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Abraham v. Board of Regents of University of Wisconsin System

United States District Court, E.D. Wisconsin

December 19, 2016



          HON. PAMELA PEPPER United States District Judge

         This 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' motion.

         I. BACKGROUND

         The 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.

         On May 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.[1] Dkt. No. 23.

         As of 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.


         A 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)).

         The 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. at 634-35.

         Defendants 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.

         The 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.

         In her 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.

         A. Interference Claim

         The 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. ...

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