# Abts v. Mercy Health

> District Court, E.D. Missouri · May 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10233030

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** May 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233030

## How later opinions describe it (automated extraction)

- finding that Plaintiff’s “retaliation” claim was more appropriately characterized as one for “discrimination”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANDREW ABTS, )
)
)
Plaintiff, )
)
v. ) Case No. 4:19-CV-02768 JCH
)
MERCY HEALTH, et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Mercy Health and Mercy Hospital
Jefferson’s (“Mercy” or collectively “Defendants”) partial motion to dismiss Counts II and III of
Plaintiff Andrew Abts’s (“Abts” or “Plaintiff”), complaint for failure to state a claim, pursuant to
Fed. R. Civ. P. 12(b)(6). Doc. [6]. Plaintiff responded to the motion (Doc. [14]), Defendants
filed a reply (Doc. [15]), and the matter is fully briefed and ripe for disposition. For the reasons
set forth below, Defendants’ motion will be granted in part and denied in part.
I. Factual and Procedural Background
Taken as true for the purpose of this motion, the facts alleged in the amended complaint
are as follows. Plaintiff was a full-time employee of Mercy Hospital Jefferson from 2004 until
his termination on November 2, 2017, where he first worked as a nurse, then as a patient
advocate, and finally as the manager of the Progressive Care Unit (“PCU”). Plaintiff was
promoted to a managerial position within the PCU in February 2016, pursuant to which Mercy
required him to obtain a bachelor’s degree. Plaintiff enrolled in classes at Central Methodist
University, and Mercy covered his tuition for the program. After Plaintiff’s promotion to
manager, his supervisor was Krista McKenzie, the Director of Nursing Services (“McKenzie”).
In the spring of 2016, Plaintiff took an eight-week leave under the Family Medical Leave
Act, 29 U.S.C. § 2615 (“FMLA”), in order to care for and bond with his newborn child. The
hospital was understaffed during Plaintiff’s leave of absence, and McKenzie had to take on
duties that would have been performed by Plaintiff had he been on site. When Plaintiff returned

from leave, McKenzie was newly critical of both his work performance and his habit of wearing
formal business suits to work. On December 6, 2016, Plaintiff was placed on a performance
improvement plan (“PIP”) that identified four goals, including (1) the timely completion of all
weekly and monthly expectations, (2) assuring that coworkers’ schedules were consistent and
met PCU expectations, (3) completing all “My Education” modules before their due date, and (4)
working on “the building of right relationships with [McKenzie] and other members of the
leadership team.” (Doc. 1 at 5). Plaintiff believes that McKenzie placed him on a PIP because
she was upset with him for taking leave. Plaintiff successfully completed the requirements in the
PIP, and was no longer subject to the plan as of the end of 2016. In July of 2017, Plaintiff
received his annual review, in which McKenzie stated that Plaintiff’s performance was “above

par” and that in his transition to manager, he was “ahead of the curve.” (Doc. 1 at 6). Plaintiff
received an annual raise based on his 2017 review.
In March of 2017, Plaintiff learned that his wife was once again pregnant, and informed
McKenzie of the pregnancy and of his intention to again exercise his FMLA rights to take an
eight-week leave. In August of 2017, Plaintiff informed McKenzie that his baby would be
delivered by scheduled C-section on September 29, 2017, and he would take leave following the
delivery. McKenzie told Plaintiff that she had “serious concerns about the length of time [he
was] taking off.” (Doc. 1 at 7).
On September 26, 2017, Plaintiff submitted his official FMLA Leave of Absence Request
Form, which indicated the reason for leave as “Paternity.” Mercy issued a Notice of Eligibility
and Rights & Responsibilities (“Notice”) on October 1, 2017, and Plaintiff’s official FMLA
leave commenced on October 2, 2017. The Notice indicated that Plaintiff was eligible for

FMLA leave, and required that Plaintiff provide, by no later than October 15, 2017, a “Leave of
Absence Request Form,” and a “sufficient Medical Leave Certification of Health Care Provider
Form.” (Doc. 1 at 8). Plaintiff had already provided the Leave of Absence Request Form.
Plaintiff alleges that he did not have to provide the requested Medical Leave Certification of
Health Care Provider Form, because while such form is required when an eligible employee
seeks FMLA leave due to a serious health condition, the FMLA prohibits an employer from
requiring such a certification when an employee takes leave in order to bond with and care for a
child after its birth.
On October 26, 2017, Mercy sent to Plaintiff a notice that his leave would not be
designated as FMLA leave, because he “did not submit complete and sufficient documents

within the established timeframe.” (Doc. 1 at 10). On November 2, 2017, Mercy terminated
Plaintiff’s employment. In the letter informing Plaintiff of his termination, Mercy identified four
reasons for the termination: (1) that “33 of [his] 45 direct reports did not have their AoS
completed;” (2) “[f]ailure to properly document co-worker corrective actions;” (3)
“[m]anipulation of co-worker schedules in an effort to give them increased incentives that their
skills did not warrant;” and, (4) [n]ot following the leave process and being on an unapproved
leave for 30 days.” (Doc. 1 at 11).
Plaintiff asserts that the second and third of the stated reasons were addressed in his PIP
and had not arisen after his successful completion of the same, and that he had not received any
previous corrective action concerning the first stated reason for termination. Therefore, Plaintiff
argues that the first three stated reasons for termination were pretextual, and otherwise
“insufficient and inappropriate to justify termination” under Mercy’s Corrective Action Policy.
(Doc. 1 at 12).

Mercy, after Plaintiff’s termination, demanded that Plaintiff reimburse it for tuition paid
to Central Methodist University on Plaintiff’s behalf. Prior to his termination, Plaintiff had
accumulated $6,297.83 in paid time off hours, which Mercy retained as partial offset for the
tuition expenses it claims Plaintiff owed.
Plaintiff filed this three Count Complaint on October 11, 2019. Count I is an FMLA
interference claim, in which Plaintiff asserts that Mercy wrongfully denied his FMLA leave
request.1 Count II is for FMLA retaliation, in which Plaintiff asserts that his termination was
“causally related to his FMLA leave request.” (Doc. 1 at 16). Count III is a common law
wrongful discharge claim in which Plaintiff asserts that Mercy terminated him in violation of
public policy.

Defendants filed the instant motion to dismiss Counts II and III on December 13, 2019.
In support of its motion, Mercy argues that Count II must be dismissed for failure to state a claim
because Plaintiff does not assert facts that support an FMLA retaliation claim. Defendants assert
that Count III fails as a matter of law, because in 2017 the Missouri legislature explicitly
abrogated common law wrongful discharge claims. In support of its argument, Defendant cites
to Sections 213.070.2 and 285.575.3 of the Missouri Revised Statutes. Section 213.070.2 states,

1 Plaintiff fashions his claim in Count I as an “interference” claim. However, the Eighth Circuit
has instructed that the type of FMLA claim “formerly described as ‘interference claims henceforth shall
be called ‘entitlement’ claims.” Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th Cir.
2013). Accordingly, in all further discussion of Count I, the Court will refer to Plaintiff’s claim as an
entitlement claim.
“This chapter, in addition to chapter 285, shall provide the exclusive remedy for any and all
claims for injury or damages arising out of an employment relationship.” Section 285.575.3
states that “[t]his section, in addition to chapter 213 . . . shall provide the exclusive remedy for
any and all claims of unlawful employment practices.”

II. Legal Standard
Defendant has moved to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal
sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal
premises . . . thereby sparing litigants the burden of unnecessary pretrial and trial activity.”
Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490
U.S. 319, 326-27 (1989)). A pleading is deficient and may be dismissed under Rule 12(b)(6) if a
plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion

to dismiss for failure to state a claim, a plaintiff’s allegations must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. (quoting 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.”
Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556). The complaint “must contain either direct or inferential
allegations respecting all the material elements necessary to sustain recovery under some viable
legal theory,” and “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence of [each element].” Twombly, 550 U.S. at 562. The reviewing court must accept the

plaintiff’s factual allegations as true and construe them in the plaintiff’s favor, but it is not
required to accept the legal conclusions that plaintiff draws from the facts alleged. Iqbal, 556
U.S. at 678; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69 (8th
Cir. 2012). A court must “draw on its judicial experience and common sense,” and consider the
plausibility of the plaintiff’s claim as a whole, not the plausibility of each individual allegation.
Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010) (quoting Iqbal,
556 U.S. at 679).
III. Discussion
A. FMLA Retaliation Claim—Count II
In Count II of his complaint, in which he purports to bring a claim for FMLA retaliation,

Plaintiff asserts that his termination was “causally related to his FMLA leave request.” (Doc. 1
at 16). Defendants argue that Count One must be dismissed because Plaintiff has failed to state a
claim for retaliation under the FMLA.
The FMLA entitles eligible employees to twelve work weeks of leave per year for
specified reasons. See 29 U.S.C. § 2612(a)(1); Hasenwinkel v. Mosaic, 809 F.3d 427, 431–32
(8th Cir. 2015). Two subsections of the statute establish prohibited acts: “Section 2615(a)(1)
‘makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the
attempt to exercise” rights provided under the FMLA,’ and section 2615(a)(2) ‘makes it unlawful
for “any employer to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful” by the FMLA.’ ” Brown v. Diversified Distrib. Sys., LLC,
801 F.3d 901, 907 (8th Cir. 2015) (quoting Pulczinski v. Trinity Structural Towers, Inc., 691
F.3d 996, 1005 (8th Cir. 2012)). In the Eighth Circuit, courts “ ‘recognize[ ] three types of
claims arising under these two subsections’— entitlement, discrimination, and retaliation

claims.” Id.
In order to state a claim for retaliation under the FMLA, a plaintiff must allege that he
opposed any act or practice made unlawful under the FMLA, or complained about a refusal of
FMLA leave. See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir.
2012) (“If an employee opposes any practice made unlawful under the FMLA—for example, if
an employee complains about an employer’s refusal to comply with the statutory mandate to
permit FMLA leave—then the employer may not for that reason take adverse action against the
employee who is engaged in the opposition.”). Because Plaintiff does not allege any facts about
opposing or complaining about any practice unlawful under the FMLA prior to his termination,
or that he was retaliated against for doing so, Defendants argue, Count II must be dismissed.

In his memorandum in opposition to Defendants’ partial motion to dismiss, Plaintiff
concedes that Count II fails to state a claim for FMLA retaliation. However, Plaintiff argues that
this was merely a matter of mislabeling his claim. He asserts that Count II of his complaint
adequately pleads a claim for discrimination2 under the FMLA, and therefore, Defendant’s
motion to dismiss Count II must be denied. In support of his position, Plaintiff cites to several
Eighth Circuit cases in which the court states that federal district courts should look to the
substance of a complaint rather than the label affixed to a claim when evaluating a motion to

2 To establish a prima facie case of FMLA discrimination, an employee must show: (1) that he
engaged in activity protected under the Act, (2) that he suffered a materially adverse employment action,
and (3) that a causal connection existed between the employee’s action and the adverse employment
action. Brown, 801 F.3d at 908.
dismiss for failure to state a claim, and approves the practice of relabeling claims when
appropriate. See Jackson v. City of Hot Springs, 751 F.3d 855, 858, n. 1 (8th Cir. 2014) (finding
that Plaintiff’s “retaliation” claim was more appropriately characterized as one for
“discrimination”); Lovelace v. Washington Univ. Sch. Of Med., 931 F.3d 698, 705 (8th Cir.

2019) (same); Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1016 (8th Cir. 2013) (re-
characterizing Plaintiff’s retaliation claim as a “discrimination” claim); Curtis v. Nucor Corp.,
713 F. App’x 520, 521 (8th Cir. 2018) (approving the district court’s relabeling of plaintiff’s
claim from “retaliation” to the more accurate “discrimination”).
Defendants, in their reply to Plaintiff’s opposition to their partial motion to dismiss, state
that they do not oppose Plaintiff’s request that his claim in Count II be deemed one for FMLA
discrimination, rather than retaliation. Mercy requests, though, that to the extent Count II may
be construed to be a retaliation claim, it be dismissed. The Court agrees that to the extent
Plaintiff’s claim in Count II may be read or construed as one for FMLA retaliation, it fails to
state such a claim. However, it appears to the Court that this defect in Count II is confined to the

heading that labels the Count as one for “retaliation.” The substance of Plaintiff’s allegations in
Count II contains sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face for FMLA discrimination. As noted supra, to state a claim for FMLA
discrimination, a plaintiff must allege: (1) that he engaged in an activity protected under the Act,
(2) that he suffered a materially adverse employment action, and (3) that a causal connection
existed between the employee’s action and the adverse employment action. Brown, 801 F.3d at
908. Plaintiff alleges that he sought to take FMLA leave to bond with his newborn child, that he
was terminated, and that his termination was causally related to his FMLA leave request. This is
sufficient to state a claim for FMLA discrimination.
The Court may, sua sponte, strike from a pleading any “redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “Impertinent” matters consist of
statements that do not pertain, and are not necessary, to the issues in question. See Fantasy, Inc.
v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993). Striking such matter is appropriate if it may

have the effect of making the action less complicated, or otherwise streamlines the issues
material to the action. Kramer & Frank, P.C. v. Wibbenmeyer, No. 4:05-CV-2395 (EWS), 2006
WL 30790907, *2 (E.D. Mo. Oct. 27, 2006). Because both parties agree that the reference to
“retaliation” in Plaintiff’s complaint is not relevant to the issues raised in Count II, the Court will
strike the impertinent reference to “retaliation” in Count II, and the count formerly titled “Count
II—FMLA Retaliation” shall be retitled “Count II—FMLA Discrimination.”
B. Common Law Wrongful Termination Claim—Count III
In Count III of his complaint, Plaintiff purports to bring a common law claim for
wrongful termination in violation of public policy. Defendants assert, in their partial motion to
dismiss, that such claims have been statutorily abrogated by the Missouri legislature.

Defendants, in support of their argument, state that in 2017 the Missouri legislature passed a
statute that explicitly abrogated and superseded common law wrongful discharge claims. For this
reason, Defendants argue, Plaintiff’s claim for common law wrongful termination in Count III
must be dismissed.
The general rule in Missouri “is that an at-will employee may be terminated for any
reason or no reason[.]” Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo.
banc 2010). Certain exceptions to this general rule were carved out by the courts over the
years, including a public-policy exception which prohibits termination of an at-will employee
for either: (1) “refusing to violate the law or any well- established and clear mandate of public
policy as expressed in the constitution, statutes, regulations promulgated pursuant to statute, or
rules created by a governmental body”; or (2) “reporting wrongdoing or violations of law to
superiors or public authorities, also known as ‘whistleblowing.’” Newsome v. Kansas City,
Mo. Sch. Dist., 520 S.W.3d 769, 777 (Mo. banc 2017) (quoting Fleshner, 304 S.W.3d at 92).

In 2017, the Missouri legislature amended various subsections of the statutes related to
unlawful employment practices. Missouri Revised Statutes Section 214.070.2, as amended,
states that, “[t]his chapter, in addition to chapter 285 and chapter 287, shall provide the
exclusive remedy for any and all claims for injury or damages arising out of employment
relationship.” Missouri Revised Statutes Section 285.573.3 now states, “[t]his section is
intended to codify the existing common law exception to the at-will doctrine and to limit their
future expansion by the courts. This section, in addition to chapter 213 and chapter 287, shall
provide the exclusive remedy for any and all claims of unlawful [employment] practices.”
Defendants argue that Plaintiff’s claim for common law wrongful discharge in
violation of public policy must fail, as it falls outside the exclusive statutory remedies

delineated in chapters 213 and 287 of the Missouri Revised Statutes. The Court agrees. The
Missouri legislature was explicit in its intent for this legislation to supplant common law
wrongful discharge actions. In two recent cases in this district, the federal district court
acknowledged the applicability of the newly established exclusive statutory remedies, and
accordingly, dismissed the plaintiffs’ purported common law wrongful discharge claims. See
Mucci v. St. Francois County Ambulance District, 2019 WL 6170721, at *5 (E.D. Mo. Nov.
20, 2019) (dismissing common law wrongful discharge claim because the Missouri legislature
explicitly replaced such common law cause of actions); Huskey v. Petsmart, Inc., 2019 WL
122873, at *2 (W.D. Mo. Jan. 7, 2019) (The statute “specifies that it and two other enumerated
statutes ‘shall provide the exclusive remedy for any and all claims for injury or damages
arising out of an employment relationship.’ In other words, in Missouri, damages arising from
the employment relationship cannot be redressed except through the specified statutes.”).
Count III is precisely the sort of claim explicitly abrogated by statute, and is therefore barred
by Missouri law and must be dismissed.3

IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that, pursuant to Fed. R. Civ. P. 12(b)(6), Defendant's
Motion to Dismiss Count II—FMLA Retaliation of Plaintiff’s complaint is DENIED.
IT IS FURTHER ORDERED that the count Plaintiff’s Complaint formerly titled “Count
II—FMLA Retaliation” shall be retitled “Count II—FMLA Discrimination.”
IT IS FINALLY ORDERED that Defendants’ motion to dismiss Count III—Wrongful
Termination is GRANTED.
An appropriate Partial Order of Dismissal shall accompany this Memorandum and Order.

Dated this 8th day of May, 2020.
/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

3 While the bar against common law claims in Mo. Rev. Stat. § 285.575.3 is an affirmative defense,
the Court can nonetheless dismiss Count III for failure to state a claim for which relief may be granted “if
an affirmative defense is apparent on the face of the complaint.” Midwest Neurosurgeons, LLC v. Wright,
2018 WL 4279448, at *2 (E.D. Mo. Sept. 5, 2018). Here, it is clear from the face of Plaintiff’s Complaint
that Count III is a common law claim now barred by Missouri statute, so dismissal is appropriate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233030. Public record. Not legal advice.