CARL J. BARBIER, District Judge.
Before the Court is a 12(b)(6) Motion to Dismiss for Failure to State a Claim
On July 26, 2012, Plaintiff, Troy Franklin, filed the instant pro se employment discrimination lawsuit. (Compl., Rec. Doc. 1) Plaintiff alleges that his employer violated the Americans with Disabilities Act ("ADA"), as amended, 42 U.S.C. §§ 12101-12213 et seq., and the ADA regulations by: (1) disclosing his medical information, (2) requiring him to take a medical and psychological fitness for duty evaluation before returning to work from medical leave, and (3) not allowing him to return to work after he failed a fitness for duty evaluation, thereby forcing him to use his personal vacation and sick time. (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 2) Plaintiff also alleges that the City Defendants intentionally violated his rights and retaliated against him for filing a discrimination complaint and civil lawsuit, all in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. 2000e et seq. (Compl., Rec. Doc. 1, p. 1) Plaintiff also makes claims under 42 U.S.C. § 1981 for racial discrimination, and claims under Louisiana law. Plaintiff seeks the following nonexclusive items of damages: (1) back pay with benefits, front pay with benefits, or retirement if front pay is not a viable option, (2) general damages for loss of reputation, inconvenience, and the abuse he allegedly received, (3) punitive damages, (4) costs, and (5) all other equitable relief the Court deems proper. (Compl., Rec. Doc. 1, p. 3)
Plaintiff alleges that he is an African-American and that he was formerly employed by the City of Slidell as a senior corrections officer in the Slidell Police Department.
In his Complaint, Plaintiff makes the following allegations. On September 5, 2008, he received a death threat from Captain Jacobs. (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) After receiving the death threat, he filed a complaint with the Slidell Police Department's Internal Affairs division and was referred to the employee assistance program. (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) An unidentified individual at the employee assistance program informed Plaintiff that he might be suffering from "Post Traumatic Syndrome." (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) Thereafter, Plaintiff completed a "first report of injury"
On June 25, 2010, Chief Drennan signed an authorization permitting Plaintiff to return to work on administrative duties. (Compl., Rec. Doc. 1, p. 2, ¶ 1) In the middle of June 2010, Lieutenant McLellan and Captain Foltz met with Chief Smith, then the Chief-elect set to succeed Chief Drennan, and disclosed medical information to Chief Smith to lead him to believe that Plaintiff was not fit for duty. (Compl., Rec. Doc. 1, p. 2, ¶ 2) On July 1, 2010, his first day of office, Chief Smith wrote a letter requiring Plaintiff to submit to a fitness for duty evaluation. (Compl., Rec. Doc. 1, p. 2, ¶ 5; Pl.'s Opp., Rec. Doc. 12, p. 2) Plaintiff contends that Chief Smith did not give a valid reason for the fitness for duty evaluation and, thus, violated the ADA, ADA Amendments Act, and the Code of Federal Regulations, in particular 29 C.F.R. 825.380.
Plaintiff further asserts that Johnson sent a letter to Dr. Klein providing medical information and other information that reflected negatively on Plaintiff's fitness for duty. (Compl., Rec. Doc. 1, p. 2) Plaintiff asserts that in August 2010, Dr. Klein found him to be unfit for duty and that in September 2010, Chief Smith relieved him of all duties and responsibilities with the Slidell Police Department. (Compl., Rec. Doc. 1, p. 3, ¶¶ 8-9) Plaintiff further alleges that Defendants placed him on leave without pay for 32 days taking all benefits, (2) terminated Plaintiff without giving him recourse to fight the termination, (3) removed money from his checking account, and (4) had false stories placed in the local newspaper which prevented him from obtaining new employment. (Pl.'s Mem. in Supp. of Opp., Rec. Doc. 37, p. 1) Plaintiff reports that after Chief Smith relieved him of his duties with the Slidell Police Department, Tim Mathison refused to speak to him and sent out an interoffice memo dated November 16, 2010 instructing all Department Directors and Chief Smith not to talk to him, thereby "eliminating the option for an Administrative Remedy." (Compl., Rec. Doc. 1, p. 3, ¶ 10) Plaintiff asserts that Captain Jacobs admitted in discovery in a prior lawsuit that he was monitoring Plaintiff because he made an official complaint to the Slidell Police Department administration and federal authorities. (Compl., Rec. Doc. 1, p. 3, ¶ 11)
On December 3, 2010, Plaintiff filed a Charge of Discrimination with the United States Equal Opportunity Commission ("EEOC") alleging that the City of Slidell and the Slidell Police Department discriminated against him on the basis of his race and disability and retaliated against him. (Charge of Discrimination, Ex. L to Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12-1, p. 47) In the Charge of Discrimination, Plaintiff described the allegedly discriminatory events as follows:
(Ex. L to Pl.'s Opp., Charge of Discrimination, Rec. Doc. 12-1, p. 47)
The EEOC concluded that based upon its investigation, it was unable to conclude that the information obtained established violations of Title VII, the ADA, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act. On April 27, 2012, the EEOC mailed Plaintiff a Notice of Right to Sue. (Compl., Rec. Doc. 1, p. 3, ¶ 12). On August 21, 2012, the City Defendants filed the instant 12(b)(6) Motion to Dismiss. (Rec. Doc. 12) On September 5, 2012, Plaintiff filed an opposition. (Rec. Doc. 12) On November 6, 2012, the Court granted the City Defendants leave to reply. (Rec. Doc. 13) On January 21, 2013, the City Defendants filed a supplemental memorandum in support of their motion to dismiss. (Rec. Doc. 32) On March 1, 2013, Plaintiff filed a response to the City Defendants' supplemental
The City Defendants make the following arguments:
First, they argue that all of Plaintiff's claims against the Employee Defendants should be dismissed because Plaintiff cannot maintain a Title VII claim against both his employer, the City, and the City's individual agents. Alternatively, the City Defendants report that Plaintiff failed to name the Employee Defendants in his EEOC Charge of Discrimination, and, therefore, they contend that the Court should dismiss all of Plaintiff's claims against the Employee Defendants as premature for failure to exhaust his administrative remedies.
Second, the City Defendants argue that Plaintiff's ADA claims against the City should be dismissed for two reasons. First, Defendants contend that Plaintiff's ADA claim must be dismissed because Plaintiff has failed to allege any facts showing that he was a qualified individual with a disability, as defined in 42 U.S.C. § 12102(1). The City Defendants contend that this is a basic requirement necessary to sustain a cause of action under the ADA. Second, the City Defendants argue that Plaintiff's ADA claim under 42 U.S.C. § 12112(d), relating to the alleged disclosures of medical information, should be dismissed, because Plaintiff failed to include them in the Charge of Discrimination submitted to the EEOC, thereby failing to exhaust his administrative remedies. Alternatively, they argue that Plaintiff has failed to state a claim for release of confidential medical information under 42 U.S.C. § 12112(d), because he has failed to allege any facts indicating that the City or its employees disclosed any medical information protected under Section 12112(d). The City Defendants contend that Plaintiff's allegation that Johnson provided medical information to Dr. Klein is insufficient. Specifically, they argue that Plaintiff failed to specify what medical information Johnson provided to Dr. Klein and failed to explain how he was damaged by the alleged disclosure.
Third, the City Defendants argue that Plaintiff's claims under Title VII and Section 1981 should be dismissed. Without identifying particular deficiencies in Plaintiff's complaint, the City Defendants contend that his Title VII and Section 1981 claims should be dismissed in their entirety, because Plaintiff made no effort to set forth allegations that would substantiate a prima facie case of employment discrimination under the McDonnell Douglas framework, namely that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) he was replaced by someone outside the protected class, or, in the case of disparate treatment, was treated less favorably than similarly situated employees.
Fourth, the City Defendants argue that Plaintiff's claims for punitive damages should be dismissed. They contend that they are immune from punitive damages under 42 U.S.C. § 1981a(b)(1). They argue that in 42 U.S.C. § 1981a(b)(1), Congress expressly prohibited punitive damage awards against state governmental actors, and that courts apply the same analysis for federal race discrimination claims pursuant to Title VII, 42 U.S.C. 2000e, and the Civil Rights laws, 42 U.S.C. §§ 1981, 1983, and 1985. Consequently, the City Defendants contend that
Fifth, the City Defendants argue that under Title 42 U.S.C. § 2000e-5(f)(1), Plaintiff's claims against the City, a municipality, should be stayed pending Plaintiff's receipt of a Right to sue letter from the Department of Justice. Although the EEOC issued Plaintiff a Right to sue letter on April 27, 2012, the City Defendants contend that under 42 U.S.C. § 2000e-5(f)(1), the EEOC is required to refer Plaintiff's Charge of Discrimination against the City to the Department of Justice. They assert that there is no evidence that the EEOC has done that. Although the City Defendants note that failure of the EEOC to obtain a Right to sue letter from the Department of Justice is not dispositive, they assert that the failure is a procedural defect that must be cured, and that Plaintiff should be required to seek a Right to sue letter from the Department of Justice before proceeding with any of his claims against the City.
In response to the City Defendants' motion, Plaintiff filed an opposition, consisting primarily of additional factual allegations, which the Court has summarized above and treated as amendments to Plaintiff's Complaint. Plaintiff's opposition also included sixteen exhibits of supporting documentation.
In their reply, the City Defendants argue that despite his amendments, Plaintiff's complaint still fails to state a cause of action under the ADA, Title VII, or Section 1981.
Both parties have filed supplemental memoranda. (Rec. Docs. 32, 37) In their supplemental memorandum, the City Defendants: (1) contend that Plaintiff failed to provide sufficient allegations to sustain a cause of action for discrimination or retaliation in violation of the ADA and Title VII,
"Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim which would entitle him to relief." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.2002) (citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir.1998)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to "state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The court "must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party." In re Southern Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir.2008). A court must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.2009). However, the Court does not accept "conclusory allegations, unwarranted factual inferences, or legal conclusions" as true. Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.2005). While legal conclusions may provide the framework of a complaint, they must be supported by factual allegations. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Although "pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers ... conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Taylor, 296 F.3d at 378 (internal quotations and citations omitted). In deciding a 12(b)(6) motion to dismiss for failure to state a claim, "courts must limit their inquiry to the facts stated in the complaint and the documents either attached to or incorporated in the complaint." Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir.1996). "District courts should not dismiss pro se complaints pursuant to Rule 12(b)(6) without first providing the plaintiff an opportunity to amend, unless it is obvious from the record that the plaintiff has pled his best case." Hale v. King, 642 F.3d 492, 503 (5th Cir.2011) (citations omitted) (alterations added). Although "the definition of a plaintiff's `best case' has been deemed `elusive,'" in determining whether a pro se plaintiff has pled his best case, courts generally review the record to determine whether the plaintiff could state a claim by amending his or her complaint. See Amanduron v. American Airlines, 416 Fed. Appx. 421, 423 (5th Cir.2011). If a pro se plaintiff gives no indication of what material facts he would include in an amended complaint, the district court may exercise its discretion to deny the plaintiff leave to amend. See Kastner v. Lawrence, 390 Fed.Appx. 311, 317 (5th Cir.2010).
As a preliminary matter, the Court notes that it will not address the issues surrounding the parties' discovery dispute. Given that the Magistrate Judge has already
Plaintiff has alleged that he was employed by the City as a senior corrections officer with the Slidell Police Department for over twenty years before Chief Smith relieved him of his duties. (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) Plaintiff has asserted that the Employee Defendants are proper defendants because they were either employees or agents of the City or agents of a City employee. (Compl., Rec. Doc. 1, p. 1-2) The Court disagrees. A plaintiff may not maintain a Title VII claim against both his employer and the agents or employees of his employer. Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 382 n. 1 (5th Cir.2003) ("Individuals are not liable under Title VII in either their individual or official capacities"); Smith v. Amedisys, Inc., 298 F.3d 434, 449 (5th Cir.2002); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir.1999). Thus, to the extent that Plaintiff is asserting claims against the Employee Defendants under Title VII, the Court finds that they are not legally cognizable.
Furthermore, the ADA definition of "employer" mirrors the Title VII definition. Although the Fifth Circuit has not directly addressed the question of whether an employer's agent or employee may be held liable under the ADA, this Court recently concluded that in light of (a) the similarities between the definition of "employer" in Title VII and the ADA, (b) the similar purposes of the two statutes, (c) the Fifth Circuit's consistent holdings that individuals cannot be held liable under Title VII in either their individual or official capacities, and (d) the weight of authority outside of the Fifth Circuit,
The City Defendants urge the Court dismiss all of Plaintiff's claims under Title VII and 42 U.S.C. § 1981
The Court is not persuaded by the City Defendants' contention that Plaintiff's Title VII and Section 1981 discrimination claims should be dismissed for failure to plead specific facts establishing a prima facie case of discrimination under the McDonnell Douglas framework. A plaintiff is not required to plead a prima facie
Nevertheless, even when considered under the proper standard, Plaintiff's allegations are insufficient to state a claim for racial discrimination under Section 1981 or Title VII. The elements of a racial discrimination claim are the same, whether the claim is asserted under Section 1981 or Title VII. Riley, 379 Fed.Appx. at 339 (citing Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir.2004)); Lockett v. Wal-Mart Stores, Inc., 337 F.Supp.2d 887, 891 (5th Cir.2004). In order to state a racial discrimination claim under either statute, Plaintiff must allege that his employer required the fit for duty exam or relieved him of his duties on the basis of his race, detail the events leading to his termination, provide relevant dates, and include the race of at least some of the relevant persons involved in his termination. See Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992 (finding that complaint in a Title VII case based on national origin discrimination satisfied the requirements of Rule 8(a) where the Plaintiff alleged he had been terminated on the basis of his national origin in violation of Title VII, detailed the events leading to his termination, provided relevant dates, and included the nationalities of some of the relevant persons involved in his termination).
Id.
Thus, to the extent that Plaintiff purports to assert claims under Section 1981 or Title VII for disparate treatment or discriminatory discharge on the basis of race, the Court finds that they are not plausible. Moreover, after having reviewed the entire record, the Court finds that Plaintiff has failed to indicate what material facts he would include in an amended complaint. Thus, the Court will dismiss Plaintiff's racial discrimination claims under Section 1981 and Title VII without granting him an opportunity to amend his complaint.
However, the main thrust of Plaintiff's complaint is not that the City discriminated against him on the basis of his race, but that the City retaliated against him for filing a previous charge of discrimination and civil lawsuit by requiring him to take a fitness for duty evaluation and relieving him of his duties with the Slidell Police Department. The caption of Plaintiff's Complaint is entitled "Complaint for Damages-Retaliation in Violation of the Civil Rights Act of 1964. 42 U.S.C.2000E, 42 U.S.C.1981 ..." (Compl., Rec. Doc. 1, p. 1) (emphasis added). Plaintiff affirmatively alleges that the Defendants "intentional took action to violate the Plaintiffs rights in retaliation from the Plaintiff Troy R Franklin filing a discrimination complaint, civil lawsuit and for personal gain" and lists Chief Smith among the seven named Defendants. (Compl., Rec. Doc. 1, p. 2) Plaintiff also states that "Chief Randy Smith relieve the Plaintiff of all duties and responsibilities with the Slidell Police ..." (Compl., Rec. Doc. 1, pp. 1-3)
42 U.S.C. 2000e-3(a) establishes a claim for retaliation against an employee who files a charge of discrimination with the EEOC and provides in pertinent part:
42 U.S.C. 2000e-3(a).
When the Court assumes that Plaintiff's allegations are true, construes them in the light most favorable to Plaintiff, and draws all reasonable inferences in Plaintiff's favor, as it must, the Court finds that Plaintiff has alleged that Chief Smith relieved him of his duties because he filed an EEOC charge — conduct which is actionable under Title VII. Ackel, 339 F.3d at 385. Moreover, given that the City Defendants' brief argument did not extend to Plaintiff's Title VII retaliation claim, the Court finds that dismissal of Plaintiff's Title VII retaliation claim is not warranted at this stage.
To prevail on an ADA discrimination claim, a plaintiff must ultimately prove that: (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job either with or without reasonable accommodations; and (3) he has suffered from an adverse employment action because of his disability. Kemp v. Holder, 610 F.3d 231, 235 (5th Cir.2010); Washburn v. Harvey, 504 F.3d 505, 508-09 (5th Cir.2007). To satisfy the causation standard, the "`discrimination need not be the sole reason for the adverse employment decision, [but] must actually play a role in the employer's decision making process and have a determinative influence on the outcome.'" Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir.2008) (quoting Soledad v. U.S. Dep't of Treasury, 304 F.3d 500, 503-04 (5th Cir.2002)). The City Defendants argue that Plaintiff has not alleged that he was a qualified individual with a disability and has not alleged any facts to show that he had a disability as defined by Section 12102(1) of the ADA.
Congress amended the ADA with the ADA Amendments Act of 2008 ("ADAAA"), which was enacted on September 28, 2008 and became effective on January 1, 2009. Culotta v. Sodexo Remote Sites P'ship, 864 F.Supp.2d 466, 474 n. 15 (E.D.La.2012) (citations omitted). As a threshold matter, because Plaintiff's allegations involve conduct by his employer that occurred after the effective date of the ADAAA, we must determine whether Plaintiff has alleged that he was disabled under the ADA, as amended by the ADAAA. See Hale v. King, 642 F.3d 492, 498 (5th Cir.2011) ("Because [plaintiff's] allegations involved conduct occurring prior to the effective date of the ADAAA, we must determine whether [plaintiff] was disabled under the ADA prior to its amendment."). The ADA defines a "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). "An individual may establish coverage under any one or more of these three prongs of the definition of disability ..." 29 C.F.R. § 1630.2(g)(2). "The determination of whether an impairment substantially limits a major life activity requires an individualized assessment." 29 C.F.R. § 1630.2(j)(1)(iv); See also Sutton, 527 U.S. at 483, 119 S.Ct. 2139, superseded by statute on other grounds, ADAA, Publ. L. No. 110-325, 122 Stat. 3553; 42 U.S.C. § 12102. Under the ADA regulations, a "physical or mental impairment" includes, inter alia, "[a]ny mental or psychological disorder, such as an ... emotional or mental illness ..." 29 C.F.R. § 1630.2(h) (emphasis added). "`Simply having an impairment is insufficient to make one
Prior to January 1, 2009, under Sutton v. United Air Lines, Inc.
Id. § 1630.2(j)(1)(ii) (emphasis added).
Congress has indicated that "substantially limits," is to be interpreted and applied to require a lower degree of functional limitation than courts required prior to the ADAAA under Williams. ADAA §§ 2(a)(7), 2(b)(4)-(5); See also 29 C.F.R. § 1630.2(j)(1)(iv). Moreover, the threshold questions of "whether an individual's impairment is a disability under the ADA,"
29 C.F.R. § 1630.2(j)(3)(ii).
Most importantly, the regulations specifically provide that:
Id. § 1630.2(j)(3)(iii) (emphasis added).
Although "the Supreme Court has not decided what deference, if any, is due to implementing regulations issued by the EEOC, it has relied on these regulations in analyzing cases, particularly when neither party to a case challenges their reasonableness." E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 614 n. 4 (5th Cir.2009). Because (a) neither party has challenged the reasonableness of the EEOC implementing regulations and (b) the Court finds that they are instructive, the Court will rely on the these regulations. As a result, the Court finds that Plaintiff has adequately alleged that he has a "disability," under 12102(A) — the "actual disability" prong of the ADA. Plaintiff alleges that after he received a death threat from his supervisor, he was informed that might be suffering from "Post Traumatic Syndrome," which the Court liberally construes as a reference to post-traumatic stress disorder. Considering that Congress has clearly indicated that the threshold question of whether an individual's impairment constitutes a disability should not demand extensive analysis, and that the EEOC regulations interpreting the ADA indicate that post-traumatic stress disorder is an impairment that should easily be concluded to substantially limit brain function, the Court finds that Plaintiff has adequately pleaded that he is disabled within the meaning of the ADA. Thus, the Court declines to dismiss Plaintiff's claim against the City Defendants under Section 12112(a) on that basis.
The City Defendants argue that Plaintiff's ADA claim under 42 U.S.C. § 12112(d), arising from the alleged disclosure of confidential medical information should be dismissed. The Court agrees. A plaintiff asserting a claim against his employer under the ADA must exhaust his administrative remedies before filing suit against his employer in federal court. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996). "The ADA incorporates by reference the procedures for exhaustion applicable to claims under Title VII." Williamson v. American Nat. Ins. Co., 695 F.Supp.2d 431, 444 (S.D.Tex.2010) (citing Wesley v. Dallas ISD, No. 03-08-CV-2025-K, 2009 WL 193786, *2
Plaintiff's Charge of Discrimination was limited to complaints about Chief Smith requiring him to take a physical and relieving him of his duties, because he failed part of that physical. Plaintiff did not mention any allegedly improper disclosure of medical information by either Foltz, McLellan, or Johnson in his Charge of Discrimination. There is no evidence that Plaintiff brought this grievance to the EEOC at any point during the investigation of his original charge, and there appears to be no reason to infer that the EEOC's investigation of Plaintiff's psychological fitness for duty examination with Dr. Klein would have encompassed Plaintiff's allegations that Foltz and McLellan disclosed medical information to Chief Smith or that Johnson disclosed medical information to Dr. Klein. Compare, Huda, 2008 WL 191300, at *3 (finding that reasonable investigation would have reached a failure to promote claim based on evidence that Plaintiff submitted a rebuttal letter to the EEOC stating that he had several documented meetings with executives regarding discrimination in promotion and that he was twice denied supervisor positions despite being the most qualified candidate). Moreover, in the Title VII context, "`[d]iscrimination and retaliation claims are distinct, so alleging one and not the other in an EEO charge does not exhaust a plaintiff's remedies as to the one not included." Lopez v. Kempthorne, 684 F.Supp.2d 827, 852 (S.D.Tex.2010) (citing Bouvier v. Northrup Grumman Ship Sys., Inc., 350 Fed.Appx. 917, 921-22 (5th Cir.2009)). Similarly, the Court finds that in the ADA context, a claim that an employer unlawfully required a medical examination and a claim that an employer unlawfully disclosed confidential medical information are distinct. Thus, the EEOC investigation that resulted from Plaintiff's original Charge of Discrimination could not reasonably have been expected to extend to the alleged disclosures of medical information by Foltz, McLellan, and Johnson. Consequently, the Court finds that Plaintiff has failed to exhaust his administrative remedies with respect to his ADA claim for disclosure of confidential medical information.
Moreover, even if Plaintiff had exhausted his administrative remedies, his complaint still fails to state a claim under 42 U.S.C. § 12112(d). The City Defendants argue, relying on Dean v. City of New Orleans, No. 11-2209, 2012 WL 2564954 (E.D.La. July 2, 2012) and McPherson v. O'Reilly Auto., Inc., 491 F.3d 726, 732 (8th Cir.2007), that in order
42 U.S.C. § 12112(d)(4)(A) governs "medical examinations and inquiries." Under Section 12112(d), an employer is expressly permitted to require a medical examination and to make inquiries of an employee as to whether that employee is an individual with a disability or as to the nature or severity of the disability, if the examination or inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A); See also 29 C.F.R. § 1630.14(c) ("A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions.") In addition, an employer is permitted to conduct voluntary medical examinations that are part of an employee health program and to make inquiries into the ability of an employee to perform job-related functions. Id. § 12112(d)(4)(B). However, the employer is required to treat any information regarding the medical condition or history of an employee that the employer obtains from a medical examination or inquiry authorized under Section 12112(d) as a confidential medical record, subject to certain limited exceptions. E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1047 (10th Cir. 2011) (citing 42 U.S.C. §§ 12112(d)(4)(C), (d)(3)(B); 29 C.F.R. § 1630.14). A plaintiff cannot succeed on a claim under Section 12112(d) unless the employer obtained the medical information that was disclosed through an entrance exam or disability-related inquiry. Dean, 2012 WL 2564954, at *20 (citing C.R. England, Inc., 644 F.3d at 1047; Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir.2000); Montano v. INOVA Health Care Servs., No. 1:08cv565, 2008 WL 4905982, at *7 (E.D.Va. Nov. 12, 2008); Pouliot v. Town of Fairfield, 226 F.Supp.2d 233, 246 (D.Me.2002); E.E.O.C. v. Overnite Transp. Co., No. 7:01CV00076, 2001 WL 1521584, at *2 (W.D.Va. Nov. 30, 2001)). A plaintiff must also allege that he suffered a tangible injury due to the disclosure of the protected medical information. Dean, 2012 WL 2564954, at *21 (citations omitted).
Thus, to state a claim under Section 12112(d), Plaintiff must allege facts showing: (1) that Johnson obtained the medical information that she allegedly disclosed to Dr. Klein through an entrance examination or a disability-related inquiry, and (2) that Plaintiff suffered a tangible injury as a result of her disclosure. Id. Plaintiff merely alleges that Johnson "provided medical information" to Dr. Klein, without alleging any facts indicating that Johnson obtained the medical information in question from an entrance exam or disability-related inquiry. Moreover, nothing in Plaintiff's complaint suggests that Chief Smith's decision to relieve him of his duties with the Slidell Police Department, or any other tangible injury, was based on Johnson's alleged disclosure. Rather, the temporal proximity between Dr. Klein's letter indicating that Plaintiff was unfit for duty and Chief Smith's letter indicating that he was relieving Plaintiff of his duties
Section 12112(d)(4)(A) of the ADA provides that "[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." Id. § 12112(d)(4)(A). "Relatively few courts have addressed either [Section 12112(d)(4)(A)] or the related subsections involving preemployment inquiries and employment entrance examinations." Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003). Generally, "Section 12112(d)(4)(A) prohibits employers from using medical exams as a pretext to harass employees or to fish for nonwork-related medical issues and the attendant `unwanted exposure of the employee's disability and the stigma it may carry.'" Brownfield v. City of Yakima, 612 F.3d 1140, 1140 (9th Cir.2010) (citing EEOC v. Prevo's Family Mkt., Inc., 135 F.3d 1089, 1094 n. 8 (6th Cir.1998)). Section 12112(d)(4)(A) does not forbid all medical inquiries, but only those "as to whether such employee is an individual with a disability or as to the nature or severity of the disability." Conroy, 333 F.3d at 95; Yin v. State of Cal., 95 F.3d 864, 868 (9th Cir.1996). A medical or psychological fitness for duty examination triggers Section 12112(d)(4)(A) if a goal of the proposed examination is to determine whether the employee is an individual with a disability or to determine the nature or severity of the disability. See Yin, 95 F.3d at 868. In addition, a medical or psychological fitness for duty examination may also trigger the protections of the ADA if the examination would tend to or is likely to reveal an employee's disability. See Conroy, 333 F.3d at 95-96 (employer's policy of requiring employees to provide a medical certification, including a "general diagnosis" after an absence from work triggered Section 12112(d)(4)(A), because it could tend to reveal a disability and expose individuals with disabilities to employer stereotypes, thereby implicating the concerns expressed in Section 12112(d)(4)).
Although the general prohibition in Section 12112(d)(4)(A) is subject to an exception, "the business necessity standard `is quite high, and is not to be confused with mere expediency.'" Brownfield, 612 F.3d at 1146. "[A]n examination that is `job related' and `consistent with business necessity' must, at minimum, be limited to an evaluation of the employee's condition only to the extent necessary under the circumstances to establish the employee's fitness for the work at issue." Tice v. Centre Area Transp. Auth., 247 F.3d 506, 515 (3d Cir.2001); Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811-12 (6th Cir.1999). "When health problems have had a substantial and injurious impact on an employee's job performance, the employer
Brownfield, 612 F.3d at 1146 (citing Sullivan, 197 F.3d at 811; Conroy, 333 F.3d at 98) (emphasis added).
As a preliminary matter, the Court notes that it is unclear from the City Defendants' memorandum in support of their motion to dismiss whether they are arguing that Plaintiff's ADA claim stemming from the fitness for duty examination should be dismissed as premature on the grounds that Plaintiff failed to exhaust his administrative remedies. At one point, the City Defendants request that Plaintiffs' claims "except those regarding [Plaintiff]'s being required to take a fit for duty exam and being allowed to return to work," be dismissed as premature because Plaintiff's EEOC Charge of Discrimination was shorter than his complaint and limited to complaints that he was required to undergo a fit for duty exam and then told that he could not return to work due to the results of that exam. (Mem. in Supp. of City Def.'s Mot. to Dismiss, Rec. Doc. 10-1, p. 8) However, a few sentences later, Defendants appear to request that "all claims regarding violation of the ADA, due to ... requiring the Plaintiff to undergo a medical and psychological exam, should be dismissed." (Mem. in Supp. of City Def.'s Mot. to Dismiss, Rec. Doc. 10-1, p. 8)
Although it appears to the Court that the City Defendants may be attempting to draw a distinction between an ADA claim stemming from being required to take a fit for duty exam and an ADA claim stemming from being required to take a medical or psychological exam, the Court finds that the distinction is threadbare. Having reviewed Plaintiff's Complaint, as amended, and his EEOC Charge of Discrimination, the Court finds it obvious that Plaintiff's alternating references to being required to take a "physical," "fit for duty exam," and "medical and psychological," are all references to the same event — being required by his employer to take a psychological fitness for duty evaluation with Dr. Klein. (Compl., Rec. Doc. 1; Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12; Charge of Discrimination, Ex. L to Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12-1, p. 47) Plaintiff did not specifically use the term "fit for duty exam" in his Charge of Discrimination. He actually complained that he was: (1) being required to take a "physical," (2) being relieved of duty after (a) Chief Smith informed him that he was "psychotic, delusional, and paranoid," and (b) Dr. Klein opined that he not fit for duty in a law enforcement agency in any capacity. (Charge of Discrimination, Ex. L to Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12-1, p. 47) Plaintiff's explicit references in his EEOC Charge of Discrimination to being required to take a "physical," to Dr. Klein's credentials as a doctor of philosophy rather than a medical doctor, and to being told that he couldn't return to work because he was "psychotic, delusional, and paranoid," lead the Court to conclude that Plaintiff has exhausted his administrative remedies with respect to his ADA claims stemming from being required by his employer to
First, City Defendants argue that Plaintiff's claim under Section 12112(d)(4)(A) should be dismissed, because he failed to plead that he was a qualified individual with a disability. Second, the City Defendants contend that Plaintiff's allegation that he was required to take a fitness for duty exam before returning to work from sick leave does not establish an ADA violation, because simply being required to take a fitness for duty exam is not an ADA violation. Third, they argue that courts have specifically recognized the business necessity exception in the context of police departments, because they place armed officers in positions where they can do tremendous harm if they act irrationally. Relying on Brownfield v. City of Yakima, Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir.1999), and Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir.1998), they assert that the ADA does not require a police department to forego a fitness for duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries. They further assert, relying on Conroy v. N.Y. State Department of Correctional Services, 333 F.3d 88, 98 (2d Cir.2003), that an employer is permitted to require a medical examination when it "can identify legitimate, non-discriminatory reasons to doubt the employee's capacity to perform his or her duties." According to the City Defendants, because Franklin was a senior corrections officer for the Slidell Police Department, it was necessary and permissible for the City to require Plaintiff to submit to a fit for duty examination before allowing him to return to active duty, in order to ensure that he could do so safely.
First, the Court rejects the City Defendants' argument that Plaintiff's claim under Section 12112(d)(4)(A) should be dismissed on the grounds that Plaintiff failed to plead that he was a "qualified individual with a disability" within the meaning of Section 12112(a). The Fifth Circuit has not decided whether a non-disabled individual may sue under Section 12112(d),
Second, the City Defendants do not cite any authorities stating as a categorical matter that requiring an employee to undergo a fitness for duty examination, in itself, does or does not constitute an ADA violation under Section 12112(d)(4)(A). For purposes of this 12(b)(6) motion to dismiss, the Court finds that Plaintiff's allegation that his employer required him to take a medical and psychological fitness for duty examination before returning to work from sick leave is alone sufficient to trigger the protections of Section 12112(d). Although it appears that the Fifth Circuit has not construed Section 12112(d)(4)(A) of the ADA in general or the scope of its business necessity exception in particular,
In addition, whether a medical or psychological fitness for duty examination triggers Section 12112(d) because it tends to disclose or is likely to disclose the existence, nature, or severity of a disability is a fact-intensive inquiry that depends on the specific manner in which the examination was conducted and the nature of the information conveyed by individual conducting the fitness for duty examination to the employer. See Conroy, 333 F.3d at 95-96. A plaintiff may not know at the pleading stage whether the examiner (a) informed his employer that he was simply not fit for particular duties associated with the job in question, in which case Section 12112(d)(4)(A) would not appear to be implicated, or (b) informed his employer of his diagnosis, in which case Section 12112(d)(4)(A) would appear to be implicated. Although a plaintiff would presumably have some information about the questions the examiner asked, the types of tests the examiner ran, and the general manner in which the examiner conducted the evaluation, requiring a plaintiff to provide that degree of detail at the pleading stage would tend to undercut Rule 8's requirement that the Plaintiff provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a)(2). Moreover, the City Defendants do not appear to seriously dispute that Plaintiff's allegation that he was required to take a fitness for duty examination triggers the protections of Section 12112(d)(4)(A). Instead, they contend that they are entitled to a dismissal of Plaintiff's claim under Section 12112(d)(A) on account of the business necessity exception.
The employer bears the burden of demonstrating business necessity. Brownfield, 612 F.3d at 1146 (citing Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.2007); Conroy, 333 F.3d at 97). "Although dismissal under Rule 12(b)(6) is ordinarily determined by whether the facts alleged in the complaint, if true, give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings." Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir.1986) (citing Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
The authorities that the City Defendants rely on offer no support for their position. They are all procedurally distinguishable because they all involved summary judgment motions, not motions to dismiss. See Brownfield, 612 F.3d at 1142; Watson, 177 F.3d at 934; Cody, 139 F.3d at 596. They are also all factually distinguishable. In Brownfield, the Ninth Circuit concluded that an employer's decision to place a police officer whose job performance was otherwise satisfactory on administrative leave and to order him to undergo a fitness for duty examination after the occurrence of four alarming incidents was justified by the business necessity exception.
Moreover, Plaintiff's allegations that he was a senior corrections peace officer returning from sick leave when Chief Smith required the fitness for duty examination are insufficient to establish the applicability of the business necessity exception in this case. As a general proposition, the Court agrees with the City Defendants' contention that a medical fitness for duty examination is permissible when the employer can identify legitimate, non-discriminatory reasons to doubt the
The City Defendants argue that Plaintiff cannot recover punitive damages from the City, a municipality, under 42 U.S.C. § 1981a(b)(1). The Court agrees. 42 U.S.C. § 1981a, or the Civil Rights Act of 1991, a 1991 amendment to the remedial scheme applicable to both Title VII and the ADA,
42 U.S.C. § 1981a(b)(1) (emphasis added).
As discussed above, Plaintiff can only maintain his remaining federal claims under Title VII and the ADA against his employer, the City. However, Plaintiff is precluded from recovering punitive damages from the City under Section 1981a(b)(1), because governments, government agencies, and political subdivisions are expressly exempted. 42 U.S.C. § 1981a(b)(2); Oden v. Oktibbeha Cty., 246 F.3d 458, 465-66 (5th Cir.2001) (award of punitive damages against political subdivision under Title VII precluded due to 42 U.S.C. § 1981a(b)(1)); Liner v. Hosp. Serv. Dist. No. 1 of Jefferson Parish, 230 Fed.Appx. 361, 365 (5th Cir.2007) (award of punitive damages against a political subdivision under the ADA precluded due to 42 U.S.C. § 1981a(b)(1)). In Oden, the Fifth Circuit concluded that a district court committed plain error by assessing punitive damages in a Title VII official capacity suit against a county Sheriff. 246 F.3d at 466. The Court observed that "[s]ubjecting the Sheriff to an $80,000 punitive damage award is inapposite to Congress's intent to preclude local government entities from paying such judgments." Id. In this case, the Court finds that it would similarly undermine congressional intent to assess punitive damages against the City under Title VII or the ADA. Consequently, the Court will dismiss Plaintiff's claim for punitive damages.
In addition to his claims under Section 1981, Title VII, and the ADA, Plaintiff makes claims against the City Defendants under Louisiana law. (Compl., Rec. Doc. 1) The City Defendants' motion did not address Plaintiff's state law claims. Thus, to the extent that Plaintiff has stated any viable claims under Louisiana law, those claims remain pending.
Although it is undisputed that Plaintiff filed a Charge of Discrimination with the EEOC and that the EEOC sent Plaintiff a right to sue letter on April 27, 2012,
The lengthy subsection that City Defendants cite and rely on, 42 U.S.C. § 2000e-5(f)(1), provides in pertinent part:
42 U.S.C. § 2000e-5(f)(1) (emphasis added).
The City Defendants read § 2000e-5(f)(1) in isolation, without reference to other pertinent subsections of the statute, in particular, a subsequent portion of § 2000e-5(f)(1), and § 2000e-5(b). The portion of § 2000e-5(f)(1) that is immediately subsequent to the portion quoted above states:
§ 2000e-5(b) states in pertinent part:
42 U.S.C. § 2000e-5(b) (emphasis added).
When § 2000e-5(b) and § 2000e-5(f)(1) are read with reference to one another, it is apparent that the isolated provision in § 2000e-5(f)(1) that City Defendants' rely on presupposes that the Commission's initial investigation of the Charge of Discrimination at issue yielded reasonable cause to believe that the Charge of Discrimination is true, thereby obligating the Commission to endeavor to eliminate such alleged unlawful employment practice by informal methods of conciliation. As the Court understands it, § 2000e-5(f)(1) merely clarifies that if the Commission engaged in informal methods of conciliation with a municipal entity, such as the City, and was unsuccessful in its efforts to secure an acceptable conciliation agreement, the agency with the discretionary authority to initiate suit against the municipal entity is the Attorney General, not the Commission.
In this case, the right to sue letter that the Commission issued after investigating Plaintiff's Charge of Discrimination merely
Although the statute literally provides that in cases involving political subdivisions, the Attorney General shall notify the person aggrieved after their Charge of Discrimination is dismissed, the Court does not interpret § 2000e-5 as imposing a requirement that Plaintiff obtain a right to sue letter from the Attorney General rather than the EEOC under these circumstances. Considering that it is apparent when § 2000e-5 is read in its entirety, that the EEOC only refers matters to the Attorney General when the EEOC's initial investigation yields reasonable cause that the Charge of Discrimination is true, there was no reason for the EEOC to refer the matter to the Attorney General following its investigation in this case. The EEOC dismissed Plaintiff's Charge of Discrimination noting that it was "unable to conclude that the information it obtained during its investigation established a violation of the statutes." Thus, the Court finds that the EEOC's issuance of Plaintiff's right to sue letter is not a procedural defect that needs to be cured.
The City Defendants rely solely on their reading of the statute and have not offered any case law in support of their argument. The sole authority that City Defendants rely on, Sawyer, offers no support for their contention that Plaintiff must obtain a Right to sue letter from the Attorney General rather than the EEOC before he may proceed with any remaining claims against the City. In Sawyer, the Plaintiff failed to obtain any right to sue letter at all, whether from the EEOC or the Attorney General, prior to filing suit. 2005 WL 3543738, at *2. While the case was pending, the Sawyer plaintiff obtained a Right to sue letter from the EEOC and filed it with the court. Id. The defendant moved to dismiss the Sawyer plaintiff's Title VII claims for failure to exhaust administrative remedies. Id. However, the court denied the defendant's motion finding that the subsequent filing of the Charge of Discrimination and Right to sue letter cured the initial defect. Id. Thus, Sawyer offers no support for the City Defendants' argument that because the City is a political entity, Plaintiff must obtain a Right to sue letter from the Attorney General rather than the EEOC before he may proceed with any of his remaining claims against the City.
Furthermore, in Givs v. City of Eunice, 512 F.Supp.2d 522 (W.D.La.2007), one of the cases that the City Defendants rely on to support their punitive damages argument, a former City employee, like Plaintiff, filed suit against the City of Eunice under Title VII and Section 1981 after receiving a right to sue letter from the EEOC. Id. at 533. The court did not recognize any procedural defect based on the fact that the right to sue letter originated
Accordingly,
In response, Plaintiff wrote:
(Ex. A to City Def.'s Supplemental Mem. in Supp. of Mot., Rec. Doc. 32-1, p. 5-6)
Interrogatory number nine stated:
Plaintiff wrote in response:
(Ex. A to City Def.'s Supplemental Mem. in Supp. of Mot., Rec. Doc. 32-1, p. 7)
42 U.S.C. § 1981(a). Section 1981 only protects against racial discrimination. Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) (citations omitted); Garner v. Giarrusso, 571 F.2d 1330, 1340 (5th Cir. 1978) (Section 1981 protections limited to race or alienage). Title VII protects more broadly against employment discrimination on the basis of "race, color, religion, sex or national origin." 42 U.S.C. 2000e-2(a)(1). However, the same analysis applies in cases alleging disparate treatment or discriminatory discharge based on race, regardless of whether they are asserted under Section 1981 or Title VII. Riley v. Sch. Bd. Union Parish, 379 Fed.Appx. 335, 340 (5th Cir.2010).
