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ALIFANO v. MERCK & CO.

December 7, 2001

MICHELLE ALIFANO
v.
MERCK & CO., INC., AND THOMAS D. MCQUARRIE.



The opinion of the court was delivered by: J. Curtis Joyner, United States District Court.

MEMORANDUM AND ORDER

This case has been brought before the court on motion of the defendants to dismiss for failure to state a claim upon which relief can be granted. Having now carefully reviewed the record produced by the parties and for the reasons set forth below, the motion shall be granted in part and denied in part and Plaintiff's claim under the Family Medical Leave Act, 29 U.S.C. § 2601, et. seq. is dismissed.

Factual Background

Plaintiff was employed by Defendants as a security investigator beginning on January 5, 1998. The job required her to spend a large percentage of her time traveling throughout the northeastern part of the United States. In early 1999, Plaintiff became seriously ill with what was later diagnosed as fibromyalgia and chronic fatigue syndrome. Her symptoms included chronic fatigue, body aches and pains, headaches, nausea, palpitations, lightheadedness and insomnia. Plaintiff began a medical disability leave of absence in late June 1999.

Around mid-September 1999, Plaintiff informed the Defendants that she could return to work with the following restrictions: (1) she could not work more than eight hours a day; and (2) she could not travel for work except for travel to and from the office. Throughout September, October, November and December 1999, Plaintiff asked Defendants, at least once a week, when she could return to work. During these conversations, Defendants replied that they were attempting to find a suitable position for her. Plaintiff applied for several other positions within the company, but without success. In December 1999, Defendants offered Plaintiff a security investigator position in Los Angeles, California, but Plaintiff declined the offer because it did not accommodate her medical restrictions. The Defendants stopped paying her a salary as of January 2000, but kept her under their employ to give her time to apply for other positions within the company. When she did not return to her security investigator position, Defendants deemed her to have abandoned her job and terminated her employment on July 28, 2000.

Standards Governing Rule 12(b)(6) Motions

A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In deciding a motion to dismiss, the court must accept as true all of the matters pleaded and all reasonable inferences that can be drawn from them, construing them in the light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990). The court may consider "matters of public record, orders, exhibits attached to the Complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994).

Discussion

A. Count I: Violation of the Family Medical Leave Act.

Plaintiff claims that Defendants violated her rights under the Family Medical Leave Act (FMLA) pursuant to 29 U.S.C. § 2601-2654 when Defendants (1) failed to provide her with adequate notice of her rights; (2) failed to provide her with adequate written notice explaining the specific expectations and obligations and the consequences of a failure to meet these obligations; (3) discouraged her from exercising her rights under the FMLA; (4) failed to engage in the interactive process with her; (5) discriminated against her on the basis of her serious health condition; (6) failed to provide her with reasonable accommodations; and (7) wrongfully terminated her because of her disability and her attempt to exercise her rights under the FMLA. Plaintiff further alleges that Defendants' actions and failure to comply with FMLA requirements constitute a violation of Section 2615(a)(1), which prohibits interference with an employee's exercise of her FMLA rights. 29 U.S.C. § 2615(a)(1).

Generally, the FMLA provides eligible employees with the right to take up to 12 work-weeks of leave during a 12-month period for a serious health condition. 29 U.S.C. § 2612(a)(1)(D). At the end of the leave period, the employee has the right to be restored to her former position or an equivalent position. 29 U.S.C. § 2614(a)(1).

In Section 2615(a)(1), the FMLA declares it "unlawful 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). Section 2615(a)(2) makes it unlawful "for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). The federal regulations interpret section 2615(a)(2) as providing a cause of action for employees who have been discriminated against in retaliation for taking FMLA leave. See, 29 C.F.R. § 825.220(c).

Courts have refused to recognize a valid claim for interference in the absence of any injury. Voorhees v. Time Warner Cable Nat'l Div., 1999 U.S. Dist. LEXIS 13227 (E.D.Pa. 1999); Fry v. First Fidelity Bancorp., 1996 U.S. Dist. LEXIS 875 (E.D.Pa. 1996). See Also: Graham v. State Farm Mutual Insurance Co., 193 F.3d 1274 (11th Cir. 1999); LaCoparra v. Pergament Home Centers, Inc., 982 F. Supp. 213 (S.D.N.Y. 1997). In order for Plaintiff to state a cause of action for interference with her FMLA rights, she must claim that the alleged interference caused her to forfeit her FMLA protections. See: Voorhees at *12; Graham, supra.

In this case, Plaintiff's Complaint does not allege that the Defendants denied her entitlement to leave nor does it allege that Defendants failed to restore her to her previous position. Thus, she has not successfully alleged any forfeiture of her FMLA rights. Since the Plaintiff has failed to allege any FMLA violations, the court finds that her claim regarding ...


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