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Arbogast v. State, Department of Labor

United States District Court, D. Kansas

March 31, 2014



JULIE A. ROBINSON, District Judge.

Plaintiff, Kathleen Arbogast, filed this civil action against Defendants State of Kansas Department of Labor ("KDOL") and Karin Brownlee, former Secretary of Labor for the State of Kansas, seeking damages for several employment discrimination and retaliation claims arising under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq., and the Family Medical Leave Act, 29 U.S.C. § 2611 et seq. ("FMLA"). Before the Court is Defendant Karin Brownlee's Motion to Dismiss (Doc. 10). The motion is fully briefed and the Court is prepared to rule. For the reasons set forth below, Defendant's motion is granted.


Beginning in April of 2001, Plaintiff was employed as a Senior Administrative Assistant in the Workers Compensation Division of the KDOL, a state agency. Defendant Brownlee was formerly the Secretary of Labor of the KDOL. Plaintiff suffers from asthma, which impairs her breathing. In April of 2008, Plaintiff began raising concerns with her supervisors about fragrances in the workplace, which aggravated her asthma. In an attempt to accommodate Plaintiff, her supervisors requested that other employees not wear excessive perfumes; and an air purifier was placed in Plaintiff's work area. Plaintiff reported that these accommodations did not alleviate her asthma and, consequently, filed a union grievance. In October of 2010, Defendant KDOL arranged to move Plaintiff's work space to the basement to limit her exposure to any fragrances. Defendant KDOL also created a policy limiting access to Plaintiff's basement work space to people who did not wear excessive fragrances. Still, Plaintiff continued to have problems when other employees frequented the basement.

On May 23, 2011, Plaintiff requested intermittent leave under the FMLA due to her asthma. Plaintiff's request was denied. On June 3, 2011 Plaintiff filed a complaint with the United States Department of Labor (DOL) regarding her denial of leave pursuant to the FMLA. The DOL subsequently found that Defendant KDOL had violated the FMLA.

On July 25, 2011, Plaintiff received a letter from Defendant Brownlee, detailing the chronology of Plaintiff's complaints about the perfume issue and Brownlee's intent to terminate Plaintiff's employment. In response to Brownlee's letter, Plaintiff met with and wrote a letter to Brownlee explaining why she had to continue to complain, outlining her work in the department, and suggesting a possible reassignment as a feasible alternative." A few days later, Plaintiff received a letter from Brownlee explaining that her employment was terminated, effective August 3, 2011, for insubordinate and disruptive behavior. Plaintiff subsequently appealed her termination to the Kansas Civil Service Board (the "Board"). During her appeal hearing, Plaintiff and Defendant KDOL were represented by counsel, several witnesses testified and evidence was submitted. The Board affirmed Plaintiff's termination in a final order that was issued on March 9, 2012.[1] Reconsideration of the Board's Order may be requested within fifteen days after service of the final order pursuant to K.S.A. 77-529(a) but Plaintiff did not exercise her right to reconsideration.

On January 22, 2013, Plaintiff filed her Complaint against Defendants. Counts I and II of the Complaint, brought against both Defendants, seek money damages for discrimination and retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 794. Counts III and IV, brought only against Defendant Brownlee in her individual capacity, seek injunctive relief and money damages for interference and retaliation in violation of the Family Medical Leave Act, 29 U.S.C. § 2611. Defendant Brownlee moves for dismissal of Counts III and IV for lack of subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under 12(b)(6).[2]


A. Rule 12(b)(1)

The Court evaluates Defendant Brownlee's jurisdictional claim under Rule 12(b)(1). Federal courts are courts of limited jurisdiction and, as such, must have a statutory or Constitutional basis to exercise jurisdiction.[3] A court lacking jurisdiction must dismiss the case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking.[4] The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper.[5] Here, "[P]laintiff bears the burden of showing why the case should not be dismissed."[6] Mere conclusory allegations of jurisdiction are not enough.[7]

Generally, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial attack or a factual attack. "First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true."[8] "Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)."[9] Plaintiff has only facially challenged subject matter jurisdiction.

B. Rule 12(b)(6)

The Court evaluates Defendant Brownlee's non-jurisdictional arguments under Rule 12(b)(6), which provides a vehicle for a party to challenge the legal sufficiency of a claim. The requirements underlying the legal sufficiency of a claim stem from Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."[10] To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level, " and must contain "enough facts to state a claim to relief that is plausible on its face."[11] "[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."[12] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility."[13] "[M]ere labels and conclusions, ' and a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim."[14] Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[15]

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we are not bound to accept as true a legal conclusion couched as a factual allegation.'"[16] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[17] Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."[18] "A claim has facial ...

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