United States District Court, D. Oregon, Portland Division
TODD S. JOHNSON, Plaintiff,
JONDY CHEMICALS, INC., Defendant.
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge.
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  is GRANTED.
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.
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.
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).
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.
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.
Interference under the Family and Medical Leave Act
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).
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
(1) Ha[ve] been employed by the employer for at least 12
months,  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 ...