United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
for consideration the amended motion of defendants, General
Motors Financial Company, Inc. ("GMFCI"), and
AmeriCredit Financial Services, Inc. d/b/a GM Financial
("GMF"), to dismiss. The court, having considered
the motion, the response of plaintiff, Anissa Malone, the
reply, the record, and applicable authorities, finds that the
motion should be granted in part.
September 18, 2019, plaintiff filed her first amended
complaint in this action. Doc. 21. In it, she alleges:
hired plaintiff in February 2016 as a financial analyst. Doc.
21 ¶ 6. She excelled in her position, receiving positive
feedback. Id. On September 21, 2017, plaintiff
dislocated the pinky finger on her dominant hand, slowing her
ability to type and complete her job duties. Id.
¶ 7. On December 7, she underwent a closed manipulation
of her finger. Id. ¶ 8. In January 2 018,
plaintiff was approved for intermittent FMLA leave.
Id. By March, plaintiff had no active motion in the
finger and was scheduled to undergo surgery on March 21.
Id. ¶ 9. Following her request for surgical
leave, plaintiff's supervisor was condescending,
frustrated, angry, and distant. Id. On March 9,
plaintiff was informed of alleged performance deficiencies
that had never been provided before. Id. ¶ 1.0.
She was given a Notice of Corrective Action
("NOCA") giving her 60 days to improve her
performance. Id. Plaintiff was out on FMLA leave
from March 19 to May 4, 2018. Id. ¶ 12. On May
7, she received an amended level 2 NOCA for the same
performance issues, but was given only 3 0 days to perform a
different list of tasks. Id. Plaintiff asked for
help due to her medical restrictions but received none.
Id. ¶¶ 16-22. Plaintiff was approved for a
leave of absence for a second surgery on June 25.
Id. ¶ 24. Plaintiff was terminated one week
before her scheduled surgery. Id. ¶¶
25-26. On September 12, 2018, plaintiff filed an EEOC charge
naming GMFCI as her employer. Id. ¶ 49. On
information and belief, GMF became aware of the charge.
Id. ¶ 50.
asserts claims against defendants under the Family and
Medical Leave Act, 29 U.S.C. §§ 2601-2654
("FMLA"}, for interference and retaliation, and
under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101-12213 ("ADA"), for
discrimination and retaliation.
Grounds of the Motion
allege that plaintiff has failed to exhaust her
administrative remedies against GMF as to her ADA claims.
They further allege that she has failed to plead facts
sufficient to state plausible claims against GMFCI under the
FMLA and ADA. Doc.
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. Iqbal, 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. Iqbal,
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 Gir. 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 8(a). See Griggs v.
State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999);
see also Searcv v. Knight (In re Am. Int'l
Refinery), 402 B.R. 728, 738 (Bankr. W.D. La. 2008).
considering a motion to dismiss for failure to state a claim,
the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are
central to the plaintiff's claims. Scanlan v. Tex.
A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). The
court may also refer to matters of public record. Papasan
v. Allain, 478 U.S. 265, 268 n.l (1986); Davis v.
Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995); Cinel
v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). This
includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.l
(5th Cir. 2003). And, it ...