United States District Court, W.D. Texas, San Antonio Division
C. LAMBERTH, UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss Pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), filed
December 27, 2016, ECF No. 13. Having considered the motion,
responses, replies, exhibits, filings, and applicable law,
the Court will grant the Motion to Dismiss Pursuant to
Federal Rule of Civil Procedure 12(b)(1) without prejudice.
The Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) will be denied as moot.
Karen Ezell is a civilian employee of the defendant
Department of the Army. PL's Am. Compl. 2, ECF No. 20.
Plaintiff was hired as a full time Respiratory Therapist at
Brooke Army Medical Center (now San Antonio Military Medical
Center), and states in the complaint that she suffers from
schizophrenia, hypertension, and high blood pressure.
Id. The physician who conducted plaintiffs
pre-employment physical determined that plaintiff could not
work nights due to the fact that it might exacerbate her
hypertension and high blood pressure. Id. at 3.
began work on June 16, 2012, at which point she provided
medical documentation supporting her requested accommodation
to not work nights to her supervisors at orientation.
Id. Eight months later, plaintiff filed a formal
complaint with Joint Base San Antonio's EEO Office on
February 1, 2013. Id. at 2-6. This formal complaint
alleges that plaintiff was discriminated against and subject
to a hostile work environment based on disability and
reprisal. Id. at 6.
28, 2013, plaintiff had a nervous breakdown. Id.
Plaintiff claims this breakdown was accompanied by daily
episodes of panic and schizophrenia from the period
encompassing June 28 to December of the same year.
Id. Plaintiff has received outpatient mental health
care and medication over the past four years as a result.
Id. at 6-7.
alleges that since her breakdown in 2013, she has not
received the step promotions that she is entitled to, and as
a result has both experienced a significant loss in
promotions and pay, and had to stop pursuing her doctorate.
Id. at 7. On June 27, 2016, plaintiff received the
final Army decision (FAD) regarding her formal complaint.
Id. at 8. Following the issuance of the FAD denying
her claims, the plaintiff commenced this suit. Id.
brings claims of discrimination, harassment, failure to
accommodate, and retaliation based on disability in violation
of the Americans with Disabilities Act of 1990, as Amended.
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101-12213 (2017) (amended 2008). Plaintiff
additionally brings claims of violations of the Texas Labor
Code under the Texas Commission on Human Rights Act (TCHRA).
See Tex. Lab. Code Ann. § 21.051-.055 (West
2011). Plaintiff asserts that sovereign immunity does not
apply to these claims, as the Texas Legislature has waived
immunity for claims brought under the TCHRA. Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660
moves to dismiss, arguing that the federal government has not
waived sovereign immunity for claims brought under the ADA or
TCHRA, and in the alternative that plaintiff both failed to
exhaust her administrative remedies and fails to state a
plausible claim under the ADA. Def.'s Mot. to Dismiss
moves to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1), and in the alternative moves to
dismiss under Rule 12(b)(6) for failure to state a claim.
"When a Rule 12(b)(1) motion is filed in conjunction
with other Rule 12 motions, the court should consider the
Rule 12(b)(1) jurisdictional attack before addressing any
attack on the merits." Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). Therefore,
the Court addresses the 12(b)(1) motion first.
Federal Rules of Civil Procedure require this Court to
dismiss a cause for lack of subject matter jurisdiction
"when the court lacks the statutory or constitutional
power to adjudicate the case." Home Builders Assn.
of Mississippi, Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998). "Sovereign immunity is
jurisdictional in nature." FDIC v. Meyer, 510
U.S. 471, 475 (1994). Waivers of sovereign immunity must be
clearly stated by the federal government. See United
States v. Mitchell, 463 U.S. 206, 212 (1983) ("It
is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a
prerequisite for jurisdiction.") Claims barred by the
invocation of sovereign immunity "can be dismissed only
under Rule 12(b)(1) and not with prejudice." Warnock
v. Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996).
analyzing a motion to dismiss under Rule 12(b)(1), a court
may consider (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidence in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts. Ramming,
281 F.3d at 161. When the defendant alleges a facial attack
under Rule 12(b)(1), "the trial court is required merely
to look to the sufficiency of the allegations in the
complaint because they are presumed to be true."
Paterson v. Weinberger,644 F.2d 521, 523 (5th Cir.
1981). Here, defendant's motion to dismiss under Rule
12(b)(1) is a facial attack unaccompanied by supporting
evidence. Therefore, the Court examines whether the