Wiggins v. Texas Department of Family and Protective Services

MEMORANDUM OPINION AND ORDER – PAGE 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAMOTTA WIGGINS, 	§
§
Plaintiff, 	§
§
v. 	§ 	Civil Action No. 3:25-CV-1002-N
§
TEXAS DPT. OF FAMILY AND 	§
PROTECTIVE SERVICES, et al. 	§
§
Defendants. 	§
MEMORANDUM OPINION AND ORDER
This Order addresses Defendant Texas Department of Family and Protective
Services’s (“DFPS”) motion to dismiss [7], motion to be exempt from initial discovery
protocols [12], and motion to stay proceedings pending dismissal [14]. Because Plaintiff
Samotta Wiggins has failed to state a claim upon which relief can be granted against DFPS,
the Court grants DFPS’s motion to dismiss. Furthermore, the Court grants Wiggins leave
to amend some of her claims to identify fictitious defendants, while dismissing the
remaining federal claims against all defendants. 	Lastly, the Court dismisses Wiggins’s
state law claims without prejudice. Accordingly, the Court denies the motions to be exempt
and to stay as moot.
I. O RIGINS OF THE M OTIONS
This case arises from Wiggins’s employment with DFPS. 	Wiggins alleges that,
while employed by the department, DFPS unlawfully discriminated against her, failed to
accommodate her disability, and retaliated against her after she took leave in accordance
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MEMORANDUM OPINION AND ORDER – PAGE 2
with the Family and Medical Leave Act (“FMLA”). Pl.’s Compl. ¶¶ 10–25 [1]. 1 Wiggins
is African American and has an FMLA approved serious medical condition. Id. ¶ 12. She
was a caseworker for seven years and consistently earned favorable performance reviews.
Id. ¶ 10.
However, beginning in 2022, Wiggins claims she suffered emotional, financial, and
reputational harm as a result of DFPS’s unlawful actions. Id. ¶ 16. Wiggins asserts twenty-
six claims under Title VII, ADEA, ADA, FMLA, the Rehabilitation Act (“RA”), the Texas
Commission on Human Rights Act (“TCHRA”), the Sabine Pilot exception, the Texas
Family Code, the Texas Whistleblower Act, and tort law for intentional infliction of
emotional distress (“IIED”). See generally Pl.’s Compl.
Wiggins alleges four bases for her claims. 	First, in October 2022 and February
2023, Wiggins made verbal and written requests related to medical appointments and
scheduling adjustments for her disability. Id. ¶ 14. However, DFPS failed to accommodate
her. 	Id. 	Instead, DFPS ignored her accommodation efforts, and therefore, and did not
engage in an interactive process. Id. ¶ 44. Second, in February of 2023, Wiggins refused
to falsify government records — an illegal act. Id. ¶ 15–17. After an unknown amount of
time, DFPS escalated its hostility by abruptly removing her caseload, manipulating her
timesheets, excluding her from monthly performance conferences, and heightening her
surveillance. 	Id. ¶ 60. 	Third, in June of 2023, Wiggins was reassigned to a young, all-
white team with supervisors that had a well-known pattern of bias against Black
1 For purposes of this Order, the Court accepts Wiggins’s well-pleaded allegations as true.
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MEMORANDUM OPINION AND ORDER – PAGE 3
employees. 	Id. ¶ 18–21. 	While on this team, Wiggins was denied mandatory monthly
performance conferences, tasked with late-night field visits, and had an excessively high
case load. 	Id. 	Finally, Wiggins alleges that DFPS did not follow its normal termination
procedure. 	Wiggins claims that in April of 2023, DFPS issued a Disciplinary Action
Notice (“DAN”) based on a false write up. Id. ¶ 23. Wiggins filed a timely rebuttal. Id.
¶ 24. However, DFPS terminated her in August of 2023, incorrectly citing that she did not
respond to the DAN. Id.
DFPS now moves to dismiss all Plaintiffs’ claims.
II. R ULE 12(B )(6) L EGAL S TANDARD
When deciding a Rule 12(b)(6) motion to dismiss, a court must determine whether
the plaintiff has asserted a legally sufficient claim for relief. Blackburn v. City of Marshall,
42 F.3d 925, 931 (5th Cir. 1995). A viable complaint must include “enough facts to state
a claim to relief that is plausible on its face.” 	Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). To meet this “facial plausibility” standard, a plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A court generally accepts well-pleaded facts as true and construes the complaint in
the light most favorable to the plaintiff. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th
Cir. 2012). But a plaintiff must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” 	Twombly, 550 U.S. at 555.
“Factual allegations must be enough to raise a right to relief above the speculative level
. . . on the assumption that all the allegations in the complaint are true (even if doubtful in
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MEMORANDUM OPINION AND ORDER – PAGE 4
fact).” Id. (citations omitted). In ruling on a Rule 12(b)(6) motion, a court generally limits
its review to the face of the pleadings, accepting as true all well-pleaded facts and viewing
them in the light most favorable to the plaintiff. 	See Spivey v. Robertson, 197 F.3d 772,
774 (5th Cir. 1999).
III. WIGGINS F AILS TO S TATE A P LAUSIBLE T ITLE VII C LAIM
Title VII makes it unlawful “to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).
To state a claim for discrimination under Title VII, a plaintiff must plead that she:
“(1) is a member of a protected class; (2) was qualified for the position; (3) was subject to
an adverse employment action; and (4) was replaced by someone outside the protected
class, or in the case of disparate treatment, shows that other similarly situated employees
were treated more favorably.” 	Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.
2004). At the motion to dismiss stage, “a plaintiff need not submit evidence to establish
the prima facie case for discrimination.” 	Davis v. Tex. Health & Hum. Servs. Comm’n,
761 F. App’x 451, 454 (5th Cir. 2019) (unpub. per curiam) (citing Chhim v. Univ. of Tex.,
836 F.3d 467, 470 (5th Cir. 2016) (per curiam)).
Wiggins has not sufficiently alleged similarities to her comparators. 	Wiggins
alleges 	that 	she 	was 	“treated 	less 	favorably 	than 	similarly 	situated 	non-minority
coworkers,” because “[u]nlike her white and younger colleagues” she was “excluded from
mandatory monthly performance conferences,” “white coworkers who failed to complete
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MEMORANDUM OPINION AND ORDER – PAGE 5
assignments or made substantial errors were not disciplined or scrutinized in the same
way,” and “white employees were reassigned from [DFPS cases for] far less egregious
circumstances.” Pl.’s Compl. ¶¶ 29–31. But these allegations are insufficient.
For comparators to share “nearly identical circumstances” with Wiggins, she must
show that the comparators “held the same job or responsibilities, shared the same
supervisor or had their employment status determined by the same person, and have
essentially comparable violation histories.” 	Lee v. Ks. City So. Rwy. Co., 574 F.3d 253,
260 (5th Cir. 2009). 	The complaint provides no details about the alleged comparators’
positions, responsibilities, supervisors, or disciplinary histories.
As such, the Court cannot infer that these non-African American employees shared
“nearly identical circumstances” with Wiggins. 	See Hendrix v. iQor Inc., 2021 WL
3040776, at *5 (N.D. Tex. 2021) (describing plaintiff’s allegations that did “not identify
particular employees or describe specific situations involving similarly situated non-
African American employees” as “too conclusory”), rec. adopted as modified, 2021 WL
3036949 (N.D. Tex. 2021); see also Lewis v. City of Dallas, 2016 WL 11474104, at *4
(N.D. Tex. 2016) (“A bare-bones allegation that the [Defendant] treated [Plaintiff] less
favorably than similarly situated nonblack employees will not suffice.”). Accordingly, the
Court grants DFPS’s motion to dismiss Wiggins’s Title VII discrimination claims.
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MEMORANDUM OPINION AND ORDER – PAGE 6
IV. WIGGINS D OES NOT S TATE A P LAUSIBLE
T ITLE VII R ETALIATION C LAIM A GAINST DFPS
Furthermore, Wiggins cannot establish a claim for retaliation.2 To state a claim for
retaliation in violation of Title VII, a plaintiff must allege that “(1) he participated in an
activity protected by Title VII; (2) his employer took an adverse employment action against
him; and (3) a causal connection exists between the protected activity and the adverse
employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007)
(citations omitted). Protected activity under Title VII can take one of two broader forms:
(1) opposing an unlawful employment practice; or (2) making a charge, testifying,
assisting, or participating in a Title VII investigation, proceeding, or hearing. 	Byers v.
Dallas Morning News, 209 F.3d 419, 427–28 (5th Cir. 2000). The Court addresses each
type in turn.
A. Wiggins Did Not Allege an Unlawful Employment Practice
“Protected activity is defined as opposition to any practice rendered unlawful by
Title VII . . . .” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (internal
quotation marks omitted). 	Wiggins alleges she participated in three types of protected
activity. However, her pleadings are “replete with conclusory, vague, and immaterial facts
2 Wiggins does not allege that she filed an EEOC claim for retaliation. However, the
Court can properly hear this claim because Wiggins exhausted her Title VII
administrative remedies. “[I]t is unnecessary for a plaintiff to exhaust administrative
remedies prior to urging a retaliation claim growing out of an earlier charge; the district
court has ancillary jurisdiction to hear such a claim when it grows out of an
administrative charge that is properly before the court.” Gupta v. E. Tex. State Univ., 654
F.2d 411, 414 (5th Cir. 1981).
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MEMORANDUM OPINION AND ORDER – PAGE 7
not obviously connected to any particular cause of action.” Weiland v. Palm Beach Cnty.
Sheriff’s Off., 792 F.3d 1313, 1322 (11th Cir. 2015).
First, Wiggins alleges that she submitted requests for reasonable accommodations
under the ADA. Title VII, however, only covers race, religion, color, or national origin.
Thus, these requests are not protected activity for this claim.
Second, Wiggins alleges she “reported unethical and discriminatory conduct
internally.” 	Pl.’s Compl. ¶ 60. 	However, Wiggins does not specify when she made the
reports, or, more importantly, what kind of discrimination she alleged occurred. 	As
explained above, Title VII does not cover all types of discrimination. Without more, the
allegations are insufficient to state a retaliation claim. 	See Anderson v. Dist. Bd. of Trs.,
77 F.3d 364, 367 (11th Cir. 1996) (explaining that courts need not “sift[] through myriad
claims, many of which may be foreclosed by various defenses”) (internal citation omitted).
Thus, a broad conclusory statement that Wiggins reported discrimination, even if accepted
as true, does not survive a motion to dismiss.
Finally, Wiggins indicated she was discharged for failing to falsify government
documents. However, she made no allegation that those documents were connected to a
Title VII investigation or that her failure to falsify was an activity protected by Title VII.
Pl.’s Compl. ¶¶ 15–17, 60; see Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831
(5th Cir. 2010) (unpub.).
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MEMORANDUM OPINION AND ORDER – PAGE 8
Causes of action alleged using a “shotgun” approach3 typically lack substantive
plausibility, as opposed to the “short and plain statement” requirement contemplated by
Federal Rule of Civil Procedure 8. See Roe v. Johnson Cnty., 2019 WL 5031357, at *4–5
(N.D. Tex. 2019) (internal citation omitted)); see also S. Leasing Partners, Ltd. 801 F.2d
at 788–89. Doing so makes it “virtually impossible to know which allegations of fact are
intended to support which claim(s) for relief.” Anderson, 77 F.3d at 366. Because of the
gaps in factual allegations to support Wiggins’s numerous claims, Wiggins has not
plausibly stated that she participated in the first type of protected activity.4
B. Wiggins Did Not Allege Retaliation Because of a Title VII Proceeding
Wiggins did not engage in protected activity until after her termination. 	Wiggins
filed a charge with the EEOC on February 11, 2024, but DFPS terminated her from her
position on August 23, 2023. Pl.’s Compl. ¶¶ 22, 26. Thus, because the alleged retaliation
occurred after the charge, Wiggins’s termination could not have been based on her
protected activity. Accordingly, the Court dismisses Wiggins’s Title VII retaliation claim.
3 The Fifth Circuit previously denounced what it has referred to as the “‘shotgun approach’
to pleadings, . . . where the pleader heedlessly throws a little bit of everything into his
complaint in the hopes that something will stick,” and it has explained that this pleading
approach may be sanctionable in certain circumstances under Federal Rule of Civil
Procedure 11. 	S. Leasing Partners, Ltd. v. McMullan, 801 F.2d 783, 788–89 (5th Cir.
1986), abrogated on other grounds by Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d
1018, 1023–24 (5th Cir. 1994).
4 Assuming Wiggins participated in protected activity, she also fails to establish a causal
connection. Wiggins’s claims fail to state within how many “weeks” of the activity
DFPS retaliated. Instead, Wiggins lists various retaliatory actions with no clear timeline.
Even piecing activity from other claims together in her favor, there are gaps of four
months or more between events. This is not enough to sustain her claim. Besser v. Tex.
Gen. Land Off., 834 F. App’x 876, 885 (5th Cir. 2020) (unpub.) (holding that, alone, a
proximity of two and a half months is insufficient to show cause).
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MEMORANDUM OPINION AND ORDER – PAGE 9
IV. W IGGINS F AILS TO S TATE A P LAUSIBLE S ECTION 1981 C LAIM
Section 1981 of the Civil Rights Act of 1866 protects the right to make and enforce
contracts. 42 U.S.C. § 1981. “Section 1981 claims are analyzed under the same framework
as Title VII claims.” Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 260 (5th
Cir. 2007) (citing Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004). For
the reasons set forth in section III, supra, the Court grants DFPS’s motion to dismiss
Wiggins’s claims under section 1981.
V. WIGGINS F AILS TO P LEAD A PLAUSIBLE R EHABILITATION A CT C LAIM
Plaintiffs are permitted to plead both a rehabilitation claim, and other discrimination
claims while still properly alleging the defendant discriminated against her “solely” by
reason of her disability. “A party may state as many separate claims or defenses as it has,
regardless of consistency.” 	FED. R. C IV. P. 8(d)(3); see Robertson v. Bell Helicopter
Textron, 32 F.3d 948, 952–53 (5th Cir. 1994) (“Although parties are barred from
recovering damages based on mutually exclusive theories . . . , parties can properly plead
alternative, inconsistent theories of liability and can properly argue alternative claims to
the jury.”). 	Thus, Wiggins may plead discrimination on multiple grounds in addition to
her RA claim.
To prevail on RA discrimination claims under section 794(a), a plaintiff must show
“(1) she is an individual with a disability; (2) who is otherwise qualified; (3) who worked
for a program or activity receiving Federal financial assistance; and (4) that she was
discriminated against solely by reason of her disability.” Houston v. Tex. Dep’t of Agric.,
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MEMORANDUM OPINION AND ORDER – PAGE 10
17 F.4th 576, 585–86 (5th Cir. 2021) (quotation marks omitted) (quoting Hileman v. City
of Dallas, 115 F.3d 352, 353 (5th Cir. 1997)).
Wiggins 	seemingly 	brings 	both 	a 	failure-to-accommodate 	claim 	and 	a
discrimination claim under the RA. See Pl.’s Compl. ¶¶ 157–60. The RA’s “sole-causation
requirement applies only in certain contexts. 	It applies to discrimination claims under
Section 794(a), but not to retaliation claims or failure-to-accommodate claims. . . . For
failure-to-accommodate claims, ‘the cause of that failure is irrelevant.’” Harmon v. Collier,
158 F.4th 595, 608–09 (5th Cir. 2025) (citing Bennett-Nelson v. La. Bd. of Regents, 431
F.3d 448, 454–55 (5th Cir. 2005)). 	Thus, Wiggins can consistently plead both claims in
the form of an RA discrimination claim in the alternative to a failure-to-accommodate
claim.
RA and ADA are judged under the same legal standards, and the same remedies are
available under both Acts. See Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.
2002). Likewise, the relevant definition of disability set forth in the ADA is applicable to
claims made under the RA.” See Kemp v. Holder, 610 F.3d 231, 234–35 (5th Cir. 2010)
(citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 n. 4 (5th Cir. 1995)). Thus, an
individual with a disability is any person who (1) has a physical or mental impairment that
“substantially limits one or more of such person’s major life activities”; (2) has a “record”
of such an impairment; or (3) is “regarded” as having such an impairment. 	29 C.F.R. §
1630.2(l).
Wiggins’s allegations about her disability are limited to conclusory statements and
descriptions such as “Wiggins was a qualified individual with a disability as defined by the
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MEMORANDUM OPINION AND ORDER – PAGE 11
[ADA],” she “suffered from a medical condition that substantially limited one or more
major life activities,” and had an “ongoing” or “serious medical condition. 5
” Pl.’s Compl.
¶¶ 12, 43. Conclusory allegations, without facts to support them, are not accepted as true
for the purposes of deciding a motion to dismiss. Ferrer v. Chevron Corp., 484 F.3d 776,
780 (5th Cir. 2007). 	Accordingly, the Court dismisses both Wiggins’s RA failure-to-
accommodate claim and her alternative discrimination claim.
VI. T HE COURT L ACKS S UBJECT M ATTER J URISDICTION
O VER THE R EMAINING F EDERAL C LAIMS A GAINST DFPS
Next, DFPS argues that Wiggins’s claims against it should be dismissed because it
is a state agency entitled to Eleventh Amendment immunity. Def.’s Mot. 1–4. The Court
agrees. “Sovereign immunity is jurisdictional.” 	Cozzo v. Tangipahoa Par. Council, 279
F.3d 273, 280 (5th Cir. 2002). The “Eleventh Amendment bars suit against a state or ‘state
entity . . . regardless of whether money damages or injunctive relief is sought’ and section
1983 does not override the Eleventh Amendment.” 	Briggs v. Mississippi, 331 F.3d 499,
503 (5th Cir. 2003) (quoting Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th
Cir. 1986)). State sovereign immunity “extends to any state agency or entity deemed an
‘alter ego’ or ‘arm’ of the state.” Union Pac. R.R. v. La. Pub. Serv. Comm’n, 662 F.3d 336,
5 Even if the Court were to assume all well-pleaded facts as true, having a serious
medical condition is not the ADA or RA standard — it is an FMLA standard. Moreover,
a serious health condition is not enough. See Robinson v. Glob. Marine Drilling Co., 101
F.3d 35, 36 (5th Cir. 1996) (holding that plaintiff did not have an ADA claim merely
because he was diagnosed with asbestosis, a progressive and often fatal condition of the
lungs).
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340 n.3 (5th Cir. 2011) (quoting Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326
(5th Cir. 2002); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).
However, exceptions do exist: “A State may waive its sovereign immunity at its
pleasure, and in some circumstances Congress may abrogate it by appropriate legislation.”
Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253 (2011) (footnote and citation
omitted). Because Wiggins offers different arguments for exceptions to immunity for her
various claims, the Court will analyze each separately.
A. DFPS is a State Agency and is Entitled to Sovereign Immunity
Here, DFPS is properly viewed as a state agency. See Harlan v. U.S. Dep’t of Health
& Hum. Servs., 359 F. App’x 458 (5th Cir. 2009) (unpub. per curiam); see also Macias v.
Dep’t of Fam. Servs., 2023 WL 8451217 (5th Cir. 2023) (unpub. per curiam). Thus, DFPS
is entitled to Eleventh Amendment immunity for ADEA, ADA, FMLA, and section 1983
and 1981 claims.
B. Sovereign immunity Bars Wiggins’s ADA claims
Wiggins does not specify what Title of ADA she is suing under, but states that DFPS
failed to accommodate her qualified disability. 	Pl.’s Compl. ¶¶ 43–48. 	Therefore, the
Court analyzes her claim as a Title I ADA claim. 	State immunity bars damage claims
under Title I of ADA, Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360–74 (2001).
Thus, the Court lacks subject matter jurisdiction over her Title I ADA claim against DFPS.
Wiggins’s ADA retaliation claim is also barred by sovereign immunity. 	“Title V
itself does not abrogate a state’s sovereign immunity. 	Instead, a plaintiff may bring a
retaliation claim against a state entity only to the extent that the underlying claim of
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MEMORANDUM OPINION AND ORDER – PAGE 13
discrimination effectively abrogates sovereign immunity of the particular state.” Because
Wiggins’s underlying Title I claim is barred by sovereign immunity, so is her Title V
retaliation claim. 	Block v. Tex. Bd. of L. Exam.’rs, 952 F.3d 613, 619 (5th Cir. 2020)
(internal citation omitted).
C. Sovereign Immunity Bars Wiggins’s ADEA claims
The ADEA does not validly abrogate Eleventh Amendment sovereign immunity,
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000), and Texas has not unequivocally
waived its immunity here. Sullivan v. Tex. A&M Univ. Sys., 986 F.3d 593, 597 (5th Cir.
2021) (citing Sullivan v. Univ. of Tex. Health Sci. Ctr. at Hou. Dental Branch, 217 F.
App’x. 391, 395 (5th Cir. 2007) (unpub.)).
Here, there is no indication that Texas has waived its sovereign immunity for federal
claims. 	Wiggins brings a violation claim and a retaliation claim under the ADEA.
Accordingly, because DFPS is entitled to Eleventh Amendment immunity, the Court lacks
subject matter jurisdiction of Wiggins’s ADEA claims.
D. Sovereign Immunity Bars Wiggins’s FMLA claim
DFPS is entitled to sovereign immunity for Wiggins’s FMLA claim. 	Wiggins
alleges that she experienced a serious medical condition and subsequently took approved
FMLA leave. Pl.’s Compl. ¶ 12. Therefore, Wiggins is bringing a claim under FMLA’s
self-care provision. 	See Coleman v. Ct. of Appeals of Md., 566 U.S. 30, 34 (2012) (“An
employee may take leave under the FMLA for . . . the employee’s own serious health
condition when the condition interferes with the employee’s ability to perform at work.”)
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However, Congress has not abrogated Texas’s sovereign immunity for self-care
FMLA leave. 	Id. at 37 (“Standing alone, the [FMLA] self-care provision is not a valid
abrogation of the States’ immunity from suit.”); see also Bryant v. Tex. Dep’t of Aging &
Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015) (holding that the district court did not
have jurisdiction over plaintiff’s interference or retaliation claims that fell under FMLA’s
self-care provision as the state agency employer enjoyed Eleventh Amendment from such
claims); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 202 (Tex. 2010) (Texas
cannot be sued under the FMLA’s self-care provision because Congress did not validly
abrogate the States’ immunity in enacting that section of the FMLA). Therefore, the Court
lacks jurisdiction over both Wiggins’s retaliation claim and wrongful termination claim.
E. Sovereign Immunity Bars Wiggins’s Section 1983 Claim
DFPS is immune from Wiggins’s suit under section 1983. Although section 1983
may be used to obtain relief against officers acting under color of state law, Wiggins has
also sued the agency itself. Pl.’s Compl. ¶¶ 150–53. Section 1983 does not override the
Eleventh Amendment, and a state agency retains its immunity from suit. Briggs, 331 F.3d
at 503. Thus, DFPS is immune from Wiggins’s section 1983 claim.
VII. T HE COURT G RANTS L EAVE TO A MEND THE J OHN D OE CLAIMS
Wiggins named “Does 1-25 Inclusive,” but not an individual state official, as a
defendant. 	Pl.’s Compl. ¶ 4. 	To fall within the Ex parte Young exception to sovereign
immunity, a plaintiff must name individual state officials as defendants in their official
capacities. See Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (citing Kentucky
v. Graham, 473 U.S. 159, 169 n.18, (1985)). 	Nevertheless, the Fifth Circuit permits the
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MEMORANDUM OPINION AND ORDER – PAGE 15
use of fictitious defendants. 	See Jacobsen v. Osborne, 133 F.2d 315, 320-21 (5th Cir.
1998). Thus, at this stage, the Court accepts that a John Doe could be a state official that
“by virtue of his office” has “some connection with the enforcement of the [challenged]
act.” City of Austin v. Paxton, 943 F.3d 993, 998 (5th Cir. 2019).
Fifth Circuit precedent holds that plaintiffs should be given the opportunity to
identify and name a defendant. 	See Colle v. Brazos Cnty., 981 F.2d 237, 243 (5th Cir.
1993). A complaint cannot lump defendants together or rely on abstract grievances. See
Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007). 	Wiggins’s must show that each
defendant, “through the official’s own individual actions,” violated her rights. Iqbal, 556
U.S. at 676. And she must do so with specificity. 	Backe v. LeBlanc, 691 F.3d 645, 648
(5th Cir. 2012).
The opportunity to amend is not futile. 	As applied here, Ex parte Young permits
reinstatement to a previous job position, a form of prospective relief, but not for Wiggins’s
suit for damages. 	Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 322 (5th Cir. 2008).
Accordingly, the Court dismisses Wiggins’s ADA, ADEA, FMLA, Title VII, and sections
1983 and 1981 claims against Does 1–25 without prejudice, and grants Wiggins leave to
amend to determine the identity of a defendant and name the appropriate state official(s).
VI. T HE COURT D ISMISSES THE T EXAS LABOR C ODE C LAIMS
Wiggins insufficiently alleges ten claims under Chapter 21 of the Texas Labor Code
(formerly known as “TCHRA”). 	See generally Pl.’s Comp. In counts 4, 15–17, and 21,
Wiggins alleges discrimination based on age, race, disability, color, national origin, and
sex. She further alleged retaliation for opposing discrimination and for participating in an
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MEMORANDUM OPINION AND ORDER – PAGE 16
EEOC proceedings in Counts 4, 9, 19, and 20. 	Finally, Count 10 alleges a hostile work
environment, and Count 18 alleges DFPS failure to accommodate her disability.
It is settled law that Chapter 21 of the Texas Labor Code waives Texas’ immunity
from suit only in state court, not in federal court. E.g., Sullivan, 986 F.3d at 599. Congress
has not abrogated Texas’ sovereign immunity under Chapter 21 and, as Wiggins concedes,
Texas has not consented to suit for Chapter 21 claims in federal court. 	Pl.’s Resp. ¶ 20.
Accordingly, the Court dismisses all ten of Wiggins’s Texas Labor Code claims without
prejudice.
VIII. T HE C OURT D ISMISSES THE R EMAINING S TATE L AW CLAIMS
A. Wiggins Does Not State a Plausible Texas Law and Public Policy Claim
Wiggins also brings a claim under “Texas Law and public policy,” citing the Sabine
Pilot exception to at-will employment, Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733
(Tex. 1985), and section 261.110 of the Texas Family Code. 	However, Wiggins fails to
adequately brief why her claims under either legal theory should not be dismissed. 	“A
party who inadequately briefs an issue is considered to have abandoned the claim.” Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
Regardless, the Sabine Pilot exception does not supersede DFPS’s sovereign
immunity. 	Carroll v. Black, 938 S.W.2d 134 (Tex. App. — Waco 1996, pet. denied).
Thus, “without legislative consent or statutory exception to sovereign immunity, Sabine
Pilot cannot be read to overcome the immunity otherwise enjoyed by a public entity.”
Cleveland v. City of Elmendorf, 2003 WL 1571724, at *1 (W.D. Tex. 2003) (collecting
cases).
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Additionally, in Texas a “statute shall not be construed as a waiver of sovereign
immunity unless the waiver is effected by clear and unambiguous language.” TEX. G OV’T
C ODE § 311.034. 	The Texas Family Code does not contain a waiver of the Texas’s
sovereign immunity for alleged violations of the Family Code in federal court. 	Thus,
Texas’s sovereign immunity has not been waived or abrogated, and the Eleventh
Amendment bars Wiggins’s public policy claims. See Jones v. Sicking, 2023 WL 7006802,
at *3 (W.D. Tex. 2023), rec. adopted by, 2023 WL 7005000 (W.D. Tex. 2023); see also
Hernandez v. Tex. Dep’t of Hum. Servs., 91 F. App’x 934 (5th Cir. 2004) (unpub.).
B. Wiggins Does Not State a Plausible IIED Claim
The Texas Tort Claims Act (“TTCA”) bars Wiggins from bringing an intentional
infliction of emotional distress (“IIED”) claim against DFPS. Pl.’s Compl. ¶¶ 120–126.
DFPS’s immunity is subject to TTCA. TTCA is a limited waiver of governmental
immunity in certain circumstances but “does not apply to claims arising out of an
intentional tort.” Goodman v. Harris Cnty., 571 F.3d 388, 394 (5th Cir. 2009) (citing T EX.
C IV. P RAC . & R EM . C ODE § 101.057(2)). IIED is an intentional tort, therefore, DFPS has
not waived its immunity to Wiggins’s IIED claim on this basis. 	See Standard Fruit &
Vegetable Co. v. Johnson, 985 S.W.2d 62, 65–67 (Tex. 1998). The Court concludes that
Wiggins’s IIED claim does not fall within the limited waiver of governmental immunity
embodied in TTCA and dismisses the IIED claim against DFPS.
C. Wiggins Does Not State a Plausible Texas Whistleblower Act Claim
Finally, the Court dismisses Wiggins claim under the Texas Whistleblower Act.
Pl.’s Compl. ¶¶ 161–164. DFPS is entitled to sovereign immunity for two reasons. First,
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MEMORANDUM OPINION AND ORDER – PAGE 18
DFPS 	has 	not 	waived 	sovereign 	immunity 	in 	federal 	court. 	Second, 	the 	Texas
Whistleblower Act’s waiver of sovereign immunity only applies in Texas state court.
Perez, 307 F.3d at 333 (citing T EX. G OV’T C ODE A NN. § 554.0035 (Vernon 1994 & Supp.
2002)); see also Martinez v. Tex. Dep’t of Crim. Just., 300 F.3d, 567, 575–77 (5th Cir.
2002).
Even if DFPS was not immune, Wiggins does not allege what she reported or to
whom. Pl.’s Compl. ¶¶ 161–64. Instead, Wiggins realleges all preceding paragraphs for
the last twenty-five claims and then pleads conclusory statements. Id. This is insufficient
to sustain her claims. Thus, the Court dismisses Wiggins’s Texas Whistleblower Act claim
without prejudice.
C ONCLUSION
For the foregoing reasons, the Court grants DFPS’s motion and dismisses all of
Wiggins’s claims. The Court grants Wiggins leave to amend her Title VII discrimination
and retaliation claims, section 1981 claim, and RA claim. 	The Court additionally grants
Wiggins leave to amend her ADA, ADEA, FMLA, and sections 1983 and 1981 claims to
identify and name the appropriate state official defendants. 	If Wiggins does not file an
amended claim within 30 days, the Court will dismiss Wiggins’s claims with prejudice.
Accordingly, the Court denies DFPS’s motion to be exempt from discovery protocols and
to stay proceedings as moot.
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MEMORANDUM OPINION AND ORDER – PAGE 19
Signed February 4, 2026.
___________________________
David C. Godbey
Senior United States District Judge
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