United States District Court, D. Maine
ORDER ON THE DEFENDANT'S MOTION TO
LEVY, CHIEF U.S. DISTRICT JUDGE
Geyer Waterman, who is self-represented in this proceeding,
seeks damages against his former employer, Paul G. White
Interior Solutions (“White Interior Solutions”),
for violations of the Family Medical Leave Act
(“FMLA”) and for defamation (ECF No. 1). White
Interior Solutions moves to dismiss the complaint for failing
to state a claim upon which relief can be granted (ECF No.
12). Additionally, in a surreply to the motion to dismiss,
Waterman seeks leave to amend the damages alleged in his
complaint (ECF No. 15). For the following reasons, I deny the
motion to dismiss with respect to the complaint's FMLA
retaliation claim, grant the motion to dismiss with respect
to the FMLA interference claim and the defamation claim, and
grant Waterman leave to amend his complaint.
purposes of the motion to dismiss, I treat the following
facts as true: Waterman began working for White Interior
Solutions as a floor finisher and installer on August 4,
2015. Waterman's father had been diagnosed
with three illnesses: degenerative bone disease, polycythemia
blood disease, and a ruptured aorta. On or around April 8,
2018, Waterman's stepmother told Waterman that she had
spoken with his father's doctor, and the doctor said his
father would “most likely die” if he did not
immediately return to the doctor for tests and treatment. ECF
No. 1 at 7; ECF No. 13 at 3. Waterman had known about his
father's worsening condition for weeks, and he had shared
this information with his supervisor and two coworkers.
However, Waterman did not know that his father was near death
until this conversation with his stepmother.
missed work to care for his ill father from April 9 to April
16. Waterman left a voicemail with his supervisor on April 9,
pursuant to alleged company policy. On April 10, he left a
voicemail with Jonathan White, a co-owner of White Interior
Solutions, explaining his father's situation. Neither
Waterman's supervisor nor White responded to the
voicemails. When Waterman did not appear for his shift on
April 16, White sent him a Facebook message asking where he
was. On April 17, Waterman responded that his father was
“still pretty bad off[, ] gets out of bed a couple
hours here and there during the day.” ECF No. 1-5 at 2.
White advised Waterman to call his supervisor, and Waterman
responded by sending several argumentative Facebook messages.
White then messaged Waterman, “[D]on't worry about
your job[.] You left, ” and “[Y]ou abandoned your
job according to everyone.” ECF No. 1-5 at 4-5. After
Waterman continued to send argumentative messages, White
responded by instructing him not to return to White Interior
Interior Solutions moves to dismiss the claims against it
under Rule 12(b)(6) for failure to state a claim upon which
relief may be granted. Fed.R.Civ.P. 12(b)(6). To survive a
motion to dismiss, the complaint “must contain
sufficient factual matter to state a claim to relief that is
plausible on its face.” Rodríguez-Reyes v.
Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013)
(internal quotation omitted). Courts apply a two-pronged
approach in resolving a motion to dismiss.
Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011). First, courts must identify
and disregard statements in the complaint that merely offer
legal conclusions couched as factual allegations.
Id. (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). Second, courts “must determine
whether the remaining factual content allows a reasonable
inference that the defendant is liable for the misconduct
alleged.” A.G. ex rel. Maddox v. Elsevier,
Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quotation marks
and citation omitted). Generally, courts will accept all
well-pleaded facts as true and draw all reasonable inferences
in the plaintiff's favor.
Rodríguez-Reyes, 711 F.3d at 52-53.
Determining the plausibility of a claim is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 53 (quoting Iqbal, 556 U.S. at 679).
Plaintiffs “need not plead facts sufficient to
establish a prima facie case, ” but the elements of a
prima facie case “are part of the background against
which a plausibility determination should be made.”
Id. at 54.
self-represented plaintiff is not exempt from this framework,
but the court must construe his complaint
“liberally” and hold it “to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Additionally, the court may consider other filings by a
self-represented plaintiff, “including his response to
the motion to dismiss, to understand the nature and basis of
his claims.” Wall v. Dion, 257 F.Supp.2d 316,
318 (D. Me. 2003); accord Sirois v. United States,
No. 2:17-cv-324-GZS, 2018 WL 2142980, at *1 (D. Me. May 9,
2018) (quoting Wall).
Family Medical Leave Act
FMLA entitles an employee to twelve weeks' leave per year
for listed family and medical reasons, such as to care for a
parent with a serious health condition.”
Carrero-Ojeda v. Autoridad de Energía
Eléctrica, 755 F.3d 711, 722 (1st Cir. 2014). To
protect this right, “the FMLA and its accompanying
regulations make it unlawful for any employer to, among other
things: (1) ‘interfere with, restrain, or deny the
exercise' of any FMLA right; or (2) retaliate or
‘discriminat[e] against employees . . . who have used
FMLA leave,' such as by ‘us[ing] the taking of FMLA
leave as a negative factor in employment actions.'”
Id. at 718 (quoting 29 U.S.C. § 2615(a)(1), 29
C.F.R. § 825.220(c)) (internal citations omitted).
complaint alleges that White Interior Solutions violated the
FMLA because it discharged Waterman for taking time off from
work to care for his ill father. Because Waterman does not
specify whether his FMLA claim is for interference or
retaliation, I analyze the complaint under both frameworks.
order to make out a prima facie case for FMLA
interference, plaintiff must show that (1) she was eligible
for the FMLA's protections; (2) her employer was covered
by the FMLA; (3) she was entitled to leave under the FMLA;
(4) she gave her employer notice of her intention to take
leave; and (5) her employer denied her FMLA benefits to which
she was entitled.” Chacon v. Brigham &
Women's Hosp., 99 F.Supp.3d 207, 213-14 (D. Mass.
2015) (citing Carrero-Ojeda, 755 F.3d at 722 n.8).
“The key issue is simply whether the employer provided
its employee the benefits to which she was entitled per the
FMLA.” Carrero-Ojeda, 755 F.3d at 722.
First Circuit has held that an employee's claim that her
employer “used her FMLA leave as a negative factor in
deciding to terminate her after she failed to show up for
work” is a retaliation claim, not an interference
claim. Mellen v. Trs. of Bos. Univ., 504 F.3d 21,
26-27 (1st Cir. 2007); see also Colburn v. Parker
Hannifin/Nichols Portland Div., 429 F.3d 325, 331-32
(1st Cir. 2005) (distinguishing between retaliation and
interference and explaining that courts should characterize a
FMLA claim as one or the other according to “the nature
of the facts and the theory of the case” instead of
according to the parties' characterizations). Thus, to
the extent that Waterman's complaint claims that White
Interior Solutions interfered with his right to FMLA leave by
discharging him for attempting to take FMLA leave, “the