Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Blakely v. Nestle Waters North America, Inc.

United States District Court, E.D. Louisiana

April 16, 2015



JAY C. ZAINEY, District Judge.

The following motion is before the Court: Motion to Dismiss (Rec. Doc. 22) filed by defendant Nestle Waters North America, Inc. Plaintiff George Blakely, pro se, has not filed an opposition to this motion. The motion is before the Court on the briefs without oral argument.


Plaintiff George Blakely filed this action pro se under the Americans with Disabilities Act ("ADA") alleging via his Amended Complaint that Defendant discriminated against him by failing to provide reasonable accommodations for his disability and retaliated against him by terminating him.

Plaintiff was employed by Defendant, Nestle Waters North America, Inc. As a result of conditions at a store for which Plaintiff had responsibility, Defendant placed Plaintiff on a 90 day "Performance Improvement Plan" ("PIP") on October 30, 2012. Plaintiff alleges that the PIP contained both untrue statements regarding him and unrealistic goals regarding his work assignments. Shortly thereafter, due to the PIP and ongoing working conditions, Plaintiff alleges that around November 5, 2012 he had to take a vacation during which Plaintiff wrote an appeal to Defendant asking to be taken off of the PIP due to the unrealistic goals. He also scheduled an appointment with his primary care doctor for mental health issues. A few days later he submitted a written appeal asking again to be taken off of the PIP. Plaintiff also argues that he received a disparaging email in derogation of company policy from a supervisor on November 27, 2012 in response to Plaintiff's attempt to figure out the meaning of certain job-related terminology.[1] Plaintiff reported this email to the human resources department at Defendant's offices on November 29, 2012.

That same day, Plaintiff was "diagnosed with mild depression, stress anxiety disorder and ADD" and was prescribed "10mg of Lexapro and 10mg of Adderall." He reported this diagnosis verbally via telephone conference with Defendant's human resources department in addition to submitting the doctor's note. Plaintiff also again discussed the disparaging email.

On December 4, 2012, Plaintiff had a telephone call with the human resources manager and district manager to discuss the "unrealistic goals" in the PIP, "the sneakiness of the emails, " and the resulting headaches, sleep issues, difficulty concentrating at work, and the doctor's diagnosis. Plaintiff claims that the human resources manager then asked him if he was trying to file a worker's compensation claim. Plaintiff alleges that following this conference, Defendant removed some of the untrue statements from the PIP but did not change the unrealistic goals.

Following another doctor's appointment in late January 2013, Plaintiff had another phone call with his supervisors. Plaintiff alleges that during this call he requested an accommodation in the form of having extra time to achieve the goals of the 90 day PIP, his "probationary period." Plaintiff also reported to his supervisors during this meeting that he was "doing a lot better with my depression, I am able to focus on what I have to do and the doctor wanted to know if you could give me some extra time on my probation." After numerous communications over the next several days concerning what sales numbers to use to estimate time Plaintiff would need to achieve his goals, Plaintiff was informed on February 5, 2013 for the first time that he had been granted a three-day extension but that the PIP had already expired as of February 3, 2013. On February 13, 2013, Defendant terminated Plaintiff from his position for "performance issues."

Plaintiff filed his original Complaint on June 14, 2014. Defendant moved to dismiss the Complaint on August 8, 2014. In its Order of December 1, 2014 (Rec. Doc. 20), this Court found that the original Complaint included neither "information of a specific accommodation sought nor is any accommodation linked to a limitation arising from these disabilities." (Rec. Doc. 20; Order at 5). However, as Plaintiff is proceeding pro se, the Court gave leave for Plaintiff to amend his Complaint. Plaintiff filed his Amended Complaint on December 29, 2014, and Defendant subsequently filed this renewed motion to dismiss, set for submission on January 28, 2015.

Plaintiff seeks injunctions restraining Defendant "from engaging in employment practices which discriminate on the basis of disability" and "from engaging in retaliation against employees who make good-faith complaints of employer verbal language that makes employees uncomfortable." Plaintiff also seeks compensatory and punitive damages. Via the instant motion the Defendant seeks to dismiss Plaintiff's complaint in its entirety pursuant to Rule 12(b)(6).


In the context of a motion to dismiss the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 555 (2007)).

The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)). To avoid dismissal, a plaintiff must plead sufficient facts to "state a claim for relief that is plausible on its face." Id. (quoting Iqbal, 129 S.Ct. at 1949). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court does not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal conclusions must be supported by factual allegations. Id. (quoting Iqbal, 129 S.Ct. at 1950).

The Court also recognizes that pro se pleadings must be given the benefit of liberal construction. Cooper v. Sheriff of Lubbock Cnty., ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.