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Lemanski v. Rev Group, Inc.

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

October 24, 2019

REV GROUP, INC., et al., Defendants.




         Pro se Plaintiff John Lemanki brings an assortment of federal and state law claims against his former employer, Rev Group, Inc. (“Rev”), and his former supervisors, Mandy Pomella and Michael Workman. Plaintiff alleges that Defendants were engaged in a conspiracy to terminate him and that he was terminated in part, based on his attempts to report what he alleges was fraudulent financial information Rev shared with investors. He also asserts that his medical impairments contributed to his termination in violation of the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). Defendants move to dismiss all counts of the complaint, and the motion to dismiss has been fully briefed. The court has reviewed the complaint and briefings and concludes that a hearing is not necessary. See E.D. Mich. 7.1(f)(2). For the reasons explained below, the court will deny Defendants' motion as to Counts I, II, III, and VI and will grant the motion as to Counts IV, V, VII, VIII, IX, X, and XI.


         The relevant facts in this case are drawn from the complaint.[1] Plaintiff began his employment with Rev on November 30, 2016, as a sourcing agent. He was tasked with increasing the efficiency of Rev's manufacturing locations, which required him to visit Rev facilities around the country. Plaintiff maintains that he was an exemplary employee during his employment and that, based on his performance, Defendant Pomella offered him a promotion to the position of Commodity Manager. Plaintiff initially declined this promotion because it carried an increased workload, but he eventually accepted the position after Pomella and Workman “promised” him a raise to “level up” his base salary to that of other Commodity Managers at the time of his next annual performance review.

         Plaintiff alleges that he met with Rev's Vice President, Marcus Berto, during an in-person meeting in early November 2017. During this meeting, Berto told Plaintiff that he suspected that Rev had “cook[ed] the books” to make the company appear more profitable. In the days after this meeting, Plaintiff spoke with Workman and Pomella and requested an explanation regarding Berto's statements. Workman and Pomella both dismissed his concerns and commented that Berto “did not actually understand the numbers.” (ECF No. 1, PageID.9.)

         Plaintiff continued to receive exemplary performance remarks and a full bonus. At his annual performance review on February 9, 2018, Plaintiff was awarded a 2% salary raise-the same raise given to all of the Commodity Managers. Plaintiff contends that this raise did not fulfill Pomella's earlier promise to “level up” his base salary and alleges that Workman promised to grant him an additional raise the following year, provided his performance remained constant.

         On June 7, 2018, Rev publicly announced that it experienced almost $19, 000, 000 in cost increases due to recently enacted tariffs. Months later, on November 7, 2018, Plaintiff attended a Supply Chain Team Meeting. Rev's Chief Operating Officer, Tom Phillips, also attended that meeting and allegedly told Plaintiff that Rev had “made up” the $19, 000, 000 cost increase figure as an excuse for investors to explain Rev's recent failure to achieve its forecasted performance results. Plaintiff asserts that Philips and Pomella would discuss this figure “and other subjects” over the phone.

         Weeks after the meeting with Phillips, Plaintiff asked Workman to clarify Phillip's comment regarding the “made up” $19, 000, 000 cost figure. Workman attempted to placate Plaintiff's concerns, but Plaintiff told Workman that he thought this conduct was illegal and that he intended to report his concerns to the FTC. According to Plaintiff, Workman's tone then “changed” and he advised Plaintiff to “move on”. Plaintiff claims that he “intended to report Defendants['] statements regarding the fabricated $19, 000, 000 tariff impacts upon the end of his extensive travel schedule.” (ECF No. 1, PageID.16.)

         Following his conversation with Workman, Plaintiff claims that Defendants began “intentionally and maliciously create[ing] a hostile work environment” against him. Specifically, Plaintiff began receiving “negative messages” and performance critiques despite his continued exemplary work and adherence to company policy. Additionally, Plaintiff claims that he became distressed when Workman requested to meet with him later that month. Workman's stated reason for this meeting was to discuss “wire harnesses, ” but Plaintiff suspected an ulterior reason for the meeting. He became increasing distraught and depressed leading up to the meeting, culminating in a suicide attempt. He sought medical attention the day after his attempt and was hospitalized.

         Plaintiff initially sought FMLA leave from December 17, 2018, until December 19, 2018, which Rev approved. He then requested to take a full 12 weeks of leave, which Rev also approved. In the process of finalizing his leave, Rev contacted Plaintiff on December 20, 2018, and asked him to select between using his accrued vacation time to cover his leave or taking his entire FMLA leave unpaid. A week later, Plaintiff responded that he would not accept either option and instead elected to use “the Short Term Disability benefit he was entitled to.” (ECF No. 1, PageID 20.) According to Plaintiff, Rev is self-insured and acts as its own short-term disability payee. Plaintiff was terminated less than two hours after requesting to use his short-term disability benefits, purportedly based on policy violations that occurred prior to his leave. Plaintiff further alleges that Rev purposefully delayed payment of his corporate credit card and payment of his short-term disability benefits. Although Plaintiff did ultimately receive his requested disability benefits, he claims that Rev intentionally underpaid him.

         III. STANDARD

         Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief may be granted. Under the Rule, the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pleaded factual allegations as true. Barber v. Miller, 809 F.3d 840, 843 (6th Cir. 2015). Pro se complaints are entitled to liberal construction. See Haines v. Kerner, 404 U.S. 519, 520 (1972). “But pro se litigants must still comply with the procedural rules that govern civil cases.” Tobias v. Michigan, No. 18-1892, 2018 WL 8969133, at *1 (6th Cir. Dec. 17, 2018) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)).

         Federal Rule of Civil Procedure 8 requires a plaintiff to present in the complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint must provide sufficient facts to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “To state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” Boland v. Holder, 682 F.3d 531, 534 (6th Cir. 2012) (emphasis removed) (citing League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)). Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).


         Plaintiff brings 11 sperate claims against Defendants. The court analyzes each of these claims below.

         A. FMLA Count I

         Plaintiff contends that Defendants violated the FMLA by “interfering with, restraining, or denying” his ability to take leave. (ECF No. 1, PageID.24.) Additionally, Plaintiff asserts that Defendants violated the FMLA by terminating his position. Defendants contend that Plaintiff's allegations cannot sustain a FMLA interference claim. The court agrees; however, the court finds that Plaintiff has alleged sufficient facts to state a claim for FMLA retaliation.

         The FMLA entitles employees to take leave for “serious health condition[s]” and prohibits employers from using the taking of FMLA leave as a negative factor in deciding employment benefits. 29 U.S.C. §§ 2612, 2614. There are two distinct theories of recovery under the FMLA: the “entitlement” or “interference” theory arising from 29 U.S.C. § 2615(a)(1) and the “retaliation” or “discrimination” theory arising from 29 U.S.C. § 2615(a)(2). See Morris v. Family Dollar Stores of Ohio, Inc., 320 Fed.Appx. 330, 334 (6th Cir. 2009).

         To state a prima facie claim for FMLA retaliation, a plaintiff must allege that: “(1) he engaged in an activity protected by the [FMLA]; (2) this exercise of his protected rights was known to the defendant; (3) defendant thereafter took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Morris, 320 Fed.Appx. at 338. The elements of an FMLA interference claim largely mirror the elements of a retaliation claim but add a requirement that a plaintiff allege that “his employer denied him FMLA benefits or interfered with FMLA rights to which he was entitled.” Morris, 320 Fed.Appx. at 336. Read liberally, the complaint states a claim for FMLA retaliation.

         Plaintiff admits that Rev approved his full FMLA leave request. (ECF No. 1, PageID.19.) This admission forecloses an interference claim because Plaintiff does not allege that Defendants attempted to dissuade him from taking leave. To the contrary, Rev approved Plaintiff for a full 12 weeks of FMLA leave.

         Plaintiff states that he was terminated shortly after requesting leave, but the alleged basis for his termination is not entirely clear-Plaintiff asserts that he was terminated less than two hours after requesting disability benefits to cover his leave. (ECF No. 1, PageID.20.) For purposes of surviving a 12(b)(6) motion, the Sixth Circuit has advised that temporal proximity alone between a plaintiff's request to take FMLA leave and his termination is sufficient to state a retaliation claim. Greer v. Cleveland Clinic Health Sys. - E. Region, 503 Fed.Appx. 422, 429 (6th Cir. 2012) (“[T]his court has held that additional scrutiny by ones employers, temporal proximity, or both, are enough to establish the causal nexus needed to make out a prima facie case of FMLA retaliation.”). Accordingly, Plaintiff has alleged enough facts to survive dismissal on a retaliation theory against Rev, but his limited allegations cannot sustain a FMLA claim against the individual defendants.

         The Sixth Circuit has suggested in dicta that individuals responsible for making employment decisions can be held individually liable under the FMLA. See Mitchell v. Chapman, 343 F.3d 811, 827 (6th Cir. 2003), abrogated on other grounds in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) (internal citations omitted) (“This Court has interpreted the FLSA's ‘any person who acts, directly or indirectly, in the interest of the employer' language to impose individual liability on private-sector employers. The presence of identical language in the FMLA tends to support a similar finding.”). But the complaint is devoid of any allegations that either Pomella or Workman had the authority to terminate Plaintiff or was involved in the decision to end his employment. Plaintiff's FMLA claim must be dismissed against Pomella and Workman because they cannot be said to have “acted with a retaliatory motive with respect to a decision in which they played no part.” Hall v. Sky Chefs, Inc., 784 F.Supp.2d 811, 831 (E.D. Mich. 2011) (Rosen, J.) (dismissing the plaintiff's FMLA claims against individually named defendants). The court will dismiss Count I against Defendants Workman and Pomella without prejudice. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         B. Violation of Employee Retirement Income ...

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