Mendez v. Topeka, Kansas, City of et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBBY MENDEZ,
Plaintiff,
v. 	Case No. 25-4065-JWB
CITY OF TOPEKA, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on Defendants’ motion to dismiss and Plaintiff’s motion to
supplement. (Docs. 20, 24.) The motions have been fully briefed and are ripe for decision. (Docs.
22, 23, 26, 27.) 	The motion to dismiss is GRANTED IN PART and DENIED IN PART and
Plaintiff’s motion to supplement is DENIED for the reasons stated herein.
I. 	Facts
The facts set forth herein are taken from the amended complaint. (Doc. 18.) Plaintiff was
employed by Defendant City of Topeka, Kanas (“the City”) in the Water Distribution Division.
Plaintiff began his employment with the City in 2018. On August 23, 2023, Plaintiff applied for
leave under the Family Medical Leave Act (“FMLA”) for the birth of his child. (Id. ¶ 9.) Plaintiff
took six weeks of approved FMLA leave and was also granted intermittent FMLA leave up until
July 1, 2024. After returning from his initial leave, Plaintiff received management approval for
intermittent leave but he often had to cancel the leave because management failed to provide
coverage. (Id. ¶ 10A.) After his return in October 2023, Plaintiff’s supervisor scrutinized his use
of leave, undermined his assignments, and made demeaning or hostile remarks toward him. 	In
January 2024, Plaintiff filed an internal complaint against management for FMLA interference and
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 1 of 14

2
harassment. In March 2024, the complaint was substantiated and a manager was disciplined. (Id.
¶ 12.) The investigation was conducted by Defendant Alicia Chavez, the City Investigator. (Doc.
1-3.)1 In April 2024, “management accused Plaintiff of theft that allegedly occurred in September
2023 and also made allegations of forgery.” (Doc. 18 ¶ 14.) These allegations were investigated
by the Topeka Police Department and were not substantiated. 	No other employees were
investigated. 	Between April and July 2024, Plaintiff was falsely accused of additional rule
violations. 	In June 2024, both Plaintiff and Pete Vobach made allegations of violations of the
City’s Professional Integrity and Harassment policy. 	(Doc. 1-15 at 2.) 	Defendant Chavez was
assigned to investigate this matter. Although Plaintiff requested a union representative, Chavez
denied the request. (Doc. 18 ¶ 15A.) Chavez’s letter to Plaintiff indicated that she believed that
he had withdrawn his union membership at the time and, as a result, would not have access to a
union representative. (Doc. 1-15 at 2.) Chavez told Plaintiff that if this was incorrect he could
request union representation. (Id.)
On July 1, 2024, Plaintiff was placed on administrative leave. The City advised Plaintiff
that he was on leave because he was involved in an altercation where he shoved another co-worker.
(Doc. 1-6 at 18.) Plaintiff’s description of the events stated that the co-worker verbally attacked
him and then bumped him in his chest. (Id. at 3.) Plaintiff “pushed him away” after he did this.
(Id. at 4.) The investigation into the altercation was conducted by Defendant Chavez. On August
26, 2024, Plaintiff submitted an internal complaint of continued FMLA retaliation. 	(Id. at 1.)
Plaintiff named Defendant Sylvia Davis, Director of Utilities, as the individual who was taking
retaliatory actions. Plaintiff’s complaint was not investigated. On September 3, a pre-termination
1 The court may consider documents filed contemporaneously with Plaintiff’s complaint without converting the
motion to one for summary judgment as the parties do not dispute the authenticity of the exhibits. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009).
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 2 of 14

3
hearing was held. 	Pamela Foster, the Director of Human Resources at the time, conducted the
hearing. On October 18, she issued findings and rejected Davis’s recommendation to terminate
Plaintiff. Foster stated that she was sending “this matter back to management to determine a non-
termination resolution.” (Doc. 1-7 at 2.) Plaintiff was not immediately reinstated.
During his leave, Plaintiff was denied his retirement contributions and the ability to earn
overtime. Ultimately, Davis imposed a five-day unpaid suspension from March 17 through March
21, 2025. (Doc. 1-8 at 2.) On March 24, 2025, Plaintiff was allowed to return to work. The next
day, Plaintiff was again accused of rule violations and placed on leave. According to the City’s
notice to Plaintiff, the City stated that it was investigating a report that Plaintiff had a heated verbal
exchange with Cole Engle on March 25. (Doc. 1-9 at 2.) After her investigation, Chavez found
that Plaintiff poured bleach in another employee’s locker which violated workplace policies. (Doc.
1-10 at 2.) Plaintiff alleges that he had exculpatory video evidence that he was not involved in the
incident because another employee entered the locker room after he did.2 An exhibit to Plaintiff’s
original complaint, however, makes clear that Chavez reviewed the video footage. (Doc. 1-10.)
Plaintiff also had a witness who had information regarding the allegations but asserts that Chavez
failed to follow up with this information. (Doc. 18 ¶ 24.) On April 18, a second pre-termination
hearing was conducted by Foster. Three days later and prior to issuing a decision, Foster resigned.
On May 24, Plaintiff was terminated. Defendant Robert Perez, the City Manager, approved the
termination recommendation after reviewing all of the hearing evidence. (Id. ¶ 26; Doc. 1-12.)
After his termination, Plaintiff attempted to pursue a grievance through the union but was
told that he did not have standing to pursue the grievance. 	Plaintiff filed this action on July 2,
2 Plaintiff alleges that Chavez falsely concluded that he was the only one to enter the locker room during the time
period. (Doc. 18 ¶ 23A.) This contradicts Plaintiff’s exhibit attached to his original complaint which clearly states
that Chavez reviewed the footage and identified the time periods that all individuals entered and exited the locker
room. (Doc. 1-10 at 3.)
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 3 of 14

4
2025. (Doc. 1.) Plaintiff asserts claims of FMLA retaliation, FMLA interference, and a violation
of due process against the City, Chavez, Davis, and Perez. 	Defendants move to dismiss on the
basis that Plaintiff’s amended complaint fails to state a claim. 	(Doc. 20.) 	The individual
Defendants also assert that they are entitled to qualified immunity.
After the motion to dismiss was fully briefed, Plaintiff filed a motion to file a supplemental
complaint. 	(Doc. 24.) 	Plaintiff seeks leave to add facts concerning conduct that was allegedly
undertaken by Chavez in a different employment matter involving the City’s police department
and is currently being litigated in this district, Cross v. City of Topeka, Case No. 24-4092. (Doc.
24-1.) 	Based on Plaintiff’s motion, it is clear that Plaintiff has no personal knowledge of these
allegations but seeks to adopt them as facts in his own complaint. Notably, the Cross matter is
currently pending and there has not been a final adjudication. Plaintiff’s motion is denied as it is
clear that he merely seeks to adopt facts that have been alleged in an ongoing matter and of which
he lacks personal knowledge.
II. 	Standard
Because Plaintiff is proceeding pro se, the court is to liberally construe his filings. United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). However, liberally construing filings does
not mean supplying additional factual allegations or constructing a legal theory on Plaintiff’s
behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). In order to withstand
a motion to dismiss for failure to state a claim, a complaint must contain enough allegations of fact
to state a claim for relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247
(10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).
All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the
light most favorable to Plaintiff. 	Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008).
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 4 of 14

5
Conclusory allegations, however, have no bearing upon the court’s consideration. Shero v. City
of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
III. 	Analysis
A. FMLA Retaliation
The FMLA provides that a qualifying employee is entitled to “take up to twelve weeks of
unpaid leave, without fear of termination.” Smothers v. Solvay Chemicals, Inc., 740 F.3d 530, 539
(10th Cir. 2014). It is a violation of the FMLA to retaliate against an employee who takes FMLA
leave. Id. at 539–40 (citing 29 U.S.C. § 2615(a)(2); Khalik v. United Air Lines, 671 F.3d 1188,
1193 (10th Cir. 2012)). To establish a case of retaliation, Plaintiff must show (1) he “engaged in
a protected activity;” (2) Defendants took materially adverse action(s) against him; and (3) the
“circumstances permit an inference of causal connection between the action and the FMLA leave,
in this case based on temporal proximity.” Id.
Here, Defendants argue for dismissal on the basis that the only materially adverse action
taken by the City was termination and the termination was too far removed from his protected
activity of FMLA leave. 	In response, Plaintiff asserts that the adverse actions included false
accusations of workplace violations, placement on administrative leave, denial of a union
representative, biased investigations, and his termination.
Turning to the elements, it is clear that Plaintiff engaged in protected activity. He was on
FMLA leave until October 2023 and then took intermittent FMLA leave up until June 2024.
Plaintiff also filed an internal complaint of FMLA retaliation in January 2024 and that complaint
was found to be substantiated in March 2024. Plaintiff also submitted another complaint of FMLA
retaliation on August 26. The court finds that all of these actions constitute protected activity. See
id. (holding that protected activity includes taking FMLA leave); Austin v. Jostens, Inc., 2008 WL
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 5 of 14

6
4642277, at *11 (D. Kan. Oct. 16, 2008) (discussing that protected FMLA activity includes
informal complaints) (citing Jeseritz v. Potter, 282 F.3d 542, 548 (8th Cir. 2002)).
Next, Plaintiff asserts that the adverse actions include false accusations of workplace
violations, 	placement 	on 	administrative 	leave, 	denial 	of 	a 	union 	representative, 	biased
investigations, and his termination. For an employment action to be materially adverse, it must be
severe enough that it could “dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). “A
strong indicator that a challenged employment action is adverse is that the action causes harm to
future employment prospects.” 	Braxton v. Nortek Air Sols., LLC, 769 F. App’x 600, 605 (10th
Cir. 2019). Here, Plaintiff alleges that he was falsely accused of crimes in April 2024 which was
investigated by the police. This satisfies a materially adverse action at this stage of the proceeding
as a criminal investigation could cause harm to future employment and carries a risk of damage to
reputation. See Annett v. Univ. of Kansas, 371 F.3d 1233, 1239 (10th Cir. 2004). Next, Plaintiff
asserts that his placement on administrative leave was a materially adverse action because he lost
money on overtime and retirement contributions. 	Because the administrative leave allegedly
impacted Plaintiff financially, he has plausibly alleged a materially adverse action. 	Plaintiff’s
allegations concerning the denial of a union representative and biased investigations do not rise to
the level of an adverse action. Finally, his termination is clearly an adverse action.
This leaves the court with the question of whether these three adverse actions were causally
related to his protected activity. 	The court may infer causation when there is a close temporal
proximity between the protected activity and the adverse action. 	See e.g., Ward v. Jewell, 772
F.3d 1199, 1203 (10th Cir. 2014) (“If the protected conduct is closely followed by the adverse
action, courts have often inferred a causal connection.”); Anderson v. Coors Brewing Co., 181 F.3d
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 6 of 14

7
1171, 1179 (10th Cir. 1999) (noting that a three-month period is insufficient to establish causation).
If there is not a close temporal proximity, a plaintiff needs to allege additional evidence to establish
causation. Id.
Defendants’ motion asserts that there is no temporal proximity because the time period at
issue is the date of his first FMLA leave to his termination, which is more than one year. (Doc. 20
at 6.) 	Contrary to Defendants’ assertions, however, the court found that Plaintiff engaged in
protected activity on multiple occasions. The court also determined that Plaintiff suffered three
different adverse actions. 	Given the clear overlap of the protected activity and alleged adverse
actions, the court finds that Plaintiff has plausibly alleged causation at this stage of the proceedings.
Therefore, the motion to dismiss this claim against the City is denied. 	The court will
address the liability of the individual Defendants infra.
B. FMLA Interference
Next, Defendants seek to dismiss Plaintiff’s claim of FMLA interference. 	The FMLA
provides that eligible employees of covered employers may have up to twelve weeks of unpaid
leave for serious health conditions and be reinstated to a former position or an equivalent one upon
return from leave. 	29 U.S.C. §§ 2612(a)(1), 2614(a). 	Under the FMLA, an employer may not
“interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under
[the FMLA].” 	Id. § 2615(a)(1). 	To prevail on a claim based on an interference or entitlement
theory, Plaintiff must demonstrate: “(1) that he was entitled to FMLA leave, (2) that some adverse
action by the employer interfered with his right to take FMLA leave, and (3) that the employer’s
action was related to the exercise or attempted exercise of his FMLA rights.” 	Jones v. Denver
Public Schools, 427 F.3d 1315, 1319 (10th Cir. 2005). The first element is not in dispute here.
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 7 of 14

8
Defendants move to dismiss this count on the basis that Plaintiff has not plausibly alleged
interference with FMLA leave. Defendants assert that Plaintiff was granted leave and he used his
leave with management approval. Defendants argue that Plaintiff unilaterally canceled his leave
after it was approved. In response, Plaintiff argues that Defendants discouraged and hindered his
leave and failed to reinstate him after his leave. In support, Plaintiff cites to Tenth Circuit authority
that interference occurs when an employer discourages or restrains protected leave. (Doc. 22 at
7.) While those cases do discuss FMLA interference, they do not stand for the proposition that the
discouragement of leave as opposed to an outright denial is sufficient for an adverse action.3
Rather, to satisfy the second element, “the employee must show that [he] was prevented from
taking the full 12 weeks[ ] of leave guaranteed by the FMLA, denied reinstatement following leave,
or denied initial permission to take leave.” Dalpiaz v. Carbon Cnty., Utah, 760 F.3d 1126, 1132
(10th Cir. 2014). 	Plaintiff has not alleged that he was prevented from taking leave or denied
permission to take leave. Rather, he alleged that he did not take approved leave because he did
not believe that the City was going to provide coverage for his absence. This allegation does not
plausibly allege an adverse action by the City.
Plaintiff also asserts that he was denied reinstatement upon leave. Plaintiff’s allegations,
however, do not support such a finding. Rather, Plaintiff was back at work after his leave when
he was placed on administrative leave and he had also returned to work prior to his termination.
Therefore, Plaintiff has not plausibly alleged that Defendants interfered with his right to take
FMLA leave. Defendants’ motion to dismiss this claim is granted.
3 The court notes that Defendants take the position that Plaintiff’s brief was drafted with the assistance of artificial
intelligence (“AI”) and ask the court to require Plaintiff to disclose whether he utilized an AI program and then certify
compliance with this court’s local rules and the Federal Rules of Civil Procedure. Those rules, however, do not impose
any additional compliance in the event a party utilized AI to draft a brief. This court, however, admonishes Plaintiff
to verify all statements and case citations in any AI created brief. 	Should Plaintiff file a brief with inaccurate
statements or case citations, Plaintiff could be subject to sanctions under Rule 11.
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 8 of 14

9
C. Due Process
Plaintiff has asserted a claim under 42 U.S.C. § 1983 for the alleged violation of his right
to due process. 	Plaintiff asserts that he was deprived of due process in connection with his
termination in that he was denied union representation, denied reassignment of a biased
investigator, subjected to fabricated evidence, and terminated by Perez instead of a neutral decision
maker. (Docs. 18 at 10; 22 at 9.) Defendants move to dismiss on the basis that Plaintiff has failed
to state a claim and, alternatively, that the individual Defendants are entitled to qualified immunity.
To “assess whether an individual was denied procedural due process, courts must engage
in a two-step inquiry: (1) did the individual possess a protected interest such that the due process
protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of
process.” 	Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009) (quoting Montgomery v.
City of Ardmore, 365 F.3d 926, 935 (10th Cir. 2004)). “An essential principle of due process is
that a deprivation of life, liberty or property ‘be preceded by notice and opportunity for hearing
appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985). At this stage of the proceedings, Defendants do not assert that Plaintiff lacks a protected
property interest in his continued employment. 	To determine whether a property interest in
continued employment exists, the court looks to state law. See Ney v. City of Hoisington, Kan.,
508 F. Supp. 2d 877, 894 (D. Kan. 2007). Under Kansas law, there must be an express or implied
contract to show a property interest in continued employment. Id. at 893. Plaintiff alleges that he
was a member of the union and had a property interest in continued employment. (Doc. 18 ¶ 49.)
At this stage of the proceeding, the court will assume that Plaintiff has a property interest.
Therefore, he must be afforded process before that property interest is terminated.
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 9 of 14

10
The “root requirement” of the Due Process Clause is “that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.” Loudermill,
470 U.S. at 542. This means that Plaintiff must have an opportunity to be heard at a meaningful
time and manner before termination. Langley v. Adams County, Colo., 987 F.2d 1473, 1480 (10th
Cir. 1993). 	Based on Plaintiff’s allegations, the City utilized a process that involved a hearing
prior to his termination. For government employees, a hearing requires 1) “oral or written notice
[to the employee] of the charges against him”; (2) “an explanation of the employer’s evidence”;
and (3) “an opportunity [for the employee] to present his side of the story.” Riggins, 572 F.3d at
1108. 	“A full evidentiary hearing is not required prior to an adverse employment action.” 	Id.
(quoting West v. Grand Cty., 967 F.2d 362, 367 (10th Cir. 1992)). Instead, the “individual entitled
to due process protection needs only to be given notice and an opportunity to respond.” Id.
Here, it is clear that Plaintiff was provided notice of the allegations of workplace violations
prior to the April 18, 2025 hearing. 	(See Doc. 1-9 at 2.) 	At the hearing, there was evidence
presented 	regarding the 	alleged violations. 	Plaintiff 	also 	attended 	the 	hearing 	and 	had
opportunities to be heard. Based on the allegations, Plaintiff was provided all the process that was
necessary. See Riggins, 572 F.3d at 1109. Plaintiff, however, asserts that his due process rights
were violated because Chavez denied his right to a union representative. However, that allegation
concerns the investigation into prior misconduct and was not the investigation surrounding the
misconduct that resulted in his termination. 	Further, the documentary evidence submitted by
Plaintiff shows that Chavez believed that Plaintiff was no longer a member of the union and it was
for this reason that she informed Plaintiff that he would not have representation. (Doc. 1-15 at 2.)
Plaintiff was also told that he could correct this assumption if it was incorrect. With respect to his
termination proceeding, however, Plaintiff fails to allege that he was deprived of his right to a
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 10 of 14

11
union representative. Notably, Plaintiff did have union representation at the hearing. (Doc. 1-12
at 2.)
Next, Plaintiff contends that Chavez was biased in the investigation. The facts concerning
this bias involve the denial of a union representative, an alleged failure to investigate, and falsified
reports about the video. As discussed, Plaintiff was not denied a union representative during the
hearing. Further, Plaintiff fails to allege that Chavez’s conduct prevented him from being heard
at the hearing. Further, Perez, the decisionmaker, reviewed all of the evidence from the hearing,
including the videos. (Id.) Therefore, to the extent that Plaintiff believes that Chavez somehow
misrepresented the video evidence, Perez stated that he reviewed the videos prior to making his
decision. (Doc. 1-12 at 2.) Therefore, the court finds that the allegations regarding Chavez do not
support a finding that the process given was inadequate.
Finally, Plaintiff asserts that he has been deprived of due process because he was
terminated by Perez instead of by a neutral decisionmaker. Plaintiff was ultimately terminated by
Defendant Perez after Foster resigned. Plaintiff asserts that a violation of due process occurred
because there was not a final decision by the decisionmaker who was present at the hearing.
Plaintiff, however, fails to point to any authority that the decisionmaker must be a particular
individual. Rather, a plaintiff may establish a violation of due process if the decisionmaker was
biased. 	See Riggins, 572 F.3d at 1113–14. 	Plaintiff’s amended complaint fails to set forth any
facts to show that Perez was biased in this matter. Rather, Plaintiff’s allegations regarding Perez’s
actions are almost entirely conclusory. 	Further, Plaintiff’s conclusory allegation that Perez
approved his termination without reviewing the evidence is not supported by the evidence Plaintiff
submitted in his filings. (Doc. 1-12 at 2.) Therefore, the court declines to consider it.
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 11 of 14

12
Based on the allegations and the exhibits Plaintiff attached to his original complaint, the
court finds that Plaintiff received adequate process in connection with his termination. Therefore,
his due process claim is dismissed.
D. FMLA Claim against the Individual Defendants
The City also seeks to dismiss the remaining FMLA claim against the individual
Defendants. The City asserts that individuals are not employers under the FMLA and stated that
the Tenth Circuit had yet to address this issue. Contrary to Defendants’ assertion, the Tenth Circuit
has issued a ruling on this issue earlier in the year. See Walkingstick Dixon v. Okla. ex rel. Reg’l
Univ. Sys. of Okla. Bd. of Regents, 125 F.4th 1321 (10th Cir. 2025). 	In that matter, the Tenth
Circuit held that the FMLA’s “plain language applies to individuals because [the statute] defines
‘employers’ to include ‘any person who acts, directly or indirectly, in the interest of an employer
to any of the employees of such employer.’” Id. at 1342 (citing 29 U.S.C. § 2611(4)(A)(I)). The
court also notes that Walkingstick involved a public entity; therefore, it is clear that this authority
applies here. When determining whether an individual is an employer under the FMLA, the court
is to apply the economic reality test. Id. Although Defendants do not address this test, they do
assert that the amended complaint fails to show how they would be liable in their individual
capacities. The court will turn to the factors in the test. To determine whether an individual is an
employer under the economic reality test, courts consider “a nonexclusive and overlapping set of
factors,” including “whether the alleged employer (1) had the power to hire and fire the employees,
(2) supervised and controlled employee work schedules or conditions of employment, (3)
determined the rate and method of payment, and (4) maintained employment records.” Graziadio
v. Culinary Inst. of Am., 817 F.3d 415, 422 (2d Cir. 2016); see also Walkingstick, 125 F.4th at
1342 (citing to Graziadio for the application of the test).
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 12 of 14

13
Turning to Chavez, Plaintiff has alleged that she is an investigator with the City and that
she was involved in the investigations at issue. Although he argues that she has interfered with
his FMLA rights, he fails to address whether she could be considered his employer under the
FMLA. The amended complaint fails to allege any facts that are related to the factors the court
considers in the economic reality test. Therefore, the motion to dismiss the FMLA claims against
Chavez is granted.
Next, Davis is the Director of Utilities and recommended Plaintiff’s termination. Plaintiff
asserts that she is liable because she placed Plaintiff on administrative leave. 	The amended
complaint is limited on facts regarding Davis’s status as an employer. Based on the allegations, it
is clear that she needed permission to terminate Plaintiff and did not have that authority on her
own. Further, there are no allegations that she controlled Plaintiff’s schedule, determined his rate
of pay, or maintained employment records. 	After review, the court finds that Plaintiff has not
plausibly alleged facts that would support a finding that Davis was Plaintiff’s employer.
Finally, Perez is the City Manager. He approved Plaintiff’s termination after reviewing the
evidence from the hearing. 	Other than approving the termination, there are no facts regarding
Perez’s role in Plaintiff’s employment. While Perez can fire employees, there are no allegations
that he controlled Plaintiff’s schedule or conditions of employment, determined his rate of pay, or
maintained employment records. Therefore, Plaintiff has not plausibly alleged that Perez was an
employer under the FMLA.
Plaintiff’s remaining FMLA claim against the individuals is dismissed.
IV. 	Conclusion
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 13 of 14

14
Defendants’ motion to dismiss (Doc. 20) is GRANTED IN PART and DENIED IN PART.
It is denied only with respect to Plaintiff’s FMLA retaliation claim against the City. It is granted
as to all other claims and the individual Defendants are dismissed from this matter.
Plaintiff’s motion to supplement (Doc. 24) is DENIED.
IT IS SO ORDERED. Dated this 16th day of January 2026.
__ s/ John Broomes__________
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
Case 5:25-cv-04065-JWB-RES Document 28 Filed 01/16/26 Page 14 of 14