The opinion
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT July 18, 2025
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
CORPUS CHRISTI DIVISION
WILLIAM KENT MCILYAR, §
Plaintiff,
V. § CIVIL ACTION NO. 2:24-CV-00291
CITY OF CORPUS CHRISTI, TEXAS,
Defendant.
§
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Before the Court is Magistrate Judge Jason B. Libby’s Memorandum and Recommendation
(“M&R”). (D.E. 24). The M&R recommends that the Court deny Defendant’s D.E. 18 motion to
dismiss. /d. at 1. Defendant has filed written objections to the M&R. (D.E. 25). After review, the Court
OVERRULES Defendant’s objections, (D.E. 25), and ADOPTS the findings and conclusions of the
M&R, (D.E. 24). The Court DENIES Defendant’s motion to dismiss. (D.E. 18).
I. Law
When a party objects to the findings and recommendations of a magistrate judge, the district
judge “shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). A party must
point out with particularity any alleged errors in the magistrate judge’s analysis. Pelko v. Perales, No.
2:23-CV-00339, 2024 WL 1972896, at *1 (S.D. Tex. May 3, 2024) (Ramos, J.). Objections that merely
re-urge arguments contained in the original briefing are not proper and will not be considered. See
Edmond vy. Collins, 8 F.3d 290, 293 n.7 (Sth Cir. 1993). Moreover, “[f]rivolous, conclusive or general
objections need not be considered by the district court.” Nettles v. Wainwright, 677 F.2d 404, 410 n.8
(Sth Cir. 1982) (en banc), overruled on other grounds by Douglass v. United Servs. Auto. Ass’n, 79
F.3d 1415, 1416 (Sth Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.
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§ 636(b)(1).
As to any portion for which no objection is filed, a district court reviews for clearly erroneous
factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989)
(per curiam).
II. Objections
Defendant devotes a significant portion of its objections to relitigating its motion to dismiss.
(D.E. 25, p. 1-7). Nowhere in this argument regarding failure to state a claim does Defendant point out
with particularity any error in the M&R’s analysis. See id. Indeed, much of the objections reformulate
arguments contained in the initial motion to dismiss and lodge a general objection that Plaintiff's
complaint fails to state a claim. See, e.g., id. at 3 (“One cannot draw the necessary reasonable inference
of age or gender discrimination from the facts alleged in [Plaintiff]’s complaint.”). The Court will not
consider objections that do not point to a particular error in the M&R’s analysis. Pelko, 2024 WL
1972896, at *1.
The Court now turns to three alleged errors Defendant does specifically articulate. First,
Defendant objects that the M&R erroneously treated as true Plaintiff's allegation “that his termination
was ‘an apparent attempt to save money or to transfer more money from Plaintiff's salary to the salary
of younger attorneys.’” (D-.E. 25, p. 7) (quoting (D.E. 17, p. 10)). Defendant objects that this amounts
to a conclusory allegation, which courts do not assume as true for purposes of deciding a motion to
dismiss. /d. In the relevant portion of its analysis, the M&R notes that Plaintiff alleges that he was
replaced by four much younger and less experienced attorneys “in an apparent attempt to save money
or to transfer more money from Plaintiff's salary to the salary of younger attorneys in the legal
department.” (D.E. 24, p. 8) (citing (D.E. 17, p. 1-3, 10-11)). Even excising this allegation regarding
Defendant’s motive from the M&R’s analysis, the Court agrees with the M&R that Plaintiff's
allegations suffice to state Title VII and ADEA claims. At the motion to dismiss stage, a plaintiff must
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plead facts which, if true, raise an inference that an adverse employment action was taken against him
because of his protected status. Stading v. Tex. A&M Univ.-Texarkana, No. 5:24-CV-00066, 2025 WL
748631, at *22 (E.D. Tex. Feb. 18, 2025) (Baxter, Mag. J.), adopted, No. 5:24-CV-00066, 2025 WL
744464 (E.D. Tex. Mar. 7, 2025) (Gilstrap, J.). As the M&R noted, Plaintiff alleges: (1) he was
replaced by four much younger and less experienced attorneys; (2) only younger, less experienced
attorneys were receiving pay raises; (3) immediately prior to his termination Plaintiff continuously
questioned the City Attorney about this disparate pay; and (4) younger female assistant city attorneys
with the same supervisor were permitted to work from home and take extended vacation without
receiving any reprimands and continuing to receive promotions and pay raises (while Plaintiff was not
afforded such treatment). (D.E. 24, p. 8-9). The Court agrees with the M&R that these facts raise an
inference that Plaintiff was terminated because of his age and/or gender, which is all that is required at
this stage of the litigation. Stading v. Tex. A&M Univ.-Texarkana, No. 5:24-CV-00066, 2025 WL
748631, at *22 (E.D. Tex. Feb. 18, 2025) (Baxter, Mag. J.), adopted No. 5:24-CV-00066, 2025 WL
744464 (E.D. Tex. Mar. 7, 2025) (Gilstrap, J.).
Second, Defendant objects that the M&R “erred by disregarding a nondiscriminatory reason
for MclIlyar’s discharge that was apparent from the complaint.” (D.E. 25, p. 8). Defendant argues that
the M&R contravened the Fifth Circuit’s decision in McLin v. Twenty-First Judicial District, 79 F.4th
411 (Sth Cir. 2023) and Olivarez v. T-mobile USA, Inc., 997 F.3d 595 (Sth Cir. 2021) by concluding
that a “legitimate, nondiscriminatory reason for the adverse action is not pertinent until the summary
judgment stage.” Jd. at 8—9 (citation omitted).
Neither case supports Defendant’s position. In Olivarez, the Fifth Circuit affirmed the district
court’s dismissal of plaintiff's discrimination claim because they did not “allege facts sufficient to
support an inference of transgender discrimination[.]” Olivarez, 997 F.3d at 598. Specifically, the Fifth
Circuit concluded that the complaint contained “no allegation that any non-transgender employee with
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a similar job and supervisor and who engaged in the same conduct as [plaintiff] received more
favorable treatment.” Jd. at 600. Neither the district court nor the Fifth Circuit dismissed the claim for
failure to plead around the defendant’s nondiscriminatory reason. See id. Similarly, in McLin, the Fifth
Circuit affirmed the district court’s dismissal of a claim because the plaintiff failed to plead that her
“termination was taken against her because of her [race].” 79 F.4th at 418. There, the plaintiff had
offered only two facially race-neutral comments to support the racial causation element. See id. Again,
the Fifth Circuit did not delineate a rule that a plaintiff must plead around a defendant’s
nondiscriminatory reason. See id.
McLin and Olivarez do not stand for the proposition that a plaintiff must plead around a
defendant’s non-discriminatory reason. Nor do they factually control here. As the M&R details,
Plaintiff offers substantially more factual allegations to support his claim of discrimination than the
plaintiff in either Mclin or Olivarez. What’s more, the Fifth Circuit has clearly explained that, although
it may be helpful to reference the McDonnell Douglas framework (which requires Plaintiff to offer
evidence rebutting Defendant’s nondiscriminatory reason(s)), it is inappropriate to heighten the
pleading standard and subject “a plaintiffs allegations to a rigorous factual or evidentiary analysis
under the McDonnell Douglas framework in response to a motion to dismiss.” Cicalese v. Univ. of
Tex. Med. Branch, 924 F.3d 762, 767 (Sth Cir. 2019) (citation omitted). Accordingly, and as the M&R
correctly explained, “‘whether the City had a legitimate, nondiscriminatory reason’ for the adverse
action ‘is not pertinent until the summary judgment stage, and even then, only after a plaintiff
establishes his prima facie case.’” (D.E. 24, p. 10) (quoting Jenkins v. City of Dallas, 717 F. Supp. 3d
528, 538 (N.D. Tex. 2024)). Accordingly, the Court OVERRULES this objection.
Third, Defendant objects that the M&R erred in declining to dismiss Plaintiff's FMLA claim
because Plaintiff “did not plead facts showing either an FMLA-qualifying condition or sufficient notice
to his employer.” (D.E. 25, p. 14). Specifically, Defendant argues that the M&R erroneously
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“concluded that, because [Plaintiff] informed his supervisors of his daughter’s pregnancy, the City had
a duty to inquire further.” /d. at 12. This, Defendant argues, runs contrary to Cruz v. Publix Super
Markets, Inc., 428 F.3d 1379 (11th Cir. 2005), where the Eleventh Circuit found that an employer had
no duty to inquire further because it had no indication from the employee that their daughter was
experiencing anything other than a normal pregnancy (and therefore no indication of any condition
that could potentially qualify for FMLA leave). /d. at 11-12.
Cruz does not control. There, the Eleventh Circuit found that the plaintiff had not provided her
employer with sufficient notice because she “merely expressed her desire to assist her adult daughter
during the birth of her grandchild, a condition which the FMLA does not cover.” Cruz, 428 F.3d at
1386. Unlike in Cruz, where the court could ascertain the actual content of the plaintiffs
communications with her employer because the case was at summary judgment, here, on a motion to
dismiss, precisely what Plaintiff communicated to his employer is not before the Court. Plaintiff alleges
he informed his supervisors that he intended to take FMLA leave to be with his daughter “during the
birth of her first child and for some time after to care for and assist his daughter in any way that she
needed.” (D.E. 17, p. 9). And, pregnancy is potentially an FMLA-qualifying condition. Jordon v. Tex.
Dep't of Aging and Disability Servs., No. 9:05-CV-161, 2006 WL 1804619, at * 6 (E.D. Tex. June 28,
2006) (Clark, J.). Drawing all reasonable inferences in Plaintiff's favor, Plaintiff has stated a claim.
Courts should not “apply categorical rules for the content of the [FMLA] notice,” but rather should
focus on what is ““‘practicable’ based on the facts and circumstances of each individual.” Lanier v.
Univ. of Tex. Sw. Med. Ctr., 527 F. App’x 312, 316 (Sth Cir. 2013). A reasonable inference from
Plaintiffs allegations is that his daughter may have been experiencing a pregnancy that constituted a
serious medical condition and, thus, would have qualified him for FMLA leave. And, as Cruz noted,
“the employee need only provide her employer with notice sufficient to make the employer aware that
her absence is due to a potentially FMLA-qualifying reason.” Cruz, 428 F.3d at 1382 (citation omitted).
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At this stage, Plaintiff has pled facts which make it plausible that he gave such notice. The question of
the precise content of the notice given and whether it suffices is best left for summary judgment. The
Court OVERRULES this objection.
III. Conclusion
Having reviewed the proposed findings and conclusions of the M&R, the record, the applicable
law, and having made a de novo review of the portions of the M&R to which Plaintiff objected,
28 U.S.C. § 636(b)(1)(C), the Court OVERRULES Defendant’s objections, (D.E. 25), and ADOPTS
the finding and conclusions of the M&R, (D.E. 24). The Court DENIES Defendant’s motion to
dismiss. (D.E. 18).
SO ORDERED.
UNITED STATES DISTRICT JUDGE
Signed: Corpus Christi, Texas
July/ 74% 2025
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