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Smith v. Primecare Medical

November 24, 2008


The opinion of the court was delivered by: Chief Judge Kane


Before the Court are Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) and Motion to Strike pursuant to Rule 12(f). (Doc. Nos. 5; 6.) The motions are fully briefed and ripe for disposition. For the following reasons, the motion to dismiss will be denied and the motion to strike will be granted in part and denied in part.


The Plaintiff Richard C. Smith ("Smith") has brought this action for claims arising under the Family and Medical Leave Act*fn1 ("FMLA"), the Pennsylvania Whistleblower Law,*fn2 the Pennsylvania Wage Payment and Collection Law, and other assorted state law causes of action. (Doc. No. 12 at 2.) His claims arise from the Defendants' conduct during his employment at PrimeCare Medical Inc., ("PCM") and subsequent discharge from his position. (Doc. No. 12 at 2.) The Defendants' motion to dismiss deals solely with the Plaintiff's FMLA claim, so the Court will largely recount only the allegations with regard to that claim in this section of the opinion. The allegations attacked by the Defendants' motion to strike will be considered separately.

A. Factual Background

During the relevant time period, Smith was employed by PCM as Vice President of Operations. (Doc. No. 1 ¶ 32.) On May 10, 2007, he underwent gastric bypass surgery. (Id. ¶ 67.) Prior to his surgery, Smith advised PCM that he expected to need three weeks to recover from the surgery, and PCM explicitly approved him for two weeks of leave. (Id. ¶ 68.) PCM did not advise Smith of his rights to take leave under the FMLA at any time before or after his surgery. (Id. ¶ 69; 73.) Complications during surgery caused Smith additional injuries, and he was required to undergo extensive post-operation treatment even after his discharge from the hospital on May 20, 2007. (Id. ¶ 70-71.) Defendant Carl Hoffman ("Hoffman"), PCM's President and Chief Medical Officer (Id. ¶ 4), visited Smith shortly after he was discharged and told him "I'm paying your full salary. You don't have to use leave. I want you to stay off work until you are 100%. Don't worry about your job. You know you will always have your job as I've always promised you." (Id. ¶ 72.) Smith first advised Hoffman that he was able to resume his essential job functions in July 2007. (Id. ¶ 75-76.) Despite Smith's desire to return to work, Hoffman told him that he wanted him to stay off until he was "100%." (Id. ¶ 76.) This arrangement is alleged to have continued over the course of several months, with Smith asking to start back to work again and Hoffman repeating that Smith could not return until he was "100%." It seems that Smith was paid his full salary for the whole time that he was off-work. (Doc. No. 12 at 3 n.2.) Finally, in December 2007, Smith and Hoffman met to discuss Smith's return to work. (Id. ¶ 82.) Hoffman suggested an alternative employment arrangement with PCM for Smith, but no new contract was set-out during the meeting. (Id. ¶ 82-83.) PCM apparently abandoned the proposal set out by Hoffman at the meeting, however, because yet another employment arrangement was proposed to Smith in writing on December 19, 2007. (Id. ¶ 86.) Smith rejected this new contract because it was far less favorable; it would have reduced his salary, eliminated his original position, and caused him to release any claims he might have against PCM. (Id. ¶ 86-87.) Thereafter, PCM informed Smith that he could return to his original position as Vice President with a note from his doctor. (Id. ¶ 88-89.) Even though Smith returned to work as instructed on January 28, 2008, PCM took several actions that amounted to a demotion for Smith. (Doc. No. 91.) As a result of these actions, Smith advised PCM on March 14, 2008, that he regarded himself as having been constructively discharged. (Id. ¶ 120.)

B. Standard of Review

The Defendants have brought this motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

The Supreme Court's recent opinion in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), has altered the standard of review for a motion to dismiss pursuant to Rule 12(b)(6). Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In construing the Rule 12(b)(6) standard generally, the Court required the plaintiff to provide more than a formulaic recitation of a claim's elements that amounted to mere labels and conclusions. Twombly, 127 S.Ct. at 1964-65. Additionally, the Court held that the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Third Circuit has held that this language in Twombly applies generally to all motions brought under Rule 12(b)(6). Phillips, 515, F.3d at 232. Despite Twombly, it is still true that "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Id. (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).


The FMLA was enacted to balance the demands of the workplace with the needs of employers and to entitle employees to take reasonable leave for medical reasons. 29 U.S.C. § 2601(b). To accomplish these goals, the act provides that an eligible employee is entitled to 12 workweeks of leave during any given 12-month period for certain qualifying events, including a "serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). It is unlawful for an employer to interfere with, restrain, or deny an employee's exercise or attempt to exercise this right under the FMLA. 29 U.S.C. § 2615(a)(1). The Third Circuit has also recognized a claim for employees who have been discharged or discriminated against in retaliation for having taken FMLA leave under 29 U.S.C. § 2615(a)(2) and subsection 825.220(c)*fn3 of the FMLA implementing regulations. See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004).

While the Plaintiff has asserted both interference and retaliation in the complaint, (Doc. No. 1 ¶¶ 144-45), the Defendants have challenged only the retaliation aspect of the FMLA claim with the motion to dismiss. (Doc. No. 5.) The Defendants rely on Conoshenti, 361 F.3d at 146-47, for the proposition that the Plaintiff must show that "he took an FMLA leave, (2) he suffered an adverse employment decision, and (3) the adverse decision was causally related to his leave" (Doc. No. 8 at 3). Defendants argue that this showing was not met because "Smith has failed to even plead a prima facie case of retaliation . . . because he never alleges that he took FMLA leave." (Id.) Smith counters that the Conoshenti elements are not appropriate to scrutinize the complaint on a motion to dismiss because the court in Conoshenti was articulating an evidentiary burden shifting standard just as in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). (Doc. No. 12 at 6.) The prima facie elements and burden shifting framework in McDonnell Douglas are typically used in employment discrimination cases, but have also been used to analyze a retaliation claim under the FMLA. See e.g., Bearly v. Friendly Ice Cream Corp., 322 F. Supp. 2d. 563, 571 (M.D. Pa. 2004); Lepore v. Lanvision Systems, Inc., 113 Fed. Appx. 449, 453 (3d Cir. 2004).

As the Supreme Court has explained, a prima facie case under McDonnell Douglas is an evidentiary standard and not a pleading requirement because it can vary from case to case. Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). Therefore, while the elements articulated in Conoshenti were appropriate in that case for analysis of a motion for summary judgment, they are not appropriate to judge the Plaintiff's complaint. Further, the Court agrees with the Plaintiff that the FMLA claim falls under the lenient pleading requirements of Rule 8(a)(2) requiring only a short and plain statement of the claim showing that the pleader is entitled to relief. The complaint still must state a claim upon which relief can be granted, however, and the allegations must be enough to raise this right to relief above a speculative level. See Twombly, 127 S.Ct. at 1964-65.

Here, Smith has specifically alleged (as an alternative or in addition to his interference claim) that the Defendants discriminated and retaliated against him as a result of "his use of FMLA leave or attempt to use FMLA leave." (Doc. No. 1 ¶ 145.) Smith has also sufficiently alleged that he qualifies for protection under the FMLA, stating that: Defendants are an employer within the meaning of the statute, Smith had a serious health condition within the meaning of the statute, and that Smith is an eligible employee within the meaning of the statute." (Doc. No. 1 ¶ 127-129.)

The Defendants argue that "[t]here is also absolutely no evidence that Smith even attempted to use FMLA leave." (Doc. No. 8 at 4.) The Plaintiff does not need to present any evidence on a motion to dismiss pursuant to 12(b)(6). The complaint sufficiently alleges that Smith used or attempted to use FMLA leave. An employee seeking leave under 29 U.S.C. § 2612(a)(1)(D) must "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 under such subparagraph . . . ." 29 U.S.C. § 2612(e)(2)(B). The Third Circuit has made it clear that when providing such notice, the employee need not use any "magic words" and that "an employee who does not cite to the FMLA or provide the exact dates or duration of leave requested nonetheless may have provided his employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA." Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007).

Here, Smith alleges that he "advised PCM in advance of his surgery and expected to require approximately three weeks leave to recover . . . ." (Doc. No. 1 ¶ 68.) He underwent surgery on May 10, 2007 (Doc. No. 1 ¶ 67), and though complications unexpectedly extended his recovery, he alleges that he only required leave until July 2007 (Doc. No. 1 ¶ 74), which is within the protected 12 week time-limit on FMLA leave. As such, construing the complaint favorably to the Plaintiff, the allegations are enough to warrant the inference that Smith may have sought to use his protected FMLA leave.

It seems that the Defendants take issue with the retaliation allegations because they are somewhat inconsistent with Smith's FMLA interference claim brought under 29 U.S.C. § 2615(a)(1). For instance, the Defendants argue that "[i]n his Complaint, Smith makes it very clear that the Defendants never offered him FMLA leave" and "[a]ccording to Smith, PCM never mentioned Smith using FMLA leave." (Doc. No. 8 at 4.) It is true that there may be some inconsistency between the interference and retaliation claims under the FMLA. See ReidFalcone v. Luzerne County Comm. College, No.02-1818 2005 WL 1527792 at *9 (M.D. Pa. 2005). As mentioned above, however, Smith has specifically offered this theory in addition or in the alternative to his claim for interference, and at the pleading stage "a plaintiff may state as many separate claims or defenses as it has, regardless of consistency." Fed. R. Civ. P. 8(d)(3).

As such, at least at this early stage of the case, these allegations state a valid claim against the Defendants for retaliation for engaging in activities protected under the FMLA. Additionally, the factual allegations in support of this claim sufficiently raise the right to relief above a speculative level to ...

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