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Millonzi v. Adjutant General's Department of Texas

United States District Court, W.D. Texas, Austin Division

January 2, 2018





         Before 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.


         Plaintiff 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, [1] 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.

         In 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.

         The 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 Guard.

         As 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.


         A. Rule 12(b)(1)

         Defendants 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).

         B. Rule 12(b)(6)

         Federal 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).

         III. ...

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