The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Plaintiff, Alisa Walker ("Walker"), filed her complaint alleging a violation of her rights under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., by Defendant, the Department of the Military and Veterans Affairs ("Defendant"),. Walker contends that she was discharged from her employment with the Southwest Veterans Center in Pittsburgh because she had to take intermittent leave from her job due to a serious health condition. Defendant has filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure contending that, because it is an agency of the Commonwealth of Pennsylvania, Walker's claim is barred by state sovereign immunity. Plaintiff has responded and the motion is now before the Court.
II. LEGAL STANDARD FOR MOTION TO DISMISS
In deciding a motion under Rule12(b)(6) of the Federal Rules of Civil Procedure, the Court is required to accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to the plaintiff. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). It had long been part of the Rule 12(b)(6) standard that a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41,45-46 (1957). Recently, however, the United States Supreme Court disavowed the "no set of facts" language as part of the Rule 12(b)(6) standard, instructing: "[t]his phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic v. Twombly, ____ U.S. ____, 127 S.Ct. 1955, 1969 167 L.Ed. 2d 929 (2007). Therefore, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965; Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
The Court of Appeals for the Third Circuit summarized the Twombly formulation of the pleading standard as follows: "'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips v. County of Allegheny, 515 F.3d at 234 (internal citations omitted). In so deciding, a court usually looks "only to the facts alleged in the complaint and its attachments without reference to other parts of the record," see Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994), but it also may consider "matters of public record . . . and undisputedly authentic documents attached to a motion to dismiss." Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006).
Defendant has filed a motion to dismiss contending that it is an arm of the state and that Walker's FMLA claim is barred by the Commonwealth's sovereign immunity pursuant to the Eleventh Amendment to the United States Constitution. Walker argues that Congress has abrogated Eleventh Amendment immunity for all claims under the FMLA. In the alternative, Walker contends that Defendant has affirmatively waived its immunity in this instance.
The FMLA provides that an eligible employee may take up to twelve weeks of leave in a twelve-month period for any of the following reasons:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of ...