Miles v. Unified School District No. 500, Kansas City, Kansas, et al

Filing 43

MEMORANDUM AND ORDER denying 17 Motion to Dismiss Party. Signed by District Judge Daniel D. Crabtree on 10/16/2018. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SUSAN M. MILES,
Plaintiff,
v.

Case No. 17-2685-DDC-TJJ

UNIFIED SCHOOL DISTRICT NO. 500,
KANSAS CITY, KANSAS and
VALERIE CASTILLO,
Defendants.
____________________________________

MEMORANDUM AND ORDER
Plaintiff Susan Miles’s lawsuit arises from her discharge as a teacher at McKinley
Elementary School in Kansas City, Kansas. Plaintiff filed suit against two defendants: Unified
School District No. 500, Kansas City, Kansas (“the District”) and Valerie Castillo. Doc. 1. Ms.
Castillo is the Principal of McKinley Elementary School. Relevant here is the single claim
plaintiff brings against Ms. Castillo: Plaintiff alleges that Ms. Castillo discriminated and
retaliated against plaintiff for taking leave under the Family Medical Leave Act (“FMLA”).
Ms. Castillo has moved to dismiss plaintiff’s FMLA claim against her under Federal Rule
of Civil Procedure 12(b)(6). Doc. 17. She makes four arguments supporting dismissal. First,
she contends that the Complaint fails to allege facts sufficient to show that she was plaintiff’s
“employer,” as defined by the FMLA. Second, she asserts that the Complaint does not allege
facts capable of establishing that plaintiff engaged in an FMLA-protected activity. Third, Ms.
Castillo argues that the Complaint fails to allege facts sufficient to show that Ms. Castillo took

materially adverse action against her. Fourth, Ms. Castillo contends, even if plaintiff pleaded a
sufficient FMLA claim, qualified immunity protects her from suit.
Plaintiff then filed a Response. Doc. 27. And Ms. Castillo filed a timely Reply. Doc.
30. After considering the arguments and authorities presented in the parties’ papers, the court
denies Ms. Castillo’s Motion to Dismiss.
I.

Facts
The following facts come from plaintiff’s Complaint. Doc. 1. The court accepts the facts

asserted in the Complaint as true and views them in the light most favorable to plaintiff. Burnett
v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
Defendant Unified School District No. 500, Kansas City, Kansas (“the District”) entered
into a teaching contract with plaintiff in 2007. This contract automatically renewed every year.
In 2016, plaintiff worked at McKinley Elementary School. Ms. Castillo was McKinley’s
Principal. Ms. Castillo supervised plaintiff’s work and had the ability to make decisions
affecting the terms and conditions of plaintiff’s employment with the District.
On April 8, 2016, a McKinley student tripped plaintiff while she was teaching. Plaintiff
fell, knocking her unconscious. As a result, plaintiff suffered a concussion, occipital nerve
damage, a back sprain, a neck sprain, and a foot fracture. She was diagnosed with occipital
neuralgia and post-concussive syndrome, which caused vision problems, severe headaches,
confusion, and dizziness. On May 11, 2016, plaintiff applied for FMLA leave because of her
occipital neuralgia. The District approved plaintiff’s request and gave her medical leave for the
remainder of the 2015–16 school year. Later that month, Ms. Castillo directed plaintiff to
complete all her lesson plans for the next school year before she began her FMLA leave. And, in

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May 2016, while plaintiff was on FMLA leave, Ms. Castillo made plaintiff return to school and
clean out her classroom at the end of the school year. While plaintiff completed these tasks, Ms.
Castillo implored plaintiff to return to work.
Plaintiff and the District allowed plaintiff’s contract to renew automatically for the 2016–
17 school year. On August 16, 2016, the District approved plaintiff’s second FMLA request
extending her leave through November 2, 2016. At the end of this leave, the District then
approved an unpaid leave of absence from November 3, 2016, to January 4, 2017. In December
2016, the District’s worker’s compensation physician released plaintiff to return to work,
effective January 4, 2017. Plaintiff then went to McKinley to deliver the doctor’s work release
forms to Ms. Castillo. While she was there, plaintiff asked Ms. Castillo what she had missed
while she was gone. Ms. Castillo responded, “Half a year of school.” Ms. Castillo later told
plaintiff, “[Y]ou need to get out of here so our people can work.” On January 4, 2017, Ms.
Castillo, either individually or in concert with the District, discharged plaintiff’s employment.
II.

Legal Standard
On a motion to dismiss for failure to state a claim, the court accepts all facts pleaded by

the non-moving party as true and draws any reasonable inferences in favor of the non-moving
party. Brokers’ Choice of Am. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014).
“To survive a motion to dismiss [under Rule 12(b)(6)], 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court

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reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for
these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
Although this Rule “does not require ‘detailed factual allegations,’” it demands more than
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action’” which, as the Supreme Court has explained, simply “will not do.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). This is so because the court need not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 557 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation omitted)).
III.

Discussion
A.

Plaintiff’s Complaint States a Plausible Claim That Ms. Castillo is Plaintiff’s
Employer Under the FMLA.

When a plaintiff brings an FMLA retaliation or discrimination claim, plaintiff must
establish that the defendant is her employer. 29 U.S.C. § 2615(a)(1), (2). The FMLA defines an
“employer” as “any person who acts, directly or indirectly, in the interest of the employer to any
of the employees of such employer. Id. § 2511(4)(A)(ii)(I). And, 29 C.F.R. § 825.104(d)
provides additional context:
An employer includes any person who acts directly or indirectly in
the interest of an employer to any of the employer's employees. The
definition of employer in section 3(d) of the Fair Labor Standards
Act (FLSA), 29 U.S.C. 203(d), similarly includes any person acting
directly or indirectly in the interest of an employer in relation to an
employee. As under the FLSA, individuals such as corporate
officers “acting in the interest of an employer” are individually
liable for any violations of the requirements of FMLA.
The Tenth Circuit has not decided whether an individual supervisor may be an “employer” under
the FMLA, and thus liable for FMLA violations. But, in Saavedra v. Lowe’s Home Centers,

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Inc., District Judge James Browning, after reviewing the relevant case law, found that the
majority of circuit courts confronting the issue had concluded that individuals may be held liable
as “employers” under the FMLA. 748 F. Supp. 2d 1273, 1283 (D.N.M. 2010) (citing Darby v.
Bratch, 287 F.3d 673, 680–81 (8th Cir. 2002) (other citations omitted)); see also Saavedra, 748
F. Supp. 2d at 1284 (collecting district court cases in the Tenth Circuit and holding that the
FMLA provides for individual liability). The court predicts that, if presented with this issue, the
Tenth Circuit would follow the majority view and hold that an individual may be subject to
liability as an “employer” under the FMLA. See Richards v. Schoen, No. 17-4080-SAC, 2018
WL 447731, at *5 (D. Kan. Jan. 17, 2018) (following the holding of the “majority of the courts”
and concluding that “the FMLA allows for suits against public officials in their individual
capacity”). But see Abrogast v. Kansas, No. 13-4007-JAR, 2014 WL 1304939, at *4 (D. Kan.
Mar. 31, 2014) (concluding “that public officials are not ‘employers’ subject to liability under
the FMLA”).
Judge Browning then posited that the Tenth Circuit would apply the “economic-reality
test” to decide which individual would be considered “employers” under the FMLA. Id. at 1293;
see also Cordova v. New Mexico, 283 F. Supp. 3d 1028, 1039 (D.N.M. 2017). The court finds
Judge Browning’s reasoning persuasive, and also agrees that the Tenth Circuit, if presented with
this question, would apply the economic reality test here. “ʻThe economic reality test includes
inquiries into whether the alleged employer has the power to hire and fire employees, supervises
and controls employee work schedules or conditions of employment, determines the rate and
method of payment, and maintains employment records.’” Cordova, 283 F. Supp. 3d at 1039
(quoting Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440 (10th Cir. 1998)). The court
also should consider the defendant’s involvement and control over the plaintiff’s ability to take

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FMLA leave. Id. at 1040. No single one of these factors controls the result. Id. at 1039. And,
contractual terminology does not bind the court. Baker, 137 F.3d at 1440. Instead, “ʻcourts ask
whether the alleged employer possessed the power to control the worker in question, with an eye
to the economic reality presented by the facts of each case.’” Cordova, 283 F. Supp. 3d at 1039–
40 (quoting Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 422 (2d Cir. 2016)).
Specifically, at the motion to dismiss stage, plaintiff need not allege specific facts about
defendant’s authority and control over plaintiff, particularly when factual issues dominate that
analysis. Id. at 1040 (citing Saavedra, 748 F. Supp. 2d at 1294–95).
The allegations in plaintiff’s Complaint relevant to the economic reality test, viewed in
plaintiff’s favor, are as follows: Ms. Castillo served as the school Principal of McKinley
Elementary School and directly supervised plaintiff. Doc. 1 (Compl. ¶¶ 1, 21). Ms. Castillo had
the ability to make decisions affecting the terms and conditions of plaintiff’s employment. Id.
Specifically, Ms. Castillo predicated plaintiff’s FMLA leave upon her completing certain tasks.
Id. at ¶¶ 31–32. Ms. Castillo also made plaintiff come in and work during her FMLA leave. Id.
Plaintiff delivered her FMLA work release form to Ms. Castillo, and Ms. Castillo made
disparaging comments about plaintiff’s absence from work. Id. at ¶ 44. Ms. Castillo, either
individually or acting in concert with the District, discharged plaintiff from her employment on
January 4, 2017, the day plaintiff was scheduled to resume work. Id. at ¶ 84.
In response, Ms. Castillo contends that plaintiff cannot satisfy the economic-reality test
because, as a matter of law, the District is plaintiff’s employer. Ms. Castillo notes that Kansas
law governs much of plaintiff’s employment status. For example, Kansas law provides that only
the local board of education can terminate a teacher’s employment. Kan. Stat. Ann. § 722251(a). And Kansas law dictates that contracts are binding between the teacher and board of

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education only. Id. § 72-2216. Ms. Castillo also argues that the board of education sets
plaintiff’s salary and benefits, citing Kan. Stat. Ann. § 72-2219.1
While Ms. Castillo cites many statutes that appear to give a great deal of power over
employment to the District, the court must ask whether Ms. Castillo “possessed the power to
control [plaintiff], with an eye to the economic reality presented by the facts of each case.”
Cordova, 283 F. Supp. 3d at 1039–40 (internal quotation and citation omitted). And, the court
notes, “‘[t]he court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted’ under Rule 8(a)(2) of the Federal
Rules of Civil Procedure.” Saavedra, 748 F. Supp. 2d at 1293–94 (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (quotation marks and citation omitted), cert.
denied, — U.S. —, 130 S. Ct. 1142 (2010). The court concludes that plaintiff’s Complaint has
pleaded sufficient facts at the motion to dismiss stage to satisfy her burden under the economic
reality test: A reasonable jury could infer, if it accredited the facts she has alleged, that Ms.
Castillo controlled the decision whether plaintiff could take FMLA leave and, if so, the terms of
this leave; that Ms. Castillo exercised discretion over the terms and conditions of plaintiff’s
employment; and that Ms. Castillo exercised power, alone or in concert with the District, to fire
plaintiff.
It is true that the Complaint never alleges that Ms. Castillo determined plaintiff’s rate of
pay or that Ms. Castillo maintained employment records. But, plaintiff is not required to satisfy
all four factors at the motion to dismiss stage. See Saavedra, 748 F. Supp. 2d at 1295
(“Although the Plaintiffs directly satisfy only two of the Tenth Circuit’s four factors, the Court

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But this provision only provides that unionized teachers must negotiate with the board of education. It is
unclear whether non-unionized teachers must negotiate with the board of education.

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believes that, viewing the facts in the light most favorable to the Plaintiffs, the allegations are
sufficient, given the Tenth Circuit’s economic-reality test, to defeat the motion to dismiss.”). In
short, plaintiff has pleaded sufficient facts to allow the parties to discover more details about the
degree of Ms. Castillo’s control over plaintiff’s employment. See Cordova, 283 F. Supp. 3d at
1040–41 (holding plaintiff’s Complaint sufficiently alleged that a defendant was plaintiff’s
employer when the Complaint stated that defendant was plaintiff’s supervisor and alleged facts
that defendant took some part in alleged FMLA violation). Plaintiff has met her burden by
pleading facts sufficient to support a reasonable jury’s conclusion that Ms. Castillo was
plaintiff’s employer under the FMLA.
B.

Plaintiff’s Complaint States a Plausible FMLA Retaliation and
Discrimination Claim.

Next, defendant argues that the Complaint does not plead a plausible FMLA retaliation
claim.2 An FMLA retaliation claim is analyzed under the familiar McDonnell Douglas burden
shifting approach. Metzler v. Fed Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir.
2006). This approach first requires the plaintiff to establish a prima facie case of retaliation or
discrimination. Id. If plaintiff carries that burden, the analysis shifts the next burden to
defendant, requiring it to prove a legitimate, non-discriminatory reason for its adverse

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Count IV of plaintiff’s Complaint asserts an “FMLA Discrimination/Retaliation” claim against Ms.
Castillo. “‘This circuit has recognized two theories of recovery under [29 U.S.C.] § 2615(a): an entitlement or
interference theory arising from § 2615(a)(1), and a retaliation or discrimination theory arising from § 2615(a)(2).”
Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1131 (10th Cir. 2014) (quoting Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1170 (10th Cir. 2006)). “These two theories of recovery are separate and distinct theories that
‘require different showings[,] differ with respect to the burden of proof,’ and ‘differ with respect to the timing of the
adverse action.’” Id. (quoting Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)). The
court thus construes plaintiff’s Complaint to assert a claim under the retaliation or discrimination theory, see 29
U.S.C. § 2615(a)(2), but not an interference or entitlement theory. If plaintiff intends to pursue a claim under an
interference or entitlement theory, she must seek leave to amend her Complaint. See Dalpiaz, 760 F.3d at 1132
(finding plaintiff waived any claim of FMLA retaliation by “failing to plead such a claim in her complaint and by
failing to object when both opposing counsel and the district court characterized her FMLA claim as relying solely
on an interference theory”).

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employment decision. Id. If defendant carries this burden, plaintiff then must show that
defendant’s proffered reason is pretext. Id.
A prima facie case of retaliation or discrimination requires that: (1) plaintiff engaged in
protected activity; (2) defendant took action that a reasonable employee would consider adverse;
and (3) a causal connection exists between the protected activity and the adverse action. Id.
Defendant argues that plaintiff has not pleaded facts capable of establishing the first two
elements of her prima facie case. Thus, the court considers whether, under plaintiff’s alleged
facts, a reasonable jury could find that (1) plaintiff engaged in protected activity, and (2)
defendant took action that a reasonable employee would consider adverse.
1. Protected Activity
The court first considers whether plaintiff engaged in a protected activity. Defendant
argues that plaintiff’s claim fails because she did not plead that she was on FMLA leave when
she was discharged. Doc. 18 at 7 (citing Ney v. City of Hoisington, 508 F. Supp. 2d 877, 887–88
(D. Kan. 2007)). Because plaintiff’s FMLA leave ended on November 2, 2016, and plaintiff was
not discharged until January 4, 2017, defendant contends, plaintiff has no retaliation claim to
assert.
Defendant overreads Ney; in that case, the parties tasked our court to decide whether a
plaintiff pursuing a retaliation claim had satisfied the protected activity element by merely being
qualified to take leave, as opposed to applying and taking leave. Ney, 508 F. Supp. 2d at 886–87.
Our court concluded that “[t]he case law and pertinent regulations make clear that in order for a
plaintiff to ‘avail’ herself of the FMLA, she must fill out the appropriate paperwork and actually
elect to take such leave.” Id. at 887. Plaintiff has pleaded those elements in her Complaint.
Doc. 1 at 6 (Pl.’s Compl. ¶¶ 38–39). Also, “[t]he FMLA’s protection against retaliation is not

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limited to periods [when] an employee is on FMLA leave, but encompasses the employer’s
conduct both during and after the employee’s FMLA leave.” Hunt v. Rapides Healthcare Sys.,
277 F.3d 757, 768–69 (5th Cir. 2001), abrogated on other grounds by Wheat v. Fla. Par.
Juvenile Justice Comm’n, 811 F.3d 702 (5th Cir. 2016). Thus, plaintiff has cleared the low bar
and pleaded facts that, if true, can establish a plausible claim that she engaged in a protected
FMLA activity.
Defendant also contends that plaintiff did not engage in a protected activity because
plaintiff, by her own admission, could not return to work at the end of her FMLA leave.
Defendant is nearly correct: the FMLA does allow employers to terminate an employee who
cannot return to work after her 12 weeks of leave have expired. See McClelland v.
CommunityCare HMO, Inc., 503 F. App’x 655, 659 (10th Cir. 2012) (first citing 29 U.S.C. §
2614(a)(3)(B); then citing Hunt v. DaVita, Inc., 680 F.3d 775, 779–80 (7th Cir. 2012)). But,
defendant’s argument goes too far—this inability to return may provide a valid reason to
discharge plaintiff, but it is a reason the court will consider at summary judgment or a later stage
in the case. See id. (holding defendant employer entitled to summary judgment when employer
offered a legitimate non-retaliatory reason for plaintiff’s termination, i.e., plaintiff could not
return at the end of her FMLA leave, and plaintiff did not respond with evidence of pretext).
Here, at the motion to dismiss stage, the plaintiff, to state a plausible claim, need only plead facts
establishing a prima facie case of retaliation. See Smothers v. Solvay Chems., Inc., 740 F.3d 530,
539 (10th Cir. 2014) (“[P]laintiff’s burden at the prima facie stage requires only a small amount
of proof necessary to create an inference of discrimination or retaliation by a preponderance of
the evidence” (internal citations and quotations omitted)). So, assuming plaintiff meets her
initial burden, she has stated a claim, and the court should deny a motion to dismiss. See Garrett

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v. Hewlett-Packard, Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (noting that at the prima facie
stage, the plaintiff “need not overcome [defendant’s] proffered legitimate, nondiscriminatory
reasons”). This plaintiff’s Complaint plainly alleges that she applied for and received permission
to take FMLA leave in 2016. Taking FMLA leave is a protected activity. Plaintiff thus
sufficiently has pleaded that she engaged in a protected activity.3
2. Adverse Action
The court also finds that the Complaint plausibly alleges that plaintiff sustained a
materially adverse action. Plaintiff “need only show ‘that a reasonable employee would have
found the challenged action materially adverse.’” See Metzler v. Fed. Home Loan Bank of
Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006) (quoting Argo v. Blue Cross & Blue Shield of
Kan., Inc., 452 F.3d 1193, 1202 n.2 (10th Cir. 2006)). And, any reasonable employee would
consider termination materially adverse. Id. Ms. Castillo argues that (1) plaintiff does not allege
that Ms. Castillo terminated plaintiff’s employment, and (2) as a matter of law, Ms. Castillo’s
alleged disparaging comments to plaintiff cannot satisfy a materially adverse action.

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Ms. Castillo relies on several FMLA interference or entitlement cases to support her position. But, as the
Tenth Circuit has explained, interference claims and retaliation claims have different elements and proceed under a
different burden of proof. Dalpiaz, 760 F.3d at 1131 (quoting Metzler, 464 F.3d at 1170); see also Ainsworth v.
Loudon Cty. Sch. Bd., 851 F. Supp. 2d 963, 978 (E.D. Va. 2012) (“It is true . . . that once an employee exceeds the
duration of her FMLA leave, the employer is not obligated by FMLA to keep that position open or reinstate the
employee upon her return. That an employer may have a legitimate basis for its employment decision does not,
however, provide it with a complete defense to a ‘proscriptive’ retaliation claim.”). For example, the cases cited by
defendant focus on the second element of an interference claim—i.e., plaintiff must show that some adverse action
taken by her employer interfered with her rights to take FMLA leave. These cases stand for the proposition that an
employer cannot interfere with an employee’s right to reinstatement if the employee cannot return to work at the end
of his or her FMLA leave. See Glover v. DCP Midstream GP, LLC, 549 F. App’x 713, 715 (10th Cir. 2013)
(finding that plaintiff’s FMLA interference claim failed at summary judgment because plaintiff “received the leave
due to him under the FMLA, but was unable to return to work at the end of this leave”); Talkin v. Deluxe Corp., Civ.
Act. No. 05-2305-CM, 2007 WL 1469648 at *4 (D. Kan. May 18, 2007) (“When he returned in November, plaintiff
was not returning from FMLA leave and thus cannot state an entitlement claim under the FMLA.”); DeGraw v.
Exide Techs., 744 F. Supp. 2d, 1199, 1215 (D. Kan. 2010) (“[T]he FMLA requires that an employee be restored by
the employer to the position of employment held by the employee when the [FMLA] leave commenced. It is
unlawful for any employer to interfere with that right.” (internal citations and quotations omitted)).

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But, plaintiff’s Complaint is clear on this point: “At all times relevant hereto and as
alleged herein above, [Ms.] Castillo, individually or in concert with Defendant took materially
adverse employment actions against Plaintiff, including failing to return Plaintiff to her teaching
position with Defendant and discharging Plaintiff’s employment.” Doc. 1 at 11–12 (Pl.’s Compl.
¶ 84); see also id. at 7 (Pl. Compl. ¶ 45) (alleging discharge on or about January 4, 2017).
Taking plaintiff’s factual allegations as true, the court holds that plaintiff has pleaded facts
sufficient for a reasonable jury to conclude that Ms. Castillo took materially adverse action by
discharging plaintiff’s employment.
C.

Ms. Castillo is Not Entitled to Qualified Immunity

Last, Ms. Castillo contends that she is entitled to qualified immunity. A public official
performing a discretionary function enjoys qualified immunity in a civil action for damages,
provided her conduct does not violate clearly established federal statutory or constitutional rights
of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity is “immunity from suit rather than a mere defense to liability.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
First, as discussed above, the court concludes that a reasonable jury could conclude that
Ms. Castillo violated plaintiff’s FMLA rights when she allegedly discharged plaintiff for
exercising her FMLA leave.
Second, the court finds that this right is clearly established. On this point, defendant
argues that Harville v. Texas A&M University is persuasive. 833 F. Supp. 2d 645 (S.D. Texas
2011). In Harville, a former researcher sued Texas A&M and three university officials, alleging
FMLA violations among other claims. Id. at 651. The district court found the university
officials were entitled to qualified immunity. The court reasoned that the plaintiff’s asserted

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right was not clearly established because, when she was discharged, plaintiff “had missed more
than the eight days per month that she was medically authorized to miss . . . [so,] at the time of
her termination, whether she would have been entitled to more FMLA leave was not ‘clearly
established.’” Id. at 655 (internal citation omitted).
Here, at the motion to dismiss stage, plaintiff’s case is different. Unlike Harville,
plaintiff does not allege that she missed more time after her FMLA leave in violation of company
policy. Instead, plaintiff alleges—and the court accepts as true at the motion to dismiss stage—
that plaintiff and defendants agreed that plaintiff would take additional unpaid leave and resume
teaching on January 4, 2017. See Gray v. Baker, 399 F.3d 1241, 1245 (10th Cir. 2005) (finding
that defendants could not claim good faith qualified immunity “given the clear requirements of
the FMLA” that “they were unaware that a particular course of conduct would be violative of the
FMLA”); see also Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002) (“The Family and Medical
Leave Act creates clearly established statutory rights, including the right to be free of
discrimination or retaliation on account of one’s exercise of leave rights granted by the statute.”).
Accepting plaintiff’s pleaded facts as true, the court concludes that the right asserted—the right
to be free from retaliation or discrimination when using FMLA-approved leave—is clearly
established by the plain language of the Act. Thus, plaintiff has pleaded facts sufficient to
overcome Ms. Castillo’s qualified immunity defense at the pleading stage.
IV.

Conclusion
For reasons explained above, the court denies Ms. Castillo’s Motion to Dismiss.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Ms. Castillo’s

Motion to Dismiss (Doc. 17) is denied.

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IT IS SO ORDERED.
Dated this 16th day of October, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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