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Abshire v. Louisiana Department of Wildlife and Fisheries

United States District Court, M.D. Louisiana

April 23, 2018

TODD ALEXANDER-CLOUD ABSHIRE
v.
LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES

          RULING AND ORDER

          BRIAN A. JACKSO, UNITED STATES DISTRICT COURT CHIEF JUDGE

         Before 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.

         I. BACKGROUND

         Plaintiff, 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).

         The job 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.[1](Id. at ¶ 22).

         According 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 ¶ 14).

         Plaintiff 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).

         Thereafter, 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).

         During 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).

         On December 9, 2014, Plaintiff was promoted from Wildlife Enforcement Cadet to Wildlife Enforcement Agent.[2] (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 ¶ 40).

         On 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 ¶ ¶ 44-45).

         On May 3, 2015, Lt. Robertson notified Plaintiff that his MV-3 report[3] 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[4] (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.).

         On May 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."[5] (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 . . . .[6]

(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 to same;
• 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 reliably;
• 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.).

         Nonetheless, 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."[7] (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).

         On August 10, 2015, Plaintiff was notified that his employment with LDWF was terminated in accordance with Louisiana Civil Service Rule 9.1(e).[8] (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"), [9] 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).

         II. ...


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