Luebano v. Office Depot

Case: 22-50767 Document: 00516804456 Page: 1 Date Filed: 06/29/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 29, 2023
No. 22-50767 Lyle W. Cayce
____________ Clerk
Sara Luebano,
Plaintiff—Appellant,
versus
Office Depot, L.L.C.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CV-233
______________________________
Before Clement, Graves, and Higginson, Circuit Judges.
Per Curiam: *
Sara Luebano was an assistant manager at Office Depot’s location in
Odessa, Texas. She worked for the company during a mass shooting event in
August 2019. In June 2020, Luebano needed knee surgery and applied for
time off under the Family and Medical Leave Act. Office Depot granted her
leave beyond the twelve weeks required by statute. When Luebano failed to
return to work by January 2021, the store terminated her employment.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Luebano sued Office Depot for negligence related to the 2019 mass shooting
and for violations of the FMLA and the Americans with Disabilities Act. The
district court dismissed Luebano’s federal claims pursuant to Federal Rule
of Civil Procedure 12(b)(6) and declined to take supplemental jurisdiction
over her state law claims. We AFFIRM in part and REVERSE in part the
district court’s order on the motion to dismiss. Consequently, we VACATE
the district court’s order on the motion to reopen. Finally, we REMAND to
the district court for further proceedings consistent with this opinion.
I
A
What follows are the facts as alleged in Luebano’s amended
complaint. Luebano worked at Office Depot in Odessa, Texas, from June
2016 until January 2021. She started as a copy center associate and worked
her way up to an assistant manager. While serving as an assistant manager,
on August 31, 2019, an associate informed her that an active shooter was in
Odessa. Police activity outside the store was heavy, and her active general
manager, Dieter Mullin, ordered Luebano to ask the officers what was
happening. Luebano was terrified. But she complied with her supervisor’s
instructions and went outside to speak with the police. An officer told her to
return to the building and that the situation was serious. Luebano informed
the customers and associates that the store was on lockdown due to the
ongoing active shooter event. She then locked the door and dropped the gate.
Rumors started to fly around the building that the mass shooter had
shot people down the street. However, Mullen was anxious to reopen the
store, asking Luebano to pay attention to what a nearby Target was doing. A
little later, believing Target had reopened and that the situation was over,
Mullen ordered Luebano to open the location for business. However, the
store’s area loss prevention manager, Blake Langley, countermanded these
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instructions. After intense confusion, Luebano followed Langley’s guidance
to conduct an emergency store closing and safely led the remaining people
outside the building. The next day, Luebano submitted a letter to Office
Depot complaining about how its managers handled the active shooter event.
But nothing materialized from her letter.
About a month later, on October 1, 2019, Mullen and Hector Arellano,
the new general manager, called Luebano into their office. They presented
her with a performance improvement plan, in which Luebano’s managers
informed her that she was not performing her assistant manager
responsibilities appropriately. Luebano disputed the factual basis for the
plan, specifically its claim that she had been disciplined in the past for her
performance. Mullen and Arellano refused to show her the documents
underpinning the performance improvement plan. In response, Luebano
declined to sign any disciplinary paperwork. Later, Luebano’s management
held additional disciplinary discussions regarding her handling of store
security, bag checks, laptop inventory, and the store’s safe.
Unrelated to these events, on June 10, 2020, Luebano informed Office
Depot that she needed to take prolonged medical leave for knee surgery
starting June 19. Office Depot’s human resources team instructed her to
submit a request for FMLA leave, and she complied. Initially, Office Depot
approved Luebano for FMLA leave starting June 19 and ending July 30.
However, it later extended her leave several times.
But Luebano started to suspect her job might be in jeopardy. Early in
October 2020, she saw the Odessa Office Depot advertising for a new
assistant manager. Arellano denied any knowledge of a job posting. On
October 12, Luebano was cleared to return to work with restrictions. She
attempted to get on the work schedule, but Office Depot’s HR team extended
her leave to December 10, 2020, instead. Oddly, about a month later in
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November 2020, Office Depot informed Luebano that her leave had caused
undue hardship, and it could no longer guarantee her role as an assistant
manager at the Odessa store. But Office Depot informed Luebano she would
be considered for any positions available at the Odessa location once she fully
recovered.
On December 10, 2020, Luebano’s leave expired, and Office Depot
emailed her the next day. Luebano informed Office Depot that she had
another appointment set for December 14, and Office Depot granted a
further extension of her leave until December 15. On December 16, Luebano
received another email indicating that her leave had been exhausted.
However, Luebano did not return to work, and on January 7, 2021, she
received an email from Fidelity Investments regarding her 401k and the
termination of her employment. Concerned, Luebano contacted Arellano,
who claimed to be uncertain whether Office Depot had terminated her. A few
days later, on January 12, Arellano texted Luebano that Office Depot had
fired her.
B
Luebano filed suit on September 27, 2021, in Ector County against
Office Depot for violations of the FMLA and Texas law. Office Depot
accepted service of her complaint on November 10, 2021, and timely
removed to federal court based on federal question jurisdiction. It
simultaneously moved to dismiss pursuant to Rule 12(b)(6). Luebano
responded to this motion by requesting leave to amend, and the district court
allowed her to file an amended complaint. On April 7, 2022, Luebano
submitted her amended complaint, which added an ADA cause of action.
Later that month, Office Depot again moved to dismiss. Luebano did not file
a response to that motion. The district court granted Office Depot’s motion
to dismiss.
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In its order, the district court first found that Luebano had failed to
exhaust her ADA claim with the EEOC before filing her lawsuit. It then
concluded that Luebano could not plausibly state a violation of the FMLA
because she had exhausted her protected leave. Having dispatched her
federal claims, the district court refused to take supplemental jurisdiction
over Luebano’s state law causes of action and dismissed the remainder of the
amended complaint.
Luebano responded to the district court’s order by moving to reopen
the case under Federal Rule of Civil Procedure 60(b)(1). In support of her
motion, Luebano argued that her attorney could not access the electronic
filing system and submit her response to the motion to dismiss. She went on,
asking the district court for relief because her attorney got sick while traveling
and could not effectively remedy the filing issue before the court ruled on the
motion. The district court did not agree that these barriers met the Rule
60(b)(1) threshold and denied Luebano’s motion. Luebano timely appealed
the order denying her motion to reopen her case. 1
II
“We review the grant of a motion to dismiss under Rule 12(b)(6) de
novo, accepting all well-pleaded facts as true and viewing those facts in the
_____________________
1
In 2021, the Supreme Court approved an amended Federal Rule of Appellate
Procedure 3(c)(5). The amended rule states: “In a civil case, a notice of appeal
encompasses the final judgment . . . if the notice designates . . . (B) an order described in
Rule 4(a)(4)(A).” Fed. R. App. P. 3(c)(5). Federal Rule of Appellate Procedure
4(a)(4)(A)(vi) includes motions pursuant to Federal Rule of Civil Procedure 60. The
upshot of these intertwining rules is that Luebano has properly appealed the district court’s
order dismissing her complaint pursuant to Rule 12(b)(6) by filing an appeal of the order
denying her Rule 60(b)(1) motion.
Additionally, because we ultimately reverse the district court’s order granting the
motion to dismiss, we do not address the order on the motion to reopen the case on the
merits. Instead, we vacate that order.
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light most favorable to the plaintiffs.” Meador v. Apple, Inc., 911 F.3d 260, 264
(5th Cir. 2018) (quotation marks and citation omitted). “To survive a motion
to dismiss, a complaint must ‘plead factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Nix v. Major League Baseball, 62 F.4th 920, 928 (5th Cir. 2023)
(alteration adopted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“Conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” Id. (alteration
adopted) (citation omitted).
III
Luebano’s appeal exclusively challenges the district court’s order
dismissing her complaint. She first argues that the district court erred in
rejecting her ADA claim because she generally alleged administrative
exhaustion, which Luebano contends is all that is required of her at the
pleading stage. Second, Luebano contends that the district court erred in
dismissing her FMLA causes of action by collapsing her FMLA leave with
other disability leave that she never requested. We address each argument in
turn.
A
The district court concluded that Luebano failed to allege that the
EEOC sent her a right-to-sue letter or that the agency had not adjudicated
her charge within 180 days. Consequently, it dismissed her ADA claim
because Luebano had not demonstrated on the face of her amended
complaint that she had exhausted her administrative remedies.
Before an employee can file an ADA case in federal court, she must
exhaust her administrative remedies. See Dao v. Auchan Hypermarket, 96 F.3d
787, 788–789 (5th Cir. 1996) (per curiam). In the ADA context, proper
exhaustion of administrative remedies requires an employee to submit a
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timely charge with the EEOC and file her complaint within ninety days after
receiving a right-to-sue letter. Id. Under the appropriate circumstance, a
district court may dismiss a cause of action under Rule 12(b)(6) when the
plaintiff fails to show she exhausted her administrative remedies on the face
of the complaint. See Taylor v. U.S. Treasury Dep’t, 127 F.3d 470, 478 n.8 (5th
Cir. 1997) (per curiam).
However, failure to exhaust is an affirmative defense that a defendant
must raise. See Davis v. Fort Bend Cnty., 893 F.3d 300, 307 (5th Cir. 2018),
aff’d, 139 S. Ct. 1843, 1850-52 (2019). And while affirmative defenses,
including non-exhaustion, can be appropriately asserted on a 12(b)(6)
motion, dismissal on such a basis is appropriate only if the defense is evident
on the face of the complaint. See EPCO Carbon Dioxide Prods., Inc. v. JP
Morgan Chase Bank, 467 F.3d 466, 470 (5th Cir. 2006). Here, Luebano’s
purported failure to exhaust does not appear on the face of her complaint.
Indeed, she affirmatively claims she has exhausted her administrative
remedies. For its part, Office Depot did not attach any documentation
supporting the application of exhaustion defenses when it moved for 12(b)(6)
dismissal. Nor did it move in the alternative for summary judgment based on
such evidence. So, the district court erred when it dismissed Luebano’s
ADA claim for lacking exhaustion pleading in her complaint. 2
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2
Office Depot also asserts on appeal that Luebano’s complaint was untimely
because she failed to plead that she filed suit within 90 days of receiving a right-to-sue letter.
But this argument was not raised to the district court. See Rollins v. Home Depot USA, Inc.,
8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument by failing to raise it in the
first instance in the district court—thus raising it for the first time on appeal . . . .”). In any
case, this theory suffers from the same problem as before: the ninety-day deadline is “not
a jurisdictional prerequisite” and is instead “akin to a statute of limitations.” Espinoza v.
Mo. Pac. R.R. Co., 754 F.2d 1247, 1249 n.1 (5th Cir. 1985).
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B
Next, we address Luebano’s challenge to the district court’s decision
to dismiss her FMLA claims. The district court found that Luebano had
taken all twelve weeks of her statutorily protected FMLA leave. As a
consequence, according to the district court, she could neither plead a prima
facie case for FMLA interference nor FMLA retaliation. Luebano argues that
she adequately pleaded both causes of action and that the district court erred
by improperly conflating her FMLA leave with other, non-statutorily
protected leave that Office Depot gave her.
1
“The FMLA requires covered employers to grant covered employees
up to twelve weeks of unpaid leave for certain qualifying reasons, such as
the . . . occurrence of a serious health condition.” DeVoss v. Sw. Airlines Co.,
903 F.3d 487, 490 (5th Cir. 2018). To protect this statutory right, the FMLA
bars covered employers from interfering with the right of an employee to take
such leave. 29 U.S.C. § 2615(a)(1). In this circuit, to establish her
interference claim under the FMLA, Luebano must show: (1) she “was an
eligible employee;” (2) her “employer was subject to FMLA requirements;”
(3) she “was entitled to leave;” (4) she “gave proper notice of [her] intention
to take FMLA leave;” and (5) her “employer denied [her] the benefits to
which [s]he was entitled under the FMLA.” Caldwell v. KHOU-TV, 850
F.3d 237, 245 (5th Cir. 2017). Luebano alleges the first four elements but fails
to allege the fifth.
We have held that a plaintiff who exhausts her FMLA leave cannot
allege that her employer interfered with her right to take such leave. See Hunt
v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 763–768 (5th Cir. 2001),
abrogated on other grounds by Wheat v. Fla. Par. Juvenile Justice Comm’n, 811
F.3d 702 (5th Cir. 2016) (finding in an FMLA leave interference claim where
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an employer failed to reinstate a plaintiff: “[i]f an employee fails to return to
work on or before the date that FMLA leave expires, the right to
reinstatement also expires.”). 3 The district court correctly concluded that
Luebano has not pleaded a claim for FMLA interference. Luebano applied
for FMLA-protected leave on June 10, 2020, and Office Depot approved her
leave. As alleged, the store allowed her to remain on medical leave until
January 2021. Per her complaint, this roughly six-month period of applied-
for and received medical leave exceeds the twelve weeks protected under the
FMLA. So, given her pleading, Luebano cannot plausibly allege that Office
Depot interfered with her FMLA rights.
2
But the district court went too far in dismissing Luebano’s FMLA
retaliation cause of action by applying the same reasoning it used to dismiss
her FMLA interference claim. In employment discrimination cases, the
complaint need not “contain specific facts establishing a prima facie case of
discrimination under the framework set forth . . . in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).” Swierkiewicz v. Sorema N.A., 534 U.S. 506,
508 (2002). “The prima facie case under McDonnell Douglas . . . is an
evidentiary standard, not a pleading requirement.” Id. at 510, 122 S.Ct. 992.
But Luebano must “plead sufficient facts on all of the ultimate elements” of
her claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).
In framing a motion to dismiss inquiry, “a district court may find it helpful to
reference McDonnell Douglas.” Norsworthy v. Hous. Indep. Sch. Dist., No. 22-
20586, 2023 WL 3965065 at *2 (5th Cir. June 13, 2023).
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3
Hunt analytically divides the FMLA rights of employees into two. See 277 F.3d at
763. First, “[t]he statute prescriptively provides a series of substantive rights[,]” such as
the right to take FMLA leave without interference from an employer. Id. Second, the
statute protects employees from penalties for exercising their statutory rights. Id.9
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The district court determined in its order granting the motion to
dismiss that Luebano failed to establish her prima facie case. It found that she
did not plead the third element, specifically that her FMLA leave caused
Office Depot’s decision to terminate her when Luebano received all her
statutorily protected leave. Because a plaintiff is not required to plead a prima
facie case at the motion to dismiss phase, Scott v. U.S. Bank Nat’l Ass’n, 16
F.4th 1204, 1210 (5th Cir. 2021), the district court applied the wrong
standard here.
Still, an FMLA retaliation claim does require Luebano to show a
causal link between her FMLA leave and the adverse action. Acker v. Gen.
Motors, L.L.C., 853 F.3d 784, 790 (5th Cir. 2017). But it is enough to survive
a Rule 12(b)(6) motion for Luebano to plead adequate facts that allow us to
draw a reasonable causation inference. Nix, 62 F.4th at 928. Luebano alleges
that she took advantage of FMLA-protected leave and was terminated
shortly after doing so. As we have explained in the past, “[t]he FMLA’s
protection against retaliation is not limited to periods in which an employee
is on FMLA leave, but encompasses the employer’s conduct both during and
after the employee’s FMLA leave.” Hunt, 277 F.3d at 768-69 (emphasis
added). Accordingly, Luebano effectively pleads causation when her
termination took place in close “temporal proximity” to her use of FMLA
leave. Mauder v. Metro. Transit Auth. of Harris Cnty., 446 F.3d 574, 583 (5th
Cir. 2006). But the timing between Luebano’s termination and the end of her
statutory leave must be “very close[.]” Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273–74 (2001) (per curiam)..
Here, Luebano pleads temporal proximity that is quite tight. Luebano
took her FMLA leave in June 2020, which means the statutorily protected
period of that leave expired in September 2020. And while Luebano was not
formally terminated until January 2021, Office Depot began advertising a
vacancy for her position as early as October 4, 2020. In November 2020, she
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was essentially warned that she was being terminated. In early January 2021,
it became official. Based on this alleged timeline, and in light of the fact-
intensive nature of the causation question, Luebano has sufficiently alleged a
causal link between her statutorily protected leave and Office Depot’s
decision to fire her, such that her complaint should survive a 12(b)(6)
dismissal. Consequently, the district court erred because Luebano’s
complaint plausibly establishes the elements of her FMLA retaliation cause
of action.
IV
For the reasons above, the district court correctly dismissed
Luebano’s FMLA interference claim. But it erred in dismissing Luebano’s
ADA and FMLA retaliation claims. And because federal claims remain, the
district court erred in dismissing Luebano’s state law causes of action. Thus,
we AFFIRM in part and REVERSE in part the district court’s order
granting the motion to dismiss. Consequently, we VACATE the district
court’s order on the motion to reopen. Finally, we REMAND to the district
court for further proceedings consistent with this opinion.
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