Percell v. Kentucky Department of Military Affairs et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Ky.June 5, 2017

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION Case Number: 3:16-cv-721-TBR ANDREA PERCELL PLAINTIFF, v. ELECTRONICALLY FILED COMMONWEALTH OF KENTUCKY, DEPARTMENT OF MILITARY AFFAIRS, And UNKNOWN DEFENDANT(S) DEFENDANTS. DEFENDANT COMMONWEALTH’S MOTION TO DISMISS IN LIEU OF ANSWER Comes the Defendant, Commonwealth of Kentucky, Department of Military Affairs, ex and moves for dismissal as to Plaintiff, Andrea Percell. Percell has not established and cannot establish the elements necessary to advance a prima facie case of her claim for retaliation against the Commonwealth under the Kentucky Civil Rights Act, KRS 344.280 (hereinafter “KCRA”). Percell has also failed to state a claim under the Family Medical Leave Act. Accordingly, Defendant is entitled to dismissal as to Plaintiff’s claim. In support of its motion, the Commonwealth has submitted a memorandum of law in support of its Motion to Dismiss In Lieu of Answer. Case 3:16-cv-00721-TBR-LLK Document 18 Filed 06/05/17 Page 1 of 2 PageID #: 90 2 Respectfully submitted, ANDY BESHEAR ATTORNEY GENERAL /s/ Sam Flynn Sam Flynn Assistant Attorney General The Capitol Building 700 Capital Avenue, Ste. 18 Frankfort, KY 40601 (502) 696-5300 FAX (502) 564-9380 Counsel for Defendant, Commonwealth of Kentucky, Department of Military Affairs CERTIFICATE OF SERVICE It is hereby certified that on June 5, 2017, I electronically filed and served the forgoing using the Court’s CM/ECF system on: Jill M. Guarascio 125 Chenoweth Lane Suite 308 Louisville, KY 40207 (502)-895-1517 jill@guarasciolawgroup.com Counsel For Plaintiff /s/ Sam Flynn__________ Sam Flynn Assistant Attorney General Counsel for Defendant Case 3:16-cv-00721-TBR-LLK Document 18 Filed 06/05/17 Page 2 of 2 PageID #: 91 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION Case Number: 3:16-cv-721-TBR ANDREA PERCELL PLAINTIFF, v. ELECTRONICALLY FILED COMMONWEALTH OF KENTUCKY DEPARTMENT OF MILITARY AFFAIRS, And UNKNOWN DEFENDANT(S) DEFENDANTS. MEMORANDUM IN SUPPORT OF DEFENDANT COMMONWEALTH’S MOTION TO DISMISS IN LIEU OF ANSWER Comes now the Defendant, Commonwealth of Kentucky, Department of Military Affairs (“the Commonwealth”), by and through counsel, and tenders this Memorandum in Support of its Motion for Dismissal In Lieu of Answer as to the Plaintiff, Andrea Percell’s (“Percell”) claim of unlawful racial discrimination and violation of the Family Medical Leave Act (FMLA). As demonstrated herein, based on facts plead in Percell’s amended complaint, as a matter of law, Plaintiff has not established the elements necessary to advance a prima facie case of discrimination against the Commonwealth under the Kentucky Civil Rights Act, KRS 344.040 et seq. (“KCRA”). Plaintiff also fails to allege facts necessary to advance a claim of violation of the FMLA, 29 U.S.C. §2601 et seq. Accordingly, this Court should dismiss Percell’s claims as to the Commonwealth. Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 1 of 14 PageID #: 92 2 FACTUAL BACKGROUND Plaintiff alleges that she is an African-American female who began her employment with the Department of Military Affairs Kentucky National Guard Youth Academy (“Bluegrass ChalleNGe Academy”) on or around June 1999. (Doc. 17, Page ID# 82, ¶¶ 8-9.) She further alleges that she was given the title of “Administrative Secretary” and claims her duties included “preparation of payroll for approximately fifty (50) employees, as well as correspondence, reports and hiring packets in regard to new hires.” (Doc. 17, Page ID# 82, ¶¶ 9.) She was the only person with the “Administrative Secretary” title from October 2001 to her departure from state government in June 2016. (Doc. 17, PageID# 82-83, ¶ 10.) Plaintiff claims she applied for an “Administrative Specialist III” position in or around 2000. (Doc. 17, PageID# 83, ¶ 11.) This position, Plaintiff alleges, was eventually offered to Vicky Harl, a white female employee, whom Plaintiff claims lacked the necessary qualification of a bachelor’s degree. (Doc. 17, PageID# 83, ¶ 11) Plaintiff claims that throughout her employment she was given additional duties due to Ms. Harl’s inability to perform them, and in 2011 she was given additional duties such that Ms. Harl’s only functions were answering calls, sorting mail, processing cadet applications, and inputting data. (Doc. 17, PageID# 83, ¶ 12.) As a result, she claims she made a request to be placed in a higher pay grade in 2011. (Doc. 17, PageID# 83, ¶ 12.) Notably, Plaintiff fails assert to whom she made this request, how this request was made, or if this request was granted – assuming it even occurred. Plaintiff’s claims then jump to March 2013, with the hiring of Dottie Heffelfinger, a white female in the position of “Administrative Assistant.” (Doc. 17, PageID# 83, ¶ 13.) Plaintiff claims that she “discovered” that Ms. Heffelfinger was promoted to “Administrative Specialist III,” but did not possess the requisite college degree, and that she did. (Doc. 17, Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 2 of 14 PageID #: 93 3 PageID# 83, ¶ 13.) Plaintiff also claims this position was not posted. (Id.) Plaintiff asserts that she requested the opportunity to advance to a higher pay grade and also that she was performing more job functions than Ms. Harl or Ms. Heffelfinger. (Id.) Again, Plaintiff fails assert to whom she made this request, how this request was made, or if this request was granted – assuming it even occurred. Plaintiff next alleges that in January 2014, Ms. Heffelfinger’s job duties were given to Plaintiff. (Doc. 17, PageID# 84, ¶ 15.) Plaintiff claims she then complained to her Deputy Director about being given additional job duties without an increase in pay or opportunity to advance to a higher pay grade. (Id.) Plaintiff further claims that in June 2015 she was given Ms. Heffelfinger’s job duties. (Doc. 17, PageID# 84, ¶ 16.) With Ms. Heffelfinger promoted to “Budget Analyst,” Plaintiff claims she took over some of Ms. Heffelfinger’s previous duties. (Id.) Plaintiff does not claim she actually applied for the position, only that she “indicated an interest,” and that the position was “not posted and filled in accordance with procedures.” (Id.) Finally, on or around April 4, 2016, over sixteen (16) years into her employment, over fourteen (14) since the alleged Harl incident, and almost one (1) year after the alleged Heffelfinger incident, Plaintiff claims she verbally reported to EEO Officer Martin Jones her concerns Bluegrass ChalleNGe Academy was not following proper hiring procedures. (Doc. 17, Page ID# 84-85, ¶ 18). Officer Jones told Plaintiff to prepare a written Complaint. (Id.) Plaintiff does not allege that she ever filed the written complaint. (See Id.) On or about early June 2016, Plaintiff claims her husband was hospitalized for approximately nine (9) days. (Doc. 17, PageID# 85, ¶ 21.) Her husband was informed he would need a lung transplant and that the procedure would have to take place in Pennsylvania. (Doc. 17, PageID# 85, ¶ 24.) Plaintiff claims that on Saturday, June 11, 2016, she told Administrative Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 3 of 14 PageID #: 94 4 Branch Manager, Michael Major, and Supervisor, Dilbert Richardson, that she would need to take some time off, and that she would discuss it with them further on Monday, June 13, 2016. (Doc. 17, PageID# 86, ¶ 25.) On June 14, 2016, Bluegrass ChalleNGe Academy terminated Plaintiff’s employment. (Doc. 17, Page ID# 86, ¶ 25). Plaintiff alleges that Defendant Commonwealth violated KRS 344.280 by retaliating against Plaintiff impliedly asserting that she “opposed a practice declared unlawful by KRS 344.040, et seq.” (Doc. 17, PageID# 86-87, ¶¶ 28-30.)1 Plaintiff further alleges that Defendant Commonwealth violated Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (hereinafter “FMLA”). Specifically, Plaintiff claims that Defendant Commonwealth violated 29 U.S.C. § 2615(a)(1), claiming that the Department attempted to “interfere with the Plaintiff’s exercise of her FMLA rights by discharging her from employment.” (Doc. 17, PageID# 87, ¶ 36.) Plaintiff seeks a judgment enjoining Defendant Commonwealth from further violations of KCRA and FMLA, as well as for wage and other monetary losses incurred and to be incurred in the future, reinstatement to her previously held position of employment, and for court costs and attorney’s fees. (Doc. 17, Page ID# 88, ¶ 1-8.) STANDARD OF REVIEW Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) permits a district court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” For purposes of ruling on a Motion to Dismiss pursuant to FRCP 12(b)(6), the court construes the complaint in the light 1 Plaintiff’s Amended Complaint notably does not allege that any of its damages are the direct or proximate result of Defendant Commonwealth’s alleged actions or the actions of Defendant’s agents. (Doc. 1, PageID#17, ¶¶ 31-33.) Rather, the Plaintiff’s claimed damages, including claims for lost wages, lost retirement benefits, and physical pain, emotional distress, mental anguish, humiliation, embarrassment and personal indignity, are alleged to be the direct and proximate result of Heaven Hill’s violations of KCRA. (Id.) Although this appears to be only a drafting error by Plaintiff’s Counsel, Defendant Commonwealth will fully address this significant issue herein. Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 4 of 14 PageID #: 95 5 most favorable to the non-moving party and accepts as true all well-pleaded allegations in the complaint. See Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir. 2007). However, the court need not “accept as true a legal conclusion couched as factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal alterations omitted). Rather, “[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If Plaintiff cannot “nudge[] [her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). ARGUMENT I. Plaintiff Failed to State a Retaliation Claim Under the Kentucky Civil Rights Act, KRS 344.280, et seq. Percell claims that Defendant Commonwealth violated KRS 344.280 “by retaliating and/or discriminating against Percell because she opposed a practice declared unlawful by KRS 344.040, et seq.” (Doc. 17, PageID# 86, ¶ 28.) This is in essence a retaliation claim under KRS 344.280. However, Percell has failed to state a claim for relief under KRS 344.280. Specifically, although Percell does allege that she requested pay grade alleged requests and/or complaints, Percell has not alleged any retaliation made unlawful under KRS 344.280. Accordingly, she has failed to state a claim on which relief could be granted. Therefore, this Court should dismiss Percell’s KCRA claims against Defendant Commonwealth. KRS 344.280 generally prohibits employers from retaliation or discrimination against persons who oppose a practice declared unlawful under KCRA. KRS 344.280(1), which applies Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 5 of 14 PageID #: 96 6 to individuals, makes it unlawful “[t]o retaliate or discriminate in any manner against a person ... because he has made a charge, filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding, or hearing under the chapter....” See Arterburn v. Wal-Mart Stores, Inc., No. 1:15-CV-00109-GNS-HBB, 2017 WL 472090, at * 3 (W.D. Ky. Feb. 3, 2017) (citing Fugate v. Babcock & Wilcox Conversion Servs., LLC, No. 5:14-CV-00172-TBR, 2015 WL 1758063, at *12, (W.D. Ky. Apr. 17, 2015)). The Kentucky Supreme Court has stated that Kentucky courts should interpret unlawful retaliation under KCRA consistent with the interpretation of unlawful retaliation under federal law – specifically Title VII. Brooks v. Lexington-Fayette Urban Cty. Hous. Auth., 132 S.W.3d 790, 802 (Ky. 2004). “A prima facie case of retaliation requires a plaintiff to demonstrate “(1) that plaintiff engaged in an activity protected by [the KCRA]; (2) that the exercise of [her] civil rights was known by the defendant; (3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.” ” Id. at 803. (citing Christopher v. Stouder Memorial Hospital, 936 F.2d 870, 877 (6th Cir. 1991), cert. denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991)). In the instant action, Percell has failed to allege a prima facie retaliation under KRS 344.280. Percell has not alleged any causal connection between her April 4, 2016 verbal complaint and her termination on June 13, 2016. Percell alleged that on April 4, 2016 she complained to the Equal Employment Opportunity Officer, Martin Jones, inter alia, “white females and males [were] given preferential treatment by being placed into positions with higher pay grades than African-American females, like herself, even though such white females and males did not possess the requisite skills and/or qualifications for such grades.” (See Doc. 17, Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 6 of 14 PageID #: 97 7 PageID# 84-85, ¶ 18.) Notably, rather than receiving some adverse employment action as a result of her complaint, Percell expressly acknowledges and alleges that Equal Employment Opportunity Officer Martin Jones told her to prepare a written complaint of her concerns, and that she would have an entire year to do so. (Id. at ¶ 19). Percell also alleges that she informed him that she would begin working on her complaint, and would do so on her work computer. (Id.) Nowhere in Percell’s Complaint does she allege that her employment was terminated because of her verbal complaint on April 4, 2016. (See generally, Doc. 17.) On the contrary, she alleges that on Monday, June 13, 2016, Director Charles Jones sent an email to Administrative Branch Manager of Personnel and Payroll, Crystal Simpson, informing her that he intended to terminate Percell for failure to perform her duties. (See Doc. 17, PageID# 86, ¶ 26.) Moreover, Percell admits that she was never provided any further explanation why she was terminated – impliedly acknowledging that she has no knowledge of the existence of a causal connection between her complaint and her termination. (See Doc. 17, PageID# 86, ¶ 27.) Percell has simply failed to allege that there was any causal connection between her verbal complaint and her termination. Accordingly, Percell has failed to state a claim for retaliation under KRS 344.280, warranting the dismissal of the Commonwealth, with respect to that claim. Therefore, this Court should grant Defendant Commonwealth’s Motion to Dismiss. II. Percell’s Demand For Relief Is Inappropriate Under KRS 344.450. Percell wrongly alleges that she is entitled to judgment for actual damages against Defendant Commonwealth pursuant to KRS 344.450. (Doc. 17, PageID# 87, ¶¶ 30.) KRS 344.450 provides that any person’s injured by another’s violation of KCRA may recover, inter alia, actual damages sustained. KRS 344.450 specifically provides the following: Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 7 of 14 PageID #: 98 8 Any person injured by any act in violation of the provisions of this chapter shall have a civil cause of action in Circuit Court to enjoin further violations, and to recover the actual damages sustained, together with the costs of the lawsuit. The court's order or judgment shall include a reasonable fee for the plaintiff's attorney of record and any other remedies contained in this chapter. (Emphasis added). KRS 344.450 expressly conditions the availability of damages. A person must be injured by another’s violation of the provision of KCRA. However, Percell does not allege that she was injured as a result of Defendant Commonwealth’s actions or the actions of Defendant’s agents. (Doc. 17, PageID# 87, ¶¶ 31-33.) Rather, Percell’s claimed damages, including claims for lost wages, lost retirement benefits, and physical pain, emotional distress, mental anguish, humiliation, embarrassment and personal indignity, are alleged to be the direct and proximate result of Heaven Hill’s violations of KCRA. (Id.) Because Percell asserts that another Heaven Hill’s alleged violations of KCRA are the “direct and proximate” cause of her damages, Percell’s request for damages from Defendant Commonwealth is inappropriate. Accordingly, this Court should grant Defendant Commonwealth’s Motion. III. Plaintiff’s Retaliation Claim is Barred by the Statute of Limitations. To the extent Percell alleges facts supporting her KCRA retaliation claims prior to five years prior to the filing of this action, her KCRA claim is time-barred. Percell claims that Defendant Commonwealth violated KRS 344.280 “by retaliating and/or discriminating against Percell because she opposed a practice declared unlawful by KRS 344.040, et seq.” (Doc. 17, PageID# 86, ¶ 28.) “Liability created by statute,” such as the KCRA, “shall be commenced within five (5) years after the cause of action accrued[.]” KRS 413.120(2). Accrual occurs on the date that the act of discrimination or retaliation occurs. Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 8 of 14 PageID #: 99 9 In the instant action, Percell makes numerous allegations relating her KCRA claim. However, some of these allegations occurred more than five (5) years prior to the filing of this action. Accordingly, to the extent Percell’s KCRA claim is reliant upon these allegations –her KCRA claim is barred by the statute of limitations. For example, her failures to be promoted in 2000 are well outside of five years and should thus be barred. (Doc. 17, PageID# 82-83, ¶¶ 9- 12.) Plaintiff is attempting to “bootstrap” time-barred complaints by alleging a “continuing violation,” an approach directly admonished by previous courts. See Walker v. Commonwealth, 503 S.W.3d 165 (Ky. App. 2016) (finding no basis for “continuing violations” in time-barred retaliatory failure to promote claim well outside the five-year statute of limitations). In line with Walker, Plaintiff’s claims are more “discrete acts” than a “continuing violation” and thus should be looked at separately by this Court. IV. Plaintiff Failed to State An Interference Claim Under the Family Medical Leave Act, 29 U.S.C. §2601 et seq. A. Plaintiff failed to state a claim under § 2615. Plaintiff also alleges a claim against Defendant Commonwealth under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. Specifically, Plaintiff wrongly claims that Defendant Commonwealth interfered with Percell’s exercise of her FMLA rights pursuant to 29 U.S.C. § 2615(a)(1). Not only does Percell fail to allege a prima facie case of interference under 29 U.S.C. § 2615, she also readily admits that her dismissal was the result of other valid reasons. Although Percell has alleged that she is an “eligible employee,” and that the Commonwealth is an “eligible employer,” for purposes of the FMLA, Percell has failed to alleged other elements of the claim. (Doc. 17, PageID# 82, ¶ 4-5.) Moreover, she acknowledges and avers that her employment was in jeopardy as early as March 30, 2016. (Doc. 17, PageID# 84, ¶ 17.) Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 9 of 14 PageID #: 100 10 Accordingly, Percell has failed to state a FMLA interference violation, and her FMLA claims should be dismissed. 29 U.S.C. § 2615(a)(1) establishes certain acts of “interference” are prohibited under the FMLA. 29 U.S.C. § 2615(a)(1) provides the following: “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” To recover in an interference claim, Percell must establish that the employer denied the employee FMLA benefits to which she was entitled. Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir.2007). 29 U.S.C. § 2615 is enforceable under § 2617 of the FMLA, which (1) imposes liability on “[a]ny employer who violates Section 2615,” and (2) provides an individual right of action to sue in state or federal court. 29 U.S.C. § 2617(a)(1), (a)(2). Two distinct theories of recovery arise under these statutes. See Arban v. West Pub. Co., 345 F.3d 390, 400- 401 (6th Cir.2003). The Sixth Circuit has stated that to establish a prima facie case of interference, under 29 U.S.C. § 2615, an employee must prove that: (1) she was an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave the employer notice of her intention to take leave, and (5) the employer denied the employee FMLA benefits to which she was entitled. See Edgar v. JAC Products, Inc. 443 F.3d 501, 507-508 (6th Cir. 2006) (internal citations omitted). The employer's intent is not a relevant part of the interference inquiry under § 2615. Id. (citing Arban, 345 F.3d at 401) (“Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.”) (internal citations omitted). By the same token, the FMLA is not a strict-liability Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 10 of 14 PageID #: 101 11 statute. See Id. (internal citation omitted); see also, Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 961 (10th Cir.2002) (holding that employees “may be dismissed” so long as “the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave”). The Supreme Court has determined that employees seeking relief under the entitlement theory must therefore establish that the employer's violation caused them harm. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) (“[Section] 2617 provides no relief unless the employee has been prejudiced by the violation ....”). The statute and establishes that interference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct. See Arban, 345 F.3d at 401 (“An employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave.”); accord Throneberry, 403 F.3d at 979 (“As long as an employer can show a lawful reason, i.e., a reason unrelated to an employee's exercise of FMLA rights, for not restoring an employee on FMLA leave to her position, the employer will be justified to interfere with an employee's FMLA leave rights.”). In the instant case, Plaintiff fails to allege a prima facie FMLA interference claim. Plaintiff fails to allege that she was actually entitled to FMLA leave, or that she expressly informed her employer when should would be taking leave and whether or not she would be taking FMLA leave. (See generally, Doc. 17). Notably, Plaintiff alleges that Director Jones’ reasons for terminating her employment included her failure to perform her duties. (Id. at PageID# 86, ¶ 17.) For example, Plaintiff admits that Director Jones cites “failure to perform her Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 11 of 14 PageID #: 102 12 duties” as the reason for her termination, and not her decision to go on leave. The court has previously found this to be a valid reason. See Tilley v. Kalamazoo County Road Commission, 654 F. App’x. 675, 681 (6th Cir. 2016) (finding “fail[ure] to complete tasks assigned” as a valid termination reason, resulting in dismissal of a FMLA claim). Plaintiff further admits that she had knowledge of her employers dissatisfaction with her performance. (Doc. 17, PageID# 84, ¶17.) She specifically alleges emails from March 2016 that document difficulties with her insubordination and talk of letting her “see what her resume is worth.” (Id.). By Plaintiff’s own admissions, this illustrates that her position was in jeopardy – well before June 2016. Plaintiff simply fails to allege that she was terminated because she requested FMLA protected leave, rather than for her insubordination and failure to perform essential job duties. Absent such allegations, her FMLA should be dismissed for failure to state a claim. B. Plaintiff failed to state a claim for relief under § 2617. Even if Percell had properly stated a claim for interference under § 2615 – which she failed to do – her claim is still properly dismissed because she failed to state a claim for relief under § 2617. Plaintiff neither asserts a claim for relief under § 2617, as required, nor was she prejudiced by her termination, as she was terminated prior to the exercise of her FMLA rights. Accordingly, the Court should dismiss Percell’s claim under § 2615. To prevail under the cause of action set out in § 2617, an employee must prove, as a threshold matter, that the employer violated § 2615 by interfering with, restraining, or denying his or her exercise of FMLA rights. Further, even assuming that Percell did establish a violation under § 2615 – which she cannot - § 2617 provides no relief unless the employee has been prejudiced by the violation: Ragsdale v. Wolverine World Wide, Inc. 535 U.S. 81, 122 S.Ct. 1155 (2002). Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 12 of 14 PageID #: 103 13 In the instant case, Percell alleged no claim for relief under § 2617. (Doc. 17.) Moreover, Percell was not prejudiced by her termination, as she was terminated prior to the exercise of her FMLA rights. Even assuming Percell did assert that she needed to take leave – she did not allege when she would need to take leave, and was not terminated while on leave. On June 11, 2016, she alleges that she told administrators that she would need to take leave at some time in the future – and would discuss the matter further the coming Monday, June 13, 2016. (Doc. 17, PageID# 86, ¶ 25.) However, she did not allege that she ever followed up on that conversation. (See Id.) Rather, on June 14, 2016, Percell was terminated for failure to perform her work duties prior to taking whatever speculative leave she now believes that she was entitled to. Doc. 17, PageID# 86, ¶ 26-27.) Even if her termination was a violation of § 2615, such violation did not prejudice her FMLA rights because she was terminated prior to her attempt to take leave. Accordingly, Plaintiff’s claim should be dismissed. CONCLUSION WHEREFORE, for the foregoing reasons, Defendant Commonwealth of Kentucky, Department of Military Affairs, requests that the Court dismiss Plaintiff’s retaliation claim under KRS 344.280 and her claim of violation of the FMLA under 29 U.S.C. §2615(a)(1) with prejudice, pursuant to Fed. R. Civ. P. 12(b)(6). Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 13 of 14 PageID #: 104 14 Respectfully submitted, ANDY BESHEAR ATTORNEY GENERAL /s/ Sam Flynn Sam Flynn Assistant Attorney General The Capitol Building 700 Capital Avenue, Ste. 18 Frankfort, KY 40601 (502) 696-5300 FAX (502) 564-9380 Counsel for Defendant, Commonwealth of Kentucky, Department of Military Affairs CERTIFICATE OF SERVICE It is hereby certified that on June 5, 2017, I electronically filed and served the forgoing using the Court’s CM/ECF system on: Jill M. Guarascio 125 Chenoweth Lane Suite 308 Louisville, KY 40207 (502)-895-1517 jill@guarasciolawgroup.com Counsel For Plaintiff /s/ Sam Flynn__________ Sam Flynn Assistant Attorney General Counsel for Defendant Case 3:16-cv-00721-TBR-LLK Document 18-1 Filed 06/05/17 Page 14 of 14 PageID #: 105 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION Case Number: 3:16-cv-721-TBR ANDREA PERCELL PLAINTIFF, v. ELECTRONICALLY FILED COMMONWEALTH OF KENTUCKY, DEPARTMENT OF MILITARY AFFAIRS, And UNKNOWN DEFENDANT(S) DEFENDANTS. ORDER This matter having come before the Court on Defendant Commonwealth’s Motion to Dismiss In Lieu of Answer pursuant to FRCP 12(b), the parties having been heard, and the Court being sufficiently advised, it is hereby ordered that Defendant’s Motion to Dismiss is GRANTED. Plaintiff shall bear her own costs and attorney fees incurred in this action. So ORDERED this ______ day of ____________, 201_. Case 3:16-cv-00721-TBR-LLK Document 18-2 Filed 06/05/17 Page 1 of 1 PageID #: 106