Ferreira v Monadnock Paper Mills 13-CV-425-PB 2/25/14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Ferreira

v. Civil No. 13-cv-425-PB Opinion No.

Monadnock Paper Mills, Inc.

MEMORANDUM AND ORDER

James Ferreira claims that his former employer, Monadnock

Paper Mills, Inc., terminated his employment because he

requested sick leave under the Family and Medical Leave Act

(FMLA). Monadnock moves to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). I grant the motion.

I. BACKGROUND1

James Ferreira began working at Monadnock on August 2,

2010. He earned $19.17 an hour working as a Class B

Coater, which required him to load and unload rewinding

machines, operate a fork truck, and operate a flatbed truck.

Ferreira became ill during the second week of May 2013. He was

1 The facts are drawn from the complaint (Doc. No. 1) unless otherwise noted. unable to work on May 14, 2013 and saw his physician the

following day. Ferreira hand-delivered a note from his

physician to a representative of Monadnock on the same day as

his doctor's appointment. The note informed Monadnock that

Ferreira would be unable to work that week due to his illness.

Monadnock terminated Ferreira's employment later that day.

On September 26, 2013, Ferreira filed a complaint against

Monadnock in this court, alleging violations of the FMLA and a

New Hampshire common law claim for wrongful termination. He

claims that Monadnock is an "employer" as defined in 2

(4), that he is an "eligible employee" as defined in

611(2), that he was "entitled to leave" pursuant to 2

(a)(1), and that Monadnock denied his request for

leave, resulting in his loss of wages and benefits. Monadnock

moved to dismiss the complaint on November 25, 2013. Doc. No.

6. Ferreira objected to the motion but stipulated to the

dismissal of his wrongful termination claim. Doc. No. 7-1.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff

must make factual allegations sufficient to "state a claim to

relief that is plausible on its face." See Ashcroft v. Iqbal,

2

(2009) (quoting Bell A t l . Corp. v. Twombly,

(2007)). A claim is facially plausible when

it pleads "factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged. The plausibility standard is not akin to a

'probability requirement,' but it asks for more than a sheer

possibility that a defendant has acted unlawfully."

(citation omitted).

In deciding a motion to dismiss, I employ a two-step

approach. See Ocaslo-Hernandez v. Fortuho-Burset, 64 0 F.3d 1,

12 (1st Cir. 2011). First, I screen the complaint for

statements that "merely offer legal conclusions couched as fact

or threadbare recitals of the elements of a cause of action."

(alterations and internal quotation marks omitted). A claim

consisting of little more than "allegations that merely parrot

the elements of the cause of action" may be dismissed.

Second, I credit as true all non-conclusory factual allegations

and the reasonable inferences drawn from those allegations, and

then determine if the claim is plausible.

The plausibility

requirement "simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence" of illegal

conduct. Twombly,

. The "make-or-break

3 standard" is that those allegations and inferences, taken as

true, "must state a plausible, not a merely conceivable, case

for relief." Sepulveda-Villarini v. Pep't of Educ. of P.R.,

(1st Cir. 2010); see Twombly,

("Factual allegations must be enough to raise a right to relief

above the speculative level . . . .") .

Il l . ANALYSIS

To maintain a claim that he was denied benefits in

violation of the FMLA, Ferreira must prove that: (1) he was an

"eligible employee"; (2) Monadnock was a covered employer; (3)

Ferreira was entitled to FMLA benefits; (4) Ferreira gave

Monadnock notice of his intention to use his benefits; and (5)

Monadnock failed to honor Ferreira's right to benefitsw See,

e.g., Spurllng v. C & M Fine Pack, Inc., 739 F,3d 1055, 1062

~ The FMLA, also makes it unlawful for an employer to retaliate against an employee for attempting to exercise FMLA rights. See, e.g., Pagan-Colon v. Walgreens of San Patricio, Inc.,

(1st Cir. 2012). In addition to the first four elements noted above, an FMLA retaliation claim also requires proof that the employee suffered an adverse employment action because of the employer's retaliatory animus.

It is unclear from the complaint whether Ferreira is attempting to assert a retaliation claim or whether he is making a claim that Monadnock denied him benefits that he was entitled to under the FMLA. I assume for the purposes of this decision that he intends only to assert a denial of benefits claim.

4 (7th Cir. 2014); see also Colburn v. Parker Hannifin/Nichols

Portland Div.,

(1st Cir. 2005) (noting that

"no showing as to employer intent is required" to maintain an

FMLA claim for denial of benefits).

To be an "eligible employee," Ferreira must (1) have been

employed "for at least 12 months by [Monadnock]," (2) have been

employed "for at least 1,250 hours of service with [Monadnock]

during the previous 12-month period," but (3) not have been

"employed at a worksite at which [Monadnock] employs less than

50 employees if the total number of employees employed by

[Monadnock] within 75 miles of that worksite is less than 50."

See

(2)(A), -(2)(B)(ii). To be a covered

employer, Monadnock must have "employ[ed] 50 or more employees

for each working day during each of 20 or more calendar

workweeks in the current or preceding calendar year." See

§ 2611(4)(A)(i). To be entitled to FMLA benefits, Ferreira must

have had a "serious health condition" that (1) involved either

"inpatient care in a hospital, hospice, or residential medical

care facility" or "continuing treatment by a health care

provider" and (2) rendered him "unable to perform the functions

of" a Class B Coater. See id. §§ 2611(11); 2612(a)(1)(D). To

have provided sufficient notice to Monadnock of his intention to

5 use FMLA benefits, Ferreira must have (1) requested leave "as

soon as practicable under the facts and circumstances" and (2)

"provide[d] sufficient information for [Monadnock] to reasonably

determine whether the FMLA may apply to [his] leave request."

See

(a-b).

In analyzing Ferreira's complaint, "I first begin by

identifying pleadings in [the] Complaint that are no more than

legal conclusions, not supported by factual allegations, and

therefore fail entitlement to the assumption of truth." See

Johnson v. Dollar Gen., 77

(N.D. Iowa

2011) (citing Iqbal,

); accord Ocasio-

Hernandez, 64 0 F.3d at 12. Bald assertions that Monadnock is an

"employer," that Ferreira is an "eligible employee," and that

Ferreira "was entitled to leave" as those terms are defined in

the FMLA are textbook examples of "mere[] . . . legal

conclusions couched as fact." See Ocasio-Hernandez, 640 F.3d at

12; accord Kiniropoulos v. Northampton Cnty. Child Welfare

Serv.,

, 391 n.18 (E.D. Pa. 2013); Weise v.

Eisai, Inc., No. ll-CV-00713-WJM-MJW,

, at *3 (D.

Colo. Jan. 11, 2012). When these legal conclusions are stripped

from the complaint, the remaining factual allegations, which I

assume at this stage to be true, do not state a plausible case

6 for relief. See Sepulveda-Villarini,

; cf.

Kiniropoulos,

-92 & n.18; Weise,

, at *3; Johnson, 778 F. Supp. 2d at 944.

First, the complaint does not allege sufficient facts to

support a reasonable inference that Ferreira is an "eligible

employee" because it does not mention the number of hours that

he worked during the year prior to his leave request, the number

of individuals employed at his worksite, or the number of

individuals employed by Monadnock within seventy-five miles of

that worksite. See

(2)(A), -(2)(B)(ii);

Kiniropoulos,

-92 & n.18. Second, the

complaint does not permit a reasonable inference that Monadnock

is a covered employer because it does not allege that Monadnock

employed a sufficient number of employees during the requisite

period prior to the leave request. See

(4)(A)(i); Adams v. High Purity Sys. Inc., No. 1:09-CV-

354-GBL,

, at *8 (E.D. V a . July 2, 2009), aff'd ,

(4th Cir. 2010). Third, the complaint does not

permit a reasonable inference that Ferreira was entitled to FMLA

benefits because it does not allege that his illness required

inpatient care or continuing treatment from a health care

7 provider." See

(11); 2612(a)(1)(D); Johnson,

778 F. Supp. 2d at 947. Fourth, the complaint does not allege

sufficient facts to permit a reasonable inference that Ferreira

provided Monadnock the requisite notice of his intention to use

FMLA benefits.4 See Johnson, 778 F. Supp. 2d at 949;

(a-b).

Ferreira has sufficiently pled the fifth element of a FMLA

denial of benefits claim - that his termination constituted an

implicit denial of his request for leave - but the scant factual

allegations supporting the other elements do not "raise a right

to relief above the speculative level," see Twombly,

Although Ferreira has alleged "an in-person visit to a doctor of medicine," that fact alone is insufficient to permit a reasonable inference that he had a "serious health condition" as defined in the FMLA. See Johnson,778 F. Supp. 2d at 947 ("The continuing treatment test for a serious health condition is met if an employee is incapacitated . . . for more than three consecutive days and . . . is treated by a health care provider on two or more occasions." (quoting Woods v. DaimlerChrysler Corp., 409 F .3d 984, 990 (8th Cir. 2005))).

4 Ferreira alleges that he gave an unidentifiedperson at Monadnock a note from his doctor stating that he would be unable to work that week due to an unspecified illness, but this information alone would not notify Monadnock that Ferreira was requesting FMLA benefits. The note must have also put Monadnock on notice that Ferreira required "inpatient care . . . or continuing treatment by a health care provider," and the complaint alleges no such facts. See Johnson, 778 F. Supp. 2d at 947 (quoting Woods, 409 F.3d at 990 (quoting

(11))). 555, warranting dismissal of the claim. Ferreira has requested

leave to amend the complaint, however, see Doc. No. 7-1, which I

am inclined to grant. See Fed. R. Civ. P. 15(a)(2) ("The court

should freely give leave [to amend a pleading] when justice so

requires."); Moss v. U.S. Secret Serv.,

(9th

Cir. 2009) ("Dismissal without leave to amend is improper unless

it is clear, upon de novo review, that the complaint could not

be saved by any amendment." (quoting Gompper v. VISX, Inc., 2 98

F .3d 893, 898 (9th Cir. 2002))).

IV. CONCLUSION

For the foregoing reasons, I grant Monadnock's motion to

dismiss the complaint in its present form (Doc. No. 6).

Ferreira shall file a motion for leave to amend his complaint,

together with a proposed amended complaint addressing the noted

deficiencies, within fourteen days.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 25, 2014

cc: David P. Slawsky, Esq. Beth A. Deragon, Esq. R. Matthew Cairns, Esq. 9