Lefort v. Lafourche Parish Fire Protection District No. 3 et al

Filing 26

ORDER AND REASONS granting 8 Motion to Dismiss for Failure to State a Claim. The only claim remaining in this action is plaintiff's ADA claim against the Lafourche Parish Fire Protection District #3.. Signed by Chief Judge Sarah S. Vance on 8/8/14. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GLENN LEFORT

CIVIL ACTION

VERSUS

NO: 14-672

LAFOURCHE PARISH FIRE
PROTECTION DISTRICT #3, ET AL

SECTION: R

ORDER AND REASONS
Defendants Lafourche Parish Fire Protection District #3
("LPFD"), Freddy Guidry, Jr., Gene Griffin, Morris Guidry, and
Dean Guidry move to dismiss the following claims asserted in
plaintiff Glenn Lefort's complaint: (1) his claims against the
individual defendants under the Americans with Disabilities Act
("ADA"), (2) his claims against all defendants under Louisiana's
disability discrimination statute, La. R.S. 23:323, and (3) his
claims against all defendants under the Louisiana whistleblower
law, La. R.S. 23:967(a).1 Individuals cannot be held liable under
the ADA, and plaintiff's state law claims are prescribed.
Accordingly the Court GRANTS the motion.

I.

BACKGROUND
Plaintiff was hired as a mechanic by the LPFD on March 18,

2003. At the time, he was essentially deaf in his left ear.2 On
March 28, 2007, plaintiff sustained injuries in a work site
1

R. Doc. 8; R. Doc. 8-1.

2

The facts are taken from plaintiff's complaint. R. Doc. 1.

accident, resulting in a 48.75% impairment of hearing in his
right ear. He returned to work on a light duty basis on July 23,
2007, and he alleges that he was cleared to return to full work
duties with no restrictions on August 21, 2007.
Plaintiff alleges that on February 1, 2008, he received a
letter from Freddy Guidry, Jr., Fire Chief and Administrator of
LPFD, notifying him that a pre-disciplinary hearing had been
scheduled for February 7, 2008 to discuss potential disciplinary
action against plaintiff for three cited reasons: unwillingness
or failure to perform duties of his position in a timely manner,
conduct of a discourteous or wantonly offensive nature toward
officers and employees, and insubordination. Plaintiff states
that no further action was taken at that time.
According to plaintiff, he was notified on February 19, 2008
that he would be the subject of a disciplinary hearing on
February 26, 2008. Plaintiff alleges that after his attorney
requested detailed information regarding the complaints against
him, the attorney was notified that the hearing had been
postponed. Plaintiff further alleges that a special board meeting
was held on April 3, 2008 to address the complaints against him.
According to plaintiff, the Board of the LPFD moved to place a
private admonition letter in his file, which would be removed
after 180 days if the Board received no further complaints
against plaintiff.

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Plaintiff alleges that he twice requested audiotapes of a
September 22, 2008 board meeting after learning that the
discussion of "personnel matters" was listed as an item on the
agenda. He also requested that the admonition letter be removed
from his file. According to plaintiff, Lafourche Parish District
Attorney Camille A. Morvant sent a letter to the LPFD Board
Chairman Lawrence Mounic on June 15, 2009, indicating that
plaintiff's public records request had not been fulfilled, in
violation of La. R.S. 44:31 et seq. Plaintiff alleges that the
Board complied with the request on August 18, 2009. He further
alleges that a second public records request, made on September
15, 2009, was not fulfilled until January 16, 2010.
Plaintiff alleges that on September 7, 2010, Chief Guidry
met with Michael Sidemann, a Forensic and Industrial Audiologist,
and Carla Seyler, a licensed rehabilitation counselor, regarding
plaintiff's ability to fulfill the duties of Master Mechanic. He
alleges that Chief Guidry, without proper warning to plaintiff or
others present, drove a fire truck into the station shop, revving
the engine, activating the sirens, and blowing the air horns
while Seidemann and Seyler were observing the workplace
environment. Plaintiff alleges that typically, the shop is a
controlled environment in which the loudest noises come from airdriven tools.

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Seyler issued a report on September 9, 2010, stating that
plaintiff was not capable of safely performing a job at the fire
district. She opined that it was not feasible for plaintiff to
perform any other job at the fire district and that there was no
reasonable accommodation that would allow plaintiff to work
safely while performing the essential job tasks.
Plaintiff's last day of work with the LPFD was October 27,
2010. He alleges that he received a Separation Notice alleging
disqualification due to medical limitations on November 11, 2010.
After declaring his intent to appeal to the Civil Service Board,
plaintiff alleges that he was reinstated and placed on paid
administrative leave on December 9, 2010. On February 23, 2011,
Chief Guidry allegedly notified plaintiff of another predisciplinary hearing to be held on March 1, 2011 in order to
discuss plaintiff's medical condition. Plaintiff alleges that his
attorney requested that the hearing be rescheduled and that the
Notice be reissued to reflect that the subject matter of the
hearing was a medical rather than a disciplinary issue. Following
the latter request, Chief Guidry allegedly postponed the hearing
until further notice.
Plaintiff was placed on paid sick leave on March 17, 2011
for a period of 52 weeks, the maximum amount of time allowed
under La. R.S. 33:1995. Plaintiff alleges that on May 7, 2012, he
received a Separation Notice terminating his employment with the

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LPFD. At a special meeting, board members Dean Guidry, Morris
Guidry, and Gene Griffin allegedly voted not to reinstate
plaintiff for his own protection and the protection of other
district employees due to plaintiff's hearing impairment.
On August 8, 2012, plaintiff filed an Equal Employment
Opportunity Commission ("EEOC") questionnaire, alleging wrongful
termination due to his disability. Following a request from the
plaintiff, the EEOC issued a Right to Sue Letter on December 16,
2013. Plaintiff filed this suit on March 25, 2014. Count One
names as defendants the LPFD; Freddy Guidry, Jr., in both his
individual and official capacities; and Dean Guidry, Morris
Guidry, and Gene Griffin in their official capacities, alleging
wrongful termination due to disability under the ADA. Count Two
does not identify particular defendants but alleges disability
discrimination in violation of La. R.S. 23:323. Count Three
alleges that plaintiff suffered reprisal in the form of
termination as a result of his history of advising the LPFD and
the Lafourche Parish District Attorney of the LPFD's alleged
violations of state law.

II.

LEGAL STANDARD
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.” Ashcroft v. Iqbal, 556 U.S. 662,
5

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. A court must accept all well-pleaded facts as true
and must draw all reasonable inferences in favor of the
plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th
Cir. 2009). But the Court is not bound to accept as true legal
conclusions couched as factual allegations. Iqbal, 556 U.S. at
678.
A legally sufficient complaint need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause
of action. Id. In other words, the face of the complaint must
contain enough factual matter to raise a reasonable expectation
that discovery will reveal evidence of each element of the
plaintiff’s claim. Lormand, 565 F.3d at 257. If there are
insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, the claim
must be dismissed. Twombly, 550 U.S. at 555.

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III. DISCUSSION
A.

Plaintiff's ADA Claims

Defendants move to dismiss plaintiff's ADA claims against
the individual defendants. They argue that individuals cannot be
held liable under the ADA in either their individual or official
capacities.
The ADA prohibits discriminatory conduct by a "covered
entity," 42 U.S.C. § 12112(a), which is defined to include
employers, employment agencies, labor organizations, and joint
labor-management committees, id. § 12111(2). An "employer" is "a
person engaged in an industry affecting commerce who has fifteen
or more employees . . . and any agent of such person, . . ." Id.
§ 12111(5)(A). This definition precisely mirrors the definition
of an employer under Title VII. See Roman-Oliveras v. Puerto Rico
Elec. Power Auth., 655 F.3d 43, 51 (1st Cir. 2011) (citing 42
U.S.C. § 2000e(b)).
The Fifth Circuit has held consistently that there is no
individual liability for employees under Title VII. See Smith v.
Amedisys Inc., 298 F.3d 434, 448 (5th Cir. 2002) (citing Indest
v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999)).
"While Title VII's definition of the term employer includes "any
agent" of an employer, Congress's purpose was merely to import
respondeat superior liability into Title VII." Id. (citing
Indest, 164 F.3d at 262)). Thus, an employee or supervisor faces
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liability solely in his official capacity. See Dixon v. Primary
Health Servs. Ctr., CIV.A. No.10-1490, 2011 WL 1326841, at *2
(W.D. La. Mar. 3, 2011) (citing Harvey v. Blake, 913 F.2d 226,
227 (5th Cir. 1990) ("Only when a public official is working in
an official capacity can that official be said to be an “agent”
of the government."). Because an official-capacity suit against a
supervisor or other individual is actually a suit against the
employing corporation, Indest, 164 F.3d at 262, a plaintiff may
not maintain a Title VII action against both an employer and its
agent in an official capacity, id.; Smith, 298 F.3d at 449.
Accordingly, as long as the corporate employer is named as a
defendant, individual employees cannot be liable to a plaintiff
in either their personal or official capacities. See Smith, 298
F.3d at 449.
Recently, Judge Barbier concluded that the considerations
precluding individual liability under Title VII apply with equal
force in ADA actions. Franklin v. City of Slidell, 936 F. Supp.
2d 691, 703 (E.D. La. 2013). He explained:
[T]he ADA definition of "employer" mirrors the Title VII
definition. Although the Fifth Circuit has not directly
addressed the question of whether an employer's agent or
employee may be held liable under the ADA, this Court
recently concluded that in light of (a) the similarities
between the definition of "employer" in Title VII and the
ADA, (b) the similar purposes of the two statutes, (c) the
Fifth Circuit's consistent holdings that individuals cannot
be held liable under Title VII in either their individual or
official capacities, and (d) the weight of authority outside
of the Fifth Circuit, individuals are not subject to
liability under Title I of the ADA. Thus, to the extent that
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Plaintiff is asserting claims against the Employee
Defendants under the ADA, the Court finds that they are not
legally cognizable.
Id. at 703 & n. 12 (citations omitted) (collecting cases).
The Court finds this reasoning persuasive. None of the
individual plaintiffs may be held liable in their personal
capacities under the ADA. And because plaintiff is suing the LPFD
for discrimination under the ADA, he may not also maintain an
action against Chief Guidry in his official capacity. The Court
therefore dismisses plaintiff's ADA claims against all defendants
except the LPFD.
B.

Plaintiff's Claims under the Louisiana Discrimination
Statute

Plaintiff claims that defendants violated Louisiana's
disability discrimination statute, which provides that "no
otherwise qualified disabled person shall, on the basis of a
disability, be subjected to discrimination in employment." La.
R.S. 23:323. Defendants argue that this claim is prescribed.
Claims under La. R.S. 23:323 are governed by the
prescriptive period set forth in La. R.S. 23:303(D). See Nabors
v. Metro. Life Ins. Co., CIV.A. No. 12-827, 2012 WL 2457694, at
*3 (W.D. La. May 30, 2012). It reads:
Any cause of action provided in this Chapter shall be
subject to a prescriptive period of one year. However, this
one-year period shall be suspended during the pendency of
any administrative review or investigation of the claim
conducted by the federal Equal Employment Opportunity
Commission or the Louisiana Commission on Human Rights. No
suspension authorized pursuant to this Subsection of this
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one-year prescriptive period shall last longer than six
months.
La. R.S. 23:303(D). Consequently, the Louisiana disability
discrimination statute "requires a plaintiff to file suit on his
discrimination claim no later than eighteen months after the
occurrence forming the basis for the claim. Nabors, 2012 WL
2457694, at *3.
Because plaintiff was terminated on May 7, 2012, the last
possible date on which he could have filed suit was November 7,
2012. He did not do so until March 25, 2014, approximately 22.5
months after his termination.
Plaintiff points out that he timely filed an intake
questionnaire with the EEOC. He further asserts that he requested
a right to sue letter "following the lapse of 180 days," but he
later states that he did not request the letter until November 6,
2013, which would be 456 days after the filing of the intake
questionnaire. He received a right to sue letter on December 26,
2013 and filed suit three months later on March 25, 2014.
Plaintiff argues that under the judicially-created doctrine of
contra non valentem,3 the prescriptive period should have been

3

The doctrine's full name means "prescription does not run
against a party unable to act," and it works to suspend a
prescriptive period under four circumstances:
(1) Where there was some legal cause which prevented the courts
or their officers from taking cognizance of or acting on the
plaintiff's action;
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suspended from the time he filed the intake questionnaire until
he received the right to sue letter, as he "would not have had
standing to file a suit prior to receiving authorization to do
so."
This argument is without merit. The Fifth Circuit has made
clear that the filing of an EEOC charge "does not toll,
interrupt, or suspend prescription with regard to a plaintiff's
state law claims." Fussell v. Bellsouth Commc'ns, Inc., CIV.A.
No. 96-1660, 1998 WL 12229, at *2 (E.D. La. Jan. 8, 1998) (citing
Taylor v. Bunge Corp., 775 F.2d 617 (5th Cir. 1985)); see also
Rivera v. Louisiana, CIV.A. No. 04-3327, 2006 WL 901826, at *6
(E.D. La. Mar. 31, 2006) (collecting cases). To bring suit under
La. R.S. 23:323, a plaintiff need only provide the defendant with
thirty days notice of the allegations, whether through an EEOC
charge or otherwise. See Mayes v. Office Depot, Inc., 292 F.
Supp. 2d 878, 889 (W.D. La. 2003) (citing La. R.S. 23:303(C)).
Plaintiff could have filed his action in state court and obtained

(2) Where there was some condition coupled with a contract or
connected with the proceedings which prevented the creditor from
suing or acting;
(3) Where the debtor himself has done some act effectually to
prevent the creditor from availing himself of his cause of
action; or
(4) Where some cause of action is not known or reasonably
knowable by the plaintiff, even though his ignorance is not
induced by the defendant.
Wimberly v. Gatch, 635 So. 2d 206, 211 (La. 1994).
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a stay while pursuing his ADA remedies. See Rivera, 2006 WL
901826, at *6 (citing Brouillette v. Transamerican Ref. Corp.,
CIV.A. No. 95-0584, 1995 WL 683869, at *5 (E.D. La. Nov. 11,
1995)). Because this was an available course of action, plaintiff
was not prevented from acting, and the doctrine of contra non
valentem does not apply. Accordingly, the Court dismisses
plaintiff's claim under La. R.S. 23:323 as prescribed.
C.

Plaintiff's Claims under the Louisiana Whistleblower
Statute

Plaintiff alleges that defendants violated the Louisiana
Whistleblower Statute, La. R.S. 23:967, by terminating him in
retaliation for his reports of the LPFD's violations of state
law. Defendants argue that this claim also is prescribed.
Section 23:967 does not specify a prescriptive period.
Consequently, it is subject to the general one-year prescriptive
period for delictual actions set forth in La. C.C. art. 3492. See
Johnson v. Harrah's Entm't, Inc., CIV.A. No. 04-331, 2005 WL
3541139, at *5 (E.D. La. Nov. 16, 2005) (citing Nolan v.
Jefferson Parish Hosp. Serv. Dist. No. 2, 790 So. 2d 725, 733
(La. Ct. App. 2001)). Nothing in the statute indicates that the
prescriptive period should be suspended during the pendency of
EEOC proceedings. See Langley v. Pinkerton's Inc., 220 F. Supp.
2d 575, 581 (M.D. La. 2002); see also Johnson, 2005 WL 3541139,
at *5. Because plaintiff was terminated on May 7, 2012, he had

12

until May 7, 2013 to bring this claim. His failure to file suit
until March 25, 2014 renders his claim untimely.
Plaintiff argues that the continuing tort doctrine applies
to his claim, because the LPFD allegedly has continued to violate
state laws since his termination. Even if this were true, any
violation of La. R.S. 23:967 would have resulted from plaintiff's
termination in retaliation for his reports, not from the LPFD's
alleged violations of other state laws. Cf. Langley, 220 F. Supp.
2d at 582 (holding that prescriptive period for plaintiff's
whistleblower claim began to run on the date of her termination,
as that was date on which the injury or damage was sustained).
Because plaintiff was terminated on May 7, 2012, the Court
dismisses this claim as prescribed.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants'

motion to dismiss. The only claim remaining in this action is
plaintiff's ADA claim against the LPFD.

New Orleans, Louisiana, this ___ day of August, 2014.
8th

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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