United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER GRANTING DEFENDANT DUO
SECURITY'S MOTION TO DISMISS (Doc.
COHN UNITED STATES DISTRICT JUDGE.
a case under the Family Medical Leave Act (FMLA), 29 U.S.C.
§ 2601. Plaintiff Andrew McAlpine is suing defendants
iVantage and Duo Security (Duo) contending that terminated
him in retaliation for taking FMLA leave.
the Court is DUO's motion to dismiss on the grounds that
(1) it is not plaintiff's employer or a joint employer,
and (2) plaintiff did not work for DUO for the requisite 12
months in order to be eligible for leave under FMLA. For the
reasons that follow, the motion will be granted. As will be
explained, plaintiff cannot allege a viable claim against Duo
because, even assuming Duo is a joint employer, plaintiff
does not meet the 12 month requirement for FMLA eligibility.
relevant facts as gleaned from the complaint follow:
hired plaintiff to work as a Talent Acquisition Specialist on
May 18, 2016. (Doc. 1, Compl. at ¶ 7) On May 8, 2017,
iVantage assigned plaintiff to work at Duo and plaintiff
started working at Duo on that date. Id. at ¶
28, 2017, less than three months after he began working at
Duo, plaintiff took an FMLA leave. Id. at ¶ 10.
mid-August, 2017, plaintiff gave notice to both iVantage and
Duo that he had been released to return to work on August 28,
2017. However, plaintiff says he was unable to return to work
because “defendants” terminated him “based
on false job performance related allegations.”
Id. at ¶¶ 12, 13.
November 2, 2017, plaintiff sued iVAntage and Duo for FMLA
violations. In a single count entitled “ALLEGED FMLA
DISCRIMINATION AND RETALIATION CLAIMS” plaintiff seeks
damages against both iVantage and Duo for denial of the
ability to return to his position and retaliation for taking
leave under FMLA by terminating his employment. Id.
at ¶¶ 15, 16.
answered the complaint. (Doc. 5). In lieu of an answer, Duo
filed the instant motion.
12(b)(6) motion tests the sufficiency of a plaintiff's
pleading. The Rule requires that a complaint "contain
something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of
action." Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) (internal citation omitted). A
"plaintiff's obligation to provide the
'grounds' of his 'entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Id. "[T]hat a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of all
the elements of a cause of action, supported by mere
conclusory statements ...