Ramirez v. Board of Regents for the Regional University System of Oklahoma

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

KRISTA RAMIREZ, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-845-G

)

STATE OF OKLAHOMA ex rel. )

BOARD OF REGENTS FOR THE )

REGIONAL UNIVERSITY SYSTEM )

OF OKLAHOMA, et al., )

)

Defendants. )

ORDER

Plaintiff Krista Ramirez has brought this lawsuit against Defendant State of

Oklahoma ex rel. Board of Regents for the Regional University System of Oklahoma and

Defendant Southeastern Oklahoma State University (“SEOSU”), alleging violations of

Plaintiff’s federal and state statutory rights arising from her employment. See Am. Compl.

(Doc. No. 8). Now before the Court is the Motion to Dismiss (Doc. No. 10) jointly filed

by Defendants. Plaintiff has responded (Doc. No. 11) and Defendants have replied (Doc.

No. 12).

I. Summary of the Pleadings

In her Amended Complaint, Plaintiff alleges that Defendants violated her rights in

connection with her employment (presumably at SEOSU, although the location is not

specified). Specifically, Plaintiff asserts that she was employed by Defendants from

approximately September 16, 2013, to October 10, 2019, as an instructional designer. Am.

Compl. ¶¶ 7-8. According to Plaintiff, she met all requirements to perform this job and

“could perform the essential functions of her position with or without reasonable

accommodation.” Id. ¶ 8.

Plaintiff alleges that she suffered from a bowel collapse in the Fall of 2018 and also

was diagnosed with endometriosis with a subsequent hysterectomy in June 2019. See id.

¶¶ 9-10. Plaintiff states she informed Defendants of these “serious health conditions that

required her to take leave from work.” Id. ¶ 10. Plaintiff states she also informed

Defendants in February 2019 that her husband was diagnosed with “a terminal disease,

Autosomal Dominant Polycystic Kidney Disease.” Id.

Regarding Plaintiff’s bowel collapse, Plaintiff alleges that she “was required to take

protected leave under the FMLA in September 2018” and that after she took this leave, she

“was disciplined for her previously approved medical absences in her December 2018

performance evaluation.” Id. ¶ 11. Plaintiff “complained about this discriminatory and

retaliatory treatment.” Id.

With respect to her hysterectomy, Plaintiff alleges that when she requested leave for

the June 2019 surgery, “Defendants informed Plaintiff that she would not be able to take

leave, despite [her] actually being eligible for medical leave.” Id. ¶ 12. After Plaintiff

“insist[ed] on the medical necessity,” “Defendants ultimately approved her leave for her

hysterectomy.” Id. “This resulted in Plaintiff being off work for approximately five weeks

until July 22, 2019.” Id.

Plaintiff alleges that, despite being given “an above-average performance review”

in April 2019, in August of that year she received “a counseling report recommending her

termination within thirty (30) days.” Id. ¶ 13. In September 2019, Plaintiff (1) requested

accommodations for anxiety caused by her “hostile work environment”; (2) requested

intermittent leave due to her husband’s terminal medical condition; and (3) “complained

to Defendants of discrimination related to her disability and her husband’s disability.” Id.

¶ 14. On or about October 10, 2019, Defendants terminated Plaintiff’s employment. Id. ¶

15.

Plaintiff alleges that she has suffered wage loss and emotional distress/dignitary

harm damages as a result of Defendants’ actions. See id. ¶ 16. Plaintiff alleges that

Defendants subjected Plaintiff to improper discrimination and retaliation in violation of the

Americans with Disabilities Act (“ADA”),1 the Rehabilitation Act,2 the Family and

Medical Leave Act (“FMLA”),3 and the Oklahoma Anti-Discrimination Act (“OADA”).4

See id. ¶¶ 19-20. Plaintiff also contends that “Defendants interfered with [her] ability to

exercise her rights under the FMLA.” Id. ¶ 21. In this lawsuit, Plaintiff seeks “actual,

compensatory, and liquidated damages.” Id. at 6.

II. Applicable Standards

Defendants assert that Plaintiff’s allegations reflect that the Court lacks subject-

matter jurisdiction to hear certain of Plaintiff’s claims and, therefore, such claims should

1 Title I of the ADA prohibits discrimination “on the basis of disability” against qualified

individuals by employers and their agents. 42 U.S.C. § 12112(a); see id. §§ 12111-12117.

2 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibits discrimination

by reason of disability “under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a).

3 29 U.S.C. §§ 2601 et seq.

4 Okla. Stat. tit. 25, §§ 1101, 1301-1350.

be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P.

12(b)(1). “A facial attack on the complaint’s allegations regarding subject matter

jurisdiction questions the complaint’s sufficiency and requires the court to accept the

allegations as true.” Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009); see also

E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001). As the

party asserting federal jurisdiction, Plaintiff bears “the burden of alleging the facts essential

to show jurisdiction.” U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 797 (10th

Cir. 2002) (internal quotation marks omitted).

Defendants also seek dismissal of certain claims for “failure to state a claim upon

which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6). Fed. R. Civ.

P. 12(b)(6). In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as

true all well-pleaded factual allegations in the complaint and view[s] them in the light most

favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,

1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted

when it lacks factual allegations sufficient “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful

in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation

omitted); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“[T]o withstand

a motion to dismiss, a complaint must contain enough allegations of fact to state a claim to

relief that is plausible on its face.” (internal quotation marks omitted)). Bare legal

conclusions in a complaint are not entitled to the assumption of truth; “they must be

supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009).

III. Defendants’ Motion to Dismiss

In their Motion, Defendants argue that Plaintiff failed to exhaust her administrative

remedies on the ADA claim, that the Court lacks subject-matter jurisdiction over the ADA

and OADA claims and over Plaintiff’s FMLA self-care claim regarding Plaintiff’s own

medical issues, and that Plaintiff has failed to state a claim upon which relief can be granted

as to all asserted claims. See Defs.’ Mot. at 5-13; Defs.’ Reply at 5-6.

In her Response, Plaintiff affirmatively “withdraw[s]” her ADA claim and her

FMLA self-care claim. Pl.’s Resp. at 1 (“Plaintiff . . . concedes that dismissal is

appropriate.”). Accordingly, the Court addresses only Defendants’ request for dismissal

of the remaining claims.

A. Plaintiff’s OADA Claim

The OADA “provides for exclusive remedies within the state of the policies for

individuals alleging discrimination in employment on the basis of . . . disability.” Okla.

Stat. tit. 25, § 1101(A); see also id. § 1302. Citing Oklahoma’s assertion of sovereign

immunity in the Oklahoma Governmental Tort Claims Act (“OGTCA,” Okla. Stat. tit. 51,

§§ 151 et seq.), Defendants contend that they are immune from suit in federal court on

claims asserted under the OADA. See Defs.’ Mot. at 6; Defs.’ Reply at 5; Okla. Stat. tit.

51, § 152.1(A) (“The State of Oklahoma does hereby adopt the doctrine of sovereign

immunity. The state, its political subdivisions, and all of their employees acting within the

scope of their employment . . . shall be immune from liability for torts.”). Thus, Defendants

argue that this Court lacks jurisdiction to hear Plaintiff’s OADA claim and it must be

dismissed pursuant to Rule 12(b)(1).5

Plaintiff responds that the invocation of sovereign immunity in the OGTCA does

not extend to OADA claims. See Pl.’s Resp. at 9. As support, Plaintiff cites Bruehl v.

Oklahoma ex rel. Oklahoma Indigent Defense System, No. CIV-13-1247-HE, 2014 WL

2879744, at *2-4 (W.D. Okla. June 24, 2014), in which Judge Heaton held that, per binding

authority of the Oklahoma Supreme Court, an OADA claim is not a “tort” subject to and

within the scope of the OGTCA and, therefore, the assertion of sovereign immunity in that

Act did not extend to OADA claims. Accord Cooper v. City of Alva, No. CIV-19-148-G,

2019 WL 5653217, at *3 (W.D. Okla. Oct. 31, 2019); Hall v. Okla. Dep’t of Rehab. Servs.,

No. CIV-17-497-D, 2018 WL 991543, at *7 n.8 (W.D. Okla. Feb. 20, 2018) (“OADA

claims are not ‘torts’ within the meaning of the OGTCA, and are not subject to its

provisions.”).

Defendants counter that the underpinnings of Bruehl are no longer solid, noting that

the OGTCA was amended such that its definition of “tort” includes not just “a legal wrong,

independent of contract, involving violation of a duty imposed by general law or

otherwise” but one “involving violation of a duty imposed by general law, statute, the

5 Defendants also invoke the Eleventh Amendment as immunizing them from suit in federal

court on claims asserted under the OADA. See Defs.’ Mot. at 6 (citing Elwell v. Okla. ex

rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1305, 1314-16 (10th Cir. 2012), in

which the Tenth Circuit affirmed dismissal of an OADA claim based on a finding that

Oklahoma had not waived its Eleventh Amendment immunity from suit under the OADA).

But Defendants’ Eleventh Amendment immunity was waived by their removal of this suit

from state court. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 616

(2002).

Constitution of the State of Oklahoma, or otherwise.” See Defs.’ Reply at 5 (emphasis

omitted and added). Compare Okla. Stat. tit. 51, § 152(14) (eff. Nov. 1, 2010), with Okla.

Stat. tit. 51, § 152(14) (eff. Apr. 21, 2014).

Defendants fail to note, however, that Judge Heaton in Bruehl expressly cited the

same version of OGTCA section 152(14) as relied on by Defendants, as the relevant

amendment was enacted in 2014, several months before Bruehl was issued. See Bruehl,

2014 WL 2879744, at *3 n.2 (citing Okla. Stat. tit. 51, § 152(14) (eff. Apr. 21, 2014)

(defining a “tort” as “a legal wrong, independent of contract, involving violation of a duty

imposed by general law, statute, the Constitution of the State of Oklahoma, or otherwise .

. . ”)). Defendants also fail to cite any Oklahoma state-court authority superseding the

interpretation of the OGTCA that Judge Heaton found to be binding.

Having considered the reasoning in Bruehl, and having had no proper basis

presented to distinguish the instant matter, the Court likewise finds that “[P]laintiff’s state

law claim under the OADA is not barred by the doctrine of immunity from liability.” Id.

at *4.

B. Plaintiff’s FMLA Claim Regarding Her Husband’s Condition

Defendants next challenge, pursuant to Rule 12(b)(6), Plaintiff’s claim under the

FMLA for interference with her right to take leave as a result of her husband’s medical

condition and for retaliation against her for exercising that right.

The FMLA “entitles eligible employees to take up to 12 work weeks of unpaid leave

per year.” Coleman v. Ct. of Appeals of Md., 566 U.S. 30, 34 (2012). Relevant here, 29

U.S.C. § 2612 allows an employee to take leave “to care for the spouse . . . of the employee,

if such spouse . . . has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). Plaintiff

asserts that Defendants (1) interfered with her rights under this provision and (2) retaliated

against her for exercising those rights. See Am. Compl. ¶¶ 19-21; see Campbell v. Gambro

Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007); 29 U.S.C. § 2615(a)(1), (a)(2).

In the Amended Complaint, Plaintiff alleges in relevant part that she informed

Defendants of her husband’s terminal medical condition in February 2019. See Am.

Compl. ¶ 10. In August 2019, she “was given a counseling report recommending her

termination within thirty (30) days.” Id. ¶ 13. In September 2019, Plaintiff requested

“intermittent leave” due to her husband’s condition. Id. ¶ 14. In September 2019, Plaintiff

also “complained to Defendants of discrimination related to her disability and her

husband’s disability.” Id. ¶ 14. On or about October 10, 2019, Plaintiff’s employment was

terminated. Id. ¶ 15; see also Pl.’s Resp. at 10.

1. Interference Claim

To establish an interference claim, Plaintiff must show: “(1) that she was entitled to

FMLA leave, (2) that some adverse action by the employer interfered with her right to take

FMLA leave, and (3) that the employer’s action was related to the exercise or attempted

exercise of her FMLA rights.” Campbell, 478 F.3d at 1287 (alterations and internal

quotation marks omitted). Regarding the second element, Plaintiff “must show that she

was prevented from taking the full 12 weeks[] of leave guaranteed by the FMLA, denied

reinstatement following leave, or denied initial permission to take leave.” Id.

Defendants argue that Plaintiff does not adequately allege the second element as to

her request for leave to care for her husband. See Defs.’ Mot. at 9-10, 11. In regard to her

husband’s condition, there is no allegation that Defendants prevented Plaintiff from taking

her guaranteed leave, denied reinstatement following leave, or initially denied her

permission to take leave. Plaintiff’s unsupported assertion of interference is insufficient to

push her claim over the line to “plausibility of entitlement of relief.” Iqbal, 556 U.S. at

678 (internal quotation marks omitted) (explaining that the pleading’s factual content must

show “more than a sheer possibility that a defendant has acted unlawfully”). The Court

agrees that, insofar as this claim, the pleading fails to state a claim upon which relief can

be granted. See Campbell, 478 F.3d at 1287; Fed. R. Civ. P. 12(b)(6).

2. Retaliation Claim

To prevail upon an FMLA retaliation claim, Plaintiff must prove that: “(1) she

engaged in a protected activity; (2) [Defendants] took an action that a reasonable employee

would have found materially adverse; and (3) there exists a causal connection between the

protected activity and the adverse action.” Campbell, 487 F.3d at 1287 (internal quotation

marks omitted); see also id. at 1287-88 (“[A] retaliation claim may be brought when the

employee successfully took FMLA leave, was restored to her prior employment status, and

was adversely affected by an employment action based on incidents post-dating her return

to work.”).

Relevant to the first element, Plaintiff alleges that in September 2019 she requested

intermittent leave based upon her husband’s condition. The pleading does not establish

whether Plaintiff actually took such leave, but the Tenth Circuit has treated an employee’s

“invok[ing]” of FMLA rights by “request[ing] . . . FMLA-protected leave” as the requisite

protected activity. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171-72

(10th Cir. 2006); accord Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225,

1247-48 (D. Kan. 2007) (considering whether a causal connection existed between the

plaintiff’s request of FMLA leave and her termination). Next, Plaintiff alleges that she was

terminated on or about October 10, 2019. This allegation plausibly establishes the second

element, as “any reasonable employee would have found termination materially adverse.”

Metzler, 464 F.3d at 1171.

Plaintiff’s pleading primarily sets forth conclusions, not facts, to support a “causal

connection” between this protected activity and her termination. See Am. Compl. ¶¶ 19,

20. An FMLA plaintiff can establish causation, however, by showing that her termination

was “‘very closely connected in time’ to her protected FMLA activity.” Metzler, 464 F.3d

at 1172 (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999))

(finding that the plaintiff had established a causal connection when her termination

occurred at most six weeks after the defendants were aware of the plaintiff’s intent to

engage in protected activity and four weeks at most from the plaintiff’s requesting leave);

accord O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (noting that

a one-and-a-half month time period between the protected activity and the adverse action

may be enough to establish causation on retaliation claims, but that a period of three

months, without additional evidence, has been found insufficient to do so).

As set forth above, Plaintiff alleges that she was fired approximately ten days to five

weeks after requesting leave. That allegation, accepted as true, places Plaintiff’s

termination sufficiently close in time to her request for intermittent leave as to plausibly

establish a causal connection between the two events. See Metzler, 464 F.3d at 1172;

Burnett, 706 F.3d at 1235. Dismissal of Plaintiff’s FMLA retaliation claim therefore is not

warranted. See Fed. R. Civ. P. 12(b)(6).

C. Plaintiff’s Rehabilitation Act Claim

Defendants also argue, pursuant to Rule 12(b)(6), that Plaintiff fails to state a

plausible claim for violation of the Rehabilitation Act. “The Rehabilitation Act prohibits

discrimination against an ‘otherwise qualified individual with a disability.’” McGeshick v.

Principi, 357 F.3d 1146, 1149 (10th Cir. 2004) (quoting 29 U.S.C. § 794(a))). “The statute

makes available a private right of action to qualified individuals who have been subjected

to discrimination . . . by a program or activity receiving federal financial assistance.” Id.

To state a discrimination claim under the Rehabilitation Act, Plaintiff must plausibly allege

that: (1) she is an “individual with a disability”; (2) she would be “otherwise qualified” to

participate in the relevant program or activity; (3) the program or activity receives federal

financial assistance; and (4) the program or activity has excluded, denied benefits to, or

discriminated against Plaintiff “solely by reason of” her disability. See id. at 1150; 29

U.S.C. § 794(a), (b).6

Defendants dispute whether Plaintiff has adequately alleged that she was disabled.

See Defs.’ Mot. at 12-13; Defs.’ Reply at 7-9. The ADA and the Rehabilitation Act define

“disability” in “essentially the same terms.” Nielson v. Moroni Feed Co., 162 F.3d 604,

6 In her Response, Plaintiff also refers to her allegations regarding her husband’s kidney

disease as supportive of Plaintiff’s Rehabilitation Act claim. Plaintiff, however, offers no

authority for the proposition that the private right of action authorized by this Act extends

to discrimination against a person by reason of another’s disability or the need to care for

another.

608 n.7 (10th Cir. 1998). And because the Rehabilitation Act incorporates the ADA’s

standards, see 29 U.S.C. § 705(9)(B), the result is an expanded understanding of “disabled”

under both statutes:

(A) a physical or mental impairment that substantially limits one or more of

the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment . . . .

McGeshick, 357 F.3d at 1150 (quoting 42 U.S.C. § 12102(1)). “To satisfy this definition,

‘a plaintiff must (1) have a recognized impairment, (2) identify one or more appropriate

major life activities, and (3) show the impairment substantially limits one or more of those

activities.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011)

(internal quotation marks omitted). Such an impairment includes: “[a]ny physiological

disorder or condition . . . or anatomical loss affecting one or more body systems,” including

“reproductive, digestive,” or “genitourinary,” or “[a]ny mental or psychological disorder,

such as . . . emotional or mental illness.” 29 C.F.R. § 1630.2(h); see Carter, 662 F.3d at

1142; see also Bragdon v. Abbott, 524 U.S. 624, 632 (1998).

Plaintiff alleges that she suffers from anxiety and endometriosis, that she suffered a

bowel collapse, and that she underwent a hysterectomy. See Pl.’s Resp. at 5 (citing Am.

Compl. ¶¶ 9, 10, 11, 14). As to anxiety disorder, Defendants argue that the anxiety

described by Plaintiff is merely “situational” and therefore does not support a finding of

disability. Although Defendants cite a decision in which the Tenth Circuit affirmed a

finding that the anxiety a student experienced “limited to certain academic subjects” did

not constitute a disability, that holding focused upon the particular student’s failure to show

that his anxiety disorder substantially limited a major life activity. See McGuinness v.

Univ. of N.M. Sch. of Med., 170 F.3d 974, 977-78 (10th Cir. 1998). The McGuinness

decision does not contradict the extensive authority deciding that an anxiety disorder may

constitute a recognized impairment supporting a showing of disability under the

Rehabilitation Act. See, e.g., Mayfield v. Target Corp., No. 5:18-cv-04036-HLT, 2019 WL

5576938, at *3 (D. Kan. Oct. 29, 2019) (noting the plaintiff’s “recognized impairment of

generalized anxiety disorder”); Stuart v. Vilsack, No. 2:14-CV-416-SMJ, 2016 WL

6902347, at *6 (E.D. Wash. Nov. 23, 2016) (finding that the plaintiff’s PTSD-related

anxiety was a recognized impairment for a Rehabilitation Act claim); see also E.E.O.C.,

EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric

Disabilities, 1997 WL 34622315, at *2 (Mar. 25, 1997) (identifying anxiety disorders as

an example of emotional or mental illness included within the ADA’s mental impairments);

28 C.F.R. § 35.108(b)(2) (prescribing that “[p]hysical or mental impairment” includes

“emotional illness”). The Court reads Plaintiff’s allegations of anxiety as plausibly

describing an impairment that falls within this general category and, at this point, not one

excludable under the limited scope of the McGuinness decision.

As to Plaintiff’s endometriosis, bowel collapse, and hysterectomy, Defendants in

their Motion at least nominally question whether Plaintiff has alleged a recognized

impairment. See Defs.’ Mot. at 13 (“Plaintiff points to no disability.”). Plaintiff’s reference

to her endometriosis—and what appears to be the related event of a hysterectomy

procedure—adequately alleges a physiological condition “affecting one or more body

systems.” 29 C.F.R. § 1630.2(h); see also Bragdon, 524 U.S. at 660 (Rehnquist, C.J.,

concurring in part and dissenting in part) (“There are numerous disorders of the

reproductive system, such as . . . endometriosis, which are so painful that they limit a

woman’s ability to engage in major life activities . . . .”); 42 U.S.C. § 12102(4)(A) (“The

definition of disability in this chapter shall be construed in favor of broad coverage of

individuals under this chapter, to the maximum extent permitted by the terms of this

chapter.”). Accordingly, Plaintiff has adequately alleged one or more recognized

impairments to establish the disability element of her Rehabilitation Act claim.

Defendants also argue that Plaintiff’s allegations fail to establish causation—i.e.,

that Defendants discriminated against Plaintiff “solely by reason of” her disability. 29

U.S.C. § 794(a); see McGeshick, 357 F.3d at 1150; Defs.’ Mot. at 13. As to Plaintiff’s

anxiety disorder, the very close temporal proximity between Plaintiff bringing that

impairment to Defendants’ attention and Defendants’ termination of Plaintiff is sufficient

at this pleading stage to plausibly support a causal connection between the two events. See

Am. Compl. ¶¶ 14, 15 (alleging that Plaintiff requested accommodations for anxiety in

September 2019 and was terminated on or about October 10, 2019); Anderson, 181 F.3d at

1179. And, while some events related to Plaintiff’s endometriosis were more distant in

time from the October 2019 termination of Plaintiff, the fact that Plaintiff allegedly

“complained to Defendants of discrimination related to her disability” as late as September

2019, Am. Compl. ¶ 14, is sufficient at this stage to plausibly support a causal connection

between the impairment and her termination. See Arbogast v. Kan. Dep’t of Labor, No.

13-CV-4007-JAR/KMH, 2014 WL 1308915, at *6 (D. Kan. Mar. 31, 2014) (denying

dismissal of Rehabilitation Act claim where the plaintiff complained through July 2011

and was terminated in August 2011).

Plaintiff therefore shall be permitted to proceed with her Rehabilitation Act

discrimination claim.

IV. Plaintiff’s Request to Amend

As referenced above, Defendants requested dismissal of Plaintiff’s FMLA self-care

claim based upon the State’s immunity to this claim. See Coleman, 566 U.S. at 37 (“[T]he

[FMLA’s] self-care provision is not a valid abrogation of the States’ immunity from suit.”).

Plaintiff conceded that dismissal of her FMLA self-care claim was proper, see Pl.’s Resp.

at 1. In her Response, however, Plaintiff requests that the Court grant her leave to amend

her pleading a second time in lieu of dismissal. See id. at 10-11. In support, Plaintiff cites

Cornforth v. University of Oklahoma Board of Regents, 263 F.3d 1129 (10th Cir. 2001), in

which the Tenth Circuit rejected a state employee’s argument that damages claims raised

against the employee in his individual capacity were barred by the Eleventh Amendment.

See id. at 1133.

Plaintiff states that she wishes to amend her claim to “include individual

defendants” but fails to identify any such individuals, to identify any factual allegations

relevant to these individuals, or to otherwise adequately inform the Court how bringing

these unknown individuals into the lawsuit would be in the interest of justice. Pl.’s Resp.

at 10-11; see Fed. R. Civ. P. 15(a)(2). Accordingly, this request is denied. Cf. LCvR 15.1

(requiring that proposed pleading be submitted with motion to amend).

CONCLUSION

For the reasons outlined above, Defendants’ Motion to Dismiss (Doc. No. 10) is

GRANTED IN PART and DENIED IN PART. Plaintiff's ADA claim, FMLA self-care

claim, and FMLA interference claim with regard to her husband are dismissed without

prejudice. Plaintiff's Rehabilitation Act claim, FMLA retaliation claim with regard to her

husband, and OADA claim shall be allowed to proceed.

IT IS SO ORDERED this 8th day of January, 2021.

(Barba B. Kadota

United States District Judge

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