Franklin v. Slidell City et al

Filing 45

ORDER & REASONS: granting 43 Motion for Summary Judgment with respect to Plaintiff's Title VII and ADA claims. FURTHER ORDERED that Plaintiff's Title VII retaliation claim and ADA claims are hereby DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge Carl Barbier on 8/27/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TROY REGINALD FRANKLIN

CIVIL ACTION

VERSUS

NO: 12-1940

CITY OF SLIDELL, ET AL.

SECTION: “J”(1)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
43), filed by Defendants, the City of Slidell and six of its
employees. Plaintiff has filed an opposition (Rec. Doc. 44). The
Defendants’ motion was set for hearing, on the briefs, on June
19, 2013. Having considered the motion and legal memoranda, the
record,

and

Defendants’

the

applicable

motion

should

law,
be

the

Court

GRANTED

IN

finds

PART

that

for

the

reasons

explained more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
On

July

26,

2012,

Plaintiff,

Troy

Franklin,

filed

the

instant pro se employment discrimination lawsuit. (Compl., Rec.
Doc. 1) Plaintiff is an African-American male who was formerly
1

employed by the City of Slidell as a senior corrections officer
in the Slidell Police Department. (Compl., Rec. Doc. 1, p. 1;
Pl.’s Opp. to City Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 1) As
a senior corrections officer, Plaintiff's job duties included:
responsibility for maintaining and controlling the Slidell City
jail,

supervising

all

personnel

in

Slidell's

Corrections

Division, ensuring proper functioning and usage of the Division's
equipment
prisoners.1

by

all

personnel,

(Slidell

Police

and

Dep't

controlling
Job

and

Description,

searching
Ex.

A

to

Def.'s Mtn for Summ. J., Rec. Doc. 43-4) Plaintiff also had
arrest powers and authority to carry a firearm in the course a
scope of his employment. Id.; (Klein Aff., Rec. Doc. 43-17, p. 2,
¶

7)

Physical

requirements

of

senior

corrections

officers

1

These facts are drawn from the statement of uncontested material facts
submitted by Defendants with their motion for summary judgment. The Local
Rules of the United States District Court for the Eastern District of
Louisiana provide in pertinent part:
Any opposition to a
motion for summary judgment must include a
separate and concise statement of the material facts which the
opponent contends present a genuine issue. All material facts in the
moving party's statement will be deemed admitted, for purposes of
the motion, unless controverted in the opponent's statement.
L.R. 56.2.
Pro se litigants must comply with "relevant rules of procedural and
substantive law." Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981); Leroy v.
Blackwater, Inc., No. 06-4601, 2007 WL 2127593, at *3 (E.D. La. June 25,
2007). Pro se litigants have a duty to familiarize themselves with the local
rules. L.R. 83.2.7. Because Plaintiff failed to submit a "separate and
concise" statement of material facts which he contends present a genuine issue
in response to Defendants' motion for summary judgment, all material facts in
Defendants' statement of uncontested material facts have been deemed admitted
for purposes of the instant motion.

2

included being able to restrain a violent suspect. Id. The job
description also notes that senior corrections officers must have
the ability to "determine the appropriate method of action to
take should a riotous or volatile situation occur in the jail,"
and "on occasion may be in highly dangerous situations. Id.
On

December

10,

2008,

at

Franklin's

request,

the

City

referred him to the Employee Assistance Program for counseling.
Id.

On

April

20,

2009,

Plaintiff

Discrimination

with

the

discrimination

and

retaliation

illegal

Title

under

EEOC

VII.

On

filed

alleging
for
June

that

he

opposing
15,

a

2009,

Charge

faced

practices
at

of

racial
made

Plaintiff's

request, Plaintiff began twelve weeks of paid medical leave under
the Family and Medical Leave Act ("FMLA") after providing the
City with a note from his physician, Dr. Jose Lefran, diagnosing
post traumatic stress syndrome. Id. On August 21, 2009, while
still on paid medical leave, Plaintiff appeared at the U.S.
Attorney's Office at the Federal Courthouse in New Orleans and
refused to leave. Id. According to the U.S. Marshal's report of
the incident, Plaintiff "wished to report to the USA office
issues with his ranking officer/supervisor at the Slidell Police
Department making threats against the lives of he and his family
. . ." Id. Ultimately, the New Orleans Police Department ("NOPD")
was

contacted

and

officers

escorted
3

Plaintiff

to

University

Hospital for psychiatric evaluation. Id. The NOPD report states
that

the

Court

Operations

Supervisor

feared

for

Plaintiff's

safety as well as the safety of members of the Slidell Police
Department. Id. The U.S. Marshal's report of the incident states
that "[Plaintiff] appeared to be emotionally disturbed and was
extremely upset." Id. The U.S. Marshal's Office and the NOPD
notified the Slidell Police Department of the incident. Id. On
September 4, 2009, Plaintiff's FMLA leave ended. Id. On September
21, 2009, Plaintiff's treating psychiatrist, Dr. Larry Warner,
advised that Plaintiff was still under his care and receiving
treatment for Adjustment Disorder, mixed type, with depression
and anxiety along with acute stress disorder. Id. Dr. Warner
recommended that Plaintiff remain away from work while undergoing
treatment

for

an

undetermined

time.

Id.

The

City

granted

Plaintiff's request for paid catastrophic leave, which began the
same day. Id. Plaintiff remained on catastrophic leave for one
year, during which time he continued to collect his full salary,
benefits, and accrue vacation and sick time. Id.
In July 2010, after being on leave for more than a year,
Plaintiff
allowing

sought

to

Plaintiff

return
to

to

regular

return

to

duty.

active

However,

duty

as

a

before
senior

corrections officer, the Slidell Chief of Police, Randy Smith,
requested that Plaintiff undergo a fitness for duty physical and
psychological evaluation. Id. Section 52.1.7(D) of the Slidell
4

Police Department Manual provides:
[T]he Chief of Police, at his discretion, may require
any member of the Slidell Police Department to submit
to a psychological examination, administered by a
licensed psychologist/psychiatrist of his/her (Chief)
choosing. Reasons for evaluation may include, but are
not limited to: fitness for duty, public safety
liability and the general welfare of the involved
member and the Department.
Id.
On August 12, 2010, Plaintiff was evaluated by psychologist,
Dr. Alan James Klein. Id. In a report dated August 20, 2010, Dr.
Klein

opined

that

Plaintiff

was

not

fit

for

duty

in

a

law

enforcement agency in any capacity, including as a corrections
officer or performing administrative duties. Id. Based on an
interview and testing, he reported that Plaintiff had a serious
psychiatric disorder, quite possibly of psychotic proportions,
with

evidence

of

paranoid

thought

processing

that

is

likely

alcohol induced. Id. On September 2, 2010, the Slidell Police
Department relieved Plaintiff of duty. Id. Slidell Civil Service
Rule

16.01

provides

that

an

employee

may

be

suspended without pay by the appointing authority
deprived

of

other

privileges

for,

inter

alia,

discharged

or

or demoted or
physical

or

emotional unfitness for the position which the employee holds.
Id. On September 20, 2010, Plaintiff's year-long catastrophic
leave ended. Id. During that year of catastrophic leave and the
prior twelve weeks of FMLA leave, Plaintiff had continued to
5

collect his full salary, benefits, and also continued to accrue
vacation and sick time. Id. Once his catastrophic leave time
ended, Plaintiff's status was changed to sick leave. Id.

He

continued to receive full pay as he used accrued sick time,
vacation

time

sufficient

to

and

birthday

cover

time,

roughly

and

his

twenty-seven

accrued
pay

time

was

periods.

Id.

Several weeks after he was relieved of duty, Plaintiff applied to
the Municipal Police Employees' Retirement System of Louisiana
("Retirement

System")

for

disability

retirement.

Id.

The

retirement System referred him to a psychiatrist, Dr. Lawrence
Wade, for an evaluation. Id. In a report dated November 5, 2010,
Dr. Wade concluded that Plaintiff was not disabled but did not
state that he was fit to return to duty as a senior corrections
officer. Id. On December 3, 2010, while still on paid sick leave
and while his first lawsuit against the City was still pending,
Plaintiff submitted a second Charge of Discrimination to the
Louisiana

Commission

on

Human

Rights

and

EEOC

in

which

alleged:
I was released for return to work on July 15, 2010.
Chief Randy Smith informed me I had to take a physical.
Around August 13, 2010, I was told I couldn't go back
to work because I failed part of the physical.
I believe I'm being discriminated against because of my
race, black, disability and in retaliation for filing a
previous charge of discrimination with EEOC.
Although I was released for work by my doctor, Chief
6

he

Smith informed me I couldn't return to work because I
was psychotic, delusional and paranoid. Base [sic] on
information provided by Dr. Alan James Klein, Ph.D. it
[sic] also stated that I was not fit to work for any
law enforcement agency.
Id.
The EEOC issued a notice of right to sue on April 2, 2012,
stating that it was unable to conclude that the information
obtained establishes violations of the statutes. Id. Because the
report

that

the

Retirement

Board

obtained

from

Dr.

Wade

on

November 5, 2010 did not find Plaintiff disabled, but also did
not opine on his fitness for duty, the City paid for a second
psychological fitness for duty exam for Plaintiff with Dr. Cary
Rostow on May 17, 2011. Id. Dr. Rostow found Franklin fit for
duty on May 20, 2011, and Plaintiff was returned to active duty.
Id. Throughout this history, Plaintiff remained employed with the
City, and received a step/grade pay increase in January 2012. Id.
On July 26, 2012, Plaintiff filed the instant suit against
the

City

of

Slidell

(“the

City”),

Dr.

Klein,2

and

six

City

employees, including: (1) Chief Randy Smith (“Chief Smith”), of
the Slidell Police Department, (2) Captain Kevin Foltz (“Captain
Foltz”), of the Slidell Police Department, (3) Captain Robert
Jacobs (“Captain Jacobs”), of the Slidell Police Department, (4)

2

On March 6, 2013, the Court issued an order and reasons granting Dr.
Klein's motion to dismiss and dismissing all of Plaintiff’s claims against Dr.
Klein. (Order and Reasons, Rec. Doc. 38)

7

Lieutenant

Rockwell

McLellan

(“Lieutenant

McLellan”),

of

the

Slidell Police Department, (5) D. Rene Johnson (“Johnson”), the
Slidell Civil Service Personnel Director, and (6) Tim Mathison
(“Mathison”),

the

City’s

Chief

Administrative

Officer

(collectively “Employee Defendants”). (Compl., Rec. Doc. 1)
On March 27, 2013, the Court issued an Order and Reasons
granting

the

City

Defendants'

12(b)(6)

motion

in

part

and

dismissing: (1) Plaintiff's Title VII and ADA claims against all
Employee Defendants, (2) Plaintiff's racial discrimination claims
under Title VII and Section 1981, (3) Plaintiff's claims for
disclosure

of

confidential

medical

information

under

Section

12112(d) of the ADA, and (4) Plaintiff's punitive damages claim.
(Order and Reasons, Rec. Doc. 39) Finding that Plaintiff had
pleaded his best case with respect to those claims, the Court did
not grant him leave to amend his complaint. (Order and Reasons,
Rec. Doc. 39) Plaintiff's remaining claims in this action are:
(1) his Title VII retaliation claim against the City, (2) his ADA
claims against the City, and (3) his state law claims against all
City Defendants. (Order and Reasons, Rec. Doc. 39) Specifically,
Plaintiff

claims

that

his

employer,

the

City,

violated

the

Americans with Disabilities Act ("ADA"), as amended, 42 U.S.C. §§
12101-12213 et seq., and the ADA regulations by: (a) requiring
him

to

take

a

medical

and

psychological
8

fitness

for

duty

evaluation before returning to work from medical leave, and (b)
not allowing him to return to work after he failed the fitness
for duty evaluation, thereby forcing him to use his personal
vacation and sick time.3 (Pl.’s Opp. to City Def.'s Mot. to
Dismiss, Rec. Doc. 12, p. 2) Second, Plaintiff claims that his
employer, the City of Slidell, required him to take a fitness for
duty evaluation and relieved him of his duties with the Slidell
Police

Department

to

retaliate

against

him

for

filing

a

discrimination complaint and civil lawsuit, all in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII"), as
amended, 42 U.S.C. § 2000e et seq. (Compl., Rec. Doc. 1, p. 1)
Third, Plaintiff has asserts various vague claims against all
City Defendants under Louisiana law. Plaintiff seeks to recover:
(1)

back

pay

with

benefits,

front

pay

with

benefits,

or

retirement if front pay is not a viable option, (2) general
damages for loss of reputation, inconvenience, and the abuse he
allegedly received, (3) costs, and (4) all other equitable relief

3

This summary of Plaintiff's claim includes the allegations that he
made in his original Complaint (Compl., Rec. Doc. 1), and his opposition to
the City Defendants' Motion to Dismiss (Pl.'s Opp. to City Def.'s Mot. to
Dismiss, Rec. Doc. 12). Because Plaintiff is proceeding pro se, in its Order
and Reasons ruling on the Defendants' Motion to Dismiss, the Court construed
Plaintiff's opposition and supplemental opposition (Rec. Doc. 37) to the
Defendants' Motion to Dismiss , in part, as a motion to amend his Complaint,
which the Court granted. (Order and Reasons, Rec. Doc. 39, p. 2, n. 1)

9

the Court deems proper.4 (Compl., Rec. Doc. 1, p. 3) On May 13,
2013,

the

Defendants

filed

the

instant

Motion

for

Summary

Judgment seeking to dismiss all of Plaintiff's remaining claims
against them and set the motion for hearing on June 19, 2013.
Plaintiff filed his opposition to the City Defendants' motion on
June 11, 2013.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56©); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

allegations or unsubstantiated assertions.

4

with

conclusory

Little, 37 F.3d at

Although Plaintiff originally sought punitive damages (Rec. Doc. 1),
the Court dismissed that claim in its Order and Reasons ruling on the
Defendants' Motion to Dismiss. (Rec. Doc. 39)

10

1075. A court ultimately must be satisfied that “a reasonable
jury could not return a verdict for the nonmoving party.”

Delta,

530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir.

1991)

(citation

omitted).

The

nonmoving

party

can

then

defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
See Celotex, 477 U.S. at 325.

of the nonmoving party’s claim.

The burden then shifts to the nonmoving party, who must, by
submitting
showing

or

that

referring
a

genuine

to

evidence,

issue

exists.

set
See

out

specific

id.

at

facts

324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,

11

e.g., id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
A. Plaintiff's Title VII Retaliation Claim Against the City
Plaintiff alleges that the City required him to take a
fitness for duty examination and ultimately relieved him of his
duties with the Slidell Police Department, because he filed an
EEOC

charge.

retaliation

42

U.S.C.

against

an

§

2003-3(a)
employee

establishes
who

files

a
a

claim

for

charge

of

discrimination with the EEOC and provides in pertinent part:
(a) Discrimination for making charges, testifying,
assisting, or participating in enforcement proceedings:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees .
. . because he has opposed any practice made an
unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a).
The Fifth Circuit has explained:
Retaliation claims under Title VII are governed by the
familiar three-step McDonnell Douglas test. Under that
test, an employee bringing a retaliation claim must
first produce evidence of a prima facie case of
retaliation. to establish a prima facie case of
retaliation, an employee must demonstrate that (1) he
engaged in an activity that Title VII protects; (2) he
was subjected to an adverse employment action; and (3)
a causal connection exists between the protected
activity and the adverse employment action. If the
employee establishes a prima facie case, the burden
shifts to the employer to state a legitimate, nonretaliatory reason for its decision. After the employer
states its reason, the burden shifts back to the
12

employee to demonstrate that the employer's reason is
actually a pretext for retaliation.
LeMaire v. Louisiana Dep't of Transp. and Dev., 480 F.3d 383,
388-89 (5th Cir. 2007) (internal citations omitted).
Although Defendants dispute whether Plaintiff can satisfy
the first two elements of a prima facie case of retaliation, it
is unnecessary to address those arguments. Even assuming that
Plaintiff

could

produce

evidence

of

a

prima

facie

case

of

retaliation, the City Defendants have stated legitimate, nonretaliatory reasons for their decision to require Plaintiff to
submit to medical and psychological fitness for duty examinations
and relieve Plaintiff of his duties with the Slidell Police
Department. Fuentes v. Postmaster General of the United States
Postal

Service,

282

F.

App'x

296,

303

(5th

Cir.

2008)

(per

curiam) (declining to decide whether the plaintiff satisfied the
causation element of her prima facie case, because it found that
the

plaintiff

could

not

prove

that

the

legitimate,

nondiscriminatory reasons her employer offered were a pretext for
retaliation). In Fuentes, a similar case, the plaintiff alleged
that her employer retaliated against her for filing an EEOC
charge by not allowing her to return to work immediately after
receiving medical clearance. Id. at 303. The employer explained
that the plaintiff remained off work for several months after she
received full medical clearance to return because, pursuant to
13

company regulations, she

was required to undergo fitness for

duty examinations to determine if she was mentally healthy enough
to return to her position as a manager after nine months off work
due to stress and anxiety. Id. Because the plaintiff in Fuentes
failed

to

point

to

any

evidence

that

her

employer's

justifications were merely pretext for retaliation, the court
concluded

that

a

grant

of

summary

judgment

in

favor

of

the

employer on the retaliation claim was appropriate. Id. at 304.
In this case, like in Fuentes, Plaintiff was ultimately
permitted to return to his original position after passing a
fitness

for

requiring

duty

examination.

Plaintiff

to

The

City's

to

medical

submit

justifications
and

for

psychological

fitness for duty examinations prior to returning to work from
sick leave are also similar to, and in fact more compelling than
those offered in Fuentes considering that Plaintiff sought to
return to a position as an armed senior corrections officer with
responsibility
inmates,

not

for,
a

among

position

other

as

a

things,

post

controlling

office

manager.

prison

The

City

contends that it required Plaintiff to take the fitness for duty
examinations prior to returning to active duty, because: (a)
Plaintiff had been granted more than a year of paid medical leave
based

on

his

physicians'

diagnoses

of

post

traumatic

stress

syndrome, adjustment disorder, depression, anxiety, and acute
14

stress disorder, and statements that he was unable to work in his
position as a senior corrections officer, (b) Plaintiff engaged
in erratic behavior before and during his period of medical
leave, including the incident at the United States' Attorneys'
Office on August 21, 2009, and © it was necessary and appropriate
to require Plaintiff to pass a fitness for duty examination
before resuming his duties as a senior corrections officer in
light of the nature of that position and City policies. In light
the City's proffered nondiscriminatory reasons for its actions,
the burden shifts to Plaintiff to produce evidence that these
proffered reasons are merely pretext for retaliation. Id.
Plaintiff has submitted a single page opposition and an
affidavit,

without

any

statement

of

material

facts

which

he

contends present a genuine issue. Because Plaintiff has failed to
include

a

statement

of

the

material

facts

that

he

contends

present a genuine issue, all of the material facts in the City's
statement have been deemed admitted for purposes of this motion
under

the

local

rules.

See

supra

n.

1.

In

his

opposition,

Plaintiff states that Defendants' motion is repetitive of the
12(b)(6) motion to dismiss that the Court already ruled on, that
his "only response" is that the "additional information being
provided by the defense is false and misleading," that Chief
Smith's affidavit is perjury, and that the case raises issues of
15

credibility that should be decided by a jury. (Rec. Doc. 44)
However, this response is insufficient. To satisfy his burden
under Rule 56, a nonmovant is "required to identify specific
evidence in the record, and to articulate the 'precise manner' in
which that evidence support[s] [his] claim." Forsyth v. Barr, 19
F.3d 1527, 1537 (5th Cir. 1994). Because Plaintiff, like the
plaintiff in Fuentes, has failed in his opposition to articulate
the

precise

manner

in

which

his

affidavit

supports

his

retaliation claim, and creates a genuine issue of material fact
with

respect

to

whether

the

City's

nondiscriminatory

justifications are pretextual, his Title VII retaliation claim
will be dismissed.
B. Plaintiff’s ADA Claims Against the City
1. Disability Discrimination
Plaintiff claims that his employer, the City, violated the
Americans with Disabilities Act ("ADA"), as amended, 42 U.S.C. §§
12101-12213 et seq., and the ADA regulations by not allowing him
to return to work after he failed a fitness for duty evaluation,
thereby forcing him to use his personal vacation and sick time.
Plaintiff also claims that the City denied him a reasonable
accommodation

by

not

allowing

him

to

return

to

work

on

"administrative duties," after he received medical clearance to
return to work on administrative duties. (Pl.’s Opp. to City
16

Def.'s Mot. to Dismiss, Rec. Doc. 12, p. 2) To establish a prima
facie

case

of

discrimination

under

the

ADA,

plaintiff

must

establish that: (1) he has a disability; (2) he was qualified for
the job in question; and (3) he suffered an adverse employment
decision because of his disability. Gonzales v. City of New
Braunfels, Tex., 176 F.3d 834, 836 (5th Cir. 1999); Talk v. Delta
Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999). Defendants
argue, inter alia, that Plaintiff cannot make a prima facie ADA
claim, because he cannot show that he was qualified for the job
in

question

—

senior

corrections

officer.

The

Court

agrees.

Alternatively, the Court finds that even if Plaintiff could show
that he were disabled and qualified for the position of senior
corrections officer, his requested accommodation — alteration of
his

job

responsibilities

as

a

senior

corrections

officer

to

perform only administrative duties — was not reasonable and,
thus, not required under the ADA.
A disabled individual is qualified for the job in question
if, inter alia, he can perform the essential functions of the job
with or without reasonable accommodation. Gonzales, 176 F.3d at
837 (citations omitted). "To avoid summary judgment on whether he
is a qualified individual, [Plaintiff] needs to show 1) that he
could perform the essential functions of the job in spite of his
disability

or

2)

that

a

reasonable
17

accommodation

of

his

disability

would

have

enabled

him

to

perform

the

essential

functions of the job." Turco v. Hoechst Celanese Chem. Grp.,
Inc., 101 F.3d 1090, 1093 (5th Cir. 1996) (alterations added).
"'Essential functions" are those duties that are fundamental to
the

job

at

issue;

the

term

does

not

include

the

marginal

functions of the position. Kapche v. City of San Antonio, 176
F.3d 840, 843 (5th Cir. 1999); 29 C.F.R. § 1630.2(n)(1). The EEOC
implementing regulations provide that "[a] job function may be
considered essential if, for example, "the reason the position
exists is to perform that function." Id. § 1630.2(n)(2)(I). "To
aid in the determination of whether a function is essential, a
court may consider evidence a variety of factors including, but
not limited to, (1) the employer's judgment as to which functions
are

essential,

advertising

or

(2)

written

interviewing

job

descriptions

applicants

for

prepared

the

job,

before
(3)

the

amount of time spent on the job performing the function, and (4)
the work experience of both past and current employees in the
job." Kapche, 176 F.3d at 843.
Here,

the

only

evidence

with

respect

to

the

"essential

functions" of a senior corrections officer is the written job
description provided by Defendants.5 The job description for a

5

Although the City has provided a list of the duties of a senior
corrections officer, it has not identified those duties it considers
essential. Moreover, although it appears that the City prepared the written
job description after Plaintiff was hired, the Court finds that it is properly

18

senior corrections officer, as a whole, demonstrates that the
senior corrections officer position exists, at least, to fulfill
the functions of maintaining and controlling the Slidell City
jail, controlling and searching prisoners, and determining the
appropriate course of action in the event of riotous or volatile
situations in the jail. Thus, these are essential functions.
There is no genuine dispute as to whether Plaintiff was qualified
to

perform

officer.

the

essential

Plaintiff

was

functions

employed

of

by

a

the

senior
City

as

corrections
a

senior

corrections officer. Plaintiff went on paid medical leave on June
15, 2009, at his own request, after submitting a physician's note
indicating

that

he

suffered

from

"post

traumatic

stress

syndrome." Plaintiff did not attempt to return to his position
until July of 2010. However, the City required him to take a
fitness

for

duty

examination

upon

return

from

medical

leave

pursuant to City policy and in August of 2010, Dr. Klien, a
psychologist, rendered his opinion that Plaintiff was not fit for
duty in any capacity in a law enforcement agency, whether as a
corrections

officer

or

in

performing

administrative

duties.

Plaintiff has submitted an affidavit in opposition to Defendants'
motion in which he states:

considered as evidence of the essential functions of a senior corrections
officer, because Plaintiff participated in creating it and the EEOC
implementing regulations do not strictly limit the types of evidence the Court
may consider.

19

I received on June 24, 2010 a return to work
certification from my doctor and Chief Freddy Drennan
signed for me to return to work on July 15, 2010 on
administrative
duties
giving
me
accommodations
consistent
with
the
American
with
disabilities
Standards [sic].
(Rec. Doc. 44-1, p. 1, ¶ 9)
Although Plaintiff's affidavit vaguely alludes to another
doctor certifying him to return to work in June of 2010, before
his fitness for duty examination with Dr. Klein in August of
2010, the affidavit is insufficient to create a genuine issue
with

respect

to

whether

he

was

qualified

to

perform

these

essential functions of a senior corrections officer. The "return
to

work

Pinkney,

certification"
only

shows

authorized

that

Plaintiff's

Plaintiff

to

return

doctor,
to

work

Dr.
on"

administrative duties," and Plaintiff's own affidavit indicates
that he only sought to return to work on "administrative duties."
Given that administrators typically perform desk jobs, the return
to work certification does not show that Plaintiff was qualified
to

control

the

jail,

maintain

the

jail

and

jail

equipment,

control and search prisoners, and respond to riotous or volatile
situations

in

the

jail

—

essential

functions

of

a

senior

corrections officer.
Moreover, Plaintiff's claim that the City denied him a
reasonable accommodation, because it would not permit him to
return to work on "administrative duties" fails. The ADA defines
20

a "reasonable accommodation" as follows:
The term 'reasonable accommodation' may include –
(A) making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities; and
(B) job restructuring, part-time or modified work
schedules,
reassignment
to
a
vacant
position,
acquisition or modification of equipment or devices,
appropriate
adjustment
or
modifications
of
examinations, training materials or policies, the
provision of qualified readers or interpreters, and
other similar accommodations for individuals with
disabilities.
Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809 (5th Cir.
1997) (quoting 42 U.S.C. § 12111).
The Fifth Circuit has observed that:
'While the ADA focuses on eradicating barriers, the ADA
does not relieve a disabled employee or applicant from
the obligation to perform the essential functions of
the job. To the contrary, the ADA is intended to enable
disabled persons to compete in the work-place based on
the same performance standards and requirements that
employers expect of persons who are not disabled.'
Id. at 808.
Furthermore,"[the ADA] does not require affirmative action
in favor of individuals with disabilities. It merely prohibits
employment

discrimination

against

qualified

individuals

with

disabilities, no more and no less." Turco, 101 F.3d at 1094
(citing Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.
1995)). Thus, employers are not required to find or create jobs
for disabled employees. Foreman, 117 F.3d at 809 ("An employer is
21

not

required

to

create

'light

duty'

jobs

to

accommodate.")

(citing Turco, 101 F.3d at 1094); Wann v. American Airlines,
Inc., 878 F. Supp. 82, 85 (1994) (employer "is not required to
eliminate one or more of the essential functions of a job to
accommodate an applicant.") (citations omitted) In Foreman, the
Fifth

Circuit

concluded

that

it

was

not

a

reasonable

accommodation to require a manufacturer defendant to eliminate an
essential

function

of

the

job

of

expeditor6

and,

in

effect,

create a new job for the plaintiff. 117 F.3d at 809. Similarly,
here, the Court finds that it is not reasonable to require the
City

to

eliminate

essential

functions

of

the

job

of

senior

corrections officer to remove all duties except "administrative
duties,"

and

accommodate

in

effect,

Plaintiff.

create

Thus,

a

new

"light

Plaintiff's

duty"

job

discrimination

to
and

failure to accommodate claims under the ADA will be dismissed.
2. Medical and Psychological Fitness for Duty
Examinations
The

Court

finds

that

the

Defendants'

motion

should

be

granted as to Plaintiff's ADA claim under Section 12112(d)(4).
Section 12112(d)(4)(A) of the ADA provides that “[a] covered
entity shall not require a medical examination and shall not make

6

The essential function was making deliveries into shop areas. Foreman,
117 F.3d at 808.

22

inquiries

of

an

employee

as

to

whether

such

employee

is

an

individual with a disability or as to the nature or severity of
the disability, unless such examination or inquiry is shown to be
job-related and consistent with business necessity.” 42 U.S.C. §
12112(d)(4)(A).

"Relatively

few

courts

have

addressed

either

[Section 12112(d)(4)(A)] or the related subsections involving
preemployment inquiries and employment entrance examinations."
Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d
Cir.

2003).

The

employer

bears

the

burden

of

demonstrating

business necessity. Brownfield v. City of Yakima, 612 F.3d 1140,
1146 (9th Cir. 2011) (citing Thomas v. Corwin, 483 F.3d 516, 527
(8th Cir. 2007); Conroy, 333 F.3d at 97). Although it appears
that

the

Fifth

Circuit

has

never

construed

Section

12112(d)(4)(A), the Second Circuit has observed:
The case law on inquiries directed toward individual
employees thus demonstrates that courts will readily
find
a
business
necessity
if
an
employer
can
demonstrate that a medical examination or inquiry is
necessary to determine 1) whether the employee can
perform job-related duties when the employer can
identify legitimate, non-discriminatory reasons to
doubt the employees's capacity to perform his or her
duties (such as frequent absences or a known disability
that had previously affected the employee's work) . . .
Id.

at 98; Brownfield, 612 F.3d at 1146 (business exception

applies

before

employee's

work

performance

declines

if

the

employer is faced with "significant evidence that could cause a
reasonable person to inquire as to whether an employee is still
23

capable of performing his job.") (internal citations omitted);
Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir. 1999)
(business necessity exception applicable "[i]n any case where a
police department reasonably perceives an officer to be even
mildly paranoid, hostile, or oppositional"); Yin v. State of
California, 95 F.3d 864, 868 (9th Cir. 1996) (business necessity
exception applicable at summary judgment where employer showed,
based

on

employee's

excessive

absenteeism

and

declined

productivity, that "health problems have had a substantial and
injurious impact on an employee's job performance.")
Based on Yin, Watson, and Brownfield, the Court finds that
the City has presented sufficient evidence that a legitimate,
non-discriminatory

reason

to

doubt

Plaintiff's

capacity

to

perform his duties existed at the time that Chief Smith required
the fitness for duty examination. Since the City bears the burden
of showing business necessity, it must come forward with evidence
that

would

entitle

uncontroverted
burden.

The

at

City

it

to

trial.
has

a

directed

Here,

presented

the

City

verdict
has

uncontroverted

if

it

went

satisfied

that

evidence

that

Plaintiff was a senior corrections officer with responsibility
for managing a prison, supervising other corrections officers,
searching prisoners, and responding to riotous situations at the
jail. The City has also presented uncontroverted evidence that
24

Plaintiff requested medical leave based on physicians' various
diagnoses of post-traumatic stress syndrome, adjustment disorder,
depression, anxiety, and acute stress disorder, and remained on
paid medical leave for over a year, between June 15, 2009 and
July of 2010, before requesting to return to his position. In
addition, it is undisputed that on August 21, 2009, during his
extended medical leave, Plaintiff was involved in an incident at
the United States Attorneys' Office that caused witnesses to fear
for Plaintiff's safety and the safety of members of the Slidell
Police Department. Given the reasons Plaintiff provided the City
for

requesting

medical

leave,

the

extensive

duration

of

Plaintiff's medical leave, the August 21, 2009 incident, and the
nature of Plaintiff's position as a senior corrections officer,
the City had good cause to determine, through a fitness for duty
examination, whether Plaintiff was able to perform his job before
allowing him to return to work as a senior corrections officer.
Yin, 95 F.3d at 868; Watson, 177 F.3d at 935; Brownfield, 612
F.3d at 1145-47. Plaintiff has failed to counter the City's
evidence with sufficient evidence of his own or show that the
City's evidence may not persuade a jury to return a verdict for
the City. Thus, no rational juror could find that the City did
not have good cause to require Plaintiff to take a psychological
fitness for duty examination before returning to work.
25

It

appears

that

the

Fifth

Circuit

has

never

construed

Section 12112(d)(4)(A) of the ADA in general or the scope of its
business

necessity

exception

in

particular.

However,

in

an

unreported decision, Crews v. Dow Chemical Co., 287 F. App'x 410
(5th

Cir.

employer

2008),
violated

the
§

Fifth

Circuit

12112(a)

when

did
it

consider

restricted

whether
a

an

resource

leader's access to the work premises and e-mail and cancelled her
transfer to a position in Europe pending the completion of a
fitness for duty assessment. Id. at 410-11. The Fifth Circuit
affirmed

the

grant

of

summary

judgment

in

favor

of

the

plaintiff's employer, reasoning that even if the plaintiff had
met her prima facie case under the McDonnell Douglas burdenshifting framework, her employer had articulated a legitimate,
non-discriminatory

rationale

for

requiring

the

plaintiff

to

undergo the fitness for duty assessment, specifically, changes in
her

workplace

tremors,
inability

behavior,

slurred
to

make

speech,

including,

among

decreased

arguments

other

engagement

concerning

topics

things,
at
she

hand

meetings,
was

very

knowledgeable about, and discussing improper topics during workrelated meetings. Id.
plaintiff's

employer

at 412. The Court concluded: (a) that
reasonably

could

have

found

that

such

changes might impair the plaintiff's performance as a resource
leader

whose

job

responsibilities
26

included

determining

which

employees should staff a project, reviewing employees, setting
salary recommendations, and directing assignments, and (b) that
based on the summary judgment record, the plaintiff had not
established that the employer's rationale was pretextual. Id.
Even

if

Plaintiff's

examination

were

12112(d)(4)(a),

claim
treated

the

Court

regarding
under
finds

the

fitness

12112(a),
that

summary

for

duty

instead

of

judgment

is

appropriate with respect to Plaintiff's ADA claim stemming from
the fitness for duty examination, given that, like in Crews, the
Court has already found that: (a) the City has articulated a
legitimate, non-discriminatory reason for requiring plaintiff to
undergo the fitness for duty assessment, and (b) Plaintiff has
failed to create a genuine issue with respect to whether the
proffered justifications are pretextual.
C. Plaintiff’s Claims Under Louisiana Law
Plaintiff's state law claims are presently before the Court
by virtue of its supplemental jurisdiction. However, under 28
U.S.C. § 1367©, a federal district court may decline to exercise
supplemental jurisdiction over a state law claim if the district
court

has

dismissed

jurisdiction.

28

all

U.S.C.

claims
§

over

which

1367(c)(3).

it

Given

has
that

original
all

of

Plaintiff's remaining federal claims will have been dismissed by
the instant order, the Court declines to exercise supplemental
27

jurisdiction

over

Plaintiff's

remaining

state

law

claims.

Marshall v. Williams, No. 01-1576, 2002 WL 1042070, at * 2 (E.D.
La.

May

22,

2002)

(declining

to

exercise

supplemental

jurisdiction over remaining state law claims after dismissing all
federal claims).
Accordingly,
IT IS HEREBY ORDERED that the Defendants' Motion for Summary
Judgment (Rec.Doc. 43) is GRANTED with respect to Plaintiff's
Title VII and ADA claims.
IT IS FURTHER ORDERED that Plaintiff's Title VII retaliation
claim and ADA claims are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's state law claims are
DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana, this 27th day of August, 2013.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

28