United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSO, UNITED STATES DISTRICT COURT CHIEF JUDGE
the Court is the Motion for Summary Judgment
(Doc. 28) filed by Defendant, Louisiana Department
of Wildlife and Fisheries ('LDWF') seeking the
dismissal of all claims brought by Plaintiff
Todd Abshire pursuant to Federal Rule of Civil Procedure 56.
Plaintiff filed an Opposition. (Doc. 39). LDWF fdcd a Reply.
(Doc. 43). Plaintiff then filed a Sur-Rcply. (Doc. 46). The
Court has jurisdiction under 28 U.S.C. § 1331. For the
following reasons, the Motion for Summary Judgment
(Doc. 28) is GRANTED.
a disabled veteran, began his employment as a Wildlife
Enforcement Cadet on December 9, 2013, by entering the LDWF
Training Academy ("the Academy"). (Id. at
¶¶ 13, 16). Prior to his employment with LDWF,
Plaintiff was diagnosed with Post Traumatic Stress Disorder
("PTSD") due to his time in the military as a
combat Marine. (Id. at ¶ 2; Doc. 39 at p. 1).
Plaintiffs symptoms from PTSD include: the inability to go to
certain places and be around crowds of people; the inability
to answer the phone; anxiousness; feelings of withdrawal due
to changes in his routine; and hypervigilance, which causes
increased anxiety, exhaustion, and the inability to
concentrate on paperwork. (Doc. 28-8 at ¶ 3).
posting for a Wildlife Enforcement Cadet provided, inter
alia, that the "[p]osition is subject to call 24
hours a day, 7 days a week." (Id. at ¶ 5).
Additionally, LDWF contends that its internal job description
describes the following functions as "100% E" or
"essential" for an Agent: preparing reports;
qualifying with firearms; learning to check hunters and
fisherman for equipment, limits, and license compliance;
conducting investigations of complaints and alleged
violations; investigating boating accidents; assisting other
law enforcement agencies with the apprehension of criminals;
providing search and rescue services; and providing
information to the public on wildlife and fisheries
conservation and boating safety.(Id. at ¶ 22).
to Plaintiff, at the time he applied for the Cadet position,
he had no concerns that his PTSD would impact his ability to
perform the job duties as he understood them. (Id.
at ¶ 7). Plaintiff admitted that there was no discussion
of his PTSD during the pre-employment hiring process;
however, he noted that he was a disabled veteran in his
employment application, and noted that he was taking Zoloft
for his "Depression/PTSD" in his health history
form dated November 4, 2013. (Id. at ¶¶
9-11). The LDWF policy requires a two-year probationary
period for a Wildlife Enforcement Agent. (Id. at
began his employment at the Academy where he spent
approximately six months training as a cadet. (Id.
at ¶ 16). During his orientation at the Academy,
Plaintiff received a copy of the LDWF Employee Handbook,
which contains an anti-discrimimition policy and the LDWFs
Americans with Disability Acl ("ADA") policy on
requesting accommodations. (Id. at ¶ 17).
Plaintiff also received the Law Enforcement Division Policy
and Procedure Manual ("Enforcement Manual"), which
contains job descriptions, job duties, and the policies and
procedures for Law Enforcement Cadets and Law Enforcement
Agents. (Id. at ¶ 19). While at the Academy,
Plaintiff did not need and did not request any kind of
accommodation for his PTSD. (Id. at ¶ 24).
Plaintiff graduated from the Academy on June 10, 2014.
(Id. at ¶ 25).
Plaintiff was assigned to work in Region 5, District B, in
Cameron Parish, where he entered another phase of training
during which he was supervised by a Field Training Officer
("FTO"). (Id. at ¶¶ 26, 32).
During this period, Plaintiff reported, at various times, to
"Sgt. David Sanford, Sgt. Aaron Monceaux, and Sgt. Keith
Delahousaye, " as well as Lt. Beau Robertson ("Lt.
Robertson"). (Id. at ¶ 27; Doc. 40 at
¶ 27). In turn, Lt. Robertson reported to Captain Robert
Buatt ("Captain Buatt"). (Doc. 28-8 at ¶ 37).
his first meeting in the Region, Plaintiff advised Lt.
Robertson that he suffered from PTSD, but that his PTSD had
not previously been an issue for him in the past.
(Id. at ¶ 28). Plaintiff also informed Lt.
Robertson that ho had no experience in law enforcement nor
had he ever been hunting or fishing, so he was going to need
help. (Id. at ¶ 29). Captain Buatt was aware
that Plaintiff suffered from PTSD because Lt. Col. Sammy
Martin, who oversees the LDWF Enforcement Administration,
informed him of it upon Plaintiffs graduation from the
Academy. (Id. at ¶ 30). During the period in
which he was supervised by a FTO, Plaintiff only discussed
his PTSD with Sgt. Monceaux and Sgt. Sanford, but he did not
request any accommodations relating to his PTSD, other than
requesting copies/samples of old reports, which he received.
(Id. at ¶ 34).
December 9, 2014, Plaintiff was promoted from Wildlife
Enforcement Cadet to Wildlife Enforcement
Agent. (Id. at ¶ 38). In this
capacity, Lt. Robertson provided Plaintiff with feedback by
leaving written comments on the weekly reports that were
submitted to Lt. Robertson for review and approval.
(Id. at ¶ 39). Plaintiff also requested copies
of Lt. Robertson's old reports as a template to improve
the quality of his own reports; however, the copies were
never provided directly from Lt. Robertson, but were
accessible in the office filing cabinets. (Id. at
April 8 and 9, 2015, during Plaintiffs scheduled vacation
days, both Captain Buatt and Lt. Robertson made several
attempts to contact Plaintiff by phone to discuss paperwork
issues. (Id. at ¶ 41). However, Plaintiff did
not answer or return the calls, prompting Captain Buatt to
send Lt. Robertson to Plaintiffs home to ensure his safety
and well-being. (Id. at ¶ 41). Plaintiff
testified that he did not respond to phone calls from Captain
Buatt or Lt. Robertson because he was having a PTSD episode,
and that he conveyed this to Lt. Robertson during the home
visit at which time Plaintiff literally cried on Lt.
Robertson's shoulder. (Id. at ¶ 42). On
April 21, 2015, Plaintiff did not report to work as scheduled
because he had changed schedules with a co-worker, but failed
to notify the Lieutenant or the Captain. (Id. at
¶ 42). On that date, Lt. Robertson counseled Plaintiff
about his failure to return phone calls and his failure to
follow proper LDWF policy with respect to schedule changes.
(Id. at ¶ 43). On April 27, 2015, Lt. Robertson
informed Plaintiff of repeated problems with untimely and
incorrect purchase card logs and receipts (expense
reimbursements) from March, as well as incidents of not
reporting to work on time. (Id. at ¶ ¶
3, 2015, Lt. Robertson notified Plaintiff that his MV-3
report for the month of April was late. (Doc.
28-8 at ¶ 46). However, when he finally submitted the
report, Captain Buatt found numerous mathematical errors.
(Id. at ¶ 46). Captain Buatt noted the errors
and returned it to Plaintiff for correction, but upon
re-submission, the errors identified by Captain Buatt had not
been addressed. (Id.). On May 4, 2015, Captain Buatt
and Lt. Robertson met with Plaintiff to discuss the various
performance issues that had developed over the past few
months. (Id. at ¶ 47). At this meeting,
Plaintiff felt "railroaded" because Lt. Robertson
made no mention of their discussions at his home on April 9
where Plaintiff informed him that he was struggling with his
PTSD. (Id., at ¶ 48). On May 5, 2015, Plaintiff
sent Lt. Robertson an email message wherein he requested that
in the future, prior to the quality of his work becoming an
issue, Lt. Robertson notify him of same so they could address
the issues professionally (Id. at ¶ 48; Doc. 28-1
at p. 199). The email further provided,
[w]hen you came to my house last month to check on me I told
you that due to my PTSD I had hit a pretty rough patch in my
life, and that lately it had been interfering with work. I
know in the past I have asked about working together more so
that I can pick your brain and get feedback on my
performance, and also getting some copies of your old
paperwork to use as a template. Any chance this could happen?
(Id.). On May 9, 2015, Lt. Robertson received a call
from Sgt. Stuart Guillory who advised Lt. Robertson that
Plaintiff had reported to work and that he appeared
disoriented. (Doc. 28-8 at ¶ 50). Plaintiff was
subjected to a field sobriety test, but no other medical
examinations or drug tests were performed on him.
(Id.). As a result of this incident, Plaintiff was
taken to the hospital, and subsequently sent home on paid
administrative leave. (Id.).
13, 2015, Captain Buatt and Lt. Robertson presented Plaintiff
with a "Counseling Conference Worksheet" ("May
13 Worksheet") that summarized the discussions that were
held during the May 4, 2015 meeting. (Id. at ¶
51; Doc. 28-1 at p. 214-16). During the meeting, Captain
Buatt wrote on the Worksheet, "[e]mployee advised that
he is dealing with some issues in his personal life. Other
than personal issues, the employee advised he has no excuses
for the performance problems mentioned on this counseling
conference worksheet." (Id. at ¶ 51).
Plaintiff has testified that these "personal
issues" related to his PTSD. (Doc. 28-1 at p. 124). On
May 17, 2015, in response to the May 13 Worksheet, Plaintiff
testified that he prepared a written memo to Lt. Robertson.
In the memo, Plaintiff wrote:
My purpose in writing this is to address issues that have
occurred at work within the last few months, formally
re-submit my previous requests, and express my concern
regarding a lack of dialogue between us. I have asked several
times since coming to Region 5 and falling under your
supervision for assistance concerning paperwork, work related
issues, and professional development. Most of these requests
have been verbal, but I have also sent emails to your state
email on at least three occasions .... I was under the
impression that after explaining my reoccurring struggles
with PTSD to you when you came to my home in April that Capt.
Buatt would be informed . . . .
(Doc. 28-8 at ¶ 52; Doc. 28-1 at p. 200). On May 23,
2015, Lt. Robertson, Senior Agent Justin Lowry, and Plaintiff
worked a boating safety patrol. (Doc. 28-8 at ¶ 54).
During the patrol, the agents encountered a boat in which the
operator admitted to drinking alcohol and showed signs of
impairment. (Id.). Plaintiff did not conduct a
Standard Field Sobriety Test ("SFST") to verify the
operator's impairment. (Id.). On that same
patrol, Plaintiff failed to inform a watercraft operator that
a 16-year old passenger was required to wear a life jacket.
(Id.), On August 5, 2015, Lt. Robertson and Captain
Buatt met with Plaintiff for his 2014-2015 annual evaluation.
(Id. at ¶ 55). In the evaluation, Plaintiff was
rated a "Needs Improvement/Unsatisfactory."
(Id. at ¶ 55). Specifically, Plaintiff received
the lowest rating on the following areas:
• Maintains a working knowledge of laws, policies, SOPs,
job requirements, conditions and other directives and adheres
• Assignments completed on time without reminders;
• Produces work that is detailed, accurate and neat;
• Reports for duty on time and as scheduled;
• Available for callouts and handles commitments
• Performs will [sic] without close supervision.
(Id. at ¶ 56; Doc. 28-1 at pp. 201-05). The May
23 boating safety patrol incident where Plaintiff could not
perform/administer SFST resulted in a zero rating for failure
to "[maintain] a working knowledge of laws, policies,
SOPs, [and] job requirements . . . ." (Id. at
¶ 57). Likewise, Plaintiff received a zero rating for
"[n]umerous instances that are documented of failing
to" complete assignments on time, failing to produce
work that was accurate, failing to report schedule changes,
and failing to be available for callouts. (Id. at
¶¶ 58-61). Further, in the evaluation meeting,
Captain Buatt informed Plaintiff that an overall rating of
"Needs Improvement/Unsatisfactory" during his
probationary period, could jeopardize his employment.
(Id. at ¶ 62). Plaintiff admits that there was
no mention of his PTSD during this meeting. (Id.).
on that same date, Captain Buatt made a written
recommendation to Colonel Joseph Broussard, the final
decision-maker, that Plaintiffs employment with LDWF be
terminated based on the totality of Plaintiffs performance
deficiencies over the course of the entire performance
appraisal year and "[d]ue to [Plaintiffs] poor
performance and deceptive tendencies." (Id. at
¶¶ 63, 66; Doc. 28-1 at p. 207). After an
independent review of Plaintiff s employment record, Colonel
Broussard approved the decision to terminate Plaintiff
"based on the fact that [Plaintiff] received a
'Needs Improvement' performance rating during his
probationary year." (Id. at ¶ 67; Doc.
28-2 at ¶¶ 17-18). Plaintiff never requested an
accommodation for his PTSD from Col. Broussard, and Col.
Broussard was unaware that Plaintiff suffered from PTSD.
(Doc. 28-8 at ¶ 68).
August 10, 2015, Plaintiff was notified that his employment
with LDWF was terminated in accordance with Louisiana Civil
Service Rule 9.1(e). (Id. at ¶ 71; Doc. 28-1 at
p. 206). On July 15, 2016, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission ("EEOC") alleging that he was terminated
on the basis of his disability. (Doc. 28-1 at p. 285).
Plaintiff filed his first Petition for Damages on August 10,
2016, in the Nineteenth Judicial District Court, State of
Louisiana, which was removed to federal court on October 6,
2016. (Doc. 1). On November 18, 2016, Plaintiff amended his
complaint asserting claims of disability discrimination and
retaliation under the Rehabilitation Act, 29 U.S.C. §
701, et seq., the Americans with Disabilities Act
("ADA"),  29 U.S.C. § 12101, et seq.,
and the Louisiana Employment Discrimination Law
("LEDL"), La. Rev. Stat. § 23:301, et
seq. (Doc. 7 at ¶ 4).