Mire v. LSU Health Sciences Center

Filing 76

ORDER & REASONS granting in part and denying in part 46 Motion to Dismiss for Failure to State a Claim; denying as moot 48 Motion to Stay. Signed by Judge Sarah S. Vance on 2/17/2017. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KRISTINA MIRE, MD

CIVIL ACTION

VERSUS

NO. 15-6965

BOARD OF SUPERVISORS OF LOUISIANA
STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL
COLLEGE, ET AL.

SECTION “R” (2)

ORDER AND REASONS
Defendants Dr. Bonnie Desselle, Dr. Ricardo Sorenson, and the Board of
Supervisors of Louisiana State University and Agricultural and Mechanical College (the
LSU Board) move to dismiss plaintiff Kristina Mire, MD’s remaining claims on grounds
of sovereign immunity. For the following reasons, the Court grants the motion in part
and dismisses all of Mire’s claims except her ADA Title I claim for reinstatement against
Desselle and Sorenson.
I.

BACKGROUND
In her Second Amended Complaint, Kristina Mire, MD alleges that the LSU Health

Sciences Center (LSU Health), 1 Dr. Bonnie Desselle, and Dr. Ricardo Sorenson
discriminated against her based on her disability, and that this conduct violated Titles I
and II of the Americans with Disabilities Act of 1990 (ADA) and the ADA Amendments
Act of 2008 (ADAAA). Desselle and Sorenson are sued in their official capacities as

The Court has previously found that the LSU Board, rather than LSU Health, is the
proper defendant, R. Doc. 44 at 7-9, and the Board has been substituted as defendant in
this case.
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Program Director and Chair of LSU Health’s Department of Pediatrics. 2 According to the
complaint, Mire enrolled as a medical resident at LSU Health in July 2006. 3 Shortly after
enrolling, Mire sought treatment from a psychiatrist for Attention Deficit Hyperactivity
Disorder. 4 She also developed insomnia, which impaired her effectiveness as a resident. 5
By December 2006, Mire’s supervisors described Mire as inefficient and prone to
oversleeping and tardiness. 6 Mire was informed of these concerns in January 2007. 7 In
response, Mire revealed her insomnia to her program director at LSU Health. 8
By March 2007, Mire’s psychiatrist suspected that Mire had an Adjustment
Disorder and prescribed antidepressant and antipsychotic medication. 9 Mire, however,
reacted negatively to the medications and soon stopped taking them. 10 In June 2007,
Mire received more unfavorable performance reviews. 11 Mire disclosed her adjustment
disorder to the Chief Resident at LSU Health in July 2007. 12 Following this disclosure,
Mire was placed in a disciplinary program designed to remediate deficiencies in her
performance. 13

As part of the disciplinary program, Mire was reevaluated by her

psychiatrist. 14 Following this evaluation, Mire was diagnosed with Major Depressive
Disorder and was once again prescribed medication. 15 Although Mire continued to

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R. Doc. 27 at 2.
Id. at 1.
Id.
Id. at 3.
Id.
Id.
Id.
Id. at 4-5.
Id. at 5.
Id. at 6.
Id.
Id.
Id. at 7.
Id.

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respond negatively to her medication, Mire’s program director at LSU Health told Mire
that she was required under the disciplinary program to take all her prescribed
medication. 16 In response, Mire requested and received permission to visit another
psychiatrist. 17 The second psychiatrist confirmed Mire’s diagnosis of Major Depressive
Disorder, adjusted her medication, and recommended a leave of absence. 18 Following
this diagnosis, Mire was placed on a modified schedule until November 2007, when she
was placed on a more rigorous “in-patient call schedule.” 19
From January to April 2008, Mire took a leave of absence from the residency
program. 20 When she returned, LSU Health did not assign her duties gradually, but
instead placed Mire on “full on-call duty.” 21 Following her return, Mire once again had
trouble performing her duties, and she was placed on probation. 22 Mire appealed LSU
Health’s decision to place her on probation to an internal review body. 23 This appeal was
denied on June 19, 2008, and Mire was suspended from the residency program in August
2008. 24 LSU Health cited several reasons for the suspension, including Mire’s alleged
violation of the terms of her probation and unprofessional behavior. 25 Following a
competency hearing and an administrative appeal process, Mire was terminated by LSU

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Id.
Id.
Id.
Id.
Id. at 8.
Id.
Id.
Id.
Id. at 10.
Id.

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Health. 26 The Dean of the LSU Health Sciences Center School of Medicine “accepted and
confirmed” Mire’s termination on March 21, 2009. 27
Mire filed her initial complaint in this action, alleging violations of the Americans
with Disabilities Act, on December 21, 2015. 28
complaint. 29

Ten days later, Mire amended her

On March 30, 2016, after being granted leave to once again amend her

complaint, 30 Mire filed a Second Amended Complaint. 31

In her Second Amended

Complaint, Mire (1) added Desselle and Sorenson as defendants in their official
capacities, (2) clarified that she was asserting claims under both Title I and Title II of the
ADA, and (3) made modest changes to her factual allegations. 32
On September 12, 2016, the Court dismissed Mire’s claims against the LSU Board
arising under Title I of the ADA and ADAAA on grounds of sovereign immunity. 33 The
LSU Board filed the motion leading to this ruling before Mire amended her pleading to
explicitly bring claims under Title II. The Court, therefore, granted the Board leave to file
a motion challenging those claims within 21 days. 34 Defendants now move to dismiss the
remaining Title II claims against the LSU Board, along with all claims against Desselle
and Sorenson. Defendants have separately moved to stay discovery pending resolution
of this motion. 35

Id.
Id.
28
R. Doc. 1.
29
R. Doc. 7.
30
R. Doc.
31
R. Doc. 27
32
Id. Mire’s original and First Amended complaints alleged violations of the ADA
and ADAAA generally, but did not specify any Titles.
33
R. Doc. 44.
34
Id. at 12.
35
R. Doc. 48.
26
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II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of an action if the court

lacks jurisdiction over the subject matter of the plaintiff’s claim. Motions submitted
under Rule 12(b)(1) allow a party to challenge the court’s subject matter jurisdiction based
upon the allegations on the face of the complaint. Barrera–Montenegro v. United States,
74 F.3d 657, 659 (5th Cir. 1996); see also Lopez v. City of Dallas, Tex., No. 03–2223, 2006
WL 1450420, at *2 (N.D. Tex. May 24, 2006). In ruling on a Rule 12(b)(1) motion to
dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be
true; (2) the complaint supplemented by undisputed facts; or (3) the complaint
supplemented by undisputed facts and by the court’s resolution of disputed facts. Den
Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also
Barrera–Montenegro, 74 F.3d at 659. The plaintiff bears the burden of demonstrating
that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523
(5th Cir. 1981).
When examining a factual challenge to subject matter jurisdiction that does not
implicate the merits of plaintiff’s cause of action, the district court has substantial
authority “to weigh the evidence and satisfy itself as to the existence of its power to hear
the case.” Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012). Accordingly,
the Court may consider matters outside the pleadings, such as testimony and affidavits.
See Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir.
2015). A court’s dismissal of a case for lack of subject matter jurisdiction is not a decision
on the merits, and the dismissal does not necessarily prevent the plaintiff from pursuing

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the claim in another forum. See Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am.,
Inc., 544 F. App’x 455, 456 (5th Cir. 2013).

III.

DISCUSSION

Defendants move to dismiss all remaining claims on grounds of sovereign
immunity. “The Eleventh Amendment bars citizens of a state from suing their own state
or another state in federal court unless the state has waived its sovereign immunity or
Congress has expressly abrogated it.” Raj v. Louisiana State Univ., 714 F.3d 322, 328
(5th Cir. 2013) (internal citations omitted). Louisiana has explicitly asserted its sovereign
immunity by statute. La. Rev. Stat. § 13:5106(A) (2010) (“No suit against the state or a
state agency or political subdivision shall be instituted in any court other than a Louisiana
state court.”). This immunity extends to certain State agencies as well as the State itself,
and “[i]t is well-settled in the Fifth Circuit that institutions of higher education and their
boards are arms of the state entitled to immunity.” Hall v. Bd. of Supervisors of Cmty. &
Tech. Colleges, 15-67, 2015 WL 2383744, at *4 (E.D. La. May 18, 2015); see also Raj, 714
F.3d at 328 (“[T]he LSU Board is an arm of the state and is immune from suit under the
Eleventh Amendment.”).
The Court first considers Mire’s Title I claims against Desselle and Sorenson and
then Mire’s Title II claims against all defendants.

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A. Title I – Desselle and Sorenson
In its order regarding the LSU Board’s first motion to dismiss, the Court found that
Congress has not validly abrogated Louisiana’s immunity from Title I claims, that the
Board is an arm of the state, and that Mire’s Title I claim against the LSU Board was
therefore barred by the Eleventh Amendment. Mire argues that her claims against
Desselle and Sorenson escape this fate because they fall under the limited exception
articulated in Ex parte Young, 209 U.S. 123 (1908).
“In determining whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry into whether
the complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.
635, 645 (2002) (internal quotations and modifications omitted). In this case, Mire seeks,
among other remedies, reinstatement to her previous position as a medical resident. The
Supreme Court recognizes that private parties can sue for injunctive relief under Young
to enforce the standards of Title I. Bd. of Trustees of Univ. of Alabama v. Garrett, 531
U.S. 356, 374 n.9 (2001). Further, the Fifth Circuit “has always treated Ex parte Young
as an appropriate vehicle for pursuing reinstatement to a previous job position.” Nelson
v. Univ. of Texas at Dallas, 535 F.3d 318, 322 (5th Cir. 2008). Accordingly, in this circuit,
Mire’s complaint alleges an ongoing violation for purposes of Ex parte Young and seeks
prospective relief. Because Mire’s claims also arise under the ADA, a federal law, they are
not barred by the Eleventh Amendment. See McCarthy ex rel. Travis v. Hawkins, 381
F.3d 407, 413-14 (5th Cir. 2004) (holding that state officers in their official capacities were
proper defendants in Ex parte Young suit to enforce the officers’ alleged duties under
Title II of the ADA); Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 178 (3d

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Cir. 2002) (“While there appears to be no individual liability for damages under Title I of
the ADA . . . prospective relief against state officials acting in their official capacities may
proceed under the statute.”).
Desselle and Sorenson attempt to resist this conclusion by arguing that they are
not “employers” under the ADA and therefore are not proper Title I defendants. But, as
state officials sued in their official capacity, Desselle and Sorenson “represent[] their
respective state agencies . . . for all purposes except the Eleventh Amendment.” McCarthy
ex rel. Travis, 381 F.3d at 414. Because Desselle and Sorenson make no showing that the
LSU board is not an employer under the ADA, this argument fails. See Garrett, 531 U.S.
at 374 n.9 (2001) (noting that Title I “can be enforced . . . by private individuals in actions
for injunctive relief under Ex parte Young.”); Whitfield v. Tennessee, 639 F.3d 253, 257
(6th Cir. 2011) (holding that complaint against state employee in official capacity
“contain[ed] an Ex parte Young action for reinstatement pursuant to Title I of the ADA.”).
Desselle and Sorenson’s only supporting case, Franklin v. City of Slidell, 936 F. Supp. 2d
691 (E.D. La. 2013), did not concern Ex parte Young, and is therefore distinguishable.
For these reasons, the Court finds that Mire’s claim against Desselle and Sorenson
for reinstatement may proceed, but all other Title I claims (i.e. for backpay or
compensatory damages) must be dismissed.

B. Title II – All Defendants
In addition to her Title I claims, Mire brings claims against all three defendants
under Title II of the ADA and ADAAA. Title II protects qualified disabled individuals

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against exclusion from “the services, programs, or activities of a public entity.” 36 42
U.S.C. § 12132 (2012). In United States v. Georgia, 546 U.S. 151, 159-60 (2006), the
Supreme Court held that Title II validly abrogates state sovereign immunity for conduct
that violates the Constitution. The Court established a three-part test for determining
whether this abrogation of state sovereign immunity applies in a particular case: a court
must (1) “consider ‘which aspects of the State’s alleged conduct violated Title II’”; (2)
“determine ‘to what extent such misconduct also violated the Fourteenth Amendment.’”;
and (3), if it finds that the conduct violated Title II but not the Fourteenth Amendment,
“the court must then determine ‘whether Congress’s purported abrogation of sovereign
immunity as to that class of conduct is nevertheless valid.’” Hale v. King, 642 F.3d 492,
498 (5th Cir. 2011) (quoting Georgia, 546 U.S. at 159). Because the first prong of this test
requires an examination of the merits of the plaintiff’s case, the Court begins by applying
the Rule 12(b)(6) standard to Mire’s claims. Hale, 642 F.3d at 498.
In this case, the LSU Board has raised the statute of limitations as a defense. 37 “A
statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from
the plaintiff’s pleadings that the action is barred and the pleadings fail to raise some basis
for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003). Mire

“Unlike Title I of the ADA, Title II does not create a cause of action for employment
discrimination.” Taylor v. City of Shreveport, 798 F.3d 276, 282 (5th Cir. 2015). At least
one court has found that a medical residency is “more akin to a program of higher
education than an employment position,” and that a discharged resident may therefore
bring claims under Title II. Sarkissian v. W. Va. Univ. Bd. of Governors, No. 05-144,
2007 WL 1308978, at *8 (N.D.W. Va. May 3, 2007); see also Davis v. Mann, 882 F.2d
967, 974 (5th Cir. 1989) (“It is well-known that the primary purpose of a residency
program is not employment or a stipend, but the academic training and the academic
certification for successful completion of the program.”). Because the Court finds that
Mire’s Title II claim is time-barred, it need not reach the question of whether a claim for
wrongful termination from a medical residency program is cognizable under Title II.
37
R. Doc. 38 at 2; R. Doc. 46-2 at 2.
36

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alleges that she was discharged from the residency program on March 21, 2009. 38 She
filed this action more than six years later, on December 21, 2015. 39
Mire alleges that her claims arise under both the ADA, and the ADAAA which
modified the original law. Neither law contains a statute of limitations. Frame v. City of
Arlington, 657 F.3d 215, 237 (5th Cir. 2011). For claims cognizable under the preamendment ADA, courts borrow the “most analogous” forum-state limitation period. Id.
In Louisiana, the relevant period is the state’s one-year personal injury statute of
limitations. Joseph v. Port of New Orleans, No. 99-1622, 2002 WL 342424, at *12 (E.D.
La. Mar. 4, 2002); see also Frame, 657 F.3d at 237 (applying Texas’ personal injury
statute of limitations to ADA claim). If, however, Mire’s claims were not cognizable under
the pre-amendment ADA, and were therefore only “made possible” by the amendments
contained in the ADAAA, the Court must apply the default four-year limitations period
for causes of action arising under Acts of Congress enacted after December 1, 1990. See
28 U.S.C. § 1658(a) (2012); Frame, 657 F.3d at 237. Regardless of which period applies,
the question of when an ADA claim accrued is answered under federal law. Frame, 657
F.3d at 238. Mire’s claims therefore accrued when she had “sufficient information to
know that [s]he ha[d] been denied the benefits of a service, program, or activity of a public
entity.” Id.
Under this standard, Mire’s claims accrued, at the latest, on the date of her
dismissal from the residency program in March 2009. The Court therefore need not
decide whether Mire’s claim was “made possible” by the ADAAA. Mire first filed suit in
2015, and the claim therefore, absent any tolling, has expired under either period.

38
39

R. Doc. 27 at 10.
R. Doc. 1.

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To resist the conclusion that her Title II claims are prescribed, Mire argues that:
(1) her Title II claims were asserted in her original complaint, not merely her second
complaint; (2) her dismissal constitutes an ongoing violation of the ADA; and (3) the facts
supporting Mire’s Title II claim were part of the EEOC investigation, and the statute of
limitations was therefore tolled. These arguments fail.
As to Mire’s first argument, it is irrelevant whether Mire’s Title II claims were first
asserted in her original complaint or in a later complaint. As explained above, Mire’s
claims prescribed before she filed this suit. Mire’s second argument is also quickly
dispatched; Mire cites no case holding that termination constitutes a continuing course
of conduct for prescription purposes, and such arguments have been rejected as frivolous.
See Waller v. Wal-Mart Stores, Inc., No. 93-588, 1994 WL 243718, at *2 (E.D. Tex. Jan.
18, 1994) (rejecting as frivolous plaintiffs argument that discrimination continued after
she was terminated). Mire’s supporting cases do not concern termination from a job,
medical residency, or any similar program and are therefore easily distinguishable. See
Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1561 (5th Cir. 1985) (acknowledging that
“a persisting and continuing system of discriminatory practices in promotion or transfer”
may constitute an ongoing violation); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 286
(E.D.N.Y. 2008) (holding that alleged “warehousing [of] individuals with mental illness
in nursing homes” was an ongoing violation); Martin v. Voinovich, 840 F. Supp. 1175,
1180 (S.D. Ohio 1993) (holding that state’s alleged failure to provide community housing
and other services to mentally disabled residents constituted ongoing violation).
Mire’s final argument is that the limitations period was tolled by her pursuit of
administrative remedies before the Equal Employment Opportunity Commission and

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Department of Justice. 40 When a plaintiff is required to exhaust available administrative
remedies before filing suit, the relevant statute of limitations may be tolled pending the
administrative action. See e.g., Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999)
(tolling limitations period where “exhaustion requirement functioned as a legal cause
which prevented the courts or their officers from taking cognizance of or acting on the
plaintiff’s action.” (internal quotations omitted)).

If the relevant law contains no

exhaustion requirement, the limitations period continues to run even while plaintiff
pursues an optional administrative remedy. Radford v. Gen. Dynamics Corp., 151 F.3d
396, 399 (5th Cir. 1998) (“If there is no exhaustion requirement, there is no need to toll
the statute [of limitations].”). Although the Fifth Circuit has twice declined to reach the
question, see Holmes v. Texas A&M Univ., 145 F.3d 681, 684 (5th Cir. 1998), and Decker
v. Univ. of Houston, No. 97-20502, 1998 WL 698920, at *9 (5th Cir. Sept. 15, 1998), the
clear consensus among other courts is that Title II, unlike Title I, imposes no
administrative exhaustion requirement. See Elwell v. Oklahoma ex rel. Bd. of Regents of
Univ. of Oklahoma, 693 F.3d 1303, 1309 (10th Cir. 2012) (“[Title II] lacks the
requirement that an otherwise qualified individual exhaust EEOC administrative
remedies before bringing suit.”); Leine v. California Dep’t of Rehab., 205 F.3d 1351, 1351
(9th Cir. 1999) (“Title I . . . has an exhaustion requirement, but Title II does not.”); Bledsoe
v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816, 824 (11th Cir. 1998)
(noting that exhaustion “is mandatory in Title I but not in Title II of the ADA.”); Smith v.
City of Philadelphia, 345 F. Supp. 2d 482, 487 (E.D. Pa. 2004) (“There is ‘no requirement
that plaintiffs file an administrative complaint or otherwise follow the procedural

40

R. Doc. 27 at 10-11.
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requirements of Title I when filing a Title II claim.’” (quoting Wagner v. Texas A & M
Univ., 939 F. Supp. 1297, 1309 (S.D. Tex. 1996))); see also 28 C.F.R. pt. 35, App. B § 35.172
(2011) (“Because [Title II] does not require exhaustion of administrative remedies, the
complainant may elect to proceed with a private suit at any time.”); Mary Jo C. v. New
York State & Local Ret. Sys., 707 F.3d 144, 170 (2d Cir. 2013) (stating without deciding
that “it appears that those filing suit under Title II need not” exhaust administrative
remedies).
The Court finds the reasoning of these cases persuasive and holds that Title II of
the ADA contains no exhaustion requirement. Accordingly, the limitation period for
Mire’s Title II claim was not tolled during her pursuit of administrative remedies, and the
claim is barred. See Thorne v. Hale, No. 08-601, 2009 WL 890136, at *5 (E.D. Va. Mar.
26, 2009) (“[B]ecause plaintiffs are not required to exhaust their administrative remedies
before bringing suit pursuant to Title II, notifying state or federal agencies of a potential
claim does not toll the statute of limitations.”).
Because the limitation period was not tolled, and her injuries are not ongoing,
Mire’s Title II claims are time barred. Mire has therefore failed to state a claim for
violation of Title II, and the Court must dismiss her claim before reaching the remaining
prongs of the Georgia test. See Hale v. King, 642 F.3d. 492, 503-504 (5th Cir. 2011);
Zibbell v. Michigan Dep’t of Human Servs., 313 F. App’x 843, 847 (6th Cir. 2009)
(“[B]ecause the district court correctly determined that the Zibbells failed to state an ADA
claim, it need not—and should not—have ventured into the consideration of immunity
under the Eleventh Amendment.”). Accordingly, Mire’s Title II claims are dismissed.

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IV.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is GRANTED IN PART
AND DENIED IN PART. Mire’s claims for reinstatement under Title I of the ADA and
ADAAA against Desselle and Sorenson in their official capacities remain. All other claims
under Title I are DISMISSED WITHOUT PREJUDICE. All of Mire’s claims arising under
Title II of the ADA and ADAAA are DISMISSED WITH PREJUDICE. Defendants’ motion
to stay discovery pending resolution of this motion is DENIED AS MOOT.

17th
New Orleans, Louisiana, this _____ day of February, 2017.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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