     Case: 16-20058      Document: 00513781601         Page: 1    Date Filed: 12/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-20058                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
DONNA R. ALFRED,                                                         December 2, 2016
                                                                           Lyle W. Cayce
              Plaintiff – Appellant,                                            Clerk

v.

HARRIS COUNTY HOSPITAL DISTRICT, doing business as Harris Health
System,

              Defendant – Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-569


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant appeals the district court’s dismissal of her claims
against Defendant-Appellee filed pursuant to the Family Medical Leave Act
(“FMLA”). 29 U.S.C. § 2601, et seq. We affirm.
                        I. Factual & Procedural History
       Plaintiff-Appellant Donna Alfred began working as a nurse auditor for
Defendant-Appellee Harris County Hospital District d/b/a Harris Health




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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System (“Harris Health”) 1 in 2009. By early 2014, Alfred was promoted from
nurse auditor to a management position. From June 5th through July 21,
2014, Alfred took an approved FMLA leave to personally undergo and recover
from a major surgical procedure. On July 9, 2014, while she was still out on
leave, Alfred received an email from her supervisor, Tina Strawn. The email
from Strawn indicated that she had received a “hornet[’]s nest of complaints”
from the employees Alfred supervised. These complaints related to Alfred’s
alleged micro-management of their employment activities, such as clocking-in
and out and taking leave, along with various concerns that Alfred was
disrespecting them. According to Alfred, on July 22, 2014, the day after she
returned to work, Strawn informed her that her employees had been moved to
another manager and that she could either continue to be a manager without
employees or accept a demotion to the position of nurse auditor. Alfred was
given some time to consider her options and discussed the situation with her
husband. The following day, July 23, 2014, Alfred returned to Strawn and told
her that she had “decided to take the nurse auditor position.”                           Shortly
thereafter, Alfred was demoted to the nurse auditor position and her pay was
cut by approximately 11%. Strawn then sent an email to her supervisor,
Michael Hill (“the July 23rd email”), stating that “Donna very graciously
stepped down from her role as a senior manager saying that working from
home more and not having any managerial responsibilities will allow her the
opportunity to be there for her mother while she’s going through her cancer
treatments.” Alfred did not learn that Strawn had sent the July 23rd email to
Hill until after she filed suit against Harris Health the following year.
      Alfred submits that in early August 2014, she met with the Human
Resources Department (“HR”) “to complain about her demotion” and was told


      1   Harris Health is a political subdivision of the state of Texas. Tex. Const. art. IX, § 4.
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the matter would be investigated. Meanwhile, Alfred requested additional
FMLA leave from August 18th through 24th to care for her mother who had
been diagnosed with cancer at the end of May 2014. The leave was approved,
Alfred took the leave in late August 2014 as requested, and she then returned
to work.
      In September 2014, Alfred met again with HR to discuss its findings
regarding her complaint. The HR representative indicated that five employees
had been interviewed and Alfred’s demotion was due to her micromanagement,
lack of communication, and poor morale in the department.
      Alfred filed suit in Texas state court against Harris Health in February
2015, alleging that she was demoted on July 22, 2014, in retaliation for taking
FMLA leave from June 5th to July 21st to have surgery.                 Harris Health
removed to federal district court in March 2015, and the district court
scheduled a conference for April 2, 2015, directing the parties to exchange
principal documents prior to the conference. During the April 2nd conference,
Harris Health produced a copy of the July 23rd email from Strawn to Hill,
giving Alfred an opportunity to view the email.
      Alfred was deposed two weeks later on April 17, 2015, and again received
a copy of the July 23rd email. Alfred testified during her deposition that she
believed she had been retaliated against for taking FMLA leave in June and
July of 2014 to undergo surgery. According to Alfred’s deposition testimony, “I
feel that if I’d never taken the FMLA leave, 2 that none of this ever would have
happened.”
      The district court scheduled a pretrial conference for April 22nd. At the
conference, Harris Health disclosed to the court that, as a governmental entity,



      2 Alfred made this statement in reference to the approved FMLA leave she took from
June 5th through July 21st to undergo surgery.
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                                   No. 16-20058
it likely had a sovereign immunity defense against Alfred’s self-care FMLA
claim for retaliation. Consequently, the district court issued a scheduling order
requiring Harris Health to submit a 2-page brief on the sovereign immunity
issue.
         Approximately five days later, Alfred filed an opposed motion for leave
to file an amended complaint seeking to add a claim for FMLA retaliation due
to the family-care leave she requested to take to care for her mother in late
August 2014—a claim against which Harris Health would not be able to assert
a sovereign immunity defense. Alfred asserted that the July 23rd email from
Strawn to Hill was “[n]ewly discovered evidence” that supported a claim for
FMLA family-care retaliation. Harris Health did not file a response to Alfred’s
motion for leave to amend and on August 26, 2015, the district court issued an
order denying the motion. In its ruling denying Alfred’s motion, the district
court stated:
              [Alfred] cannot use information from a third party to
              propagate a new explanation for her subjective, and
              asserted, reasons for taking leave.        The facts
              underlying this exchange are not newly discovered,
              nor do they change why she originally took the leave.

              A court should freely give leave when justice so
              requires, it is not required here. Granting leave would
              be futile, would prejudice Harris County, and would
              unduly delay the litigation.

         In December 2015, Harris Health filed a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction on grounds that it was sovereignly
immune from Alfred’s FMLA self-care claims of retaliation, as well as from her
claims for reinstatement.      Fed. R. Civ. P. 12(b)(1).    In response, Alfred
requested that the district court reconsider its ruling denying her motion to
amend, in which she sought to add the FMLA family-care claim. In January

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2016, the district court issued an Opinion on Liability denying Alfred’s request
for reconsideration and dismissing her claims against Harris Health with
prejudice. In its opinion, the district court reasoned that, because Harris
Health is a subdivision of the state of Texas and states are immune from
liability for claims arising from the self-care provision of the FMLA, Harris
Health was immune from liability for Alfred’s FMLA self-care retaliation
claim. The district court went on to state that Alfred was also legally barred
from seeking reinstatement to her position and did not qualify for any other
form of relief that she sought. The district court concluded that it lacked
subject matter jurisdiction over Alfred’s claims on grounds that Harris Health
was sovereignly immune from the suit. Alfred filed this appeal.
                           II. Standard of Review
      This court conducts a de novo review of a district court’s dismissal
pursuant to Rule (12)(b)(1). Machete Prods., LLC v. Page, 809 F.3d 281, 287
(5th Cir. 2015) (citation omitted). In evaluating a motion to dismiss, “we must
take all of 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.”         Id.
(internal quotation marks and citation omitted). “However, in examining a
Rule 12(b)(1) motion, a district court is empowered to find facts as necessary
to determine whether it has jurisdiction.” Id. (citation omitted).
      “We review a district court’s denial of leave to amend for an abuse of
discretion.” Id. (citing Simmons v. Sabine River Auth. La., 732 F.3d 469, 478
(5th Cir. 2013)).
                                 III. Analysis
      Pursuant to the Eleventh Amendment, “[a] foundational premise of the
federal system is that States, as sovereigns, are immune from suits for
damages, save as they elect to waive that defense.” Coleman v. Court of
Appeals of Md., 132 S. Ct. 1327, 1333 (2012) (citations omitted).         “As an
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exception to this principle, Congress may abrogate the States’ immunity from
suit pursuant to its powers under § 5 of the Fourteenth Amendment.” Id.
(citations omitted).   This abrogation occurs under the FMLA’s family-care
provision, but not under the self-care provision. Id. at 1334 (“Standing alone,
the self-care provision is not a valid abrogation of the States’ immunity from
suit.”). This is because “[i]n enacting the FMLA, Congress relied upon evidence
of a well-documented pattern of sex-based discrimination in family-leave
policies,” and thus, the Supreme Court held in Nevada Department of Human
Resources v. Hibbs that employees are permitted to recover damages from the
State for these types of violations. Id. (citing Nev. Dep’t of Human Res. v.
Hibbs, 538 U.S. 721, 728 (2003) (“The FMLA aims to protect the right to be free
from gender-based discrimination in the workplace.”)). Accordingly, a State
enjoys sovereign immunity from suit for an FMLA claim for retaliation based
on the self-care provision but not the family-care provision. Id.
      Alfred’s original complaint only asserted a claim for FMLA self-care
retaliation. See 29 U.S.C. § 2612(a)(1)(D). In her complaint, she explained
that she was protected under the FMLA as an employee with a serious medical
condition that left her unable to perform the functions of her job. See id. She
detailed under the facts section of her complaint that she had worked at Harris
Health for five years prior to requesting FMLA leave to undergo and recover
from surgery in June and July of 2014. She assessed her decision to take this
self-care FMLA leave as the precise cause of her demotion, an allegation which
she asserted was supported by the evidence of her conversation with Strawn
the day she returned to work on July 22, 2014, subsequent to taking the self-
care FMLA leave. Prior to being deposed and again during her deposition, she
received a copy of the July 23rd email from Strawn to Hill discussing Alfred’s
gracious reaction to the proposed demotion, wherein, according to Strawn,
Alfred explained that she would be able to use the extra time resulting
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                                 No. 16-20058
therefrom to care for her mother while she went through her cancer
treatments. Alfred reiterated in her deposition testimony that, although she
decided to accept the demoted position as a nurse auditor after her
conversation with Strawn, she felt she was forced into doing so. She also stated
during her deposition that she believed that if she had not taken the self-care
FMLA leave to undergo surgery, then she would not have been demoted.
      As noted, because States are immune from liability for claims arising
under the self-care provision of the Act, the district court did not err in
dismissing Alfred’s FMLA self-care retaliation claim against Harris Health for
lack of subject matter jurisdiction. See Machete Prods., 809 F.3d at 287; cf.
Coleman, 132 S. Ct. at 1334 (providing that the FMLA’s self-care provision is
not a valid abrogation of the States’ immunity from suit).        Consequently,
Alfred’s appeal turns on whether the district court abused its discretion in
denying her motion for leave to amend her complaint to add an FMLA family-
care retaliation claim. See 29 U.S.C. § 2612(a)(1)(C). Alfred argues that the
district court’s denial of her motion was an abuse of discretion and that
amendment of her claim would not have been futile, prejudicial to Harris
Health, or have unduly delayed the litigation. We disagree.
      “Federal Rule of Civil Procedure 15(a) states that the district court
should freely give leave [to amend] when justice so requires.” SGIC Strategic
Global Inv. Capital, Inc. v. Burger King Europe GmbH, No. 15-10943, 2016 WL
5888386, at *4 (5th Cir. Oct. 10, 2016) (citation omitted). “The language of this
rule evinces a bias in favor of granting leave to amend and a district court must
possess a substantial reason to deny a request.” Id. (alterations, internal
quotation marks, and citation omitted). “A district court should examine five
considerations to determine whether to grant a party leave to amend a
complaint: 1) undue delay, 2) bad faith or dilatory motive, 3) repeated failure
to cure deficiencies by previous amendments, 4) undue prejudice to the
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opposing party, and 5) futility of the amendment.” Id. (alterations and internal
quotation marks omitted).
      It was only after the April 22nd pretrial conference where Harris Health
disclosed to the district court that it may have a sovereign immunity defense
against Alfred’s self-care FMLA retaliation claim, that Alfred sought leave to
amend her complaint to include a family-care FMLA retaliation claim. Alfred
indicated that she spoke generally with Strawn in May 2014 about her
mother’s illness. Alfred argues on appeal that this conversation was sufficient
to put Strawn on notice 3 that she would be requesting family-care FMLA leave
in the future. Thus, according to Alfred, although contrary to the factual
allegations in her original complaint and her deposition testimony, her July
22nd demotion was in retaliation for the FMLA family-care leave she planned
to take in late August 2014, rather than the self-care FMLA leave she took in
June and July of 2014.
      In addressing Alfred’s last-minute request to amend the factual
representations that she alleged supported her FMLA retaliation claims, the
district court noted that “[p]leading in the alternative is fine for legal theories,
but it is not for facts—facts the party knows and has sworn to. A party
representing a single fact as both true and false does not create a fact issue; it
engenders an ethical one.” We find this reasoning persuasive in light of the
allegations outlined in Alfred’s original complaint detailing the timeline and
order of events she claimed supported her allegations of FMLA self-care
retaliation, i.e., she took FMLA self-care leave from June 5th through July
21st, returned to work on July 22nd, was informed by Strawn the day she
returned that she could no longer supervise other employees, and was given
the option to take the demoted position of nurse auditor. Additionally, as


      3   See 29 C.F.R. § 825.302.
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referenced by the district court, Alfred reiterated multiple times in her sworn
deposition testimony that she believed she was retaliated against for taking
self-care FMLA leave to undergo surgery. The record reflects that Alfred had
obtained a copy of the July 23rd email from Strawn to Hill but nevertheless
continued to testify in her deposition that she believed she was demoted for
taking the self-care FMLA leave. But when Alfred learned that her retaliation
claim for self-care FMLA leave would be subject to Harris Health’s defense of
sovereign immunity—and that a retaliation claim for family-care FMLA leave
would not—she sought to amend her complaint to adjust the factual allegations
contained therein to support a FMLA family-care retaliation claim.
      Regardless of the timing of Alfred’s motion to amend, however, the
undisputed facts in the proceedings below simply do not support a claim for
FMLA family-care retaliation and, thus, any amendment would have been
futile. Alfred’s demotion occurred on July 22nd, the day she returned to work
after taking self-care FMLA leave, presumably causing her to file suit and
testify that she had been retaliated against for taking the self-care leave. The
record reflects that at this time, she had not yet applied for, received, or taken,
any type of FMLA family-care leave for any reason. Although she claims to
have generally mentioned her mother’s illness to Strawn back in May 2014,
Alfred fails to present evidence that any purported conversation she and
Strawn had in May equated to notice of her intention to take FMLA family-
care leave at a later date. See 29 C.F.R. § 825.302 (providing minimum notice
requirements and detailing that such notice can be verbal); cf. Lanier v. Univ.
of Tex. S.W. Med. Ctr., 527 F. App’x 312, 316 (5th Cir. 2013) (per curiam)
(unpublished) (“Although an employee need not use the phrase ‘FMLA leave,’
she must give notice that is sufficient to reasonably apprise her employer that
her request to take time off could fall under the FMLA.”)). To the contrary, the
July 23rd email from Strawn to Hill, sent one day after Alfred’s “demotion,”
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appears to suggest that Strawn first learned of Alfred’s intentions to take
FMLA family-care leave during the conversation(s) she had with Alfred
regarding Alfred’s removal from the management position. Accordingly, the
record evidence supports the district court’s denial of Alfred’s motion to amend
on grounds of futility. See SGIC Strategic Global Inv. Capital, Inc., 2016 WL
5888386, at *4.
      In light of these reasons, we hold that the district court’s denial of
Alfred’s motion for leave to amend was not an abuse of discretion. See Machete
Prods., 809 F.3d at 287.
                               IV. Conclusion
      For the aforementioned reasons, we affirm the judgment of the district
court dismissing Plaintiff-Appellant’s claims.




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