Toups v. Terrebonne Parish Consolidated Government, et al

Filing 14

ORDER GRANTING IN PART and DENYING IN PART 8 Motion to Dismiss for Failure to State a Claim. The Motion is GRANTED insofar as all ADA claims against Dana Coleman, Donna Wedgeworth, and Dana Ortego are dismissed without prejudice. The Motion is DENIED as it relates to Plaintiff's constitutional claims. Signed by Judge Jay C. Zainey on 7/19/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL TOUPS

CIVIL ACTION

VERSUS

NO: 17-1821

TERREBONNE PARISH
CONSOLIDATED GOVERNMENT, et al.

SECTION: A (5)

ORDER
Before the Court is a Motion to Dismiss (Rec. Doc. 8) filed by Defendants Dana Coleman,
Dana Ortego, and Terrebonne Parish Consolidated Government. Plaintiff opposes the Motion.
(Rec. Doc. 10). The Motion, set for submission on July 12, 2017, is before the Court on the briefs
without oral argument.
I.

Background
Plaintiff was a law enforcement officer with the Houma Police Department whose

employment was terminated allegedly for exceeding his sick leave period. (Rec. Doc. 1). Plaintiff
alleges that Defendants terminated Plaintiff’s employment wrongfully, in violation of the
American’s with Disabilities Act (“ADA”), the Fourteenth Amendment of the United States
Constitution and Article Two of the Louisiana Constitution. Plaintiff brought his ADA and
constitutional claims against the Terrebonne Parish Consolidated Government, including Houma
Police Department, Chief of Police Dana Coleman, Secretary to the Chief of Police Donna
Wedgeworth, and Director of Human Resources Dana Ortego. (Rec. Doc. 1). Defendants now seek
dismissal of all of Plaintiff’s constitutional claims, and dismissal of Plaintiff’s ADA claims against
Coleman, Wedgworth and Ortego, the employee Defendants. (Rec. Doc. 8).
II.

Analysis

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Defendants first argue that Plaintiff’s ADA claims against employee Defendants should be
dismissed because 1) Plaintiff failed to exhaust administrative remedies against employee
Defendants, and 2) Plaintiff cannot maintain an ADA claim against Plaintiff’s employer and the
employees of his employer. (Rec. Doc. 8). Secondly, Defendants argue that Plaintiff’s Louisiana
and Federal constitutional claims should be dismissed because he must first exhaust his
administrative remedies before the Houma Municipal Fire and Police Civil Service Board. (Rec.
Doc. 8). Plaintiff maintains that even if he cannot bring an ADA claim against employee
Defendants, he has a viable invasion of privacy claim against them. (Rec. Doc. 10). He further
maintains that the availability of a right to appeal to a civil service board does not preempt his
Federal claims. (Rec. Doc. 10).
The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most
favorable to the plaintiff, the Complaint states a valid claim for relief. Gentilello v. Rege, 627 F.3d
540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)). To
avoid dismissal, a plaintiff must plead sufficient facts to "state a claim for relief that is plausible
on its face." Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Id. The Court does not accept as
true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Id. (quoting
Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal conclusions must be supported
by factual allegations. Id. (quoting Ashroft v. Iqbal, 556 U.S. 662, 678 (2009)).
a. Plaintiff’s ADA Claims
The United States Court of Appeals for the Fifth Circuit has held that an employee must
exhaust all administrative remedies before filing an ADA complaint in Federal court. Dao v.

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Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996); See also Williams v. AT&T Inc., 356
Fed.Appx. 761, 766 (5th Cir. 2009) (where the court found that a plaintiff must exhaust his
administrative remedies prior to filing an ADA claim, unless the claim arose after the EEOC
charge.”). Plaintiff did not file any claims against the employee Defendants Dana Coleman, Donna
Wedgeworth, and Dana Ortego in its EEOC claim, and therefore failed to exhaust his
administrative remedies before filing his claim in Federal court. Therefore, according to the law
in this Circuit, the employee Defendants are entitled to dismissal of Plaintiff’s claims against them,
and the Court need not address Defendants’ second argument for dismissal of Plaintiff’s ADA
claims against employee Defendants.
b. Plaintiff’s Constitutional Claims
Defendants further argue that Plaintiff’s Federal and State constitutional claims should be
dismissed for failure to exhaust administrative remedies. However, the Houma Municipal Fire and
Police Civil Service Board does not have jurisdiction over Plaintiff’s Federal constitutional claims,
as Plaintiff points out, and under Louisiana law, “[i]t is well settled that administrative agencies
are without power to decide constitutional issues.” Hill v. Jindal, 175 So.3d 988, 1001 (La. App.
1 Cir. 2015). Thus, constitutional claims do not need to go through administrative review before
being brought before a court. Id. Because Plaintiff’s remaining claims are constitutional claims
which could not have gone through administrative review by the Houma Municipal Fire and Police
Civil Service Board, Defendants are not entitled to dismissal of Plaintiff’s constitutional claims
for failure to exhaust administrative remedies.
Accordingly;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 8) filed by Defendants Dana
Coleman, Dana Ortego, and Terrebonne Parish Consolidated Government is GRANTED IN

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PART and DENIED IN PART. The Motion is GRANTED insofar as all ADA claims against
Dana Coleman, Donna Wedgeworth, and Dana Ortego are dismissed without prejudice. The
Motion is DENIED as it relates to Plaintiff’s constitutional claims.
New Orleans, Louisiana this 19th day of July 2017.

__________________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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