Moore v. Lenderlive Network, Inc.

TALISA RENEE MOORE, Plaintiff, v. LENDERLIVE NETWORK, INC., Defendant.

CIVIL ACTION NO. 14-cv-11324

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 12, 2015

DISTRICT JUDGE MATTHEW F. LEITMAN

MAGISTRATE JUDGE MONA K. MAJZOUB

REPORT AND RECOMMENDATION

This matter comes before the Court on Defendant LenderLive Network, Inc.'s Motion to Dismiss. (Docket no. 11.) Plaintiff Talisa Renee Moore filed a Response to Defendant's Motion (docket no. 17), and Defendant filed a Reply to Plaintiff's Response (docket no. 19). Also pending before the Court is Plaintiff's Motion for Leave to File First Amended Complaint. (Docket no. 18). Defendant responded to Plaintiff's Motion (docket no. 20), and Plaintiff replied to Defendant's Response (docket no. 21). All pretrial matters have been referred to the undersigned for consideration. (Docket no. 13.) The undersigned has reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation.

I. RECOMMENDATION

For the reasons that follow, the undersigned recommends that Defendant's Motion to Dismiss (docket no. 11) be GRANTED and that Plaintiff's Motion For Leave to File First Amended Complaint (docket no. 18) be DENIED. Therefore, this matter should be dismissed in its entirety with prejudice.

II. REPORT

A. Facts and Procedural History

On March 31, 2014, after receiving an unfavorable determination from the Equal Employment Opportunity Commission, Plaintiff filed a pro se Complaint of Employment Discrimination pursuant to Title VII of the Civil Rights Act of 1964 with the Court. (See docket no. 1.) On the MIED EEOC Civil Complaint form, Plaintiff alleged that Defendant's conduct was discriminatory by checking the box next to "ADA-defined disability/other:" and writing the word "Retaliation" on the line provided next to other. (Id. at 2.) Although not entirely clear, the most logical construction of Plaintiff's allegation is that Defendant discriminated and retaliated against her on the basis of a disability under the Americans with Disabilities Act (ADA).

In a handwritten statement attached to the form complaint, Plaintiff provides an account of the events surrounding her termination. (Id. at 3-4.) Plaintiff alleges that on or about January 15, 2013, her manager initiated a confrontation with her. Plaintiff claims that she reported the confrontation to her manager's supervisor, and her manager was reprimanded. Plaintiff asserts that she also filed harassment charges against her manager with an employee in the Human Resources Department. Plaintiff reports that her manager then told another employee that she was going to do everything in her power to fire Plaintiff. Plaintiff's manager allegedly began to harass Plaintiff "regard [sic] everything [she] had done including [her] mom's health issues." Plaintiff claims that she then submitted documents for, and a Human Resources employee approved, intermittent leave for Plaintiff to care for her mother. Plaintiff asserts that she was subsequently terminated by the same Human Resources employee and that she was later contacted by her manager, who advised that Plaintiff needed to be fired because she needed to stay home to care for her mother. Plaintiff furtherclaims that after her termination, she spoke with the Vice President of Human Resources, who told her that her request for intermittent leave was approved in error and that her employment would not be reinstated.

Defendant filed the instant Motion to Dismiss Plaintiff's pro se Complaint on May 5, 2014. (Docket no. 11.) Approximately one month later, counsel filed an appearance on behalf of Plaintiff in this matter. (Docket no. 16.) On July 3, 2014, Plaintiff, with representation, concurrently filed a Response to Defendant's Motion to Dismiss and a Motion for Leave to File First Amended Complaint. (Docket nos. 17 and 18.) In her Response to Defendant's Motion to Dismiss, Plaintiff does not respond to Defendant's arguments against her pro se Complaint or advocate against its dismissal in any way; Plaintiff solely requests that the Court dismiss her pro se Complaint without prejudice contingent upon the Court granting her Motion for Leave to File First Amended Complaint. (See docket no. 17.) Thus, while Plaintiff's Motion for Leave to File First Amended Complaint has been referred to the undersigned for ruling in a separate opinion and order, it is inextricably intertwined with Defendant's Motion to Dismiss and will be addressed in this Report and Recommendation.

B. Governing Law

1. Motion to Amend Standard

Federal Rule of Civil Procedure 15(a) provides that a "party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(A)-(B). Otherwise, "a party may amend its pleading only with the opposing party's written consent orthe court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Factors relevant to the determination of whether to permit an amendment include "the delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001). To determine whether an amendment would be futile, the court determines whether the amendment could survive a motion to dismiss pursuant to Rule 12(b)(6). Keely v. Dep't of Veterans Affairs, No. 10-CV-11059, 2011 WL 824493, at *1 (E.D. Mich. Mar. 3, 2011) (Majzoub, M.J.) (citation omitted).

2. Motion to Dismiss Standard

When deciding a motion under Rule 12(b)(6), the court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The plaintiff must provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). But this statement "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff cannot rely on "legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action;" instead, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This "facial plausibility" is required to "unlock the doors of discovery." Id. To make this determination, theIqbal Court set out the following two-step analysis:

[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

C. Analysis

1. Plaintiff's Motion for Leave to File First Amended Complaint [18]

Plaintiff, represented by counsel, filed a Motion for Leave to File First Amended Complaint on July 3, 2014, along with a Proposed First Amended Complaint. (Docket nos. 18 and 18-1.) Plaintiff's Proposed First Amended Complaint is a complete revision of her pro se complaint; it sets forth an entirely different set of factual allegations and claims. (Compare docket no. 1 with docket no. 18-1.) In her proposed complaint, Plaintiff alleges that she was hired by Defendant on May 15, 2012. (Docket no. 18-1 at 3.) On March 13, 2013, Plaintiff requested intermittent leave from March 2013 to December 2013 to care for her mother, who was allegedly suffering from terminal end-stage cancer. (Id. at 3, 6.) Defendant denied Plaintiff's request on April 3, 2013, on the basis that she was not eligible for leave under the Family and Medical Leave Act (FMLA) because she had not met the FMLA's twelve-month length of service requirement. (Id. at 6.) Defendant allegedly terminated Plaintiff on April 23, 2013. (Id. at 3.) Plaintiff asserts that she would have met the twelve-month service requirement to be eligible for FMLA leave twenty days after her termination date. (Id.) The sole claim in Plaintiff's Proposed First Amended Complaint is that "Defendant interfered with [P]laintiff's FMLA rights by terminating her in order to avoid providing her with FMLA leave rights when she became eligible for FMLA intermittent leave." (Id. at 4.)

The Family and Medical Leave Act entitles an eligible employee to a total of twelve weeks of leave during any twelve-month period in order to care for his or her parent, if the parent has a serious health condition. 29 U.S.C. § 2612(a)(1)(C). The Sixth Circuit recognizes two distinct theories of recovery under the FMLA: the "interference" theory and the "retaliation" theory. Gates v. U.S. Postal Serv., 502 F. App'x 485, 488 (6th Cir. 2012) (citing Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004)).¹ The "interference" theory is derived from 29 U.S.C. § 2615(a)(1), which states that it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." 29 U.S.C. § 2615(a)(1). To prevail on an FMLA-interference claim, a plaintiff must...