Myles v. The University of Texas Health Center at San Antonio, et al

Filing 18

ORDER GRANTING IN PART AND DENYING IN PART 7 Motion to Dismiss Signed by Judge Xavier Rodriguez. (mgr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LORETTA MARIE MYLES,
Plaintiff,
v.
THE UNIVERSITY OF TEXAS HEALTH
CENTER AT SAN ANTONIO; MISTY
ANN GAEKE, INDIVIDUALLY; and
HEATHER AMY KOBBE,
INDIVIDUALLY,
Defendants.

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Civil Action No. SA-17-CV-871-XR

ORDER
On this date, the Court considered the status of the above-captioned case. After careful
consideration, the Court GRANTS IN PART AND DENIES IN PART Defendants Misty Ann
Gaeke and Heather Amy Kobbe’s Motion to Dismiss. Docket no. 7.
BACKGROUND
On July 31, 2017, Plaintiff Loretta Marie Myles brought this action in the County Court
at Law Number Three, Bexar County, Texas, bringing claims for wrongful termination under the
Family Medical Leave Act (“FMLA”) and age discrimination under the Texas Labor Code.
Docket no. 1-5. On September 8, 2017, Defendants removed this action to this Court. Docket no.
1.
On January 14, 1998, Defendant The University of Texas Health Science Center at San
Antonio (“UTHSCSA”) hired Plaintiff as a Human Resource Administrative Clerk. Docket no.
1-5 at 4. Plaintiff states she resigned on May 14, 2003, “under good terms and was eligible for
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rehire,” and on September 8, 2005, Plaintiff was rehired as a Human Resource Technical Support
Specialist. Id. Plaintiff was promoted over the next several years, including to Human Resource
Advisor on March 1, 2006, Human Resource Supervisor on May 1, 2007, and Manger of
Benefits and Records on September 1, 2009, all of which came with a pay increase. Id. Plaintiff
alleges she was “reclassified” to Benefit Program Administrative-Lead on November 1, 2010,
with a pay decrease. Id.
Plaintiff alleges that on February 1, 2011, she requested a constructive demotion
“because then Director of Human Resources Mary Mahar had created an objectively hostile and
retaliatory environment that [Plaintiff] could not endure.” Id. Plaintiff alleges she lost $13,000.00
in annual compensation. Id. Plaintiff alleges that she possessed “the requisite skill, experience,
education and other job-related requirements for the positions she held.” Id.
Plaintiff states that Defendant Gaeke was the Senior Director, Total Rewards, and HRIS
of the Human Resources Department for UTHSCSA and exercised supervisory authority over
Plaintiff. Id. Plaintiff states that Defendant Kobbe was the Senior Director, Talent Management,
of the Human Resources Department for UTHSCSA and exercised supervisory authority over
Plaintiff. Id. at 5.
On December 21, 2015, Plaintiff alleges that she requested and received an FMLA
benefits packet to nurse and care for her husband, who suffered from prostate cancer. Id. Plaintiff
alleges that she called Gaeke on December 23, 2015, and told Gaeke she received the packet and
wanted to apply for FMLA benefits to care for her husband. Id. Plaintiff alleges that Gaeke
instructed Plaintiff “not to complete the FMLA packet and not to pursue any FMLA benefits.”

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Id. Plaintiff alleges she was entitled to up to twelve weeks of leave, but that Gaeke “restrained,
interfered with, and otherwise denied [Plaintiff] the right to her full FMLA benefits.” Id.
Plaintiff alleges her husband was released from the hospital on January 6, 2016, but he
was physically unable to care for himself. Id. Plaintiff states she was overwhelmed with the
responsibility of caring for her husband and attending to her work responsibilities. Id. Plaintiff
alleges that on January 27, 2016, Gaeke walked into Plaintiff’s office and “told her point-blank
that she needed to update her résumé and start looking for another job.” Id. Plaintiff alleges she
felt threatened and the target of retaliation “because she sought benefits under the FMLA.” Id.
Plaintiff alleges that, feeling that Gaeke would again interfere with and otherwise restrain her
from accessing FMLA leave, she initiated “FMLA leave under the guise of taking time off for
the stress and anxiety she suffered as a result of the hostile work environment and to take a break
from Gaeke’s harassment.” Id. at 6. Plaintiff alleges this leave period went from January 28,
2015, to April 1, 2016. Id.
Plaintiff alleges that on April 4, 2016, her first day back from leave, Gaeke “ambushed
[Plaintiff] with a document entitled ‘Notification of Intent to Terminate Employment.’” Id.
Plaintiff alleges that, in this document, Gaeke falsely accused Plaintiff of entering an incorrect
date of birth on May 13, 2015, and failing to process a life insurance claim properly on January
12, 2016. Id. Gaeke allegedly gave Plaintiff twenty-four hours to respond. Id. Plaintiff states that
on April 7, 2016, Gaeke formally discharged Plaintiff “for pretextual reasons and in retaliation
for [Plaintiff’s] request for FMLA leave to care for her critically ill husband.” Id. Plaintiff alleges
that Gaeke terminated Plaintiff “because she wished to hire a younger employee to replace her,
or otherwise treat her less favorably than younger employees, and because of age.” Id.

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Plaintiff brings a claim for violation of the Texas Labor Code against UTHSCSA. Id.
Plaintiff also brings claims for violations of the FMLA against UTHSCA and Gaeke. Id. at 7.
Plaintiff alleges that Gaeke interfered with, restrained, and denied Plaintiff’s exercise of or the
attempt to exercise her rights under the FMLA and discouraged her from seeking benefits with
respect to the FMLA’s family-care provision. Id. at 7–8. Plaintiff also alleges that Gaeke
retaliated against Plaintiff because she exercised her rights with respect to the FMLA’s self-care
provision. Id. at 7. On November 17, 2017, individual Defendants Gaeke and Kobbe filed a
Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), now pending
before the Court. Docket no. 7.
DISCUSSION
I.

Legal Standard
The Court must dismiss a cause for lack of subject-matter jurisdiction “when the court
lacks the statutory or constitutional power to adjudicate the case.” See Home Builders Assn. of
Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). A motion to dismiss
for lack of jurisdiction under 12(b)(1) may be decided on: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts, plus the Court’s resolution of disputed facts. Freeman v.

United States, 556 F.3d 326, 334 (5th Cir. 2009). Unlike a 12(b)(6) motion, the district court is
empowered to consider matters outside the complaint and matters of fact that may be in dispute
in a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
To survive a 12(b)(6) 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,

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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim for relief must contain: (1) “a short and plain statement of the grounds for the court’s
jurisdiction”; (2) “a short and plain statement of the claim showing that the pleader is entitled to
the relief”; and (3) “a demand for the relief sought.” FED. R. CIV. P. 8(a). In considering a motion
to dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken as true,
and the facts are to be construed favorably to the plaintiff. Fernandez-Montez v. Allied Pilots
Assoc., 987 F.2d 278, 284 (5th Cir. 1993). To survive a 12(b)(6) motion, a complaint must
contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555.
II.

Application
Defendants argue that Plaintiff fails to state a valid claim of any kind against Kobbe.
Defendants also argue that Plaintiff’s claims under the FMLA’s self-care provision should be
dismissed because neither are “employers” within the meaning of the FMLA and because
Plaintiff’s claims are actually claims against the State.
A. Plaintiff’s Claims Against Kobbe
Plaintiff fails to sufficiently allege any claim against Kobbe. Although Plaintiff makes
specific, individual allegations against Gaeke, Plaintiff fails to do so against Kobbe. Plaintiff
only identifies Kobbe as a defendant in the case; states that Kobbe “exercised supervisory
authority over [Plaintiff] and possessed the authority to act, directly or indirectly, in the interests
of [UTHSCSA]”; and identifies Kobbe’s responsibilities, including the authority to hire and fire
employees and supervise and control work schedules, including FMLA leave. Docket no. 1-5 at
2, 5. Plaintiff generally names Kobbe again in her prayer for damages. Id. at 9–10. However, at

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no point does Plaintiff state specific facts that correspond to Kobbe. Plaintiff even only names
UTHSCA and Gaeke when setting out her specific claims under the FMLA. Id. at 7–8. Plaintiff
fails to state any valid claim against Kobbe.
B. Plaintiff’s Self-Care Claims Against Gaeke
Defendants argue that Plaintiff’s FMLA self-care claim should be dismissed because
Gaeke is not an “employer” within the meaning of the FMLA for that provision. Plaintiff argues
that she sufficiently alleges that Gaeke is an “employer” and that she is liable.
Under the FMLA, an eligible employee is entitled to twelve workweeks of leave during
any twelve-month period because, among other things, “of a serious health condition that makes
the employee unable to perform the functions of the position of such employee.” 29 U.S.C.
§ 2612(a)(1)(D). The FMLA also makes it unlawful for “any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise” this right to leave. 29 U.S.C. § 2615(a)(1).
Under the FMLA, the term “employer”—
(i) means any person engaged in commerce or in any industry or activity affecting
commerce who employs 50 or more employees for each working day during each
of 20 or more calendar workweeks in the current or preceding calendar year;
(ii) includes—
(I) any person who acts, directly or indirectly, in the interest of an
employer to any of the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any “public agency”, as defined in section 203(x) of this title; and
(iv) includes the Government Accountability Office and the Library of Congress.
29 U.S.C. § 2611(4)(A). A “public agency” means “the Government of the United States; the
government of a State or political subdivision thereof; any agency of the United States (including

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the United States Postal Service and Postal Regulatory Commission), a State, or a political
subdivision of a State; or any interstate governmental agency.” 29 U.S.C. § 203(x).
Federal courts lack jurisdiction “over suits against a state, a state agency, or a state
official in his official capacity unless that state has waived its sovereign immunity or Congress
has clearly abrogated it.” Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963
(5th Cir. 2014) (citations omitted). Congress may abrogate a state’s immunity from suit pursuant
to § 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 451 (1976). Congress
must “mak[e] its intention to abrogate unmistakably clear in the language of the statute,” Nevada
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003), and it must do so through a valid
exercise of congressional power under § 5. Coleman v. Court of Appeals of Maryland, 566 U.S.
30, 36 (2012). To effect a valid abrogation of state immunity from suits for damages under § 5,
“Congress must identify a pattern of constitutional violations and tailor a remedy congruent and
proportional to the documented violations.” Id. at 43.
In Modica v. Taylor, the Fifth Circuit held that the definition of “employer” under the
FMLA includes a public employee. Modica v. Taylor, 465 F.3d 174, 187 (5th Cir. 2006). The
Fifth Circuit found that the statute “plainly includes in the definition of employer ‘any person
who acts, directly or indirectly, in the interest of an employer to any of the employees of such
employer’” and “the statute further includes public agencies as employers.” Id. at 184. Thus, the
Fifth Circuit held, if a public employee “acts, directly or indirectly, in the interest of an
employer,” that employee satisfies the definition of an employer under the FMLA and may be
subject to liability in an individual capacity. Id.

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In Coleman v. Court of Appeals of Maryland, however, the Supreme Court held that
Congress failed to identify a pattern of constitutional violations and tailor a remedy that was
congruent and proportional when it allowed employees to sue States for violations of the
FMLA’s self-care provision. Coleman, 566 U.S. at 43–44. Accordingly, Congress did not validly
abrogate state immunity with respect to the FMLA’s self-care provision. Id. The Court found
that, although the abrogation of state immunity with respect to the family-care provision was
valid because the requirement placed on state employees was “narrowly targeted at the faultline
between work and family—precisely where sex-based overgeneralization has been and remains
strongest,” see Hibbs, 538 U.S. at 738, “[t]he same cannot be said for requiring the States to give
all employees the opportunity to take self-care leave.” Coleman, 566 U.S. at 37.
The Supreme Court did not discuss how its finding applies to state employees, rather than
the State itself. The doctrine of sovereign immunity, however, does not extend to individuals
sued in their individual capacities. Accordingly, Plaintiff can bring a claim against Gaeke in her
individual capacity under the self-care provision of the FMLA.
Defendants argue that Plaintiff cannot seek damages against Gaeke because the State is
the real party in interest. The Eleventh Amendment bars a suit against state officials when “the
state is the real and substantial party in interest.” Modica, 465 F.3d at 183. Whether the state is
the real and substantial party in interest depends on the circumstances. Id. (citing Luder v.
Endicott, 253 F.3d 1020, 1022 (7th Cir. 2001)).
In Kazmier v. Widmann, the Fifth Circuit held that the plaintiff could not establish
subject-matter jurisdiction for claims brought against public officials in their individual
capacities because “it is clear that the State of Louisiana is the real party in interest.” Kazmier v.

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Widmann, 225 F.3d 519, 533 n.65 (5th Cir. 2000), abrogated on other grounds by Nevada Dep’t
of Human Res. v. Hibbs, 538 U.S. 721 (2003). In Modica, the Fifth Circuit limited Kazmier to its
facts and recognized that state officials can be sued in their individual capacities depending on
the circumstances. Modica, 465 F.3d at 183–84; see also Luder v. Endicott, 253 F.3d 1020,
1024–25 (7th Cir. 2001) (finding that the state would be required to pay damages to plaintiffs
and that the Fair Labor Standards Act suit brought against state officers in their individual
capacities was a “transparent[ ] effort at an end run around the Eleventh Amendment”). The
Modica Court held that the Eleventh Amendment did not bar the plaintiff’s individual capacity
claim against a state employee who terminated the plaintiff because the claim was based on an
alleged retaliatory act inflicted by that individual defendant. Id. at 184. By contrast, in Henley v.
Simpson, the Fifth Circuit held that the state was the real party in interest because the state
employees being sued over the state compensation policy never signed or promulgated the policy
that was the focus of the plaintiff’s claims, and the plaintiff was only attempting an “end run”
around the Eleventh Amendment. Henley v. Simpson, 527 F. App’x 303, 307 (5th Cir. 2013).
Plaintiff’s allegations in this case are more similar to those in Modica than those in
Henley. Plaintiff alleges that Gaeke instructed Plaintiff to not complete the FMLA packet or
pursue any FMLA benefits and that Plaintiff initiated self-care because she feared that Gaeke
would interfere with and otherwise restrain her from accessing FMLA leave to care for her
husband. Plaintiff further alleges that Gaeke “ambushed” her with a Notification of Intent to
Terminate Employment letter shortly after she returned to work from her leave period and
subsequently terminated her for pretextual reasons and in retaliation for the leave she took.
Plaintiff also seeks damages from Gaeke individually. At this stage, Plaintiff sufficiently alleges

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a claim against Gaeke for actions that Gaeke carried out, not just the State itself. See Bellow v.
Bd. of Supervisors of Louisiana State Univ. & Agric. Mech. Coll., No. CIV.A. 12-1529, 2014
WL 2203881, at *5 (E.D. La. May 27, 2014) (allowing claim against individual defendant state
employee whom plaintiff alleged personally violated the FMLA). Accordingly, Plaintiff is not
barred from bringing a claim against Gaeke in her individual capacity.
Finally, in Defendants’ reply to Plaintiff’s response to the motion to dismiss, Defendants
for the first time fully raise the argument that Gaeke is entitled to qualified immunity. After a
defendant asserts qualified immunity as a defense, the burden is on the plaintiff to negate
qualified immunity. Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016). To meet this burden, a
plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.” Morgan v. Swanson,
659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
In light of Modica’s plain language, Plaintiff has the statutory right to take medical leave,
and by alleging that Gaeke terminated her in retaliation for exercising that statutory right,
Plaintiff satisfies the first prong. The central concept of qualified immunity’s second prong is
one of “fair warning.” Bellow v. LeBlanc, 550 F. App’x 181, 184 (5th Cir. 2013) (quoting Hope
v. Pelzer, 536 U.S. 730, 741 (2002). “[T]he right the official is alleged to have violated must . . .
be sufficiently clear that a reasonable official would understand that [her actions] violate[ ] that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). After Modica, Gaeke had “fair
warning” that terminating Plaintiff for availing herself of FMLA leave would violate her clearlyestablished right to do so. See Bellow, 550 F. App’x at 184. Accordingly, accepting her

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allegations as true at this stage, Plaintiff has abrogated Gaeke’s qualified immunity defense with
respect to this claim.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Docket no. 7) is GRANTED
IN PART AND DENIED IN PART. Plaintiff’s claims against Kobbe are DISMISSED
WITHOUT PREJUDICE. Plaintiff’s FMLA claims against Gaeke survive at this time.
It is so ORDERED.
SIGNED this 11th day of January, 2018.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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