Germanowski v. Harris , 854 F.3d 68 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1306
HEIDI GERMANOWSKI,
Plaintiff, Appellant,
v.
PATRICIA HARRIS, individually and in her capacity as Register of
Deeds; COMMONWEALTH OF MASSACHUSETTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Andrea F. Nuciforo, Jr. and Nuciforo Law Group LLC on brief
for appellant.
Heather A. Valentine, Assistant Attorney General, Government
Bureau, and Maura Healey, Attorney General of Massachusetts, on
brief for appellees.
April 12, 2017
KAYATTA, Circuit Judge. Heidi Germanowski challenges
the district court's order dismissing claims that her former
employer violated her rights under the Family and Medical Leave
Act of 1993 ("FMLA"), 29 U.S.C. §§ 2611–2654. According to
Germanowski, the facts pleaded in her complaint plausibly allege
that her supervisor fired her because she sought leave protected
by the FMLA. We disagree and thus affirm.
I.
Because this appeal follows a dismissal pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept
as true all well-pleaded facts in Germanowski's complaint and draw
all reasonable inferences in her favor. See Carrero-Ojeda v.
Autoridad de Energía Eléctrica, 755 F.3d 711, 712 (1st Cir. 2014).
Germanowski worked at the Berkshire Middle District
Registry of Deeds for more than a decade, ascending the ranks from
Recording Clerk to First Assistant Register. For much of her
tenure, Germanowski worked alongside Patricia Harris, a defendant
in this action. They enjoyed a strong friendship in addition to
a collegial working relationship. But sometime after Harris became
Germanowski's supervisor in January 2013, their relationship began
to deteriorate, culminating in Germanowski's termination in
February 2015.
According to the complaint, the trouble started a little
over a year after Harris became Register. Germanowski, then
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serving as First Assistant Register, began experiencing stress and
anxiety accompanied by fatigue, hair loss, aches, and
gastrointestinal pain. She sought medical attention, visiting her
primary care physician and other healthcare providers. She kept
Harris abreast of her symptoms and physician visits.
A few months later, in June 2014, Harris allegedly began
pressuring Germanowski to support William Galvin, the Secretary of
the Commonwealth of Massachusetts, in his upcoming bid for
reelection. Germanowski twice refused Harris's requests to make
financial contributions to Secretary Galvin's campaign committee.
Around the time of Germanowski's second refusal, Harris reassigned
certain tasks from Germanowski to other employees and boxed her
out of management meetings and decisions. Harris also redoubled
her efforts to extract a financial contribution from Germanowski,
cautioning that "it would look bad" if she declined to make a
contribution and demanding that she defend her decision. Fearing
that her continued employment was contingent upon making a
contribution, Germanowski ultimately caved to the pressure in
August 2014 and contributed.
The following month, Germanowski visited her
gynecologist and complained of uncontrollable crying, weight loss,
anxiety, and other symptoms of stress. The gynecologist diagnosed
Germanowski with anxiety disorder. Once again, Germanowski
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apprised Harris that she was seeking medical care and reported her
symptoms.
Weeks after the diagnosis, in October 2014, Germanowski
suffered a nervous breakdown while working. Harris drove
Germanowski home, notwithstanding Germanowski's protests that
Harris was the cause of her stress and anxiety. Germanowski saw
her primary care physician, who prescribed medication and
instructed her to contact a therapist. Over the following week,
Germanowski tried to connect with Harris to discuss her absence
from work and arrange coverage of her responsibilities. When they
finally connected, "Harris accused Germanowski of disloyalty,
and . . . of inappropriately informing staff members about
Germanowski's condition." According to the complaint, these
accusations worsened Germanowski's physical and emotional state.
Germanowski informed Harris that she had begun treatment
with both a psychiatrist and a therapist. She then tried to return
to work on October 20, two and a half weeks after her nervous
breakdown, but Harris suggested another week of rest. They met at
the conclusion of that week and agreed to Germanowski's return to
work the following day, October 28.
The next several weeks were uneventful. In early
December, however, Harris asked a question of Germanowski in the
presence of another employee. Germanowski alleges that the
question was "intended . . . to embarrass and humiliate
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Germanowski, and to have significant emotional and physical
consequences for Germanowski," and that it did so. Germanowski's
complaint does not reveal what the question was.
Later that month, on Christmas Day, Germanowski received
a sport pistol from her husband as a gift. She told Harris, who
was familiar with Germanowski's sport shooting hobby.
Approximately one month later, on January 28, 2015, Harris called
Germanowski's husband to express her discomfort with the gift and
ask whether Germanowski carried it to work. Germanowski's husband
emphasized during their telephone conversation that Germanowski
posed no danger to herself or others and denied that his wife
carried the pistol at work.
The next day, Harris accused Germanowski of having an
affair. According to the complaint, the accusation--which lacked
any factual basis--was "made . . . to provoke a response from
Germanowski" and "had its intended effect." The complaint does
not describe that effect. It does allege that, later the same
day, Harris left Germanowski two voicemails directing her not to
come to work the following day, Friday, January 30. When
Germanowski went to the Registry building on the morning of
January 30 to drop off keys to a basement storage room, a court
security officer denied her access to the building. Germanowski
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claims that Harris told the officer and others than she posed a
safety threat.
Two days later, on Sunday, February 1, Harris sent
Germanowski a text message indicating that they needed to speak
that day because Harris would not have time to do so on Monday or
Tuesday. It is unclear from the complaint whether they connected
that day or whether Germanowski reported to work the following
day. But on the afternoon of Monday, February 2, Harris left word
with Germanowski not to come to work on February 3.
At this point, Germanowski feared that her employment
was "in jeopardy." She sent an email to Harris on February 3
stating "that she would be out sick for the week, and that she was
scheduled to see her doctor." Two days later, on February 5,
Germanowski saw her psychiatrist, who gave her a letter advising
her to take a leave of absence in order to pursue treatment.
Germanowski does not allege that she provided this letter to anyone
at the Registry or that anyone at the Registry otherwise obtained
it.
The next day, February 6, Germanowski received a
voicemail message from the chief court officer. The message stated
that Germanowski was terminated effective immediately. Moments
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later, Germanowski received a written termination notice from
Harris via email.
Germanowski brought this lawsuit against Harris
(individually and in her official capacity) and the Commonwealth
of Massachusetts, alleging in a five-count complaint that the
defendants violated the FMLA as well as Massachusetts statutory
and common law. According to the complaint, the defendants
violated Germanowski's FMLA rights, discriminated against her on
the basis of a covered impairment, illegally required her to
participate in prohibited political activity, and wrongfully
terminated her with actual malice.
In subsequent course, the district court granted a
motion by the defendants to dismiss the case under Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure. The court
dismissed on Eleventh Amendment grounds all of Germanowski's FMLA
claims against the Commonwealth as well as those FMLA claims
against Harris in her official capacity seeking monetary damages.
It then considered the remaining FMLA claims against Harris and
dismissed them because Germanowski's complaint failed to allege
facts stating, or supporting the inference, that Harris knew or
had reason to know at the time of Germanowski's termination that
Germanowski intended to take FMLA-protected leave. Because Harris
lacked such knowledge, the district court reasoned, it was
implausible that Harris acted on account of it when terminating
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Germanowski. Having dismissed Germanowski's FMLA claims with
prejudice, the district court declined to exercise supplemental
jurisdiction over the remaining state law claims and dismissed
them without prejudice. This appeal followed.
II.
A.
Germanowski appeals the portion of the district court's
order dismissing certain FMLA claims against Harris not barred by
the Eleventh Amendment. She also asks this court to order
reinstatement of her state law claims upon reversing the dismissal
of her FMLA claims. "We review orders granting motions to dismiss
under Rule 12(b)(6) de novo, applying the same criteria as the
district court." Carrero-Ojeda, 755 F.3d at 717 (emphasis
omitted). In undertaking this review, we ask whether the well-
pleaded factual allegations, viewed in the light most favorable to
the plaintiff, state a claim for which relief can be granted. See
Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011)
(citing Fed. R. Civ. P. 12(b)(6)). A complaint clears this hurdle
when the facts alleged, which we take as true, and the inferences
they support, which we draw in the plaintiff's favor, "plausibly
narrate a claim for relief." Schatz v. Republican State Leadership
Comm., 669 F.3d 50, 55 (1st Cir. 2012). By "plausibly," we mean
"something more than merely possible," id., or "merely consistent
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with a defendant's liability," Ocasio–Hernández, 640 F.3d at 11
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
"It is not necessary to plead facts sufficient to
establish a prima facie case at the pleading stage." Rodríguez-
Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st Cir. 2013). But
this does not mean "that the elements of the prima facie case are
irrelevant to a plausibility determination in a discrimination
suit. . . . Those elements are part of the background against which
a plausibility determination should be made." Id. In order to
give rise to a "plausible" claim, a complaint must plead "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. While this standard does not impose a
"probability requirement," it does require "more than a sheer
possibility that a defendant has acted unlawfully." Id. Engaging
in this plausibility inquiry is "a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense." Id. at 679.
B.
The FMLA, in relevant part, entitles "an eligible
employee . . . 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). The leave can be
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unpaid. Id. § 2612(c). "Upon an employee's return, her employer
must reinstate her to the same or an equivalent position, without
any loss of accrued seniority." Carrero-Ojeda, 755 F.3d at 718
(citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d
325, 330 (1st Cir. 2005)); see also 29 U.S.C. § 2614(a)(1).
The pertinent regulations place the burden on the
employee to notify the employer of the need for such leave. See
29 C.F.R. § 825.303. Where the leave is unforeseeable, "an
employee must provide notice to the employer as soon as practicable
under the facts and circumstances of the particular case." Id.
§ 825.303(a). In providing such notice, the employee must supply
"sufficient information for an employer to reasonably determine
whether the FMLA may apply to the leave request." Id.
§ 825.303(b). What constitutes "sufficient information" depends
on whether the employee has received leave for that FMLA-qualifying
reason before. If she has, "the employee must specifically
reference either the qualifying reason for leave or the need for
FMLA leave." Id. If she has not, "the employee need not expressly
assert rights under the FMLA or even mention the FMLA." Id. In
either case, however, the employee does not satisfy this burden
merely by calling in sick. See id. ("Calling in 'sick' without
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providing more information will not be considered sufficient
notice to trigger an employer's obligations under the Act.").
To protect the exercise of the substantive rights
described above, the FMLA makes it "unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise" such rights. 29 U.S.C. § 2615(a)(1). Under this
provision, employees may assert so-called "interference" claims
alleging deprivations of their substantive rights. Colburn, 429
F.3d at 331. We also permit employees to advance claims under a
"retaliation" theory based on their employers' "use [of] the taking
of FMLA leave as a negative factor in employment actions, such as
hiring, promotions or disciplinary actions." 29 C.F.R.
§ 825.220(c); see also Colburn, 429 F.3d at 330-32 (identifying
the basis of retaliation claims and exploring the overlap between
retaliation and interference claims).
Germanowski's complaint might be read as seeking to
assert both an interference claim and a retaliation claim. Without
objection, the district court so construed it. On appeal, however,
Germanowski focuses her challenge on the district court's
dismissal of her FMLA retaliation claim. This narrowing of
Germanowski's focus makes good sense because the interference
claim necessarily fails if Germanowski was properly discharged.
Carrero-Ojeda, 755 F.3d at 722 ("[T]he FMLA does not protect an
employee from discharge for any reason while she is on leave--
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rather, . . . it protects her only from discharge because she
requests or takes FMLA leave."). We therefore also train our
analysis of this appeal on Germanowski's contention that the
district court erred in dismissing her FMLA retaliation claim.
C.
We begin with the elements of a prima facie case of FMLA
retaliation, which "are useful 'as a prism to shed light upon the
plausibility of a [plaintiff's] claim.'" Id. at 719 (alteration
in original) (quoting Rodríguez–Reyes, 711 F.3d at 54). The prima
facie case has three elements that Germanowski need establish:
"(1) she availed herself of a protected FMLA right; (2) she was
'adversely affected by an employment decision;' and (3) 'there was
a causal connection between [her] protected conduct and the adverse
employment action.'" Id. (alteration in original) (quoting Orta–
Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105,
107 (1st Cir. 2006)).
Like the district court, we find that the complaint's
allegations lack a plausible theory of causation connecting
Germanowski's attempt to exercise FMLA rights and her termination.
Our reasons are slightly different than the district court's but
are entirely consistent with its result. See Rocket Learning,
Inc. v. Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013).
The district court homed in on the February 3 email,
finding that it gave no notice that Germanowski was asserting any
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right to unpaid leave of up to twelve weeks for a serious health
condition.1 Rather, the cryptic email, within its four corners,
bore many of the attributes of a simple "[c]alling in 'sick'"
missive. 29 C.F.R. § 825.303(b). So construing it, the district
court reasoned that Harris could not have retaliated against
Germanowski for an assertion of FMLA rights that did not plausibly
appear to have been made. See Ameen v. Amphenol Printed Circuits,
Inc., 777 F.3d 63, 70 (1st Cir. 2015) ("To demonstrate that he was
fired in retaliation for engaging in FMLA-protected conduct, [the
plaintiff] 'must show that the retaliator knew about [his]
protected activity--after all, one cannot have been motivated to
retaliate by something he was unaware of.'" (second alteration in
original) (quoting Medina–Rivera v. MVM, Inc., 713 F.3d 132, 139
(1st Cir. 2013))).
Germanowski's email certainly could have been more clear
concerning the reason for which she was missing work. See Collins
v. NTN-Bower Corp., 272 F.3d 1006, 1008-09 (7th Cir. 2001) (holding
that where plaintiff had previously advised supervisors of her
depression, which "incapacitated her on a particular day[,] she
could have made clear the 'serious' nature of her condition by
referring to knowledge already in the employer's possession"; by
1 Contrary to Germanowski's argument on appeal, the complaint
does not "detail[] the repeated communications she had with
defendants on and after February 2, 2014 regarding her leave." It
instead describes only one communication: this February 3 email.
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instead saying only that she was "sick," plaintiff "not only
withheld important information from the employer but likely threw
it off the scent").
We nevertheless do not settle on the lack of notice as
a reason to dismiss the complaint. The allegations here depict
Germanowski's employer as already knowing that she was suffering
from a chronic and significant health condition, symptoms of which
were recently obvious to her employer. In this context, a notice
that Germanowski would be out for the week and would be seeing her
doctor might arguably be read as informing her employer that she
would be absent due to a serious health condition.
We rest our decision, instead, on an alternative ground
addressed and argued in the parties' briefs on appeal. In a
nutshell, no matter how one interprets the February 3 email, the
allegations in the complaint fail to make it plausible that the
email triggered the firing. Rather, Germanowski's own allegations
make it almost certain that the decision to fire her was already
in the works and had nothing to do with the email.
To explain why this is so, we begin with the allegations
that describe Harris's treatment of Germanowski's prior illness-
related absences. The complaint alleges that, during the year
preceding Germanowski's termination, Harris consistently
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accommodated Germanowski when she felt unable to work.2 As best
the complaint reveals, whenever Germanowski asked to stay out of
work, Harris agreed, and there is no indication that Harris
required that the absences be unpaid or even reduced Germanowski's
available FMLA leave time. As Germanowski describes it, Harris
actually urged Germanowski to stay out longer during her leave of
absence in October 2014.3 This record provides poor soil in which
to plant a claim that Harris's receipt of a notice that Germanowski
would be out sick for the week precipitated Germanowski's
termination.
Germanowski's principal rejoinder is to urge an
inference of a causal link between the February 3 email and the
firing because the firing came fast on the heels of the email.
Certainly there are circumstances in which a "'[v]ery close'
temporal proximity between protected activity and an adverse
employment action can satisfy a plaintiff's burden of showing
causal connection." Sánchez-Rodríguez v. AT & T Mobility P.R.,
2
Germanowski argues in her brief on appeal that Harris made
"relentless barbs and negative comments concerning . . . her leave
taking for months before she was discharged." That
characterization lacks support in the complaint's allegations.
3
Germanowski advances a perfunctory argument without any
cited support to the effect that we should ignore these pleaded
facts as merely pleading in the alternative. While we doubt this
is so, we need not decide because the argument is waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
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Inc., 673 F.3d 1, 15 (1st Cir. 2012) (quoting Calero–Cerezo v.
U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004)). Imagine
an employee with an unblemished record and steady performance who,
shortly after requesting FMLA leave, is terminated by her employer
without explanation. In such circumstances, temporal proximity
would most likely suffice to allege a plausible claim. At the
same time, the notion that temporal proximity is not always enough
must also be correct. Imagine an employee shoots her boss,
immediately asks for FMLA leave, and gets fired the next day. We
would hope that our common sense would protect us from saying that
the close proximity between the FMLA request and the termination
makes retaliation plausible.
Here, there was no shooting. But the allegations relate
a history of an emotionally fraught and longstanding dispute
between the employer and the employee, an expressed fear by the
employer that the employee may have brought a gun to work, and a
subsequent lock-out of the employee, all in a context that caused
even Germanowski to suspect imminent termination, and all before
she sent her email saying she would be out sick. To think that an
employer in such a case fired Germanowski because she asked for
some time off while she was already locked out is to suggest that
common sense borne of real world experience has no role to play in
the plausibility analysis. We think otherwise. As the district
court observed, the "FMLA is not a tool an employee can use to
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delay or avoid a termination." Germanowski v. Harris, No. 15-CV-
30070, 2016 WL 696097, at *4 (D. Mass. Feb. 19, 2016).
Germanowski's remaining arguments fare even worse. She
contends that Harris was out to get her, intentionally aggravated
her condition, and began taking away her responsibilities. But
that, too, all preceded the February 3 email, and thus cuts against
the causal connection Germanowski's complaint need make plausible.
Germanowski alleges that Harris accused her of disloyalty for
telling other employees about her condition, but she offers no
reason why such an accusation bears on the issue at hand. All in
all, her arguments--even considered cumulatively--simply reinforce
the plausibility of other, preexisting motives behind a
termination that had been set in motion before the February 3
email.
To summarize, the only issue raised on appeal is whether
the complaint plausibly alleges that Harris terminated Germanowski
in retaliation for asserting rights protected by the FMLA. Pagán-
Colón v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8 (1st Cir.
2012) ("[A] crucial component of an FMLA retaliation claim is some
animus or retaliatory motive on the part of the plaintiff's
employer that is connected to protected conduct."). For the
foregoing reasons, we agree with the district court that it does
not.
Affirmed.
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