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McAlpine v. iVantage

United States District Court, E.D. Michigan, Southern Division

April 9, 2018

ANDREW MCALPINE, Plaintiff,
v.
iVANTAGE and DUO SECURITY, Defendants.

          MEMORANDUM AND ORDER GRANTING DEFENDANT DUO SECURITY'S MOTION TO DISMISS (Doc. 8) [1]

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is 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.

         Before 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.

         II. Background

         The relevant facts as gleaned from the complaint follow:

         iVantage 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 ¶ 9.

         On July 28, 2017, less than three months after he began working at Duo, plaintiff took an FMLA leave. Id. at ¶ 10.

         In 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.

         On 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.

         iVantage answered the complaint. (Doc. 5). In lieu of an answer, Duo filed the instant motion.

         III. Legal Standard

         A Rule 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 ...


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