United States District Court, W.D. Louisiana, Lake Charles Division
RUFUS TREVILLION, SR. AND LOLETTE TREVILLION
UNION PACIFIC RAILROAD
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a partial motion to dismiss and request for
attorney fees filed by defendant Union Pacific Railroad
(“Union Pacific.”) Doc. 12. The motion is
motion has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636. For the reasons stated below,
IT IS RECOMMENDED that the motion be
Facts and Procedural History
August 13, 2014, Rufus Trevillion, Sr. (hereafter
“Trevillion”) was performing his job as Union
Pacific's “Lead Bridge Tender” when a heated
exchange took place between him and another Union Pacific
employee. Doc. 1, pp. 3-4. Trevillion alleges that, after
advising this employee about the need to conduct maintenance
on one of the bridges maintained by Union Pacific, the
employee became “belligerent, ” and assaulted
him. Id. at 4.
the incident, Trevillion was sent home by his supervisor.
Id. Plaintiff also alleges that the following day he
received a telephone call and was informed that he was
“pulled out of service.” Id. at p. 5. By
certified letter dated August 18, 2014, plaintiff alleges his
employer asked that he undergo a medical review “based
on Supervisor-Requested Evaluation” and he was told
that, “once medical cleared him, he would be required
to return to work.” Plaintiff describes the course of
action between him and defendant during the relevant time
period and then finally concludes that, since August 14,
2014, he has never returned to work. Id. at p. 9. He
indicates Union Pacific granted him an initial “Medical
Leave of Absence” from August 15, 2014 to October 15,
2014, that was eventually extended through January 31, 2015.
Id. at 8. Plaintiff asserts that he never applied
for this leave and that, despite having seen several doctors
who found nothing medically wrong with him, Union Pacific
hired a replacement for him on September 26, 2014.
Id. at 7-8.
February 6, 2015, Trevillion filed a complaint of racial
discrimination and retaliation with the Equal Employment
Opportunity Commission (“EEOC.”) Id. at
9. On September 26, 2015, he amended his EEOC complaint to
include violations of the Americans with Disabilities Act
(“ADA.”) Id. On February 8, 2018, the
EEOC issued him a right to sue letter. Id.
4, 2018, Trevillion, and his wife, Lolette Trevillion, filed
suit against Union Pacific in this court. Id. The
petition alleges Union Pacific was discriminatory,
retaliatory, and negligent in violation of state and federal
law. Id. at 10-17.
November 2, 2018, Union Pacific filed the instant partial
motion to dismiss and request for attorney fees. Doc. 12.
Defendant asserts that all of plaintiffs' theories of
recover under state law are time barred and/or barred by
state law. Id. at 1. Additionally, it seeks attorney
fees pursuant to La. R.S. 23:303(B) and La. R.S. 23:967(D).
Id. Defendant's motion is unopposed.
Law and Analysis
12(b)(6) of the Federal Rules of Civil Procedure allows for
dismissal of a claim when a plaintiff “fail[s] to state
a claim upon which relief can be granted.” When
reviewing such a motion, the court should focus exclusively
on the complaint and its attachments. Wilson v.
Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). Such
motions are also reviewed with the court “accepting all
well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Bustos v.
Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010).
court's task in evaluating a motion to dismiss under Rule
12(b)(6) is “not to evaluate the plaintiff's
likelihood of success, ” but instead to determine
whether the claim is both legally cognizable and plausible.
Billups v. Credit Bureau of Greater Shreveport, 2014
WL 4700254, *2 (W.D. La. 2014) (quoting Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010)). However, “[w]hile the district court
must accept as true all factual allegations in the complaint,
it need not resolve unclear questions of law in favor of the
plaintiff.” Kansa Reinsurance Co., Ltd. v.
Congressional Mortgage Corp. of Texas, 20 F.3d 1362,
1366 (5th Cir.1994).
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