Shields v. Cancer Treatment Centers of America Professional Corporation of Pennsylvania, PC et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.March 27, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARY FRANCES SHIELDS, Plaintiff, v. CANCER TREATMENT CENTERS OF AMERICA PROFESSIONAL CORPORATION OF PENNSYLVANIA, PC, EASTERN REGIONAL MEDICAL CENTER, INC., CANCER TREATMENT CENTERS OF AMERICA GLOBAL, INC., DEBRA STELLAVATO, RN OCN, DEVREE MOLNAR, and TABA WILCOX Defendants. : : : : : : : : : : : : : : : : : CIVIL ACTION NO. 2:17-cv-00207-NIQA DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) Defendants, Eastern Regional Medical Center, Inc.; Cancer Treatment Centers of America Global, Inc.; Cancer Treatment Centers of America Professional Corporation of Pennsylvania, PC; Debra Stellavato; Devree Molnar; and Taba Wilcox, hereby move to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In support thereof, defendants submit the accompanying memorandum of law. Case 2:17-cv-00207-NIQA Document 11 Filed 03/27/17 Page 1 of 2 March 27, 2017 Respectfully submitted, /s/ Adam D. Brown Michael D. O’Mara, Esq. Adam D. Brown, Esq. STRADLEY RONON STEVENS & YOUNG, LLP 2005 Market St., Suite 2600 Philadelphia, PA 19103 (215) 564-8000 (215) 564-8120 (fax) Attorneys for Defendant, Eastern Regional Medical Center, Inc. Case 2:17-cv-00207-NIQA Document 11 Filed 03/27/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARY FRANCES SHIELDS, Plaintiff, v. CANCER TREATMENT CENTERS OF AMERICA PROFESSIONAL CORPORATION OF PENNSYLVANIA, PC, EASTERN REGIONAL MEDICAL CENTER, INC., CANCER TREATMENT CENTERS OF AMERICA GLOBAL, INC., DEBRA STELLAVATO, RN OCN, DEVREE MOLNAR, and TABA WILCOX Defendants. : : : : : : : : : : : : : : : : : CIVIL ACTION NO. 2:17-cv-00207-NIQA ORDER AND NOW, this _______ day of _______________, 2017, upon consideration of Defendants’ Motion to Dismiss Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), and any response thereto, it is hereby ORDERED that the Motion is GRANTED, and the Complaint is DISMISSED WITH PREJUDICE. BY THE COURT: ______________________________ NITZA I. QUIN͂ONES ALEJANDRO Judge, United States District Court Case 2:17-cv-00207-NIQA Document 11-1 Filed 03/27/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARY FRANCES SHIELDS, Plaintiff, v. CANCER TREATMENT CENTERS OF AMERICA PROFESSIONAL CORPORATION OF PENNSYLVANIA, PC, EASTERN REGIONAL MEDICAL CENTER, INC., CANCER TREATMENT CENTERS OF AMERICA GLOBAL, INC., DEBRA STELLAVATO, RN OCN, DEVREE MOLNAR, and TABA WILCOX Defendants. : : : : : : : : : : : : : : : : : CIVIL ACTION NO. 2:17-cv-00207-NIQA MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) Defendants, Eastern Regional Medical Center, Inc. (“ERMC” or the “Hospital,” which does business under the banner “Cancer Treatment Centers of America at Eastern Regional Medical Center”); Cancer Treatment Centers of America Global, Inc.; and Cancer Treatment Centers of America Professional Corporation of Pennsylvania, PC; along with Debra Stellavato, Devree Molnar, and Taba Wilcox (collectively, the “employee-defendants”), submit this memorandum of law in support of their motion to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). As set forth below, all of plaintiff’s claims should be dismissed for two reasons. First, her claims against the employee-defendants fail, as a matter of law, to establish any potential individual liability under the Family and Medical Leave act (the “FMLA”). Second, plaintiff’s claims against all defendants are either barred by the FMLA’s statute of limitations or otherwise Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 1 of 21 - 2 - defective as a matter of law. As such, all of plaintiff’s claims should be dismissed with prejudice. I. INTRODUCTION In this action, plaintiff claims that the Hospital and three of its individual employees violated her rights under the FMLA by not giving her FMLA leave for purported health issues, even though plaintiff (1) never asked for such leave and (2) never gave the Hospital any reason to believe she needed FMLA leave. Plaintiff further claims that the Hospital retaliated against her for exercising FMLA rights, even though-according to her own allegations-she merely called out of work for a few days one week, returned to work the following Monday, and then was terminated for reasons completely unrelated to the previous week’s absences. Many, if not most, of plaintiff’s allegations are outside the FMLA’s two-year statute of limitations and, as such, are time-barred. Those limited timely allegations relate to plaintiff’s ordinary, excused work absences-not an attempt to exercise FMLA rights. And none of plaintiff’s allegations justify the inclusion of three individual Hospital employees as defendants in this lawsuit. Indeed, as to these three employee-defendants, all claims against them should be dismissed. While plaintiff simply could have asserted her purported FMLA claims against the entity that employed her-ERMC-she chose another path. She opted to drag three individual Hospital employees into this litigation as defendants (along with two corporate entities that never employed her), without even identifying a single act by any of them that could result in FMLA liability. The allegations plaintiff tries to make against the employee-defendants are legally insufficient to justify keeping them in this lawsuit. Devree Molnar (a 31-year-old former Assistant Vice President recently let go in a company-wide layoff), Taba Wilcox (a human Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 2 of 21 - 3 - resources representative), and Debra Stellavato (a nursing supervisor)-were regular, everyday employees of the Hospital working in various capacities. Their complained-of conduct consists only of participating in a telephone call with plaintiff, communicating with plaintiff on isolated occasions about her non-FMLA absenteeism, and (with respect to Ms. Stellavato only) communicating disciplinary measures to plaintiff, including her eventual termination for excessive absences and performance issues. None of the allegations in the complaint regarding these employee-defendants come close to meeting the standard for individual liability under the FMLA. These Hospital employees did not exercise any independent control over plaintiff’s employment, did not violate her FMLA rights, and, as a matter of law, cannot be found liable under the FMLA. In effect, plaintiff simply complains about the employee-defendants for doing their jobs. None of these employees is an “employer” within the meaning of the FMLA and, therefore, all claims against them should be dismissed with prejudice. Significantly, dismissing these employee-defendants would cause no prejudice to plaintiff because she would still retain all rights and remedies against her actual employer-ERMC1-in the event liability were found. II. FACTUAL BACKGROUND A. Plaintiff’s General Allegations The complaint alleges that, while employed by ERMC as a Clinical Nurse, plaintiff suffered from what she labels a “serious health condition,” i.e., “acute lower back pain and spasms” that, according to plaintiff, entitled her to leave under the FMLA. (Compl. ¶¶ 10-39.) 1 Though plaintiff incorrectly alleges that she was employed by Defendant Cancer Treatment Centers of America, Inc. (Compl. ¶¶ 10-13), her actual employer was ERMC. Defendants’ counsel has advised plaintiff’s counsel that this allegation is mistaken, and the two corporate entities other than ERMC that plaintiff has named as defendants should not be included in this lawsuit. To date, however, plaintiff’s counsel has not agreed to withdraw plaintiff’s claims against those non-employer entities. Plaintiff’s pleading error in this regard will be addressed in future submissions. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 3 of 21 - 4 - Plaintiff makes a series of conclusory allegations about the nature of her condition, without providing dates, time frames, or particular diagnoses. (Compl. ¶¶ 23-32.) She alleges that she provided the Hospital with notes regarding her medical condition at various times, but does not specify what those alleged notes said. (Compl. ¶ 32.) The complaint contains no allegation that plaintiff ever asked for leave, under the FMLA or otherwise. The majority of plaintiff’s specific factual allegations are about events beginning in the summer of 2014 and continuing through November 2014. She alleges that she had an unspecified “procedure” in August 2014. (Compl. ¶¶ 34-36.) The complaint contains 13 paragraphs describing the death of plaintiff’s husband in October 2014 and an apparent disagreement with the Hospital about whether she could have applied bereavement time to take six days off during that period. (Compl. ¶¶ 40-52.) Plaintiff alleges that, in November 2014, she was “reprimanded” and put on a performance improvement plan for “incidents” that had occurred in 2013 and 2014. (Compl. ¶¶ 54-55; Ex. 2.) The next events recounted in the complaint allegedly occurred three months later in January 2015, when plaintiff took a week off from work, allegedly due to back pain. (Compl. ¶¶ 56-68.) Plaintiff alleges that she was out for the entire workweek ending January 16, 2015. (Compl. ¶¶ 56-63.) She then claims that she returned to work on January 19, 2015, but was out again for a dermatological appointment-“unrelated to her back problems”-on January 20, 2015. (Compl. ¶¶ 66.) Plaintiff mentions that she also saw her primary care doctor that day regarding her back, and that she “obtained a physician’s note” from that doctor and gave it to the Hospital. (Compl. ¶¶ 67-68.) Plaintiff alleges she was terminated on January 21, 2015, for having 17 unexcused absences and for making an error when treating a patient (Compl. ¶¶ 70-73), but she claims the Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 4 of 21 - 5 - patient-care error “was not Plaintiff’s responsibility” because the patient was assigned to a psychiatrist (Compl. ¶¶ 74-77). Significantly, plaintiff does not make any allegation disputing that she had 17 unexcused absences, nor does the complaint otherwise discuss plaintiff’s unexcused absences. Plaintiff does not suggest that she ever requested FMLA leave or that the Hospital ever told her she could not have FMLA leave. Nor does the complaint contain any allegations suggesting ERMC had any reason to believe that she needed or was entitled to FMLA leave. Nevertheless, plaintiff baldly asserts that the Hospital violated her rights and retaliated against her by not giving her FMLA leave (which she did not request and was not entitled to) and by terminating her. (Compl. ¶¶ 79-107.) B. Plaintiff’s Allegations Against the Three Employee-Defendants As to the three employee-defendants, plaintiff alleges as follows. 1. Ms. Molnar With respect to Ms. Molnar, plaintiff makes a single allegation regarding a single telephone call during which the employee-defendants allegedly communicated to plaintiff that her employment was terminated: In attendance on the Wednesday, January 21, 2015 conference call, terminating Plaintiff s employment, were Plaintiff and Defendants Stellavato, Molnar and Wilcox. (Compl. ¶ 72.) Ms. Molnar’s name does not appear anywhere else in the complaint, other than in a preliminary paragraph alleging her place of residence. (Compl. ¶ 6.) 2. Ms. Wilcox With respect to Ms. Wilcox, the complaint alleges: Plaintiff contacted Defendant CTCA’s Taba Wilcox in the Human Resources department and confirmed Defendant CTCA’s three (3) day bereavement policy at Plaintiff s inquiry. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 5 of 21 - 6 - (Compl. ¶ 46.) Plaintiff further alleges: In attendance on the Wednesday, January 21, 2015 conference call, terminating Plaintiff s employment, were Plaintiff and Defendants Stellavato, Molnar and Wilcox. (Compl. ¶ 72.) The only other allegation about Ms. Wilcox is a non-substantive one setting forth her alleged residence. (Compl. ¶ 7.) 3. Ms. Stellavato Plaintiff’s allegations against Ms. Stellavato appear in ten paragraphs and are as follows. The complaint alleges Ms. Stellavato approved days off for plaintiff on August 7 and 12, 2014. (Compl. ¶ 35.) After plaintiff had been out of work allegedly due to the death of her husband in October 2014, she received an e-mail from Ms. Stellavato regarding her remaining sick and vacation time, noting that she had used up almost all of it and was not authorized to take additional days off. (Compl. ¶¶ 47; Ex. 1.) Also, plaintiff alleges (without specifying whether Ms. Stellavato knew or could have known plaintiff’s reason for requesting more time off) that Ms. Stellavato did not apply bereavement time to plaintiff’s absences, and would not have counted those days as sick time if she had. (Compl. ¶¶ 48-50.) Plaintiff further alleges that she “experienced increased hostility” from Ms. Stellavato and others when she returned to work after taking time off allegedly due to her husband’s passing. (Compl. ¶ 52.) She claims that Ms. Stellavato put her on a personal improvement plan on November 25, 2014, for continued disciplinary issues that dated back to the previous year. (Compl. ¶¶ 54-55; Ex. 2.) Finally, plaintiff mentions that, on January 20, 2015, Ms. Stellavato called plaintiff to tell her not to report to work the next day, and that she participated in a conference call on January 21, 2015 during which plaintiff was terminated. (Compl. ¶¶ 69, 72.) Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 6 of 21 - 7 - As with the other employee-defendants, plaintiff also alleges Ms. Stellavato’s residence. (Compl. ¶ 5.) III. LEGAL STANDARD In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court must determine “whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than merely allege the plaintiff’s entitlement to relief; it must “show such an entitlement with its facts.” Id. (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alterations in original). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. To survive a motion to dismiss under Rule 12(b)(6), “a plaintiff must allege facts sufficient to ‘nudge [his or her] claims across the line from conceivable to plausible.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570) (alteration in original). In the Third Circuit, a defendant may assert a statute of limitations defense by Rule 12(b)(6) motion. See Brown v. Montgomery Cnty., 470 Fed. App’x 87, 90 (3d Cir. 2012) (quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)) (“[U]nder the law in this Circuit (the so-called ‘Third-Circuit Rule’), such a defense may be asserted by Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 7 of 21 - 8 - motion to dismiss if ‘the time alleged in the statement of claim shows that the cause of action has not been brought within the statute of limitations.’”). In other words, “[i]f the limitations bar is apparent on the face of the complaint, then it may be the basis for dismissal of the complaint under Rule 12(b)(6).” N’Jai v. Floyd, No. 07-1506, 2009 WL 4823839, at *5 (W.D. Pa. Dec. 9, 2009), aff’d, 386 Fed. App’x 141 (3d Cir. 2010)). IV. ARGUMENT A. The Claims Against Each of the Employee-Defendants Must Be Dismissed Because None Are “Employers” As Defined By the FMLA. For plaintiff to survive a motion to dismiss by an employee-defendant, she must plausibly allege facts establishing that the employee-defendant was in fact plaintiff’s “employer” within the meaning of the FMLA. 29 U.S.C. § 2611(4)(A)(ii). If plaintiff cannot make this required showing as to any employee-defendant, then her FMLA claim against that employee-defendant must be dismissed. See, e.g., Kaskey v. Osmose Holdings, Inc., No. 13-4825, 2014 WL 1096149, at *4 (E.D. Pa. Mar. 20, 2014) (dismissing analogous FLSA claim against employee- defendant because “[plaintiff] has not plausibly pled that [employee-defendant] was [plaintiff’s] employer”). The FMLA defines “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii). Recent decisions have recognized that only in narrow circumstances may an individual employee be treated as an “employer” for purposes of the FMLA. Specifically, as the Third Circuit first recognized in Haybarger v. Lawrence County Adult Probation and Parole, “an individual is subject to FMLA liability when he or she exercises ‘supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation’ while acting in the employer’s interest.” 667 F.3d 408, 417 (3d Cir. 2012) (quoting Riordan v. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 8 of 21 - 9 - Kempiners, 831 F.2d 690, 694 (7th Cir. 1987)). The Haybarger court further explained that an individual supervisor only has the requisite authority over the complaining employee “when the supervisor ‘independently exercise[s] control over the work situation.’” Id. (quoting Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984)). While recognizing that various circumstances may be relevant to this analysis, the Third Circuit in Haybarger identified four particular factors that courts should consider. These are whether the employee-defendant: (1) had the power to hire and fire the employee, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records. Id. at 418 (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)). Accordingly, for plaintiff’s FMLA claims against the employee-defendants to survive dismissal, plaintiff must set forth allegations sufficient to meet the Haybarger test as to each employee-defendant to establish that each such employee-defendant can be held liable as an “employer” within the meaning of the FMLA. As set forth below, plaintiff has not done so, and she cannot. B. Plaintiff Has Not Plausibly Alleged That Any Employee Defendant Is an “Employer” Within the Meaning of the FMLA. Plaintiff’s allegations against the employee-defendants do not meet the Haybarger standard, nor any of the individual factors identified therein that are necessary to transform an employee into a statutory “employer” under the FMLA. Accordingly, all claims against the employee-defendants should be dismissed. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 9 of 21 - 10 - 1. Plaintiff’s Allegations Against Devree Molnar Are Insufficient to Impose Individual FMLA Liability. Ms. Molnar’s name appears exactly once in the complaint: Plaintiff alleges Ms. Molnar was “[i]n attendance on” a single conference call with plaintiff in which Ms. Stellavato allegedly communicated to plaintiff that she was terminated. (Compl. ¶ 72.) This single, bare allegation fails as a matter of law to convert an employee who brings home a paycheck every two weeks into an “employer” with potential liability under the FMLA. See Santee v. Lehigh Valley Health Network, Inc., No. 13-3774, 2013 WL 6697865, at *9 (E.D. Pa. Dec. 19, 2013) (dismissing FMLA claims against individual vice president based on allegations that vice president had merely participated in certain communications with plaintiff about alleged FMLA issues). And the complaint is devoid of any allegations as to whether Ms. Molnar had any hiring or firing power, could control wages or work conditions, or had any decision-making authority regarding FMLA eligibility. See Freeman v. Philadelphia Housing Authority, No. 12-1422, 2012 WL 3235323, at *9 (E.D. Pa. Aug. 8, 2012) (dismissing FMLA claim against individual employee of defendant because allegations were “sparse at best” and “[a]t no point in his pleading [did] Plaintiff discuss [employee-defendant’s] role in the company and authority over Plaintiff's employment”). Because plaintiff’s claims against Ms. Molnar fall woefully short of the Haybarger standard, they must be dismissed at this stage. 2. Plaintiff’s Allegations Against Taba Wilcox Are Insufficient to Impose Individual FMLA Liability. The only allegations about Ms. Wilcox (appearing in a total of two paragraphs) relate to an irrelevant grievance by plaintiff about a Hospital bereavement policy and Ms. Wilcox’s alleged participation on a telephone call. Specifically, plaintiff alleges that, after she had taken days off related to the death of her husband, she contacted Ms. Wilcox to ask about the Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 10 of 21 - 11 - Hospital’s bereavement policy. (Compl. ¶ 46.) She later alleges that Ms. Wilcox was one of three people on the telephone call informing plaintiff of her termination. (Compl. ¶ 72.) These sparse allegations-which say nothing about whether Ms. Wilcox had supervisory authority over plaintiff and have no discernible connection to the FMLA matters about which plaintiff complains-do not meet the Haybarger standard. Plaintiff does not allege that Ms. Wilcox had the power to fire her, that Ms. Wilcox supervised or controlled her work, or that Ms. Wilcox had anything to do with the determination of her pay. Nor does plaintiff allege that Ms. Wilcox had any responsibility for any alleged FMLA violation. Indeed, it is fatal to plaintiff’s claim that there is no suggestion Ms. Wilcox ever interfered with plaintiff’s FMLA rights or that she even had any ability to do so. In Santee, the court dismissed an FMLA claim asserted against an individual human resources employee who allegedly received complaints from plaintiff about FMLA-related mistreatment and failed to resolve them. 2013 WL 6697865 at *9. The Santee court found that the plaintiff’s allegations failed to establish that the human resources employee had supervisory authority over plaintiff or was responsible for her termination while acting in the interest of the employer. Id. The court also found dispositive that the plaintiff did not plausibly allege the human resources employee had the power to hire and fire plaintiff, supervised or controlled her work schedule or conditions of employment, or determined her pay, among other things. Id. Similarly, here, Ms. Wilcox is employed by the Hospital’s human resources department, but plaintiff’s allegations lack any suggestion that Ms. Wilcox has any of the characteristics of an “employer” necessary for FMLA liability to attach to her. See Crittendon v. Arai Americas, Inc., No. 2:13-CV-567, 2014 WL 354517, at *5 (E.D. Va. Jan. 28, 2014) (“Defendant’s human resources position is not enough, absent some additional showing, to demonstrate that she Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 11 of 21 - 12 - exerted substantial control over Plaintiff’s FMLA rights.”). The allegations against Ms. Wilcox are simply not sufficient as a matter of law to state a claim for individual liability under the FMLA and, therefore, Ms. Wilcox should be dismissed from this lawsuit. 3. Plaintiff’s Allegations Against Debra Stellavato Are Insufficient to Impose Individual FMLA Liability. The purported basis for plaintiff’s claims against Ms. Stellavato is found mainly in allegations relating both to plaintiff’s frequent absences from work and performance issues, and the resulting discipline she received. (Compl. ¶¶ 47-50; 52, 54-55; 69.) Ms. Stellavato allegedly conveyed to plaintiff the disciplinary measures the Hospital took to try to improve her performance and, ultimately, Ms. Stellavato informed plaintiff that her employment with the Hospital would end. (Compl. ¶¶ 54-55; 69, 72.) None of these allegations are sufficient to support a claim for individual FMLA liability against Ms. Stellavato. Four of the allegations against Ms. Stellavato (i.e., nearly half of them) involve plaintiff’s return from work after taking three days off due to the death of her husband in October 2014. (Compl. ¶¶ 47-50.) Plaintiff alleges that Ms. Stellavato sent an e-mail indicating she did not apply bereavement time to that absence, and suggests that, had she done so, three of plaintiff’s absences would have been recorded as bereavement time and not sick time.2 (Compl. ¶¶ 47-48; Ex. 1.) The allegations regarding bereavement time are facially irrelevant to plaintiff’s FMLA claim and cannot form the basis of an individual claim against Ms. Stellavato. 2 Plaintiff does not allege that counting three of her absences as “bereavement days” rather than “sick time” would have changed the Hospital’s decision to terminate her employment, and she alleges elsewhere in the complaint that one of the stated reasons for her termination was “seventeen (17) unexcused absences.” (Compl. ¶ 73 (emphases added).) It is therefore clear that plaintiff’s allegations regarding bereavement time have nothing to do with her FMLA claim, since she does not allege that those absences were “unexcused,” nor does she allege that classifying those three days differently could have affected the Hospital’s alleged conclusion that her absences were excessive (i.e., that 14 “unexcused” absences would have been viewed much more favorably than 17 of them). Plaintiff also does not even allege that the three alleged bereavement days were in fact recorded as “sick time.” Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 12 of 21 - 13 - The remainder of the allegations against Ms. Stellavato assert variously that she approved two days off for plaintiff in August 2014 (Compl. ¶ 35), that she was among a group of people at the Hospital who allegedly showed “hostility” to plaintiff (Compl. ¶ 52), that she “reprimanded” plaintiff for performance issues and put her on a performance improvement plan (Compl. ¶¶ 54- 55), that she instructed plaintiff not to report to work on January 21, 2015 (Compl. ¶ 69), and that she was on a group conference call during which plaintiff’s employment was terminated (Compl. ¶¶ 72-73). While plaintiff provides more substantial detail regarding Ms. Stellavato as compared with Ms. Molnar and Ms. Wilcox, her allegations against Ms. Stellavato nevertheless do not meet the Haybarger standard. The complaint does not allege that Ms. Stellavato had supervisory authority over plaintiff or any authority to approve or deny FMLA leave requested by plaintiff.3 Though plaintiff alleges Ms. Stellavato communicated plaintiff’s termination to her, it does not allege that Ms. Stellavato had any independent power to make hiring or firing decisions, that she supervised or controlled employee work schedules or conditions of employment (apart from a single allegation that she approved two days off for plaintiff), that she made pay determinations, or that she had any responsibility for employee recordkeeping. Haybarger, 667 F.3d at 418. In effect, plaintiff appears to suggest that Ms. Stellavato should be held personally liable under the FMLA merely for carrying out ordinary job duties in her capacity as a managerial employee of the Hospital, including managing plaintiff’s performance issues. But the question under Haybarger is not simply whether an individual played any role in an employee’s performance management or termination. Instead, it is “whether the individual . . . carried out 3 It bears repeating that nowhere does the complaint even allege that plaintiff ever asked for FMLA leave or gave Ms. Stellavato or any other Hospital employee reason to believe she needed such leave. And, in fact, it was not within Ms. Stellavato’s power to grant or deny FMLA leave anyway, since such decisions are made by a third- party administrator, Unum. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 13 of 21 - 14 - the functions of an employer with respect to the employee.” Id. at 417 (emphasis added). Ms. Stellavato plainly did not carry out such functions because she did not have independent power to hire or fire plaintiff, did not have supervisory authority over her, did not determine her pay, and is not alleged to have had any other function suggesting she should be treated as a statutory FMLA “employer.” Cf. Kaskey, 2014 WL 1096149, at *4 (dismissing FLSA claim against individual employee under Haybarger analysis where plaintiff alleged only that individual “acted as Plaintiff[’s] direct superior” and “was solely and exclusively responsible for entering time for Plaintiff”). Accordingly, the claims against Ms. Stellavato should be dismissed. C. Plaintiff’s Claims Against All Defendants Must Be Dismissed. Plaintiff’s claims against all defendants (both the employee-defendants and the corporate defendants) must be dismissed in their entirety for two reasons. First, plaintiff’s claims are time- barred to the extent she bases them on events that allegedly occurred outside the FMLA’s two- year statute of limitations. Plaintiff did not commence this action until January 13, 2017, yet her complaint is strewn with allegations regarding events that occurred well outside the two-year period. As set forth below, any FMLA claim based on acts allegedly occurring before the beginning of the applicable two-year limitations period is time-barred. Second, the events that plaintiff claims to have occurred within the applicable limitations period (such as the termination of her employment) are not sufficient to state a claim for FMLA interference or retaliation because they do not establish that plaintiff was covered by the FMLA during the relevant period. 1. Plaintiff’s FMLA Claims Against All Defendants Are Time-Barred to the Extent She Bases Them on Allegations of Conduct More Than Two Years Before She Filed Suit. To assert a timely FMLA claim, a plaintiff must file suit “not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 14 of 21 - 15 - 29 U.S.C. § 2617(c)(1).4 Here, plaintiff filed suit on January 13, 2017. Therefore, in attempting to make out any FMLA claim, plaintiff may only rely on events that allegedly occurred after January 13, 2015. See Clark v. Philadelphia Housing Auth., No. 14-5460, 2015 WL 1822528, at *2-3 (E.D. Pa. Apr. 21, 2015) (emphasis added) (analyzing sufficiency of FMLA plaintiff’s pleading as question whether “Plaintiff has stated a claim for interference or retaliation under the FMLA based on events that occurred after” the date two years prior to filing of suit). Any claims based on events allegedly occurring on or before January 13, 2015 are time-barred. Id. These time-barred claims include allegations contained in:  paragraph 33 about an alleged “standard of conduct award” received in June 2014;  paragraphs 34-36 about an August 2014 “procedure”;  paragraph 37 about “bonuses” plaintiff allegedly received on September 26, 2014;  paragraphs 38-39 about plaintiff going home due to back pain on September 29, 2014;  paragraphs 40-53 about plaintiff’s husband passing away, her absences for “bereavement,” and “hostility” shown toward her on her return to work, occurring during October 2014;  paragraphs 54-55 about performance-related discipline plaintiff received in November 2014; and  paragraphs 56-58 and 61-63 about plaintiff’s absences due to back pain and spasms on January 12, 2014 through January 13, 2014. Significantly, plaintiff cannot rely on the continuing violation doctrine to cure this defect. That doctrine, which in some circumstances can permit a court to hear claims based on acts occurring outside an applicable limitations period, is categorically inapplicable to FMLA claims. Clark, 2015 WL 1822528, at * 3 (agreeing with weight of authority that plaintiffs cannot 4 The FMLA also provides that plaintiffs have three years within which to bring claims for willful violations of its provisions. 29 U.S.C.A. § 2917(c)(2). “To successfully allege a willful violation of the FMLA, the plaintiff must show that the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Caucci v. Prison Health Services, Inc., 153 F. Supp. 2d 605, 609 (E.D. Pa. 2001) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988)). Plaintiff does not allege any willful violation, nor could the substance of her factual allegations support any claim of willfulness. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 15 of 21 - 16 - aggregate discrete acts to link untimely allegations with timely ones for purposes of FMLA claims). Under the continuing violations doctrine, “discriminatory acts that are not individually actionable may be aggregated . . . ; such acts can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (internal quotation marks and citation omitted). But “[t]he doctrine arose in the context of discrimination claims, and ‘the weight of authority leans decidedly against’ applying the continuing violation doctrine to FMLA claims.” Clark, 2015 WL 1822528, at * 3 (quoting Smith v. Westchester Cnty., 769 F.Supp.2d 448, 463 n. 14 (S.D.N.Y. 2011)) (emphasis added). That is because “claims under the FMLA are more likely to be discrete events, akin to a request for reasonable accommodation under the Americans with Disabilities Act, which the Court of Appeals has held ‘does not fit under the continuing violations theory.’” Id. (quoting Mercer v. SEPTA, 608 Fed. App’x 60, 63 (3d Cir. Apr. 1, 2015)). Here, plaintiff alleges a single act by the Hospital within the limitations period that she claims violated the FMLA: her termination on January 21, 2015. (Compl. ¶ 70.) The continuing violation doctrine does not apply to any of the earlier alleged acts, because courts consider such acts separate, actionable unlawful practices. AMTRAK v. Morgan, 536 U.S. 101, 114 (2002); O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006); see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 113 (2002) (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.”). Thus, plaintiff must rely solely on events that allegedly occurred after January 13, 2015. See Harris v. SmithKline Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 16 of 21 - 17 - Beecham, 27 F. Supp. 2d 569, 577 (E.D. Pa. 1998) (“[Plaintiff] has not established that she may proceed under a continuing violation theory, and the untimely allegations of [plaintiff] will not be considered by the Court in assessing her claims.”). The Court may not consider plaintiff’s untimely allegations in deciding this motion. 2. Plaintiff’s Post-January 13, 2015 Allegations Fail to State a Claim for FMLA Interference or Retaliation Because She Was Not Covered by the FMLA. Plaintiff’s claims are fatally flawed because plaintiff cannot establish any actionable FMLA interference or retaliation within the limitations period. She does not allege that she ever asked for FMLA leave. Nor does she allege that the Hospital should have had any reason to believe she needed such leave after January 13, 2015. Accordingly, and as discussed below, plaintiff was not covered by the FMLA during the relevant period and, therefore, all of her FMLA claims against all defendants must be dismissed. a. Plaintiff’s FMLA Interference Claim Fails Because She Gave the Hospital No Reason to Think She Needed FMLA Leave. To qualify for FMLA leave, an employee must give the employer adequate notice of the need for FMLA leave. Schaar v. Lehigh Valley Health Serv., Inc., 598 F.3d 156, 158 (3d Cir. 2010). To state a claim for FMLA interference, a plaintiff must plead, among other things, that she was entitled to leave under the FMLA, she gave notice to the defendant of her intention to take FMLA leave, and she was denied FMLA benefits. Figueroa v. Merritt Hospitality, LLC, No. 11-1807, 2011 WL 4389585, at *3 (E.D.Pa. Sept. 21, 2011). Nowhere in the complaint does plaintiff allege that she ever requested FMLA leave. Moreover, the hollow allegations attempting to retroactively refashion an ordinary absence into a cry for FMLA benefits are insufficient as a matter of law. All that plaintiff alleges is that she called out of work for a few days the week before she was terminated: Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 17 of 21 - 18 -  On January 15, 2015, plaintiff allegedly attended a series of medical appointments, including “chiropractic care” and “emergency care” related to her back, which she alleges caused her to stay home from work through Friday, January 16, 2015. (Compl. ¶¶ 57- 65.)  On January 15, 2015, plaintiff’s doctor wrote a note saying that she needed “2-3 additional days off work.” (Compl. ¶ 60.)  Plaintiff then called the Hospital during that workweek to say that she would not be in on certain days and was seeking treatment for back pain. (Compl. ¶ 61.)  Plaintiff came back to work on January 19, 2015. (Compl. ¶ 65.)  Plaintiff was out again for a dermatological appointment on January 20, 2015 (Compl. ¶ 66.) Such innocuous allegations do not plausibly establish that plaintiff gave the Hospital adequate notice that she needed FMLA leave during the workweek ending January 16, 2015. The law is quite clear that “[m]erely calling in sick does not meet the employee’s burden.” Hayduk v. City of Johnstown, 580 F. Supp. 2d 429, 456 (W.D. Pa. 2008) (citing Stevenson v. Hyre Elec. Co., 505 F.3d 720, 725 (7th Cir. 2007) and Collins v. NTNBowerCorp., 272 F.3d 1006, 1008 (7th Cir. 2001)); see also Beaver v. RGIS Inventory Specialists, Inc., 144 Fed. App’x 452, 456-57 (6th Cir. 2005) (holding that employee’s communication to employer that she “needed a couple days to get better, a few days” was insufficient for employer to conclude that employee needed FMLA leave). Plaintiff does not allege that she requested, or that the Hospital denied, any FMLA leave, nor does she plausibly allege that the Hospital should have interpreted her request for a few days off as a request for FMLA leave, especially since she returned to work after those few days of excused absence. Not having asked for FMLA leave, either explicitly or implicitly, plaintiff could not have been improperly denied any FMLA benefits. “The FMLA does not require an employer to be clairvoyant.” Hayduk, 580 F. Supp. 2d 429 at 471 (citation omitted). Plaintiff’s assertion appears to be that the Hospital should Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 18 of 21 - 19 - somehow have known on January 20, 2015 that she needed FMLA leave for her back condition.5 But plaintiff herself alleges she had been back at work on January 19, 2015, and told the Hospital she needed a day off to attend a dermatological appointment on January 20, 2015 (Compl. ¶ 66.) The allegation that plaintiff told the Hospital she had a completely unrelated appointment to see a dermatologist on January 20, 2015 demonstrates that she gave the Hospital no inkling that she might need FMLA leave. And it forecloses any claim that the Hospital could have known plaintiff wanted FMLA leave for an alleged back condition-a condition that she admits had not prevented her from coming to work the day before. Plaintiff cannot plausibly tie these events to FMLA requirements by claiming to have given the Hospital a note from her primary care physician about her back on January 20, 2015-the very day that the Hospital told her it was already in the process of evaluating her employment status as a result of other performance and attendance issues. (Compl. ¶¶ 68-73.)6 Plaintiff’s FMLA interference claim should be dismissed. 5 Even to the extent that the Court considers plaintiff’s allegations of earlier communication from plaintiff to the Hospital about her back, the last time plaintiff allegedly raised her back issues with the Hospital was nearly four months earlier than the alleged January 2015 events. Specifically, she alleges that on a single day, September 29, 2014, she left work due to back pain and spasms, and “went to the doctor” for those symptoms. (Compl. ¶¶ 38-39.) All of the allegations regarding the period between September 29, 2014 and January 2015 relate to the death of plaintiff’s husband and have nothing to do with her FMLA claim. 6 To the extent plaintiff attempts to rely on the series of conclusory allegations in Count I of the complaint regarding the Hospital’s alleged failure to advise her of her FMLA rights, such reliance is misplaced, because plaintiff does not allege any resulting harm. See Hepner v. Thomas Jefferson Univ. Hospitals, Inc., No. 12- 5443, 2013 WL 2334148, at *5 (E.D. Pa. May 29, 2013) (dismissing terminated employee’s claims based on employer’s alleged failure to designate absences as FMLA leave and failure to advise employee of FMLA rights because complaint “set[] forth no facts concerning what harm, if any, [employee] suffered as a consequence of [employer’s] failure to designate or notify him of FMLA leave”). Plaintiff alleges she was terminated on January 21, 2015, after taking a series of days off for an alleged medical issue, but she does not allege that she would have taken more than a few days off for that issue had the Hospital explicitly advised her of her FMLA rights at that time. And, as noted above, she returned to work on January 19, 2015, indicating that she did not need any more than the “2-3” days off that her doctor allegedly recommended. (Compl. ¶ 60.) Moreover, plaintiff alleges she was terminated not because of her excused absences that week, but “as a result of seventeen (17) unexcused absences and for not properly marking the records of a patient to indicate said patient was a fall risk.” (Compl. ¶ 73 (emphasis added).) Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 19 of 21 - 20 - b. Plaintiff’s FMLA Retaliation Claim Fails Because She Gave the Hospital No Reason to Think She Needed FMLA Leave. Plaintiff’s retaliation claim fails for the same reason her interference claim does. Plaintiff was never covered by the FMLA because she never indicated she needed FMLA leave. Like an FMLA interference claim, an FMLA claim for retaliation must be predicated on a showing that the plaintiff “is protected under the FMLA,” which in turn requires proper notice to the employer of the employee’s intention to take FMLA leave. Stranzi v. Delaware Cnty., No. 13-1393, 2014 WL 3418996, at *13 (E.D. Pa. July 14, 2014). Plaintiff’s general allegations that she called out of work for a few days, and that she subsequently returned to work (Compl. ¶¶ 61, 65, 70), are simply insufficient as a matter of law to sustain an FMLA retaliation claim. See Scobey v. Nucor Steel-Arkansas, 580 F.3d 781, 786 (8th Cir. 2009) (citing Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 472 (8th Cir. 2007)) (noting that employee’s notice must enable employer to distinguish between ordinary sick days and leave related to serious health condition), cited with approval in Grosso v. UPMC, 857 F. Supp. 2d 517, 543-43 (M.D. Pa. 2012) (“The post hoc characterization by Grosso’s counsel of her hypoglycemic incidents as FMLA leave does little more than establish that Grosso never took leave-or invoked any right to FMLA leave-in the first place.”). Simply put, the complaint does not contain any timely, plausible allegations that plaintiff gave the Hospital notice of any need for FMLA leave. Her FMLA retaliation claims should be dismissed along with her FMLA interference claims. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 20 of 21 - 21 - V. CONCLUSION For all of the above reasons, Defendants, Eastern Regional Medical Center, Inc., Cancer Treatment Centers of America Global, Inc., Cancer Treatment Centers of America Professional Corporation of Pennsylvania, PC, Debra Stellavato, Devree Molnar, and Taba Wilcox, respectfully request that the Court dismiss plaintiff’s complaint in its entirety, with prejudice. March 27, 2017 Respectfully submitted, /s/ Adam D. Brown Michael D. O’Mara, Esq. Adam D. Brown, Esq. STRADLEY RONON STEVENS & YOUNG, LLP 2005 Market St., Suite 2600 Philadelphia, PA 19103 (215) 564-8000 (215) 564-8120 (fax) Attorneys for Defendant, Eastern Regional Medical Center, Inc. Case 2:17-cv-00207-NIQA Document 11-2 Filed 03/27/17 Page 21 of 21 CERTIFICATE OF SERVICE I, Adam D. Brown, hereby certify that on March 27, 2017, I caused a true and correct copy of the foregoing to be filed via the Court’s ECF system, which constitutes service upon the following: Karen Eichman, Esq. EICHMAN LAW 8 Federal Road Suite 3 West Grove, PA 19390 (484) 734-0378 (855) 529-3276 (fax) Attorneys for Plaintiff /s/ Adam D. Brown Adam D. Brown Case 2:17-cv-00207-NIQA Document 11-3 Filed 03/27/17 Page 1 of 1