Sanders v. Cajun Iron Workers, Inc. et al

Filing 37

ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim. FURTHER ORDERED that Plaintiff is granted leave to amend his complaint by August 18, 2016. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROGER D. SANDERS

CIVIL ACTION

VERSUS

CASE NO. 15-5423

CAJUN IRON WORKERS, INC., et al.

SECTION: “G” (1)
ORDER

In this litigation, Plaintiff Roger Sanders alleges that Defendants violated his rights under
the Family Medical Leave Act (“FMLA”), Americans with Disability Act (“ADA”), the
Rehabilitation Act, and the Louisiana Employment Discrimination Law when they prevented him
from returning to work after taking FMLA leave and later terminated his employment. 1 Pending
before the Court is Defendants Cajun Iron Workers, Inc. (“Cajun Iron Workers”), Offshore Service
Vessels, Inc. (“Offshore Service”), Family Medical Services, LLC (“Family Medical”) and Dr.
Darren Duet’s (“Dr. Duet”) (collectively “Defendants”) “Rule 12(b)(6) Partial Motion to
Dismiss.” 2 Having considered the motion, the memoranda in support, the memorandum in
opposition, and the applicable law, the Court will grant the motion in part and deny the motion in
part.

1

Rec. Doc. 1 at 8.

2

Rec. Doc. 12.

1

I. Background
A.

Factual Background
Plaintiff alleges that he was employed by Cajun Iron Workers as a lift operator from

January 2014 until he was terminated in April 2015. 3 He alleges that on December 20, 2014, he
underwent bypass surgery. 4 Plaintiff alleges that he requested leave under the Family and Medical
Leave Act, which was granted, and Plaintiff took twelve weeks of leave beginning January 30,
2015 and scheduled to end April 10, 2015.5 According to Plaintiff, on March 13, 2015, 6 Human
Resources Manager for Cajun Iron Workers, Brett Borne, refused to accept Plaintiff’s return to
work, despite the fact that he had been released to full duty without restriction by his medical
provider. 7 Plaintiff alleges that Brent Barns, the Human Resources Director for Cajun Iron
Workers, failed to return Plaintiff to his job and along with Dr. Duet, the medical director at Family
Medical, an entity Plaintiff alleges provided “company doctor services” to Cajun Iron Workers,
insisted that Plaintiff take additional, unpaid and unprotected medical leave, demanded that
Plaintiff provide all his medical records, and demanded that several other tests be performed. 8
Plaintiff alleges that on April 8, 2015, his doctor faxed a release to work form to Dr. Duet, but that

3

Rec. Doc. 1 at 1.

4

Id. at 2.

5

Id. at 4.

6

Plaintiff’s complaint alleges that this date was March 13, 2013. Id. Given that in the previous paragraph
Plaintiff alleges that his FMLA leave was to end April 2015, the Court assumes that the March 13, 2013 is a
typographical error.
7

Id.

8

Id. at 2, 4.

2

Cajun Iron Workers terminated Plaintiff on the grounds that he was “Not Physically Able to Work”
on April 28, 2015. 9
Plaintiff alleges that Dr. Duet, “acting on his own behalf and additionally or alternatively
conspiring with and on behalf of [Family Medical], and/or Cajun Ironworkers and/or Chouest
decided to terminate Sanders because he had taken FMLA leave and was likely to need and take
more.” 10 Plaintiff alleges that Cajun Iron Workers is a closely held company managed by Dino
Chouest. 11 Plaintiff alleges that Defendants Cajun Iron Workers, Family Medical, and Offshore
Service “all function as one single entity, and they are owned, managed and controlled by the same
individuals.” 12
B.

Procedural Background
Plaintiff filed a complaint against Defendants on October 23, 2015. 13 On December 28,

2015, Defendants filed the instant motion.14 On January 19, 2016, Plaintiff filed an opposition.15
With leave of Court, Defendants filed a reply on January 21, 2016. 16

9

Id. at 5.

10

Id.

11

Id. at 2.

12

Id.

13

Rec. Doc. 1.

14

Rec. Doc. 12.

15

Rec. Doc. 18.

16

Rec. Doc. 22.

3

II. Parties’ Arguments
A.

Defendants’ Arguments in Support of Dismissal
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

Plaintiff’s: (1) ADA, state law discrimination, and FMLA claims against Defendants Offshore
Service and Family Medical; (2) ADA and state law discrimination claims against Dr. Duet; and
(3) 42 U.S.C. § 1985, Rehabilitation Act, and punitive damages claims against all Defendants. 17
First, Defendants contend that Plaintiff’s claims against Offshore Service and Family
Medical pursuant to the ADA and FMLA, as well as his claims for state law discrimination, should
be dismissed because neither of those entities were Plaintiff’s “employer” pursuant to the FMLA,
ADA, or state discrimination law. 18 Defendants assert that the statutory definition of an employer
pursuant to Title VII mirrors the definition of “employer” under the ADA. 19 Defendants contend
that “employer” is defined as a “person engaged in an industry affecting commerce who has fifteen
or more employees and any agent of any such person . . . .” 20 Defendants contend that if a
defendant meets this definition, the court must next analyze whether an employment relationship
exists between the plaintiff and the defendant, the controlling test for which is a “hybrid economic
realities/common law control test.” 21 According to Defendants, the most important component of
this test is the defendant’s right to control the employee’s conduct. 22 Furthermore, Defendants

17

Rec. Doc. 12 at 1.

18

Rec. Doc. 12-1 at 3.

19

Id. (citing Franklin v. City of Slidell, 936 F. Supp. 2d 691, 703 (E.D. La. 2013)).

20

Id.

21

Id.

22

Id.

4

assert that courts look to whether the alleged employer paid the employee’s salary, withheld taxes,
provided benefits, and set the terms and conditions of employment. 23 Defendants assert that
Plaintiff has not made any allegation that either Offshore Service or Family Medical was his
employer, and has consistently referred to Cajun Iron Workers as his employer. 24 Nor, Defendants
contend, did Plaintiff assert that either entity has the right to control his activities, that either remits
compensation on his behalf, or employs fifteen or more employees in order to be subject to liability
under the ADA. 25 Therefore, Defendants argue that the ADA claims against both Offshore Service
and Family Medical should be dismissed because neither entity was his employer. 26
Defendants assert that under the FMLA, an “employer” is any person engaged in commerce
in any industry or activity affecting commerce who employs fifty or more employees for each
working day during each of 20 or more calendar workweeks in the current or preceding calendar
year. 27 Furthermore, Defendants contend that the regulations make clear that only a single
corporation should be deemed the “employer” for FMLA purposes and Plaintiff makes no
allegation that either Offshore Service or Family Medical employs the requisite fifty or more
employees in order to be subject to liability under the FMLA. 28 Therefore, Defendants assert that
the FMLA claims against these entities should also be dismissed.

23

Id. at 4 (citing Muhammad v. Dallas Cty. Cmty. Supervision & Corr. Dep’t, 479 F.3d 377, 380 (5th Cir.

24

Id.

25

Id.

26

Id.

27

Id. (citing 29 C.F.R. 825.104(a)).

28

Id. at 5.

2007)).

5

Defendants also move to dismiss the state law discrimination claims against Offshore
Service and Family Medical pursuant to the Louisiana Disability Discrimination Act, Louisiana
Revised Statute § 23:301 et seq. 29 Defendants assert that “employer” is an entity that receives
services from an employee and gives compensation of any kind to an employee. 30 Furthermore,
Defendants contend that an employer must employ twenty or more employees during the relevant
time period. 31 Defendants argue that Plaintiff did not provide services to either of these entities,
nor did these entities provide compensation to Plaintiff. 32 In support, Defendants cite a Louisiana
Second Circuit Court of Appeal case, Dejoie v. Medley, in which a former minute clerk working
in the Orleans Parish District Court sued all of the judges in the court for discrimination pursuant
to Louisiana’s Employment Discrimination Statute. 33 Defendants contend that on appeal, the
Louisiana Second Circuit held that the plaintiff had failed to state a cause of action against any of
the individually-named judges because the plaintiff was not compensated by them. 34 Furthermore,
Defendants assert that Plaintiff has failed to allege that Offshore Service or Family Medical
employ more than twenty employees and therefore, the state discrimination claims should be
dismissed as well. 35
Second, Defendants move to dismiss the ADA and state law claims against Dr. Duet as he

29

Id.

30

Id. (citing La. Rev. Stat. § 23:302(2)).

31

Id.

32

Id.

33

Id. at 6 (citing 41,333 (La. App. 2 Cir. 12/20/96); 945 So. 2d 968.

34

Id. (citing 945 So. 2d at 974).

35

Id.

6

is not Plaintiff’s employer and cannot be held liable as an individual. 36 Defendants assert that
district courts in this circuit, as well as courts in other circuits, have consistently concluded that an
employee or supervisor cannot be held individually liable under the ADA. 37 Furthermore,
Defendants contend that Plaintiff has failed to make any allegation that he provided services to Dr.
Duet or that Dr. Duet provided him with compensation, and therefore cannot be deemed Plaintiff’s
employer for purposes of Plaintiff’s state law discrimination claim. 38
Third, Defendants move to dismiss Plaintiff’s claims against all Defendants under 42
U.S.C. § 1985, the Rehabilitation Act, and for punitive damages. 39 Defendants assert that the
vague allegations that Defendants engaged in a conspiracy against Plaintiff in preventing him from
returning to work do not comply with the pleading requirements for a conspiracy claim. 40
Furthermore, Defendants assert that in order to state a claim under 42 U.S.C. § 1985(3), a plaintiff
must allege that: “1) a racial or class-based discriminatory animus lay behind the conspiracy; and
2) the conspiracy aimed to violate rights protected against private infringement.” 41 Defendants
assert that it is well-established that civil rights violations under § 1985(3) may not be invoked to
redress violations of Title VII. 42 Defendants contend that because, in this case, Plaintiff has
asserted that Defendants conspired to deprive him of rights under the ADA, a statute that was

36

Id. at 7.

37

Id. (citing Wellington v. Tex. Guaranteed, No. 13-077, 2014 WL 2114832, at *4 (W.D. Tex. May 20,

38

Id.

39

Id. at 8–11.

40

Id. (citing Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999)).

41

Id. at 8–9 (citing Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267–68 (1993)).

42

Id. at 9 (citing Great Am. Fed. Savings & Loan Ass’n v. Novotny, 442 U.S. 366 (1979)).

2014)).

7

based upon and mirrors Title VII, Plaintiff’s conspiracy claims must be dismissed. 43 In addition,
Defendants argue that the conspiracy claim must be dismissed because such a claim cannot be
asserted in the absence of “some class-based animus,” and here, Plaintiff does not allege that
Defendants discriminated against other individuals with disabilities, just Plaintiff. 44 Finally,
Defendants contend that the conspiracy claim must be dismissed because only race-based claims
may be asserted pursuant to § 1985(3) in the Fifth Circuit. 45
Defendants also move to dismiss Plaintiff’s claim for punitive damages as, they assert,
punitive damages are not recoverable in a private right of action under the Rehabilitation Act, the
FMLA, or state discrimination law. 46 Defendants contend that Louisiana has a general public
policy against an award of punitive damages unless they were specifically provided for by statute
and here, Plaintiff’s punitive damages claim for his state law cause of action is without legal
support. 47
Defendants also move to dismiss Plaintiff’s claims for recovery under the Rehabilitation
Act on the grounds that the Rehabilitation Act applies to federal agencies, federal contractors, and
recipients of federal financial assistance, while the ADA applies to private employers with fifteen
or more employees and state and local governments. 48 Defendants contend that the remedies under

43

Id.

44

Id. (citing Newberry v. E. Tex. State Univ., 161 F.3d 276 (5th Cir. 1998)).

45

Id. (citing Horaist v. Doctor’s Hospital of Opelousas, 255 F.3d 261, 271 (5th Cir. 2001)).

46

Id. at 10 (citing 29 U.S.C. § 2617(a); Barnes v. Gorman, 536 U.S. 181, 189–90 (2002); Oby v. Baton
Rouge Marriott, 329 F. Supp. 2d 772, 788 (M.D. La. 2004)).
47

Id.

48

Id. at 11.

8

both statutes for violations of employment discrimination rules are virtually identical and therefore
the Rehabilitation Act serves as a “substitute” remedial scheme for employees who cannot
otherwise assert ADA or Title VII claims. 49 Defendants contend that any possible recovery
Plaintiff would be afforded under the Rehabilitation Act will be subsumed by Plaintiff’s recovery
under the ADA and/or LDDA and therefore, the Court should dismiss any such claims. 50
B.

Plaintiff’s Arguments in Opposition to Dismissal
In opposition, Plaintiff contends that he is not pursuing ADA, Rehabilitation Act, or state

law claims against any entities other than Cajun Iron Workers. 51 However, Plaintiff asserts that he
has stated valid FMLA and § 1985 claims against all Defendants. 52 Plaintiff contends that the
FMLA has a broad definition of employer that covers all the identified Defendants as it includes
“any person acting, directly or indirectly, in the interest of a covered employer to any of the
employees of the employer.” 53 Plaintiff contends that individuals such as corporate officers
“acting in the interest of an employer” are individually liable for any violations of the requirements
of the FMLA. 54 Plaintiff asserts that Defendants do not dispute that Cajun Iron Workers and Dr.
Duet are properly named defendants as Cajun Iron Workers was Plaintiff’s employer and Dr. Duet
was Plaintiff’s immediate supervisor acting in the interest of Cajun Iron Workers. 55

49

Id. (citing Calero–Cerezo v. United States Dep’t of Justice, 355 F.3d 6 (1st Cir. 2004)).

50

Id.

51

Rec. Doc. 18 at 1.

52

Id.

53

Id. at 4 (citing 29 C.F.R. 825.104(a)).

54

Id. (citing 29 C.F.R. 825.104(d)).

55

Id.

9

Plaintiff asserts that he brings FMLA claims against Offshore Service and Family Medical
under the theory that they acted directly or indirectly in the interest of an employer and under the
theory that they operated as a single employer. 56 Plaintiff contends that such a determination is to
be evaluated by the relationship viewed in its totality, including: (1) common management; (2)
interrelation between operations; (3) centralized control of labor relations; and (4) degree of
common ownership/financial control. 57 Plaintiff contends that Cajun Iron Workers, Offshore
Service, and Family Medical Services all function as a single entity, owned, managed, and
controlled by the same individuals. 58
Plaintiff contends that although Defendants assert that punitive damages are not
recoverable under the FMLA, pursuant to 29 U.S.C. § 2617, Plaintiff can recover liquidated
damages. 59 As for Plaintiff’s ADA claim, he asserts that Defendants do not dispute that Cajun Iron
Workers is the proper entity to be sued under the ADA and he may recover punitive damages under
the ADA pursuant to 42 U.S.C. § 1981. 60
Turning to Plaintiff’s Rehabilitation Act claim, Plaintiff contends that he does not dispute
that he cannot recover punitive damages pursuant to this claim. 61 Plaintiff asserts that Defendants
appear to argue not that he cannot assert claims under both the ADA and the Rehabilitation Act,

56

Id. at 5.

57

Id. (citing 29 C.F.R. 825.104(c)(2)).

58

Id.

59

Id. at 6.

60

Id. at 7.

61

Id.

10

but rather that he cannot recover under both. 62 Plaintiff contends that such an argument is
inappropriate on a motion to dismiss. 63 Plaintiff contends that because Cajun Iron Workers
received federal funds in the course of their business operations, Plaintiff can state a claim against
it under the Rehabilitation Act. 64 As for Plaintiff’s state law claim, Plaintiff asserts that he seeks
all relief available under the statute which includes: “compensatory damages, back pay, benefits,
reinstatement, or if appropriate, front pay, reasonable attorney fees, and court costs.” 65
Finally, Plaintiff asserts that pursuant to 42 U.S.C. § 1985(3), a plaintiff must prove: (1) a
conspiracy of two or more persons; (2) who are motivated by a specific class-based, invidiously
discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the
law to all; (4) and which results in injury to the plaintiff; as (5) a consequence of an overt act
committed by the defendants in connection with the conspiracy. 66 Plaintiff contends that Dr. Duet
and Barns conspired to deprive Plaintiff of his rights under the ADA. 67 In response to Defendants’
argument that § 1985 claims are limited to race discrimination claims, Plaintiff asserts that the
Supreme Court in Bray v. Alexandria Women’s Health Clinic stated only that discrimination had
to be class-based and here, the protected class of individuals is disabled persons. 68 Plaintiff
contends that Dr. Duet, Family Medical, Offshore Service, and Cajun Iron Workers conspired to

62

Id. at 7–8.

63

Id. at 8.

64

Id.

65

Id. at 10 (citing La. Rev. Stat. § 23:303).

66

Id. at 10–11 (citing Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995)).

67

Id. at 11.

68

Id. at 11–12 (citing 506 U.S. 263 (1993)).

11

deprive Plaintiff of his rights under the ADA and FMLA. 69
C.

Defendants’ Arguments in Further Support of Dismissal
Defendants request that the Court dismiss Plaintiff’s ADA, state law, and rehabilitation

claims against Offshore Service, Family Medical, and Dr. Duet with prejudice as Plaintiff asserts
that he is not pursing these claims against any entity other than Cajun Iron Workers. 70 Defendants
also assert that Plaintiff does not dispute that punitive damages are not recoverable under the
Rehabilitation Act, therefore, Plaintiff’s claim for such damages should be dismissed with
prejudice as well. 71 Defendants contend that Plaintiff’s position on his punitive damages claims
under the FMLA and state law are unclear; however, punitive damages are not recoverable under
either statute. 72
Turning to Plaintiff’s conspiracy claim pursuant to § 1985, Defendants contend that the
complaint includes only conclusory allegations regarding conspiracy and fails to allege with
specificity how each defendant played a role in the conspiracy and therefore, the claim fails on its
face. 73 Defendants assert that Title VII claims in and of themselves are not sufficient to state a
claim under § 1985. 74 Furthermore, Defendants contend that although Plaintiff recognizes that
“class-based” discriminatory animus is required pursuant to § 1985, Plaintiff does not recognize

69

Id. at 12.

70

Rec. Doc. 22 at 2.

71

Id.

72

Id. at 3 (citing Mays v. Bd. of Comm’rs Port of New Orleans, No. 14-1014, 2015 WL 1245683, at *11
(Mar. 18, 2015) (Brown, J.)).
73

Id.

74

Id. at 3–4 (citing Harris v. Travis, 55 F. App’x 716 (5th Cir. 2002)).

12

that the necessary motivation for a conspiracy claim under § 1985 is missing from Plaintiff’s
complaint. 75 In addition, Defendants argue that Plaintiff has conceded that he is not pursuing ADA
claims against anyone other than Cajun Offshore Workers, and Plaintiff offers no explanation for
how another defendant could be liable for conspiring to interfere with disability rights when they
cannot be liable for actually violating any disability rights. 76 Defendants also argue that Plaintiff’s
individual claim of disability discrimination is not class-based, and therefore his allegations are
insufficient to state a claim pursuant to § 1985. 77 Finally, Defendants reiterate their assertion that
within the Fifth Circuit, § 1985 claims must be based upon race. 78
As for Plaintiff’s FMLA claim, Defendants assert that Plaintiff makes no allegation that
Offshore Service interfered in any way with his FMLA rights. 79 As for the FMLA claim against
Dr. Duet, Defendants contend that although Plaintiff asserts in his opposition memorandum that
Dr. Duet was Plaintiff’s immediate supervisor and acted in the interest of Cajun Iron Workers,
such allegations are not contained in the complaint. 80 Defendants argue that Plaintiff has not
alleged that Dr. Duet, Family Medical, or Offshore Service had any input or control over the
decision made by Cajun Iron Workers with respect to Plaintiff’s leave and termination; therefore,
only the FMLA claim against Cajun Iron Workers should remain. 81

75

Id. at 4.

76

Id.

77

Id.

78

Id. at 5.

79

Id. at 6.

80

Id.

81

Id. at 7.

13

III. Law and Analysis
A.

Legal Standard on a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.” 82 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.” 83 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” 84 “Factual allegations must be enough to raise a right to relief above the
speculative level.” 85 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”86
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true. 87 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true. 88 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” 89
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

82

Fed. R. Civ. P. 12(b)(6).

83

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

84

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

85

Twombly, 550 U.S. at 556.

86

Id. at 570.

(2008)).

87

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
88
89

Iqbal, 556 U.S. at 677–78.
Id. at 679.

14

statements” will not suffice. 90 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action. 91 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.” 92 From the face of the complaint, there must be enough
factual matter to raise a reasonable expectation that discovery will reveal evidence as to each
element of the asserted claims. 93 If factual allegations are insufficient 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. 94
B.

Analysis
In Plaintiff’s opposition to the motion to dismiss, Plaintiff asserts that he is not pursuing

any claims pursuant to the ADA, Rehabilitation Act, or any state law claims against any entity
other than Cajun Iron Workers. 95 Therefore, the Court grants Defendants’ motion to dismiss the
ADA, Rehabilitation Act, and state law claims against Defendants Offshore Service, Family
Medical, and Duet as consented to. However, Defendants also move to dismiss: (1) Plaintiff’s
FMLA claims against Offshore Service and Family Medical; (2) Plaintiff’s 42 U.S.C. § 1985 claim
against all Defendants; (3) Plaintiff’s claims for punitive damages under the Rehabilitation Act,

90

Id. at 678.

91

Id.

92

Id.

93

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

94

Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir.
2007).
95

Rec. Doc. 18 at 1.

15

FMLA, and state law; and (4) Plaintiff’s claim for recovery under the Rehabilitation Act. 96 The
Court will address each of these claims in turn.
1.

FMLA Claims Against Offshore Service and Family Medical

Defendants move to dismiss the FMLA claims against Offshore Service and Family
Medical on the grounds that neither entity was Plaintiff’s “employer” pursuant to the FMLA. 97
Pursuant to the Code of Federal Regulations regarding the Family and Medical Leave Act, an
employer is defined as follows:
[A]ny person engaged in commerce or in any industry or activity affecting
commerce, who employs 50 or more employees for each working day during each
of 20 or more calendar workweeks in the current or preceding calendar year.
Employers covered by FMLA also include any person acting, directly or indirectly,
in the interest of a covered employer to any of the employees of the employer, any
successor in interest of a covered employer, and any public agency. 98
In opposition, Plaintiff first asserts that both Offshore Service and Family Medical meet
the definition of “employer” under the FMLA because they acted “directly or indirectly in the
interest of an employer to any of the employer’s employees.” 99 Plaintiff’s next sentence in his
opposition is as follows: “Plaintiff alleged, ‘ [sic].” 100 No explanation is provided regarding how
Plaintiff contends that he alleged that these entities were acting in the interest of Plaintiff’s
employer. However, in Plaintiff’s complaint, Plaintiff alleges that Cajun Iron Workers employed
Sanders and that Family Medical “provides company doctor services to [Cajun Iron Workers],

96

Rec. Doc. 12-1

97

Id. at 3.

98

29 C.F.R. § 825.104(a).

99

Rec. Doc. 18 at 5.

100

Id.

16

including but not limited to, evaluating employees who are on FMLA leave.” 101 Plaintiff also
alleges that Dr. Duet, Medical Director of Family Medical, along with Brett Barns, Human
Resources Director for Cajun Iron Workers, insisted that Plaintiff take additional unpaid leave and
provide Dr. Duet with additional medical records. 102 Therefore, Plaintiff has alleged that Family
Medical acted in the interest of Cajun Iron Workers to Cajun Iron Workers’ employee. There are
no allegations in Plaintiff’s complaint regarding any way in which Offshore Service acted in the
interest of Cajun Iron Workers.
Plaintiff also asserts that Offshore Vessel and Family Medical are liable under the FMLA
under the “single employer theory.” 103 Pursuant to the Code of Federal Regulations regarding the
FMLA, “[s]eparate entities will be deemed to be parts of a single employer for purposes of FMLA
if they meet the integrated employer test. . . . A determination of whether or not separate entities
are an integrated employer is not determined by the application of any single criterion, but rather
the entire relationship is to be reviewed in its totality.” 104 The regulation states that factors to be
considered in conducting this analysis are: “(i) Common management; (ii) Interrelation between
operations; (iii) Centralized control of labor relations; and (iv) Degree of common
ownership/financial control.” 105
Plaintiff asserts that he has alleged that Cajun Iron Workers is managed by Dino Chouest,
Offshore Service is managed by Dionne Chouest Austin and Dino Chouest, and Family Medical

101

Rec. Doc. 1 at 1–2.

102

Id. at 4–5.

103

Rec. Doc. 18 at 5.

104

29 C.F.R. § 825.104(c)(2).

105

Id.

17

is managed by Dino Chouest, Damon Chouest, and Dionne Chouest Austin. 106 However, beyond
the broad conclusion that these entities were controlled by the same individuals, Plaintiff makes
no other allegation regarding the degree of common ownership/financial control or the centralized
control of labor relations. Plaintiff makes no allegation regarding any actions that Offshore Service
specifically performed, let alone any allegations regarding the “interrelation between operations.”
Plaintiff alleges only that Family Medical provides “company doctor services” to Cajun Iron
Workers, including evaluating employees who are on FMLA leave.

107

Without further

information, the Court cannot determine whether Cajun Iron Workers, Offshore Service, and
Family Medical constitute an integrated employer for FMLA purposes. Therefore, the Court
concludes that Plaintiff has failed to allege sufficient facts to state a FMLA claim against Offshore
Service.
In Defendants’ reply, they argue that Plaintiff cannot state a viable claim under the FMLA
against Dr. Duet. 108 However, Defendants did not move to dismiss the FMLA claim against Dr.
Duet in their original motion and cannot not move to dismiss this claim through their reply.
2.

Conspiracy Claim Pursuant to 42 U.S.C. § 1985

Defendants also move to dismiss Plaintiff’s conspiracy claim against all Defendants on the
grounds that: “1) the claim lack[s] the particularity and specificity required of conspiracy claims;
2) Plaintiff failed to meet the general standard of alleging race or class-based discrimination; and

106

Rec. Doc. 18 at 5 (citing Rec. Doc. 1 at 2).

107

Id. at 2.

108

Rec. Doc. 19-1 at 6.

18

3) Plaintiff failed to meet the Fifth Circuit standard requiring a race-based conspiracy.” 109 In his
complaint, Plaintiff alleges that “[a]ll defendants engaged in a conspiracy against Sanders to
deprive him of his federally protected rights.” 110
Pursuant to 42 U.S.C. § 1985:
[i]f two or more persons in any State or Territory conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws . . . the
party so injured or deprived may have an action for the recovery of damages
occasioned by such injury or deprivation, against any one or more of the
conspirators.
In the Fifth Circuit, an allegation of a race-based conspiracy is required to state a claim under 42
U.S.C. § 1985. 111 Here, there are no allegations that racial considerations motivated Defendants’
conduct. Accordingly, Plaintiff has failed to state a claim of conspiracy pursuant to 42 U.S.C. §
1985.
3.

Punitive Damages

Defendants also move to dismiss Plaintiff’s claims for punitive damages under the
Rehabilitation Act, FMLA, and state law on the grounds that these claims do not provide for
punitive damages. 112 In opposition, Plaintiff asserts that he seeks “all appropriate relief identified
in 29 U.S.C. § 2617, including liquidated damages” pursuant to his FMLA claim and
“compensatory damages, back pay, benefits, reinstatement, or if appropriate, front pay, reasonable

109

Id. at 3.

110

Rec. Doc. 1 at 8.

111

Bryan v. City of Madison, Mississippi, 213 F.3d 267, 276 (5th Cir. 2000).

112

Rec. Doc. 12-1 at 10.

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attorney fees, and court costs” pursuant to Louisiana Revised Statute 23:303. 113 Plaintiff concedes
that punitive damages are not recoverable under the Rehabilitation Act. 114
Pursuant to 29 U.S.C. § 2617, an employer who violates the FMLA is liable to any eligible
employee affected for damages including; (1) “any wages, salary, employment benefits, or other
compensation denied or lost to such employee by reason of the violation” or actual monetary
losses; (2) interest on any such amount; and (3) liquidated damages equal to the sum of the
compensation denied or lost or actual monetary losses. 115 Pursuant to Louisiana Revised Statute
§ 23:303, “[a] plaintiff who has a cause of action against an employer, employment agency, or
labor organization for a violation of this Chapter [Louisiana Revised Statute § 23:301 et seq.] may
file a civil suit in a district court seeking compensatory damages, back pay, benefits, reinstatement,
or if appropriate, front pay, reasonable attorney fees, and court costs.” Neither of these statutes
provide for punitive damages; therefore, the Court grants Defendants’ motion to dismiss the
punitive damages claims pursuant to the Rehabilitation Act, FMLA, and Louisiana state law.
4.

Rehabilitation Act

Defendants move to dismiss Plaintiff’s Rehabilitation Act claim, not on the grounds that
Plaintiff has failed to state such a claim, but on the grounds that any remedies under the
Rehabilitation Act “will be subsumed by Plaintiff’s recovery under the ADA and/or the LDDA.”116
As the Court’s analysis on this motion is focused upon whether Plaintiff’s complaint states a claim

113

Rec. Doc. 18 at 6–7.

114

Id. at 7.

115

29 U.S.C. § 2617(a)(1)(A).

116

Rec. Doc. 12-1 at 11.

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pursuant to the Rehabilitation Act, and because Defendants make no argument that it does not, the
Court denies Defendants’ motion to dismiss Plaintiff’s Rehabilitation Act claim.
5.

Request for Leave to Amend

In the last sentence of his opposition, Plaintiff requests leave to amend his complaint rather
than granting the motion to dismiss.117 Dismissal is a harsh remedy, and the Court is cognizant of
the Fifth Circuit’s instruction that a motion to dismiss under Rule 12(b)(6) “is viewed with disfavor
and is rarely granted.” 118 Short of granting a motion to dismiss, a court may grant a plaintiff leave
to amend its complaint.119 “In deciding whether to grant leave to amend, the district court may
consider a variety of factors in exercising its discretion, including undue delay, bad faith or dilatory
motive on the part of the movant, repeated failures to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and
futility of the amendment.” 120
Here, although Plaintiff specifically requested leave to amend his complaint, he failed to
explain how amendment could cure the deficiencies raised by Defendants. Nevertheless, the Court,
in its discretion, will grant Plaintiff leave to amend his claim against Offshore Service pursuant to
the FMLA, as well as Plaintiff’s 42 U.S.C. § 1985 claim by August 18, 2016, if Plaintiff can show
that amendment will address the issues identified by the Court. If Plaintiff is unable to do so by
the Court’s deadline, the Court will dismiss these claims. However, the Court will not allow

117

Rec. Doc. 18 at 12.

118

Beanal v. Freeport-McMoran, Inc, 197 F.3d 161, 164 (5th Cir. 1999).

119

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (“This standard ‘evinces a bias in
favor of granting leave to amend. The policy of the Federal Rules is to permit liberal amendment.’”) (quoting
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
120

See Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003).

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Plaintiff to amend his complaint regarding any claims against Defendants Offshore Service,
Family Medical, and Dr. Duet pursuant to the ADA, Rehabilitation Act, or Louisiana state law as
Plaintiff has already stated that he is not bringing any such claims. Furthermore, the Court will not
allow any amendment regarding a claim for punitive damages pursuant to the FMLA,
Rehabilitation Act, or Louisiana state law as amendment would be futile.
IV. Conclusion
For the foregoing reasons, the Court grants the motion to dismiss with regards to Plaintiff’s
ADA, Rehabilitation Act, and state law claims against Defendants Offshore Service, Family
Medical, and Dr. Duet as consented to. The Court concludes that Plaintiff has failed to state a claim
pursuant to 42 U.S.C. § 1985 against all Defendants and has failed to state a claim pursuant to the
FMLA against Offshore Service. Therefore, the Court is inclined to grant the motion to dismiss as
to these claims. However, the Court will allow Plaintiff until August 18, 2016 to amend his
complaint to cure the deficiencies noted, if possible. Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Rule 12(b)(6) Partial Motion to
Dismiss” 121 is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the motion is granted as to Plaintiff’s claims against
Defendants Offshore Service, Family Medical, and Dr. Duet pursuant to the ADA, Rehabilitation
Act, and state law.
IT IS FURTHER ORDERED that the motion is granted as to Plaintiff’s claims for
punitive damages pursuant to the Rehabilitation Act, the FMLA, and Louisiana state law.
IT IS FURTHER ORDERED that the motion is denied as to Plaintiff’s claims under the

121

Rec. Doc. 12.

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Rehabilitation Act and Plaintiff’s claim against Family Medical pursuant to the FMLA.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend his complaint by
August 18, 2016. If Plaintiff is unable to cure the deficiencies in the complaint by that time, the
Court will dismiss the following claims: (1) Plaintiff’s claim pursuant to 42 U.S.C. § 1985; and
(2) Plaintiff’s claims pursuant to the FMLA against Offshore Service.

29th
NEW ORLEANS, LOUISIANA, this _____ day of July, 2016.

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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