Webster v. Board of Supervisors of the University of Louisiana System et al

Filing 90

ORDER AND REASONS - the Court GRANTS defendants motion 75 for review of the Magistrate Judge's order and reverses in part the Magistrate Judge's decision. Plaintiff may not file an amended complaint stating a claim under section 504 of the Rehabilitation Act. Defendant has also moved to strike plaintiffs claim for punitive damages under the Rehabilitation Act in his amended complaint 77 . Plaintiff filed a memorandum 83 indicating he does not oppose the motion. Because plaint iff cannot amend his complaint to add a claim under the Rehabilitation Act, and because, at any rate, punitive damages are not recoverable under section 504 of the Rehabilitation Act, Barnes v. Gorman, 536 U.S. 181, 189 (2002), the Court GRANTS defendants motion and strikes plaintiffs claim for punitive damages.. Signed by Chief Judge Sarah S. Vance on 7/10/15. (NEF: Mag 3) (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DR. MICHAEL G. WEBSTER

CIVIL ACTION

VERSUS

NO: 13-6613

BOARD OF SUPERVISORS OF THE UNIVERSITY
OF LOUISIANA SYSTEM, ET AL.

SECTION: R(3)

ORDER AND REASONS
Defendant Board of Supervisors of the University of Louisiana
System moves for review of the Magistrate Judge’s Order granting
plaintiff Dr. Michael Webster leave to amend his complaint to add
a claim under section 504 of the Rehabilitation Act of 1973.1
Because the Court finds the amendment futile, the Court grants the
motion and reverses in part the Magistrate Judge’s decision.

I. BACKGROUND
Plaintiff

filed

this

action

alleging

violations

of

the

Americans with Disabilities Act of 1990 (“ADA”) and the ADA
Amendments Act of 2008. Plaintiff sued the Board of Supervisors of
the University of Louisiana System; Eric Johnson, in his personal
capacity

and

official

capacity

as

Sims

Library

Director

at

Southeastern University (“SLU”); Lynette Ralph, in her personal
capacity and official capacity as Assistant Sims Library Director
at SLU; and Victor Pregeant, in his personal capacity and official

1

R. Doc. 75.

capacity as Compliance Officer for Equal Employment Opportunity /
Americans with Disabilities Act at SLU.
Plaintiff alleges the following facts. In 2007, SLU hired him
as a Collection Development Librarian.

In early 2008, he informed

Ralph, his immediate supervisor, that he suffered from manic and
major depression and that, despite taking medication, he might
occasionally

behave

irrationally.

On

June

19,

2009,

while

suffering a manic episode, plaintiff sent Ralph an e-mail falsely
accusing Johnson of sexual harassment.

The next day, realizing

what he had done, plaintiff sent Ralph an e-mail explaining that
the accusation was caused by a manic episode and asking her to
delete and disregard it.
On or about July 6, 2009, Ralph and Johnson informed plaintiff
that SLU would not renew his contract; that his employment would
cease on January 6, 2010; and that, in the meantime, he was demoted
from

Collection

Development

Librarian

to

Special

Projects

Librarian. A week later, plaintiff filed a complaint with Pregeant
alleging harassment based on his disability and requesting an
accommodation. He alleges that Pregeant refused to investigate his
complaint because plaintiff was unable to provide records of his
disability from a medical specialist.
In August 2009, plaintiff filed a complaint with the Equal
Employment

Opportunity

Commission

(“EEOC”).

The

EEOC

later

informed him that SLU had agreed not to effectuate his termination

2

until the EEOC completed its investigation.
the

EEOC

investigation

concluded,

SLU

Nevertheless, before

terminated

plaintiff’s

employment on June 30, 2010, with an effective date of termination
of July 14, 2010.

According to plaintiff, he was escorted off

campus and told he was no longer required to report to work on July
12, 2010, two days before his official termination date. Plaintiff
alleges that from July 2009 through his date of termination, he
sustained public ridicule and embarrassment for his disability and
the side effects of his medication.
On September 28, 2011, the EEOC issued its determination
finding reasonable cause to believe that SLU terminated Webster
because of his disability.

The EEOC engaged the parties in

conciliation efforts, which proved unsuccessful.

On September 9,

2013, the Department of Justice issued plaintiff a right to sue
letter.

Plaintiff brought this action on December 9, 2013.

On August 8, 2014, the Court dismissed several of plaintiff’s
claims.

Specifically, the Court dismissed plaintiff’s claims for

money damages against SLU and against Johnson, Ralph, and Pregeant
in

their

official

capacities,

and

plaintiff’s

claims

against

Johnson, Ralph, and Pregeant in their personal capacities.

The

Court

for

permitted

plaintiff

to

proceed

with

his

claims

prospective declaratory and injunctive relief against Johnson,
Ralph, and Pregeant in their official capacities.

3

On March 16, 2015, plaintiff filed a motion for leave to amend
his

complaint

to

add

a

claim

under

section

504

of

the

Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and to add or
clarify a claim under Louisiana state obligations law.

The

Magistrate Judge granted plaintiff’s motion to add a section 504
claim under the Rehabilitation Act as to the Board of Supervisors,
but denied the motion in all other respects.

Specifically, the

Magistrate Judge denied the motion as to any potential claim under
the Rehabilitation Act as to any individual employee, for punitive
damages under the Rehabilitation Act, and for any state-law breachof-contract claims.
Defendant now moves for review of the Magistrate Judge’s order
granting plaintiff leave to amend his complaint to add a claim
under section 504 of the Rehabilitation Act.

II. LEGAL STANDARD
Federal law affords a magistrate judge broad discretion in the
resolution of non-dispositive matters.
U.S.C. § 636(b)(1)(A).

Fed. R. Civ. P. 72(a); 28

Nevertheless, a party dissatisfied with a

magistrate judge’s ruling may appeal to the district court for
review.

Fed. R. Civ. P. 72(a).

When a timely objection is raised,

the district judge must review the magistrate’s ruling and “modify
or set aside any part of the order that is clearly erroneous or
contrary to law.”

Id.

Under this highly deferential standard, a
4

magistrate judge’s ruling “should not be rejected merely because
the court would have decided the matter differently.”

Ordemann v.

Unidentified Party, CIV. A. No. 06-4796, 2008 WL 695253, at *1
(E.D. La. Mar. 12, 2009) (internal quotation omitted).

Instead,

the decision must be affirmed unless “on the entire record [the
court] is left with a definite and firm conviction that a mistake
has been committed.”

United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).

III. DISCUSSION
Under Federal Rule of Civil Procedure 15(a)(2), the Court
“should freely give leave [to amend] when justice so requires.”
One factor courts consider in deciding whether to grant leave to
amend is whether amendment will be futile.

Foman v. Davis, 371

U.S. 178, 182 (1962); Smith v. EMC Corp., 393 F.3d 590, 595 (5th
Cir. 2004).

An amendment is futile if it would fail to survive a

Rule 12(b)(6) motion to dismiss.

Briggs v. Miss., 331 F.3d 499,

508 (5th Cir. 2003).
Defendant argues that the Magistrate Judge’s order granting
plaintiff’s motion to amend his complaint to add a claim under
section

504

of

the

Rehabilitation

Act

is

contrary

to

law.

According to defendant, allowing the amendment is futile because
plaintiff’s claim is time-barred by the statute of limitations.
Defendant contends that a plaintiff asserting a section 504 claim
5

under

the

Rehabilitation

Act

need

not

exhaust

administrative

remedies, and, therefore, the statute of limitations continued to
run while plaintiff pursued administrative relief.
A. Section 504 of the Rehabilitation Act Does Not Require
Exhaustion of Administrative Remedies in Claims Filed Against
Federal Grantees
Whether

plaintiff’s

claim

is

barred

by

the

statute

of

limitations turns on whether individuals asserting claims under
section 504 of the Rehabilitation Act must exhaust administrative
remedies.

An exhaustion requirement tolls the limitations period,

but the absence of an exhaustion requirement allows the limitations
period

to

remedies.

run

even

while

a

plaintiff

pursues

administrative

See Adams v. District of Columbia, 740 F. Supp. 2d 173,

182-83 (D.D.C. 2010) (“A limitations period does not toll when a
plaintiff is not required but chooses to exhaust his administrative
remedies before pursuing a claim in court.” (citing Johnson v. Ry.
Express Agency, 421 U.S. 454, 461 (1975)).
The Magistrate Judge found that whether a plaintiff must
exhaust administrative remedies before filing a section 504 lawsuit
is subject to contradictory law in this circuit.

He reasoned as

follows:
In Camenisch v. University of Texas, the Fifth Circuit
held that “private individual suits to enforce Section
504 rights can be brought without previous resort to
administrative remedies . . . .” 616 F.2d 127, 135 (5th
Cir. 1980), vacated on other grounds by Univ. of Tex. v.
Camenisch, 451 U.S. 390 (1981).
The following year,
however, the court required a plaintiff to exhaust his
administrative remedies before maintaining a Section 504
6

lawsuit in federal court.
Prewitt v. United States
Postal Serv., 662 F.2d 311, 313-14 (5th Cir. 1981). The
Prewitt court limited Camenisch to lawsuits against
federal grantees, not federal agencies.
See id.
However, later, and in a lawsuit against a federal
grantee, the court noted that “we have held that a
plaintiff must exhaust her administrative remedies before
bringing a claim under Section 504 of the Rehabilitation
Act.” Malakoff v. Alton Ochsner Med. Found., No. 0030836, 2001 WL 498727, at *1 (5th Cir. Apr. 16, 2001).
Thus, this Court cannot find at this time that
plaintiff’s RA claim is time-barred.
As the Magistrate Judge correctly noted, Camenisch stands for
the proposition that plaintiffs need not exhaust administrative
remedies to enforce section 504 rights under the Rehabilitation
Act, and Prewitt limited this holding to suits against federal
grantees.

Thus, because defendant is a federal grantee, not a

federal agency, Camenisch would seem to govern and indicate that
exhaustion is not required.
this

conclusion

because

of

The Magistrate Judge did not reach
the

Fifth

Circuit’s

statements in Malakoff, an unpublished opinion.

more

recent

There the court

did not consider the plaintiff’s argument that she was not required
to exhaust her administrative remedies under the Rehabilitation Act
in order to bring suit against a federal grantee because she failed
to present this argument to the district court.
498727, at *1.

Malakoff, 2001 WL

In a footnote, the court noted that even if it were

to consider the plaintiff’s argument, the claim would fail because
“a

plaintiff

must

exhaust

her

administrative

remedies

before

bringing a claim under section 504 of the Rehabilitation Act, 29

7

U.S.C. 794.”

Malakoff,

at *1 n.1 (citing Prewitt, 662 F.2d at

303-04).
The Court finds that Malakoff is not dispositive of this
issue.

The Fifth Circuit’s holding in Camenisch provides binding

precedent that a plaintiff need not exhaust administrative remedies
before filing a section 504 claim under the Rehabilitation Act
against a federal grantee.
Malakoff

is

precedent.2

unpublished

and,

Initially, the Court notes that
therefore,

does

not

serve

as

Moreover, even if Malakoff were published, the Fifth

Circuit’s prior precedent rule provides that “the holding of the
first panel to address an issue is the law of this Circuit, thereby
binding all subsequent panels unless and until the first panel’s
holding is overruled by the Court sitting en banc or by the Supreme
Court.”

United States v. Ocean Bulk Ships, Inc., 248 F.3d 331, 340

n.2 (5th Cir. 2001) (citing Smith v. GTE, 236 F.3d 1292, 1300 n.8
(5th Cir. 2001)).

The Court is not aware of and the parties point

to no en banc Fifth Circuit or Supreme Court decision overturning
the holding regarding exhaustion in Camenisch.3

2

5th CIR. R. 47.5 indicates that unpublished opinions
issued on or after January 1, 1996, “are not precedent, except
under the doctrine of res judicata, collateral estoppel or law of
the case (or similarly to show double jeopardy, notice,
sanctionable conduct, entitlement to attorney’s fees, or the
like).”
3

The Supreme Court vacated on other grounds the Fifth
Circuit’s decision in Camenisch in Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981).
8

The Court’s holding is bolstered by the consensus outside of
this

circuit

that

plaintiffs

need

not

exhaust

administrative

remedies before filing a section 504 claim under the Rehabilitation
Act against federal grantees.

See Freed v. Consolidated Rail

Corp., 201 F.3d 188, 194 (3d Cir. 2000) (“[S]ection 504 plaintiffs
may proceed directly to court without pursuing administrative
remedies.”); Brennan v. King, 139 F.3d 258, 268 n.12 (1st Cir.
1998) (“[T]he Rehabilitation Act does not require exhaustion.”);
Tuck v. HCA Health Servs. of Tenn., Inc., 7 F.3d 465, 470-71 (6th
Cir.

1993)

(finding

no

exhaustion

requirement

under

the

Rehabilitation Act for non-federal employees); New Mexico Ass’n of
Retarded Citizens v. State of New Mexico, 678 F.2d 847, 850 (10th
Cir. 1982) (finding no exhaustion requirement); Kling v. Los
Angeles Cnty., 633 F.2d 876, 879 (9th Cir. 1980) (“Section 504
remedies are inadequate and [] exhaustion is not required.”); Lloyd
v. Reg’l Transp. Auth., 548 F.2d 1277, 1287 (7th Cir. 1977) (same).
Accordingly,
Rehabilitation

the

Act

Court

does

not

finds

that

require

section

plaintiffs

504
to

of

the

exhaust

administrative remedies before filing a claim against federal
grantees.
B. Plaintiff’s Rehabilitation Act Claim is Time Barred
The Court now turns to the issue of whether plaintiff’s claim
is precluded by the expiration of the statute of limitations.
Claims under the Rehabilitation Act are subject to the relevant
9

state’s limitations period for personal injury actions.

Frame v.

City of Arlington, 657 F.3d 215, 237 (5th Cir. 2011) (applying
Texas’s

two-year

personal-injury

Rehabilitation Act claim).

limitations

period

to

a

Under Louisiana law, the applicable

prescriptive period for personal injury actions is one year. La.
Civ. Code art. 3492 (“Delictual actions are subject to a liberative
prescription of one year.”).

Therefore, plaintiff’s claim is

subject to a one-year statute of limitations.

See Griffin v. New

Orleans City, Civ. A. No. 14-559, 2015 WL 1012982, at *3 (E.D. La.
Mar. 5, 2015) (applying Louisiana’s one-year statute of limitations
to a section 504 Rehabilitation Act claim).
While the limitations period is determined with reference to
state law, accrual of a cause of action is governed by federal law.
See Wallace v. Kato, 549 U.S. 384, 388 (2007).

Accrual generally

occurs “the moment the plaintiff becomes aware that he has suffered
an injury or has sufficient information to know that he has been
injured.”

Smith v. Humphrey, 540 F. App’x 348, 349 (5th Cir. 2013)

(quoting Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.
2001)).

“The requisite knowledge that a plaintiff must have to

begin the running of the limitations period is merely that of the
facts forming the basis of his cause of action, . . . not that of
the existence of the cause of action itself.” Jensen v. Snellings,
841 F.2d 600, 606 (5th Cir. 1988) (internal quotation marks
omitted) (alteration in original).

10

Here, defendant notified plaintiff it would not renew his
contract on July 6, 2009, and plaintiff filed an EEOC complaint on
August 24, 2009.

Plaintiff therefore had knowledge of the alleged

injury in August 2009, at the latest, and likely earlier in July
2009.

SLU terminated plaintiff’s employment altogether in July

2010.

Despite this knowledge, plaintiff did not file this action

until December 9, 2013.

Accordingly, whether the statute of

limitations on plaintiff’s claim began to run in July or August
2009, when he learned his contract would not be renewed and when he
filed an EEOC complaint,4 or in July

2010, when he was terminated,

is of no consequence because plaintiff waited well over one year to
file his claim.5

Because the Court has already found that the

Rehabilitation Act does not require exhaustion in this case,
plaintiff’s pursuit of his administrative remedies did not toll the

4

See Holmes v. Texas A&M Univ., 145 F.3d 681, 685 (5th
Cir. 1998) (finding limitations period could accrue when
plaintiff received notice of his future termination date, but
before actual termination).
5

In its briefing before the Magistrate Judge, plaintiff
contended that claims under section 504 of the Rehabilitation Act
are subject to a four-year statute of limitations. In support,
plaintiff asserts that 28 U.S.C. § 1658's four-year limitations
period is applicable. The Fifth Circuit, however, has held that
“the default four-year limitations period for federal causes of
action does not apply” to a claim under section 504 of the
Rehabilitation Act because the Rehabilitation Act was enacted
before December 1990, and plaintiffs failed to show that the
claims were “made possible” by a post-1990 amendment to the
statute. Frame, 657 F.3d at 236-37. Plaintiff likewise makes no
showing that the ADA Amendments Act of 2008 made his claim
possible.
11

statute of limitations.

See Adams, 740 F. Supp. 2d at 182-83 (“A

limitations period does not toll when a plaintiff is not required
but chooses to exhaust his administrative remedies before pursuing
a claim in court.”).

Plaintiff’s claim is therefore time barred

and allowing plaintiff to amend his complaint to add this claim is
futile.
Accordingly, the Court grants defendant’s motion for review of
the Magistrate Judge’s order and reverses in part the Magistrate
Judge’s decision.

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion
for review of the Magistrate Judge’s order and reverses in part the
Magistrate Judge’s decision.

Plaintiff may not file an amended

complaint stating a claim under section 504 of the Rehabilitation
Act.
Defendant has also moved to strike plaintiff’s claim for
punitive damages under the Rehabilitation Act in his amended
complaint.6

Plaintiff filed a memorandum indicating he does not

oppose the motion.7

Because plaintiff cannot amend his complaint

to add a claim under the Rehabilitation Act, and because, at any
rate, punitive damages are not recoverable under section 504 of the
6

R. Doc. 77.

7

R. Doc. 83.
12

Rehabilitation Act, Barnes v. Gorman, 536 U.S. 181, 189 (2002), the
Court GRANTS defendant’s motion and strikes plaintiff’s claim for
punitive damages.

New Orleans, Louisiana, this ______ day of July, 2015.
10th

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13