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Wedel v. Petco Animal Supplies Stores, Inc.

United States District Court, Tenth Circuit

October 29, 2013

Rachel A. Wedel, Plaintiff,
Petco Animal Supplies Stores, Inc., Defendant.



Plaintiff Rachel A. Wedel filed this suit against Petco Animal Supplies Stores, Inc. (“Petco”), her former employer, asserting numerous claims arising out of her employment with Petco. This matter is presently before the court on Petco’s motion to dismiss several claims from plaintiff’s complaint (doc. 7). As will be explained, the motion is granted in part and denied in part.[1]


The following well-pleaded allegations, taken from plaintiff’s complaint, are accepted as true for purposes of Petco’s motion. Plaintiff began her employment with Petco in 2004 as a Dog Trainer and eventually was promoted to the position of Assistant Store Manager. At the time she was hired, plaintiff disclosed to Petco that she suffered from Crohn’s disease and that she would have occasional doctor appointments that would necessitate leave from work. While the first several years of plaintiff’s employment passed without incident, plaintiff experienced a significant flare-up of her Crohn’s disease in April 2011 and she began missing long periods of work due to hospital stays and subsequent medical restrictions. When her physician released her to work a partial schedule, Petco began permitting plaintiff to utilize intermittent FMLA leave. Once plaintiff exhausted her FMLA leave, she began receiving benefits under a short-term disability policy.

Plaintiff contends that Petco took various adverse employment actions against her on the basis of her disability and her exercise of her rights under the FMLA, including changing her employment status from exempt to non-exempt; failing to pay her overtime wages; docking her pay when she worked less than 40 hours in a workweek; ignoring her medical restrictions; questioning her time sheets; falsely accusing her of stealing store merchandise; and initiating criminal charges against her. According to plaintiff, Petco took these actions in a concerted effort to cause plaintiff to resign her employment and, when those efforts failed, Petco terminated plaintiff’s employment in February 2012.

In her complaint, plaintiff asserts claims for discrimination under the Americans with Disabilities Act; retaliation under the Family and Medical Leave Act; failure to pay wages under the FLSA, Title VII and the Kansas Wage Payment Act; as well as state law claims for retaliatory discharge, malicious prosecution, fraud and civil conspiracy. Petco moves to dismiss all claims except for plaintiff’s ADA and FMLA claims.

Retaliatory Discharge

In Count III of her complaint, plaintiff alleges that defendants terminated her employment in violation of Kansas’ public policy exception to the employment-at-will doctrine. More specifically, plaintiff alleges that Petco terminated her in violation of Kansas’ public policy protecting an employee’s exercise of his or her rights under the FMLA. Petco moves to dismiss this claim on the grounds that the anti-retaliation provision of the FMLA adequately protects the state’s interest and provides plaintiff with a sufficient remedy for the allegedly retaliatory discharge. Relying on the Tenth Circuit’s decision in Conner v. Schnuck Markets, Inc., 121 F.3d 1390 (10th Cir. 1997), wherein the Circuit held that that Kansas Supreme Court would not allow a common law cause of action for retaliatory discharge when an adequate statutory remedy exists under federal law, Petco contends that plaintiff’s state law retaliatory discharge claim is precluded. See Campbell v. Husky Hogs, LLC, 292 Kan. 225, 236 (2011) (“Under the alternative remedies doctrine, a state or federal statute could be substituted for a state retaliation claim—if the substituted statute provides an adequate alternative remedy.”)

Neither the Kansas Supreme Court nor the Tenth Circuit has addressed whether the FMLA provides an adequate alternative remedy such that a state law claim based on the same underlying conduct is barred. But the Circuit has squarely held that a common law claim for retaliatory discharge is precluded in the context of other federal anti-retaliation statutes, see Conner, 121 F.3d at 1399 (affirming dismissal of common law retaliatory discharge claim as precluded by the alternative statutory remedy available under the FLSA), and the Kansas Supreme Court has suggested that the FLSA, as compared to OSHA, provides an adequate remedy because the employee may obtain “any type of relief possible under the FLSA through the employee’s own actions” rather than only that relief deemed appropriate by the Secretary of Labor, see Flenker v. Willamette Indus., 266 Kan. 198, 967 P.2d 295, 299, 301 (1998).

Because Congress intended the remedial provisions of the FMLA to mirror those in the FLSA, see Franzen v. Eillis Corp., 543 F.3d 420, 425 (7th Cir. 2008), it is logical to extend Conner to the FMLA context and, indeed, many judges in this district have done so. White v. Graceland College Center, 2008 WL 191422, at *4 (D. Kan. Jan. 22, 2008) (dismissing common law retaliatory discharge claim based on violations on FMLA); Lines v. City of Ottawa, 2003 WL 21402582, at *10 (D. Kan. June 16, 2003) (granting summary judgment on retaliatory discharge claim where adequate alternative remedies existed under FMLA, ADA and KAAD); Gearhart v. Sears, Roebuck & Co., 27 F.Supp.2d 1263, 1278 (D. Kan. 1998); Lange v. Showbiz Pizza Time, Inc., 12 F.Supp.2d 1150, 1152 (D. Kan. 1998).

In her response, plaintiff expressly “concedes” that her common law claim is precluded but asserts that a “change of law is warranted.” It is beyond the authority of this court, however, to change the law; it is bound to apply the law as it presently exists. Plaintiff also suggests that the FMLA does not provide an adequate remedy for her state law claim because her state law claim encompasses allegations (not clearly set forth in her complaint) that Petco terminated her in retaliation for exercising her rights under the FLSA as well as the FMLA. Of course, to the extent plaintiff alleges that she was terminated for exercising her rights under the FLSA, her claim is precluded by the FLSA. In the absence of any other argument that her common law claim somehow survives dismissal, the court grants Petco’s motion and dismisses this claim as precluded by the FMLA and the FLSA.

Malicious Prosecution

Plaintiff asserts in Count IV of her complaint that Petco initiated fraudulent criminal charges against her for alleged theft of store merchandise. According to Petco, plaintiff’s malicious prosecution claim must be dismissed for failure to satisfy the pleading requirements of Iqbal and Twombly. Pursuant to those cases, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Free Speech v. Federal Electi on Comm'n., 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

Under Kansas law, a plaintiff must prove the following elements to maintain an action for malicious prosecution: that the defendant initiated, continued or procured civil proceedings against the plaintiff; that the defendant acted without probable cause in so doing; that the defendant acted with malice; that the proceeding terminated in favor of the plaintiff; and that the plaintiff sustained damages. In re Landrith, 280 Kan. 619, 647 (2005). In its motion, Petco contends that plaintiff’s complaint does not plausibly show that Petco acted without probable cause in initiating ...

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