                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 15, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    TERRY WINNE,

                Plaintiff-Appellant,

    v.                                                    No. 10-1568
                                             (D.C. No. 1:10-CV-01978-PAB-MJW)
    CITY OF LAKEWOOD,                                      (D. Colo.)
    COLORADO,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.



         Terry Winne appeals from the district court’s order dismissing his

complaint for failure to state a claim under the Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601-2654. We have jurisdiction under 28 U.S.C. § 1291,

and AFFIRM.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   B ACKGROUND

      In 1999, Winne began working for the City of Lakewood as an emergency

dispatcher. In 2005, he was injured in an automobile accident, requiring that he

take medication for headaches. A change in his medication in January 2008

caused him to “suffer cognitive problems,” Aplt. App. at 1, and he was placed on

intermittent FMLA leave throughout “the spring and summer,” id. at 2.

      On August 11, 2008, the City transferred Winne to the police department’s

records section after a psychiatrist found him unfit for his dispatcher duties.

Roughly two weeks later, the City fired Winne “even though he still had available

FMLA leave.” Id. at 2. The City stated “that the termination was because of his

attendance.” Id.

      Winne retained counsel and sued the City under the FMLA, seeking

liquidated damages, lost wages, and reinstatement to his dispatcher position. The

City moved to dismiss, arguing that Winne’s complaint failed to state a viable

FMLA claim. In response, Winne filed a one-page opposition, quoting his

complaint and concluding: “the City told him that he was being terminated

because he missed work in spite of the fact that he was on approved FMLA leave.

Mr. Winne cannot enlighten this Court as to why the City asserts this does not

state a claim. Does too.” Id. at 18.

      The district court dismissed the complaint, noting that it lacked allegations

sufficient to identify which FMLA theory Winne was pursuing, and that there was

                                         -2-
no allegation set forth in his complaint that Winne was actually on approved

FMLA leave when he was fired. Further, the district court observed that the

City’s approval of leave “for a serious health condition during the spring and

summer of 2008 does not, without further allegations, protect him from being

terminated for missing work for reasons unrelated to that condition, and

[Winne’s] complaint is silent regarding the nature and circumstances of his

attendance issues.” Id. at 28. 1

                                     D ISCUSSION

      We review de novo a district court’s dismissal for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). Sunrise Valley, LLC v.

Kempthorne, 528 F.3d 1251, 1254 (10th Cir. 2008). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quotation omitted). “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.” Id. Although

the complaint need not recite “detailed factual allegations, . . . the factual

allegations must be enough to raise a right to relief above the speculative level.”


1
      The district court also concluded that leave to amend was unwarranted,
given that Winne had not requested it, and had provided a “flippant,” rather than
substantive response to the City’s motion to dismiss. Id. On appeal, Winne does
not challenge the denial of leave to amend.

                                          -3-
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir.

2009) (quotation omitted).

       “Despite the liberality of modern rules of pleading, a complaint still must

contain either direct or inferential allegations respecting all the material elements

necessary to sustain a recovery under some viable legal theory.” Bryson v.

Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration and quotation

omitted). Winne’s complaint does not indicate which of the two possible theories

of FMLA liability he is pursuing. Under a “retaliation or discrimination theory,”

it is “unlawful for any employer to discharge or in any other manner discriminate

against any individual for opposing any practice made unlawful by this

subchapter.” DeFreitas v. Horizon Inv. Mgmt. Corp., 577 F.3d 1151, 1160

(10th Cir. 2009) (quotation omitted). Under the “interference theory,” it is

“unlawful for any employer to interfere with, restrain, or deny the exercise of or

the attempt to exercise, any right provided under this subchapter.” Id. (quotation

omitted). 2   Winne’s complaint fails to allege the material elements necessary for

either FMLA theory.



2
       On appeal, Winne does not indicate which theory he is pursuing, other than
to say that “it seems likely that [the City] probably terminated him under the
interference theory.” Aplt. Br. at 8. Further, Winne devotes considerable
argument to his belief that the district court’s dismissal was based on his failure
to expressly “proceed under one theory or the other.” Aplt. Br. at 9. But Winne
ignores the district court’s discussion of the complaint’s deficiencies regarding
both FMLA theories.

                                          -4-
      To state a prima facie case under a retaliation/discrimination theory, Winne

must allege that (1) he engaged in a protected activity; (2) a reasonable employee

would have found the City’s action materially adverse; and (3) there is a causal

connection between the protected activity and the City’s adverse action. Metzler

v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006). But

Winne’s complaint does not allege that he was engaged in a protected activity,

such as exercising his right to take FMLA leave, or that the City fired him

because of such activity. Rather, the complaint only alleges that Winne had been

“approved for intermittent leave” “[d]uring the spring and summer,” and that

when he was fired “because of his attendance . . . he still had available FMLA

leave.” Aplt. App. at 2.

      Even if the complaint could be read as indicating that Winne’s actual use of

intermittent FMLA leave was the focus of his complaint, the complaint is still

deficient in failing to relate his use of intermittent FMLA leave to his termination.

Indeed, “intermittent leave” is defined as “FMLA leave taken in separate blocks

of time due to a single qualifying reason,” 29 C.F.R. § 825.202(a), and may

include leave of periods from an hour or more to several weeks,” id. §

825.202(c)(1). Thus, Winne’s use of FMLA could be so separated from the

termination as to not even raise an inference of retailation. See Metzler, 464 F.3d

at 1171 ( stating that “temporal proximity between protected conduct and

termination [i]s relevant evidence of a causal connection sufficient to justify an

                                         -5-
inference of retaliatory motive (quotation omitted)). Moreover, the fact that the

City fired Winne even though he had available FMLA leave does not mean the

City fired him because of the use of FMLA leave. Rather, the City could have

fired him because of his use of non-FMLA leave.

      Winne argues that “[e]ven if [he] omitted some necessary fact from [the]

complaint,” it contains enough plausible inferences to withstand dismissal. Aplt.

Br. at 11. He contends that one such inference is that he did not take any

non-FMLA leave because “an employee, who is taking leave for medical reasons,

would not want to push his luck with his employer by taking additional leave for

nonmedical reasons.” Id. at 11-12. We are not persuaded by such an overly

speculative generalization. Cf. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557

n.5 (2007) (indicating that “to enter the realm of plausible liability,” the plaintiff

must cross the line “between the factually neutral and the factually suggestive”).

Further, Winne states that the necessary causal connection can be inferred from

the timing of his termination. But as discussed earlier, the complaint fails to set

out a temporal relationship between his use of FMLA leave and his termination.

      We conclude that although the complaint could be read as suggesting the

possibility that Winne used FMLA leave at a relevant time and that he was fired

for taking that leave, “the mere possibility of misconduct” will not sustain a claim

for relief. Iqbal, 129 S. Ct. at 1950. Thus, Winne failed to allege a viable FMLA

retaliation/discrimination claim.

                                           -6-
      To state a prima facie interference claim, Winne must allege: “(1) that he

was entitled to FMLA leave, (2) that some adverse action by the City interfered

with his right to take FMLA leave, and (3) that the City’s action was related to

the exercise or attempted exercise of his FMLA rights. Cambpell v. Gambro

Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Even assuming that

Winne’s complaint adequately alleges the first two elements of an interference

claim, there is no allegation of “a causal connection between h[is] termination and

h[is] exercise of FMLA rights,” Metzler, 464 F.3d at 1181. As we discussed

above in the retaliation/discrimination context, Winne’s complaint does not

connect any use of FMLA leave to his termination. Thus, Winne has failed to

“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

                                    C ONCLUSION

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Chief Judge




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