United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANTS' PARTIAL
MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT
(DKT. NO. 18)
PAMELA PEPPER United States District Judge
case is before the court on the defendants' partial
motion to dismiss the plaintiff's second amended
complaint. Dkt. No. 18. For the reasons explained in this
order, the court will grant in part the defendants'
plaintiff's case arises out of her termination from
employment with the University of Wisconsin-Milwaukee
(“UWM”) and the circumstances leading up to
UWM's decision to lay her off. After the plaintiff filed
her original complaint and first amended complaint, the
defendants moved to dismiss the plaintiff's claims under
the Fourteenth Amendment, the Americans with Disabilities Act
(“ADA”), the Family and Medical Leave Act
(“FMLA”), Title IX of the Education Amendments
Act, and certain of the plaintiff's Title VII claims.
Dkt. No. 9. The plaintiff moved to stay briefing on that
motion so that she could file a second amended complaint,
dkt. no. 13; the defendants did not object to that motion.
The court granted the plaintiff's motion to stay
(text-only order dated January 26, 2016), and she filed her
second amended complaint on April 15, 2016, dkt. no. 16.
16, 2016, the defendants filed an answer to the second
amended complaint, along with a partial motion to dismiss.
Dkt. No. 18. By agreement between the parties, the scope of
the defendants' motion has been reduced considerably.
After the defendants filed their partial motion to dismiss,
the plaintiff agreed to dismiss certain of her claims, and
did not respond to the defendants' motion to dismiss her
claims under the ADA and the Rehabilitation Act. Dkt. No. 20,
at 1-2; Dkt. No. 22, at 1. On July 19, 2016, the court heard
oral arguments on the defendants' motion. Dkt. No. 23. At
that time, the plaintiff agreed that the claims set forth on
pages six and seven of the defendants' reply brief
accurately stated the claims that the parties agreed could
proceed. Dkt. No. 23.
the hearing date, the only claims in the defendants'
motion that remained for the court to decide were the
plaintiff's claims under the FMLA against defendants
Kuiper, Weslow, Bradbury, Venugopalan and Britz in their
individual capacities. Dkt. No. 20, at 2; Dkt. No. 22 at 1-2.
During the hearing, counsel for the defendants argued, and
the plaintiff's counsel agreed, that the complaint did
not state a claim under the FMLA against defendants Britz and
Venugopalan, further narrowing the scope of the
defendants' motion to the FMLA claims asserted against
defendants Kuiper, Bradbury and Weslow. The court then heard
arguments regarding whether the complaint stated a claim
under the FMLA against those three defendants. At the
conclusion of the arguments, the plaintiff's counsel
requested leave to file a post-hearing letter brief
addressing the plaintiff's FMLA claim against defendant
Weslow. As the court instructed, the parties each have filed
their post-hearing letter briefs, dkt. nos. 24, 25, and the
motion is ripe for decision. Because the defendants'
motion now applies only to the plaintiff's FMLA claims
against defendants Kuiper, Bradbury and Weslow, the court
will discuss only those allegations.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges the sufficiency of the complaint, not its
merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of
Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In
considering a motion to dismiss brought under Rule 12(b)(6),
the court accepts as true all well-pleaded facts in the
plaintiff's complaint and draws all reasonable inferences
from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “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. In this context, “plausible, ” as opposed
to “merely conceivable or speculative, ” means
that the plaintiff must include “enough details about
the subject-matter of the case to present a story that holds
together.” Carlson v. CSX Transp., Inc., 758
F.3d 819, 826-27 (7th Cir. 2014) (quoting Swanson v.
Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010)).
defendants contend that the plaintiff has failed to plead
sufficient facts to state an FMLA interference claim against
defendants Kuiper, Bradbury and Weslow. To state an FMLA
interference claim, a plaintiff must show: (1) that
“she was eligible for FMLA protection, ” (2) that
“her employer was covered by the FMLA, ” (3) that
“she was entitled to FMLA leave, ” (4) that
“she provided sufficient notice of her intent to take
leave, ” and (5) that “her employer denied her
benefits to which she was entitled.” Smith v. Hope
School, 560 F.3d 694, 699 (7th Cir. 2009). The
defendants also argue that the plaintiff has failed to plead
sufficient facts to state an FMLA retaliation claim against
those three defendants. A plaintiff asserting a retaliation
claim under the FMLA may proceed under the direct or indirect
method of proof. Curtis v. Costco Wholesale Corp.,
807 F.3d 215, 219 (7th Cir. 2015). Under the direct method,
the plaintiff must establish that (1) she engaged in a
protected activity; (2) her employer took an adverse action
against her; and (3) there is a causal connection between her
protected activity and her employer's adverse employment
action. Cracco v. Vitran Express, Inc., 559 F.3d
625, 633 (7th Cir. 2009). Under the indirect method, the
plaintiff must demonstrate that: “(1) [s]he engaged in
statutorily protected activity; (2) [s]he met [her]
employer's legitimate expectations; (3) [s]he suffered an
adverse employment action; and (4) [s]he was treated less
favorably than similarly situated employees who did not
engage in statutorily protected activity.” Id.
Kuiper, Bradbury and Weslow each work in UWM's Human
Resources Department. During the time relevant to this case,
Weslow was the Assistant Vice Chancellor of UWM's HR
department, Bradbury was the Employee Relations Coordinator
for UWM, and Kuiper was UWM's Disabilities in Employment
Coordinator. Dkt. No. 16 at ¶¶6-7, 10. The second
amended complaint alleges that the plaintiff requested FMLA
leave on September 19, 2013, due to her mental health
conditions. Id. at ¶31. She alleges that she
could have returned to work on or about October 9, 2013 if
UWM had provided “reasonable accommodations for her
disabilities, ” including allowing the plaintiff to
work from home up to twenty hours per week and the ability to
work those hours “at any time of the night or
day.” Id. at ¶32. The plaintiff alleged
that Kuiper refused her request for those accommodations on
November 21, 2013. Instead, on November 25, 2013, Kuiper
offered her the ability to work reduced hours in the office,
not at home. Id. at ¶33. Then, on November 27,
2013, the plaintiff “requested that she be able to flex
her hours between 6:00 a.m. and 6:00 p.m., and that she be
allowed to work on campus at a location other than her
assigned workspace.” Id. at ¶34. On
January 14, 2014, “UWM” refused to grant the
accommodations the plaintiff had requested on November 27,
2013. Id. at ¶37.
plaintiff alleges that, “on or about December 13, 2013,
[she] returned to work, as her protected FMLA leave had
ended.” Id. at ¶38. In May 2014,
“UWM notified [the plaintiff] that she was ‘at
risk' for layoff because UWM had decided to discontinue
using the computer application ‘myDev, ' the
development and maintenance of which was [the
plaintiff's] primary work responsibility.”
Id. at ¶39. She was laid off on June 28, 2014.
Id. at ¶40. She alleges that defendants Kuiper,
Bradbury and Weslow interfered with her rights under the FMLA
and retaliated against her for exercising those rights by
“refusing to allow her to return to work after her
leave, refusing to provide her with accommodations for her
disabilities, and failing to offer or suggest alternative
accommodations for her disabilities . . . .”
Id. at ¶48.
post-hearing letter brief, the plaintiff argued that the
plaintiff's FMLA claims “should be analyzed under a
theory of intersectionality.” Dkt. No. 24 at 1. She
contends that UWM's failure to provide her with
reasonable accommodations for her disabilities so that she
could return to work without using her full twelve-week FMLA
leave period “could have been done in retaliation for
her internal complaint” of sex discrimination.
Id. at 2. She further submits that UWM could have
decided “to eliminate the myDev application at UWM, and
thus eliminate Ms. Abraham's position, ” because
the plaintiff has disabilities and “needed FMLA leave,
because she actually took such leave, or a combination of
other factors.” Id. She contends that she
“did not plead her proof, as that is not required at
the pleading stage.” Id.
allegations in the second amended complaint fail to state
facts that support the fifth element in an FMLA interference
claim-that the plaintiff's employer denied her benefits
to which she was entitled. The plaintiff used all of her FMLA
leave; she indicates as much in paragraph 38 of the second
amended complaint (“In the meantime, on or about
December 13, 2013, Abraham returned to work, as her protected
FMLA leave had ended.”), as well as on page 2 of her
post-hearing letter brief (arguing that the defendants'
failure to accommodate her disabilities would have allowed
her to return to work “without taking her full twelve
weeks of leave”). The plaintiff's claim that the
three individual defendants interfered with her right to take
the FMLA leave to which she was entitled is in direct
conflict with her factual admissions that she took all of the
leave to which she was entitled. See, e.g.,
Bunch v. County of Lake, No. 15-C-6603, 2016 WL
1011513, *5 (N.D. Ill. Mar. 16, 2016) (citing Chicago
Police Sergeants Ass'n v. City of Chicago, No.