MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
This matter comes before the court on defendant State of Kansas Department of Wildlife, Parks and Tourism's Motion to Dismiss (Dkt. 11) and plaintiff Priscilla A. Humphrey's Motion to Amend Complaint (Dkt. 15). The court has reviewed the briefs on each motion and is now prepared to rule.
I. Factual Background
Plaintiff Priscilla A. Humphrey is a 49-year-old black woman who was formerly employed as an administrative specialist by defendant State of Kansas Department of Wildlife, Parks and Tourism ("the KDWPT"). Humphrey was the only black administrative specialist; the others were white. While Humphrey worked at the KDWPT, Becky Blake, a white female, was her direct supervisor.
Humphrey claims that she was subjected to disparate treatment because of her race. She alleges that the disparate treatment consisted of Blake assigning her "much more work and responsibility than she could reasonably complete, while her white coworkers were allowed to be less productive." She alleges that her employment was terminated because she was unable to keep up with the work.
Humphrey also alleges that her termination was retaliation by the KDWPT in violation of Title VII. In March of 2012, Humphrey alleges that she complained to two coworkers, Linda Craghead and Todd Workman, about an inappropriate racial comment made by a white male coworker. Humphrey claims that after this protest, she was assigned an even more unreasonable workload. Humphrey also allegedly complained to Becky Blake on May 17, 2012, after a member of the Governor's Council on Tourism made references to "negroes" and "Mexicans" that offended her. Humphrey alleges that she was terminated because of these objections.
Humphrey also claims that the KDWPT retaliated against her for seeking FMLA leave. During the week of June 4, 2012, Humphrey claims she was ill. Despite her illness, she worked on Monday and Tuesday. She claims she was unable to work on Wednesday and Thursday and alleges that she used FMLA intermittent leave on Thursday due to her diabetes. While still ill, Humphrey claims she returned to work on Friday, June 8, but she became overwhelmed by the amount of work she had been assigned. When she told Blake that she could not do all of her work, Blake took Humphrey's key and told her to take the weekend to think it over. The next day, Humphrey emailed Blake a request to use available FMLA leave effective immediately. Humphrey did not receive a response until Tuesday, June 12, when she was advised that the KDWPT was treating her leaving on Friday as a resignation and was terminating her employment.
II. Motion to Dismiss for Lack of Subject Matter Jurisdiction
The KDWPT argues that because it is entitled to Eleventh Amendment immunity on Humphrey's FMLA claim, the court has no subject matter and must dismiss the claim under Federal Rule of Civil Procedure 12(b)(1). As a threshold issue, the court addresses this issue first. See Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
Federal courts have limited jurisdiction and may exercise their power only when specifically authorized to do so. Castanedo v. Immigration Naturalization Serv., 23 F.3d 1576, 1580 (10th Cir. 1994). Federal district courts have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Under Federal Rule of Civil Procedure 12(b)(1), a party may move for dismissal based upon a court's lack of subject matter jurisdiction. When analyzing a Rule 12(b)(1) motion to dismiss, the court presumes it lacks subject matter jurisdiction until the plaintiff can prove otherwise. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("It is to be presumed that a cause lies outside [the court's] limited jurisdiction, ... and the burden of establishing the contrary rests upon the party asserting jurisdiction.").
Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citation omitted). Here, the KDWPT's Rule 12(b)(1) motion constitutes a facial attack on the allegations in Humphrey's complaint. Accordingly, we presume all of the allegations contained in the complaint to be true. Id. at 1002 (citation omitted).
With certain limited exceptions, the Eleventh Amendment prohibits a citizen from filing suit against a state in federal court. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1231-32 (10th Cir. 1999) (citation omitted). To assert Eleventh Amendment immunity, a defendant must qualify as a state or an "arm" of a state. Id. at 1232. Here, no dispute exists between the parties that the KDWPT qualifies as an "arm" of the state of Kansas. Humphrey even alleges in her complaint that KDWPT "is an agency of the State of Kansas...."
There are two primary circumstances in which a citizen may sue a state without offending Eleventh Amendment immunity. Ruiz, 299 F.3d at 1181. Congress may abrogate a state's Eleventh Amendment immunity, and a state may also waive its Eleventh Amendment immunity and consent to be sued. Id. Neither exception applies in this case. First, Humphrey does not argue that Kansas consented to be sued under the FMLA. Second, as the court explains below, the U.S. Supreme Court recently held that Congress did not abrogate the States' Eleventh Amendment immunity against FMLA claims for self-care leave. See Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327 (2012).
The Family and Medical Leave Act of 1993 entitles eligible employees to take up to twelve work weeks of unpaid leave per year. 29 U.S.C. § 2601-2654. Under the FMLA, an employee may take leave for (A) the birth of a son or daughter... in order to care for such son or daughter" (B) the adoption or foster-care placement of a child with the employee, (C) the care of a spouse, son, daughter, or parent with a serious health condition, and (D) the employee's ...