United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE.
case comes before the court on the defendant Brad
Schoen's (“Schoen's”) motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6) all claims
alleged against him in his individual capacity. ECF# 11.
These claims include count one--Title VII of the Civil Rights
Act, count two-Americans with Disabilities Act, and count
three-Family and Medical Leave Act (“FMLA”). The
plaintiff Luke Richards (“Luke”) responds
opposing dismissal only of the FMLA claim. ECF#12. Against
this claim, the defendant Schoen argues that a public
official does not meet the statutory definition of
“employer” and that he is entitled to qualified
immunity because the complaint fails to allege what Schoen
specifically did to violate the FMLA and because the
individual FMLA liability of public officials is not clearly
established. ECF#12, pp. 5-8. The plaintiff Luke observes the
circuit courts addressing individual FMLA liability of
supervisory public officials are divided with the Tenth
Circuit having yet to rule on the issue. Nonetheless, the
plaintiff Luke observes that more circuit and district courts
have held that public officials meet the statutory definition
of employer. The plaintiff Luke reads into his complaint
Schoen's FMLA violations and disputes the applicability
of qualified immunity based on the statutory definition of
“employer.” In reply, the defendant Schoen argues
for the first time that he is not an “employer”
under the economics reality test. The defendant has waived
the court's present consideration of this issue by
waiting until his reply brief to raise it. White v.
Chafin, 862 F.3d 1065, 1067 (10th Cir. 2017) (Issues
raised for the first time in a reply brief are deemed
waived). The defendant also replies repeating his original
position and calling for the court to follow the holding of
Arbogast v. Kansas, 2014 WL 1304939 (D. Kan. Mar.
31, 2014), that a public official sued in his individual
capacity is not an employer liable under the FMLA.
for 12(b)(1) Dismissal
12(b)(1) of the Federal Rules of Civil Procedure authorizes
dismissal of a claim for lack of subject matter jurisdiction.
The burden to establish the existence of federal jurisdiction
rests with the party invoking it. Kansas by and through
Kansas Department for Children and Families v.
SourceAmerica, 874 F.3d 1226, 1240 (10th Cir. 2017).
Because the defendant Schoen is making a facial attack on the
sufficiency of the complaint's allegations of subject
matter jurisdiction, ECF#12, p. 3, the court accepts the
allegations in the complaint as true. Safe Streets
Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir.
2017). Being courts of limited jurisdiction, federal courts
regard subject matter jurisdiction to be
“elemental” and to be “established in every
cause under review in the federal courts.” Id.
(internal quotation marks and citations omitted).
for 12(b)(6) dismissal
Tenth Circuit in Safe Streets recently summarized
the applicable standard:
“A pleading is required to contain ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief.'” SEC v. Shields, 744
F.3d 633, 640 (10th Cir. 2014) (quoting Fed.R.Civ.P.
8(a)(2)). “We accept as true all well-pleaded factual
allegations in the complaint and view them in the light most
favorable to the” plaintiff. Id. (quoting
Burnett v. Mortg. Elec. Registration Sys., Inc., 706
F.3d 1231, 1235 (10th Cir. 2013)). We then “determine
whether the plaintiff has provided ‘enough facts to
state a claim to relief that is plausible on its face.'
” George [v. Urban Settlement
Servs.], 833 F.3d  at 1247 [(10th Cir.
2016)](quoting Hogan v. Winder, 762 F.3d 1096, 1104
(10th Cir. 2014)).
“In determining the plausibility of a claim, we look to
the elements of the particular cause of action, keeping in
mind that the Rule 12(b)(6) standard [does not] require a
plaintiff to ‘set forth a prima facie case for each
element.'” Id. (quoting Khalik v.
United Air Lines, 671 F.3d 1188, 1192-93 (10th Cir.
2012)). “The nature and specificity of the allegations
required to state a plausible claim will vary based on
context.” Kan. Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1215 (10th Cir. 2011). But “mere
‘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.” Id. at 1214 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, a “claim is
facially plausible if the plaintiff has pled ‘factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'” George, 833 F.3d at 1247
(quoting Hogan, 762 F.3d at 1104, which in turn
quotes Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
859 F.3d at 878. Thus, a Rule 12(b)(6) motion challenges the
legal sufficiency of a complaint, and the relevant inquiry is
whether the plaintiff's factual allegations are
“enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
defendant Schoen, in his individual capacity, seeks dismissal
of plaintiff's FMLA claim pursuant to Rule 12(b)(1),
arguing the court lacks subject matter jurisdiction, because
he is not an employer subject to liability under this federal
statute. See Wascura v. Carver, 169 F.3d 683, 687
(11th Cir. 1999) (citing Douglas v. E.G. Baldwin &
Assocs., Inc., 150 F.3d 604, 608 (6th Cir. 1998),
[abrogated by, Thomas v. Miller, 489 F.3d 293,
297-98 (6th Cir. 2007)] and agreeing with the Sixth Circuit
that when a defendant does not meet the statutory definition
of “employer” the court lacks subject matter
jurisdiction over that claim against the defendant). The
defendant Schoen alternatively seeks dismissal asserting
qualified immunity in his individual capacity based on the
failure to allege Schoen's unlawful conduct and on the
unsettled question of whether public agency officials are
subject to individual liability. See Modica v.
Taylor, 465 F.3d 174, 188 (5th Cir. 2006). Schoen
concludes with additional analysis showing the amended
complaint fails to plead facts to support the conclusion that
“RCPD's actions constitute a violation of the
FMLA.” ECF# 12, p. 8.
looking closer at the governing law on these alternative
arguments, the court takes up Schoen's last argument
first in order to determine what the plaintiff is making as
his FMLA's allegations. As shown below, the
plaintiff's amended complaint alleges a FMLA claim in
undeniably vague and cursory terms:
8. In November of 2016, Luke had requested Family and Medical
Leave Act (“FMLA”) leave due to wife attempting
suicide. He was notified that his FMLA was changed to
administrative leave sometime during the commencement of his
9. Luke was put on administrative leave for allegedly
“threatening” a “friend” of his,
Sarah Hagerty. Luke denied and continues to deny making the
statement, and any statements made by Luke at the time were
not intended to be ...