IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20058

DONNA R. ALFRED, 

 Plaintiff – Appellant,

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.

United States Court of Appeals

Fifth Circuit

FILED

December 2, 2016

Lyle W. Cayce

Clerk

 Case: 16-20058 Document: 00513781601 Page: 1 Date Filed: 12/02/2016
No. 16-20058

2

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.

 Case: 16-20058 Document: 00513781601 Page: 2 Date Filed: 12/02/2016
No. 16-20058

3

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.

 Case: 16-20058 Document: 00513781601 Page: 3 Date Filed: 12/02/2016
No. 16-20058

4

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 

 Case: 16-20058 Document: 00513781601 Page: 4 Date Filed: 12/02/2016
No. 16-20058

5

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 

 Case: 16-20058 Document: 00513781601 Page: 5 Date Filed: 12/02/2016
No. 16-20058

6

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 selfcare 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

 Case: 16-20058 Document: 00513781601 Page: 6 Date Filed: 12/02/2016
No. 16-20058

7

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 familycare 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 

 Case: 16-20058 Document: 00513781601 Page: 7 Date Filed: 12/02/2016
No. 16-20058

8

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 notice3 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.

 Case: 16-20058 Document: 00513781601 Page: 8 Date Filed: 12/02/2016
No. 16-20058

9

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 familycare 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,” 

 Case: 16-20058 Document: 00513781601 Page: 9 Date Filed: 12/02/2016
No. 16-20058

10

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.

 Case: 16-20058 Document: 00513781601 Page: 10 Date Filed: 12/02/2016