United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Color and national origin discrimination
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.
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.
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 ...