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Green v. Orion Real Estate Services, Inc.

United States District Court, S.D. Texas, Houston Division

May 3, 2017

AKEHA GREEN, Plaintiff,



         Pending before the Court is Defendants' Motion to Dismiss Pursuant to FRCP 12(b)(6) (Doc. No. 27). After considering the Motion, the response thereto, and all applicable law, the Court determines that the Motion should be granted in part and denied in part.

         I. BACKGROUND

         From May 2011 to December 2012, Plaintiff Akeha Green was employed by Defendants Orion Real Estate Services, Inc., Allied Development Corporation d/b/a Orion Real Estate Services, Inc., Allied Orion Group, LLC, and HFI Management Company as a property manager. (Doc. No. 6 at 3-6.) Plaintiff alleges that, during the time she worked for Defendants, she experienced discrimination based on her race, gender, and disability. Id. She further alleges that she experienced retaliation for exercising her rights under the Family and Medical Leave Act (FMLA) and for engaging in activity protected by Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866 (hereinafter “Section 1981”). Id. Plaintiff brings claims against Defendants under the FMLA, the Americans with Disabilities Act (ADA), the Texas Commission on Human Rights Act (TCHRA), Title VII, and Section 1981. Id. at 6-11. Plaintiff also alleges wrongful discharge. Id.


         Defendants styled their motion as a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), that is, for failure to state a claim upon which relief can be granted. (Doc. No. 27.) However, Defendants attached 10 exhibits to their motion. Under Federal Rule of Civil Procedure 12(d), if the Court considers matters outside the pleadings in deciding a Rule 12(b)(6) motion, the Court must treat the motion as one for summary judgment under Rule 56. Therefore, the Court applies the Rule 56 standard to Defendants' motion.

         Summary judgment is proper when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The court can consider any evidence in “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Crawford, 234 F.3d at 902. The party moving for summary judgment bears the burden of demonstrating the absence of a genuine dispute of material fact. Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001). If the moving party meets this burden, the non-moving party must go beyond the pleadings to find specific facts showing that a genuine issue of material fact exists for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322.

         III. ANALYSIS

         a. Color and national origin discrimination

         Defendants note that Plaintiff failed to allege any facts to support a claim of discrimination based on color or national origin. (Doc. No. 27 at 5.) The Amended Complaint, however, does not allege color or national origin discrimination. Therefore, this argument is moot.

         b. FMLA claims

         Plaintiff has alleged two claims under the FMLA. First, she alleges that Defendants interfered with her FMLA rights by refusing to grant her entire request for leave. (Doc. No. 6 at 6.) Second, she alleges that Defendants retaliated against her for exercising her FMLA rights by demoting her, refusing to restore her to her prior position, and terminating her. Id. Plaintiff alleges that Defendants' violations of the FMLA were willful, entitling Plaintiff to an award of liquidated damages. Id. at 6-7.

         i. Interference

         The FMLA entitles eligible employees to up to twelve weeks of unpaid leave per year. 29 U.S.C. § 2612(a). It is unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1). Defendants in this action granted Plaintiff 12 weeks of FMLA leave beginning on September 11, 2012. (Doc. No. 27-5.) In a letter to Plaintiff dated September 24, 2012, Defendants' Human Resources Generalist, Erika Huerta, stated that the 12-week period of leave would end on January 5, 2013. Id. This turned out to be a ...

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