# Kirk v. Our Community Our Children

> District Court, N.D. Texas · August 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11126386

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** August 22, 2025
- **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/11126386

## How later opinions describe it (automated extraction)

- holding that a complaint with no reference to conduct that could be considered a discriminatory employment practice cannot give rise to protected activity
- holding that plaintiff failed to state a claim under the ADA when he had not alleged the impact of his medical issues on his ability to perform major life activities

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEYSHERA KIRK, §
§
Plaintiff, §
§
VS. § Civil Action No. 3:25-CV-0066-D
§
OUR COMMUNITY OUR KIDS §
and ACH CHILD AND FAMILY §
SERVICES, §
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
In this action by plaintiff Keyshera Kirk (“Kirk”) alleging discrimination and
retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e2(a)(1), 42 U.S.C. § 1981, the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12101 et seq., and the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.
2601 et seq., defendant ACH Child and Family Services (“ACH”) moves to dismiss Kirk’s
claims and to transfer the case to the Forth Worth Division of the Northern District of Texas.
For the reasons that follow, the court denies the motion to transfer, grants the motion to
dismiss, and grants Kirk leave to replead.
I
Kirk, an African American woman, began working as a Permanency Specialist for
Our Community Our Kids (“OCOK”), a division of ACH Child and Family Services
(“ACH”), on February 21, 2020.1 Kirk alleges that, in the latter part of 2021, there was a
“shift in the environment at OCOK,” which became more noticeable after Stacy Reynolds
(“Reynolds”) took over as Senior Permanency Director. According to Kirk’s complaint, the

“work environment became increasingly toxic and hostile,” and “[t]here was a clear display
of disparate treatment and unfair practices relating to African American employees.”
Kirk alleges that she and her predominantly African American unit were required to
take on case transfers from predominantly white supervisors who reported workload issues,

which caused her unit to exceed caseload capacity. She also asserts that, when Kris Naylor
(“Naylor”) became acting Senior Director of Permanency, “instances of micro-aggressions
and biases were noted, such as questioning African American workers’ intentions and
promoting individuals with personal ties to leadership.” Compl. (ECF No. 1) ¶ 21. Kirk
raised concerns about the mistreatment of staff members to Human Resources in April 2022,

and Human Resources Specialist Jessica Grady (“Grady”) confirmed that others had
complained about leadership.
During a leadership training session in June 2022, while Kirk was attempting to
discuss Reynolds’ harsh communication style, Permanency Director Suzanne Hinkle
(“Hinkle”) loudly and publicly interrupted her by saying “[d]o you want to take it to the

1The court recounts the background facts favorably to Kirk as the nonmovant. In
deciding a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the “court accepts ‘all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.’” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v.
Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (addressing Rule 12(b)(6)
standard)).
- 2 -
streets?” Compl. (ECF No. 1) ¶ 23. Reynolds failed to intervene during this incident of
public hostility. Kirk alleges that the close relationship between Reynolds and Hinkle, both
of whom are white, “created discord and a hostile work environment.” Compl. (ECF No. 1)

¶ 26. Kirk was also required to be on call for days without any down time, which impacted
her ability to sleep and take prescribed medication.
As a result of the allegedly hostile workplace, Kirk found herself constantly worrying
about potential conflicts, feeling on edge, and experiencing stress, anxiety, panic attacks, and

burnout, as well as headaches, muscle tension, irritability, and difficulty concentrating.
Consequently, she requested FMLA leave for mental health reasons.2 In early March 2023,
Kirk’s doctor signed a fitness-for-duty certification requesting an accommodation restricting
contact with Kirk between 8 p.m. and 5 a.m. through December 31, 2023.3 Kirk alleges that
this requested accommodation was reasonable because OCOK had an on-call unit responsible

for accepting after-hours calls. Kirk’s request for accommodation was denied, which “had
a significant impact on Ms. Kirk, limiting her ability to make plans after 5:00 p.m. and adhere
to prescribed medication schedules.” Compl. (ECF No. 1) ¶ 36. After her accommodation
request was rejected, Kirk was terminated from her position.4 Compl. (ECF No. 1) ¶ 37.

2Kirk does not allege the date that she requested FMLA leave.
3Kirk does not clearly allege the date on which the certification requesting the
accommodation was submitted. She alleges that she was “released to return to work on
March 6, 2023,” P. Compl. (ECF No. 1) ¶ 33, but that she requested the accommodation on
March 3, 2023, P. Compl. (ECF No. 1) ¶ 34.
4Kirk does not allege the date that she was terminated.
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ACH now moves to transfer this case to the Fort Worth Division of this court and to
dismiss Kirk’s complaint for failure to state a claim on which relief can be granted. The
court is deciding the motions on the briefs, without oral argument.

II
The court first addresses ACH’s motion to transfer.
A
28 U.S.C. § 1404(a) provides that, “[f]or the convenience of parties and witnesses, in

the interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought.” “The decision to transfer is made to prevent
waste of time, energy, and money and to protect litigants, witnesses, and the public against
unnecessary inconvenience and expense.” Bank One, N.A. v. Euro-Alamo Invs., Inc., 211
F.Supp.2d 808, 811 (N.D. Tex. 2002) (Fitzwater, J.) (citing Stabler v. N.Y. Times Co., 569

F. Supp. 1131, 1137 (S.D. Tex. 1983)). “The court cannot transfer a case where the result
is merely to shift the inconvenience of the venue from one party to the other.” Sivertson v.
Clinton, 2011 WL 4100958, at *3 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.) (citing Fowler
v. Broussard, 2001 WL 184237, at *6 (N.D. Tex. Jan. 22, 2001) (Fitzwater, J.)).
As a preliminary question, the court must decide “whether the judicial district to

which transfer is sought would have been a district in which the claim could have been filed.”
In re Volkswagen AG (“Volkswagen I”), 371 F.3d 201, 203 (5th Cir. 2004) (per curiam).
Once the court resolves this issue, “the determination of ‘convenience’ turns on a number of
private and public interest factors, none of which are given dispositive weight.” Id. (citing
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Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)).
The private concerns include: (1) the relative ease of access to sources of proof; (2)
the availability of compulsory process to secure the attendance of witnesses; (3) the cost of

attendance for willing witnesses; and (4) all other practical problems that make trial of a case
easy, expeditious, and inexpensive. The public concerns include: (1) the administrative
difficulties flowing from court congestion; (2) the local interest in having localized interests
decided at home; (3) the familiarity of the forum with the law that will govern the case; and

(4) the avoidance of unnecessary problems of conflict of laws of the application of foreign
law. Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)).
The moving party bears “the burden of proving by a preponderance of the evidence
that transfer is appropriate.” Bank One, N.A., 211 F.Supp.2d at 812 (citing Time, Inc. v.
Manning, 366 F.2d 690, 698 (5th Cir. 1966)). “Where there is no demonstration by the

movant, let alone a clear one, the [district] court cannot weigh a factor against the non-
movant and in favor of transfer.” Def. Distributed v. Bruck, 30 F.4th 414, 434 (5th Cir.
2022).
Moreover
[t]he plaintiff’s choice of venue is . . . entitled to deference, and
therefore the party seeking transfer has the burden to show good
cause for the transfer. The burden on the movant is
“significant,” and for a transfer to be granted, the transferee
venue must be “clearly more convenient than the venue chosen
by the plaintiff.”
AT & T Intellectual Prop. I, L.P. v. Airbiquity Inc., 2009 WL 774350, at *1 (N.D. Tex.
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Mar.24, 2009) (Lynn, J.) (footnotes omitted) (quoting In re Volkswagen of Am., Inc.
(“Volkswagen II” ), 545 F.3d 304, 315 (5th Cir. 2008) (en banc)).
B

The court turns first to the preliminary question of whether this case could have been
filed in the Fort Worth Division of this court. Because the actions that allegedly violated
Title VII, § 1981, the ADA, and the FMLA are alleged to have taken place in the Fort Worth
Division, venue is proper in that division and therefore the case could have been filed there.

See 42 U.S.C. § 2000e-5(f)(3); 28 U.S.C. § 1391(b).
C
The court next considers the private interest factors.
The parties agree that the factors of availability of compulsory process to secure the
attendance of witnesses, cost of attendance for willing witnesses,5 and other practical

problems are neutral. As for the ease of access to proof, ACH maintains that “[a]ll of the
tangible evidence relevant to this case is located in the Fort Worth Division,” including
relevant files, personnel policies and procedures, and Kirk’s personnel records and
documentation regarding Kirk’s termination. P. Br. (ECF No. 13) at 6. But considerations

5“The availability and convenience of witnesses has been held to be the most
significant factor in deciding a § 1404(a) motion to transfer.” Sw. Airlines Co. Profit Sharing
401(k) Comm. v. UBS Global Asset Mgmt. (Ams.), Inc., 2007 WL 268808, at *3 (N.D. Tex.
Jan.29, 2007) (Fitzwater, J.) (quoting Mannatech, Inc. v. K.Y.C., Inc., 2006 WL 2216033, at
*3 (N.D. Tex. Aug. 3, 2006) (Solis, J.)). The convenience of non-party witnesses is accorded
the greatest weight, whereas the convenience of witnesses employed by the party seeking
transfer is entitled to less weight. See Moss v. Lockheed Martin Corp., 2011 WL 197624,
at *5 (N.D. Tex. Jan. 18, 2011) (Lynn, J.).
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of accessibility and location of sources of proof are “less influential due to advances in
copying technology and information storage.” Sargent v. Sun Tr. Bank, N.A., 2004 WL
1630081, at *4 (N.D. Tex. July 20, 2004) (Fitzwater, J.) (citing Mohamed v. Mazda Motor

Corp., 90 F.Supp.2d 757, 778 (E.D. Tex. 2000)). Moreover, there is no indication that the
tangible evidence that ACH identifies is so voluminous that it cannot be transported from
Fort Worth to Dallas without great difficulty, or that the parties cannot easily access
electronic versions of relevant documents that are physically located in Fort Worth. This

factor therefore weighs only slightly in favor of transfer.
D
The court next addresses the public interest factors. The parties agree that the factors
of administrative difficulties flowing from court congestion, familiarity of the forum with the
law that will govern the case, and avoidance of unnecessary problems of conflict of law of

the application of foreign law are all neutral. On the issue of the local interest in having
localized issues decided at home, ACH maintains that the Fort Worth Division has an interest
in deciding this case because Kirk complains of wrongdoing occurring during her
employment with ACH in the Fort Worth Division, and every individual accused of
wrongdoing was working in the Fort Worth Division. Kirk maintains that, because she is a

Dallas resident, the Dallas Division has a localized interest in deciding issues pertaining to
potential discrimination against one of its residents. Because both divisions have a local
interest in this dispute, this factor is neutral. See, e.g., Seeberger Enters., Inc. v. Mike
Thompson Recreational Vehicles, Inc., 502 F.Supp.2d 531, 541 (W.D. Tex. 2007) (“[T]he
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Court finds that both California and Texas have an interest in the resolution of claims
involving local residents and businesses.”); Ramirez v. Plains All Am. GP, LLC, 2022 WL
607879, at *7 (W.D. Tex. Mar. 1, 2022) (finding the local interest factor neutral when,

“[w]hile the citizens in the Midland Division have an interest in ensuring their businesses do
not discriminate against their employees on prohibited grounds, simultaneously the citizens
of the Pecos Division possess a contradistinctive interest in preventing discrimination against
their residents by Midland- or Houston-based businesses”).

E
ACH has shown that one private interest factor—the ease of access to proof— slightly
weighs in favor of transfer, and that the remaining private and public interest factors are
neutral. ACH has not carried its burden to show that the Fort Worth Division is a “clearly
more convenient venue” than the Dallas Division. To transfer the case to the Fort Worth

Division from the Dallas Division, in which Kirk resides and chose to file her suit, would
merely shift the inconvenience of the venue from ACH to Kirk. The court therefore denies
ACH’s motion to transfer the case to the Fort Worth Division.
III
The court next turns to ACH’s motion to dismiss for failure to state a claim on which

relief can be granted.
A
“In deciding a [Fed R. Civ. P.] 12(b)(6) motion to dismiss, the court evaluates the
sufficiency of [the plaintiff’s] complaint by ‘accept[ing] all well-pleaded facts as true,
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viewing them in the light most favorable to the plaintiff.’” Bramlett v. Med. Protective Co.
of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (second
alteration in original) (internal quotation marks omitted) (quoting In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough
to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679 (quoting Rule 8(a)(2)) (brackets omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.
B

ACH maintains that Kirk’s Title VII and § 1981 race discrimination claims should be
dismissed because Kirk has not alleged facts demonstrating that other similarly situated
employees outside of her protected group were treated less favorably. Kirk contends that she
has plausibly pleaded each element of these claims.
- 9 -
1
Title VII prohibits discrimination on the basis of “race, color, religion, sex, or national
origin[.]” 42 U.S.C. § 2000e-2(a)(1). Section 1981 guarantees to “[a]ll persons within the

jurisdiction of the United States . . . the same right . . . to make and enforce contracts . . . as
is enjoyed by white citizens.” 42 U.S.C. § 1981(a). It defines the phrase “make and enforce
contracts” to include “the making, performance, modification, and termination of contracts,
and the enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.” Id. § 1981(b). When a plaintiff alleges a Title VII or § 1981 claim of race
discrimination6 based on circumstantial evidence, as Kirk does, the court can use the
McDonnell Douglas framework as a reference when determining whether the plaintiff has
plausibly alleged the ultimate elements of her claim.7 Under this framework, a plaintiff must

6“Courts use the same legal framework to analyze claims brought under Title VII and
§ 1981.” Fisher v. Dallas Cnty., 2014 WL 4797006, at *3 (N.D. Tex. Sept. 26, 2014)
(Fitzwater, C.J.) (citing DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007)). “Title VII
and [§] 1981 require the same proof to establish liability.” Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999) (citing Bunch v. Bullard, 795 F.2d 384, 387 n.1
(5th Cir. 1986)).
7The familiar McDonnell Douglas standard for evaluating employment discrimination
claims is an evidentiary framework, not a pleading standard. See Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510 (2002). Accordingly, “a plaintiff need not make out a prima facie
case of discrimination in order to survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim.” Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (citing Swierkiewicz,
534 U.S. at 510-12); see also Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir.
2016) (per curiam) (“Although Chhim did not have to submit evidence to establish a prima
facie case of discrimination at this stage, he had to plead sufficient facts on all of the ultimate
elements of a disparate treatment claim to make his case plausible.”). To survive ACH’s
motion to dismiss, however, Kirk must plausibly plead the ultimate elements of her Title VII
claims. See Chhim, 836 F.3d at 470. And since McDonnell Douglas will govern when a
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sufficiently plead that (1) she is a member of a protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4) others similarly situated but
outside her protected class were treated more favorably. See, e.g., Saketkoo v. Adm’rs of

Tulane Educ. Fund, 31 F.4th 990, 997-98 (5th Cir. 2022).
2
Kirk maintains that she has plausibly alleged her race discrimination claim because
the complaint details specific comparators who were treated more favorably, and she

identifies Julie O’Brien (“O’Brien”) as an example. O’Brien is identified in the complaint
as a white supervisor who “transferred cases to Ms. Kirk’s unit with little oversight or
question, causing her unit to exceed caseload capacity.” Compl. (ECF No. 1) ¶ 18. There
does not appear to be an allegation that O’Brien was treated any differently than
Kirk—instead, the complaint alleges only that she transferred cases to Kirk’s unit. Although

Kirk asserts that her unit was predominantly African American and that it was required to
take case transfers from other units, there is no allegation that other units were not similarly
required to take transferred cases. Nor are there any facts alleged concerning what O’Brien’s
role was, other than that of “supervisor,” that would enable the court to draw the reasonable

plaintiff relies on indirect evidence of discrimination, it can be helpful to reference that
framework when the court is determining whether a plaintiff has plausibly alleged the
ultimate elements of her claim. See Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762,
767 (5th Cir. 2019) (Title VII case) (“If a plaintiff’s . . . claim depends on circumstantial
evidence, he will ‘ultimately have to show’ that he can satisfy the McDonnell Douglas
framework. In such cases, we have said that it can be ‘helpful to reference’ that framework
when the court is determining whether a plaintiff has plausibly alleged the ultimate elements
of the . . . claim.” (quoting Chhim, 836 F.3d at 470-71)).
- 11 -
inference that O’Brien was similarly situated. See Olivarez v. T-mobile USA, Inc., 997 F.3d
595, 600 (5th Cir. 2021) (affirming dismissal of claim when there was no allegation that any
individual outside the protected group “with a similar job and supervisor and who engaged

in the same conduct . . . received more favorable treatment”). Kirk has not alleged sufficient
factual content that, taken as true, would enable the court to draw the reasonable inference
that she was treated less favorably than similarly situated individuals outside her protected
group. Accordingly, the court dismisses Kirk’s Title VII and § 1981 race discrimination

claims.
C
ACH also maintains that Kirk’s hostile work environment claim should be dismissed
because she offers nothing more than general, conclusory statements in support of these
claims. Kirk contends that she has plausibly alleged the elements of a hostile work

environment claim.
1
“A hostile work environment exists ‘when the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working

environment.’” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009)
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). Generally, to
establish a prima facie case of a hostile work environment based on race, a plaintiff must
show the following:
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(1) she belongs to a protected group; (2) she was subjected to
unwelcome harassment; (3) the harassment complained of was
based on race; (4) the harassment complained of affected a term,
condition, or privilege of employment; [and] (5) the employer
knew or should have known of the harassment in question and
failed to take prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citations omitted). “Harassment
is based on race if ‘the complained-of conduct had a racial character or purpose.’” King v.
Enter. Leasing Co. of DFW, 2007 WL 2005541, at *10 (N.D. Tex. July 11, 2007) (Fitzwater,
J.) (quoting Harris-Childs v. Medco Health Sols., Inc., 2005 WL 562720, at *6 (N.D. Tex.
Mar. 10, 2005) (Means, J.)). A plaintiff must demonstrate a “connection between the
allegedly harassing incidents and [her] protected status.” Id. (alteration in original) (citation
omitted). “For harassment on the basis of race to affect a term, condition, or privilege of
employment . . . it must be ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’” Ramsey, 286 F.3d at
268 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
2

Kirk has alleged no facts to support her conclusory allegation that she was subjected
to harassment based on race. She pleads that, under Naylor, the Senior Director of
Permanency, “instances of micro-aggressions and bias were noted, such as questioning
African American workers’ intentions and promoting individuals with personal ties to
leadership,” Compl. (ECF No. 1) ¶ 21, and that Kirk “experienced public hostility” from

Hinkle, Compl. ¶ 23. But Kirk pleads no examples or makes other factual allegations to
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support the conclusory assertion that there were any micro-aggressions or other race-based
harassment. This allegation is therefore insufficient to plead a plausible claim for
discrimination. See Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
(citations omitted)). As for Kirk’s allegation regarding the hostility from Hinkle, there is no
indication in the complaint that this hostility was based on race. Because Kirk has not

alleged facts that, taken as true, would enable the court to draw th reasonable inference that
there was any harassment or that any alleged harassment was based on Kirk’s race, she has
failed to allege a plausible hostile work environment claim. The court therefore dismisses
this claim.
D

ACH contends that Kirk’s retaliation claims should be dismissed because she does not
adequately allege protected conduct or a causal connection between the alleged protected
conduct and any adverse employment action. Kirk maintains that she plausibly alleged
protected conduct followed by her placement on unpaid leave and her eventual termination,
and that this is sufficient to plausibly allege her retaliation claims.

1
To state a claim for retaliation under Title VII or § 1981, Kirk must allege sufficient
factual content that, if true, would show “(i) [s]he engaged in a protected activity; (ii) an
adverse employment action occurred; and (iii) a causal link exists between the protected
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activity and the adverse employment action.” Wantou v. Wal-Mart Stores Tex., L.L.C., 23
F.4th 422, 436-37 (5th Cir. 2022). An employee engages in protected activity when she
“oppose[s] any practice made an unlawful employment practice by [Title VII].” 42 U.S.C.

§ 2000e-3(a). “[C]ases that accept mere temporal proximity . . . as sufficient evidence of
causality to establish a prima facie case uniformly hold that the temporal proximity must be
‘very close.’” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citation omitted).
2

Kirk maintains that she engaged in protected conduct when she reported workplace
discrimination to Human Resources and that this was followed closely by adverse actions,
including unpaid leave and her eventual termination. In her complaint, however, Kirk alleges
only that she raised concerns about “the ill treatment of staff members” to Human Resources
in April 2022, Compl. (ECF No. 1) ¶ 22, and that during a later Human Resources meeting

at an unspecified time after an incident in June 2022, she discussed how another Permanency
Director’s loud, public suggestion that they take their conflict to the streets “made her feel
afraid, attacked, and marginalized, as the tenor of the comment was aggressive and improper
within the workplace.” Compl. (ECF No. 1) ¶ 24. Kirk has not plausibly alleged that either
of these complaints to Human Resources was protected conduct because she does not

plausibly allege that either complaint had to do with alleged mistreatment based on race.
Complaints about management, without suggesting that the mistreatment was discriminatory
and based on a protected status, in violation of Title VII, or providing some factual allegation
to support this conclusion, is not sufficient to plausibly allege protected action for retaliation
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purposes. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 349 (5th Cir.
2007) (holding that a complaint with no reference to conduct that could be considered a
discriminatory employment practice cannot give rise to protected activity).

As for Kirk’s allegation that she complained to Human Resources in April 2023
expressing “frustration over . . . discriminatory practices,” this vague assertion does not
include sufficient factual support to give rise to a reasonable inference that Kirk engaged in
protected activity. Moreover, even assuming arguendo that this was sufficient to allege

protected activity, Kirk has pleaded no facts supporting a causal connection between her
complaint and any adverse employment action.8 Kirk has therefore failed to state a claim for
relief based on retaliation under Title VII or Section 1981, and the court dismisses these
claims.
E

ACH maintains that Kirk’s ADA claim should be dismissed because she does not
allege that she had a disability under the ADA or that she was terminated on account of her
disability, nor does she allege facts to plausibly allege the elements of a failure to
accommodate claim. Kirk contends that she has alleged a disability under the ADA, that
ACH was aware of her disability, and that ACH failed to provide the reasonable

accommodation that she requested.

8Kirk does not allege when she was terminated. She therefore has not plausibly
pleaded that any temporal proximity between her complaints and her termination would give
rise to an inference of a causal connection.
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1
The ADA prohibits discrimination in employment against a qualified individual on
the basis of her disability. See 42 U.S.C. § 12112(a). The ADA defines “disability” as “a

physical or mental impairment that substantially limits one or more major life activities[,]”
including, but not limited to, “caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working[,]” and “the operation of a major

bodily function, including but not limited to, functions of the . . . brain[.]” 42 U.S.C. §
12102(1)-(2). Furthermore, the ADA dictates that the definition of disability for purposes
of the ADA “shall be construed in favor of broad coverage of individuals[.]” 42 U.S.C. §
12102(4)(A).
Discrimination on the basis of disability for purposes of the ADA may mean either

disparate treatment on the basis of a disability, or “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability . . . unless such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such covered entity.” 42
U.S.C. § 12112(b)(5)(A). To plausibly allege an ADA disability discrimination claim based

on disparate treatment, Kirk must allege sufficient facts to show “(1) she is disabled within
the meaning of the ADA, (2) she was qualified for the job, and (3) she was fired on account
of her disability.” Gosby v. Apache Indus. Servs., Inc., 30 F.4th 523, 526 (5th Cir. 2022).
To plausibly allege an ADA failure-to-accommodate claim, she must allege sufficient facts
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to show that: “(1) the plaintiff is a qualified individual with a disability; (2) the disability and
its consequential limitations were known by the covered employer; and (3) the employer
failed to make reasonable accommodations for such known limitations.” Feist v. La., Dep’t

of Just., Off. of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013) (footnote and internal
quotation marks omitted).
2
As an initial matter, the court must determine whether Kirk has plausibly pleaded a

disability under the ADA. Kirk alleges that she “found herself constantly worrying about
potential conflicts, feeling on edge, and experiencing panic attacks in response to
work-related stressors” and that her workplace conditions “contributed to [her] stress,
anxiety, and burnout, which manifested physically as well as emotionally” and that she
“began to experience headaches, muscle tension, irritability, and difficulty concentrating.”

Compl. (ECF No. 1) ¶ 29. She has not, however, alleged that these symptoms limited her
ability to perform one or more major life activities. See, e.g., Hale v. King, 642 F.3d 492,
500-01 (5th Cir. 2011) (holding that plaintiff failed to state a claim under the ADA when he
had not alleged the impact of his medical issues on his ability to perform major life
activities); Mora v. Univ. of Tex. Sw. Med. Ctr., 469 Fed. Appx. 295, 297 (5th Cir. 2012) (per

curiam) (holding that plaintiff failed to state a claim under the ADA when she alleged a
disability and stated that it impaired a major life activity, but did not specify which of her life
activities was substantially limited); Milteer v. Navarro Cnty., Tex., 2022 WL 1321555, at
*7 (N.D. Tex. May 3, 2022) (Fitzwater, J.) (holding that plaintiff failed to state an ADA
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claim because he failed to allege that his conditions substantially limited him in the
performance of a major life activity), rev’d on other grounds, 99 F.4th 268 (5th Cir. 2024).
Because she has not alleged that she is disabled within the meaning of the ADA, Kirk has

failed to state a claim for disparate treatment based on her disability or for failure to
accommodate her disability. Accordingly, the court dismisses Kirk’s ADA claims.
F
ACH maintains that Kirk’s FMLA claim should be dismissed because she has not

adequately alleged a causal connection between her FMLA leave and her termination. Kirk
contends that her allegation that the temporal proximity between her FMLA leave and
termination supports an inference of causation.
1
The FMLA makes it unlawful for an employer to discharge or retaliate in any other

manner against an individual for opposing the employer’s unlawful FMLA practices. See
29 U.S.C. § 2615(a)(2). To prevail on an FMLA retaliation claim, Kirk must allege facts
that, taken as true, show that (1) she engaged in protected activity, (2) an adverse
employment action occurred, and (3) a causal link existed between the protected activity and
the adverse employment action. See Miller v. Metrocare Servs., 2015 WL 477233, at *5

(N.D. Tex. Feb. 5, 2015) (Fitzwater, J.), aff’d, 809 F.3d 827 (5th Cir. 2016).
2
Kirk alleges that she took FMLA leave and that she “suffered an adverse employment
decision because she took FMLA leave.” Compl. (ECF No. 1) ¶ 58. She pleads no facts,
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however, to support the allegation that any adverse employment action taken against her was
because she took FMLA leave.9 Kirk has therefore failed to plausibly allege the elements
of her claim, and the court dismisses her FMLA claim.10

IV
Although the court is granting ACH’s motion to dismiss, it will permit Kirk to
replead. See In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex.
2005) (Fitzwater, J.) (“[D]istrict courts often afford plaintiffs at least one opportunity to cure

pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable
or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that
will avoid dismissal.” (quoting Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 329 (5th Cir. 2002))). There is no indication that Kirk cannot, or is unwilling
to, cure the defects in her complaint. The court therefore grants Kirk 28 days from the date

this memorandum opinion and order is filed to file an amended complaint.

9Kirk alleges that she was terminated after exercising her FMLA rights, but she does
not specify when she was terminated or how much time passed between when she exercised
her rights and when she was terminated. Her complaint is therefore insufficient to enable the
court to draw the reasonable inference that there is temporal proximity between her FMLA
leave and her termination.
10In her response to ACH’s motion to dismiss, Kirk suggests that she has pleaded both
interference and retaliation under 29 U.S.C. 2615. Because her complaint neither mentions
nor alleges sufficient factual content to support an interference claim, see Compl. (ECF No.
1) ¶ 58, she may not add such an unpleaded claim through her response.
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* * *

For the reasons explained, the court denies ACH’s motion to transfer the case to the
Fort Worth Division, grants ACH’s motion to dismiss, and grants Kirk 28 days from the date
this memorandum opinion and order is filed to file an amended complaint.
SO ORDERED.
August 22, 2025.

SIDNES A. \_abiet
SENIOR JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11126386. Public record. Not legal advice.