The opinion of the court was delivered by: Dalzell, J.
Plaintiff Kathleen Hofferica ("Hofferica") brings suit against defendant St. Mary Medical Center ("St. Mary"), asserting claims under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101, et seq.,; the Pennsylvania Human Relations Act (the "PHRA"), 43 Pa. Stat. Ann. § 951, et seq.; and the Family and Medical Leave Act (the "FMLA" or the "Act"), 29 U.S.C. § 2601, et seq. Hofferica held a position as a nurse with St. Mary, and in November of 2008 St. Mary allegedly terminated Hofferica from this position after she took leave to undergo treatment for Meniere's disease. Hofferica's claims arise out of those events.
St. Mary filed a motion to dismiss Hofferica's complaint in part pursuant to Fed. R. Civ. P. 12(b)(6), as to which Hofferica filed a response in opposition, and St. Mary then filed a reply in support. St. Mary seeks the dismissal of Hofferica's claims for interference and retaliation under the FMLA -- Counts II and III of the complaint, respectively. St. Mary argues in its motion to dismiss that Hofferica's FMLA claims fail because she has not alleged that she was able to perform her job duties on the day her FMLA leave expired. Hofferica responds that (1) St. Mary appears to conflate the interference and retaliation theories of recovery under the FMLA; (2) her interference claim stands because St. Mary failed to provide her with the requisite notice under the FMLA; and (3) St. Mary should be equitably estopped from asserting that it provided Hofferica with sufficient notice. St. Mary replies that (1) it did provide Hofferica with the notice mandated by the FMLA; (2) in any case, Hofferica's interference claim and her equitable estoppel argument fail because she has not alleged that she was prejudiced by any lack of notice; and (3) Hofferica has not stated a plausible claim for retaliation.
In the end, we agree with St. Mary that Hofferica's failure to allege that she could return to her nursing position means that she has not stated a claim for FMLA interference based on defendant's refusal to reinstate her to that position. We will consequently dismiss Hofferica's interference claim inasmuch as it is based on St. Mary's failure to reinstate her.
With respect to Hofferica's interference claim (based on St. Mary's alleged failure to provide individualized notice) and her retaliation claim, we find ourself in an unusual position: St. Mary did not explain why we should dismiss these claims in its motion to dismiss, only asserting the insufficiency of these claims in its reply. These arguments were prompted by Hofferica's own asseverations in her response, where she sought to explain why her notice interference and retaliation claims are sufficient. This is thus different from a situation where a moving party raises an argument in support of its motion for the first time in its reply, and the opposing party has had no opportunity to address this argument by the time the Court rules on the motion. In such a situation (which we see more commonly), we simply ignore the tardy argument. See, e.g., United States v. Martin, 454 F. Supp. 2d 278, 281 n.3 (E.D. Pa. 2006) (Robreno, J.) ("A reply brief is intended only to provide an opportunity to respond to the arguments raised in the response brief; it is not intended as a forum to raise new issues."); Bishop v. Sam's East, Inc., 2009 WL 1795316, at *5 (E.D. Pa. 2009) (Surrick, J.) (ruling that argument raised for the first time in reply had been waived).
Our own examination of the complaint and the applicable case law suggests, moreover, that Hofferica has not succeeded in stating a claim for FMLA interference based on lack of notice (though we conclude that she has stated a claim for retaliation under the FMLA). Nonetheless, we find that Hofferica may be prejudiced by her inability to respond specifically to the reasoning and caselaw that St. Mary raises in its reply. We will thus consider the parties' arguments as to the sufficiency of Hofferica's notice interference and retaliation claims, explain why the law suggests that Hofferica has failed to state the former claim but succeeded in stating the latter claim, and give Hofferica leave to brief us on why the former claim should not be dismissed.
When we consider a motion to dismiss under Rule 12(b)(6), we must "'accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom.'" Ordonez v. Yost, 289 Fed. Appx. 553, 554 (3d Cir. 2008) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)). In the course of our inquiry, we may "'consider only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim,'" Brown v. Daniels, 128 Fed. Appx. 910, 913 (3d Cir. 2005) (quoting Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004)), where a document forms the basis of a claim if it is "integral to or explicitly relied upon in the complaint." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)) (emphasis and internal quotation marks omitted). As our Court of Appeals has explained, this means that we may "consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). "What [this] rule seeks to prevent is the situation in which a plaintiff is able to maintain a claim of fraud by extracting an isolated statement from a document and placing it in the complaint, even though if the statement were examined in the full context of the document, it would be clear that the statement was not fraudulent," In re Burlington Coat Factory, 114 F.3d at 1426, though of course the rule is also applicable to cases in which no fraud is alleged.
While Hofferica has attached no exhibits to her complaint, she does rely -- explicitly or implicitly -- on several documents. Because Hofferica refers to St. Mary's epistolary approval of her leave request in April of 2008, Pl.'s Compl. ¶ 14, she has relied upon that letter. See Ex. A to Def.'s Mem. in Support of Mot. to Dismiss ("Def.'s Mem."). Because Hofferica discusses her receipt of a letter from St. Mary in November of 2008 terminating her employment , Pl.'s Compl. ¶ 22, she has relied upon that November 7, 2008 letter St. Mary's sent to her. See Ex. C to Def.'s Mem.
St. Mary also seeks to introduce an undated "NOTICE TO COLLEAGUES OF FAMILY MEDICAL LEAVE RIGHTS/OBLIGATIONS" that it allegedly provided to Hofferica along with the April 22, 2008 letter, see Ex. H to Def.'s Reply in Support of Mot. to Dismiss ("Def.'s Reply"). Since Hofferica has not had the opportunity to respond to St. Mary's presentation of this document (and hence to object to it), we cannot characterize the document as "undisputedly authentic," Pension Benefit Guar. Corp., 998 F.2d at 1196, and will therefore decline to consider it in ruling on St. Mary's motion. St. Mary also attaches a number of documents to its reply that concern prior periods of leave that Hofferica took from her position, Exs. A-G to Def.'s Reply, without even attempting to explain why such documents "form the basis of a claim" under Brown. 128 Fed. Appx. at 913 (quotation marks omitted). We will not consider those documents, either.
Finally, St. Mary has attached to its motion an October 8, 2008 letter in which St. Mary informed Hofferica of the number of hours remaining in her intermittent leave of absence balance, Ex. B to Def.'s Mem., suggesting that Hofferica relied on this letter in her complaint because she referred to the November 7, 2008 letter, which in turn referenced the October 8, 2008 letter. Def.'s Mem. at 4 n.2. We reject this suggestion, having found no authority that suggests that a court, in ruling on a motion to dismiss, should consider any document referred to in any other admissible document. Such a rule would take us far afield from the rationale identified in In re Burlington Coat Factory, i.e., ensuring that plaintiffs do not misrepresent documents to which they refer in their complaints. 114 F.3d at 1426.
Hofferica alleges that she is a forty-two-year-old citizen of the Commonwealth of Pennsylvania, Pl.'s Compl. ¶ 6, and that St. Mary is a non-profit Pennsylvania corporation. Id. ¶ 7. She notes that all conditions precedent to the institution of this suit have been fulfilled and that she has satisfied all jurisdictional prerequisites to the maintenance of this action. In particular, she explains that on November 4, 2010, the U.S. Equal Employment Opportunity Commission issued a Notice of Right to Sue. Id. ¶ 5.
According to Hofferica, she was employed by St. Mary from June 5, 2006
until November 12, 2008. Id. ¶ 11. St. Mary initially hired Hofferica
as a "Staff RN," and she maintained a satisfactory job performance
rating in this position at all times. Id. ¶ 12. In March of 2008,
however, Hofferica was diagnosed with Meniere's disease,*fn1
and in connection with this diagnosis she applied for
intermittent leave from St. Mary in March of 2008 under the FMLA. Id.
¶ 13-14. Hofferica alleges that St. Mary's April 22, 2008 letter
informed her that her leave request was "approved from February 5,
2008 through February 4, 2009." Id. ¶ 14; see also Ex. A to Def.'s
Shortly after St. Mary approved Hofferica's leave request, Charles Kunkle, the emergency room director at St. Mary, allegedly told Hofferica that he questioned her ability to do her job because of her disability. Pl.'s Compl. ¶ 15. Hofferica asserts, however, that "[n]otwithstanding [her] disability, at all times relevant hereto she has been able to perform all job duties required by her position of employment." Id. Nonetheless, in September of 2008, Hofferica's physician informed her that she had to undergo a series of surgeries as treatment for her condition, leading her to commence leave pursuant to the approval St. Mary had granted in April of that year. Id. ¶ 17.
After Hofferica began her leave, she or her husband called Marie Magee, the assistant nurse manager at St. Mary, to provide updates each week on Hofferica's progress and the anticipated date on which she would return to work, though Hofferica alleges that Magee "often failed" to return these calls. Id. ¶ 18. In particular, Hofferica claims that she called Magee on November 4, 2008 to explain that her physician needed to approve her anticipated return-to-work date of November 6, 2008 and that her physician might postpone that date. Id. ¶ 19. Magee allegedly did not return her call. Id.
On November 5, 2008, Hofferica got a note from her physician that stated that she was medically cleared to return to work on November 13 of that year, and the next day Hofferica called to inform Magee of this clearance and request "a brief extension of her medical leave until said date as a reasonable accommodation for her disability." Id. ¶¶ 20-21. Hofferica states that Magee did not return her call. Id. ¶ 21. On November 12, 2008, Hofferica allegedly received a November 7, 2008 letter from St. Mary that informed her that her position with St. Mary had been terminated because her medical leave of absence under the FMLA had expired. Id. ¶ 22.
The Supreme Court has explained that "only a complaint that states a plausible claim for relief survives a motion to dismiss" pursuant to Rule 12(b)(6), leading a reviewing court to engage in a "context-specific" inquiry that "requires [it] to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Under this standard, a pleading may not simply offer "labels and conclusions," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level," Twombly, 550 U.S. at 555, which is to say that there must be "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949. Essentially, a plaintiff must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quotation marks omitted). However, "the defendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
A. Background on the FMLA
As our Court of Appeals has noted, "Congress enacted the FMLA in 1993 to accommodate 'the important societal interest in assisting families, by establishing a minimum labor standard for leave,'" Sommer v. The Vanguard Group, 461 F.3d 397, 398-99 (3d Cir. 2006) (quoting S. Rep. No. 103-3 at 4, 1993 U.S.S.C.A.N. at 6-7). The Act itself specifies that among its purposes are "to balance the demands of the workplace with the needs of families," "to entitle employees to take reasonable leave for medical reasons," and "to accomplish the purposes described [above] in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(1)-(3). To bring about these ends, the FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period" for certain medical conditions, including "a serious health condition that makes the employee unable to perform the functions of the position of such employee." § 2612(a)(1). The Act defines eligibility*fn2 in terms of the duration an employee has worked for an employer and the number of hours such employee worked for the employer during the previous year. § 2611(2)(A).
As Judge Cercone noted in Sinacole v. iGate Capital, 2006 WL 3759744, at *5 (W.D. Pa. 2006) (citations omitted),
The Act contains two relatively distinct types of provisions: a series of prescriptive substantive rights for eligible employees, often referred to as the 'entitlement' or 'interference' provisions which set floors for employer conduct; and protection against discrimination based on the exercise of these rights, often referred to as the 'discrimination' or 'retaliation' provisions. An employee may bring suit to enforce these rights pursuant to section 2617(a) of the Act.
Substantive rights under the FMLA are protected by 29 U.S.C. §
2615(a)(1), making 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 C.F.R. § 825.220(b)
elaborates that "[a]ny violations of the Act or of these regulations
constitute interfering with, restraining, or
denying the exercise of rights provided by the Act."*fn3
These rights include not only the general entitlement to
leave described in § 2612(a)(1), but the right, "on return from such
leave -- (A) to be restored by the employer to the position of
employment held by the employee when the leave commenced; or (B) to be
restored to an equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment." §
2614(a)(1). Regulations promulgated under the Act also required -- as
of the date of the violations alleged here -- that employers provide
employees with notice regarding the FMLA's general provisions, 29
C.F.R. § 825.300 (2008), eligibility for benefits, § 825.110(d)
(2008), expectations and obligations, § 825.301 (2008), and
designation of leave as FMLA-qualifying. Section 825.208
As for retaliation, the FMLA 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). Its regulations*fn5 explain that "[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. . . . [E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." 29 C.F.R. § 825.220(c) (2008).
B. Hofferica's Interference Claim
Judge Simandle has explained that "[t]o prevail on an FMLA interference claim, the employee merely needs to show she was entitled to benefits under the FMLA and that she was denied them." Thurston v. Cherry Hill Triplex, 2008 U.S. Dist. LEXIS 60936, at *11 (D.N.J. 2008). In her complaint, Hofferica claims that she was denied three types of benefits under the FMLA: reinstatement, individualized notice, and responses to her reasonable inquiries. As we have noted, in its motion to dismiss St. Mary addresses only the first of these entitlements.
In her response to the motion to dismiss, Hofferica asserts three arguments in defense of her interference claims: that (1) she was entitled to reinstatement under the FMLA; (2) in any case, St. Mary should be equitably estopped from claiming that she exceeded her FMLA leave; and (3) she has successfully stated an interference claim based on St. Mary's ...