7""
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 1 of 8 PageID #: 94
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 1 of 8 PageID #: 94
`
`UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF RHODE ISLAND
`
`
`
`CA. No. 20-270-JJM-PAS
`
`)
`)
`
`) )
`
`)
`)
`)
`
`) )
`
`CAROL GOMES,
`Plaintiff,
`
`V-
`
`STEERE HOUSE,
`Defendant.
`
`MEMORANDUM AND ORDER
`
`JOHN J. MCCONNELL, JR., Chief United States District Judge.
`
`The Plaintiff, Carol Gomes, sues her former employer, Steere House, alleging
`
`violations of the Family Medical Leave Act (“FMLA”) for firing her after she fell ill
`
`with COVID-19 and requested paid leave under the FMLA. Steere House now moves
`
`to dismiss because Ms. Gomes was not entitled to leave under the FMLA or the
`
`Emergency Family and Medical Leave Expansion Act, a congressional amendment to
`
`the FMLA requiring employers to provide paid leave for employees who need to care
`
`for children who become sick with COVID-19.
`
`I.
`
`BACKGROUND
`
`Defendant Steere House (a nursing and rehabilitation center) employed Ms.
`
`Gomes as a Licensed Practical Nurse (“LPN”) from August 13, 2018 through May 22,
`
`2020. ECF N0. 1 at fl 5. Sometime “[dluring the months of April and May of 2020,”
`
`Ms. Gomes was exposed to the COVID-19 virus on the job and eventually contracted
`
`the virus. ECF No. 1 at 1] 6-7. As a result, she was unable to go to work “for a period
`
`

`

`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 2 of 8 PageID #: 95
`
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 2 of 8 PageID #: 95
`
`of time.” ECF No. 1 at 11 7. At some point after contracting the virus, Ms. Gomes
`
`sought paid leave from Steere House under the FMLA. ECF No. 1 at 1] 11. On
`
`May 22, 2020, Steere House terminated Ms. Gomes from her employment. ECF No. 1
`
`at1[8.
`
`II.
`
`STANDARD OF REVIEW
`
`
`
`In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal
`
`Rules of Civil Procedure, a court accepts as true the plausible factual allegations of
`
`the complaint and draws all reasonable inferences in favor of the plaintiff. See Cook
`
`V. Gates, 528 F.3d 42, 48 (1st Cir. 2008) (citation omitted); McCloskey V. Mueller, 446
`
`F.3d 262, 266 (1st Cir. 2006) (citations omitted). However, to survive the motion, the
`
`factual allegations in the complaint must “raise a right
`
`to relief beyond the
`
`speculative level.” BeIIAtI. V. Twombly, 550 U.S. 544, 545 (2007). The plaintiff must
`
`show that there is “more than a sheer possibility” that the defendant is liable.
`
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
`III. DISCUSSION
`
`Ms. Gomes brings a claim of retaliation against Steere House, alleging that she
`
`was terminated for invoking her rights under the FMLA.1 Accordingly, this Court
`
`1 Steere House’s Motion to Dismiss identifies two separate claims in the
`complaint: retaliation and wrongful termination. ECF No.9 at 1] 1. While the
`complaint clearly contains a retaliation claim, see ECF No. at 1] 11, the complaint
`does not explicitly contain a claim of wrongful termination and Gomes’ responsive
`briefs only mention the retaliation claim. So, this Court will proceed only with the
`single claim of retaliation.
`
`

`

`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 3 of 8 PageID #: 96
`
`will proceed by analyzing the prima facie elements of this claim and determine
`
` Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 3 of 8 PageID #: 96
`
`
`whether each is supported by the facts alleged in the complaint.
`
`Under Department of Labor (“DOL”) regulations implementing the FMLA,
`
`discharged employees may bring claims of retaliation against their former employers
`
`because they were terminated for invoking their rights under the Act.
`
`See
`
`Germanowski V. Harris, 854 F.3d 68, 72-73 (lst Cir. 2017). To make out an FMLA
`
`retaliation claim, a plaintiff must show that “(1) he availed himself of a protected
`
`right under the FMLA; (2) he was adversely affected by an employment decision;
`
`[and] (3) there is a causal connection between the employee's protected activity and
`
`the employer's adverse employment action.” Hodgens V. Gen. Dynamics Corp, 144
`
`F.3d 151, 161 (1st Cir. 1998).
`
`“Though .
`
`.
`
`. a plaintiff need not plead facts sufficient to establish a prima facie
`
`case at the pleading stage, the elements of a prima facie case are useful ‘as a prism
`
`to shed light upon the plausibility of a [plaintiffs] claim.” Carrero-Ojeda V. Auton'a’ad
`
`ale Energia Electn'ca, 755 F.3d 711, 719 (1st Cir. 2014).
`
`In evaluating an FMLA
`
`retaliation claim on a motion to dismiss, a court need only determine “whether [the
`
`plaintiff] has pleaded enough facts in toto to make entitlement to relief plausible in
`
`light of the prima flacie standard that will pertain at trial.” Id.
`
`1.
`
`Whether Ms. Gomes Availed Herself of a Protected Right Under the
`FMLA
`
`Ms. Gomes argues that she was entitled to FMLA benefits under the rules set
`
`forth in the Families First Coronavirus Response Act (“FFCRA”), ECF No. 1 at 111] 9-
`
`

`

`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 4 of 8 PageID #: 97 Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 4 of 8 PageID #: 97
`
`10, which was enacted to give workers affected by COVID-19 the opportunity to
`
`obtain paid leave. See Pub. L. No. 116-127, 134 Stat. 178 (2020).
`
`The FFCRA contains two acts providing for such relief- the Emergency Paid
`
`Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion
`
`Act (“EFMLEA”).
`
`Id.
`
`Importantly, only the EFMLEA amends the FMLA, the Act
`
`that Ms. Gomes invoked when requesting leave from Steere House. Tbornberry V.
`
`Paws]! Cty. Detention Ctr, 2020 WL 5647483, at *2 (ED. Ky. Sept. 22, 2020). The
`
`EPSLA, on the other hand, does not amend any existing statute, and its enforcement
`
`provisions are tied to the Fair Labor Standards Act, not the FMLA.
`
`Id. (citing 134
`
`Stat. at 197).
`
`Ms. Gomes never argues that she had a right to leave under the EFMLEA,
`
`which applies only to employees who are unable to work because they need to take
`
`care of a child “Whose School or Place of Care has been closed, or whose Child Care
`
`Provider is unavailable, for reasons related to COVID—19.” 29 C.F.R. § 826.20(b).
`
`Rather, she argues that she was entitled to FMLA leave under the rules set forth in
`
`the EPSLA, which provides paid leave for workers who themselves contract the
`
`COVID-19 virus. See 134 Stat. at 195-96. Because, as stated, the EPSLA has no
`
`connection to the FMLA and because Ms. Gomes does not state any facts suggesting
`
`that she was qualified for FMLA leave under the EFMLEA, it is apparent that she
`
`did not qualify for FMLA benefits.
`
`Determining whether Ms. Gomes has stated sufficient facts to satisfy the first
`
`element, then, turns on whether one must be eligible for FMLA leave to successfully
`
`

`

`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 5 of 8 PageID #: 98
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 5 of 8 PageID #: 98
`
`bring a claim of retaliation. The First Circuit dealt with this issue in dicta in McAz-dle
`
`v. Town ofDracut/Dracut Public Sch, 732 F.3d 29 (1st Cir. 2013):
`
`We are not convinced that an employee who is ineligible for FMLA leave
`can never bring a retaliation claim. There are many reasons why an
`employee will not know until inquiring whether he is eligible for any
`particular right available under the Act. The statute prohibits employer
`interference with both the exercise of rights provided under the FMLA
`and ‘the attempt to exercise any [such] right.’ 29 U.S.C. §2615(a)(1).
`There is no requirement that the attempt be successful. It would seem
`too, that firing an employee for asking would also frustrate the aims of
`the Act even if the inquiring employee turns out to be ineligible. Such
`an ‘ask at your peril’ approach could deter employees, including eligible
`employees uncertain of the extent of their rights, from taking the first
`step necessary to exercise their rights.
`
`
`
`732 F.3d at 36. The complaint alleges that “[tlhe defendant, Steere House’s decision
`
`to terminate the plaintiff, Carol Gomes’ employment, was made in retaliation for
`
`Carol Gomes invoking her rights under the FMLA .
`
`.
`
`.
`
`.” ECF N0. 1 at 1] 12. This
`
`Court understands the complaint as stating that Ms. Gomes was terminated as a
`
`result of her request for FMLA leave.2 Thus, Ms. Gomes has done enough at this
`
`stage of the litigation to show that she “availed” herself of FMLA rights by requesting
`
`paid leave under the Act.
`
`2.
`
`Whether Ms. Gomes was Adversely Affected by Steere House’s Decision
`to Terminate Her
`
`The First Circuit has held that employees are “adversely affected” when they
`
`are terminated from their employment. Canero-Ojeda V. Autoridad de Energia
`
`
`
`2 Ms. Gomes’ Supplemental Memorandum provides even more clarification:
`“The plaintiff alleges that, when she made an inquiry about her right to leave, she
`was terminated.” ECF No. 15 at 3 (citing ECF No. 1 at 1M 11-13).
`
`
`
`

`

`7'"
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 6 of 8 PageID #: 99
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 6 of 8 PageID #: 99
`
`Electrz'ca, 755 F.3d 711, 719 (1st Cir. 2014). Thus, the fact that Ms. Gomes was
`
`terminated means that she has satisfied this element of her prima facie case.
`
`3.
`
`Whether There Was a Causal Connection Between Ms. Gomes’ Request
`for Leave and Steere House’s Decision to Terminate Her
`
`Ms. Gomes “relies upon the temporal connection between her request for
`
`FMLA leave and her summary termination after she contracted COVID-19 during
`
`the course of her employment at Steere House.” ECF No.15 at 4. Plaintiffs
`
`complaint implies that there was a close temporal proximity between her request and
`
`her termination, stating that Ms. Gomes was “6Xposed to the .
`
`.
`
`. virus” during the
`
`months of April and May of 2020” and was terminated after asking for paid leave on
`
`May 22, 2020. ECF No. 1 at 1W 6, 8.
`
`The First Circuit has stated that, in reviewing the pleadings of a retaliation
`
`claim, temporal proximity can prove causation when supported by more context in
`
`the complainti
`
`“'[vlery
`a
`in which
`circumstances
`are
`there
`Certainly
`close' temporal proximity between protected activity and an adverse
`employment action can satisfy a plaintiff‘s burden of showing causal
`connection.” Sanchez-Rodriguez V. AT & T Mobility RR, Inc, 673 F.3d
`1, 15 (1st Cir. 2012) (quoting Calero—Cerezo V. US. Dep’tofJustice, 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.
`
`Germanowski, 854 F.3d at 74.3
`
`3 While some courts have said that something more than temporal proximity
`is required, it is clear from recent First Circuit jurisprudence that when the time
`between protected activity and adverse action is “very close” that the something else
`can be inferred.
`
`
`
`
`
`

`

`
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 7 of 8 PageID #: 100
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 7 of 8 PageID #: 100
`
`proposition that her request for FMLA benefits precipitated her termination. She
`
`was exposed to COVID-19 in April and May, contracted COVID-19, requested FMLA,
`
` Ms. Gomes’ complaint alleges a close temporal proximity to support the
`
`and was fired in May. She is not unlike the employee in Germanowski, “with an
`
`unblemished record and steady performance who, shortly after requesting FMLA
`
`leave, is terminated by her employer without explanation.” 10’. Accordingly, the
`
`complaint sufficiently supports the causality element of her FMLA retaliation claim.4
`
`IV.
`
`CONCLUSION
`
`Carol Gomes alleges that her former employer, Steere House, terminated her
`
`in retaliation for requesting leave under the FMLA. Because Gomes has pleaded
`
`4 There is an unresolved question in the First Circuit as to Whether a “but for”
`or “mixed factor” causality standard should be used for the causality element of
`FMLA retaliation cases. The current DOL regulations call for the latter. 29 CPR.
`§ 825.220 (“[Elmployers cannot use the taking of FMLA leave as a negative factor in
`employment actions, such as hiring, promotions or disciplinary actions”). Some
`district courts have decided that a 2013 United States Supreme Court case, UniV. of
`TX. S WMed. Ctr. V. Nasser, 570 U.S. 338 (2013), which applied a “but for” standard
`to Title VII retaliation claims, requires them to do the same for FMLA retaliation
`claims. See, e.g., Gourdeau V. City ofNewton, 238 F. Supp. 3d 179 (D. Mass 2017).
`Others have come out the other way and applied the DOL regulations. See Chase V.
`United States Postal Service, 149 F. Supp. 3d 195 (D. Mass. 2016). The First Circuit
`declined to take up the issue in 2016 when Chase was appealed. Chase V. United
`States Postal Sen/ice, 843 F.3d 553, 559 n.2 (“Given that Chase is unable to prevail
`under even the more lenient ‘negative factor’ test, we save for another day the
`question of Nassaz’s impact on FMLA jurisprudence with respect to the required
`causation standard, and take no position on the district court's decision to grant the
`DOL regulations continued Chevron deference”).
`It has not directly taken up the
`issue since. Because a higher court has not invalidated the regulations and set a
`different standard, this Court declines to take up the issue and uses the “negative
`factor” standard in the existing DOL regulations.
`
`
`
`
`
`

`

`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 8 of 8 PageID #: 101
`Case 1:20-cv-00270-JJM-LDA Document 16 Filed 11/02/20 Page 8 of 8 PageID #: 101
`
`facts sufficient to support a prima facie case at this stage of the litigation, this Court
`
`DENIES Steere House’s Motion to Dismiss. ECF No. 9.
`
`/
`
`
`ITISng/LRE .
`
`John J. McConnell, Jr.
`Chief Judge
`United States District Court
`
`November 2, 2020
`
`
`
`
`
`