                                         UNPUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                          No. 16-1630


MONICA P. QUINTANA,

                        Plaintiff – Appellant,

                v.

CITY OF ALEXANDRIA,

                        Defendant – Appellee,

                and

RANDSTAD US L.P.; LISA BAKER; KOURTNEY HARRIS,

                        Defendants.

--------------------------------------

CENTRO DE LOS DERECHOS DEL MIGRANTES; NATIONAL EMPLOYMENT
LAW PROJECT, INC.; NORTH CAROLINA JUSTICE CENTER; PUBLIC JUSTICE
CENTER,

                        Amici Supporting Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:15-cv-01553-LMB-JFA)


Argued: May 10, 2017                                           Decided: June 6, 2017


Before GREGORY, Chief Judge, and SHEDD and WYNN, Circuit Judges.
Reversed and remanded by unpublished opinion. Judge Shedd wrote the opinion, in
which Chief Judge Gregory and Judge Wynn joined.


ARGUED: Patrick Daniel Llewellyn, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Michelle DeFinis Gambino, GREENBERG TRAURIG
LLP, McLean, Virginia, for Appellee. ON BRIEF: Michael T. Kirkpatrick, PUBLIC
CITIZEN LITIGATION GROUP, Washington, D.C., for Appellant. Kevin B. Bedell,
Michael A. Hass, GREENBERG TRAURIG LLP, McLean, Virginia, for Appellee.
Catherine K. Ruckelshaus, NATIONAL EMPLOYMENT LAW PROJECT, New York,
New York, for Amici Curiae.


Unpublished opinions are not binding precedent in this circuit.




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SHEDD, Circuit Judge:

       Monica P. Quintana appeals the district court’s order dismissing her claims against

the City of Alexandria pursuant to Federal Rule of Civil Procedure 12(b)(6). For the

reasons explained below, we reverse the district court’s order and remand for further

proceedings.

                                            I.

       Because this appeal stems from a dismissal under Rule 12(b)(6), we accept the

facts as alleged in Quintana’s First Amended Complaint (“the complaint”). LeSeur-

Richmond Slate Corp. v. Fehrer, 666 F.3d 261, 264 (4th Cir. 2012). In 2011, Quintana

began working for the City of Alexandria (“the City”). Her job entailed answering phone

calls from residents and directing callers to the appropriate City department. The City

told Quintana that her position was temporary, but would become permanent in one year.

Approximately a year later, the City requested that Randstad US, L.P. (“Randstad”) begin

administering payroll and performing related administrative functions for Quintana’s

position. The City attempted to characterize Randstad as Quintana’s new employer, but

also presented the change as a condition of Quintana’s continued employment with the

City. The City told Quintana that all other aspects of her employment would remain the

same. Quintana completed an application form at Randstad but was instructed not to

complete various sections. For the rest of Quintana’s time in the position, Randstad’s role

remained limited to payroll and related administrative functions. Although she was a full-

time employee, Quintana did not receive any employment benefits from either the City or

Randstad. Quintana continued to report only to City supervisors regarding all matters not

                                            3
related to payroll. The City continued to control Quintana’s amount of compensation, job

title, schedule, job function and day-to-day work duties, supervision, performance

evaluation, and termination of employment.

      On January 9, 2014, Quintana learned that her husband had been hospitalized and

was in a coma. Later that day, Quintana asked her supervisor, Lisa Baker, who was a City

employee, if she could take leave to care for her husband. Baker told Quintana that she

could take leave without losing her job, as long as she was not gone for more than three

months. No one at the City indicated that Quintana was required to notify or obtain

approval from Randstad to take leave. However, Quintana still notified Randstad that she

was taking leave to care for her husband, with permission from the City. On January 10,

Quintana requested any necessary Family and Medical Leave Act (“FMLA”) forms from

the City, which the City never provided, and began her leave. Quintana updated her

supervisors and co-workers at the City throughout the following week regarding her

husband’s condition and the status of her leave. On January 16, Quintana notified Baker

that she hoped to return to work soon. However, on January 17, Baker emailed Quintana

indicating that because the City had not heard from her in over a week, the City had

replaced her. This email was the only notice of Quintana’s termination. The City did not

provide Quintana with any notice about her rights and responsibilities under the FMLA

before her termination. Quintana unsuccessfully sought reinstatement or alternative

employment numerous times from the City and from Randstad.




                                             4
                                             II.

       Quintana sued the City and Randstad alleging violations of her rights under the

FMLA, 29 U.S.C. § 2601 et seq. Quintana alleged that the City, as her primary employer,

and Randstad, as her secondary employer, both denied her rights under the FMLA and

retaliated or discriminated against her for the exercise of those rights. In the alternative,

Quintana alleged that Randstad was her primary employer and the City was her

secondary employer. The City moved to dismiss under Rule 12(b)(6), arguing that it

could not be liable under the FMLA because the complaint, as a matter of law, failed to

establish that the City was Quintana’s employer. The district court held oral argument

and subsequently granted the City’s motion as to all claims. After the City was dismissed

from the case, Randstad made an Offer of Judgment under Rule 68 of the Federal Rules

of Civil Procedure, which Quintana accepted. Accordingly, the district court entered final

judgment for Quintana against Randstad.

                                            III.

       We review the district court’s dismissal of Quintana’s FMLA claims de novo.

Wag More Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d 359, 364–65 (4th Cir. 2012). At

the motion to dismiss stage, we accept as true all of the well-pleaded allegations and view

the complaint in the light most favorable to Quintana. LeSeur-Richmond Slate Corp., 666

F.3d at 264. To survive the Rule 12(b)(6) motion, Quintana’s complaint must establish

facial plausibility by pleading factual content that allows the court to draw the reasonable

inference that the City is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

                                             5
       Where applicable, the FMLA entitles employees to take leave for medical reasons,

for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a

serious health condition. 29 U.S.C. § 2601(b)(2). The FMLA provides covered

employees with the substantive right to twelve workweeks of leave during any 12-month

period, id. § 2612(a)(1), for family and health-related issues, as well as a right “to be

restored by the employer to the position of employment held by the employee when the

leave commenced” or to “an equivalent position,” id. § 2614(a)(1)(A)–(B).

       Quintana alleges she was jointly employed by the City and Randstad. In the

FMLA context, a joint employment relationship exists where two employers, a primary

and a secondary employer, “exercise some control over the work or working conditions

of the employee.” 29 C.F.R. § 825.106(a). Only the primary employer is responsible for

giving required notices to employees and providing FMLA leave. Id. § 825.106(c). The

primary employer is also primarily responsible for job restoration following FMLA leave.

Id. § 825.106(e). The secondary employer, however, is responsible for “accepting the

employee returning from FMLA leave . . . if the secondary employer continues to utilize

an employee from the temporary placement agency, and the agency chooses to place the

employee with the secondary employer.” Id. (the “conditional reinstatement obligation”).

In determining which of two joint employers is the primary employer, factors considered

include authority or responsibility to hire and fire, assign or place the employee, make

payroll, and provide employment benefits. Id. § 825.106(c).

       Claims of alleged violations of these prescriptive rights are known as

“interference” or “entitlement” claims. Yashenko v. Harrah’s NC Casino Co., LLC, 446

                                              6
F.3d 541, 546 (4th Cir. 2006). Interference claims arise under 29 U.S.C. § 2615(a)(1),

which states that “[i]t shall be unlawful for any employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise, any right provided under this subchapter.”

The regulations provide that interference with the exercise of an employee’s rights would

include, for example, refusing to authorize FMLA leave, discouraging an employee from

using such leave, and manipulation to avoid responsibilities under the FMLA. See 29

C.F.R. § 825.220(b).

       Additionally, the FMLA protects covered employees from discrimination or

retaliation for exercising their substantive rights under the FMLA. Yashenko, 446 F.3d at

546. These claims are known as “retaliation” or “discrimination” claims and arise under

29 U.S.C. § 2615(a)(2), which states that “[i]t shall be unlawful for any employer to

discharge or in any other manner discriminate against any individual for opposing any

practice made unlawful by this subchapter.” Quintana asserts both an interference claim

(Count One) and a discrimination or retaliation claim (Count Two) against the City as her

primary employer, and in the alternative, as her secondary employer. The district court,

however, assumed that the City of Alexandria would be considered a joint employer and

was the secondary employer. The court subsequently concluded that Quintana had not

alleged sufficient facts to state a claim against the City.




                                               7
       We disagree. 1 Quintana has alleged sufficient facts that the City was her primary

employer, and therefore had the responsibility to provide FMLA leave and restore her to

her job following leave. 2 Namely, Quintana alleged that the City is her primary employer

based on its exclusive control over her hiring, firing, work assignment, and work

conditions. Considering the 29 C.F.R. § 825.106(c) factors in determining who is the

primary employer, Quintana alleged facts relevant to those factors, which, taken in the

light most favorable to her, indicate the City could be her primary employer. The first

two factors indicate the City is the primary employer and the other factors are neutral or

inapplicable. With regard to the first two factors, Quintana alleged that the City had the

authority and responsibility to hire and fire her and to assign or place her. Quintana

asserted that the City unilaterally interviewed, hired, assigned, evaluated, and terminated

her. As to the third factor, while Randstad did make payroll, Quintana alleges that the

City determined her amount of compensation. Finally, the fourth factor appears

inapplicable, as Quintana alleges that neither the City nor Randstad provided employment




       1
         At oral argument, the district court heard numerous factual representations that
fell outside the complaint. Without addressing whether the court improperly considered
these facts, we hold that the complaint on its face states a sufficient claim to relief.
       2
         The City contends that Quintana should be estopped from claiming that the City
is her primary employer based on her alternative argument that the City is liable as her
secondary employer. The City’s arguments are without merit. In this case, Quintana
merely pled in the alternative, without asserting conflicting factual allegations, which is
permissible under Federal Rule of Civil Procedure 8(d)(2)-(3). On appeal, Quintana also
argues that the City is her sole employer. Because the complaint alleges throughout that
the City and Randstad are joint employers, we do not credit that argument.


                                             8
benefits to her. It is not fatal to Quintana’s complaint that all factors do not strongly

indicate that the City is her primary employer.

         Quintana has pled sufficient facts to state a claim against the City. Quintana

alleged facts that, under the FMLA, she is an eligible employee and the City is a covered

employer. Quintana also alleged facts that her husband’s hospitalization was a “serious

health condition” entitling her to take leave under the FMLA and that she gave the City

appropriate notice of her intention to take leave. With regard to Count One, Quintana has

pled sufficient facts to state an interference claim against the City under 29 U.S.C. §

2615(a)(1). The complaint alleges numerous instances of conduct by the City, which,

construed most favorably to Quintana, could establish that the City, as her primary

employer, unlawfully interfered with or denied FMLA benefits. This conduct includes

but is not limited to, failing to give proper notice or approval of Quintana’s request for

FMLA leave, failing to restore Quintana to her position or a substantially equivalent

position, and terminating Quintana’s employment while she was on FMLA qualifying

leave.

         Further, Quintana states an interference claim against the City as a secondary

employer in Count One. Aside from the conditional reinstatement obligation, “[a]

secondary employer is also responsible for compliance with the prohibited acts

provisions with respect to its jointly employed employees . . . .” 29 C.F.R. § 825.106(e).

29 U.S.C. § 2615(a)(1)–(2) prohibits interference and retaliation by any employer,

including secondary employers. See 29 C.F.R. § 825.106(e); see also Cuellar v. Keppel

Amfels, L.L.C., 731 F.3d 342, 346 (5th Cir. 2013); Grace v. USCAR, 521 F.3d 655, 667

                                             9
(6th Cir. 2008). The district court found the City could not be liable as a secondary

employer because Quintana did not allege that the City violated the conditional

reinstatement obligation by failing to accept Quintana’s reinstatement (at Randstad’s

direction) after her FMLA leave. However, Quintana made numerous factual assertions

that the City interfered with her FMLA rights, regardless of whose obligation it was to

provide leave and reinstatement. At minimum, her assertion that the City falsely granted

her permission to take FMLA leave instead of directing her to Randstad for approval

sufficiently states an interference claim. The complaint states that Quintana’s supervisor

Baker, a City employee, approved her FMLA leave request and told her not to worry

about losing her job. Construed most favorably to Quintana, these facts indicate that the

City, by approving her leave when it had no authority to do so as a secondary employer,

could have interfered with her right to seek leave from Randstad.

      With regard to Count Two, Quintana alleges sufficient facts to state a

discrimination or retaliation claim against the City under 29 U.S.C. § 2615(a)(2).

Construed in the light most favorable to Quintana, the January 17 email from Baker

terminating Quintana because she took leave states sufficient factual allegations that the

City terminated Quintana as a result of her engaging in FMLA-protected activity. Neither

primary nor secondary employers may retaliate or discriminate based on FMLA-

protected conduct; thus, Quintana states a claim in Count Two regardless of the City’s

status as a primary or secondary employer.




                                             10
                                            IV.

       For the reasons explained above, we reverse the district court’s order granting the

City’s motion to dismiss and remand for further proceedings in the district court.



                                                          REVERSED AND REMANDED




                                            11
