United States District Court, D. New Hampshire
LANDYA McCAFFERTY, District Judge.
Jessica Fountain has sued her former employer, First Data Merchant Services ("First Data") in three counts, under the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (Counts I and III), and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654 (Count II). Before the court is First Data's motion to: (1) strike six paragraphs of Fountain's amended complaint; and (2) dismiss the complaint in its entirety, with prejudice. Fountain objects. For the reasons that follow, First Data's request to strike material from Fountain's amended complaint is denied, while its motion to dismiss is granted in part and denied in part.
Unless otherwise noted, the facts in this section are drawn from Fountain's amended complaint.
Fountain was hired by First Data's predecessor in 1998 as an account executive. At all times relevant to this matter, she worked remotely, with a company laptop and phone. In 2002, she became a senior account executive. Up until 2009, she often met or exceeded her sales quotas, and never had any disciplinary issues.
In September of 2009, Fountain suffered a psychological breakdown. For the next year, she was on intermittent leave under the FMLA, granted in two six-month segments. In April of 2011, she was granted a third intermittent FMLA leave, which she had requested on account of her son's admissions to an inpatient psychological program. That leave ended in October of 2011, and she returned to work. In March of 2012, Fountain requested, and was granted, a fourth intermittent FMLA leave.
In November of 2011, First Data's Jared Kirkpatrick became Fountain's supervisor. Their working relationship was contentious. Fountain alleges that Kirkpatrick was not as supportive as his predecessor had been, and identifies friction over, among other things, assistance (or a lack thereof) from Kirkpatrick, communication, and scheduling. In October of 2012, Kirkpatrick sought to schedule weekly meetings with Fountain, one on one, and placed her on a 90-day "individual action plan [IAP]." The basis for the IAP, according to Kirkpatrick, was Fountain's failure to meet her sales goals. In early January of 2013, Kirkpatrick berated Fountain for failing to have any deals in the pipeline, and demanded that she provide him with daily, minute-by-minute reports of her work activities. In response to the stress she experienced as a result of Kirkpatrick's demand, Fountain placed herself on "out of office" status for January 9, 10, and 11. Additional phone calls from Kirkpatrick ensued.
On January 11, Kirkpatrick, his supervisor, and First Data's Human Resources representative, Gayla Baker, tried to reach Fountain by phone. Fountain spoke with Baker on January 11, and called in sick for January 14 and 15, because she was still emotionally upset. On the 14th, Baker invited Fountain to participate in a telephone conference. Fountain declined. The next day, Baker sent Fountain an e-mail, advising her "that she was in termination' status, but that she [Baker] would put the termination on hold' pending an investigation [and demanding] that [Fountain] contact her by the end of business on January 17th." Fountain responded by requesting: (1) more time to schedule the meeting, due to surgery scheduled for January 16; and (2) FMLA paperwork. Fountain submitted that paperwork on January 22, but never received a response. Then, after Fountain informed Baker that she had retained legal counsel, Baker cancelled the telephone conference, telling Fountain that her attorney and First Data's attorney would need to speak with one another. The attorneys did confer, but failed to reach a resolution. At some point in late January or early February of 2013, First Data decided to terminate Fountain's employment.
On December 9, 2013, Fountain filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"). In her EEOC charge, she alleged:
[O]n January 30, 2013, First Data's attorney notified [her] attorney that First Data would terminate [her] employment, effective February 11, 2013, allegedly due to [her] poor sales performance and failure to comply with the October 2012 IAP. I never received a termination letter from First Data.
Def.'s Mot. to Dismiss, Ex. 1 to Scott Decl. (doc. no. 7-3), at 7. The EEOC dismissed Fountain's charge as untimely, on grounds that she had filed it more than 300 days after January 30, 2013, which the EEOC took to be the day on which on which First Data terminated her employment. See id., Ex. 3 to Scott Decl. (doc. no. 7-5), at 1. Thereafter, the EEOC denied Fountain's request to reopen her charge, rejecting her argument that she was actually discharged on February 11, 2013, rather than January 30. See Def.'s Motion to Dismiss and Strike, Ex. 5 to Scott Decl. (doc. no. 17-7).
In her original complaint, Fountain's allegations regarding the communications concerning her termination are virtually identical to those in her EEOC charge. See Compl. (doc. no. 1) ¶ 43. Fountain's amended complaint includes a slightly revised paragraph 43, along with five additional paragraphs that do not appear in her original complaint:
Plaintiff's attorney and First Data's attorney did correspond with each other in an effort to resolve the situation; however, on January 30, 2013, First Data's attorney... communicated to Plaintiff's attorney that she would recommend that First Data terminate the Plaintiff's employment, effective February 11, 2013, allegedly due to her poor sales performance and failure to comply with the October 2012 IAP.
Counsel continued to correspond to seek a resolution.
On February 7, 2013, First Data's counsel sent an email to Plaintiff's counsel stating the following: "... I have notified Human Resources that I do not see any reason for the continued hold on Ms. Fountain's employment termination." That email also stated that she would recommend that the effective date of termination be February 11, 2013.
Moreover, the February 7, 2013 email concluded with "... Human Resources will follow up with a letter regarding her employment termination and the effective date". The Defendant never provided a termination letter to the plaintiff.
First Data's Human Resources Department, and not their counsel, had the ability to terminate the Plaintiff's employment.
It wasn't until February 11, 2013 that it became apparent that First Data not only intended to follow their attorney's recommendation, but in fact had effectively terminated Ms. Fountain. Atty. Olson's February 11, 2013 email to Plaintiff's counsel requested, on behalf of Human Resources, the return of all company property. This is the only communication confirming the Plaintiff's termination by First Data.
Am. Compl. (doc. no. 15) ¶¶ 45-50 (emphasis added, citations to the record omitted).
After First Data moved to dismiss Fountain's original complaint, she objected, and the court construed her objection to be a motion to amend. See Order (doc. no. 14) 1. In her pleading, Fountain asked the court to "[a]llow [her] to Amend her Complaint to include allegations involving the violation of her rights under the Family Medical Leave Act." Pl.'s Obj. (doc. no. 10) 1. In the memorandum of law in support of her pleading, Fountain devoted considerable attention to the issue of when she was terminated and when the clock began to run on the limitation period for filing a charge with the EEOC. The court granted the motion to amend without qualification.
First Data moves for two forms of relief. First it asks the court to strike paragraphs 45 through 50 of Fountain's amended complaint. Second, it moves to dismiss the amended complaint. ...