United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Robert Durrell worked at Tech Electronics, Inc., since 1994.
After taking medical leave under the Family Medical Leave Act
(FMLA) in 2016, Durrell returned to work only to
be terminated by Tech a few weeks later. In this action,
Durrell claims that Tech unlawfully retaliated against him
for taking FMLA leave, in violation of the FMLA; and
unlawfully terminated him because of his disability, in
violation of the Americans with Disabilities
and the Missouri Human Rights Act. Durrell also brings state
tort claims of slander/invasion of privacy and intentional
infliction of emotional distress. Finally, Durrell seeks a
declaration that portions of his employment agreement with
Tech are void and/or unenforceable.
now seeks leave to file a second amended complaint, which
does not add claims but merely adds a factual allegation to
support his claim for declaratory relief. I will grant this
motion. Because the second amended complaint does not change
the nature or substance of Durrell's claims, I will
consider Tech's pending motion to dismiss as being
directed to the second amended complaint. For the following
reasons, I will grant the motion in part and deny it in part.
seeks to dismiss Durrell's tort claims and his claim for
declaratory relief under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim. When reviewing a Rule 12(b)(6) motion to
dismiss, I assume the allegations in the complaint to be true
and construe the complaint in plaintiff's favor. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007);
Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d
853, 862 (8th Cir. 2010); Anzaldua v. Northeast Ambulance
& Fire Prot. Dist., 978 F.Supp.2d 1016, 1021 (E.D.
Mo. 2013). To survive a motion to dismiss, the complaint need
not contain “detailed factual allegations, ” but
it must contain facts with enough specificity “to raise
a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. The issue in determining a
Rule 12(b)(6) motion is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to
present evidence in support of the claim. See Skinner v.
Switzer, 562 U.S. 521, 529-30 (2011) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Durrell began working at Tech as an estimator/account manager
in 1994. He was an at-will employee. Contained within his
employment agreement with Tech is a non-compete clause and a
clause that permitted Tech to terminate him if he became
unable to perform his duties because of illness, accident, or
other physical or mental incapacity.
in 2015, Durrell began experiencing job-related anxiety for
which he received medical treatment. Beginning January 18,
2016, Durrell took a five-week period of leave under the
FMLA. Tech was aware that his leave was on account of
work-related stress. When Durrell was ready to return to work
after five weeks, Tech delayed his return for an additional
four-to-five-week period. Upon Durrell's return, Tech
presented him with a document outlining mandatory
work-related changes to Durrell's work activities.
Durrell signed the agreement under threat of immediate
termination if he did not sign it. On April 22, 2016, Tech
terminated Durrell's employment.
Durrell's medical leave, Tech sent Durrell many emails
that required responses. United States Marshals also went to
Durrell's home during this time and demanded to examine
the home and Durrell's personal belongings. Durrell
claims that Tech was responsible for sending the marshals to
Durrell was terminated, a Tech supervisor demanded that
Durrell surrender the contents of his briefcase, which
included Durrell's personal items. The marshals again
visited Durrell at his home and demanded to examine his home
and personal belongings. Durrell claims that it was Tech who
sent the marshals.
after all of these events occurred, Durrell suffered a heart
November 2016, Tech informed Durrell that it had obtained
information that Durrell may be employed by a competitor and
thus was acting inconsistently with the non-compete clause of
the employment agreement. Tech advised that it would asserts
its rights thereunder.