Opinion
L ACTION NO. 03-1438, SECTION "N" (2)
December 15, 2003
ORDER AND REASONS
Plaintiff, Janie M. Felder, filed this action against her former employer, Winn-Dixie Louisiana, Inc. ("Winn-Dixie"). Plaintiff asserts that defendant violated her rights under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2611 et seq., and discriminated against her on the basis of race and/or gender in violation of Title VII, 42 U.S.C. § 2000e et seq., and Louisiana's anti-discrimination statute, La.Rev.Stat. § 23:301 et seq., when defendant terminated her employment. Felder seeks a declaratory judgment, a permanent injunction, compensatory damages, reinstatement to her job (or alternatively back pay and front pay), statutory penalties, punitive damages, costs, reasonable attorney's fees and prejudgment interest. Complaint, Record Doc. No. 1.
This matter was referred to the undersigned United States magistrate judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of all parties. Record Doc. No. 10.
Winn-Dixie filed a motion to dismiss plaintiff's FMLA claim only. Defendant argues that plaintiff fails to state a claim because she is only entitled to 12 weeks of leave under the FMLA and she failed to return to work after she had taken 12 weeks of leave. Record Doc. No. 7. Felder filed a timely opposition memorandum. Record Doc. No. 11.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion to dismiss plaintiff's FMLA claim is GRANTED.
I. FACTUAL BACKGROUND
Plaintiff's complaint makes the following factual allegations, which are accepted as true for purposes of the pending motion. She began her employment with Winn-Dixie in 1998. In 2001, she became pregnant and reported her condition to her supervisor. When Felder's doctor advised her to avoid heavy lifting, she reported that restriction to her supervisor, who refused to abide by the lifting restriction.
On October 17, 2001, plaintiff went on maternity leave. At that time, Winn-Dixie allowed its employees to take up to a year of leave for the birth of a child.
Felder's child was born on March 18, 2002. In May 2002, she twice attempted unsuccessfully to speak to her supervisor about obtaining an extension of her leave of absence. When Felder was finally able to speak to her supervisor, she was told that her employment had been terminated for her failure to return to work from a leave of absence.
II. ANALYSIS
A. Legal Standard for Motion to Dismiss
When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must take the well-pleaded factual allegations of the complaint as true. "All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiffs favor."Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001); accord McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 310 (5th Cir. 2002).
"Given the Federal Rules' simplified standard for pleading, [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quotation omitted); accord McKinney, 309 F.3d at 312. Motions to dismiss for failure to state a claim are viewed with disfavor and are rarely granted. Southern Christian Leadership Conference v. Supreme Court, 252 F.3d 781, 786 (5th Cir. 2001).
"However, 'conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'"Id. (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)).
B. Plaintiff Fails to State a Claim Under the FMLA
Defendant argues that plaintiff fails to state a claim upon which relief can be granted because the FMLA guarantees her only 12 weeks of leave. On the face of her complaint, Felder failed to return to work within 12 weeks after beginning her maternity leave on October 17, 2001. Winn-Dixie contends that an employee who has exhausted her 12 weeks of FMLA leave and has not promptly returned to work is not entitled to the benefit of reinstatement.
The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter." 29 U.S.C. § 2612(a)(1). An employee who returns to work upon expiration of her FMLA leave is entitled "(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." Id. § 2614(a)(1).
Felder concedes that she is not seeking additional leave but she is seeking reinstatement pursuant to the FMLA. She alleges in her opposition memorandum (although not in her complaint) that Winn-Dixie never informed her that her leave had been designated as FMLA leave before she tried to return to work in May 2002 and that Winn-Dixie never posted or otherwise gave her notice of her rights under the FMLA.
Plaintiff argues that the lack of appropriate notices preclude dismissal of her FMLA claim. First, she contends that, absent Winn-Dixie's written designation of any portion of her leave as FMLA leave as required by the Department of Labor regulations, a fact issue exists concerning when her leave commenced and expired. She asserts that a fact issue exists whether her 12-week FMLA leave period started on October 17, 2001 and that, if it did not start until some later date (or never started), it may not have expired before her contact with her supervisor in May 2002. Thus, she maintains that she would be entitled to reinstatement if she had not exhausted (or had only just exhausted) her FMLA leave by the time she contacted her supervisor.
Second, Felder argues that a fact issue exists whether defendant ever gave her written notice of her rights under the FMLA, as required by the regulations, and that defendant's failure to give such notice precludes it from taking any action against her for her failure to perform any duty described in the required notice.
Even accepting as true plaintiffs new allegations about the lack of notices, no relief could be granted pursuant to the FMLA under any set of facts that could be proved consistent with her allegations. The United States Supreme Court's recent decision in Ragsdale v. Wolverine World Wide. Inc., 535 U.S. 81 (2002), negates Felder's arguments that any lack of notice entitled her to remain eligible for FMLA benefits after the expiration of her 12 weeks of FMLA leave.
In Ragsdale, plaintiff became seriously ill and was eligible for seven months of unpaid sick leave under defendant Wolverine's leave plan. She requested and received seven consecutive one-month leaves of absence. Wolverine never notified her that 12 weeks of her absence would count as FMLA leave. When Ragsdale sought an eighth 30-day extension of her leave, Wolverine advised her that she had exhausted her seven months of leave under the company plan. Because her illness persisted, she requested more leave or permission to work on a part-time basis. Wolverine refused and terminated her when she did not come back to work.Id. at 85-86.
Ragsdale sued Wolverine, relying
on the Secretary of Labor's regulation, which provides that if an employee takes medical leave "and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." The required designation had not been made, so Ragsdale argued that her 30 weeks of leave did "not count against [her] FMLA entitlement." It followed that when she was denied additional leave and terminated after 30 weeks, the statute guaranteed her 12 more weeks. She sought reinstatement, backpay, and other relief.Id. at 86 (quoting 29 C.F.R. § 825.700(a)(2001)). Wolverine successfully argued that, despite its failure to notify plaintiff under Section 825.700(a), it had complied with the FMLA by giving her more than 12 weeks of leave. Id.
The Supreme Court held that Section 825.700(a) was contrary to the FMLA, exceeded the Secretary's authority and was invalid. "Even assuming the additional [regulatory] notice requirement is valid, the categorical penalty the Secretary imposes for its breach is contrary to the Act's remedial design." Id. at 88. The Court reasoned:
This provision punishes an employer's failure to provide timely notice of the FMLA designation by denying it any credit for leave granted before the notice. The penalty is unconnected to any prejudice the employee might have suffered from the employer's lapse. If the employee takes an undesignated absence of 12 weeks or more, the regulation always gives him or her the right to 12 more weeks of leave that year. The fact that the employee would have acted in the same manner if notice had been given is, in the Secretary's view, irrelevant. . . . An employer who denies the employee this additional leave will be deemed to have violated the employee's rights under [29 U.S.C.] § 2615 and so will be liable for damages and equitable relief under [29 U.S.C.] § 2617.
The categorical penalty is incompatible with the FMLA's comprehensive remedial mechanism. To prevail under the cause of action set out in § 2617, an employee must prove, as a threshold matter, that the employer violated § 2615 by interfering with, restraining, or denying his or her exercise of FMLA rights. Even then, § 2617 provides no relief unless the employee has been prejudiced by the violation: The employer is liable only for compensation and benefits lost "by reason of the violation," § 2617(a)(1)(A)(i)(I), for other monetary losses sustained "as a direct result of the violation," § 2617(a)(1)(A)(i)(II), and for "appropriate" equitable relief, including employment, reinstatement, and promotion. The remedy is tailored to the harm suffered.Id. at 88-89.
The court found "no empirical or logical basis for" the regulation's irrebuttable presumption "that the employee's exercise of FMLA rights was impaired — and that the employee deserves 12 more weeks." Id. at 90. On the contrary, as the facts of the case demonstrated,
Ragsdale has not shown that she would have taken less leave or intermittent leave if she had received the required notice. . . . Ragsdale's medical condition rendered her unable to work for substantially longer than the FMLA twelve-week period. . . . Even if Wolverine had complied with the notice regulations, Ragsdale still would have taken the entire 30-week absence. Blind to this reality, the Secretary's provision required the company to grant Ragsdale 12 more weeks of leave — and rendered it liable under § 2617 when it denied her request and terminated her.Id (quotation omitted).
The Supreme Court concluded that
[t]he challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice. In the case at hand, the regulation permitted Ragsdale to bring suit under § 2617, despite her inability to show that Wolverine's actions restrained her exercise of FMLA rights. Section 825.700(a) transformed the company's failure to give notice — along with its refusal to grant her more than 30 weeks of leave — into an actionable violation of § 2615. This regulatory sleight of hand also entitled Ragsdale to reinstatement and backpay, even though reinstatement could not be said to be "appropriate" in these circumstances and Ragsdale lost no compensation "by reason of" Wolverine's failure to designate her absence as FMLA leave.Id. at 90-91.
Felder relies on two regulatory provisions that the Supreme Court didnot specifically invalidate in Ragsdale and contends that this court should apply these regulations to preserve her right to reinstatement. She first cites 29 C.F.R. § 825.208(a), which provides that "it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section." 29 C.F.R. § 825.208(a). However, the Supreme Court struck down the regulation that it described as the penalty for violating Section 825.208(a). Ragsdale, 535 U.S. at 88. That penalty included the right to sue the employer for its violation of the FMLA's designation-of-leave provision, which is the very remedy that Felder is trying to use here.
Felder also cites Winn-Dixie's violation of the general notice provisions in the regulations, which require the employer to advise the employee generally of her rights and obligations under the FMLA. 29 C.F.R. § 825.301 (c). This regulation is based on a specific statutory provision. Again, however, the Ragsdale Court held that the statute sets forth its own penalty for violating the general notice provision and that the Secretary's attempt to impose additional penalties for an employer's failure to provide the regulatory notice was invalid.
That the Secretary's penalty is disproportionate and inconsistent with Congress' intent is evident as well from the sole notice provision in the Act itself. As noted above, § 2619 directs employers to post a general notice informing employees of their FMLA rights. . . . This provision sets out its own penalty for noncompliance: "Any employer that willfully violates this section may be assessed a civil monetary penalty not to exceed $100 for each separate offense." Congress believed that a $100 fine, enforced by the Secretary, was the appropriate penalty for willful violations of the only notice requirement specified in the statute. The regulation, in contrast, establishes a much heavier sanction, enforced not by the Secretary but by employees, for both willful and inadvertent violations of a supplemental notice requirement.Ragsdale, 535 U.S. at 95 (quoting § 2619(b)). Thus, the only available penalty for an employer's violation of the general notice provision is for the Secretary to impose a fine. Felder has no right to sue Winn-Dixie for its violation.
Although plaintiff acknowledges the holding in Ragsdale and avoids seeking any additional leave, the result of accepting her argument that she can seek reinstatement based on defendant's failure to comply with the notice regulations would create a situation virtually identical to the one that the Supreme Court held was contrary to the FMLA. Felder took leave from October 17, 2001 until May 2002. She took more than 12 weeks, regardless of when her FMLA leave started. (The court finds it disingenuous at best for plaintiff to argue that her FMLA leave started, if at all, at some time after October 17, 2001, when she states in her complaint and her memorandum that she "went on maternity leave" on that date. Maternity leave is plainly an FMLA-covered leave. 29 U.S.C. § 2612(a)(1)). Just as Ragsdale would not permit Felder to obtain an additional 12 weeks of leave because of the lack of notice, she is not entitled to any of the other penalties or benefits provided by the FMLA, such as reinstatement or back pay.
The Supreme Court specifically decried the availability of such remedies for lack of notice when the plaintiff had already received 12 weeks of leave.
This regulatory sleight of hand also entitled Ragsdale to reinstatement and backpay, even though reinstatement could not be said to be "appropriate" in these circumstances and Ragsdale lost no compensation "by reason of" Wolverine's failure to designate her absence as FMLA leave. By mandating these results absent a showing of consequential harm, the regulation worked an end run around important limitations of the statute's remedial scheme.Ragsdale, 535 U.S. at 91 (emphasis added).
Felder went on maternity leave, i.e., FMLA leave, on October 17, 2001. Her baby was born on March 18, 2002. She did not try to return to work until May 2002. Just like the plaintiff in Ragsdale, Felder cannot possibly have suffered any harm because of the lack of notice that would entitle her to reinstatement, damages or back pay when she had already taken more than 12 weeks of leave. "If an employee has received her entitlements under the FMLA, she does not have an FMLA claim regardless of the quality of notice that she received." Hunt v. Rapides Healthcare Sys., 277 F.3d 757, 768 (5th Cir. 2002).
The case law establishes that "if an employee fails to return to work on or before the date that FMLA leave expires, the right to reinstatement also expires." Id. at 763; accord McGregor v. Autozone. Inc., 180 F.3d 1305, 1308 (11th Cir 1999): Brown v. Trans World Airlines, 137 F.3d 337, 342-43 (4th Cir. 1997): Beckendorf v. Schwegmann Giant Supermarkets, Inc., 134 F.3d 369 (5th Cir. 1997). Because plaintiff did not return from her leave within 12 weeks, she has no right to reinstatement or any other remedy.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion to dismiss is GRANTED as to plaintiff's claims under the FMLA and those claims are hereby DISMISSED WITH PREJUDICE.