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Hovind v. Bristol Place Corp.: US District Court : EMPLOYMENT - FMLA claim survives 12(b)(6) motion to dismiss as does contract claim per handbook

Civil No. 08-597 (JRT/FLN)
Lisa C. Stratton, Supervising Attorney, Ashley Davis-Alteri and Amy
Urberg, Certified Student Attorneys, WORKERS RIGHTS CLINIC,
229 19th Avenue South, Minneapolis, MN 55455, for plaintiff.
Konstandinos Nicklow, MESHBESHER & SPENCE, LTD, 1616 Park
Avenue South, Minneapolis, MN 55404, for defendants.
Lynn Hovind was terminated from her job with Bristol Place Corporation and
Bristol Place Home Health Services, Inc. (BPC/BPHHS) shortly after requesting 17
days of medical leave. Hovind subsequently brought this action alleging retaliation and
interference in violation of the Family Medical Leave Act (FMLA) and breach of
contract. BPC/BPHHS now moves for dismissal of Hovinds amended complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons given below, the
Court denies BPC/BPHHSs motion.
Hovind was employed by BPC/BPHHS as a home health aide from June 2001
until her termination on March 3, 2006.1 (Am. Compl. 11.) At all times relevant to this
action, Barbara Needham was Hovinds immediate supervisor, and Pamela Richey was
the BPHHS Program Director. (Am. Compl. 22-23.)
After beginning her employment, Hovind signed a BPHHS document entitled
Bristol Place Home Health Services Work Rules. That document includes the
following sections2:
All agency employees are required to provide the Program Director with
adequate notice if they become too ill to work their scheduled shift.
1) Staff scheduled to begin work must notify a Program Director or the
supervising nurse 4 hours before arrival is scheduled (wherever
2) Staff scheduled prior to 12 p.m. (noon) must contact the Supervising
nurse at their home at 7:00 a.m.
3) In case of emergency, or when it is impossible to give the above
notice, an explanation must be given to the Program Director or
supervising nurse.
1 Hovinds amended complaint includes a series of facts describing the corporate status
and relationship of BPC and BPHHS. However, the only facets of this background that are
relevant to Hovinds motion are not disputed. Those facts are that Hovind was jointly employed
by BPC/BPHHS; that BPC and BPHHS qualify as employers for the purposes of the FMLA;
and that Hovind qualifies as an employee for the purposes of the FMLA.
2 The BPHHS document was quoted extensively throughout the complaint and is
therefore properly considered in the context of BPC/BPHHSs motion to dismiss. See
Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004) (permitting
consideration of materials necessarily embraced by the complaint for the purposes of a Rule
12(b)(6) motion to dismiss).
4) If no explanation is given, it will be automatically considered
a) All calls for illness are to be made to the Supervising Nurse.
b) The Supervising nurse taking the call is required to notify the
Program Director of the name, date, time and reason for the absence.
* * *
Unexcused Absences-Unexcused leave is described as absence from work
without approval of the employees direct supervisor. (Examples: not
reporting for work and not calling in; walking off the job without notice;
and not returning to work following vacation leave). Unexcused absences
are treated in the following manner:
First occurrence Verbal warning (if the excuse is valid).
Second occurrence 3 days suspension without pay (next 3
days scheduled)
Third occurrence Termination
(Nicklow Aff. Ex. D at 1-2.)
On March 2, 2006, Hovind verbally informed Needham that she was ill and
needed a medical leave of absence. (Am. Compl. 26.). Specifically, Hovind requested
17 days of medical leave from Needham. (Am. Compl. 25.). Needham indicated that
Hovind should take the leave of absence and told her that she should make a written
request for leave the following day, in lieu of reporting for work. (Am. Compl. 26.)
On March 3, 2006, Hovind went to the BPHHS office and submitted a written
request for medical leave. (Am. Compl. 30.) Hovind used the form designated by
BPC/BPHHS for requesting leave, and left her request on the desks of Needham, Richey,
and a BPC/BPHHS secretary. (Am. Compl. 31-33.) This written request included the
following information: a request for sick leave (as selected between vacation, sick
leave, personal pref., comp time, and unpaid leave); the beginning date of her
request (March 3, 2006); the number of days requested (17); and a note from Hovind
indicating that the request was for medical reasons leave of absence. (Am. Compl.
34.) Hovind does not allege that she provided further details about her condition.
On March 3, 2006, the day that Hovind submitted her request, BPC/BPHHS
terminated Hovind. (Am. Compl. 36.) Hovind was notified of this action in a phone
call from Richey. (Am. Compl. 37.) Richey did not inquire as to why she was
requesting medical leave and BPC/BPHHS did not otherwise investigate her condition.
(Am. Compl. 26.). BPC/BPHHS also did not request that Hovind supply medical
certification of her need for leave, as was its right under the FMLA. See 29 C.F.R.
825.302(c). (Am. Compl. 46.)
The purpose for Hovinds leave request was bronchitis. (Am. Compl. 40.)
Hovind was treated for this condition by a health care provider on March 8, 2006, and
was prescribed medication. (Am. Compl. 41.) Hovind returned to her health care
providers office on March 9, 2006. (Am. Compl. 42.) Hovind had become lightheaded
and needed assistance getting to the doctors office. (Am. Compl. 42.) Hovind was
treated on this visit for an allergic reaction to the medication prescribed to treat her
bronchitis. (Am. Compl. 42.) Hovind also suffered from diarrhea and hives as a result
of the allergic reaction. (Am. Compl. 42.)
Hovind alleges that she was incapacitated and unable to work for 15 consecutive
calendar days following her leave request, due to her bronchitis and her allergic reaction
to the medication. (Am. Compl. 43.) Hovind was ready to return to work on March 18,
2006. (Am. Compl. 44.)
Hovind filed this action on February 29, 2008, alleging that BPC/BPHHS
interfered with her exercise of FMLA rights; retaliated against her for requesting leave
under the FMLA; and breached her employment contract by violating the Bristol Place
Home Health Services Work Rules quoted above. BPC/BPHHS now moves to dismiss
Hovinds amended complaint pursuant to Rule 12(b)(6).
In reviewing a complaint under a Rule 12(b)(6) motion to dismiss, the Court
considers all facts alleged in the complaint as true, and construes the pleadings in a light
most favorable to plaintiff, the non-moving party. See, e.g., Bhd. of Maint. of Way
Employees v. Burlington N. Santa Fe R.R., 270 F.3d 637, 638 (8th Cir. 2001). A motion
to dismiss should not be granted unless it appears beyond a doubt that plaintiff can prove
no set of facts that would entitle plaintiff to relief. Coleman v. Watt, 40 F.3d 255, 258
(8th Cir. 1994). However, a plaintiff must provide more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic
Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). A plaintiff must state a claim to relief
that is plausible on its face. Id. at 1974.
Under the FMLA, an eligible employee is entitled to twelve weeks of unpaid leave
during any twelve-month period for any of several reasons, including 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). An employer is prohibited from interfering with,
restraining, or denying an employees exercise of or attempted exercise of this right. 29
U.S.C. 2615(a)(1). FMLA regulations require employees to provide adequate notice to
their employers of the need to take FMLA leave. See 29 C.F.R. 825.302-03; Carter v.
Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997).
Here, Hovind contends that BPC/BPHHS interfered with her exercise of FMLA
rights by terminating her immediately after she requested sick leave. BPC/BPHHS
moves to dismiss that claim on two grounds. First, BPC/BPHHS argues that Hovind has
failed to allege that she suffered from a serious health condition. Second, BPC/BPHHS
argues that Hovind failed to give adequate notice of her need for leave. Those
contentions are dealt with separately below.
A. Serious Health Condition
The FMLA defines a serious health condition as an illness, injury, impairment,
or physical or mental condition that involves inpatient care in a hospital, hospice, or
residential medical care facility; or continuing treatment by a health care provider. 29
U.S.C. 2611(11). The Eighth Circuit has interpreted the continuing treatment
standard and the regulations implementing that standard to require the following three
elements: (1) that [the employee] had a period of incapacity requiring absence from
work, (2) that this period of incapacity exceeded three days, and (3) that [the employee]
received continuing treatment by a health care provider within the period. Rankin v.
Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001) (quotations omitted). [T]he
fact that an employee is sufficiently ill to see a physician two times in a period of just a
few days is all that FMLA requires for continuing treatment. Id. at 1149 (quotation
Here, BPC/BPHHS contends that the facts alleged in Hovinds amended
complaint fail to satisfy these requirements. BPC/BPHHS first argues that the FMLAs
legislative history demonstrates that it was not intended to cover the type of illness
suffered by Hovind. BPC/BPHHS specifically notes the following passage from the
Senate Report on the bill:
The term serious health condition is not intended to cover short-term
conditions for which treatment and recovery are very brief. It is expected
that such conditions will fall within even the most modest sick leave
policies. Conditions or medical procedures that would not normally be
covered by the legislation include minor illnesses which last only a few
S. Rep. No. 103-3, at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30. BPC/BPHHS
also argues that several federal courts have determined that bronchitis is not a serious
health condition for the purposes of the FMLA. See, e.g., Beal v. Rubbermaid
Commercial Prods. Inc., 972 F. Supp. 1216 (S.D. Iowa 1997); Hott v. VDO Yazaki Corp.,
922 F. Supp. 1114 (W.D. Va. 1996). In addition, BPC/BPHHS argues that even if
bronchitis qualifies as a serious health condition under the FMLA, Hovinds medical
records demonstrates that her case, in particular, was not serious. Finally, BPC/BPHHS
notes that Hovinds March 9 visit was related to an allergic reaction, rather than Hovinds
bronchitis, and consequently fails to qualify as the second doctor visit.
Hovind responds that her allegations are sufficient to demonstrate a serious health
condition for the purposes of Rule 12(b)(6). Hovind argues that there is no per se
exclusion of bronchitis as a serious health condition. Hovind notes the following passage
from a 1996 opinion letter from the Department of Labor:
The [FMLA] regulations reflect the view that, ordinarily, conditions like
the common cold and flu (etc.) would not routinely be expected to meet the
regulatory tests, not that such conditions could not qualify under FMLA
where the tests are, in fact, met in particular cases.
Op. FMLA-86 (Dec. 12, 1996), quoted in Thorson v. Gemini, 205 F.3d 370, 379 (8th Cir.
2000). Hovind argues that this illustrates that the FMLA calls for a case-by-case analysis
of particular patients illnesses, rather than a categorical inclusion or exclusion of specific
conditions. Hovind adds that the cases cited by BPC/BPHHS where bronchitis was not
characterized as a serious health condition all involved periods of illness that were shorter
than hers. Finally, Hovind adds that it would be inappropriate to consider her medical
records or otherwise substantively evaluate the severity of her illness in the context of
a motion to dismiss.
As Hovind suggests, the Eighth Circuit has not treated the FMLAs serious health
condition requirement as merely a question of the title of the employees condition, with
some conditions qualifying and others not. Rather, the Eighth Circuit has looked behind
the mere title of an employees condition, and analyzed it using the factors recited in
Rankin. See, e.g., Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 472-73 (8th Cir.
2007) (explaining that whether depression qualified as a serious health condition would
depend on individual circumstances). Consistent with this approach, the bronchitis
decisions relied on by BPC/BPHHS all consider the specific details of the employees
condition and treatment. See Beal, 972 F. Supp. at 1225 (noting that employee was still
able to meet family needs and never went in for a follow-up appointment); Hott, 922 F.
Supp. at 1128 (noting that the certification form submitted by the patient had indicated
that the employee was still able to perform the functions of her position); Beaver v. RGIS
Inventory Specialists, Inc., 144 Fed. Appx. 452, 456 (6th Cir. 2005) (unpublished) (noting
that bronchitis is not covered by the FMLA, but basing this conclusion in part on a
doctors note indicating that the employee would only be gone for a few days);
Cabrera v. Enesco Corp., No. 97-5546, 1998 WL 325169, at *7 (N.D. Ill. June 8, 1998)
(noting that the employee did not require continuing treatment and had only been off of
work for a few days). Moreover, further underscoring this approach, all of these
decisions were on motions for summary judgment, after the parties had had a chance to
conduct discovery on the specific details of the employees condition. In short,
BPC/BPHHS has not demonstrated that bronchitis is insufficient to constitute a serious
health condition as a matter of law. Accordingly, the fact that Hovind is relying on a
bronchitis episode does not require dismissal under Rule 12(b)(6), and Hovind, like the
patients in the cases cited above, is entitled to an opportunity to demonstrate the severity
of her condition with evidence.
As to BPC/BPHHSs challenge to Hovinds condition based on her medical
records, that contention is unavailable in the context of this motion. Hovinds medical
records were not affixed to, quoted, or extensively discussed in Hovinds amended
complaint, and therefore may not be considered in a Rule 12(b)(6) motion to dismiss. Cf.
Enervations, Inc., 380 F.3d at 1069 (permitting consideration of materials necessarily
embraced by the complaint for the purposes of a Rule 12(b)(6) motion to dismiss).
While these materials would be relevant if the Court were to convert this motion to one
for summary judgment, see Fed R. Civ. P. 56(d), the Court finds that this would be
inappropriate before the start of discovery.
In sum, the question raised by BPC/BPHHSs motion is merely whether Hovinds
complaint has stated a claim that is plausible on its face. Twombly, 127 S. Ct. at 1974.
As to whether she suffered from a serious health condition, Hovind has done so.
Hovind has alleged that she was incapacitated and unable to work for fifteen days. If
Hovind is ultimately able to prove those allegations, then she will satisfy the first two
requirements recited in Rankin. 246 F.3d 1145, 1148 (requiring a period of incapacity
exceeding three days). In addition, Hovind has alleged that she was seen by a physician
twice in two days, for conditions arising out of her bronchitis and its treatment. While
BPC/BPHHS argues that Hovinds second visit was triggered by a reaction to her
bronchitis medication, rather than the bronchitis itself, neither BPC/BPHHS nor this
Court has identified any case that excludes such a visit from the Courts continuing
treatment analysis as a matter of law. Cf. Rask, 509 F.3d at 471 (quotations omitted)
(noting that complaints concerning side effects may be insufficient for notice purposes, if
the employer was not otherwise aware of an underlying serious health condition).
Moreover, a searching analysis of this visit based on Hovinds medical records would be
inappropriate at this stage, for the reasons given above. Thus, the Court concludes that
Hovind has also stated a sufficient allegation to meet the last requirement for a serious
health condition. See Rankin, 246 F.3d at 1149. Accordingly, BPC/BPHHSs motion is
denied to the extent that it challenges Hovinds allegation of a serious health condition.
B. Adequate Notice
In situations where the need for FMLA leave unexpectedly arises, the employee is
required to give the employer notice as soon as practicable. 29 C.F.R. 825.303(a).
Generally, this means no more than two days after learning of the need for the leave.
Carter, 121 F.3d at 1148. The employee is not required to expressly indicate that the
leave is being requested pursuant to the FMLA. 29 C.F.R. 825.302(c). Rather, the
employers duties are triggered when the employee provides enough information to put
the employer on notice that the employee may be in need of FMLA leave. Rask, 509
F.3d at 471 (quotations omitted). In cases involving a serious health condition, an
employee must provide information to the employer to suggest that his health condition
could be serious, so the employer can distinguish it from ordinary sick-days, or even
malingering, as a type of unusual and privileged absence. Id. at 472.
Here, BPC/BPHHS argues that the facts alleged by Hovind could not as a matter
of law have put them on notice that Hovind was requesting leave for a serious health
condition. BPC/BPHHS relies primarily on Rask, 509 F.3d at 473, a case where the
employee merely told her employer that she would be absent for help with my
medication still, Im still having a lot of side effects from what they put me on. Hovind
responds that she told BPC/BPHHS she had a medical condition and would require 17
sick days both by verbally informing Needham and by submitting this information on
BPC/BPHHSs prescribed form and that this afforded adequate notice under the
The Court concludes that Hovinds allegation of a specific request for 17 sick days
is sufficient to survive a Rule 12(b)(6) motion to dismiss. While the notice provided by
Hovind would have been more clearly adequate if she had given more specific details
about her condition, the length of her request was more than five times longer than the
threshold for FMLA leave. See Rankin, 246 F.3d at 1148. This specific request for a
lengthy absence distinguishes this case from Rask as well as every other case cited in
BPC/BPHHSs brief and could plausibly have alerted BPC/BPHHS that this was not an
ordinary sick-day request. Moreover, if BPC/BPHHS doubted the seriousness of
Hovinds condition, it could have compelled her to provide a certification of that
condition issued by her health care provider. See 29 U.S.C. 2613(a). BPC/BPHHS did
not do so.3
3 Hovind also argues that because of this neglected opportunity, BPC/BPHHS should be
equitably estopped from contesting her serious health condition. Because the Court has
concluded that Hovinds FMLA allegations were adequately pled, it need not address this issue.
However, the Court anticipates the parties revisiting this issue in any future motions for
summary judgment. See generally Thorson, 205 F.3d at 381-82; Stekloff v. St. Johns Mercy
Health Sys., 218 F.3d 858, 860 (8th Cir. 2000).
Finally, the Court notes that as with BPC/BPHHSs challenge to Hovinds health
condition, all of the cases that BPC/BPHHS relies on addressed motions for summary
judgment. In other words, those decisions came after the parties had had an opportunity
to conduct discovery and present evidence on the specific circumstances in which the
notice was given. While further discovery may well reveal that Hovinds disclosure was
insufficient as a whole, BPC/BPHHS has pointed to no authority indicating that it was
categorically inadequate, or that it would be appropriate to dismiss Hovinds claim before
that discovery begins. Accordingly, BPC/BPHHSs motion is denied to the extent that it
challenges the adequacy of Hovinds notice.
The FMLA also prohibits employers from retaliating against an employee for
asserting rights under the Act. Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir.
2006). Hovind argues that BPC/BPHHS did so here, by firing her for asserting her right
to medical leave. BPC/BPHHSs only argument for dismissing this claim is that Hovind
has failed to establish her entitlement to leave, for the reasons discussed above. Because
the Court has rejected those arguments, BPC/BPHHSs motion to dismiss is denied to the
extent it seeks the dismissal of Hovinds retaliation claim.
Hovinds final claim is for breach of contract. This claim is based on her
allegation that BPC/BPHHS violated its rules for handling unexcused absences.
BPC/BPHHS argues that this claim should be dismissed because those rules do not
constitute an enforceable contract. Under Minnesota law, where an employment
contract is for an indefinite duration, such indefiniteness itself does not preclude
handbook provisions on job security from being enforceable, whether they are proffered
at the time of the original hiring or later, when the parties have agreed to be bound
thereby. Pine River State Bank v. Mettille, 333 N.W.2d 622, 626 (Minn. 1983). To
establish the enforceability of such a provision, a party must show (1) a definite offer by
the employer; (2) communication of the offer to the employee; (3) acceptance of the
offer; and (4) consideration. Id. at 626-27. In considering whether a handbook
constitutes a definite offer, Minnesota has looked to whether the handbook was a mere
general statement of policy or whether it sets out definite language . . . for procedures
to be followed. Id. at 630. In addition, [t]he employees retention of employment
constitutes acceptance of the offer of a unilateral contract; by continuing to stay on the
job, although free to leave, the employee supplies the necessary consideration for the
offer. Id. at 627.
Here, Hovinds amended complaint alleges that BPC/BPHHS distributed its policy
on unexcused absences to its employees, and that she continued working after signing an
acknowledgment of this policy. BPC/BPHHS argues that these allegations are
insufficient because they fail[] to fairly notify Bristol Place of the basis or grounds on
which Plaintiff alleges the existence of a definite offer, communication, acceptance and
consideration. (Defendants Memorandum of Law in Support of Motion to Dismiss, at
22.) BPC/BPHHS relies solely on Beal, 972 F. Supp. at 1227, a case where the court
found insufficient evidence of a handbooks offer or acceptance. As Hovind points out,
however, Beal was decided on summary judgment, where the plaintiff was required to
establish each element with sufficient evidence. Here, where Hovind is merely required
to state a plausible claim, her allegations appear more than adequate. The document at
issue, titled Work Rules, states specific procedures to be followed in the case of illness
and employee absence, see Mettille, 333 N.W.2d at 630 (finding sufficient evidence of an
offer where a handbook contained definite language describing work disciplinary
procedures); BPC/BPHHS allegedly delivered the rules to Hovind and required her to
sign them; and Hovind continued working. While Hovind will ultimately be required to
support these allegations with evidence, they are sufficient to set forth an enforceable
contract under Minnesota law. Accordingly, the Court also denies BPC/BPHHSs
motion to dismiss to the extent that it seeks the dismissal of Hovinds breach of contract
Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that defendants Motion to Dismiss [Docket No. 4] is DENIED.
DATED: October 24, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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