, Cleveland, Ohio, for Appellant. Andrew J. Dorman, Janik, Dorman & Winter, Cleveland, Ohio, for Appellees.

Before: COLE and GRIFFIN, Circuit Judges; SARGUS, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Plaintiff-appellant Sonia Tucker brought the present action alleging violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., against her former employer, defendant-appellee Middleburg-Legacy Place, LLC ("Middleburg"), and Middleburg's human resources manager, defendant-appellee Jennifer Larsen, following the termination of Tucker's employment after an approved medical leave. The district court granted defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and denied further amendment of plaintiff's complaint. Tucker now appeals the district court's order dismissing her cause of action. For the reasons set forth below, we affirm.

I.

On June 5, 2007, Sonia Tucker filed a one-count complaint in the Court of Common Pleas, Cuyahoga County, Ohio, in which she alleged that her former employer, Legacy Health Services, and its human resources manager, Jennifer Larsen, violated certain notice requirements of the FMLA when defendants terminated her employment following a period of approved FMLA leave. Defendants removed the case to federal district court pursuant to the federal question jurisdiction statute, 28 U.S.C. § 1331, and answered the complaint. Tucker thereafter filed an Amended Complaint with leave of the court and defendants' consent, for the sole purpose of identifying correctly the defendant employer as "Middleburg-Legacy Place."¹ No substantive changes were made to the allegations in the complaint. The heart of Tucker's claim alleging a violation of the FMLA is set forth in Paragraphs 7 through 15 of her Amended Complaint, in which she avers:

7. On or about December 15, 2006, plaintiff commenced an approved medical leave for a serious health condition under the Family and Medical Leave Act that prevented her from performing the essential functions of her job.

8. At no time following the plaintiff's request for [FMLA] leave, or while plaintiff was on her leave, did defendants provide plaintiff with a written notification of expectations and obligations of the plaintiff while on [FMLA] medical leave, and explaining any consequences of a failure to meet these obligations, as required by 29 C.F.R. § 825.301(b).

9. Plaintiff had been initially cleared to return to work from her medical leave on January 17, 2007.

10. In accordance with defendant's policies and procedures, and as plaintiff understood them, plaintiff was required to obtain a fitness-for-duty certificate prior to returning to work from her medical leave demonstrating that she was physically able to perform the essential functions of her position.

11. On or about January 17, 2007, plaintiff went to her physician for an examination and to obtain a fitness-for-duty certificate demonstrating that she was physically able to perform the essential functions of her position.

12. On January 17, 2007, despite having failed to comply with the notice requirements imposed upon it by 29 C.F.R. § 825.301(b), defendants unlawfully terminated plaintiff from her employment for alleged job abandonment.

13. At no point did plaintiff abandon her employment.

14. The acts and omissions of defendants described herein constitute a violation of the plaintiff's leave and reinstatement rights provided to her under the [FMLA].

15. The actions of defendants described herein further were not done in good faith or with a reasonable belief that they were in compliance with the [FMLA], thereby entitling plaintiff to recover liquidated damages in accordance with 29 U.S.C. § 2617(a)(1)(A)(iii).

The FMLA regulation referred to in Tucker's Amended Complaint, 29 C.F.R. § 825.301(b)(1), provides that an employer "shall ... provide the employee [taking FMLA leave] with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." Such notice must include, as appropriate, "any requirement for the employee to present a fitness-for-duty certificate to be restored to employment." 29 C.F.R. § 825.301(b)(1)(v). "If an employer fails to provide notice in accordance with the provisions of this section, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice." 29 C.F.R. § 825.301(f).

Defendants filed an answer to the Amended Complaint, attaching as an exhibit a copy of the Parkside Villa Employee Handbook (the "Handbook") purportedly provided to Tucker upon her employment at Parkside. Subsequently, defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that by her own allegations, Tucker was not terminated for failing to present a fitness-for-duty certificate, but rather abandoned her job by not returning to work on the day slated for her return, January 17, 2007. Defendants asserted that Tucker's obligation to return to work after her FMLA leave ended was not one of the matters required to be set forth in a notice under 29 C.F.R. § 825.301(b), and thus she was not terminated "for failure to comply with any notice provision required to be set forth in the notice" under 29 C.F.R. § 825.301(f). Defendants further argued that, as the Handbook showed, Parkside did not have a policy requiring that a fitness-for-duty certificate be presented, thus rendering 29 C.F.R. § 825.301(b)(1)(v) inapplicable.

Plaintiff filed a response to defendants' motion, and the district court referred the matter to a magistrate judge for further scrutiny. On October 9, 2007, the magistrate judge issued a Report and Recommendation, concluding, in pertinent part, that plaintiff failed to allege adequately a violation of FMLA regulations; in particular, the magistrate judge determined that while plaintiff alleged a subjective belief that she was required to present a fitness-for-duty certificate, she failed to allege any concrete facts demonstrating that defendants actually required her to obtain a fitness-for-duty certificate or point to any of defendants' policies and procedures requiring her to obtain such a certificate, so as to trigger the notice requirements of 29 C.F.R. § 825.301(b). The magistrate judge also noted that plaintiff averred that she was terminated for "alleged job abandonment," rather than a failure to provide fitness-for-duty certification. He therefore recommended that defendants' motion for judgment on the pleadings be granted, but further suggested that plaintiff be allowed two weeks to file a proposed amended complaint and supporting motion to cure the defects identified in the Report and Recommendation. Plaintiff filed timely objections to the Report.

On November 5, 2007, the district court issued an Opinion and Order adopting in part the magistrate judge's Report and Recommendation. The court agreed with the magistrate judge that, although Tucker alleged adequately that she took approved FMLA leave and that defendants failed to comply with the written notice requirements of 29 C.F.R. § 825.301(b), she "has not made the plausible allegation that Defendants required her to obtain a fitness-for-duty certificate," either orally or in writing. The district court reasoned:

Plaintiff has further failed to allege she was terminated for failing to present the fitness-for-duty certificate. In ¶ 12 of her Amended Complaint, Plaintiff alleges, "defendants unlawfully terminated plaintiff from her employment for alleged job abandonment." (Emphasis added). She does not allege her employment was terminated for failure to provide a fitness-for duty certificate. Plaintiff clearly alleges she "had been initially cleared to return to work from her medical leave on January 17, 2007." (Amended Complaint at ¶ 9). She did not return to work on that date. Rather, she went to her physician on that day to be examined and to obtain a fitness-for-duty certificate. (Amended Complaint at ¶ 11). Nowhere does Plaintiff indicate she advised Defendants of the doctor's appointment, or otherwise communicated with Defendants on the date of her scheduled return. As the Magistrate Judge noted, the provision in 29 C.F.R. § 825.301(f), barring employer action against an employee for failure to present a fitness-for-duty certificate "is only triggered if the employer actually required the employee to present a fitness-for-duty certificate." (Emphasis added). Plaintiff's Amended Complaint falls short of the plausibility standard set in [Bell Atl. Corp. v.] Twombley [Twombly], [___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)], supra, since she never alleges a fitness-for-duty certificate was required by Defendants, and since her own pleading identifies the reason for her termination as job abandonment. Her Amended Complaint, therefore, lacks factual recitations supporting at least one key element of her claim under 29 C.F.R. § 825.301.

The district court therefore granted defendants' motion for judgment on the pleadings and dismissed the Amended Complaint. The district court, however, did not adopt the magistrate judge's recommendation that plaintiff be allowed to amend her complaint. The district court stated tersely that "[t]here will be no amendment of the pleadings permitted." Tucker now timely appeals the adverse judgment on the pleadings and the district court's order precluding further amendment of the complaint.

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