UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Rachael K. Brown

v. Civil No. 15-cv-323-AJ Opinion No.

HCA Health Services of New Hampshire, Inc.

O R D E R

Rachael K. Brown (“plaintiff”) filed this action against

her former employer, HCA Health Services of New Hampshire, Inc.

(“HCA” or “defendant”), asserting various claims arising out of

her termination by the defendant in July 2015. Before the court

is the defendant’s partial motion to dismiss. Doc. no 4. For

the reasons that follow, the defendant’s motion is granted in

part and denied in part.

Background

Accepting the factual allegations set forth in the

plaintiff’s complaint as true, doc. no. 1, the relevant facts

are as follows:

The defendant owns and operates the Portsmouth Regional

Hospital (“Hospital”), located in Portsmouth, New Hampshire.

Compl. ¶ 2, Doc. No. 1. In 2005, the plaintiff was hired by the

defendant. Id. ¶ 5. Throughout her employment, the plaintiff served as Executive Assistant to the Chief Executive Officer of

the Hospital. Id.

The plaintiff suffers from various health conditions,

including Graves’ disease, carpal tunnel syndrome, and

degenerative rheumatoid arthritis. Id. ¶ 13. Despite these

impairments, the plaintiff continued to perform the essential

functions of her work. Id.

In the spring of 2015, the plaintiff was told that she

would have to undergo surgery to treat the medical conditions

affecting her right hand. Id. ¶ 14. After surgery, the

plaintiff would need twelve weeks to recover. Id. In April

2015, the plaintiff informed the defendant she needed to take a

leave of absence in the summer of 2015. Id.

In June 2015, just prior to the plaintiff applying for

twelve weeks of leave under the Family and Medical Leave Act

(“FMLA”), the defendant notified her that it was terminating her

employment effective July 2, 2015. Id. ¶ 15. Prior to the

defendant’s notice, the plaintiff was not aware that her

employment was in jeopardy. Id. ¶ 17. The plaintiff had never

been previously disciplined, and, in fact, had received multiple

positive performance reviews. Id.

Yet, relying on the advice of the Hospital’s CEO and Vice

President of Human Resources, the plaintiff proceeded with her

application for FMLA leave. Id. ¶ 18. The defendant’s short-

2 term disability and leave administrator advised the plaintiff

that if she qualified for FMLA leave, the defendant had to

reinstate her “to the same or an equivalent job with the same

pay, benefits and terms and condition of employment on [her]

return from FMLA-protected leave.” Id. ¶ 19. Soon after, the

plaintiff was informed that the defendant had “approved [her]

leave under the [FMLA] from June 17, 2015, through September 8,

2015.” Id. ¶ 20.

However, contrary to the representations made by the

defendant’s short-term disability and leave administrator, the

plaintiff was still terminated on July 2, 2015. Id. ¶ 21.

On August 18, 2015, the plaintiff filed this action. Doc.

no. 1. The complaint contains four counts against the

defendant: (I) violation of the Fair Labor Standards Act; (II)

interference of the plaintiff’s rights under the FMLA; (III)

interference of the plaintiff’s rights under the Employee

Retirement Income Security Act (“ERISA”); and (IV) wrongful

discharge. Id.

Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), the court

must accept the factual allegations in the complaint as true,

construe reasonable inferences in the plaintiff’s favor, and

“determine whether the factual allegations in the plaintiff’s

3 complaint set forth a plausible claim upon which relief may be

granted.” Foley v. Wells Fargo Bank, N.A.,

(1st

Cir. 2014) (citation and quotation marks omitted). A claim is

facially plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal,

(2009). Analyzing plausibility is “a

context-specific task” in which the court relies on its

“judicial experience and common sense.”

.

Discussion

The defendant moves to dismiss Counts II, III, and IV of

the plaintiff’s complaint. Doc. no. 4. The court examines each

count in turn.

I. Count II: FMLA Interference

The defendant argues that the complaint fails to

sufficiently allege whether the plaintiff notified her employer

of her intention to seek FMLA leave, a required element of an

FMLA claim. Specifically, the defendant claims that, although

the plaintiff alleges to have provided notice on two occasions,

the “first notice [was] vague and conclusory, and the second

notice was untimely as a matter of law.” Doc. no. 4-1 at 8. In

her objection, the plaintiff asserts that the complaint

adequately alleges a prima facie case for an FMLA interference

4 claim.

“[T]he FMLA makes it unlawful for ‘any employer to

interfere with, restrain, or deny the exercise of’ any FMLA-

protected right.” Carrero-Ojeda v. Autoridad de Energía

Eléctrica,

(1st Cir. 2014) (quoting

(a)(1)). To make a prima facie case of FMLA interference,

an employee must show that:

(1) she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her employer notice of her intention to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.

at 722 n.8.

Here, the complaint alleges enough facts to state an FMLA

interference claim. Accepting the factual allegations set forth

in the plaintiff’s complaint as true, the defendant was covered

by the FMLA and the plaintiff was entitled to leave. Compl. ¶¶

19-20. Further, the plaintiff exercised her FMLA rights by

making multiple leave requests under the FMLA. Id. ¶¶ 14-23.

However, just before applying for leave, she was notified that

her employment was terminated, effectively denying her FMLA

benefits. Id. ¶¶ 14-15, 34-35.

Therefore, viewing the complaint holistically, the

plaintiff has plausibly alleged that her termination was

triggered by her leave request and that it resulted in the

5 denial of FMLA rights to which she was entitled when she

requested leave. Carrero-Ojeda,

(holding that

temporal proximity between a request for FMLA leave and

termination “is one factor from which an employer's bad motive

can be inferred . . . .”). Further, “[i]n alleging that she

received positive performance reviews . . . and had no warning

she was about to be fired, the . . . [c]omplaint permits the

inference that [the plaintiff] would not have been terminated—

that is, the reasons given for termination were pretextual—

except to deny her FMLA benefits.” Reilly v. Cox Enters., Inc.,

No. CA 13-785S,

, at *5 (D.R.I. Apr. 16, 2014);

Comp. ¶ 17.

The court acknowledges the defendant’s concern of whether

the plaintiff provided adequate or timely notice to her

employer. That issue, however, better lends itself to

resolution at a later stage when the parties will have had the

opportunity to present the court with a more comprehensive

factual record.

Therefore, the defendant’s motion as to Count II is denied.

II. Count III: ERISA Interference

Similar to its argument to dismiss the plaintiff’s FMLA

interference claim, the defendant argues that the plaintiff’s

ERISA interference claim fails to sufficiently allege whether

the plaintiff notified her employer of her intention to seek

6 ERISA benefits. In addition, the defendant argues that the

complaint fails to allege any plausible basis that the

plaintiff’s employer intended to interfere with her ERISA

benefits. In her objection, the plaintiff again contends that

the complaint adequately alleges a prima facie case for ERISA

interference.

“Section 510 of ERISA prohibits . . . discharge for the

purpose of interfering with the attainment of rights under an

employee benefit plan.” Cameron v. Idearc Media Corp.,

(1st Cir. 2012) (citing

). “[T]o

establish a prima facie case under section 510, a plaintiff must

present sufficient evidence from which the employer's specific

intent to interfere with the plaintiff's benefits can be

inferred.” Barbour v. Dynamics Research Corp.,

(1st Cir. 1995). “Thus, a plaintiff must show that he or she

(1) is entitled to ERISA's protection, (2) was qualified for the

position, and (3) was discharged under circumstances that give

rise to an inference of discrimination.”

At this early stage, the plaintiff has alleged enough facts

to state an ERISA interference claim. First, the complaint

attaches two exhibits demonstrating that the plaintiff was a

member of an ERISA plan. Docs. 1-1, 1-2. Next, the complaint

alleges that she was qualified for her position based on

multiple positive performance reviews. Compl. ¶ 17. Lastly,

7 the complaint alleges that circumstances that give rise to an

inference of discrimination occurred when, just before she

applied for FMLA leave, she was notified that her employment was

terminated. Id. ¶ 15.

The questions of whether the plaintiff’s notice was proper

or if there is any plausible basis that the plaintiff’s employer

intended to interfere with her ERISA benefits should be resolved

on a properly developed summary judgment record, rather than at

this early stage in the proceedings. See Barbour,

(“In most cases, given that the employer controls the evidence

related to intent, a plaintiff will be unable to adduce ‘smoking

gun’ evidence that the employer intended to interfere with his

or her benefits.”).

The defendant’s motion as to Count III is denied.

III. Count IV: Wrongful Discharge

As to the plaintiff’s wrongful discharge claim, the

defendant first argues that because the complaint does not

identify whether the plaintiff performed an act encouraged by

public policy, her wrongful discharge claim fails as a matter of

law. Second, the defendant argues that the plaintiff’s wrongful

discharge claim is preempted by the FMLA. Specifically, the

defendant contends that because the FMLA provides a remedy for

retaliation, it preempts any common-law wrongful discharge

claims based on the same alleged conduct.

8 The plaintiff argues that the complaint sufficiently

alleges that she performed an act encouraged by public policy by

reporting her intent to exercise FMLA leave. In addition, the

plaintiff asserts that a common-law wrongful discharge claim and

a federal statutory FMLA claim may be pursued simultaneously.

To succeed on a wrongful discharge claim, the plaintiff

must “establish that: (1) h[er] termination was motivated by bad

faith, retaliation or malice; and (2) that [s]he was terminated

for performing an act that public policy would encourage or for

refusing to do something that public policy would condemn.”

MacKenzie v. Linehan,

(2009) (citing Lacasse

v. Spaulding Youth Ctr.,

(2006)).

Even if the complaint facially satisfies the elements of a

wrongful discharge claim, it “cannot rest on violation of a

public policy for which there is a preempting statutory remedy.”

See Weeks v. Wal-Mart Stores, Inc., No. 10-CV-336-JD,

, at *2 (D.N.H. Sept. 16, 2010); see also Keele v.

Colonial Imports Corp., No. 12-CV-24-JD,

, at *2

(D.N.H. Mar. 23, 2012) (“[A]bsent preemption, an alternative

statutory remedy does not preclude a wrongful discharge claim

under New Hampshire law.”).

The FMLA provides statutory remedies for interference of

employees' rights under the FMLA.

(a)(2).

“[I]t is generally accepted that Congress intended the FMLA's

9 specific remedies to be the exclusive remedies available for a

violation of the FMLA.” See, e.g., Anderson v. Shade Tree

Servs., No. 4:12CV01066 ERW,

, at *1 (E.D. Mo.

Aug. 10, 2012) (collecting cases); Cisneros v. Colorado, No.

CIV.A.03CV02122WDMCB,

, at *10 (D. Colo. July 22,

2005) (collecting cases); O'Hara v. Mt. Vernon Bd. of Educ.,

(S.D. Ohio 1998).

Accordingly, “a plaintiff may not assert a state law claim

for wrongful discharge in violation of public policy based

solely on the rights set forth in the FMLA.” Cavin v. Honda of

Am. Mfg., Inc.,

(S.D. Ohio 2001)

(emphasis added); see, e.g., Kastor v. Cash Exp. of Tenn., LLC,

(W.D. Ky. 2015) (collecting cases);

McAllister v. Quality Mobile X-Ray Servs., No. 3:12-CV-0078,

, at *5 (M.D. Tenn. July 25, 2012); Johnson v.

Dollar Gen.,

(N.D. Iowa 2011);

Bumgarner v. Grafco Indus.,

(S.D.

Iowa 2008); Johnson v. Honda of Am. Mfg.,

(S.D. Ohio 2002); Cooper v. Harbour Inns of Baltimore, Inc.,

No. L-98-2173,

, at *8 (D. Md. Mar. 20, 2000);

Kiely v. Univ. of Pitt. Med. Ctr., No. 98-1536,

,

at *20 (W.D. Pa. Jan. 20, 2000); Phelan v. Town of Derry, No.

98-013,

, at *2 (D.N.H. Dec. 9, 1998).

10 In her surreply, the plaintiff cites Danfelt v. Bd. of Cty.

Comm'rs of Washington Cty.,

(D. Md. 1998), to

briefly argue that the FMLA’s “savings clause . . . fails to

evince an intent to pre-empt completely . . . .”

.

Yet,

there is a vast difference between a case in which a claim based a violation of the FMLA is joined with a claim based on another federal or state statute that has its own provisions for enforcement and remedies, and a case in which a claim based on a violation of the FMLA is joined with a claim that is also based on the rights granted by the FMLA but which circumvents and conflicts with the enforcement provisions and remedies set forth in the FMLA. The savings clause permits the former; it does not save the latter.

Cavin,

.

The plaintiff also cites Bellido-Sullivan v. Am. Int'l

Grp., Inc.,

(S.D.N.Y. 2000), to contend that

the FMLA “is not meant to preempt state law.”

.

Bellido, however, concerns the FMLA's preclusive effect on an

action’s removal to federal court.

. In fact,

Bellido concedes that precedent exists for “the FMLA [to]

preclude a state common law claim” when “a plaintiff has pleaded

claims under both the FMLA and state common law . . . .”

at

167 n.6.

Here, the plaintiff claims she was wrongfully discharged

because the defendant terminated her employment after she

requested FMLA leave. See Compl. ¶¶ 15, 34-35, 41-44. Thus,

11 since the plaintiff’s wrongful discharge claim is based solely

on the defendant’s alleged violation of the FMLA, the claim is

dismissed.

Conclusion

For the reasons set forth above, the defendant’s partial

motion to dismiss, doc. no. 4, is granted as to Count IV, and

denied as to Counts II and III.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

January 12, 2016

cc: Benjamin T. King, Esq. W. Daniel Deane, Esq. Kevin M. Fitzgerald, Esq.

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