Brown v. Avanade Inc.

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GARY BROWN, Plaintiff, v. AVANADE INC., Defendant.

No. 3:23-cv-00417

United States District Court, M.D. Tennessee, Nashville Division

November 28, 2023

MEMORANDUM

ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

Before the court is the Motion to Dismiss Count II of the Amended Complaint (Doc. No. 18), filed by defendant Avanade, Inc. (“Avanade”), seeking dismissal of the plaintiff's claims under the Family and Medical Leave Act (“FMLA”) for interference and retaliation. Avanade argues that plaintiff Gary Brown's FMLA claims fail as a matter of law, because he was not covered by the FMLA at the time Avanade terminated his employment. Brown filed a Response in opposition to the motion, arguing that the defendant relies on “distinguishable or effectively overruled case law that ignores a binding regulation from the U.S. Department of Labor” and that he has pleaded sufficient facts to plausibly allege a viable theory of liability under the FMLA. (Doc. No. 21, at 1.) The defendant filed a Reply (Doc. No. 24), arguing that the cases the plaintiff cites do not support his position.

As set forth herein, the court finds that the plaintiff's FMLA claims fail as a matter of law under unambiguous Sixth Circuit precedent. The Motion to Dismiss Count II of the Amended Complaint, therefore, will be granted.

I. PROCEDURAL HISTORY AND FACTS

The plaintiff filed his initial Complaint, asserting claims under the FMLA and the Employee Retirement Income Security Act of 1974 (“ERISA”) in April 2023. (Doc. No. 1.) Rather than an Answer, Avanade filed a Motion to Dismiss the entire Complaint, to which the plaintiff responded by filing his First Amended Complaint (“FAC”), alleging additional facts to support the ERISA claim in particular. The FAC rendered moot the Motion to Dismiss, but Avanade promptly filed the present motion, seeking only the dismissal of the FMLA claims in Count II of the FAC.

By agreement, the plaintiff has now filed a Second Amended Complaint (“SAC”), asserting claims under the Americans with Disabilities Act of 1990 (“ADA”) in addition to his FMLA and ERISA claims. Because the filing of the SAC simply added the ADA claims without otherwise modifying the allegations supporting the FMLA claims, the filing of the SAC does not render moot the pending Motion to Dismiss.

As relevant to the FMLA claims, the plaintiff alleges that Avanade is a private-sector company employing 50 or more employees in 20 or more workweeks during the current calendar year and had at least 50 employees within 75 miles of its headquarters. Brown began working for Avanade on October 18 2021 as Manager, Digital Identity, working remotely. He worked more than 1250 hours between the start of his employment and his termination, but he had been employed for less than twelve months when he was terminated on August 24, 2022. He was a participant in Avanade's employer-sponsored employee benefit plans, including health insurance, a long-term disability (“LTD”) plan, and a short-term disability (“STD”) plan.

On August 21, 2022, the plaintiff was hospitalized and diagnosed with a tumor on his pituitary gland. He informed his direct supervisor of this diagnosis on the same date. The next day, August 22, 2022, Brown contacted his direct supervisor a second time about his diagnosis to inform him that he “likely would need medical leave and/or to use his LTD and/or STD benefits because of the diagnosis and requested information on how to appropriately request the leave.” (SAC ¶ 35.) He “specifically” notified Avanade HR and his direct supervisor that he “wanted to start the process to request any applicable disability or medical leave.” (SAC ¶ 37.) Avanade never notified him as to the next steps for requesting leave. Instead, it notified him on August 24, 2022 that his employment was terminated.

According to the plaintiff, he was “[a]t all relevant times . . . either an eligible employee under the FMLA or would have been an eligible employee once he had been employed for 365 days.” (SAC ¶ 22; see id. ¶ 71.) He asserts that “he would have been entitled to FMLA leave in October 2022,” that he “gave Avanade notice of his intent to exercise his rights under the FMLA prior to his termination” when he informed Avanade of his “intent to utilize medical leave and LTD and/or STD leave,” that his tumor diagnosis constitutes a serious health condition under the FMLA, and that he engaged in activity protected by the FMLA when he gave notice of intent to take medical leave. (SAC ¶¶ 72, 73, 77, 33, 39.) He alleges that there was no legitimate reason for his termination. He claims that the termination, instead, was in retaliation for his “actual and anticipated exercise of his rights under the FMLA and served to interfere with his rights under the FMLA, because Avanade knew that he had a serious health condition and “might need to utilize FMLA benefits.” (SAC ¶¶ 46, 51, 56.)

II. ANALYSIS

A. Rule 12(b)(6)

In ruling on a motion to dismiss under Rule 12(b)(6), the court must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). The court must determine whether the complaint, viewed in that light, contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

B. The FMLA

Congress enacted the FMLA “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” 29 U.S.C. § 2601(b)(1). The FMLA does so by conferring on eligible employees “two interrelated, employee substantive rights”: “the . . . right to use a certain amount of leave for protected reasons, and . . . [the] right to return to . . . an equivalent job after using protected leave.” Milman v. Fieger & Fieger, P.C., 58 F.4th 860, 865 (6th Cir. 2023) (alterations in original) (citation omitted).

Congress “carefully implemented” the right to unpaid leave “‘in a manner that accommodates the legitimate interests of employers,'” by limiting both “who is eligible for FMLA leave” and “when those eligible can exhaust their right to leave.” Id. (citations omitted) (emphasis in original). “[O]nly those employees who worked for a covered employer for at least 12 months and have accumulated at least 1,250 hours of service with that employer in the previous 12 months” are defined as “eligible employees” under the FMLA Id.; 29 U.S.C. § 2611(2)(A) (emphasis added). Eligible employees are entitled to FMLA leave only when they meet one of the circumstances enumerated in the statute, including, for example, “[b]ecause of a serious health condition that makes the employee unable to perform the function of [his] position.” 29 U.S.C. § 2912(a)(1)(D).

Besides granting substantive rights to leave, the FMLA prohibits interfering with, restraining, or denying the exercise or attempt to exercise “any right provided” by the Act and “tak[ing] an adverse employment action against the employee for exercising or attempting to exercise a right protected by the FMLA.” Milman, 58 F.4th and 866 (construing 29 U.S.C. § 2615(a)(1) as covering both types of claims) (citation omitted).^[1]

C. “Eligible” Employee

As set forth above, an “eligible” employee is one who has been employed by the employer for at least 12 months and worked at least 1,250 hours during the preceding 12 months. 29 U.S.C. § 2611(2)(A). Avanade argues that the plaintiff's FMLA claims fail as a matter of law because the plaintiff was not an “eligible” employee at the time he gave notice of a need for leave or at the time of his termination, because he had not yet been employed for 12 months at that time.

The Sixth Circuit, in fact, has long held that only an employee who is “eligible” under § 2611(2) may recover under the FMLA, whether for interference or retaliation. See, e.g., Banerjee v. Univ. of Tenn., 820 Fed.Appx. 322, 327 (6th Cir. 2020) (“It is well established in this circuit that if one is not eligible for FMLA leave, one cannot maintain a cause of action for FMLA retaliation.”); Stimpson v. United Parcel Serv., 351 Fed.Appx. 42, 45 (6th Cir. 2009) (“The FMLA thus makes clear that only ‘eligible employees' may recover under the statute. An eligible employee is one ‘who has been employed (i) for at least 12 months by the employer with respect to whom leave is requested . . . and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.'” (quoting 29 U.S.C. § 2611(2)(A)); Davis v. Mich. Bell Tel. Co., 543 F.3d 345, 354 (6th Cir. 2008) (“To the extent that she is claiming that she was terminated because of her attempt to obtain FMLA leave in January of 2005, her claim must fail as a matter of law because she was not eligible for FMLA benefits with respect to her January 2005 absences.”); Edgar v JAC Prod., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (“To prevail on an [interference] claim, an employee must prove that . . . she was an eligible employee ....”); Humenny v. Genex Corp., 390 F.3d 901, 905 (6th Cir. 2004) (“Appellant argues that the statute's use of the words ‘employee' and ‘individual' indicates that [the FMLA's] retaliation provisions apply regardless of whether an employee is eligible for leave under the statute. However, a close reading of the statute reveals that the retaliation provisions prohibit employers from retaliating based on the exercise of a ‘right' under the statute. The regulations provide similar protection by prohibiting retaliation based on the exercise...