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Johnson v. Jondy Chemical, Inc.

United States District Court, D. Oregon, Portland Division

April 13, 2017

TODD S. JOHNSON, Plaintiff,


          MICHAEL W. MOSMAN Chief United States District Judge.

         Plaintiff Todd Johnson ("Mr. Johnson") sued Defendant Jondy Chemicals, Incorporated ("Jondy") for wrongful termination alleging five claims. Jondy now moves to dismiss two of Mr. Johnson's five claims. Specifically, Jondy moves to dismiss those claims brought under the Family and Medical Leave Act ("FMLA") and the Oregon Family Leave Act ("OFLA"). For the reasons set forth below, Jondy's Motion to Dismiss for Failure to State a Claim [10] is GRANTED.


         Mr. Johnson worked as an independent contractor / salesperson for Jondy for several years prior to 2015, living and operating out of Oregon. On March 19, 2015, Mi". Johnson flew to Kentucky, and, while there, Jondy promoted him to Western Regional Sales Manager, a full-time salaried position. Mr. Johnson commenced full-time employment with Jondy on April 1, 2015. On June 9, 2015, Mr. Johnson discovered he had cancer that would require surgery. On that date or shortly thereafter, he scheduled his surgery for September 2, 2015, and informed Jondy of his condition, necessity for treatment, date of scheduled treatment, and necessity for leave pursuant to that treatment. On July 24, 2015, Jondy informed Mr. Johnson that it was terminating him from his position, with his termination effective on August 31, 2015. Mr. Johnson underwent the surgery on September 2, 2015, and received treatment for approximately four weeks following the surgery.

         Mr. Johnson filed this lawsuit on August 30, 2016, alleging violations of the FMLA, violations of the OFLA, wrongful discharge, breach of contract, and promissory estoppel. On December 29, 2016, Jondy filed a Motion to Dismiss seeking to dismiss Mr. Johnson's claims under the FMLA and the OFLA.


         When reviewing a motion to dismiss, the court must "accept all factual allegations in the complaint as hue and construe the pleadings in the light most favorable to the nonrnoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). A court need not accept legal conclusions as true because "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bel! At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading that offers only "labels and conclusions" or '"naked assertion[s]' devoid of 'further factual enhancement'" will not suffice. Id. (quoting Twombly, 550 U.S. at 555, 557). While a plaintiff does not need to make detailed factual allegations at the pleading stage, the allegations must be sufficiently specific to give the defendant "fair notice" of the claim and the grounds on which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing Twombly, 550 U.S. at 555).

         Federal Rule of Civil Procedure 15 provides that a court should freely give leave to amend a complaint ''when justice so requires." Fed.R.Civ.P. 15(a)(2). As such, when a court dismisses a complaint for failure to state a claim, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting SchreiberDistrib. Co. v. Serv-WettFurniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). If amendment would be futile, the court need not grant leave to amend. Id.


         Jondy argues that Mr. Johnson was never an "eligible employee" as required to state an interference claim under both the FMLA and the OFLA. Accordingly, Jondy posits that Mr. Johnson's FMLA and OFLA interference claims must be dismissed. I will address both claims in turn and then address whether Mr. Johnson has also pled a claim for retaliation under either statute.

         I. Interference under the Family and Medical Leave Act

         One of the purposes of the FMLA is "to entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b)(2). To serve this purpose, the FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]."M § 2615(a)(1).

         Mr. Johnson's first claim for relief alleges "FMLA Interference." Employment termination resulting from an employee exercising or attempting to exercise his FMLA leave gives rise to a claim for FMLA interference. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). To maintain an interference claim, a plaintiff must prove that "(1) he was eligible for the FMLA's protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled." Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011) (quoting Burnett v. LFW Inc, 472 F.3d 471, 477 (7th Cir. 2006)). In order to be an "eligible employee, " and thus establish the first element of an FMLA interference claim, the employee must:

(1) Ha[ve] been employed by the employer for at least 12 months, [1] and
(2) Ha[ve] been employed for at least 1, 250 hours of service during the 12-month period immediately preceding the commencement of the leave . . ., and
(3) [Have been] employed at a worksite where 50 or more employees are employed by the employer within 75 miles ...

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