HINES v. BLUE CROSS BLUE SHIELD OF NC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTOINETTE HINES, )

)

Plaintiff, )

)

v. ) 1:19-cv-754

)

BLUE CROSS & BLUE SHIELD )

OF NORTH CAROLINA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Plaintiff, Antoinette Hines, initiated this action against her former employer, Blue

Cross and Blue Shield of North Carolina (“Defendant”), alleging violations of the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12101 et seq. (ECF No. 1 ¶ 1.) Before the Court are Defendant’s

Motion to Dismiss, (ECF No. 9), and Plaintiff’s Motion to File an Amended Complaint, (ECF

No. 14), brought pursuant to Rules 12(b)(6) and 15(a) of the Federal Rules of Civil Procedure.

For the reasons that follow, both motions will be granted in part and denied in part.

I. BACKGROUND

Plaintiff was employed as an intake specialist for Defendant from the spring of 2014

until March 9, 2018, when she was fired. (ECF No. 1 ¶¶ 15, 27.) As an intake specialist,

Plaintiff “received and processed inquiries from Blue Cross members and providers via the

telephone.” (Id. ¶ 14.) This position allowed Plaintiff to work from home. (Id. ¶ 16.)

In October of 2017, Plaintiff “be[gan] fighting breast cancer.” (Id. ¶ 19.) According

to Plaintiff’s complaint, Plaintiff “applied for FMLA leave for breast cancer treatment in

January 2018, which [Defendant] approved.” (Id. ¶ 20.) Though Plaintiff’s complaint does

not state when she took her FMLA leave or when she returned from it, it does state that

Plaintiff “received chemotherapy treatment in January 2018,” and that she eventually

“returned to work.” (Id. ¶¶ 2, 21.) Plaintiff further alleges that sometime “in early 2018 [her

supervisor] asked her to come into the office on several occasions.” (Id. ¶ 23.) Plaintiff

apparently declined as her medical provider had “advised her to avoid large groups of people

because of her compromised immune system.” (Id. ¶ 22.)

After Plaintiff returned to work, she was fired on March 9, 2018 for “avoiding calls.”

(Id. ¶ 27.) While Plaintiff acknowledges that she “had ongoing technical issues with

[Defendant’s] telephone system, including dropped calls and calls in which the parties were

unable to hear each other,” she alleges that the reason given for her firing was “false and a

pretext for FMLA retaliation and disability discrimination.” (See id. ¶¶ 25, 28.)

Plaintiff initiated this action on July 25, 2019. (ECF No. 1.) Plaintiff’s complaint

advances three claims: (1) that Defendant “unlawfully interfered with [Plaintiff’s] exercise of

her FMLA rights, in violation of . . . 29 U.S.C. § [2615(a)] by firing [Plaintiff],” (id. ¶ 37); (2)

that Defendant retaliated against her for exercising her FMLA rights in violation of 29 U.S.C.

§ 2615(a)(2), (see id. ¶ 40); and (3) that Defendant fired her because of her disability in violation

of the ADA, (see id. ¶¶ 2, 53). Defendant has moved to dismiss Plaintiff’s complaint for failure

to state a claim, arguing that Plaintiff failed to plead any facts that plausibly supported her

claims. (ECF No. 9 at 1.) Plaintiff later filed an untimely motion to amend her complaint,

seeking to add additional facts to support her claims. (See ECF No. 14.)

II. STANDARD OF REVIEW

A. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

“challenges the legal sufficiency of a complaint,” including whether it meets the pleading

standard of Rule 8(a)(2). See Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2)

requires a complaint to contain “a short and plain statement of the claim showing that the

pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), thereby “giv[ing] the defendant fair notice

of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a Rule 12(b)(6)

motion to dismiss, “a complaint 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 Twombly, 550 U.S. at 570). A complaint may fail to state a claim upon which relief

can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable

claim, see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012); or

second, by failing to allege sufficient facts to support a legal cause of action, see Painter’s Mill

Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).

B. Rule 15(a)

The determination of whether to grant or deny a motion to amend a pleading lies within

the sound discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962); Deasy v.

Hill, 833 F.2d 38, 40 (4th Cir. 1987). Under Rule 15(a) of the Federal Rules of Civil Procedure,

courts should freely grant leave to amend a pleading “when justice so requires.” Fed. R. Civ.

P. 15(a)(2). “This liberal rule gives effect to the federal policy in favor of resolving cases on

their merits instead of disposing of them on technicalities.” Laber v. Harvey, 438 F.3d 404, 426

(4th Cir. 2006). “[L]eave to amend a pleading should be denied only when the amendment

would be prejudicial to the opposing party, there has been bad faith on the part of the moving

party, or the amendment would be futile.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th

Cir. 1986) (citing Foman, 371 U.S. at 182).

A plaintiff’s request to amend a complaint is futile if the proposed amended complaint

could not satisfy the appropriate requirements of the Federal Rules of Civil Procedure, to

include Rule 12(b)(6). See United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370,

376 (4th Cir. 2008).

III. DISCUSSION

As a threshold matter, the Court will first address Defendant’s argument that its Motion

to Dismiss should be granted as an uncontested motion pursuant to Local Rule 7.3(k) because

Plaintiff has not filed a timely response to it. (See ECF No. 17 at 2 n.1.) Plaintiff, after seeking

and receiving two extensions of time to respond to Defendant’s motion, never filed a

response. (See ECF Nos. 11; 12; Text Orders Oct. 16 and Oct. 31, 2019.) Instead, Plaintiff

chose to file a motion to amend Plaintiff’s complaint. (ECF No. 14.) However, even

Plaintiff’s motion to amend was filed outside the deadline the Magistrate Judge set for

responding to Defendant’s motion. (See id.; Text Order Oct. 31, 2019.) Moreover, Plaintiff’s

brief in support of her motion to amend was, at best, perfunctory. (See ECF No. 15.) It did

not respond in any way to the arguments Defendant raised in its motion to dismiss, it did not

acknowledge that Plaintiff’s motion was untimely, and Plaintiff failed to show excusable

neglect for filing an untimely response as required by Local Rule 7.3(k). (See id.) This complete

disregard for the Court’s Order and inattention to or lack of knowledge of this Court’s local

rules placed Plaintiff’s claims in serious jeopardy.  However, the Court concludes that while

Plaintiff will suffer great harm if this Court does not consider each of the parties’ arguments

with respect to her claims, Defendant will not suffer prejudice since it has already briefed the

merits of each claim with respect to Plaintiff’s original complaint as well as the proposed

amended complaint. (See ECF Nos. 10; 17.) For this reason, the Court, in its discretion, will

consider Plaintiff’s untimely motion to amend. Nonetheless, Plaintiff and her counsel are

warned that any further non-compliance with orders of this Court or federal or local rules may

subject Plaintiff’s case to dismissal without further notice.

The Court will now consider Defendant’s Motion to Dismiss each of Plaintiff’s claims

and whether Plaintiff’s proposed amendments will allow it to survive Defendant’s motion or

whether such amendments are futile.

A. Interference Under the FMLA

In support of its motion to dismiss Plaintiff’s FMLA interference claim, Defendant

argues that Plaintiff failed to allege facts to support that Defendant “denied, curtailed, or

otherwise obstructed her FMLA leave.” (ECF No. 10 at 4.)

The FMLA provides, in part, that “[i]t shall be unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to exercise, any right” under the FMLA.

29 U.S.C. § 2615(a)(1). An employer interferes with a right under the FMLA when it takes

any “action with a reasonable tendency to ‘interfere with, restrain, or deny’ the ‘exercise of or

attempt to exercise’ an FMLA right . . . even where the action fails to actually prevent such

exercise or attempt.” Gordon v. U.S. Capitol Police, 778 F.3d 158, 165 (D.C. Cir. 2015) (quoting

29 U.S.C. § 2615(a)(1)). “To make out an ‘interference’ claim under the FMLA, an employee

must . . . demonstrate that (1) [s]he is entitled to an FMLA benefit; (2) [her] employer

interfered with the provision of that benefit; and (3) that [the] interference caused harm.”

Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). At the motion to

dismiss stage, however, a plaintiff need only allege facts that permit the court to plausibly infer

that her employer interfered with her FMLA rights. See Snipes v. Sw. Va. Reg’l Jail Auth., 350

F. Supp. 3d 489, 494 (W.D. Va. 2018).

Plaintiff’s original complaint stated that Defendant “unlawfully interfered with

[Plaintiff’s] exercise of her FMLA rights . . . by firing [her].” (ECF No. 1 ¶ 37.) This allegation

fails to state a claim for interference because employees, like Plaintiff, who apply for and

receive FMLA leave and are terminated only after being reinstated to their position “have not

been denied their FMLA rights; instead, they have received all the benefits to which they are

entitled.” Snipes, 350 F. Supp. 3d at 494; see also Adams v. Shipman, No. 1:13CV858, 2014 WL

4924299, at *10 (M.D.N.C. Sept. 30, 2014) (concluding that a plaintiff who was terminated

after her FMLA leave expired could not state a claim for interference because she failed to

allege facts showing she was denied any FMLA benefits she was entitled to or eligible for).

Moreover, Plaintiff’s effort to amend her interference claim likewise fails because,

despite the amendment, she still has not alleged facts sufficient to permit the Court to plausibly

infer that Defendant interfered with her FMLA rights. Originally, Plaintiff’s claim focused on

her termination by Defendant. (See ECF No. 1 ¶ 37.) In Plaintiff’s proposed amended

complaint, rather than focusing on her termination as the alleged interference, Plaintiff

reframes her interference claim to focus on the conversations she had with her supervisor in

which he asked her to come into the office to meet with him in person. (See ECF No. 14-1

¶¶ 24–25, 39.) Plaintiff’s proposed amended complaint adds two important facts absent from

her original complaint. First, Plaintiff alleges that she was still on FMLA leave when her

supervisor asked her to meet with him in the office. (Id. ¶ 39.) Second, she alleges that she

had to repeatedly explain to her supervisor that she could not come into the office as her

medical provider had advised her to avoid large groups because of her compromised immune

system and that her supervisor became “agitated and angered by [her] inability to meet with

him in person.” (Id. ¶¶ 24–25.) These newly alleged facts could perhaps constitute

interference if Defendant’s actions encouraged Plaintiff to cut her leave short or discouraged

her or other employees from taking FMLA leave in the future. See Snipes, 350 F. Supp. 3d at

493 (explaining that interference includes “discouraging an employee from taking FMLA

leave” as well as conduct that “would have a chilling effect and would discourage employees

from exercising their FMLA rights”); 29 C.F.R. § 825.220(b) (“Interfering with the exercise of

an employee’s rights would include . . . not only refusing to authorize FMLA leave, but

discouraging an employee from using such leave.”). Plaintiff does not, however, allege any

facts making it plausible that the alleged calls from her supervisor actually encouraged her to

cut short her FMLA leave or discouraged her or any other employee from asserting an FMLA

right to which they were entitled. Plaintiff simply states that the calls occurred and concludes

that the calls constituted an effort to coerce her into traveling into the office. (See ECF No.

14-1 ¶ 39.) She pleads no facts alleging how the calls adversely impacted her leave or that of

anyone else. Thus, allowing Plaintiff’s Motion to Amend would be futile in that it likewise

fails to state a claim for interference. See Snipes, 350 F. Supp. 3d at 493–94 (dismissing an

interference claim where plaintiff failed to allege facts making it plausible that his employer’s

hostile comments discouraged plaintiff or other employees from exercising their FMLA

rights).

Accordingly, Plaintiff’s interference claim will be dismissed and her motion to amend

this claim denied.

B. Retaliation under the FMLA

Defendant next moves to dismiss Plaintiff’s retaliation claim on the basis that her

complaint failed to allege facts “that would plausibly demonstrate a causal connection between

Plaintiff taking FMLA leave and [her termination].” (ECF No. 9 at 2.)

Section 2615(a)(2) of the FMLA, the provision under which Plaintiff’s retaliation claim

was brought, forbids employers from “discharg[ing] or in any other manner discriminat[ing]

against any individual for opposing any practice made unlawful” by the FMLA. 29 U.S.C. §

2615(a)(2). Claims brought pursuant to § 2615(a)(2) are generally referred to as retaliation

claims. See, e.g., Adams v. Anne Arundel, 789 F.3d at 429; Yashenko v. Harrah’s NC Casino Co.,

LLC, 446 F.3d 541, 546 (4th Cir. 2006). To state a retaliation claim capable of surviving a

motion to dismiss, a plaintiff must allege facts sufficient to permit the court to plausibly infer

that: (1) she “engaged in a protected activity”; (2) that her employer “took adverse action

against h[er]”; and (3) “that the adverse action was causally connected to [her] protected

activity.” See Yashenko, 446 F.3d at 551; Snipes, 350 F. Supp. 3d at 494.

Here, Plaintiff has alleged in both her original complaint and proposed amended

complaint that she took FMLA leave with Defendant’s approval and that she was fired on

March 9, 2018. (See ECF Nos. 1 ¶¶ 2, 20, 27; 14-1 ¶¶ 2, 20, 27). “The Fourth Circuit has held

that taking FMLA leave is a protected activity under the FMLA and recognizes a cause of

action for retaliation where an employee alleges that he was discharged for taking FMLA

leave.” Moss v. City of Abbeville, 740 F. Supp. 2d 738, 744 (D.S.C. 2010). Plaintiff’s allegations

in both her original complaint and proposed amended complaint therefore clearly satisfy the

first two elements of a retaliation claim.

Defendant, however, contests the third element, arguing that Plaintiff “has not alleged

sufficient facts to demonstrate a plausible causal connection between her taking of FMLA

leave and [Defendant’s] termination of her employment.” (ECF No. 17 at 12–14.) The Court

disagrees. A plaintiff may satisfy the third element of her retaliation claim by alleging a

sufficiently close temporal proximity between the adverse employment action she suffers and

the protected activity she engages in. Yashenko, 446 F.3d at 551 (“While evidence as to the

closeness in time ‘far from conclusively establishes the requisite causal connection, it certainly

satisfies the less onerous burden of making a prima facie case of causality.’” (quoting Williams

v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989))). While neither Plaintiff’s original

complaint, nor her proposed amended complaint explicitly state when Plaintiff took her

FMLA leave, they each allege that she applied for and was approved for FMLA leave and

received chemotherapy, all in January 2018, and that she later returned to work and was fired

on March 9, 2018. (See ECF Nos. 1 ¶¶ 2, 20–21, 27; 14-1 ¶¶ 2, 20–21, 27.) Viewing these

factual allegations in the light most favorable to Plaintiff, the Court reasonably infers that

Plaintiff was fired approximately two months after the end of her FMLA leave. The Court

has previously held that a plaintiff satisfies the third element of a retaliation claim by alleging

a gap of approximately two months between the end of her FMLA leave and her termination.

See Boone v. Bd. of Governors of the Univ. of N.C., No. 1:17CV113, 2018 WL 1620971, at *6

(M.D.N.C. Mar. 30, 2018). The Court holds the same here.

While the close temporal proximity Plaintiff has alleged is sufficient to plausibly state

a causal connection between her FMLA leave and her termination, the Court also finds that

Plaintiff’s proposed amended complaint alleges additional facts further strengthening

Plaintiff’s claim that her termination was connected to her decision to take FMLA leave.

Plaintiff alleges that her supervisor called her while she was on leave and asked her to come

into the office to meet with him in person—despite having been told that she was advised by

her medical provider to avoid large groups due to a compromised immune system—and that

her supervisor became angry when she declined to honor his request. (See ECF No. 14-1 ¶¶

23–25, 39.) Taking Plaintiff’s factual allegations as true, a reasonable inference could be drawn

that the supervisor’s actions demonstrate Defendant’s hostility to Plaintiff’s exercise of her

FMLA rights. The Court therefore concludes that Plaintiff has alleged sufficient facts in her

proposed amended complaint to support a plausible claim that Defendant terminated her in

retaliation for her exercising FMLA rights.

Plaintiff will therefore be allowed to amend her claim for retaliation as set forth in her

proposed amended complaint. Defendant’s Motion to Dismiss is thus denied as to Plaintiff’s

retaliation claim.

C. Wrongful Discharge Under the ADA

Finally, with respect to Plaintiff’s third claim—wrongful discharge under the ADA—

Defendant argues that this claim must fail because Plaintiff “does not allege any facts

demonstrating that Plaintiff’s performance met [Defendant’s] legitimate expectations or that

the circumstances of her termination create a reasonable inference of unlawful

discrimination.” (ECF No. 9 at 2.)

The ADA forbids employers from discharging qualified employees because of their

disability. 42 U.S.C. § 12112(a). To state a prima facie case of wrongful discharge under the

ADA, a plaintiff must demonstrate: that (1) she was “within the ADA’s protected class”; (2)

she “was discharged”; (3) “at the time of h[er] discharge, [s]he was performing [her] job at a

level that met h[er] employer’s legitimate expectations”; and (4) that her “discharge occurred

under circumstances that raise a reasonable inference of unlawful discrimination.” Haulbrook

v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir. 2001). To survive a motion to dismiss,

Plaintiff must therefore “plead facts that permit the [C]ourt to reasonably infer each element

of th[is] prima facie case.” Schmitz v. Alamance-Burlington Bd. of Educ., No. 1:18CV910, 2020

WL 924545, at *4 (M.D.N.C. Feb. 26, 2020) (explaining that complaints “raising ADA causes

of action . . . [are] not required to make out a prima facie case of discrimination . . . or satisfy

any heightened pleading requirements at the motion to dismiss stage”).

While Defendant argued in its motion to dismiss that Plaintiff’s original complaint

failed to allege both the third and fourth elements of wrongful termination under the ADA,

(ECF No. 9 at 2), Defendant challenges only the fourth element with respect to the proposed

amended complaint, (see ECF No. 17 at 15). It appears that Defendant concedes, and this

Court finds, that Plaintiff’s proposed amended complaint sets forth sufficient facts to allege

that Plaintiff was meeting Defendant’s reasonable expectations at the time she was terminated.

(See ECF No. 14-1 ¶ 30.) Therefore, the Court need only examine whether the proposed

amended complaint sets forth sufficient facts to raise a reasonable inference that Plaintiff’s

discharge was motivated by discrimination based on her disability.1

To determine whether unlawful discrimination may be present in ADA wrongful

discharge claims, courts may look at the temporal proximity between when an employer learns

of an employee’s disability and when the employee is fired. See Pickering v. Va. State Police, 59

F. Supp. 3d 742, 748 (E.D. Va. 2014). Here, Plaintiff has not pled any facts establishing when

Defendant learned of her disability or facts permitting the Court to reasonably infer that

Defendant only learned of Plaintiff’s disability in January 2018. In fact, as Plaintiff’s proposed

amended complaint states that she “has been fighting breast cancer since October 2017,”

(ECF No. 14-1 ¶ 19), it could well be the case that Defendant knew about Plaintiff’s disability

for approximately five months before discharging her. Five months is a substantially longer

gap than the two-month period that permitted the Court to plausibly infer FMLA retaliation

and is long enough to weigh against any inference of discrimination. See Foster v. Univ. of Md.

E. Shore, 908 F. Supp. 2d 686, 706 (D. Md. 2012) (finding a gap of a little more than five

months to be “too long a period for [p]laintiff to establish a causal relationship on temporal

proximity alone” in a Title VII case), aff’d in part, rev’d in part on other grounds, 787 F.3d 243 (4th

Cir. 2015). Thus, Plaintiff cannot rely on temporal proximity to argue that the circumstances

1 Plaintiff asserts, and Defendant does not contest, that her “cancer impairment constitutes a disability

within the meaning of the ADA.” (ECF Nos. 1 ¶ 49; 14-1 ¶ 51.)

surrounding her discharge raise a reasonable inference of unlawful discrimination. In addition,

the Court agrees with Defendant’s argument that while Plaintiff’s alleged conversations with

her supervisor may be suggestive of FMLA retaliation, they do not give rise to an inference of

discriminatory intent toward Plaintiff based on her disability. (See ECF No. 17 at 16.)

Plaintiff’s proposed amended complaint therefore fails to allege specific facts which

give rise to an inference that she was fired because of her disability. In addition, she fails to

address this issue in her briefing. (See ECF No. 15.) Thus, allowing Plaintiff’s motion to

amend this claim would be futile. Accordingly, Defendant’s motion to dismiss Plaintiff’s claim

of wrongful discharge based on her disability will be granted.

The Court therefore enters the following order:

[ORDER TO FOLLOW]

ORDER

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss, (ECF No. 9),

is GRANTED as to Plaintiff’s FMLA interference and ADA claims.

IT IS FURTHER ORDERED that Defendant’s motion is DENIED as to Plaintiff’s

FMLA retaliation claim.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Amend, (ECF No.

14), is GRANTED as to all of Plaintiff’s proposed amendments except that it is DENIED to

the extent that Plaintiff seeks to state FMLA interference and ADA claims, as these claims

have been dismissed.

IT IS FURTHER ORDERED that should Plaintiff choose to continue litigating this

action, she must file an amended complaint complying with this Opinion within ten days of

the issuance of this Order.

This, the 24th day of June 2020.

/s/Loretta C. Biggs

United States District Judge