United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S PARTIAL
MOTION TO DISMISS (DKT. 15)
A. GOLDSMITH United States District Judge.
Paula Taylor was an employee of Defendant J. C. Penney
Company, Inc. from May 1981 until her termination in January
2016. In her amended complaint, Taylor alleges that J. C.
Penney committed various violations of the Family and Medical
Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601
et seq. This matter is before the Court on J. C.
Penney's motion to dismiss portions of count one of the
amended complaint (Dkt. 15). The issues have been fully
briefed. Because oral argument will not aid the decisional
process, the motion will be decided based on the parties'
briefing. See E.D. Mich. LR 7.1(f)(2). As discussed
below, the Court grants the motion.
Court has already provided a detailed factual background for
this case when ruling on J. C. Penney's first motion to
dismiss. See Taylor v. J. C. Penney Co., Inc., No.
16-cv-11797, 2016 WL 4988054, at *1 (E.D. Mich. Sept. 19,
2016). For the sake of brevity, therefore, the Court recites
only the following background that is pertinent to the issues
in the present motion.
8, 2015, Taylor had surgery on her lower back and took
medical leave under the FMLA. Id. at *1. Taylor
returned to work on August 12 with certain physical
restrictions, including no excessive bending or lifting over
twenty-five pounds, and she could only work four-hour days.
Id. Although she was cleared to work fulltime with
the same physical restrictions on October 13, Taylor used her
Paid Time Off (“PTO”) from October 15 through 31.
Id.; Am. Compl. ¶ 29 (Dkt. 14) (PTO “may
be used any time an employee wants to be off work on a
regularly scheduled day.”). Taylor was scheduled to
return to fulltime work on November 2, 2015. Taylor,
2016 WL 4988054, at *1.
Taylor arrived to work on November 2, her store manager,
Anita Szostek, informed her that Szostek could not
accommodate the restrictions set by Taylor's doctor, and
Szostek sent Taylor home. Id. Taylor continued to
show up for work from November 2 through November 8, but she
was told to return home each day by the acting manager and/or
leader of the day. Id. According to Taylor, Szostek
“allow[ed] the time and attendance computer attendance
system to mark [Taylor's] time sheet as . . . Failure to
Report.” Am. Compl. ¶ 22.
the week of November 2 through 5, Taylor contacted J. C.
Penney's human resources department, which is
administered by a group referred to as the “Powerline
Specialists, ” to coordinate short-term disability
benefits, which J. C. Penney offers its employees and refers
to as Illness Recovery Time (“IRT”). Am. Compl.
¶¶ 27-28, 31. The Powerline Specialists initially
told Taylor that she was not entitled to IRT, but that Taylor
could use her PTO. Id. ¶ 31. The distinction
between PTO and IRT is significant, says Taylor, because PTO
“is a component of compensation that is earned and
banked, ” such that any unused PTO time “is paid
to the employee at the termination of employment.”
Id. ¶ 29. On the other hand, eligible employees
are entitled to a certain amount of IRT, which is not earned
or banked through work. Id. ¶ 28. If the
employee does not use the IRT, it is lost. Id.
visit to Taylor's doctor on November 10, the doctor
removed Taylor's physical restrictions, and she returned
to work on November 11. Id. ¶¶ 38-40. On
November 20, Taylor received a letter from the Powerline
Specialists, which stated that Taylor was approved for IRT
from November 3 through November 10. Id. ¶ 41.
However, the November 2 absence was classified as PTO time,
not IRT. Id. ¶ 75.
in January 2016, Taylor informed Szostek that Taylor was
going to have knee surgery on February 11, 2016.
Taylor, 2016 WL 4988054, at *1. On January 25, 2016,
Taylor was fired for insubordination and for an incident
involving a coupon that a customer had given Taylor on
January 18, which was then supposed to be given to
Taylor's sister. Id. After her termination,
Taylor received a check that included a payout for her
accumulated PTO time, which was less one day due to the PTO
designation for November 2. Am. Compl. ¶¶ 54, 56,
STANDARD OF DECISION
evaluating a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), “[c]ourts must construe the
complaint in the light most favorable to plaintiff, accept
all well-pled factual allegations as true, and determine
whether the complaint states a plausible claim for
relief.” Albrecht v. Treon, 617 F.3d 890, 893
(6th Cir. 2010). To survive a motion to dismiss, a complaint
must plead specific factual allegations, and not just legal
conclusions, in support of each claim. Ashcroft v.
Iqbal, 556 U.S. 662, 678-679 (2009).
amended complaint, Taylor asserts one count of FMLA
interference and one count of FMLA retaliation. Regarding her
claim for FMLA interference, Taylor advances three distinct
theories that J. C. Penney allegedly interfered with her
exercise of FMLA rights. Because J. C. Penney does not
challenge the third theory, see Def. Br. at 11 n.5
(Dkt. 15); Def. Reply at 1, 3 n.2 (Dkt. 17), which is
predicated on Taylor's termination for the anticipatory
exercise of FMLA leave in February 2016, see
generally Am. Compl. ¶¶ 91-97, the Court will
confine its analysis to the first two theories of liability.
first alleges that J. C. Penney interfered with her right to
take intermittent FMLA leave when the Powerline Specialists
“fail[ed] and, in fact, refus[ed] to timely certify
her” for IRT for the time between November 2 to
November 10, 2015. Am. Compl. ¶ 70. The untimeliness
purportedly “cut short” Taylor's entitlement
to further intermittent FMLA leave, id. ¶ 77,
because Taylor “may have claimed additional
weeks of FMLA leave” had the IRT request been timely
certified, id. ¶ 74 (emphasis added). See
also id. ¶ 72 (“Were it not for Powerline
Specialists' failure to properly approve her claim for