United States District Court, E.D. Louisiana
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Troy Reginald Franklin, Plaintiff, Pro se, Slidell, LA.
For Slidell City, Rockwell McLellan, Kevin Foltz, Randy Smith, D. Rene' Johnson, Tim Mathison, Robert Jacobs, Defendants: Lawrence Emerson Abbott, LEAD ATTORNEY, Nancy Brechtel, Cotten, Schmidt & Abbott, LLP, New Orleans, LA.
CARL J. BARBIER, UNITED STATES DISTRICT JUDGE.
ORDER AND REASONS
Before the Court is a 12(b)(6) Motion to Dismiss for Failure to State a Claim (Rec. Doc. 10), filed by Defendants, the City of Slidell and six of its employees (collectively " the City Defendants" ). Plaintiff has filed an opposition (Rec. Doc. 12), to which the City Defendants have replied. (Rec. Doc. 25) Both the Plaintiff and the City Defendants have filed supplemental memoranda. (Rec. Docs. 32, 37) The City Defendants' motion was set for hearing on the briefs on September 12, 2012.  Having considered
the motion and legal memoranda, the record, and the applicable law, the Court finds that the City Defendants' motion should be GRANTED IN PART and DENIED IN PART, for reasons explained more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
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.  (Compl., Rec. Doc. 1, p. 1; Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) Plaintiff further alleges that in September 2010, the Slidell Chief of Police, Randy Smith, relieved him of all duties with the Slidell Police Department after Dr. James Klein (" Dr. Klein" ) evaluated Plaintiff and found that he was not fit for duty as a law enforcement officer. (Compl., Rec. Doc. 1, p. 2, ¶ ¶ 8-9) Plaintiff subsequently filed suit against the City of Slidell (" the City" ),
Dr. Klein,  and six City employees, including: (1) Chief Randy Smith (" Chief Smith" ), of the Slidell Police Department, (2) Captain Kevin Foltz (" Captain Foltz" ), of the Slidell Police Department, (3) Captain Robert Jacobs (" Captain Jacobs" ), of the Slidell Police Department, (4) Lieutenant Rockwell McLellan (" Lieutenant McLellan" ), of the Slidell Police Department, (5) D. Rene Johnson (" Johnson" ), the Slidell Civil Service Personnel Director, and (6) Tim Mathison (" Mathison" ), the City's Chief Administrative Officer (collectively " Employee Defendants" ). (Compl., Rec. Doc. 1)
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"  and was referred to Dr. Harold Ginzburg (" Dr. Ginzburg" ) for a psychiatric evaluation. (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) Dr. Ginzburg found that Plaintiff was fit for duty but needed counseling. Dr. Ginzburg also recommended that Plaintiff and Captain Jacobs be separated. (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) Captain Jacobs and Plaintiff were never separated. Thereafter, Plaintiff reports that he received numerous unexpected visits from Captain Jacobs and that he went out on sick leave " with the understanding of Chief Freddy Drennan." (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1) Plaintiff kept Freddy Drennan (" Chief Drennan" ), then the Slidell Chief of Police, informed of his progress in counseling, and in June 2010, negotiated with Chief Drennan to return to work from sick leave. (Pl.'s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1)
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.  (Compl., Rec. Doc. 1, p. 2, ¶ 5; Pl.'s Opp., Rec. Doc. 12, p. 2) Plaintiff also contends that Johnson, the Slidell Civil Service Personnel Director, sent him a letter dated July 7, 2010 requiring him to take a medical and psychological fitness for duty evaluation,
thereby violating the ADA and ADA Amendments Act of 2008, the Code of Federal Regulations, in particular 29 C.F.R. 825.380, and state law. (Compl., Rec. Doc. 1, p. 2, ¶ 6; Pl.'s Opp., Rec. Doc. 12, p. 2)
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:
I was released for return to work on July 15, 2010. Chief Randy Smith informed me I had to take a physical. Around August 13, 2010, I was told that I couldn't go back to work because I failed part of [sic] physical. I believe I'm being discriminated against because of my race, Black, disability and in retaliation for filing a previous charge of discrimination with EEOC. Although I was released for work by my doctor, Chief Smith informed me I couldn't return to work because I was psychotic, delusional, and paranoid. Base [sic] on information provided by Dr. Alan James Klein Ph.D. It also stated that I was not fit to work for any law enforcement agency.
(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
memorandum in support of their motion. (Rec. Doc. 37)
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
Plaintiff's Title VII discrimination claim must be reviewed in light of the Civil Rights laws. The City Defendants also assert that Plaintiff cannot recover punitive damages from the Employee Defendants, because the Fifth Circuit has held that state actors operating in an individual capacity are not liable for punitive damages associated with Title VII discrimination claims.
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.  With regard to Plaintiff's ADA claim stemming from the fitness for duty evaluation, the City Defendants argue that Plaintiff's allegation that he was required to take a fitness for duty examination, even when considered with Plaintiff's allegations that he suffered from " post-traumatic syndrome" and took medical leave from work, does not establish a violation of the ADA. They assert that simply being required to take a fitness for duty exam is not an ADA violation. The City Defendants assert that under 42 U.S.C. § 12112(d)(4)(A), an employer may not require a medical examination to determine whether an employee is disabled, " unless such examination or inquiry is shown to be job-related and consistent with business necessity." The City Defendants assert that courts have recognized the business necessity exception in the context of police departments, because police departments place officers in positions where they can inflict harm if they act irrationally. (City Def.'s Reply, Rec. Doc. 25, p. 2-3) The City Defendants contend, relying on Brownfield v. City of Yakima, 612 F.3d 1140, 1145 (9th Cir. 2011) and Conroy v. New York State Department of Correctional Services, 333 F.3d 88 (2d Cir. 2003), 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," but rather, allows the employer to require a medical examination
" when the employer can identify legitimate, non-discriminatory reasons to doubt the employee's capacity to perform his or her duties." (City Def.'s Reply, Rec. Doc. 25, p. 3) The City Defendants assert that in light of Plaintiff's allegation that he was a Senior Corrections Officer for the Slidell Police Department, it was " necessary and permissible" for the City to ensure that he could return to active duty safely before allowing him to do so.  (City Def.'s Reply, Rec. Doc. 25, p. 3)
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,  and (2) report that Plaintiff has provided evasive answers in his discovery responses that shed no light on the factual basis for his claims, in particular his retaliation and discrimination claims.  (City Def.'s Supplemental Mem. in Supp. of Mot., Rec. Doc. 32, p. 1) They have also attached Plaintiff's responses to interrogatories and requests for production of documents. (Ex. A to City Def.'s Supplemental Mem. in Supp. of Mot., Rec. Doc. 32-1)
In his supplemental opposition, Plaintiff asserts that: (1) the City Defendants, to date, have not answered his complaint and are in possession of his discovery responses but are concerned that Plaintiff might have incriminating impeachment evidence against some of the Defendants; and (2) the only reason the City Defendants filed their supplemental memorandum was to cast the Plaintiff in a negative light before the Court. Plaintiff also points out that the City Defendants filed a Motion to Compel answers to the discovery in question.
" 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. 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 at 679. 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 F. App'x. 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 ...