United States District Court, N.D. Texas, Fort Worth Division
EVAN C. SEELEY, Plaintiff,
MICHAEL HUERTA, ADMINISTRATOR FEDERAL AVIATION ADMINISTRATION, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
for consideration the motion of defendants, Michael Huerta,
Administrator, Federal Aviation Administration
("Huerta"), and Elaine L. Chao, Secretary, U.S.
Department of Transportation ("Chao"), to dismiss.
The court, having considered the motion, the response of
plaintiff, Evan C. Seeley, the reply, the record, and
applicable authorities, finds that the motion should be
granted in part.
operative pleading is plaintiff's first amended complaint
filed January 5, 2018. Doc. 6. In it, plaintiff alleges: He
is an air traffic control specialist employed by the Federal
Aviation Administration ("FAA") at the Fort Worth
Enroute Traffic Control Center in Fort Worth, Texas. On or
about April 11, 2014, he made a written request to use four
hours of leave under the Family and Medical Leave Act, 29
U.S.C. §§ 2601-54 ("FMLA") every Friday
and eight hours of FMLA leave every Saturday through November
2 014, so that he could bond with his son born November 5,
2013. He also requested earlier shifts on Fridays to
accommodate his familial responsibilities and offset the use
of FMLA leave. Plaintiff was required to provide detailed
documentation in support of his request that was not required
of female co-workers who submitted similar requests, and he
was not provided any assistance in filling out the forms to
defendants' satisfaction. Defendants delayed ruling on
plaintiff's leave requests and ultimately denied them. On
the date of the denial, plaintiff filed a grievance to
complain of the seemingly endless delay in processing his
requests for leave. Defendants requested three separate
thirty-day extensions of time to respond to the grievance,
but never ruled on it. Plaintiff elected to pursue other
procedures available by making a complaint on June 9, 2014,
with the EEOC. A letter of notice of right to sue was issued
December 1, 2017.
seeks damages for discrimination and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2OOOe to 2000e-17 ("Title VII"). Plaintiff also
asserts a claim for whistleblower retaliation, apparently
under 5 U.S.C. § 2302.
Grounds of the Motion
say that plaintiff made an irrevocable election to pursue his
discrimination claims through the FAA's grievance
procedure and failed to exhaust his remedies thereunder.
Thus, the court does not have jurisdiction over the
discrimination claims. Further, plaintiff has failed to
establish that the court has jurisdiction over his
whistleblower claim or that he is entitled to any relief
pursuant to it. And, finally, plaintiff should only have sued
Chao and not Huerta.
Applicable Legal Standards
Fed. R. Civ. P. 12(b)(1)
of a case is proper under Rule 12(b)(1) of the Federal Rules
of Civil Procedure when the court lacks the statutory or
constitutional power to adjudicate the case. Home
Builders Ass'n of Miss., Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). When
considering a motion to dismiss for lack of subject matter
jurisdiction, the court construes the allegations of the
complaint favorably to the pleader. Spector v. L.Q. Motor
Inns, Inc., 517 F.2d 278, 281 (5th Cir.
1975). However, the court is not limited to a consideration
of the allegations of the complaint in deciding whether
subject matter jurisdiction exists. Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The court may
consider conflicting evidence and decide for itself the
factual issues that determine jurisdiction. Id.
Because of the limited nature of federal court jurisdiction,
there is a presumption against its existence. See Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374
(1978); McMutt v. General Motors Acceptance Corp. of
Ind., Inc., 298 U.S. 178, 189 (1936). A party who seeks
to invoke federal court jurisdiction has the burden to
demonstrate that subject matter jurisdiction exists.
McNutt, 298 U.S. at 189; Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
Fed. R. Civ. P. 12 (b) (6)
8(a)(2) of the Federal Rules of Civil Procedure provides, in
a general way, the applicable standard of pleading. It
requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief, " Fed.R.Civ.P. 8(a)(2), "in order to
give the defendant fair notice of what the claim is and the
grounds upon which it rests, " Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and ellipsis omitted). Although a complaint need not
contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a
cause of action. Twombly, 550 U.S. at 555 & n.3.
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
legal conclusions that are unsupported by any factual
underpinnings. See Ashcroft v. Igbal, 556 U.S. 662,
679 (2009) ("While legal conclusions can provide the
framework of a complaint, they must be supported by factual
to survive a motion to dismiss for failure to state a claim,
the facts pleaded must allow the court to infer that the
plaintiff's right to relief is plausible. Igbal,
556 U.S. at 678. To allege a plausible right to relief, the
facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining
whether a complaint states a plausible claim for relief . . .
[is] a context-specific task that requires the reviewing
court to draw on its judicial experience and common
Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to
what conduct supports the claims, the complaint fails to
satisfy the requirement of notice pleading."
Anderson v. U.S. Dep't of Housing & Urban
Dev., 554 F.3d 525, 528 (5th Cir. 2008), In
sum, "a complaint must do more than name laws that may
have been violated by the defendant; it must also allege
facts regarding what conduct violated those laws. In other
words, a complaint must put the defendant on notice as to
what conduct is being called for defense in a court of
law." Id. at 528-29. Further, the complaint
must specify the acts of the defendants individually, not
collectively, to meet the pleading standards of Rule ...