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

> District Court, W.D. Oklahoma · January 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10388652

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** January 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10388652

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388652. Public record. Not legal advice.