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Carter v. Spirit Aerosystems, Inc.

United States District Court, D. Kansas

November 13, 2017

MARK ANTHONY CARTER, Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Before the Court is a motion to dismiss by Defendant Foulston Siefkin LLP (“Foulston”). Foulston is a law firm that represents Spirit Aerosystems, Inc. (“Spirit”)-a co-defendant in this suit. Plaintiff Mark Carter alleges Spirit discriminated against him and ultimately fired him in violation of federal law. In addition to seeking damages against Spirit, Carter has added claims against Foulston for interfering with Carter's rights under the Family and Medical Leave Act (“FMLA”) and for common-law defamation. Both claims arise out of Foulston's legal representation of Spirit in response to Carter's claims. For the reasons provided below, the Court grants Defendant Foulston Siefkin LLP's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 38).

         I. Factual and Procedural Background[1]

         Carter initiated this action on September 9, 2016 by bringing a claim against Spirit for a violation of the Americans with Disabilities Act. On June 21, 2017 Carter filed his Amended Complaint, adding additional claims against Spirit, as well as adding three additional defendants, including Foulston. The facts that form the basis for Carter's allegations against Spirit-facts the Court summarized in a prior memorandum and order[2]-are largely inconsequential to Foulston's motion presently before the Court.

         Foulston's role as a defendant in this case hinges entirely on its representation of Spirit in the underlying discrimination action. Specifically, Carter's claims against Foulston are based on the actions of Foulston attorney Teresa Shulda during administrative proceedings before the U.S. Department of Labor (“DOL”). Carter alleges that Shulda interfered with his FMLA rights by representing Spirit despite her knowledge that Spirit had wrongfully discriminated against Carter. Carter also alleges that Shulda defamed his character by providing false information to the DOL investigator.

         To support the FMLA interference claim, Carter alleges that Foulston, by virtue of Shulda's conduct, “acted as Plaintiff's employer.” Carter points to the DOL investigative report, where the DOL investigator wrote: “Ms. Shulda stated that they would start an interactive dialogue with Mr. Carter . . . [and] also stated they would recommend an earlier call-in time for Mr. Carter . . . . [Lastly, ] Ms. Shulda further stated that she would discuss the removal of Mr. Carter's [] write-up.” Carter claims Shulda personally participated in Spirit's employment decisions and, therefore, can be held liable as Carter's employer.

         Foulston seeks dismissal of both Carter's FMLA interference claim and defamation claim. Under Carter's first claim, Foulston argues it cannot be held liable under the FMLA because Foulston is not Carter's employer. Under Carter's second claim, Foulston argues that dismissal is appropriate for two reasons. The first reason Foulston proffers is the statute of limitations for a defamation claim has lapsed. The second reason is Foulston is entitled to an absolute litigation privilege for any comments made in the administrative proceeding before the DOL.

         II. Legal Standard

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”[3] However, the Court cannot “assume the role of advocate for the pro se litigant.”[4] The Court will not “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[5] The Court need only accept as true a plaintiff's “well-pleaded factual contentions, not his conclusory allegations.”[6] To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, to “raise a right to relief above the speculative level” and must contain “enough facts to state a claim to relief that is plausible on its face.”[7]

         III. Analysis

         A. FMLA Interference

         The Court first considers whether Carter has adequately stated a claim against Foulston for FMLA interference. “Under the FMLA, an employer may not ‘interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].' ”[8] To establish a prima facie case of interference, a plaintiff must show: (1) plaintiff was entitled to FMLA leave; (2) the employer's adverse action interfered with plaintiff's right to take FMLA leave; and (3) the employer's adverse action was related to the exercise or attempted exercise of the plaintiff's FMLA rights.[9]

         The FMLA broadly defines “employer” to include “any person who acts, directly or indirectly, in the interest of the employer to any of the employees of such employer.”[10] The Tenth Circuit has not addressed whether a law firm representing a company becomes an “employer” to the company's employees under the FMLA. It appears the only court to have addressed this issue is a district court in the Western District of New York, which held that a FMLA interference claim could not be maintained against the attorneys defending the employer-defendant.[11] The Eckert Court held that “attorneys retained to defend against plaintiff's earlier FMLA suit are simply not [persons] who act, directly or indirectly, in the interest of an employer to any of the employees of such employer.”[12] The Eckert Court went on to say it had “located no case which extends the language of § 2611(4)(A)(ii)(I) to include attorneys for an employer or union simply because they represent the employer in matters relating to the employee.”[13]

         Although the Tenth Circuit is silent on the matter, many circuit courts “have observed that the FMLA's definition of ‘employer' largely tracks the definition of ‘employer' used in the Fair Labor Standards Act (‘FLSA') and have come to the reasoned conclusion that the standards used to evaluate ‘employers' under the FLSA should therefore be applied to govern the FMLA as well.”[14] Whether a party meets the “employer” definition under the FLSA depends on “the totality of the circumstances.”[15] Relevant factors include if the party: “(1) has power to hire and fire employees; ...


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