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Richards v. Schoen

United States District Court, D. Kansas

January 17, 2018

BRAD SCHOEN, in his individual and official capacities as Director of the Riley County Police Department, Defendant.



         The 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.

         Standard for 12(b)(1) Dismissal

         Rule 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).

         Standard for 12(b)(6) dismissal

         The 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 [1242] 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).


         The 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.

         Before 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 FMLA leave.
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 ...

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