Opinion
Civil No. 3:20-CV-858
03-01-2021
FRANCA SANCHEZ, Plaintiff, v. TREESMITHS, INC. d/b/a TREESMITHS UTILITY ARBORIST, Defendant.
(Judge Conner)
( ) REPORT AND RECOMMENDATION
I. Introduction
This case presents a unique scenario that is indicative of the unprecedented times in which we live. In the beginning of the COVID-19 pandemic when schools closed, Franca Sanchez notified her employer, Treesmiths, Inc., an arborist company, that she was unable to work for the foreseeable future, as she did not have any childcare for her school-age daughter. This workplace dilemma continued for several weeks, during which a new statute was enacted in response to the COVID pandemic and went into effect, allowing for paid leave in such circumstances. In April, Sanchez notified her supervisor that she believed she was entitled to paid leave under the newly enacted statute and requested it. A few days later, Treesmiths terminated her employment. Sanchez then brought this suit against Treesmiths, alleging violations of the Families First Coronavirus Response Act ("FFCRA") and derivative claims under the Family and Medical Leave Act ("FMLA") and the Fair Labor Standards Act ("FLSA").
Treesmiths has filed a motion to dismiss (Doc. 8), arguing that it qualifies as a first responder under the FFCRA and is therefore exempt from its provisions as well as the derivative claims under the FMLA and the FLSA. Thus, the instant case presents us with the novel question of whether this arborist qualifies as a matter of law for the first responder exemption to this recently enacted statute. Finding that this novel question cannot be resolved on the pleadings alone, for the reasons set forth below, we will recommend that the motion to dismiss be denied.
II. Background
The factual background of this case is taken from the facts set forth in the plaintiff's complaint, which are accepted as true for purposes of considering the pending motion to dismiss. Sanchez was employed by Treesmiths, an arborist, as a grounds person and flagger for approximately 7 months, beginning around September 16, 2019 until the time of her termination in April 2020. (Doc. 1, ¶ 10). Her direct supervisor was Keith Tucker. (Id., ¶ 11).
On March 18, 2020, Sanchez discovered that a family member may have been exposed to COVID-19. (Id., ¶ 13). Her supervisor, Tucker, advised Plaintiff to go home until further notice but called her approximately 15 minutes later to advise that after speaking with management, she could return to work immediately, which she did. (Id., ¶¶ 13-14). The following day, Sanchez texted Tucker to advise that she had a migraine and would not be reporting to work. (Id., ¶ 15). Tucker responded that she would not be permitted to return to work until she had been cleared by her doctor and provided a note to confirm. (Id.) When Sanchez attempted to make an appointment with her doctor, she was advised that due to the pandemic, no appointments were available for 1-2 weeks. (Id., ¶ 16). One week later, on March 26, 2020, Sanchez notified Tucker that she was not able to get an appointment with her doctor, but that her 8-year-old daughter's school closed due to the COVID-19 pandemic and that she would need to stay home with her for the foreseeable future. (Id., ¶ 17). While she was staying home with her daughter, Sanchez was not receiving any income from Treesmiths. (Id., ¶ 19). As a result, she applied for unemployment benefits to determine whether she was eligible. (Id.)
During this relevant timeframe, Sanchez was in contact with Tucker, and there was never any indication that she would be terminated if she were unable to return to work in the near future. (Id., ¶ 18). She had a discussion with Tucker about the information provided on her application for unemployment benefits on April 9, 2020. (Id., ¶¶ 25-26). However, Sanchez was never advised by Tucker or anyone at Treesmiths of her potential eligibility for benefits under the FFCRA or the FMLA and FLSA, pursuant to FFCRA's expansions, for paid leave. (Id., ¶¶ 21-24).
On April 15, 2020, after learning about her potential eligibility for paid leave and other benefits under the FFCRA, Sanchez emailed Tucker and inquired about paid family leave and a continued salary. (Id., ¶ 27). She received no response. (Id.) The following day, she texted Tucker and asked if he received her message, to which he replied that he "[g]ot it this morning and sent it to the office." (Id., ¶ 28). Two days later, on or about April 17, 2020, Sanchez received a text message stating that her position had been terminated because she broke the attendance policy and was a no call no show after calling off. (Id., ¶ 29).
The following day, Sanchez contacted Morgan, a Human Resources representative, and explained that she had not been at work due to caring for her 8-year-old daughter and that she had been in contact with management about the situation. (Id., ¶ 31). She sent the text and call logs corroborating her story to Morgan, who reviewed them and notified Sanchez that her position would remain terminated. (Id., ¶ 32). Sanchez then brought this suit, claiming that Treesmiths failed to inform her of her rights under the various aforementioned statutes, denied her request for qualifying paid sick leave, failed to compensate her regular wages for said qualifying leave, and terminated her in retaliation for exercising her rights under the FFCRA. (Id., ¶ 33).
Treesmiths has now filed the instant motion to dismiss (Doc. 8), arguing that under the FFCRA, it is considered to be a "first responder" and is therefore exempt from the relevant provisions of the FFCRA as well as the FMLA and the FLSA. Public works personnel are specifically exempted from the definition of "employer" under the FFCRA, and Treesmiths asserts that it qualifies as such and the suit should therefore be dismissed. (Doc. 9). This motion has been fully briefed and is ripe for resolution. (Docs. 9, 17, 19). For the following reasons, we believe that this question cannot be resolved on the pleadings alone, and we will recommend that this motion to dismiss be denied.
III. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, -U.S.-, 129 S. Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id., at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to "show" such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.' "Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S. Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment"). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. This Motion to Dismiss Should Be Denied.
Sanchez's claims against Treesmiths assert that Treesmiths is subject to the relevant provisions of the FFCRA, the FMLA, and the FLSA. Treesmiths, on the other hand, argues that the statute exempts "first responders," assert that it is a first responder within the meaning of the law, and the claims against it should be dismissed. For her part, Sanchez contends that the issue of whether Treesmiths is an emergency responder is not proper for disposition on a motion to dismiss and that she should be entitled to further explore the issue through discovery. After review of the complaint and the briefs, we agree with Sanchez and find that at this stage, she sufficiently pleaded her claims against Treesmiths. Accordingly, we will recommend that the motion to dismiss be denied.
As we have noted, Sanchez brings her claims against Treesmiths under the FFCRA, the FMLA, and the FLSA. Her claims under the FMLA and the FLSA are derivative claims that stem from the provisions of the FFCRA. The FFCRA explicitly exempts "[a]n employer of an employee who is an emergency responder" from the definition of "employer". Pub. L. No. 116-127, §3105. The Department of Labor ("DOL"), charged with administering the FFCRA, published guidance regarding the statute, which, as a matter of public record, can be considered on a Rule 12(b) motion without converting it into a motion for summary judgment. Sands, 502 F.3d at 268. The DOL Guidance defines an emergency responder as:
[. . .] anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics,
emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel...(emphasis added) (Doc. 9-4, at 31.).
For its part, relying on exhibits attached to its motion, Treesmiths argues that it is an arborist employed exclusively for public utility customers and therefore it qualifies as public works personnel. However, we conclude that at this stage, where our consideration is confined to the pleadings, that Treesmiths has not established that it falls within the definition of "first responder" in the FFCRA.
"In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Treesmiths attached several exhibits to its brief in support of its motion to dismiss, arguing that they are either matters of public record, and therefore appropriate for consideration on a motion to dismiss, or are impliedly relied upon by Sanchez in her complaint and are therefore appropriate for consideration on a motion to dismiss. We took one of the exhibits—the DOL Guidance regarding the FFCRA, which is a matter of public record (Doc. 8-4)—into account when examining Treesmiths' argument. However, in our view some of the other exhibits attached to this motion may not be relied upon at this time to defeat Sanchez's claim. In particular, we have received a "To Whom it May Concern" letter from a utility vouching for Treesmith's critical support services. (Doc. 8-6). While this correspondence may ultimately prove persuasive in addressing the legal issues in this case, reliance on this letter at the motion to dismiss stage would be premature and inappropriate without affording Sanchez the opportunity to explore this issue further. Therefore, we decline to further address or rely upon these exhibits at this time. --------
In order to overcome a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Burtch, 662 F.3d at 220-21. We also note that when faced with a motion to dismiss, "[t]he issue is not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). We find that Sanchez has sufficiently alleged enough facts to state a plausible claim upon which relief may be granted, and that she is entitled to offer evidence to support her claims.
Although Treesmiths cites caselaw in which motions to dismiss have been granted relying upon documents outside the pleadings, none of these cases address the new and novel situation presented here: an arborist's claim of an emergency responder exemption to the FFCRA. Thus, the issues of whether Treesmiths is exempt is still a question here, as it is not itself a public utility company or public works entity. Rather, it provides services exclusively to such entities. The question of whether Treesmiths would qualify as a first responder and therefore be exempt is a murky one which cannot in our view be determined on the pleadings alone but may require development of a factual record. Yet, we have been asked to grant a motion to dismiss in a case rejecting Sanchez's claims on a very sparse record without the benefit of discovery. As "analysis of the law must attend development of the facts," we must approach Treesmiths' argument, which raises a novel question relating to the interpretation of a statute that was enacted less than a year ago, cautiously. Id. (reversing the trial court's grant of defendant's motion to dismiss based on a novel question of law). Therefore, at this early stage of this litigation, we decline to adopt Treesmiths' interpretation of the statute qualifying it as a "first responder" as a matter of law and exempting it from the provisions of the FFCRA. Accordingly, this motion to dismiss should be denied.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendant's motion to dismiss (Doc. 8) be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with
instructions.
Submitted this 1st day of March 2021.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge