United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura, Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. CHIEF JUDGE
matter is before the Court for consideration of
Defendant's Motion to Dismiss (ECF No. 13), Plaintiffs
Memorandum in Opposition (ECF No. 15), and Defendant's
Reply Brief (ECF No. 17). For the reasons that follow,
Defendant's Motion to Dismiss is GRANTED in
part and DENIED in part. (ECF
Tashana Mitchell ("Plaintiff') brought this suit
against Defendant Megan J. Brennan, Postmaster General
("Defendant"), alleging violations of the Family
Medical Leave Act, 29 U.S.C. § 2601, et seq.
("FMLA"); the Rehabilitation Act, 29 U.S.C. §
791, et seq.; and Tide VII of the Civil Rights Act,
29 U.S.C. § 2000(e), et seq. ("Title
VII"). Plaintiff is a resident of Ohio. (Am.
Compl. ¶ 1, ECF No. 9). Plaintiff has been employed by
the United States Postal Service ("USPS") since
2013, and began working in her current Custodial Services
position at the Columbus, Ohio location in June 2016.
(Id. ¶ 6).
December 7, 2016, Plaintiff informed Defendant that,
beginning that day, she would be taking intermittent FMLA
leave to care of her disabled daughter. (Id. ¶
6). Plaintiff alleges that on at least ten occasions in 2017,
she requested and was denied promotional opportunities for
204B supervisory positions, Facilitator Training, and Safety
Captain Training. (Id. ¶ 7). Plaintiff claims
that Defendant cited Plaintiffs numerous absences and
"excessive" use of FMLA as the reason for the
denials. (Id.) Additionally, Plaintiff claims that
her supervisor suggested that Plaintiffs use of FMLA was seen
as "exaggerating" her daughter's condition and
stated: "[y]ou have to be here." (Id.). On
November 10, 2017, Plaintiff filed a complaint with the Equal
Employment Opportunity ("EEO") (No. 1C-0002-18),
asserting that she was denied opportunities for upward job
mobility due to FMLA-protected absences. (Id. ¶
contends that, as a result of filing her EEO complaint,
facility managers "began to mentally and physically
harass and intimidate her" by regularly following
Plaintiff around while she performed her duties, and making
repeated comments about her "excessive" use of
FMLA. (Id. ¶ 10). Additionally, Plaintiff
asserts that after filing her first EEO complaint, she was
denied a promotional training opportunity for which a person
of less seniority was selected. (Id. ¶ 12).
Plaintiff then filed a second complaint with the EEO (No.
1C-415-0089-18), asserting that management made rude comments
about Plaintiffs work ethic, threatened her with physical
violence, and made repeated comments about her
"excessive" use of FMLA in response to Plaintiffs
FMLA absences and association with a disabled person,
(Id. ¶¶ 10-11).
October 22, 2018, Plaintiffs second EEO complaint was
dismissed as redundant to the subject matter of her first EEO
complaint. (Id. ¶ 14). On October 25, 2018,
Plaintiff received a Final Agency Decision on her first EEO
complaint giving her the option to file a lawsuit in district
court on the facts of the EEO complaint. (Id. ¶
filed suit on November 7, 2018, claiming that Defendant
violated the FMLA, the Rehabilitation Act, and Title VII of
the Civil Rights Act. (Id. ¶ 27). On May 1,
2019, Plaintiff filed an Amended Complaint. (ECF No. 9). On
June 5, 2019, Defendant moved to dismiss Plaintiffs Amended
Complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1), and failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13).
Plaintiff responded (ECF No. 15), and Defendant replied (ECF
No. 17). Defendant's Motion to Dismiss is ripe for
determine whether a complaint states a claim upon which
relief can be granted, the Court must: (1) accept the factual
allegations contained in the pleadings as true, and (2)
determine whether the factual allegations present any
plausible claim. See Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556
U.S. 662 (2009) (clarifying the plausibility standard
articulated in Twombly). "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."
Iqbal, 556 U.S. at 678. The factual allegations of a
pleading "must be enough to raise a right to relief
above the speculative level . . ." Twombly, 550
U.S. at 555. Consequently, a complaint will not be dismissed
pursuant to rule 12(b)(6) unless there is no law to support
the claims made, the facts alleged are insufficient to state
a claim, or there is an insurmountable bar on the face of the
contends that Plaintiffs allegations under the FMLA, the
Rehabilitation Act, Title VII, and "any other legal
theory" should be dismissed pursuant to Rule 12(b)(6)
for failure to state a claim. (Mot. to Dismiss at 5). The
Court will consider the sufficiency of Plaintiffs FMLA,
Rehabilitation Act, and Title VII claims in turn.
Is it Factually Plausible that Defendant Violated the
"unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any right
provided under" the FMLA. 29 U.S.C. § 2615(a)(1).
"[Interfering with" the exercise of an
employee's rights under the FMLA includes
"discouraging an employee from using [FMLA] leave."
Arban v. W. Pub. Corp.,345 F.3d 390, 402 (6th Cir.
2003) (quoting 29 C.F.R. § 825.220(b)). The FMLA also
prohibits an employer from retaliating against an employee by
using her "FMLA leave as a negative factor in employment
actions, such as hiring, promotions, or disciplinary actions
. . ." 29 C.F.R. § 825.220(c). Thus, an employer
cannot interfere with an ...