United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
this Court are State Defendants' Motion to Dismiss (Dkt.
No. 25), Plaintiff's Response (Dkt. No. 28), and State
Defendants' Reply (Dkt. No. 32); Federal Defendants'
Motion to Dismiss (Dkt. No. 24), Plaintiff's Response
(Dkt. No. 27), and Federal Defendants' Reply (Dkt. No.
31) . The District Court referred the above motions to the
undersigned Magistrate Judge for report and recommendation
pursuant to 28 U.S.C. §636(b)(1)(A), Fed.R.Civ.P. 72,
and Rule 1(c) of Appendix C of the Local Rules.
Cynthia Millonzi brings this suit against the Adjutant
General's Department of Texas, John F. Nichols in his
official capacity as Texas Adjutant General, Joseph L. Lengyl
in his official capacity as Chief of the National Guard
Bureau, Ryan McCarthy in his official capacity as Acting
Secretary of the Department of the Army,  and the United
States. She alleges discrimination and retaliation in
violation of Title VII, as well as claims brought pursuant to
the First Amendment and the due process and equal protection
clauses of the Constitution.
2008, Millonzi was hired as a dual-status military technician
working at the Texas Adjutant General's office. Previous
to this she served in the military for more than two decades.
Beginning in 2013, Millonzi alleges that she began
experiencing discrimination based on her sexual orientation.
In June 2013-following the Supreme Court's decision in
U.S. v. Windsor-Millonzi alleges that she gave an
interview to L Style G Style about coming out in the
Texas National Guard. Though in the article she stated that
her superiors were supportive of her decision, she claims
that after the interview was published, she was subjected to
discrimination on the basis of her sexual orientation (or
gender). Millonzi alleges she was reassigned from the
Adjutant General's Office, and later was passed over for
a promotion to Chief of Staff. She further alleges that the
new Chief of Staff, Colonel Scott MacLeod ordered an
investigation into Millonzi's alleged absences and
tardiness, and contends that the investigator, Colonel Amy
Cook, had previously discriminated against others based on
their sexual orientation.
investigation ultimately found that Millonzi had submitted
false military leave papers, contending that she stated she
was eligible for leave to attend training that had not been
approved. Col. MacLeod accepted the recommendation that
Millonzi be terminated, and forwarded it to Brigadier
Genereral Patrick M. Hamilton. Millonzi then submitted an
informal EEO complaint that was dismissed, and BG Hamilton
thereafter accepted Col. MacLeod's recommendation.
Millonzi was given the option to retire or be terminated, and
she chose to retire. Shortly after, Millonzi filed a second
EEO complaint, which was once again dismissed. This time, she
appealed to the Office of Federal Operations, which reversed
the dismissal. However, the Adjutant General-who has final
authority on any appeals- dismissed her complaint after the
reversal. Millonzi subsequently retired from the National
noted, Millonzi alleges the Defendants discriminated and
retaliated against her in violation of Title VII, and
violated her rights under the First Amendment, Equal
Protection, and Due Process clauses. The defendants, grouped
as “State” and “Federal, ” move to
dismiss, arguing that this Court lacks jurisdiction to review
Millonzi's claims, or, in the alternative, that she has
failed to state a claim upon which relief may be granted.
move to dismiss pursuant to Rule 12(b)(1) alleging a lack of
subject-matter jurisdiction. Federal district courts are
courts of limited jurisdiction, and may only exercise such
jurisdiction as is expressly conferred by the Constitution
and federal statutes. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). A federal court
properly dismisses a case for lack of subject matter
jurisdiction when it lacks the statutory or constitutional
power to adjudicate the case. Home Builders Assn. of
Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998). “The burden of proof for a Rule 12(b)(1)
motion to dismiss is on the party asserting
jurisdiction.” Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001), cert. denied, 536
U.S. 960 (2002). “Accordingly, the plaintiff constantly
bears the burden of proof that jurisdiction does in fact
exist.” Id. In ruling on a Rule 12(b)(1)
motion, the court may consider the complaint alone; the
complaint plus undisputed facts evidenced in the record; or
the complaint, undisputed facts, and the court's
resolution of disputed facts. Lane v. Halliburton,
529 F.3d 548, 557 (5th Cir. 2008).
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P.12(b)(6). In deciding a
Rule 12(b)(6) motion to dismiss for failure to state a claim,
“[t]he court accepts all well-pleaded facts as true,
viewing them in the light most favorable to the
[nonmovant].” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal
quotation marks omitted), cert. denied, 552 U.S.
1182 (2008). The Supreme Court has explained that a complaint
must contain sufficient factual matter “to state a
claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
[nonmovant] pleads factual content that allows the court to
draw the reasonable inference that the [movant] is liable for
the misconduct alleged.” Id. The court
generally is not to look beyond the pleadings in deciding a
motion to dismiss. Spivey v. Robertson, 197 F.3d
772, 774 (5th Cir. 1999).