Breaux v. Bollinger Shipyards LLC et al

Filing 22

ORDER: IT IS HEREBY ORDERED that Defendants' 9 Rule 12(b)(6) Partial Motion to Dismiss is DENIED AS MOOT IN PART and DENIED WITHOUT PREJUDICE IN PART and GRANTED IN PART. IT IS FURTHER ORDERED that the motion is granted as to Plaintiff's request for punitive damages, if Plaintiff is in fact pursuing such damages, pursuant to the FMLA and Louisiana state law. IT IS FURTHER ORDERED that the motion is denied as moot as to Plaintiffs claims against Defendants Family Medical and Dr. Duet pursuant to the ADA and Plaintiff's pattern or practice claims. IT IS FURTHER ORDERED that the motion is denied without prejudice as to Plaintiff's claims against Family Medical and Duet pursuant to the FMLA. IT IS FURTHER ORDERED that Plai ntiff is granted leave to amend his complaint by April 19, 2017. If Plaintiff is unable to cure the deficiencies in the complaint by that time, upon motion by a party, the Court will dismiss Plaintiff's claims pursuant to the FMLA against Family Medical and Dr. Duet. Signed by Judge Nannette Jolivette Brown on 3/23/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARK BREAUX

CIVIL ACTION

VERSUS

CASE NO. 16-2331

BOLLINGER SHIPYARDS, LLC, et al.

SECTION: “G” (1)

ORDER
In this litigation, Plaintiff Mark Breaux (“Plaintiff”) alleges that Defendants violated his
rights under the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act
(“ADA”) and his privacy rights accorded to him by the Louisiana Constitution.1 Pending before
the Court is Defendants Bollinger Shipyards, LLC (“Bollinger”), 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 deny the motion as moot in
part, grant the motion in part, and deny the motion without prejudice in part and grant Plaintiff
leave to amend his complaint to address the deficiencies identified by the Court by April 19, 2017.
I. Background
A.

Factual Background
Plaintiff alleges that he was employed by Bollinger as a tack welder from 2011 until he

was promoted to welder in 2012. 3 He alleges that in 2004 he had a medical condition which

1

Rec. Doc. 1.

2

Rec. Doc. 9.

3

Rec. Doc. 1 at 3.

1

involved damage to the ulnar nerve and ligaments on his left arm.4 Plaintiff states that he was
prescribed opioid pain killers, but that he had difficulty withdrawing from his prescribed
painkillers and was prescribed Suboxone to aid him in withdrawing from using the painkillers.5
According to Plaintiff, he was able to perform all of the functions of his job as a welder while
taking Suboxone. 6 Plaintiff asserts that thereafter he was promoted to leaderman, where he
sometimes supervised as many as 15 people on the job.7
Plaintiff alleges that on December 9, 2015, he injured his left hand when he slipped outside
of his home.8 According to Plaintiff, he returned to work the next day, but when his hand began
to swell he reported the accident to his supervisor and was told to see a doctor if his hand continued
to swell.9 Plaintiff alleges that following a doctor’s appointment on December 10, 2015, he was
placed on short-term disability but was not informed of the availability of FMLA leave.10 Plaintiff
asserts that he was released to return to work, full duty with no restrictions, by his treating
physician, Dr. Hildebrand, on February 3, 2016.11

4

Id. at 4.

5

Id.

6

Id.

7

Id.

8

Id.

9

Id. at 5.

10

Id.

11

Id.

2

Plaintiff alleges that Bollinger would not allow him to return to work without reporting to
Family Medical for clearance to return. 12 According to Plaintiff, Family Medical collected
medical and pharmaceutical information on him that it was not authorized to have, and which was
not related to his hand injury.13 Plaintiff alleges that one of Dr. Duet’s employees examined his
hand and observed that it was healed and fully functional.14 Plaintiff argues that Dr. Duet and
Family Medical refused to allow him to return to work because he was taking Suboxone, despite
the fact that it was unrelated to his hand injury.15 Moreover, Plaintiff asserts that Dr. Duet made
negative remarks against Plaintiff’s physician for permitting Plaintiff to use the medication.16
Plaintiff alleges that “Defendants’ cooperative practice of failing and refusing to return
employees who have been certified medically able to return to full duty by their treating physician
is part of an overall pattern of conduct which has the common goal of eliminating or ‘culling’
injured employees.”17 Plaintiff asserts that this “culling” inured to the direct and indirect financial
benefit of Dr. Duet and Bollinger.18

12

Id.

13

Id.

14

Id. at 6.

15

Id.

16

Id.

17

Id.

18

Id.

3

B.

Procedural Background
Plaintiff filed a complaint against Defendants on March 17, 2016.19 On May 26, 2016,

Defendants filed the instant motion.20 On June 14, 2016, Plaintiff filed an opposition.21 With leave
of Court, Defendants filed a reply on June 23, 2016.22
II. Parties’ Arguments
A.

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

following claims: (1) the claims against Family Medical and Dr. Duet under the ADA and the
FMLA; (2) the request for punitive damages under the FMLA against all Defendants; (3) the
request for punitive damages under state law against Family Medical and Dr. Duet; and (4) the
pattern or practice allegations against all Defendants.23
First, Defendants contend that Plaintiff’s ADA and FMLA claims against Family Medical
must be dismissed because Family Medical was not Plaintiff’s “employer.”24 Under the ADA,
Defendants argue that an employment relationship must exist within the meaning of Title VII, with
the most important factor being the right to control the employee’s conduct. 25 Defendants assert
that Plaintiff has not alleged that Family Medical had the right to control his activities and so

19

Rec. Doc. 1.

20

Rec. Doc. 9.

21

Rec. Doc. 10.

22

Rec. Doc. 16.

23

Rec. Doc. 9-1 at 1.

24

Id. at 3.

25

Id.

4

Family Medical is not his employer under the ADA.26 Defendants contend that under the FMLA
only a single corporation should be deemed the “employer,” and Plaintiff’s complaint repeatedly
refers to Bollinger as his employer.27
Second, Defendants assert that Plaintiff’s ADA and FMLA claims against Dr. Duet must
be dismissed because he is not Plaintiff’s employer.28 Defendants argue that individuals cannot be
held liable under the ADA.29 Moreover, Defendants aver that Dr. Duet cannot be held liable under
the FMLA because Plaintiff does not allege that Dr. Duet had any knowledge of, information
about, or control over, Plaintiff’s FMLA leave status or the FMLA leave determination made by
Plaintiff’s employer, Bollinger.30
Third, Defendants move to dismiss Plaintiff’s request for punitive damages as, they assert,
punitive damages are not recoverable in a private right of action under the FMLA or state privacy
law.31 Defendants contend that Louisiana has a general public policy against an award of punitive
damages unless they were specifically provided for by statute and Plaintiff’s request for punitive
damages for his state law cause of action is without legal support.32
Fourth, Defendants contend that Plaintiff cannot assert a separate claim for pattern or

26

Id. at 4.

27

Id.

28

Id. at 5.

29

Id.

30

Id. at 7.

31

Id. (citing 29 U.S.C. § 2617(a); Oby v. Baton Rouge Marriott, 329 F. Supp. 2d 772, 788 (M.D. La.

32

Id.

2004)).

5

practice.33 Defendants assert that a pattern or practice claim is not a separate and free-standing
cause of action, but is another method by which disparate treatment can be shown.34 Moreover,
Defendants argue that a pattern or practice method of proof is not available in suits which are
private, non-class action lawsuits.35
B.

Plaintiff’s Arguments in Opposition to Dismissal
In opposition, Plaintiff contends that he has made valid FMLA claims and pattern and

practice allegations against all Defendants.36 Plaintiff asserts that he has made valid ADA claims
against Bollinger, but that he is not asserting ADA claims against Family Medical or Dr. Duet.37
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.”38 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.39 Plaintiff asserts that Defendants do not dispute that
Bollinger is a properly named defendant as Bollinger employed Plaintiff.40 Plaintiff contends that
Family Medical and Dr. Duet acted directly or indirectly in the interest of Bollinger and under the

33

Id.

34

Id. (citing Admire v. Strain, 566 F. Supp. 2d 492, 504 (E.D. La. 2008); Celestine v. Petroleos de Venezuella
SA, 266 F.3d 343, 355 (5th Cir. 2001)).
35

Id. at 8 (citing Admire, 566 F. Supp. 2d at 504; Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003)).

36

Rec. Doc. 10 at 1.

37

Id. at 1–3

38

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

39

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

40

Id. at 5.

6

theory that they operated as a single employer.41
Specifically, Plaintiff argues that Family Medical acted as an employer under the FMLA
because it acted in the interest of Bollinger by researching and improperly obtaining medical
records unrelated to Plaintiff’s hand injury and fabricating a reason to prevent Plaintiff from
returning to work.42 Plaintiff also contends that Bollinger and Family Medical operated as a single
employer.43 According to Plaintiff, 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.44
Plaintiff argues that Bollinger and Family Medical all function as a single entity, owned, managed,
and controlled by the same individuals.45 As for Dr. Duet, Plaintiff asserts that Dr. Duet acted,
directly or indirectly, in the interest of Bollinger, and consequently is an employer under the
FMLA.46
Next, 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.47
Finally, Plaintiff asserts that he is not bringing a separate claim for pattern or practice, but

41

Id.

42

Id. at 5–6.

43

Id. at 6.

44

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

45

Id. at 6–7.

46

Id. at 7–8.

47

Id. at 8–9.

7

rather that his pattern or practice allegations are “part of the larger story which will illustrate
Defendants’ attempts to intentionally circumvent Plaintiff’s federally protected rights.”48 Plaintiff
contends that Family Medical and its employees, including Dr. Duet, operated under the direction
of and in the best interest of Bollinger, and Bollinger “appears to have determined that it is going
to send a message to its employees that taking FMLA leave and requiring ADA modifications will
be met with termination.”49 Therefore, Plaintiff asserts that his pattern or practice allegations are
critical to the story and relevant to the damages that are available to Plaintiff.50
Finally, Plaintiff notes that Defendants do not seem to challenge his state law claims.51
Plaintiff asserts that he is seeking to recover all available remedies for his breach of privacy.52 If
the Court concludes that any deficiencies to the complaint exist, Plaintiff asserts that he should be
granted leave to amend his complaint.53
C.

Defendants’ Arguments in Further Support of Dismissal
Defendants contend that Plaintiff’s ADA claims should be dismissed against Family

Medical and Dr. Duet.54 They note that Plaintiff stipulates he is only bringing ADA claims against
Bollinger.55 Defendants also assert that Plaintiff’s FMLA claims are not viable against Family

48

Id. at 9.

49

Id.

50

Id. at 9–10.

51

Id. at 10.

52

Id.

53

Id. at 13.

54

Rec. Doc. 16 at 1.

55

Id.

8

Medical or Dr. Duet.56 Defendants argue that Plaintiff has not alleged that Dr. Duet or Family
Medical were corporate officers of Bollinger, or that they had any input or control into the
decisions made by Bollinger with respect to Plaintiff’s leave and alleged termination.57 Further,
Defendants note that Plaintiff cited no law in support of his assertion that an unrelated third party,
who is not a corporate officer of Bollinger nor even employed by Bollinger, can be liable as an
individual under the FMLA.58
Defendants assert that Plaintiff’s position on his request for punitive damages under the
FMLA and state law are unclear; however, they contend that punitive damages are not recoverable
under either statute.59
Finally, Defendant notes that Plaintiff cites no law to rebut Defendants’ arguments that
pattern or practice allegations cannot serve as a separate claim, and further the pattern or practice
method of proof is not available in suits which are private, non-class action lawsuits.60 Therefore,
Defendant asserts that Plaintiff’s pattern or practice allegations should be dismissed.61

56

Id. at 2.

57

Id.

58

Id. at 2–3.

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.)).
59

60

Id. at 4.

61

Id.

9

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.”62 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.” 63 “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.’”64 “Factual allegations must be enough to raise a right to relief above the
speculative level.”65 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.”66
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.67 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.68 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” 69
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

62

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

63

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

64

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

65

Twombly, 550 U.S. at 556.

66

Id. at 570.

(2008)).

67

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).
68
69

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

10

statements” will not suffice.70 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. 71 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.” 72 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.73 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.74
B.

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

any claims pursuant to the ADA against any entity other than Bollinger.75 Therefore, the Court
denies as moot Defendants’ motion to dismiss the ADA claims against Defendants Family Medical
and Dr. Duet. Defendants also move to dismiss: (1) Plaintiff’s FMLA claims against Family
Medical and Dr. Duet; (2) Plaintiff’s request for punitive damages under the FMLA and state law;
and (3) the pattern or practice claims against all Defendants.76 The Court will address each of these

70

Id. at 678.

71

Id.

72

Id.

73

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

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).
74

75

Rec. Doc. 10 at 1.

76

Rec. Doc. 9.

11

issues in turn.
1.

FMLA Claims Against Family Medical and Dr. Duet

Defendants move to dismiss the FMLA claims against Family Medical and Dr. Duet on
the grounds that they were not Plaintiff’s “employer” pursuant to the FMLA.77 Defendants argue
that Plaintiff only alleges that Bollinger was his employer and that he makes no allegations that
Family Medical or Dr. Duet were his employers.78 Plaintiff contends that Family Medical and Dr.
Duet are employers because they acted directly or indirectly in the interest of Bollinger.79 Plaintiff
also argues that Family Medical is his employer under the theory that Bollinger and Family
Medical operated as a single-employer.80
Under the FMLA, a covered employer must “allow an eligible employee up to twelve
weeks of unpaid leave if the employee suffers from ‘a serious health condition that makes the
employee unable to perform the functions of the position of such employee.’”81 When an eligible
employee returns from FMLA leave, the employer must restore the employee to the same position
he or she previously held or to “an equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment.”82 To protect an employee’s right to take leave,

77

Rec. Doc. 9-1 at 3–6.

78

Id. at 4, 6.

79

Rec. Doc. 10 at 5–6, 7–8.

80

Id. at 6–7.

81
Caldwell v. KHOU-TV, No. 16-20408, 2017 WL 892439, at *5 (5th Cir. Mar. 6, 2017) (quoting Hunt v.
Rapides Healthcare Sys., LLC, 277 F.3d 757, 763 (5th Cir. 2001) (quoting 29 U.S.C. § 2612(a)(1)(D)), abrogated on
other grounds by Wheat v. Fla. Par. Juvenile Justice Comm'n, 811 F.3d 702 (5th Cir. 2016)).
82

Hunt, 277 F.3d at 763 (citing 29 U.S.C. § 2614(a)(1)); Nero v. Indus. Molding Corp., 167 F.3d 921, 927
(5th Cir. 1999).

12

the FMLA prohibits employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of
or the attempt to exercise, any right” provided by the Act.83
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.84
The Fifth Circuit has frequently noted that the definition of “employer” under the FMLA
is “very similar” to the definition of “employer” under the Fair Labor Standards Act (“FLSA”).85
Thus, the Fifth Circuit has determined that “[t]he fact that Congress, in drafting the FMLA, chose
to make the definition of ‘employer’ materially identical to that in the FLSA means that decisions
interpreting the FLSA offer the best guidance for construing the term ‘employer’ as it is used in
the FMLA.”86 Accordingly, pursuant to the Fifth Circuit’s instructions, this Court will look to
FLSA’s definition of “employer” as guidance to determine whether Family Medical, Dr. Duet, and
Broussard are “employers” under the FMLA.
Similarly to the FMLA, the FLSA defines an “employer” as “any person acting directly or
indirectly in the interest of an employer in relation to an employee.”87 The Fifth Circuit has held

83

Caldwell V, 2017 WL 892439, at *5 (citing 29 U.S.C. § 2615(a)(1)).

84

29 C.F.R. § 825.104(a).

85

Modica v. Taylor, 465 F.3d 174, 186 (5th Cir. 2006) (citing 29 U.S.C. § 203(d)).

86

Modica, 465 F.3d at 186 (quoting Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999)).

87

Id.; see 29 U.S.C. § 203(d).

13

that FLSA’s definition of employer is “sufficiently broad to encompass an individual who, though
lacking a possessory interest in the ‘employer’ corporation, effectively dominates its
administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its
employees.”88 Moreover, to determine if an individual is an employer under the FLSA, the Fifth
Circuit has stated that courts should consider “whether the alleged employer (1) has the power to
hire and fire the employees, (2) supervised and controlled employee work schedules or conditions
of employment, (3) determined the rate and method of payment, and (4) maintained employment
records.”89
In Plaintiff’s complaint, Plaintiff alleges that Bollinger employed him and that Family
Medical “provides company doctor services to [Bollinger], including but not limited to, evaluating
employees who are on FMLA leave.”90 Plaintiff also alleges that Dr. Duet, as the medical director
at Family Medical, worked to advance the corporate interest of Bollinger.91 Plaintiff asserts that
based on other medical issues unrelated to his hand injury, Family Medical refused to allow him
to return to work.92 Plaintiff alleges based on information and belief that Dr. Duet and Family
Medical refused to allow him to return to work because he was taking Suboxone.93 Moreover,
Plaintiff asserts that Dr. Duet made remarks against Plaintiff’s treating physician, Dr. Walter

88

Reich v. Circle C. Investments, Inc., 998 F.2d 324, 329 (5th Cir. 1993) (quoting Donovan v. Sabine
Irrigation Co., 695 F.2d 190, 196 (5th Cir. 1983)); see also Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir.
1984).
89

Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (internal citations omitted).

90

Rec. Doc. 1 at 2.

91

Id. at 6.

92

Id.

93

Id.

14

Birdsall, Jr., concerning the physician’s permitting Plaintiff to use the medication.94
The Court finds Plaintiff’s arguments that Family Medical and Dr. Duet are his
“employers” unpersuasive. As stated supra, the Fifth Circuit, in interpreting FLSA’s substantially
similar definition of “employer,” has determined that a person can be an “employer” when he or
she “effectively dominates [the employer corporation’s] administration” or “has the power to act[]
on behalf of the corporation vis-à-vis its employees.”95 Here, Plaintiff has failed to plausibly allege
that Family Medical or Dr. Duet “effectively dominates” Bollinger’s administration or otherwise
has “the power to act” on behalf of Bollinger to its employees.96
Additionally, as stated supra, the Fifth Circuit has instructed that courts should consider
whether the allege employers have “the power to hire and fire the employees,” supervise or control
the employee’s “work schedules or conditions of employment,” determine the “rate and method
of payment,” and maintain employment records.97 Likewise, the Supreme Court has interpreted
FLSA’s “employer” definition to include persons with “managerial responsibilities” and
“substantial control of the terms and conditions of the [employer's] work.”98 However, Plaintiff’s
complaint fails to allege that any of these factors are met, as Plaintiff’s only allegation is that
Family Medical and/or Dr. Duet refused to credit Breaux’s treating physicians’ medical opinion
and “instead substitute[ed] his own medically inferior and economically-motivated opinion” that

94

Id.

95

Reich, 998 F.2d at 329.

96

Id.

97

Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (internal citations omitted)

98

Donovan v. Grim Hotel Co., 747 F.2d 966, 971–72 (5th Cir. 1984).

15

Breaux could not return to work.99 However, it is unclear if Plaintiff even alleges that Family
Medical or Dr. Duet, rather than Bollinger, had the authority to make the ultimate decision to deny
Plaintiff’s rights under the FMLA. Moreover, Plaintiff has not alleged that Family Medical or Dr.
Duet had sufficient managerial responsibilities or control over Plaintiff’s employment at Bollinger,
rate of pay, or employment records such that they could be considered “employers” under the
FMLA.
Plaintiff also asserts that Family Medical is liable pursuant to the FMLA under the
“integrated employer” test.100 According to the Code of Federal Regulations regarding the FMLA,
“[n]ormally the legal entity which employs the employee is the employer under FMLA.” 101
However, separate entities may be considered parts of a single employer pursuant to the FMLA if
they meet the “integrated employer” test.102 “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.”103 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.”104
Plaintiff asserts that he alleged that “Bollinger and [Family Medical] function as a single

99

Rec. Doc. 1 at 6, 8.

100

Rec. Doc. 10 at 6–7 (citing 29 C.F.R. § 825.104(c)(2)).

101

29 C.F.R. § 825.104(c).

102

29 C.F.R. § 825.104(c)(2).

103

Id.

104

Id.

16

entity, and they are owned, managed and controlled by many of the same individuals.”105 Plaintiff
also alleged that Family Medical “is a closely held company owned and managed by Dino Chouest,
Damon Chouest, and Dionne Chouest Austin,” who Plaintiff asserts also control Bollinger.106 The
Court further notes that Plaintiff alleged in his complaint that Family Medical was located within
the gates of the “Chouest North American shipyard.”107
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 also alleges that
Family Medical provides “company doctor services” to Bollinger, including evaluating employees
who are on FMLA leave, but offers little else in support of the interrelation between the
companies. 108 Without further information, the Court cannot determine whether Bollinger 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 Family
Medical, Broussard, or Dr. Duet.
2.

Punitive Damages

Defendants also move to dismiss Plaintiff’s request for punitive damages under the FMLA
and state law on the grounds that these claims do not provide for punitive damages.109 Defendants

105

Rec. Doc. 10 at 6.

106

Id.

107

Rec. Doc. 1 at 6.

108

Rec. Doc. 1 at 2.

109

Rec. Doc. 9-1 at 7.

17

do not appear to challenge Plaintiff’s request for punitive damages under the ADA. In opposition,
Plaintiff asserts that he seeks: (1) “all appropriate relief identified in 29 U.S.C. § 2617, including
liquidated damages” pursuant to his FMLA claim; and (2) “all available remedies for his breach
of privacy” state law claim, including: “damage and injury to his reputation; personal humiliation;
embarrassment; mental anguish; anxiety and hurt feelings; and past and future economic losses.”110
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.111 Thus, the FMLA does not provide for
punitive damages.112 Moreover, in his complaint, Plaintiff brings a Louisiana state law claim for
invasion of privacy pursuant to Article I, Section 5 of the Louisiana Constitution, which Plaintiff
argues is actionable under Louisiana’s general negligence statues, Louisiana Civil Code article
2315.113 However, Louisiana has a general public policy against the award of punitive damages
unless specifically provided for by statute,114 and Plaintiff has not pointed to any relevant statute
that provide for a punitive damages award. Thus, because Louisiana Civil Code article 2315 does

110

Rec. Doc. 10 at 3, 9–10.

111

29 U.S.C. § 2617(a)(1)(A).

112

See, e.g., Sanders v. Cajun Iron Workers, Inc., No. 15-5423, 2016 WL 4063868, at *8 (E.D. La. July 29,
2016) (Brown, J.) (finding that FLMA does not provide for punitive damages); Sturza v. Loadmaster Eng'g, Inc., No.
07-2500, 2008 WL 1967102, at *3 (S.D. Tex. May 1, 2008) (same); Oby v. Baton Rouge Marriott, 329 F. Supp. 2d
772, 788 (M.D. La. 2004) (same).
113

Rec. Doc. 1 at 9.

114

Ross v. Conoco, Inc., 828 So.2d 546, 555 (La. 2002) (citing Ricard v. State, 390 So.2d 882 (La. 1980);
Killebrew v. Abbott Labs., 359 So.2d 1275 (La.1978)).

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not permit recovery of punitive damages, Plaintiff’s request for punitive damages, if Plaintiff is in
fact pursuing such damages, under its Louisiana state law claim must also fail. Therefore, the Court
grants Defendants’ motion to dismiss Plaintiffs’ request for punitive damages pursuant to the
FMLA and Louisiana state law, if Plaintiff is in fact pursuing such damages.
3.

Pattern or Practice

Defendants contend that Plaintiff cannot assert a separate claim for pattern or practice.115
Defendants assert that a pattern or practice claim is not a separate and free-standing cause of action,
but is another method by which disparate treatment can be shown.116 Moreover, Defendants argue
that a pattern or practice method of proof is not available in suits which are private, non-class
action lawsuits.117 In opposition, Plaintiff asserts that he is not bringing a separate claim for pattern
or practice, but rather that his pattern or practice allegations are “part of the larger story which will
illustrate Defendants’ attempts to intentionally circumvent Plaintiff’s federally protected
rights.”118 Plaintiff contends that Family Medical and its employees, including Dr. Duet, operated
under the direction of and in the best interest of Bollinger, and Bollinger “appears to have
determined that it is going to send a message to its employees that taking FMLA leave and
requiring ADA modifications will be met with termination.”119
The Fifth Circuit has held that a pattern or practice claim “is not a separate cause of action,

115

Rec. Doc. 9-1 at 7–8.

116

Id. at 8.

117

Id.

118

Rec. Doc. 10 at 9.

119

Id.

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but simply one method of proving [] discrimination.”120 Moreover, a “pattern-or-practice method
of proving discrimination is unavailable in a private, non-class action, such that [the plaintiff’s]
failure to bring this case as a class action or seek certification would also defeat his claim.”121
Plaintiff stipulates that he is not bringing a separate pattern or practice claim. Moreover, a pattern
or practice method of proving discrimination is unavailable here because this is a private, nonclass action suit. Accordingly, because Plaintiff stipulates that he is not bringing a separate pattern
or practice claim, the Court denies Defendants’ motion as moot as to Plaintiff’s pattern or practice
claim.
4.

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.122 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.”123 Short of granting a motion to dismiss, a court may grant a plaintiff leave
to amend his complaint.124 “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

120

Rogers v. Pearland Ind. School Dist., 827 F.3d 403, 407–08 (5th Cir. 2016) (citing Celestine v. Petroleos
de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001)).
121

Id. at 408 (citing Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003)).

122

Rec. Doc. 10 at 13.

123

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

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)).
124

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allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and
futility of the amendment.”125
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 claims against Family Medical and Dr.
Duet under the FMLA by April 19, 2017, 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 Plaintiff to amend his complaint regarding
any pattern or practice claims or claims against Defendants Family Medical and Dr. Duet pursuant
to the ADA as Plaintiff has already stated that he is not bringing any such claims. Furthermore,
the Court will not allow any amendment regarding a request for punitive damages pursuant to the
FMLA or Louisiana state law as amendment would be futile.
IV. Conclusion
For the foregoing reasons, the Court denies the motion to dismiss as moot with regard to
Plaintiff’s ADA claims against Defendants Family Medical and Dr. Duet and Plaintiff’s pattern
and practice claims. The Court also concludes that Plaintiff has failed to state a claim pursuant to
the FMLA against Family Medical and Dr. Duet. Therefore, the Court is inclined to grant the
motion to dismiss as to these claims. However, the Court will deny the motion without prejudice
as to these claims and allow Plaintiff until April 19, 2017, to amend his complaint to cure the
deficiencies noted, if possible. Finally, the Court grants the motion to dismiss Plaintiffs’ request
for punitive damages pursuant to the FMLA and Louisiana state law, if Plaintiff is in fact pursuing

125

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

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such damages, and will not grant Plaintiff leave to amend this request, as amendment would be
futile. Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Rule 12(b)(6) Partial Motion to
Dismiss”126 is DENIED AS MOOT IN PART and DENIED WITHOUT PREJUDICE IN
PART and GRANTED IN PART.
IT IS FURTHER ORDERED that the motion is granted as to Plaintiff’s request for
punitive damages, if Plaintiff is in fact pursuing such damages, pursuant to the FMLA and
Louisiana state law.
IT IS FURTHER ORDERED that the motion is denied as moot as to Plaintiff’s claims
against Defendants Family Medical and Dr. Duet pursuant to the ADA and Plaintiff’s pattern or
practice claims.
IT IS FURTHER ORDERED that the motion is denied without prejudice as to Plaintiff’s
claims against Family Medical and Duet pursuant to the FMLA.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend his complaint by
April 19, 2017. If Plaintiff is unable to cure the deficiencies in the complaint by that time, upon
motion by a party, the Court will dismiss Plaintiff’s claims pursuant to the FMLA against Family
Medical and Dr. Duet.

23rd
NEW ORLEANS, LOUISIANA, this _____ day of March, 2017.

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

126

Rec. Doc. 9.

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