Opinion

SCHANES

Court: District Court, M.D. North Carolina
Filed: Aug 27, 2026
Cited by: 0 cases

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHRISTAL SCHANES, )

)

Plaintiff, )

)

) Case No. 1:26CV28

UNIVERSITY OF )

NORTH CAROLINA )

SCHOOL OF THE ARTS, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on Defendant University of North Carolina

School of the Arts’s (““UNCSA” or “Defendant’”) Motion to Dismiss [Doc. #11] the Amended

Complaint [Doc. #10] filed by Plaintiff Christal Schanes (‘Plaintiff’), alleging UNCSA

violated her rights under the Family Medical Leave Act (“FMLA”). Plaintiff brings

interference and retaliation claims under the FMLA, as well as state law claims under North

Carolina law for wrongful discharge in violation of public policy, breach of contract, and

negligent infliction of emotional distress. UNCSA bases its Motion to Dismiss on Federal

Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction), 12(b)(2) (ack of personal

jucisdiction), 12(b)(4) Gnsufficient process), 12(b)(5) (insufficient service of process), and

12(b)(6) (failure to state a claim upon which relief may be granted).

For the reasons set out below, the Court recommends that UNCSA’s Motion to

Dismiss the Amended Complaint be granted as to Plaintiff's FMLA clatms for failure to state

a claim upon which relief may be granted. Consequently, the Court also recommends that this

case be remanded back to state court for further consideration of Plaintiffs state law claims.

I. PACTS, CLAIMS, AND PROCEDURAL HISTORY

In 2013, UNCSA employed Plaintiff as a “Part-Time Visting Faculty” member in

UNCSA’s School of Design and Production. (Amend. Compl. § 23.) Plaintiff and UNCSA

then entered into a five-year employment agreement in August 2014, which lasted until “Day

of Commencement, 2019.” (Amend. Compl. 24; Amend. Compl. Ex. 1, 2014 Empl. Agree.

[Doc. #10 at 13—-14].) Following the expiration of the initial five-year employment agreement,

Plaintiff and UNCSA agteed on a ten-year employment arrangement in April 2019. (Amend.

Compl. 25; Amend. Compl. Ex. 2, 2019 Empl. Agree. [Doc. #10 at 16-17].) That agreement

was slated to last until the “day of Commencement 2029.” (1d.)

In August 2023, however, Plaintiff began experiencing health problems. (Amend.

Compl. $f] 32-36.) Plaintiff contends her health problems began after UNCSA provided her

“an office that functioned as a chemical storage room, which contained” various chemical

agents that were, according to Plaintiff, “stored improperly on open shelving in violation of

OSHA requitements.”! (Amend. Compl. {[f] 30, 31.) Plaintiff clatms that she requested that

the chemicals be removed from her workspace before the onset of health issues, but UNCSA

took no action. (Amend. Compl. ¥ 40.) Plaintiff was “written out of work” beginning in

| Plaintiff also alleges an incident where she “injured her right wrist attempting to move books out of het office

when they fell” (Amend. Compl. § 41.) Plaintiff attributes her “prolonged exposure” to the chemical agents

in her office as having contributed to her wrist injury. (Amend. Compl. § 36.)

August 2023, after meeting with several physicians concerning her health. (Amend. Compl.

[| 42-43.)

Thereafter, Plaintiff requested—and UNCSA approved—12 weeks of FMLA leave.

(Amend. Compl. 44.) While on leave, Plaintiff requested several accommodations to

facilitate her return to work. (Amend. Compl. { 45.) Specifically, Plaintiff requested:

“relocation to a safe, chemical free-workspace; [t]emporary limitation of lifting and gripping

tasks due to the work injury; and{] [t]lemporary adjustments to course load and administrative

demands consistent with medical restrictions.” (Amend. Compl. ¥ 46(a)-(c).) UNCSA did

not approve Plaintiffs requests. (Amend. Compl. §] 47.) Plaintiff also requested a leave

extension, noting “the need for costly diagnostic testing and potential surgery as recommended

by her treating physicians.” (Amend. Compl. 60.) That request was also denied. (Amend.

Compl. J 60.) Without her requested accommodations, “Plaintiff understood she would not

be able to return to work following the conclusion of her FMLA leave.” (Amend. Compl.

Plaintiff attributes UNCSA’s failure to accommodate her requests as leaving her “with

no viable option but to separate from her employment.” (Amend. Compl. {[ 49.)

After her resignation, Plaintiff filed a complaint in Forsyth County Superior Court

against UNCSA, alleging: (1) violations under the FMLA; (2) wrongful discharge in violation

of public policy; and (3) breach of contract. (Compl. [Doc. #4] at 3~6.) Defendant then

removed the action to this Court. (Notice of Removal [Doc. #1].) Shortly thereafter, UNCSA

filed a Motion to Dismiss [Doc. #6]. Plaintiff then filed an Amended Complaint,

supplementing her previous factual allegations and adding a negligent infliction of emotional

distress claim under North Carolina law. (Amend. Compl. §{f] 85-93.) In light of the Amended

Complaint, the Court entered a Text Order terminating UNCSA’s original Motion to Dismiss

as moot in light of the filing of the Amended Complaint, and allowing time for UNCSA to

respond to the Amended Complaint. (Text Order Feb. 17, 2026.) Shortly thereafter, UNCSA

filed the present renewed Motion to Dismiss as to PlaintifPs Amended Complaint. Plaintiff

responded in opposition to UNCSA’s Motion to Dismiss, and UNCSA replied.

II. DISCUSSION

A. Improper Process & Setvice of Process

UNCSA moves to dismiss the Amended Complaint first for lack of personal

jurisdiction based on deficient process and insufficient service of process under Rule 12(b)(4)

and (b)(5). In support of the Motion to Dismiss, UNCSA contends that Plaintiff failed to

properly serve UNCSA’s designated process agent, prior to removal. In response, Plaintiff

maintains that service was propertly effected after removal under 28 U.S.C. § 1448 and Federal

Rule of Civil Procedure 4(m). Plaintiff also notes that UNCSA had notice of the Complaint,

and that even accepting UNCSA’s contentions, dismissal of the Amended Complaint is not

warranted because UNCSA has not shown that Plaintiffs procedural deficiencies prejudiced

UNCSA. (PL.’s Resp. [Doc. #13] at 6-9.)

Under Rules 12(b)(4) and 12(b)(5), a defendant may seek dismissal for insufficient

process and insufficient service of process, respectively. Fed. R. Civ. P. 12(b)(), (5).

A motion to dismiss under Rule 12(b)(4) challenges the sufficiency or ‘form’ of

the process itself, and a motion to dismiss under Rule 12(b)(5) challenges the

sufficiency of the act of ‘service’ of process. Stated differently, a Rule 12(b)(4)

motion to dismiss objects to a defect in the content of the documents served,

while a Rule 12(b)(5) motion to dismiss objects to a defect in the act (or lack)

of delivery. For example, a typical Rule 12(b)(4) challenge alleges that the entity

named in the summons is different from the entity named in the complaint. A

typical rule 12(b)(5) challenge alleges that the process was delivered by a person

incapable of serving process (e.g., a patty), to a person or entity incapable of

receiving service (e.g., a minor), or that the service was delivered in an improper

way (e.g., via first-class mail).

Graham v. Anderson, No. 5:23-CV-30, 2023 WL 3910250, at *3 (E.D.N.C. June 8, 2023)

(internal citations omitted). When a defendant moves to dismiss under Rule 12(b)(4) or

12(b)(5), the plaintiff bears the burden of establishing that process was sufficient and that

setvice of process was valid. Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003).

Relatedly, under Rule 12(b)(2), a defendant may seek dismissal of a complaint because

the court lacks personal jurisdiction over the defendant. Fed. R. Civ. P. 12(b)(2). “Absent

waiver or consent, a failure to obtain proper service on the defendant deprives the court of

personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir.

1998); Chrisp v. Univ. of N.C.-Chapel Hill, 471 F. Supp. 3d 713, 716 (M.D.N.C. 2010).

In support of the Motion to Dismiss, Defendant engages in an extended discussion of

whether service was proper in state court prior to removal. However, “[wlhen a case is

removed to federal court, a plaintiff may be afforded additional time to complete service or to

obtain issuance of new process if, prior to the case’s removal, ‘service of process has not been

perfected prior to removal,’ or ‘process served proves to be defective.”’ Rice v. Alpha Sec.,

Inc., 556 F. App’x 257, 260 (4th Cir. 2014) (per curiam) (quoting 28 U.S.C. § 1448).

Specifically, 28 U.S.C. § 1448 provides that:

[iJn all cases removed from any State court to any district court of the United

States in which any one or more of the defendants has not been served with

process or in which the service has not been perfected prior to removal, or in

which process served proves to be defective, such process or service may be

completed ot new process issued in the same manner as in cases originally filed

in such district coutt.

Thus, 28 U.S.C. § 1448 affords a plaintiff the opportunity to cure insufficient state service of

ptocess post-removal under the Federal Rules.

This reading of § 1448 comports with the strong policy underlying the Federal Rules

of reaching the merits of an issue rather than dismissing a case on pre-temoval, procedural

technicalities that could have been addressed in state court. See Foman v. Davis, 371 U.S.

178, 181-82 (1962); see also Baumeister v. N.M. Comm’n for the Blind, 409 F. Supp. 2d 1351,

1354 (D.N.M. 2006) (“If [Defendant] had a valid argument for dismissal based on insufficient

state setvice, [it] could have moved the state court for relief. Instead, [Defendant] chose to

exercise [its] right to remove the case to the federal system; with that, [Defendant] must accept

both the advantages and disadvantages that removal brings.”). It follows that once UNCSA

removed this case, Plaintiff had “a chance to overcome her invalid service of process under

North Carolina law by properly serving [it] under the federal rules.” Richards v. PHH Mortg.

Corp., No. 1:19CV759, 2020 WL 1234634, at *5 (M.D.N.C. Mar. 13, 2020) (quoting Jones v.

SSC Durham Operating Co., No. 1:17CV686, 2019 WL 290036, at *3 (M.D.N.C. Jan. 22,

2019)); see also Brazell v. Green, No. 94-7214, 1995 WL 572890, at *1 (4th Cir. Sep. 29, 1995)

(holding that “instead of dismissing his action, the district court should have allowed [the

plaintiff] an opportunity to re-serve the defendants in accordance with the Federal Rules of

Civil Procedure” after the plaintiff failed to properly serve the defendants under state law

(citing 28 U.S.C. § 1448 and Freight ‘Terminals, Inc. v. Ryder Sys., Inc., 461 F.2d 1046, 1052

(5th Cir. 1972))).

Under the Federal Rules of Civil Procedure, Plaintiff had 90 days from the date of

removal to propertly serve UNCSA with process. Fed. R. Civ. P. 4(m); see also Randolph v.

Hendry, 50 F. Supp. 2d 572, 579-80 (S.D.W. Va. 1999). Moreover, “under Rule 4(m), a district

coutt possesses discretion to grant the plaintiff an extension of time to serve a defendant with

the complaint and summons even absent a showing of good cause by the plaintiff for failing

to serve the defendant during the 90-day period provided by the Rule. And if the plaintiff is

able to show good cause for the failure, then the court ust grant the extension.” Gelin v.

Shuman, 35 F.4th 212, 220 (4th Cir. 2022) (emphasis in original).

UNCSA removed this case on January 12, 2026, which provided Plaintiff with an

opportunity to properly serve UNCSA under Rule 4 of the Federal Rules of Civil Procedute,

irrespective of Plaintiffs procedural deficiencies before removal. Plaintiffs federal summons

was issued to UNCSA’s designated process agent, the Vice Chancellor of Institutional Integrity

& General Counsel, on Januaty 27, 2026, and Plaintiffs process server timely effected service

that same day. (Summons [Doc. #8] at 1; Aff. of Serv. [Doc. #9] at 1-2.) Therefore, Plaintiffs

setvice of ptocess upon UNCSA was timely and proper under 28 U.S.C. § 1448 and the Federal

Rules of Civil Procedure.? Thus, UNCSA’s Motion to Dismiss for lack of personal jurisdiction

based on deficient process and insufficient service of process under Rule 12(b)(2), (b)(4), and

(b)(5) should be denied.

B. Failure to State a Claim Under the FMLA

UNCSA next contends that the FMLA claims should be dismissed under Federal Rule

of Civil Procedural 12(b) (6) for failure to state a claim upon which relief may be granted. “To

2 Moreover, to the extent necessaty, the Court in its disctetion would set a time for service under Rule 4(m),

rendering the service timely. Finally, the Court notes that UNCSA does not contend that it was prejudiced by

Plaintiff's procedural deficiencies prior to removal, and UNCSA has since been properly served under Rule

4(m). ‘Therefore, the Amended Complaint should be analyzed on the substance of the claims alleged, not

dismissed entirely on a (now cuted) pre-removal, procedural deficiency.

survive a 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard

does not requite “detailed factual allegations,” but it demands more than “an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id. A claim is facially plausible when the

plaintiff provides enough factual content to enable the court to reasonably infer that the

defendant is liable for the misconduct alleged. Id. ““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. In this way, Rule 12(b)(6) protects against meritless litigation by

requiting sufficient factual allegations “to raise a right to relief above the speculative level” so

as to “nudge[ ] the[] claims across the line from conceivable to plausible.” Twombly, 500 □□□□

at 555, 570; see Iqbal, 556 U.S. at 680. The Court must accept as true all factual allegations

contained in a complaint, but is not bound to accept legal conclusions. Iqbal, 556 U.S. at 678.

Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity

and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

“The FMLA creates two interrelated, substantive employee rights: first, the employee

has a tight to use a certain amount of leave for protected reasons, and second, the employee

has a tight to return to. . . [het] job after using protected leave.” Mussat-Whitlow v. Winston-

Salem State Univ., No. 1:25-cv-00263, 2026 WL 674180, at *5 (M.D.N.C. Mar. 10, 2026)

(alteration in original) (quoting Bachelder vy. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 Oth

Cir. 2001)); see 29 U.S.C. §§ 2612(a), 2614(a). To enforce these rights, “the FMLA creates

two types of claims: interference claims, in which an employee asserts that his employer denied

or otherwise interfered with his substantive rights under the Act, and retaliation claims, in

which an employee asserts that his employer discriminated against him because he engaged in

activity protected by the Act.” Id. (quoting Strickland v. Water Works & Sewer Bd., 239 F.3d

1199, 1206 (11th Cir. 2001)).

1. EMLA Interference Claim

First, Plaintiff brings an FMLA interference claim against UNCSA. Plaintiff alleges in

her Amended Complaint that UNCSA “interfered with Plaintiffs benefits and protections

ptovided under the FMLA by subjecting her to discrimination” under the FMLA. (Amend.

Compl. §[ 61.) Specifically, it is alleged that UNCSA interfered with Plaintiffs FMLA rights

by: (1) “[rlefusing to return her to the same or equivalent position;” (2) “[r]efusing to provide

reasonable transitional measures necessaty to return;’ (3) [clonditioning her return on

exposure to unsafe conditions that caused her medical condition which precipitated her need

for FMLA;” and (4) “[florcing her constructive discharge.” (Amend. Compl. {[{] 64(a)—(d).)

The FMLA affords employees “a total of 12 workweeks of leave during any 12-month

period” for “a serious health condition that makes the employee unable to perform the

functions of the position.” 29 U.S.C. § 2612(a)(1)(D). It is “unlawful for any employer to

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

PMLA. 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.” Hines v. Blue Cross & Blue Shield of N.C., No. 1:19-cv-754, 2020

WL 3452155, at *3 (M.D.N.C. June 24, 2020) (internal quotations omitted) (quoting Gordon

v. U.S. Capitol Police, 778 F.3d 158, 165 (D.C. Cir. 2015)). To bring a successful interference

claim under the FMLA, an employee must “demonstrate that (1) he is entitled to an FMLA

benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference

caused harm.” Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 427 (4th Cir. 2015).?

On a motion to dismiss, however, “a plaintiff need only allege facts that permit the court to

plausibly infer that her employer interfered with her FMLA rights.” Hines, 2020 WL 3452155,

at *3 (citing Snipes v. Sw. Va. Reg’l Jail Auth., 350 F. Supp. 3d 489, 494 (W.D. Va. 2018)).

Here, the Amended Complaint fails to plausibly state an interference claim under the

FMLA. Thete is no dispute Plaintiff was entitled to—and recetved—an FMLA benefit when

she took leave from work following her health concerns. However, Plaintiff has not plausibly

alleged that UNCSA interfered with Plaintiff's ability to take FMLA leave, or that UNCSA

engaged in conduct that amounts to interference under the FMLA. The extent of Plaintiff's

interference allegations stem from UNCSA’s alleged failure to accommodate Plaintiffs

requests for a new workspace and limited physical duties upon her return from FMLA leave.

Notably, however, “the FMLA does not require an employer to accommodate an employee’s

medical restrictions upon a return to work[.]” Ensor v. Jenkins, No. CV ELH-20-1266, 2022

WL 703920, at *22 (D. Md. Mar. 8, 2022) (citation omitted). Moreover, “FMLA leave does

not provide an employee any greater rights than he or she would have had without taking

3 See also Hansley v. DeJoy, No. 23-1426, 2024 WL 4947275, at *2 (4th Cir. Dec. 3, 2024) (noting that pursuant

to the Supreme Coutt’s decision in Muldrow v. City of St. Louis, Missouri, 601 U.S. 346 (2024), the extent of

harm required differs between underlying claims and retaliation claims; a “retaliatory action is ‘materially

adverse,’ meaning that it causes ‘significant’ harm,” Muldrow, 601 U.S. at 357, which requires a heightened

showing of harm, compated to an act affecting the terms or conditions of employment for an underlying Title

VII disparate treatment claim, since “Muldrow refused to ‘import’ retaliation’s ‘significant-harm requirement’

into disparate-treatment cases.”’).

leave.” Mercer v. Arc of Prince Georges Cnty., Inc., 532 F. App’x 392, 396 (4th Cir. 2013);

accotd 29 U.S.C. § 2614(a)3)(B) (“[N]othing in this section shall be construed to entitle any

restored employee to... any tight, benefit, or position of employment other than any right,

benefit, or position to which the employee would have been entitled had the employee not

taken the leave.”).

There ate no facts alleged in the Amended Complaint to suggest that UNCSA

interfered with a protection afforded to Plaintiff under the FMLA, outside of Plaintiffs belief

that she felt unable to return to work because UNCSA would not accommodate her requests

before she returned from FMLA leave. Plaintiff contends that her FMLA protections were

interfered with by and through UNCSA’s unwillingness to provide Plaintiff with a safe

workspace upon her return to work, which is alleged to be soutce of Plaintiffs need for FMLA

leave to begin with. (Pl.’s Resp. at 9; Amend. Compl. J 64(c).) However, as explained above,

the FMLA does not entitle an employee to workplace accommodations following the use of

FMLA leave, even if workplace conditions ate said to be the reason the employee took FMLA

leave to begin with. See Ensor, 2022 WL 703920, at *22 (citing Hibben v. Potteiger, No. 16-

CV-111-JFJ, 2019 WL 189837, at *8 (N.D. Okla. Jan. 14, 2019)); see also Boone v. Bd. of

Governors of Univ. of N.C., 858 F. App’x 622, 624 (4th Cir. 2021) (per curiam) (“If the

employee is unable to perform an essential function of the position because of a physical or

mental condition,’ however, ‘the employee has no tight to restoration to another position

under the FMLA.” (quoting 29 C.F.R. § 825.216(c))).

Although Plaintiff asserts that UNCSA “[r]efused to return her to the same ot

equivalent position” upon her return from FMLA leave, there ate no facts alleged to support

that assertion. Instead, on the face of the Amended Complaint, the facts alleged clearly reflect

that Plaintiff was given the option to be “restored to the position of employment held [by her]

when the leave commenced,” 29 U.S.C. § 2614(a)(1)(A), but she did not want to be restored

to that position and instead sought accommodations. This is clear from the briefing as well,

in that Plaintiff contends that Defendant refused to change her workspace, refused to

accommodate lifting limitations, and refused to provide course and duty modifications, and

that as a result she “could not safely return to work due to the same hazardous environment

that had caused her medical conditions.” (Pl. Br. [Doc. #13] at 3-4, 9, 10, 12). As noted in

Plaintiffs brief, Plaintiffs “core allegation” is that “Defendant refused to implement the

reasonable measures that would have allowed Plaintiff to return to the same job safely and

without exposure to the very chemicals that triggered her FMLA leave,” and Plaintiff contends

that she could have returned to work but only with “basic safety measutes and course

management logistics that were clearly requested by Plaintiff.” (Pl. Br. at 10.)

Notably, however, as discussed above, the FMLA explicitly provides that:

Nothing in this section shall be construed to entitle any restored employee to—

B) any right, benefit or position of employment other than any right, benefit,

ot position to which the employee would have been entitled had the employee

not taken the leave.

29 U.S.C. 2614(a)(3)(B); see also 29 C.F.R. § 825.216(c). Thus, the FMLA does not provide a

basis for a claim for any benefit or accommodation, other than return to the position the

employee left, which in this case would involve returning Plaintiff to her position, workspace,

and duties that she had prior to taking leave. Any obligation to change the location or

conditions of Plaintiffs workspace or duties would not arise from the FMLA, and Plaintiff

has not alleged any other federal statutory claim.*

Without more, Plaintiffs factual allegations regarding UNCSA’s conduct do not give

tise to a cognizable interference claim under the FMLA. Cf. Alexander v. Carolina Fire

Control Inc., No. 1:14CV74, 2014 WL 3729546, at *3 (M.D.N.C. July 25, 2014) Beaty, J.)

(explaining that interference with FMLA rights “include[s] refusing to authorize PMLA leave,

discouraging an employee from using such leave, avoiding responsibilities under FMLA, and

using the taking of FMLA leave as a negative factor in employment actions, such as hiring,

promotions or disciplinary actions.” (internal quotations and alterations omitted)); see also 29

C.F.R. § 825.220(b), (c) (further providing examples of FMLA interference).

Thus, the Amended Complaint does not plausibly allege that UNCSA interfered with

a tight afforded to Plaintiff under the FMLA.> Therefore, Plaintiffs interference claim under

the FMLA should be dismissed for failure to state a claim upon which relief may be granted.

* To the extent the Amended Complaint could be construed to allege a failure to accommodate claim under

the Americans with Disabilities Act (“ADA”), see 42 U.S.C. § 12112(b)(5)(A), Plaintiff makes clear that she “is

not alleging an ADA accommodation claim.” (Pl.’s Resp. at 10.)

Plaintiff also makes passing reference to OSHA but has not asserted any claim under OSHA or attempted to

specify any alleged OSHA violation.

5 To the extent Plaintiff contends UNCSA engaged in unlawful interference under the FMLA by denying her

request for leave beyond the statutorily prescribed twelve-week period (Amend. Compl. J 60), that contention

quickly fails. See, e.g., Drumheller v. Cent, Va. Elec. Co-op, No. 3:06-CV-00010, 2006 WL 2403334, at *7

(W.D. Va. Aug. 18, 2006) (collecting cases to support the proposition that “once the twelve week period has

expired, the time to claim entitlement to benefits under the FMLA cannot be enlarged or recaptured because

no violation of the Act has occurred within the statutory benefit period.”’); Marsh v. GGB, LLC, 455 F. Supp.

3d 113, 122 (D.N.J. 2020) (“[A]n employer’s decision not to grant extended, unprotected leave, is not an

interference with FMLA rights; said differently, [an employer] cannot be found to interfere with [an employee’s|

attempts to use time he did not have.”). Indeed, that statute is clear, entitling an employee to only “a total of

12 workweeks of leave during any 12-month period.” 29 U.S.C. § 2612(a)(1). The facts alleged in the Complaint

reflect that Plaintiff was given the full 12 weeks of leave, from August 17, 2023 to November 14, 2023. (Amend.

Compl. J] 43-44.)

2. FMLA Retaliation Claim

Next, Plaintiff alleges retaliation under the FMLA. In her Amended Complaint,

Plaintiff claims UNCSA “subjected Plaintiff to retaliation as a result of engaging in protected

activity, including exercising rights and benefits under the FMLA and complaining about

retaliation against her for engaging in federally protected activity.” (Amend. Compl. J 63.)

Under the FMLA, an employer cannot “discharge or in any other manner discriminate

against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C.

§ 2615(a)(2). The Fourth Circuit has found that this section protects not just employees who

“oppose” unlawful practices, but also protects “employees from discrimination or retaliation

for exercising their substantive rights under the FMLA.” Yashenko v. Hatrah’s NC Casino

Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006). The applicable regulations further provide that

the FMLA

prohibits an employer from discriminating or retaliating against an employee or

ptospective employee for having exercised or attempted to exercise FMLA

rights. For example, if an employee on leave without pay would otherwise be

entitled to full benefits (other than health benefits), the same benefits would be

requited to be provided to an employee on unpaid FMLA leave. By the same

token, employers cannot use the taking of FMLA leave as a negative factor in

employment actions, such as hiring, promotions or disciplinary actions; nor can

FMLA leave be counted under no fault attendance policies.

29 C.F.R. § 825.220(c); see also Pry v. Rand Constr. Corp., 964 F.3d 239, 245 (4th Cir. 2020).

The Fourth Circuit has explained that “FMLA claims arising under the retaliation theory are

analogous to those derived under ‘Title VII and so ate analyzed under the burden-shifting

framework of McDonnell Douglas Corp. v. Green,” such that a plaintiff must show that “‘he

engaged in protected activity, that the employer took adverse action against him, and that the

adverse action was causally connected to the plaintiffs protected activity.””, Yashenko, 446

F.3d at 50-51, 54 (quoting Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998));