# Driskill v. Board of Regents of the University of Oklahoma

> District Court, W.D. Oklahoma · May 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10388852

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** May 14, 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/10388852

## How later opinions describe it (automated extraction)

- finding issue raised in a reply brief to motion to dismiss complaint waived even though plaintiff filed a surreply addressing the issue

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

LESLIE DRISKILL, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-21-240-F
)
STATE OF OKLAHOMA, ex rel. )
BOARD OF REGENTS OF THE )
UNIVERSITY OF OKLAHOMA, )
)
Defendant. )

ORDER
Defendant State of Oklahoma, ex rel. Board of Regents of the University of
Oklahoma (University) moves to dismiss certain claims alleged against it by plaintiff
Leslie Driskill (Driskill). Doc. no. 8. The motion is brought under Rule 12(b)(1)
and Rule 12(b)(6), Fed. R. Civ. P. Driskill responded, objecting to dismissal of her
claims. Doc. no. 12. The University filed a reply brief. Doc. no. 13.
Driskill was employed by the University, an arm of the State of Oklahoma,1
as Clinical Trials Manager. Her employment was terminated on May 12, 2020. In
her complaint,2 Driskill alleges claims of discrimination and retaliation in violation
of the Rehabilitation Act, 29 U.S.C. § 701, et seq., and claims of interference and
retaliation in violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601,
et seq.

1 See, Cornforth v. University of Oklahoma Bd. of Regents, 263 F.3d 1129, 1131 n.1 (10th Cir.
2001).
2 This action originally commenced in state court. The court refers to the operative pleading as
the complaint consistent with the nomenclature of the Federal Rules of Civil Procedure.
Rule 12(b)(1) and Rule 12(b)(6)
Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on
the complaint’s allegations as to subject matter jurisdiction, questioning the
sufficiency of the complaint; or (2) a factual attack which goes beyond the
allegations contained in the complaint to challenge the facts upon which subject
matter jurisdiction depends. See, Holt v. United States, 46 F.3d 1000, 1002-03 (10th
Cir. 1995) (citation omitted). Here, the University’s challenge of lack of subject
matter jurisdiction based upon Eleventh Amendment immunity constitutes a facial
attack. See, Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). In reviewing
a facial attack, the court must accept the allegations in the complaint as true. Holt,
46 F.3d at 1002 (citation omitted).
To avoid dismissal under Rule 12(b)(6), a complaint must have enough
allegations of fact, taken as true, to state a claim to relief that is plausible on its face.
See, Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
Mere labels and conclusions and a formulaic recitation of the elements of a claim
will not suffice; a plaintiff must offer specific factual allegations to support each
claim. Id. Determining whether a complaint states a plausible claim for relief will
be a context-specific task that requires the court to draw on its judicial experience
and common sense. Id.
Pertinent Allegations
The complaint alleges the following facts, which the court, for purposes of the
present motion, assumes to be true. Driskill began her employment with the
University around 2009 as Research Assistant II. She performed satisfactorily and
was given several promotions. The last promotion she received was Clinical Trials
Manager. She was qualified for that position and performed it satisfactorily.
Beginning around December 2019, Driskill began suffering from memory
lapses, concentration difficulties, dizziness, and severe exhaustion. Around March
or April 2020, Driskill’s supervisor, Shannon Kennedy, approached Driskill and
stated that the University had been concerned for her wellbeing. Driskill explained
what she had been suffering from and stated that she had been generally feeling
unwell, and she was seeking out medical treatment to determine what was happening
to her.
Around April 21, 2020, Driskill suffered significant impairments to her
memory, reasoning, and other mental functions. She became unable to work on
April 21, 2020.
Around April 27, 2020, Driskill’s uncle contacted the University and spoke
with Jessica Rodriguez (Rodriguez), who was the Assistant Director of Human
Resources. The uncle told Rodriguez that Driskill was suffering from a serious
mental health condition and he believed she had been hospitalized. The uncle
explained that Driskill was currently unable to communicate with the University, but
he was requesting FMLA leave on her behalf.
Driskill’s uncle also communicated with Shane Daniels (Daniels), who was
the “ADA/FMLA” Administrator, about Driskill’s condition. He asked Daniels to
forward Driskill’s FMLA paperwork to her father as Driskill was unable to
communicate with the University or have the paperwork completed on her own due
to her hospitalization.
The University refused to communicate with anyone acting on Driskill’s
behalf, insisting that it would only communicate with Driskill. On April 27, 2020,
the University sent the FMLA paperwork to Driskill’s email and home addresses,
even though the University was aware she did not have access to her email or her
mail because of her hospitalization.
Driskill’s co-workers and supervisors commented that Driskill may have a
drug problem (which she does not) and this was the reason for her medical condition
and absences from work.
Driskill was hospitalized through May 6, 2020. She was terminated via a
letter dated May 4, 2020. The reason given by the University for her termination
was job abandonment. The University was aware Driskill was hospitalized with
what was believed to be a mental health condition.
Driskill was not allowed to use FMLA for her absences from April 21, 2020
until the date of her termination.
Driskill was hospitalized again from around May 26, 2020 until around
June 23, 2020. Because she was terminated, Driskill was unable to utilize FMLA
leave for that time.
Analysis
1. FMLA Claims – Eleventh Amendment Immunity
In Count II of her complaint, Driskill alleges that the University interfered
with her right to utilize FMLA leave and retaliated against her after she attempted to
or did exercise her right to utilize FMLA leave. Driskill requests money damages
for the alleged interference and retaliation. See, doc. no. 1-3, ¶ 32.
The FMLA allows employees to take up to 12 work weeks of unpaid leave
per year. An employee may take leave under the FMLA for the employee’s own
serious health condition when the condition “makes the employee unable to perform
the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Leave
taken to address an employee’s own serious health condition is referred to as self-
care leave.
The FMLA makes it “(1) . . . unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided under
this subchapter” and (2) . . . unlawful for any employer to discharge or in any other
manner discriminate against any individual for opposing any practice made unlawful
by this subchapter.” 29 U.S.C. § 2615(a)(1) and (2). The FMLA creates a private
right of action for any eligible employee to sue any employer who violates § 2615
for both money damages and equitable relief. 29 U.S.C. § 2617(a)(2).
The University posits that Driskill cannot bring suit against it for money
damages under the FMLA’s self-care provision. Citing the Supreme Court’s
decision in Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012), the
University argues that it is immune from suit for monetary relief.
Driskill concedes the University is immune from suit for money damages.
However, she argues the University is not immune from suit for prospective relief
such as declaratory relief or reinstatement. Driskill points out that in the prayer
portion of her complaint, she alleges entitlement to “other legal and equitable relief.”
If the court concludes that this is not sufficient to plead declaratory and injunctive
relief against the University, Driskill requests leave to amend her complaint to
properly plead she is seeking prospective relief against the University.
Upon review, the court concludes that Driskill’s FMLA claims are subject to
dismissal. States enjoy sovereign immunity from suit under the Eleventh
Amendment. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir.
2012). However, the Eleventh Amendment is not absolute. There are three
exceptions. Id. First, a state may waive Eleventh Amendment immunity and consent
to be sued. Id. Second, Congress may abrogate a state’s sovereign immunity by
appropriate legislation when it acts under Section 5 of the Fourteenth Amendment.
Id. Third, under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may bring suit
against individual state officers acting in their official capacities if the complaint
alleges an ongoing violation of federal law and the plaintiff seeks prospective relief.
The first two exceptions are not in play. There is no dispute that Eleventh
Amendment immunity has not been waived. In addition, plaintiff recognizes that
the Supreme Court’s ruling in Coleman forecloses any argument of congressional
abrogation of Eleventh Amendment immunity for the FMLA claims based upon self-
care leave.
Instead, in her briefing, Driskill relies upon Ex parte Young as authority for
pursuing prospective relief under the FMLA against the University. Driskill,
however, has not sued any official of the University acting in his or her official
capacity. For the Ex parte Young exception to apply, a plaintiff must show that she
is “suing state officials rather than the state itself.” Muscogee (Creek) Nation, 669
F.3d at 1167. Because Driskill has not sued any University official acting in his or
her official capacity, Driskill cannot rely upon Ex parte Young to save her FMLA
claims. The court thus concludes that Eleventh Amendment immunity bars
plaintiff’s FMLA claims against the University, and those claims should be
dismissed without prejudice pursuant to Rule 12(b)(1), Fed. R. Civ. P.3
2. Rehabilitation Act Claims
The University argues that Driskill, in Count I of her complaint, fails to state
a claim of discrimination under the Rehabilitation Act. Specifically, the University
argues that Driskill fails to allege (1) she is disabled as defined by the Act; (2) she
would be otherwise qualified for the benefit she sought; (3) the state program
receives federal financial assistance; and (4) she was discriminated against “solely”
because of her disability. Doc. no. 8, ECF p. 6.
Driskill responds that the “sole” causation standard does not apply to her
Rehabilitation Act claims. She maintains that her complaint sufficiently alleges
prima facie claims for both disparate treatment and retaliation under the
Rehabilitation Act. Specifically, with respect to the disparate treatment claim, she
asserts that she alleges facts to establish an actual disability–a physical or mental

3 In light of this ruling, the court need not address the University’s Rule 12(b)(6) challenge to
Driskill’s FMLA retaliation claim.
impairment that substantially limits the major activities of concentrating, thinking,
communication, working and the functions of the “neurological, brain.” Doc. no.
12, ECF p. 18. In addition, she asserts that she has alleged facts sufficient to
establish that she was regarded by her supervisor as having such an impairment.
Driskill also contends that she sufficiently alleges she was qualified for her position
as Clinical Trials Manager and performed the duties of that position satisfactorily.
Further, Driskill contends that she alleges facts giving rise to an inference of
disparate treatment because she alleges that she was terminated: (1) less than a month
after her supervisor expressed concern for her wellbeing and was notified of her
medical issues; and her supervisor commented that she had a drug problem and that
was a reason for her absences; and (2) within a month of taking her medical leave.
Lastly, Driskill asserts that she is not required to plead that the University receives
federal financial assistance.
“The Rehabilitation Act prohibits discrimination against an otherwise
qualified individual with a disability.” McGeshick v. Principi, 357 F.3d 1146, 1149
(10th Cir. 2004). “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. In the absence of direct evidence of
discrimination, a court applies the burden-shifting framework from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate disability discrimination
claims under the Rehabilitation Act. See, Cummings v. Norton, 393 F.3d 1186, 1189
n. 1 (10th Cir. 2005). The first step of that framework—establishing a prima facie
case of employment discrimination—requires the plaintiff to allege: (1) she is
disabled under the Act; (2) she would be “otherwise qualified” to participate in the
program; (3) the program receives federal financial assistance; and (4) the program
has discriminated against her. McGeshick, 357 F.3d at 1150. The pertinent
allegations, viewed in Driskill’s favor, establish a prima facie case of discrimination
under the Rehabilitation Act. See, Blough v. Rural Electric Coop., Inc., 689 Fed.
Appx. 583, 587 (10th Cir. 2017) (“A plaintiff is not required to establish a prima facie
case in [her] complaint to survive Rule 12(b)(6) scrutiny, but ‘the elements of each
alleged cause of action help to determine whether [the] [p]laintiff has set forth a
plausible claim.’”) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th
Cir. 2012)).
A plaintiff is disabled under the Rehabilitation Act if she (1) has a “physical
or mental impairment that substantially limits one or more major life activities of
such individual;” (2) has a “record of such an impairment;” or (3) is “regarded as
having such an impairment.” 42 U.S.C. § 12102(1); see, McGeshick, 357 F.3d at
1150 (evaluating Rehabilitation Act claim under same standards as title I of
Americans with Disabilities Act (ADA) claim). Driskill relies on the first and third
prongs.
Driskill is correct that major life activities include “concentrating, thinking,
communicating, and working” and the operation of a major bodily function,
including “neurological, brain.” 42 U.S.C. § 12102(2). In the court’s view, Driskill
sufficiently alleges facts establishing a physical or mental impairment that
substantially limits one or more of those major life activities.
Under the ADA, a plaintiff meets the “regarded as” prong if the plaintiff
establishes that she has been subject to an action prohibited by the Act “because of
an actual or perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity” and the impairment is not
“transitory and minor.” 42 U.S.C. § 12102(3); see also, Adair v. City of Muskogee,
823 F.3d 1297, 1305-06 (10th Cir. 2016). A transitory impairment is one “with an
actual or expected duration of [six] months or less.” Id. at § 12102(3)(B).
Viewing the pertinent allegations in a light most favorable to Driskill, the
court finds that she alleges facts sufficient to establish that the University regarded
her as having a physical or mental impairment and the impairment is not transitory
and minor.
Next, the ADA defines a qualified individual with a disability as one who
“with or without reasonable accommodation, can perform the essential functions of
the employment position.” 42 U.S.C. § 12111(8). Upon review of the pertinent
allegations in a light most favorable to Driskill and the authority cited by Driskill,
the court finds that she alleges facts sufficient to establish she can perform the
essential functions of her position.
Further, to state a plausible Rehabilitation Act claim, Driskill must allege facts
to show she was terminated “under circumstances which give rise to an inference
that the termination was based on [her disability or perceived disability].” See,
Smothers v. Solvay Chemicals, Inc., 740 F.3d 530, 544 (10th Cir. 2014); see also,
Collardey v. Alliance for Sustainable Energy, LLC, Case No. 18-cv-00486-PAB-
SKC, 2019 WL 4450201, at *3 (D. Colo. Sept. 16, 2019) (relying upon Smothers
for both ADA and Rehabilitation Act discrimination claims). “The burden of
production placed on the plaintiff relative to the discrimination element . . . is not
onerous.” See, Lincoln v. BNSF Railway Company, 900 F.3d 1166, 1193 (10th Cir.
2018). “Courts have enumerated a variety of circumstances that can give rise to an
inference of discriminatory motive.” Plotke v. White, 405 F.3d 1092, 1101 (10th Cir.
2005). These circumstances include “actions or remarks made by decisionmakers
that could be viewed as reflecting discriminatory animus.” Id. (quotation omitted).
A plaintiff may also rely “upon the timing or sequence of events leading to [her]
termination.” Id. Viewed in a light most favorable to Driskill, the pertinent
allegations are sufficient to establish that the disability or perceived disability was a
determining factor in Driskill’s termination. See, Lincoln, 900 F.3d at 1193 (“[T]he
inference of discrimination element of the prima facie case requires the plaintiff to
present some affirmative evidence that disability was a determining factor in the
employer’s decision”) (emphasis and quotation omitted); see also, Collardey, 2019
WL 4450201, at *3) (relying upon Lincoln for both ADA and Rehabilitation Act
discrimination claims).
Lastly, as to the element of whether the University receives federal financial
assistance, the court agrees with Driskill that she need not specifically allege this
element of the prima facie case to survive dismissal under Rule 12(b)(6). See, Ryan
v. Shawnee Mission U.S.D. 512, 416 F.Supp.2d 1090, 1097 (D. Kan. 2006)
(“Defendants contend that the plaintiff’s claim should be dismissed because she does
not allege that the school district received federal financial assistance. The court
might be willing to embrace such an argument if it were not quite so obvious that
the defendant is a recipient of federal financial assistance.”). There is no assertion
by the University that it does not receive federal financial assistance. The court
declines to dismiss Driskill’s Rehabilitation Act discrimination claim where the
missing allegation is “simply a technical defect in pleading.” Id.
In sum, the court concludes that Driskill’s pertinent allegations are sufficient
to state a plausible claim of disability discrimination under the Rehabilitation Act.
The court finds that dismissal of that claim under Rule 12(b)(6) is not appropriate.
The court hastens to emphasize that it reaches this conclusion in the Rule 12(b)(6)
framework. How all this will pan out at later stages of this case is a matter yet to be
determined.
As to the Rehabilitation Act retaliation claim, the court declines to address
whether a plausible claim has been stated by Driskill because the University’s
motion does not challenge that claim. The motion only challenges the Rehabilitation
Act discrimination claim. In its reply brief, the University states that Driskill’s
“intent to allege retaliation under the Rehabilitation Act was not clear from the
Complaint.” Doc. no. 13, ECF p. 2. However, the court notes that in its Notice of
Removal, the University acknowledged that Driskill had alleged a claim for
retaliation under the Rehabilitation Act. Doc. no. 1, ECF p. 1, § 1. Even though
Driskill addressed the claim in her response, the court is not satisfied that the issue
of whether Driskill has pled a plausible Rehabilitation Act retaliation claim has been
properly fleshed out by the parties and therefore concludes the issue has been waived
by the University. See, e.g., Garcia v. International Elevator Co., Inc., 358 F.3d 777,
781 (10" Cir. 2004) (finding issue raised in a reply brief to motion to dismiss
complaint waived even though plaintiff filed a surreply addressing the issue).
Conclusion
For the reasons stated, Defendant’s Motion to Dismiss (doc. no. 8), filed
March 29, 2021, is GRANTED in part and DENIED in part.
Plaintiff's claims under the Family Medical Leave Act (Count II of the
complaint) are DISMISSED WITHOUT PREJUDICE under Rule 12(b)(1), Fed.
R. Civ. P.
Plaintiff's claims under the Rehabilitation Act (Count I of the complaint)
remain pending.
IT IS SO ORDERED this 14" day of May, 2021.

AL put
STEPHEN P. FRIOT —
UNITED STATES DISTRICT JUDGE

21-0240p003.docx

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388852. Public record. Not legal advice.