United States District Court, D. Nevada
ORDER (Def's Motion to Dismiss - dkt. no. 43)
MIRANDA M. DU, District Judge.
Before the Court is Defendant Newmont USA Limited's Motion to Dismiss Third Amended Complaint. (Dkt. no. 43.) For the reasons discussed below, the motion is granted.
Plaintiff Anthony Rains alleges that he was employed by Defendant as a "miner working the shotcrete truck position" beginning in 2008. (Dkt. no. 42 ¶ 3.) Plaintiff states that he had a foot and ankle injury ( id. ¶ 4), and a heart complication that required time off from work ( id. ¶ 5). According to Plaintiff, he returned to work from an unspecified period of "medical leave" on November 15, 2011, and was demoted for his absences. ( Id. at ¶ 9.) That same day, Plaintiff alleges he "decided that for safety reasons, he would not be able to finish his shift" and "requested permission to leave due to his serious mental and emotional health condition caused by the demotion." ( Id. at ¶ 11.) Plaintiff's supervisor allegedly told him he could leave but that he "could get a write-up." ( Id. ) Plaintiff states that he left anyway and was suspended on November 16, 2011, and terminated on November 20, 2011, because he "abandoned his job[.]" ( Id. at ¶¶ 11, 13.)
In the Third Amended Complaint ("TAC"), Plaintiff brings a claim for interference under the Family Medical Leave Act ("FMLA") and a claim for tortious discharge. Defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Dkt. no. 43.) Plaintiff filed an opposition (dkt. no. 44) and Plaintiff filed a reply (dkt. no. 45.)
A. Legal Standard
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Rule 8 notice pleading standard requires Plaintiff to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555. (internal quotation marks and citation omitted). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal citation omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged-but not shown-that the pleader is entitled to relief." Id. at 679 (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.
A complaint must contain either direct or inferential allegations concerning "all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562 ( quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)).
B. Family Medical Leave Act
To establish a claim for interference under the FMLA, Plaintiff must allege: (1) that he exercised his rights under the FMLA; (2) Defendant engaged in activity designed to chill his exercise of those rights; and (3) Defendant's activities were motivated by the exercise of those rights. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124-26 (9th Cir. 2001). Under the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period... [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves: (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).
In this Court's order dismissing Plaintiff's Second Amended Complaint ("SAC"), the Court found that Plaintiff failed to sufficiently allege that he exercised his rights under the FMLA. (Dkt. no. 41 at 4.) The same is true regarding the TAC. In fact, the TAC changes very little from the SAC. The TAC clarifies that it makes two claims of interference: (1) that Defendant used Plaintiff's "pre-demotion leave" as a negative factor in demoting and terminating him; and (2) that Defendant used Plaintiff's "post-demotion leave" ...