Opinion
Case No. 03-1446-JTM
March 19, 2004
MEMORANDUM AND ORDER
This matter is before the court on the defendant Sedgwick County, Kansas Sheriff Gary Steed's Motion to Dismiss. Steed argues that the present matter, a claim for retaliatory discharge under the Family Medical Leave Act (hereinafter FMLA), should be dismissed for failure to state a claim pursuant to Fed.R.Civ.Pr. 12(b)(6). Plaintiff Stacey Prier, a former sheriff's deputy, brought the claim, alleging that she was terminated after exercising FMLA leave rights in January of 2003. After reviewing the pleadings, the court finds that dismissal is inappropriate at the present time, and the defendant's motion will be denied.
In July of 2002, Prier was charged in the Wichita Municipal Court with domestic battery. She pled no contest to the lesser charge of disorderly conduct on January 2, 2003. While the charge was pending, Prier worked in civilian clothes and did not carry a sidearm. After her plea, she was re-certified with her sidearm and returned to duty. During January of 2003, Prier missed a number of days of work due to a chronic headache, the death of her grandfather, an injury to her husband, and a young child's hospitalization.
On or about January 31, 2003, Captain James McKeel informed Prier that she was being terminated because of her absences and inability to fulfill her job duties due to her conviction in municipal court. Prier alleges she was terminated because she took FMLA leave during January 2003.
Prier was terminated on or about February 14, 2003. She exhausted her administrative remedies.
Dismissal is appropriate only if Prier could prove no set of facts in support of her claims. Maez v. Mountain States Tel And Tel, 54 F.3d 1488, 1496 (10th Cir. 1995). Sheriff Steed argues that the case should be dismissed first because Prier has failed to provide proof of a causal connection between protected activity, here engaging in FML A-protected rights, and her termination. The court finds no merit in this argument. First, Prier's termination happened only a few weeks after the FMLA activity. Second, Captain McKeel himself explicitly stated that one of the rationales for the termination was Prier's "absences." More importantly, the matter is before the court only on a motion to dismiss, not a motion for summary judgment. Reading all of the pleadings in the light most favorable to the plaintiff, the court simply cannot state at the present time that the plaintiff will not, after further discovery, be able to supply evidence demonstrating a causal connection.
Steed also argues that Prier has failed to provide evidence demonstrating that the concern over the misdemeanor disorderly conduct conviction was in fact pretext for illegalretaliation. Again, the defendant's argument is more appropriately advanced at the summary judgment stage, after both parties have had the opportunity to conduct discovery. Defendant points to a number of decisions emphasizing the importance of proof that the proffered rationale of the defendant is pretext. See Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1167 (10th Cir. 2000) (ADEA); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1263 (10th Cir. 1998); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994).
In each of the cited cases, however, the matter was on appeal from the district court's resolution of the issue at summary judgment. None of the cases involved a motion to dismiss, and defendant never presents any authority to support the proposition that a plaintiff is required to supply proof of pretext at this early stage in the litigation. Rebutting a defendant's proffered rationale for an employment action is not an element of the plaintiff's prima facie case, and plaintiff is under no obligation to supply such evidence in response to defendant's motion. See Kimura v. Janapese Educ'l Ilnst. Of New York, No. 96-CV-6063, 1997 WL 1048909, at *3 (E.D.N.Y. 1997, Nov. 4, 1997) ("a plaintiff's failure to show pretext or intentional discrimination is inconsequential to a 12(b)(6) motion"). Thus, in McNulty v. New York City Dep't of Fin., 941 F. Supp. 452, 456 (S.D.N.Y.1996), the court responded to defendants' argument, advanced in a Rule 12(b)(6) motion, that plaintiff had failed to prove pretext by stating that the contention "is of no consequence to this motion." The court observed —
this flows ineluctably from the difference between a motion to dismiss and a motion for summary judgment; as we are not to consider whether the defendants' contentions prevail over those of the plaintiff, we cannot evaluate their reasons for firing and then not rehiring McNulty. Nor must we weigh the strength of the allegation of pretext made by McNulty.Id. See also Hopkins v. Women's Div'n, General Bd. of Global Ministries, 238 F. Supp. 174, 182 (D.D.C. 2002); Magee v. Nassau County Med. Ctr., 27 F. Supp.2d 154, 162 (E.D.N.Y. 1998); lacampo v. Hasbro, Inc., 929 F. Supp. 562, 576 (D.R.I. 1996) (although none of defendant's actions "suggest discriminatory motive or pretext," plaintiff's retaliation claim "stands by the procedural graces of Rule 12(b)(6)"). The issue may be renewed at summary judgment after discovery has been conducted.
IT IS ACCORDINGLY ORDERED this 19th day of March, 2004, that the defendant's Motion to Dismiss (Dkt. No. 3) is hereby denied.