Forman v. Avon Products, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.January 9, 2017

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARLETTE D. FORMAN Plaintiff, v. AVON PRODUCTS, INC. Defendant. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:16-cv-05410-RBS ORDER AND NOW, this ____ day of ____________, 2017, upon consideration of Defendant, Avon Products, Inc.’s, Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim, and Plaintiff’s Response thereto, it is hereby ORDERED and DECREED that the MOTION IS GRANTED and Plaintiff’s Complaint is DISMISSED WITH PREJUDICE. BY THE COURT: _____________________________ J. Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 1 of 15 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARLETTE D. FORMAN Plaintiff, v. AVON PRODUCTS, INC. Defendant. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:16-cv-05410-RBS DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S COMPLAINT Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant, Avon Products, Inc. (“Avon”), moves the Court to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief may be granted. Plaintiff claims that Avon wrongfully terminated her in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601, and the Americans with Disabilities Act, 42 U.S.C. §12101, (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”). The Complaint also includes a common law claim of unjust enrichment against Avon. Plaintiff’s claims should be dismissed because Defendant Avon was not the Plaintiff’s employer at the time she was terminated; Avon did not terminate Plaintiff from her employment; and Plaintiff has otherwise failed to allege any facts that would support any claims against Avon under the statutes identified in the Complaint or at common law. In support of this Motion, Avon relies upon Plaintiff’s Complaint and Avon’s Memorandum of Law in Support of its Motion to Dismiss, and exhibits (which are publically disclosed SEC filings that may be judicially noticed), filed contemporaneously herewith. Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 2 of 15 2 WHEREFORE, Avon requests that the Court grant this Motion, dismiss all of Plaintiff’s claims against Avon with prejudice, and award Avon its costs and such other relief as the Court may deem appropriate. DLA PIPER LLP (US) /s/ Adam A. DeSipio Adam A. DeSipio, Esquire adam.desipio@dlapiper.com One Liberty Place 1650 Market Street, Suite 4900 Philadelphia, PA 19103-7300 Phone: (215) 656-3300 Fax: (215) 606-3301 Attorneys for Defendant Avon Products, Inc. Dated: January 9, 2017 Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 3 of 15 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARLETTE D. FORMAN Plaintiff, v. AVON PRODUCTS, INC. Defendant. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:16-cv-05410-RBS DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S COMPLAINT Adam A. DeSipio, Esquire DLA PIPER LLP (US) One Liberty Place 1650 Market Street, Suite 4900 Philadelphia, PA 19103-7300 Phone: (215) 656-3300 Fax: (215) 606-3301 Attorneys for Defendant Avon Products, Inc. Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 4 of 15 TABLE OF CONTENTS Page i ii. TABLE OF AUTHORITIES ……………………………………………………………..ii I. INTRODUCTION ...............................................................................................................1 II. FACTUAL BACKGROUND ..............................................................................................1 III. LEGAL STANDARD ..........................................................................................................3 IV. ARGUMENTS AND AUTHORITIES................................................................................4 A. Plaintiff has Failed to State a Claim For Relief Against Avon Under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601 ............................... 5 B. Plaintiff has Failed to State a Claim For Relief Against Avon Under the Americans with Disabilities Act, 42 U.S.C. §12101, (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”) ........................................... 6 C. Plaintiff has Failed to State a Claim For Relief Against Avon Under the Common Law Theory of Unjust Enrichment ........................................................ 7 V. CONCLUSION ....................................................................................................................8 Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 5 of 15 ii TABLE OF AUTHORITIES Cases Pages Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...........................................................................................3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................3 City of Pittsburgh v. West Penn Power Co., 147 F.3d 256 (3d Cir. 1998) .....................................4 Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000) ................................4 Hayduk v. Johnstown, 2010 WL 2650248 (3d Cir. July 2, 2010) ...................................................6 Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2010) .......................................................................2, 4 Morse v. Lower Merion Sch. Dist., 132 F.3d. 902 (3d Cir. 1997) ..................................................4 Papasan v. Allain, 478 U.S. 265 (1986) .........................................................................................3 Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192 (3d Cir. 1993) .......2, 4 Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) .......................................................3, 5 Pinker v. Roche Holdings Ltd., 292 F.3d 361 (3d Cir. 2002) .........................................................3 Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398 (3d Cir. 2007) .........................................5 Schmidt v. Skolas, 770 F.3d 241 (3d Cir. 2014) ..........................................................................2,4 Sulima v. Defense Support Services, LLC, 602 F.3d 177 (3d Cir. 2010) ........................................6 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) ......................................................6 Turner v. Hershey Chocolate U.S., 440 F.3d 604 (3d Cir. 2006) ...................................................6 STATUTES Americans with Disabilities Act, 42 U.S.C. §12101 ...........................................................1, 5, 6 ,7 ADA Amendments Act of 2008 ......................................................................................................1 Family and Medical Leave Act, 29 U.S.C. §2601 ...............................................................1, 5, 6, 7 OTHER AUTHORITIES Federal Rule of Civil Procedure 12(b)6 ...........................................................................................1 Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 6 of 15 1 I. INTRODUCTION Defendant, Avon Products, Inc. (“Avon”), moves the Court to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiff has failed to state a claim against Avon under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601, or the Americans with Disabilities Act, 42 U.S.C. §12101, (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”). Plaintiff claims that Avon wrongfully terminated her in violation of these statutes, but Avon was not Plaintiff’s employer when she was allegedly discharged and Avon did not terminate her employment. Consequently, Plaintiff’s Complaint fails to allege any facts that would support a claim against Avon under these statutes or under her common law claim of unjust enrichment, and the Complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. II. FACTUAL BACKGROUND Plaintiff’s October 14, 2016 Complaint alleges that Avon wrongfully terminated Plaintiff’s employment on May 9, 2016 in violation of the FMLA and the ADA, as amended by the ADAAA. See Complaint attached hereto as Exhibit “A.” Plaintiff claims that she began “FMLA leave” on February 23, 2016 as a result of a “thyroid problem.” Ex. A at ¶¶20, 23. Plaintiff further alleges that when she returned from leave on May 9, 2016, Avon terminated her employment. Ex. A at ¶¶30-40. At that time, however, Avon was not Plaintiff’s employer. Avon is a publically traded company. Ex. A at ¶14. On December 17, 2015, before Plaintiff began her “FMLA leave,” Avon filed a Form 8-K with the United States Securities and Exchange Commission (“SEC”) and simultaneously issued a press release announcing that Avon had entered into definitive agreements with affiliates of Cerberus Capital Management (“Cerberus”). The agreements included the separation of Avon’s North America business into a privately-held company majority owned and managed by Cerberus, and provided that Avon Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 7 of 15 2 North America would assume approximately $230 million of long-term liabilities from Avon. 1 A true a correct copy of the December 17, 2015 Form 8-K is attached hereto as Exhibit “B.” 2 On March 1, 2016, one week after Plaintiff began her “FMLA leave,” Avon filed a Form 8-K with the SEC and simultaneously issued a press release announcing the close of its previously disclosed transactions with Cerberus. A true a correct copy of the March 1, 2016 Form 8-K is attached hereto as Exhibit “C.” As stated in the Form 8-K, as of March 1, 2016, Avon’s former North American business had been separated into a privately-held company, majority owned and managed by an affiliate of Cerberus and operating under the name New Avon LLC (“New Avon”). On March 7, 2016, Avon made another filing with the SEC on a Form 8-K providing additional details regarding the completion of the transfer of its North America business to New Avon. A true a correct copy of the March 7, 2016 Form 8-K (“without exhibits”) is attached hereto as Exhibit “D.” As indicated in the March 7, 2016 Form 8-K, the completion of the acquisition on March 1, 2016 included the transfer of: (i) assets primarily related to Avon’s North America business; (ii) certain assumed liabilities of Avon’s North America business; and (iii) the employees of Avon’s North America business. 1 Avon retained a ~20% share in New Avon. 2 Avon has simultaneously filed a Motion for Judicial Notice of Avon’s Form 8-K filings with the SEC dated 12/17/15, 3/1/16, and 3/7/16 in Support of this Motion to Dismiss. The Third Circuit has held that, in ruling on a motion to dismiss, a court may consider matters of public record in addition to the allegations contained in, and exhibits attached to, the complaint. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Moreover, for the purposes of deciding a Rule 12(b)(6) motion to dismiss, “SEC filings…are matters of public record of which the court can take judicial notice.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 8 of 15 3 As evidenced by these public filings with the SEC, at the time of her termination on May 9, 2016, Plaintiff no longer worked for Avon but, instead, worked for a completely separate company called New Avon. III. LEGAL STANDARD UNDER RULE 12(B)(6) In rendering a decision on a motion to dismiss, the Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] 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. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court laid out a two-part approach to reviewing a motion to dismiss under Rule 12(b)(6). First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. at 678. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to survive the motion; "instead, 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id.; Phillips, 515 F.3d at 233 (quoting Twombly, 550 U.S. at 563 n.8). Second, the court must determine whether the complaint "states a plausible claim for relief, . . . [which is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 678. Only if "the '[f]actual allegations . . . raise a right to relief above the speculative level'" has the plaintiff stated a plausible claim. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555). Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 9 of 15 4 The Court need not accept as true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)), or the plaintiff’s “bald assertions” or “legal conclusions,” Morse v. Lower Merion Sch. Dist., 132 F.3d. 902, 906 (3d Cir. 1997). In ruling on a motion to dismiss, a court may consider matters of public record in addition to the allegations contained in, and exhibits attached to, the complaint. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). For the purposes of deciding a Rule 12(b)(6) motion to dismiss, “SEC filings…are matters of public record of which the court can take judicial notice.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). IV. ARGUMENTS AND AUTHORITIES Based upon Avon’s SEC filings – matters of public record of which the court can take judicial notice – Plaintiff’s employment with Avon ended by the time she was terminated. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). See Ex. B-D. When Plaintiff returned to work on May 9, 2016, Avon did not make any decisions with respect to her employment, because it had no authority to do so. Since employees of Avon’s former North American business were transferred to New Avon as part of the transaction (See Ex. D), the individuals identified in Plaintiff’s Complaint as having made decisions with respect to Plaintiff’s termination were not Avon employees. At the time of her termination, New Avon employed Plaintiff, and any decisions with respect to Plaintiff’s employment at that time could not have been made by Avon. Although the Court must construe the complaint in the light most favorable to the plaintiff, the Court need not accept as true “unsupported conclusions and unwarranted Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 10 of 15 5 inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000). Indeed, the Court must assess whether Plaintiff is entitled to relief based on a reasonable reading of the complaint. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Given Avon’s attached SEC filings, the only reasonable reading of the Complaint is that Plaintiff no longer worked for Avon when she was terminated from her job, and Avon was not in a position to make any decisions with respect to Plaintiff’s employment at that time. Therefore, even construing the Complaint in the light most favorable to the Plaintiff, without legitimate allegations that Avon was her employer, and that it terminated her employment in May 2016, the Complaint fails to state a claim under the FMLA, the ADA, or the common claim of unjust enrichment. A. Plaintiff has Failed to State a Claim For Relief Against Avon Under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601 Plaintiff’s Complaint alleges that she is entitled to damages against Avon under the FMLA based on theories of interference and retaliation. (Ex. A at Count I.) To prove an interference claim under the FMLA, Plaintiff must show that she was entitled to FMLA benefits and that Avon illegitimately prevented her from obtaining those benefits. See, Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007). Plaintiff alleges that “Avon interfered with Plaintiff Forman’s FMLA rights by not reinstating Forman to the same or similar position at the end of her FMLA leave in violation of 29 U.S.C. §2614(a)(1).” (Ex. A at ¶72.). Plaintiff’s Complaint, however, fails to state a claim against Avon under the theory of interference because Avon’s SEC filings demonstrate that Avon was not Plaintiff’s employer at the end of her FMLA leave in May 2016 and, therefore, could not have made any decisions at that time with respect to her employment. See Ex. B-D. Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 11 of 15 6 Likewise, Plaintiff’s Complaint fails to state a claim against Avon under the FMLA based upon a theory of retaliation. In order to prove a retaliation claim under the FMLA, Plaintiff must demonstrate that she suffered an adverse employment decision and that the adverse decision was causally connected to her invocation of FMLA rights. See, Hayduk v. Johnstown, 2010 WL 2650248 (3d Cir. July 2, 2010). Plaintiff alleges that “Defendant Avon retaliated against Plaintiff Forman in violation of the FMLA by terminating her employment.” (Ex. A at ¶75.) Again, Avon’s SEC filings demonstrate that Avon was not Plaintiff’s employer at the time she was terminated and that it, therefore, could not have made any decisions at that time with respect to her employment. See Ex. B-D. Consequently, Plaintiff’s Complaint fails to state a claim against Avon under the FMLA and all such claims should be dismissed with prejudice. B. Plaintiff has Failed to State a Claim For Relief Against Avon Under the Americans with Disabilities Act, 42 U.S.C. §12101, (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”) Similar to her claims against Avon under the FMLA, Plaintiff has failed to state a claim against Avon under the ADA upon which relief can be granted. Plaintiff’s Complaint alleges that she is entitled to damages against Avon under the ADA based on the theory that Avon terminated her employment because of her actual or perceived disability and/or in retaliation for her requesting a reasonable accommodation. (Ex. A at Count II.) In order to make out a prima facie case of disability discrimination under the ADA, Plaintiff must establish that: (1) she is disabled within the meaning of the ADA; (2) she is otherwise qualified for the job, with or without reasonable accommodations; and (3) she was subjected to an adverse employment decision as a result of discrimination. Sulima v. Defense Support Services, LLC, 602 F.3d 177 Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 12 of 15 7 (3d Cir. 2010); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999); Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006). In support of her disability discrimination claim against Avon under the ADA, Plaintiff alleges that Avon subjected her to an adverse employment action in the form of termination because of her actual or perceived disabilities and/or in retaliation for requesting a reasonable accommodation. (Ex. A at ¶85.) As stated above, given Avon’s attached SEC filings, the Court need not accept such obviously incorrect allegations as true. Based on the relevant public records, the only reasonable reading of the Complaint is that Plaintiff no longer worked for Avon when she was terminated from her job, and that Avon was not in a position to subject her to termination or any other adverse employment action. Consequently, even construing the Complaint in the light most favorable to the Plaintiff, Plaintiff’s Complaint fails to state a claim against Avon under the ADA and all such claims should be dismissed with prejudice. C. Plaintiff has Failed to State a Claim For Relief Against Avon Under the Common Law Theory of Unjust Enrichment Plaintiff claims that Avon was unjustly enriched in the amount of $597.23 for funds that she advanced to pay for a delinquent bill related to Comcast internet services at Plaintiff’s office located in Philadelphia, PA. Plaintiff also claims that she is entitled to the fair market value of services she provided to Avon in attempting to handle the Comcast matter following the termination of her employment. Ex. A at Count III. In support of this claim, the Complaint alleges that the Comcast Invoices were addressed in Plaintiff’s name even though Avon was listed as being responsible when the service was secured. Ex. A at ¶51. The Complaint further states that, when she was on FMLA leave, Plaintiff forwarded the Comcast invoices to Avon for payment but they were not being timely paid. Ex. A at ¶52. Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 13 of 15 8 According to the Complaint, Plaintiff went out on FMLA leave on February 23, 2016. According to the attached SEC Filings, one week later, March 1, 2016, assets primarily related to Avon’s former North American business were transferred to New Avon. See Ex. B-D. The Complaint alleges that it was during the time Plaintiff was out on leave that she received the Comcast invoices. Ex. A at ¶52. By that time, Avon had already transferred its primary assets to New Avon. Therefore, Avon did not derive any benefit from these Comcast internet services and did not accept or retain any benefit from Plaintiff’s payment of the Comcast invoice or from her efforts to resolve the situation with the Comcast bill. Consequently, Plaintiff’s Complaint fails to state a common law claim against Avon for unjust enrichment and it should therefore be dismissed with prejudice. V. CONCLUSION For the foregoing reasons, Avon respectfully requests that the Court grant this Motion, dismiss all of Plaintiff’s claims against it with prejudice, and award Avon its costs and such other relief as the Court may deem appropriate. Dated: January 9, 2017 By: /s/ Adam A. DeSipio Adam A. DeSipio adam.desipio@dlapiper.com DLA PIPER LLP (US) One Liberty Place 1650 Market Place, Suite 4900 Attorneys for Defendant Avon Products, Inc. Case 2:16-cv-05410-RBS Document 6 Filed 01/09/17 Page 14 of 15 9 CERTIFICATE OF SERVICE The undersigned, attorney for Defendant Avon Products, Inc., certifies that on the 9th day of January, 2017, a true and correct copy of the above Motion to Dismiss was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. /s/ Adam A. 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