Davis v. Yellowpages.Com Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.March 27, 2017

LEGAL02/37066587v1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF COMES NOW Defendants Yellowpages.com LLC and YP Holdings, LLC (collectively “YP”) and, pursuant to Federal Rule of Civil Procedure 12(b)(6) and other applicable law, submit this Partial Motion to Dismiss Plaintiff’s Amended Complaint for Damages and Equitable Relief. As demonstrated more fully in the accompanying Memorandum of Law, Counts III, IV, and V of Plaintiff’s Amended Complaint should be dismissed due to Plaintiff’s failure to state a claim upon which relief may granted. Moreover, the portions of Counts II, IV, VII, VIII, and X that are based on Plaintiff’s unsupported assertion that she was denied a reasonable accommodation under the Americans With Disabilities Act should also be dismissed for failure to state a claim upon which relief may be granted. Case 1:17-cv-00397-ELR-JKL Document 16 Filed 03/27/17 Page 1 of 4 2 LEGAL02/37066587v1 This Motion and the relief requested by YP are supported by the pleadings of record and the Memorandum of Law filed herewith. Respectfully submitted this 27th day of March, 2017. ALSTON & BIRD LLP /s/ Ashley Brightwell Ashley D. Brightwell Georgia Bar No. 207459 Anna Saraie Georgia Bar No. 198096 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7000 (telephone) (404) 881-7777 (facsimile) Counsel for Defendants Case 1:17-cv-00397-ELR-JKL Document 16 Filed 03/27/17 Page 2 of 4 3 LEGAL02/37066587v1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) CERTIFICATE OF SERVICE I hereby certify that the foregoing DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following attorneys of record for Plaintiff: Buckley Beal, LLP Brian J. Sutherland Georgia Bar No. 105408 Thomas J. Mew IV Georgia Bar No. 503447 Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Case 1:17-cv-00397-ELR-JKL Document 16 Filed 03/27/17 Page 3 of 4 4 LEGAL02/37066587v1 This 27th day of March, 2017. /s/ Anna Saraie Anna Saraie Case 1:17-cv-00397-ELR-JKL Document 16 Filed 03/27/17 Page 4 of 4 LEGAL02/37055058v1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF Defendants Yellowpages.com LLC and YP Holdings, LLC (collectively “YP”) submit this Memorandum of Law in Support of their Partial Motion to Dismiss Plaintiff’s Amended Complaint for Damages and Equitable Relief pursuant to Federal Rule of Civil Procedure 12(b)(6).1 1 Because Federal Rule of Civil Procedure 12(a)(4) provides that service of a Rule 12 motion to dismiss extends the answer deadline until 14 days after the defendant receives notice of the Court’s action on the motion, YP has not answered the remaining claims set forth in Plaintiff’s Complaint. See Fed. R. Civ. P. 12(a)(4)(A); ThermoLife Int’l, LLC v. Gaspari Nutrition Inc., No. CV 11-01056-PHX-NVW, 2011 U.S. Dist. LEXIS 145504, at *16-*17 (D. Ariz. Dec. 16, 2011) (holding that a partial motion to dismiss tolls the time to respond to all claims under 12(a)(4)); Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 366 (E.D.N.Y. 2009) (filing a partial motion to dismiss suspends the time to answer claims or counterclaims not subject to the motion under Fed. R. Civ. P. 12(a)(4)); Beaulieu v. Bd. of Trs. of Univ. of W. Fla., No. 3:07cv30/RV/EMT, 2007 U.S. Dist. LEXIS 98749, at *2-*3 n. 1 (N.D. Fla. Aug. 24, 2007) Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 1 of 24 2 LEGAL02/37055058v1 I. INTRODUCTION Plaintiff Robin Lee “Leah” Davis (“Plaintiff”) is a former employee of YP who filed a ten-count Complaint for Damages and Equitable Relief (the “Original Complaint”) under the Americans With Disabilities Act (“ADA”), the Family and Medical Leave Act, (“FMLA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Equal Pay Act (“EPA”). On February 24, 2017, YP filed a Partial Motion to Dismiss the Original Complaint. Specifically, although Plaintiff summarily contended that she was denied a “reasonable accommodation” under the ADA, the Original Complaint was devoid of even a single fact that would suggest that such had occurred. On the contrary, the face of the Original Complaint actually reflected an accommodation that was requested by Plaintiff and granted by YP. YP also moved to dismiss Plaintiff’s FMLA interference and retaliation claims pursuant to Rule 12(b)(6) because they, too, failed to state claims upon which relief may be granted. Indeed, the only relevant facts pled in the Original (explaining that the Court had ruled that the defendant’s partial motion to dismiss automatically extended its time to answer under Fed. R. Civ. P. 12(a)(4)); Pushko v. Klebener, 3:05-cv-211-J- 25HTS, 2005 U.S. Dist. LEXIS 49132, at *6 (M.D.Fla. June 10, 20015) (holding that “the filing of a motion to dismiss a portion of a complaint postpones equally the time for answering every part of the pleading”). However, if the Court would like YP to file an Answer before the Court rules on its Partial Motion to Dismiss, YP respectfully requests that it be granted an additional 14 days to file its Answer. Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 2 of 24 3 LEGAL02/37055058v1 Complaint were that Plaintiff (1) requested leave, (2) was granted permission to take leave, (3) was told by her supervisor that taking leave “would be no problem,” and (4) was given a positive performance review after the leave was taken. YP’s Partial Motion to Dismiss was denied as moot when Plaintiff was granted leave to amend the Original Complaint. That First Amended Complaint for Damages and Equitable Relief (“Amended Complaint”) was filed on March 13, 2017 and is identical to the Original Complaint with the exception of two new factual allegations. First, despite the fact that the Original Complaint reflects only a request for an accommodation that was granted, Plaintiff now contends that, in fact, her request for a reasonable accommodation under the ADA was denied. Second, with respect to her two FMLA claims, Plaintiff added an allegation that she continued to use intermittent FMLA leave as needed before her termination, including three days before such termination occurred. For the reasons set forth, below, these new factual allegations are insufficient to permit Plaintiff to avoid dismissal of her ADA reasonable accommodation and FMLA interference and retaliation claims. As such, YP submits that Counts III, IV, and V - as well as the portions of Counts II, IV, VII, VIII, and X that are based on the same summary allegation that she was denied an accommodation under the ADA - should be dismissed for failure to state a claim upon which relief may be granted. Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 3 of 24 4 LEGAL02/37055058v1 II. SUMMARY OF PLAINTIFF’S ALLEGATIONS A. Plaintiff’s Allegations Regarding Her Request for a “Reasonable Accommodation” Under the ADA. 1. Original Complaint In the Original Complaint, Plaintiff claimed that, in 2013, her daughter was diagnosed with a serious health condition and that, as a result, she “requested that she be allowed to work from home on [an] ‘as needed’ basis in order to be able to provide care for her daughter….” (Original Complaint (“Compl.”) ¶¶ 28, 30) Then, following a change in her reporting structure, in April of 2015, Plaintiff claimed that she requested a reasonable accommodation for her own disability; namely, “that she be allowed to work from home during periodic flare-ups of her chronic fibromyalgia, chronic fatigue syndrome, and migraine headaches and Chronic Fatigue Syndrome.” Id. at ¶¶ 40, 45. According to the Original Complaint, Plaintiff’s supervisor, Kristin Crossman, refused to give her the form to request a reasonable accommodation but, instead, told Plaintiff “that she wanted to handle her request to work from home ‘informally.’” Id. at ¶ 46. Although she contended that a colleague’s request to work from home was denied because “someone” - the clear implication being Plaintiff - “was taking advantage of working from home,” Plaintiff never once Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 4 of 24 5 LEGAL02/37055058v1 alleged that she was not permitted to work from home as requested. Id. at ¶¶ 49- 50. 2. Amended Complaint With respect to the issue of working from home, the Amended Complaint is identical to the Original Complaint with one notable exception. Indeed, despite never alleging in the Original Complaint that her request to work from home was denied, Plaintiff now completely changes course and contends that, in fact, such request was denied. Specifically, at Paragraph 47 of the Amended Complaint, Plaintiff alleges that, approximately one week after telling Plaintiff that she wanted to handle her request to work from home “informally,” Ms. Crossman “denied” her “requested accommodation to work from home during periodic flare-ups of her condition and informed [her] that she would not be permitted to work from home.” (Amended Complaint (“Compl.”) ¶ 47). Curiously, the allegation regarding the denial of her colleague’s request to work from home because Plaintiff “was taking advantage of working from home,” remains. Id. at ¶¶ 50-51. B. Plaintiff’s Allegations Regarding Her Request for Leave Under the FMLA. 1. Original Complaint In the Original Complaint, Plaintiff contended that, as a result of “flare-ups” of her own serious health condition, she requested intermittent leave under the Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 5 of 24 6 LEGAL02/37055058v1 FMLA. (Original Compl. ¶ 33). Subsequently, in January of 2015, Plaintiff alleged that she began reporting to Ms. Crossman and that Ms. Crossman knew that she had taken and would in the future need to take leave under the FMLA as a result of her own serious health condition and the serious health condition of her daughter. Id. at ¶¶ 40-42. According to the Original Complaint, “Ms. Crossman told [her] not to worry about requesting leave and told her there would be no problem as long as she completed her work.” Id. at ¶ 43. Then, in March of 2015, Plaintiff claimed that she “received a favorable annual performance review from Crossman.” Id. at ¶ 44. 2. Amended Complaint Again, with one exception, the facts set forth in the Amended Complaint regarding Plaintiff’s FMLA leave are identical to those described in the Original Complaint. That one exception is set forth at Paragraph 52 of the Amended Complaint where Plaintiff states that she “was eligible for and continued to use intermittent FMLA leave as needed before her termination, with her last such usage on July 6, 2015, three days before her termination.” (Amended Compl. ¶ 52). Thus, according to the Amended Complaint, Ms. Crossman (1) told Plaintiff not to worry about requesting FMLA leave; (2) gave Plaintiff a favorable Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 6 of 24 7 LEGAL02/37055058v1 performance review following her request; and (3) allowed her to take intermittent FMLA leave whenever she needed to. Id. at ¶¶ 43-44, 52. III. STANDARD OF REVIEW Rule 8(a) of the Federal Rules of Civil Procedure requires that a Complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief….” Fed. R. Civ. P. 8(a). While the pleading standard under the Federal Rules of Civil Procedure is by no means onerous, in Bell Atlantic Corp. v. Twombly, the Supreme Court held that Rule 8(a) requires more than a conclusory recitation of the elements of a claim: “[A] plaintiff’s obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. 544, 555 (2007) (internal quotations and citations omitted). In articulating this pleading standard, the Court in Twombly disapproved of the pleading standard previously articulated in Conley v. Gibson, 355 U.S. 41 (1957). Twombly, 550 U.S. at 563 (holding that the standard articulated in Conley - namely, that complaints should not be dismissed unless there is “no set of facts” which plaintiff could prove to support her claim - is “best forgotten as an incomplete, negative gloss on an accepted pleading standard”). Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 7 of 24 8 LEGAL02/37055058v1 Two years later in Ashcroft v. Iqbal, the Supreme Court elaborated upon its holding in Twombly, explaining that Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and emphasizing that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 556 U.S. 662, 678 (2009). The Court explained that, “[t]o 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.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads sufficient 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 (citing Twombly, 550 U.S. at 556). This “plausibility standard” requires “more than a sheer possibility that a defendant has acted unlawfully,” and a complaint falls short of the plausibility standard where the plaintiff “pleads facts that are ‘merely consistent with’ a defendant’s liability.” Id. Thus, under this pleading standard, even when viewing the facts in the light most favorable to the plaintiff, “naked assertions devoid of further factual enhancement” contribute nothing to the sufficiency of the complaint. Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). And, finally, while Rule 8 does not constitute a “hyper-technical, code-pleading regime,” it also “does Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 8 of 24 9 LEGAL02/37055058v1 not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. IV. ARGUMENT AND CITATION OF AUTHORITY A. Count III of the Amended Complaint Should Be Dismissed Because Plaintiff Fails to State a Plausible Claim for Failure to Accommodate Under the ADA. An employer unlawfully discriminates against a qualified individual with a disability when it fails to provide “reasonable accommodations” for the disability, unless doing so would impose an undue hardship. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001) (citing 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a)). “An accommodation can qualify as ‘reasonable,’ and thus be required by the ADA, only if it enables the employee to perform the essential functions of the job.”2 Lucas, 257 F.3d at 1249 (citing LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998)). “To determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an 2 Although YP is not seeking dismissal due to the unreasonableness of the requested accommodation at this time, it is clear that this Court does not consider Plaintiff’s requested accommodation - working from home - to be a “reasonable” one under the ADA. See Paleologos v. Rehab Consultants, Inc., 990 F.Supp. 1460, 1467 (N.D.Ga. 1998) (“Generally, an employer is not required to accommodate a disability by allowing the disabled worker to work at home”); Whillock v. Delta Air Lines, Inc., 926 F.Supp. 1555 (N.D.Ga. 1995) (holding that working from home did not constitute a reasonable accommodation and noting that “[t]eamwork, or even work requiring supervision, cannot be performed at home without a substantial reduction in the quality and productivity of the employee’s performance”). Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 9 of 24 10 LEGAL02/37055058v1 informal interactive process with the individual with a disability in need of an accommodation.” 29 C.F.R. § 1630.2(o)(3) (emphasis added). Plaintiff contends that YP violated the ADA by “failing and refusing to engage in the interactive process” and by “failing and refusing to provide and otherwise denying her” the “reasonable” accommodation of working from home during periodic flare-ups of her condition. (Amended Compl. ¶¶ 45, 75). With respect to the allegation regarding the refusal to engage in the interactive process, the facts pled in both the Original Complaint and the Amended Complaint wholly belie that summary contention. In fact, Plaintiff admits that her supervisor did engage in the interactive process - and even told her that she wanted to handle Plaintiff’s request to work from home “informally.”3 (Amended Compl. ¶ 46; Original Compl. ¶ 46). Unlike the allegation regarding the interactive process, the Original Complaint and the Amended Complaint differ quite remarkably with respect to Plaintiff’s claim that YP denied her a reasonable accommodation. Indeed, the 3 Even if Plaintiff’s supervisor had refused or otherwise failed to engage in the interactive process with Plaintiff, that alone does not constitute a violation of the ADA. See McKane v. UBS Financial Services, Inc., 363 Fed.Appx. 679, (11th Cir. 2010) (“…even assuming that [the employer] failed to engage in an interactive process, that failure neither amounted to a violation of the ADA nor relieved [the employee] of his burden of demonstrating the availability of a reasonable accommodation”). See also Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir. 1996); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997). Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 10 of 24 11 LEGAL02/37055058v1 Original Complaint contended that she requested the accommodation of working from home and that, because she was “taking advantage” of that arrangement, a colleague’s similar request was denied. (Original Compl. ¶¶ 45, 47, 49-50) However, in the Amended Complaint, although she continues to allege that her supervisor thought that she was “taking advantage” of working from home, she also contends - in complete contradiction of that allegation - that her supervisor did not allow her to work from home. (Amended Compl. ¶¶ 47, 51) While it is generally true that an amended pleading supersedes a former pleading, there are definitive exceptions to that “general” rule. See Fernandez v. School Board of Miami-Dade County, 201 F.Supp.3d 1353, n. 1 (S.D.Fla. 2016), citing Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007). For example, where a supplemental pleading contradicts an earlier pleading, or where a pleading was amended in a “transparent attempt” to avoid a motion to dismiss, a court “may ‘disregard the contradictory and manipulated allegations of an amended pleading.’” Fernandez, 201 F.Supp.3d at n. 1, quoting Colliton v. Cravath, Swaine & Moore LLP, 2008 WL 4386766 at *6 (S.D.N.Y. 2008); Fernandez, 201 F.Supp.3d at n. 1, quoting Barris v. Hamilton, 1999 WL 311813 at *2 (S.D.N.Y. 1999). Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 11 of 24 12 LEGAL02/37055058v1 Here, the allegation in the Amended Complaint that her request for an accommodation was denied should be disregarded as it absolutely contradicts the Original Complaint. Again, the Original Complaint reflects a belief by her supervisor that Plaintiff was “taking advantage” of her work-from-home arrangement. (Original Compl. ¶ 50). On the other hand, the Amended Complaint alleges that, within a week of her request to work from home, her supervisor denied it. (Amended Compl. ¶ 47). The new allegation regarding the denial of her request is wholly incompatible with the allegations in the Original Complaint and, again, should be disregarded by the Court. In addition to contradicting the Original Complaint, the Amended Complaint actually contradicts itself. Indeed, the Amended Complaint inexplicably reflects (1) Plaintiff’s request to work from home (Id. at ¶ 45); (2) a denial a week later by Plaintiff’s supervisor of that request (Id. at ¶ 47); and (3) her supervisor’s belief that Plaintiff was “taking advantage” of working from home (Id. at ¶ 51). The allegations that, on the one hand, Plaintiff’s request to periodically work from home was denied within a week but, on the other hand, that she worked from home to such a degree that her supervisor thought she was “taking advantage” of the situation, are facially implausible because they are internally inconsistent, self- negating, and contradictory. See Montague v. Schofield, No. 2:14-CV-292-RLJ, Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 12 of 24 13 LEGAL02/37055058v1 2016 WL 397199, at *3 (E.D. Tenn. July 19, 2016) (holding that, because plaintiff simultaneously accused prison of an inadequate diet causing him to lose weight but also to gain weight, “his factual allegations with respect to that issue are not well- pleaded and will not be assumed to be veracious”); In re Riddell Concussion Reduction Litig., 77 F.Supp.3d 422, 437 (D.N.J. 2015) (“The Court finds that Plaintiff’s simultaneous allegations that it is impossible for any football helmet to reduce concussions and that Defendants overstated the ability of their Helmets to reduce concussioins as compared to other helmets do not support a plausible claim for relief.”); Hancock v. Hood, 686 F.Supp.2d 1240, 1255-56 (S.D. Ala. 2010) (holding that because plaintiff’s contradictory factual allegations regarding defendants’ alleged conduct “cannot be taken as true, all that remains are his legal conclusions which alone cannot support a claim”); Hinton v. Trans Union, LLC, 654 F.Supp.2d 440, 449 (E.D. Va. 2009) (holding plaintiff’s internally inconsistent allegations that he applied for credit lines but that there was no permissible purpose for credit inquiries regarding these applications failed Iqbal’s facial plausibility test). See also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. April 2016 Update) (“The court will not accept conclusory allegations concerning the legal effect of the events the plaintiff has set Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 13 of 24 14 LEGAL02/37055058v1 out if these allegations do not reasonably follow from the pleader’s description of what happened, or if these allegations are contradicted by the description itself.”). Even if Plaintiff could somehow explain away the internal contradictions and the contradictions between her original and supplemental pleadings, the brand- new allegation that YP denied her request for an accommodation should still be disregarded as a transparent attempt to manipulate the facts to avoid dismissal of her claim - a situation very much akin to that at issue in Fernandez. In that case, in response to a motion to dismiss, the plaintiffs removed from their amended complaint allegations that appeared in their previous complaint. According to the court, the amended complaint inexplicably removes all allegations regarding the unlawful reprisal proceedings - allegations that are, of course, integral [to] the School Board’s argument that the Plaintiff’s claims are barred by res judicata and collateral estoppel. As in Colliton, this Court finds that the removal of those allegations is a similarly transparent attempt to amend the complaint, in this circumstance, to avoid the res judicata and collateral estoppel defenses raised by the School Board. And while the allegations in the [] Amended Complaint do not explicitly contradict the allegations in the prior version - given that the references to the unlawful reprisal proceedings have simply been removed - the Court has found no Eleventh Circuit authority that would bar the invocation of this exception under these specific circumstances - where plaintiffs have manipulated the allegations in their pleadings to avoid a dispositive defense. Therefore, the Court will recite the pertinent facts here as they previously appeared. Fernandez, 201 F.Supp.3d at n. 1. Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 14 of 24 15 LEGAL02/37055058v1 Like the removal of the inconvenient factual allegations in Fernandez, here, Plaintiff simply adds more convenient “facts” as a way of improperly avoiding the dismissal of her claim. Indeed, Plaintiff’s about-face is as transparent an attempt to evade dismissal of Count III of her Amended Complaint as one could fathom. Certainly, had Plaintiff been told that her request was denied, she would have included that allegation - as opposed to focusing on the irrelevant circumstances surrounding the denial of a colleague’s request to work from home - in the Original Complaint. In light of the transparent manipulation of the allegations in the Amended Complaint to avoid dismissal of her claim, the Court should disregard these new allegations altogether. Finally, stripping away the belated and contradictory allegation that YP denied her request for an accommodation, Plaintiff is left with only a conclusory and formulaic recitation of the elements of an ADA claim with no facts to support it. Indeed, there is not a single credible fact that supports her conclusory assertion that YP denied her request for an accommodation. As such, in accordance with the Supreme Court’s holding in Twombly, 550 U.S. at 555, YP respectfully submits that Count III of the Amended Complaint should be dismissed. Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 15 of 24 16 LEGAL02/37055058v1 B. The Portions of Counts II, IV, VII, VIII, and X that Are Based on YP’s Alleged Failure to Accommodate Should Be Dismissed Because Plaintiff Fails to State a Plausible Claim Under the ADA. In addition to asserting a standalone cause of action for failure to accommodate in Count III, Plaintiff contends that the alleged denial of her request to work from home constitutes an adverse employment action sufficient to support her claims for disability discrimination, associational discrimination, and retaliation under the ADA, as well as sex and/or “sex plus” discrimination and retaliation under Title VII and retaliation in violation of the EPA. (Amended Compl. at Counts II, IV, VII, VIII, and X). As shown above, however, once her contradictory and manipulated allegations are disregarded, the Amended Complaint is completely devoid of even a single fact that supports her summary contention that her request for a reasonable accommodation was denied. Thus, the portions of Counts II, IV, VII, VIII, and X that rely on that unsupported contention should be dismissed.4 4 Even if Plaintiff had asserted facts that supported her contention that she was denied a reasonable accommodation, the portions of those Counts that rely on such contention should be dismissed for the additional reason that such a denial does not constitute an “adverse employment action” sufficient to support her claims under those statutes. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (holding that, to constitute an adverse employment action, the employee must show “a serious and material change in the terms, conditions, or privileges of employment” and that the subjective view of the significance and adversity of the employer’s action is not controlling); Velez-Ramirez v. Puerto Rico, 827 F.3d 154, 158 (1st Cir. 2016) (rejecting plaintiff’s contention that the denial of her request for Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 16 of 24 17 LEGAL02/37055058v1 C. Plaintiff Fails to State a Plausible Claim for Unlawful Interference or Retaliation in Violation of the FMLA. As the Eleventh Circuit has routinely noted, pursuant to the FMLA, an employee may bring 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 an activity protected by the Act. Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1272 (11th Cir. 2012) (citing Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)). Plaintiff purports to assert both types of claims under the FMLA, and both should be dismissed for failure to state a claim upon which relief may be granted. With respect to a claim for unlawful interference under the FMLA, “[a] Plaintiff claiming interference must demonstrate by a preponderance of the evidence that she was denied a benefit to which she was entitled.” Pereda, 666 F.3d at 1274 (quoting Harley v. Health Ctr. Of Coconut Creek, 487 F.Supp. 2d 1344, 1357 (S.D.Fla. 2006)). Here, although Count V of Plaintiff’s Amended Complaint is styled as an FMLA “interference” claim, nowhere in the Amended accommodation equated to a discharge and, thus, constituted an adverse employment action and holding that “an employer may deny a request for reasonable accommodations but nevertheless allow an employee to continue working. The statute also views a denial of reasonable accommodations and a discharge as two distinct acts.”) Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 17 of 24 18 LEGAL02/37055058v1 Complaint does she contend - or even remotely insinuate - that YP denied her any benefit to which she was entitled under the FMLA. On the contrary, the “facts” included in the Amended Complaint are that (1) she requested and, in fact, took intermittent leave under the FMLA in 2014 (Amended Compl. ¶¶ 33-34, 42), (2) her supervisor told her not to worry about requesting more leave and that doing so would be “no problem” (Id. at ¶ 43), and (3) she continued to take leave “as needed” throughout the remainder of her employment (Id. at ¶ 52). Again, Plaintiff never contends that she requested a leave that was denied or that she was otherwise denied a benefit to which she was entitled. Thus, far from asserting facts supporting some sort of FMLA interference claim, the facts alleged in the Complaint show that YP acted in accordance with the requirements of the FMLA. A closer review of Count V reveals that Plaintiff is, in essence, attempting to assert a retaliation claim under the guise of a claim for unlawful interference. Indeed, Plaintiff defines the alleged “interference” as YP’s termination of her employment “when she was entitled to take leave” and its consideration of her use of protected leave as a “motivating factor” in its termination decision. (Amended Compl. ¶ 96) Regardless of its moniker, Count V fails on its face. First, the simple fact that Plaintiff may have been “entitled” to take leave under the FMLA at the time of her termination does not, as Plaintiff appears to Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 18 of 24 19 LEGAL02/37055058v1 believe, automatically render her termination unlawful. Indeed, “[t]he right to commence FMLA leave is not absolute, and … an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave.” Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1236 (11th Cir. 2010). See also 29 C.F.R. § 825.216(a) (“[a]n employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”); Strickland, 239 F.3d at 1208 (holding that an employee’s right to return from FMLA leave is qualified in that she is not entitled to any right, benefit, or position other than that to which she would have been entitled had she not taken leave). Thus, the mere fact that her termination occurred during a time when she may have been entitled to take intermittent FMLA leave is far from sufficient to state a claim under that statute. Moreover, the Amended Complaint is completely devoid of any facts that any leave she took under the FMLA factored in any way into the decision to terminate her employment. Indeed, to prove “retaliation” under the FMLA, Plaintiff would need to show that YP “intentionally discriminated against [her] in the form of an adverse employment action for having exercised an FMLA right.” Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 19 of 24 20 LEGAL02/37055058v1 Strickland, 239 F.3d at 1207. Here, Plaintiff alleges no facts to support that contention. Indeed, Plaintiff claims that she had been taking intermittent FMLA leave since 2014 and continued to do so on an “as needed” basis throughout her employment. (Amended Compl. ¶¶ 33-34, 42, 52) Moreover, nowhere in Plaintiff’s Amended Complaint does she contend that her supervisor frowned on the idea of her taking leave or even exhibited any sort of negative reaction to it. On the contrary, Plaintiff contends that her supervisor told her that taking leave was “no problem” and that, shortly after her supervisor learned of her previous FMLA leave and need to take future leave, she gave her a “favorable annual performance review.” (Amended Compl. ¶¶ 43-44) Even when viewing all of these facts in the light most favorable to Plaintiff, “such naked assertions devoid of further factual enhancement” contribute nothing to the sufficiency of the Amended Complaint. Franklin, 738 F.3d at 1251, quoting Iqbal, 556 U.S. at 678. Thus, Count V - as well as Count VI, which is actually styled as an FMLA “retaliation” claim and is based on the same conclusory allegations and formulaic recitation of the elements - should be dismissed for failure to state a claim upon which relief may be granted. Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 20 of 24 21 LEGAL02/37055058v1 V. CONCLUSION As the above makes clear, Plaintiff’s allegations are insufficient to satisfy the “facial plausibility” standard clearly articulated in Twombly and Iqbal. As noted above, this “plausibility standard” requires “more than a sheer possibility that a defendant has acted unlawfully,” and a complaint falls short of the standard where the plaintiff “pleads facts that are ‘merely consistent’ with a defendant’s liability.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Here, Plaintiff fails to even plead facts that are “merely consistent” with YP’s liability. On the contrary, the actual facts pled show that, in fact, there is no scenario pursuant to which liability could attach. As such, YP respectfully submits that its Partial Motion to Dismiss Plaintiff’s Amended Complaint should be granted. Respectfully submitted this 27th day of March, 2017. ALSTON & BIRD LLP /s/ Ashley Brightwell Ashley D. Brightwell Georgia Bar No. 207459 Anna Saraie Georgia Bar No. 198096 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7000 (telephone) (404) 881-7777 (facsimile) Counsel for Defendants Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 21 of 24 22 LEGAL02/37055058v1 LR 5.1 Certification The above-signed counsel certifies that this document has been prepared with 14 point Times New Roman font. Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 22 of 24 23 LEGAL02/37055058v1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) CERTIFICATE OF SERVICE I hereby certify that the foregoing MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following attorneys of record for Plaintiff: Buckley Beal, LLP Brian J. Sutherland Georgia Bar No. 105408 Thomas J. Mew IV Georgia Bar No. 503447 Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 23 of 24 24 LEGAL02/37055058v1 This 27th day of March, 2017. /s/ Anna Saraie Anna Saraie Case 1:17-cv-00397-ELR-JKL Document 16-1 Filed 03/27/17 Page 24 of 24