United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
H. CLELAND UNITED STATES DISTRICT JUDGE.
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,
relevant facts in this case are drawn from the
complaint. 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.
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.)
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.
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.
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,
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.
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.
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
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).
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).
brings 11 sperate claims against Defendants. The court
analyzes each of these claims below.
FMLA Count I
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.
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).
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
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.
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.
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).
Violation of Employee Retirement Income ...