Theard v. Department of State Civil Service, State of Louisiana et al

Filing 56

ORDER AND REASONS granting 44 Motion to Dismiss Case. Signed by Judge Martin L.C. Feldman on 9/21/2011. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MARILYN THEARD

CIVIL ACTION

Versus

NO. 10-4165

DEPARTMENT OF CIVIL SERVICE, STATE OF
LOUISIANA, ET AL.

SECTION: “F”

ORDER AND REASONS
Before the Court is defendants’ Rule 12(b)(6) motion to
dismiss.

For the following reasons, the motion is GRANTED.

Plaintiff worked as a registered nurse at the Huey P. Long
Hospital, a private hospital, for many years.

After Hurricane

Katrina, she began to have mental health problems, which one
doctor has diagnosed as post-traumatic stress disorder and
anxiety attacks.

Toward the end of 2007, because of her mental

health, Ms. Theard began to receive negative feedback from the
hospital supervisors about her job performance.

She was told

that she did not prioritize tasks on her unit, and that she had
been late to work without prior authorization.

She was

terminated by the hospital in late December 2007.

The Louisiana

State Board of Nursing suspended plaintiff’s license on March 11,
2009, after a hearing.

The Board found that plaintiff was no

longer able to practice nursing with reasonable skill and safety;
that she had a physical or mental impairment which interfered
with her work, and that she had shown signs of being under the
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influence of drugs or alcohol while at work.
Plaintiff filed suit in November 2010.

She sued the

Louisiana State Department of Civil Service, the Huey P. Long
Hospital, the National Practitioner Data Bank, the United States
Equal Employment Opportunity Commission, the Louisiana State
Board of Nursing, and the Louisiana State Employees Retirement
System.

In March 2011, on request of the plaintiff, the Court

dismissed the Department of Civil Service, the Hospital, the Data
Bank and the Commission with prejudice.

Plaintiff also dismissed

the Board, as well as the Retirement System without prejudice.
Plaintiff later reopened her case as to the Nursing Board and
Retirement System.

Plaintiff says the Board discriminated

against her on the basis of her race and disability, in violation
of the Americans with Disabilities Act (“ADA”).
retaliation by the Board.

She also alleges

Further, plaintiff claims that the

Retirement System unlawfully denied her retirement benefits.
Defendants first ask the Court to transfer venue of this
case under 28 U.S.C. § 1406 from the Eastern District of
Louisiana to the Middle District because venue here is improper.
Plaintiff opposes transfer because she lives in New Orleans.

The

Court finds that the defendants have waited too long to raise the
issue of improper venue.

Section 1406(b) states that “Nothing in

this chapter shall impair the jurisdiction of a district court of
any matter involving a party who does not interpose timely and

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sufficient objection to the venue.”
almost one year ago.

Plaintiff filed her lawsuit

The defendants’ objection to venue now is

untimely.
The defendants also ask the Court to transfer this case to
the Middle District based on 28 U.S.C. § 1404(a), which allows a
change of venue where “[f]or the convenience of parties and
witnesses, [and] in the interest of justice,” a transfer is
appropriate.

The Court finds that in this case transfer is also

inappropriate under § 1404.

This case does not appear to be one

that will need extensive discovery and as such the convenience of
witnesses, or the production of documents is not a serious
consideration.
Defendants next ask the Court to dismiss plaintiff’s ADA
claim because she filed it too late with the Commission.
Court agrees.

The

The record shows that plaintiff filed a charge of

discrimination with the Commission sometime in July 2010.

In her

discrimination charge, plaintiff said that the Board
discriminated against her because of her disability.

Even under

the most generous 300 day time limit for filing such claims,
plaintiff’s claim was filed too late.
2000e-5(e)(1).

See 42 U.S.C. §

Her charge of discrimination claims that the

alleged discrimination took place in November 2008.

Plaintiff

waited more than a year and a half to file her claim.

The

Commission recognized this, and notified plaintiff that her claim

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was untimely.

Because she waited too long to file her claim

against the Board, the Court dismisses, with prejudice,
plaintiff’s ADA claim as untimely filed.
No argument has been made to support dismissal of the
plaintiff’s retaliation claim.

Accordingly, the Court does not

address this claim.
Defendants also ask the Court to dismiss plaintiff’s
allegations against the Retirement System for failure to state a
claim on which relief can be granted.

To survive a Rule 12(b)(6)

motion to dismiss, the plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”

In re

Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007)).
“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).”

Twombly, 550 U.S. at 555 (quotation marks, citations,

and footnote omitted).

In deciding whether dismissal is

warranted, the Court will not accept conclusory allegations in
the complaint as true.

Kaiser Aluminum & Chem. Sales, Inc. v.

Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
The Court cannot determine what claim the plaintiff is
bringing against the Retirement System.

Although plaintiff says

that she wants the Retirement System to give her retirement

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benefits, she does not show what the Retirement System has done
wrong, or why this Court has any lawful authority to consider her
claim.
Accordingly, IT IS ORDERED:

The defendants’ motion to

dismiss is GRANTED.

New Orleans, Louisiana, September 21, 2011

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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