United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
an employment discrimination action brought by plaintiff
René Paige against his former employer, Pellerin
Milnor Corporation (“Pellerin”), asserting claims
of disability discrimination and retaliation in violation of
the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and Title VII, 42 U.S.C. §
2000e et seq.; and unlawful interference with plaintiff's
rights under the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. 1140. Complaint, Record
Doc. No. 1. This matter was referred to a United States
Magistrate Judge for all proceedings and entry of judgment in
accordance with 28 U.S.C. § 636(c) upon written consent
of all parties. Record Doc. No. 16.
filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss all of
plaintiff's claims. Record Doc. No. 13. Paige filed a
timely opposition memorandum, Record Doc. No. 10, and
Pellerin received leave to file a reply memorandum. Record
Doc. Nos. 19, 20, 21. Having considered the complaint, the
record, the arguments of the parties and the applicable law,
and for the following reasons, IT IS ORDERED that
defendant's motion to dismiss is GRANTED IN PART AND
DENIED IN PART as follows.
Standard of Review
moves under Rule 12(b)(6) to dismiss plaintiff's claims
for failure to state a claim upon which relief can be
granted. Under this rule, as recently clarified by the
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” A claim for relief is
plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” A claim for relief is implausible on its face
when “the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct.”
Harold H. Huggins Realty, Inc. v. FNC, Inc., 634
F.3d 787, 796 (5th Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007))).
Supreme Court's decisions in Iqbal and
Twombly . . . did not alter the longstanding
requirement that when evaluating a motion to dismiss under
Rule 12(b)(6), a court must accept[ ] all well-pleaded facts
as true and view[ ] those facts in the light most favorable
to the plaintiff.” Id. at 803 n.44 (quotation
omitted); accord Murchison Capital Partners, L.P. v.
Nuance Commc'ns, Inc., 625 F. App'x 617, 618 n.1
(5th Cir. 2015) (citing Wood v. Moss, 134 S.Ct.
2056, 2065 n.5 (2014)).
respect to any well-pleaded allegations ‘a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.'”
Jabary v. City of Allen, 547 F. App'x 600, 604
(5th Cir. 2013) (quoting Iqbal, 556 U.S. at 664).
“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Maloney Gaming Mgmt., L.L.C. v.
St. Tammany Parish, 456 F. App'x 336, 340 (5th Cir.
2011) (quotations omitted) (citing Iqbal, 129 S.Ct.
at 1959; Elsensohn v. St. Tammany Parish Sheriff's
Ofc., 530 F.3d 368, 371 (5th Cir. 2008); In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 n.10
(5th Cir. 2007)).
Title VII Claims
Paige's complaint asserts a claim under Title
VII that Pellerin retaliated against him “because
of his disability, ” Record Doc. No. 1 at ¶ 38,
Title VII prohibits employment discrimination because of
race, color, religion, sex or national origin, 42 U.S.C.
§ 2000e-2(a)(1), but not disability. In turn, Title
VII's anti-retaliation provision “forbids employer
actions that ‘discriminate against' an employee . .
. because he has ‘opposed' a practice that Title
VII forbids . . . .'” Burlington N. & Santa
Fe Ry. v. White, 548 U.S. 53, 58 (2006) (quoting 42
U.S.C. § 2000e-3(a)). The anti-retaliation provision
thus “prevent[s] an employer from interfering (through
retaliation) with an employee's efforts to secure or
advance enforcement of [Title VII's] basic
guarantees.” Id. at 63.
Paige does not allege that he engaged in any
activity based on any of the characteristics protected by
Title VII, he cannot state a retaliation claim under that
statute. Further, he is barred from attempting to do so now,
as he did not file a charge of race, color, religion, sex or
national origin discrimination with the EEOC within 300 days
of the last discriminatory employment action, which is a
prerequisite to the filing of a discrimination lawsuit under
Title VII in a federal court in Louisiana. Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002);
Hartz v. Adm'rs of Tulane Educ. Fund, 275 F.
App'x 281, 287 (5th Cir. 2008) (citing 42 U.S.C.
§§ 2000e-5(e), 2000e-5(f)(1)) (additional citations
omitted). Because more than 300 days have passed since Paige
was fired on January 11, 2016, he cannot file a charge of
race, color, religion, sex or national origin discrimination
now, and his Title VII claims, if any, must be dismissed.
Morgan, 536 U.S. at 113; Martin v. Lennox
Int'l Inc., 342 F. App'x 15, 18 (5th Cir. 2009);
Stith v. Perot Sys. Corp., 122 F. App'x 115, 117
(5th Cir. 2009); Tyler v. Union Oil Co., 304 F.3d
379, 382, 391 (5th Cir. 2002).
the ADA prohibits discrimination based on disability, 42
U.S.C. § 12132, and retaliation for having opposed
disability discrimination or exercised any right granted or
protected by the ADA. 42 U.S.C. § 12203(a). The ADA
incorporates the remedies provided in Title VII. Mathes
v. Harris Cty., 31 F. App'x 835 (5th Cir. ...