United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered the status of the above-captioned
case. After careful consideration, the Court GRANTS IN PART
AND DENIES IN PART Defendants Misty Ann Gaeke and Heather Amy
Kobbe's Motion to Dismiss. Docket no. 7.
31, 2017, Plaintiff Loretta Marie Myles brought this action
in the County Court at Law Number Three, Bexar County, Texas,
bringing claims for wrongful termination under the Family
Medical Leave Act (“FMLA”) and age discrimination
under the Texas Labor Code. Docket no. 1-5. On September 8,
2017, Defendants removed this action to this Court. Docket
January 14, 1998, Defendant The University of Texas Health
Science Center at San Antonio (“UTHSCSA”) hired
Plaintiff as a Human Resource Administrative Clerk. Docket
no. 1-5 at 4. Plaintiff states she resigned on May 14, 2003,
“under good terms and was eligible for rehire, ”
and on September 8, 2005, Plaintiff was rehired as a Human
Resource Technical Support Specialist. Id. Plaintiff
was promoted over the next several years, including to Human
Resource Advisor on March 1, 2006, Human Resource Supervisor
on May 1, 2007, and Manger of Benefits and Records on
September 1, 2009, all of which came with a pay increase.
Id. Plaintiff alleges she was
“reclassified” to Benefit Program
Administrative-Lead on November 1, 2010, with a pay decrease.
alleges that on February 1, 2011, she requested a
constructive demotion “because then Director of Human
Resources Mary Mahar had created an objectively hostile and
retaliatory environment that [Plaintiff] could not
endure.” Id. Plaintiff alleges she lost $13,
000.00 in annual compensation. Id. Plaintiff alleges
that she possessed “the requisite skill, experience,
education and other job-related requirements for the
positions she held.” Id.
states that Defendant Gaeke was the Senior Director, Total
Rewards, and HRIS of the Human Resources Department for
UTHSCSA and exercised supervisory authority over Plaintiff.
Id. Plaintiff states that Defendant Kobbe was the
Senior Director, Talent Management, of the Human Resources
Department for UTHSCSA and exercised supervisory authority
over Plaintiff. Id. at 5.
December 21, 2015, Plaintiff alleges that she requested and
received an FMLA benefits packet to nurse and care for her
husband, who suffered from prostate cancer. Id.
Plaintiff alleges that she called Gaeke on December 23, 2015,
and told Gaeke she received the packet and wanted to apply
for FMLA benefits to care for her husband. Id.
Plaintiff alleges that Gaeke instructed Plaintiff “not
to complete the FMLA packet and not to pursue any FMLA
benefits.” Id. Plaintiff alleges she was
entitled to up to twelve weeks of leave, but that Gaeke
“restrained, interfered with, and otherwise denied
[Plaintiff] the right to her full FMLA benefits.”
alleges her husband was released from the hospital on January
6, 2016, but he was physically unable to care for himself.
Id. Plaintiff states she was overwhelmed with the
responsibility of caring for her husband and attending to her
work responsibilities. Id. Plaintiff alleges that on
January 27, 2016, Gaeke walked into Plaintiff's office
and “told her point-blank that she needed to update her
résumé and start looking for another
job.” Id. Plaintiff alleges she felt
threatened and the target of retaliation “because she
sought benefits under the FMLA.” Id. Plaintiff
alleges that, feeling that Gaeke would again interfere with
and otherwise restrain her from accessing FMLA leave, she
initiated “FMLA leave under the guise of taking time
off for the stress and anxiety she suffered as a result of
the hostile work environment and to take a break from
Gaeke's harassment.” Id. at 6. Plaintiff
alleges this leave period went from January 28, 2015, to
April 1, 2016. Id.
alleges that on April 4, 2016, her first day back from leave,
Gaeke “ambushed [Plaintiff] with a document entitled
‘Notification of Intent to Terminate
Employment.'” Id. Plaintiff alleges that,
in this document, Gaeke falsely accused Plaintiff of entering
an incorrect date of birth on May 13, 2015, and failing to
process a life insurance claim properly on January 12, 2016.
Id. Gaeke allegedly gave Plaintiff twenty-four hours
to respond. Id. Plaintiff states that on April 7,
2016, Gaeke formally discharged Plaintiff “for
pretextual reasons and in retaliation for [Plaintiff's]
request for FMLA leave to care for her critically ill
husband.” Id. Plaintiff alleges that Gaeke
terminated Plaintiff “because she wished to hire a
younger employee to replace her, or otherwise treat her less
favorably than younger employees, and because of age.”
brings a claim for violation of the Texas Labor Code against
UTHSCSA. Id. Plaintiff also brings claims for
violations of the FMLA against UTHSCA and Gaeke. Id.
at 7. Plaintiff alleges that Gaeke interfered with,
restrained, and denied Plaintiff's exercise of or the
attempt to exercise her rights under the FMLA and discouraged
her from seeking benefits with respect to the FMLA's
family-care provision. Id. at 7-8. Plaintiff also
alleges that Gaeke retaliated against Plaintiff because she
exercised her rights with respect to the FMLA's self-care
provision. Id. at 7. On November 17, 2017,
individual Defendants Gaeke and Kobbe filed a Motion to
Dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), now pending before the Court. Docket no. 7.
Court must dismiss a cause for lack of subject-matter
jurisdiction “when the court lacks the statutory or
constitutional power to adjudicate the case.” See
Home Builders Assn. of Mississippi, Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). A motion
to dismiss for lack of jurisdiction under 12(b)(1) may be
decided on: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts, plus the
Court's resolution of disputed facts. Freeman v.
United States, 556 F.3d 326, 334 (5th Cir. 2009). Unlike
a 12(b)(6) motion, the district court is ...