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Lapham v. Walgreen Co.

United States District Court, M.D. Florida, Orlando Division

July 15, 2019

DORIS LAPHAM, Plaintiff,
WALGREEN CO., Defendant.



         This cause comes before the Court on Defendant Walgreen Co.'s Motion to Dismiss the Amended Complaint or, in the Alternative, for a More Definite Statement (Doc. 16), and Plaintiff Doris Lapham's Response in Opposition (Doc. 17). Upon consideration, Defendant's motion is due to be granted in part and denied in part.

         I. BACKGROUND

         This employment discrimination and retaliation case arises from Defendant Walgreen Co.'s (“Walgreens”) termination of Plaintiff Doris Lapham's employment in the wake of reports by Plaintiff of illegality and improper practices, and her requests for leave under the Family and Medical Leave Act (“FMLA”). (Doc. 13, ¶ 29).

         Plaintiff worked for Walgreens for over eleven years, but towards the end of her tenure experienced difficulties involving leave requests. (Id. ¶¶ 18, 22). Plaintiff is the only caregiver for her disabled son whom requires extensive care. (Id. ¶ 18). In 2016, Plaintiff requested, and Defendant granted, intermittent FMLA leave to care for her son. (Id. ¶ 21). Later, Plaintiff's manager changed. (Id. ¶ 22). The new manager gave “Plaintiff a difficult time over her protected time off (FMLA leave) and requests for accommodations under the Americans with Disabilities Act (‘AD A ').”[1] (Id.). Plaintiff first complained to her new manager that her requested leave was protected, and later complained to human resources. (Id.).

         Concurrently, Plaintiff observed and documented “constant violation[s] of numerous laws, rules, and regulations” by Defendant in the store where she worked. (Id. ¶ 23). Plaintiff informed Defendant that the store's condition-namely, objects blocking exit doors-was in violation of applicable fire hazard codes. (Id. ¶ 24). Plaintiff reported other issues, including Occupational Safety and Health Act (“OSHA”) violations, bodily fluids in the store, a roach infestation, and that salmonella[2] and bugs were present in the cooler, to Defendant. (Id.). Plaintiff contends Defendant ignored her complaints and told her the reported problems were not Plaintiff's responsibility. (Id.).

         Beginning around the time Plaintiff started reporting issues in the store, Defendant's treatment of Plaintiff's FMLA applications changed. (Id. ¶ 25). Plaintiff requested further FMLA intermittent leave, as she had previously done, to care for her son. (Id.). The paperwork was timely submitted “nearly the same” as previous, approved requests, but this application was denied. (Id. ¶ 26). Plaintiff submitted two more FMLA requests in February and March 2017. (Id.).

         Plaintiff's manager then “began retaliating against Plaintiff by writing her up and putting her on a bogus performance improvement plan(s).” (Id. ¶ 27). In March 2017, Plaintiff complained to Defendant “that she was being harassed, not accommodated, discriminated against, and retaliated against by her new Store Manager.” (Id. ¶ 28). In response, Defendant promised an investigation and told Plaintiff her manager would be transferred. (Id.).

         Defendant next denied Plaintiff's final FMLA request and terminated her on April 13, 2017, citing “insubordination”. (Id. ¶ 29). Plaintiff alleges her firing was retaliation for her FMLA leave requests and reports of legal and regulatory violations at her store. (Id.).

         Following her termination, Plaintiff initiated this action alleging Defendant terminated her for reporting “violations of laws, rules, and regulations, and her requesting FMLA leave” in violation of The Florida Whistleblower Act (“FWA”), FMLA, and the Florida Civil Rights Act (“FCRA”). (Id. ¶ 29). The Amended Complaint proceeds in four Counts: Retaliation under the FWA (Count I), Retaliation under the FMLA (Count II), Interferenc e under the FMLA (Count III), and Retaliation under the FCRA (Count IV).


         To survive a motion to dismiss made pursuant to Rule 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Legal conclusions and recitation of a claim's elements are properly disregarded, and courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts must also view the complaint in the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint in the plaintiff's favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per curiam). In sum, courts must (1) ignore conclusory allegations, bald legal assertions, and formulaic recitations of the elements of a claim; (2) accept well-pled factual allegations as true; and (3) view well-pled allegations in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 67.


         Defendant moves to dismiss Counts I and IV of the Amended Complaint for failure to state plausible claims to relief. (Doc. 16, p. 1). Defendant ...

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