Equal Employment Opportunity Commission v. Gulf Logistics Operating, Inc.

Filing 23

ORDER: IT IS ORDERED that Defendant's 7 Motion to Dismiss is DENIED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/8/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

CIVIL ACTION

VERSUS

NO. 17-9362

GULF LOGISTICS OPERATING, INC.

SECTION "B"(3)

ORDER AND REASONS
Before

the

Court

is

Defendant

Gulf

Logistics

Operating,

Inc.’s 12(b)(6) “Motion to Dismiss.” Rec. Doc. 7. Also before the
Court is the EEOC’s “Memorandum in Opposition to Defendant’s
12(b)(6) Motion to Dismiss” (Rec. Doc. 14) and Defendant’s “Reply
Memorandum in Support of Rule 12(b)(6) Motion to Dismiss” (Rec.
Doc. 19). For the reasons discussed below,
IT IS ORDERED that Defendant’s “Motion to Dismiss” (Rec.
Doc. 7) is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant Gulf Logistics Operating, Inc. operates a fleet of
boats in the Gulf of Mexico supporting companies engaged in oil
and gas exploration. Rec. Doc. 2 ¶ 4. In October 2012, Defendant
hired Jason Gunderson to work as a deckhand on one of Defendant’s
boats. Id. ¶ 16. While employed by Defendant, Gunderson was never
disciplined regarding his performance of the essential functions
of his job. Id. ¶ 17. In January 2013, Gunderson began having
marital problems and, as a result, began experiencing emotional
distress. Id. ¶ 18. He separated from his wife a few months later.
1

Id. ¶ 19. In April 2013, Gunderson asked his manager, Randy
Whittaker, for a referral to the Employee Assistance Program (EAP)
to obtain help coping with the stress of his separation. Id.
Whittaker, a Health, Safety and Environmental Manager for
Defendant, provided Gunderson with a list of numbers to call for
EAP assistance. Id. ¶ 20. He told Gunderson, who expected to miss
five days of work, that he would not be allowed to return to work
without first obtaining a release from the company doctor. Id. ¶¶
22, 23. Specifically, Whittaker told Gunderson that he “would not
be able to send him back to his assigned vessel due to safety
reasons and concerns regarding [Gunderson’s] need to seek EAP
assistance for his emotional distress.” Id.
Gunderson returned to work approximately three weeks later,
on or about May 20, 2013, at which time he presented a medical
release from the company’s doctor stating that he could return to
work

without

any

restrictions.

Id.

¶

24.

The

doctor’s

note

“determined that Gunderson had ‘situational’ depression.” Id. ¶
25. Upon his return, Gunderson worked without restrictions, and he
was given no indication of concern about his performance. Id. ¶
28. However, two weeks later, on June 5, 2013, Defendant discharged
Gunderson. Id. ¶ 27.
Gunderson
Opportunity

filed

Commission,

a

charge
alleging

with

the

disability

Equal

Employment

discrimination

by

Defendant. Id. ¶ 8. The EEOC found reasonable cause to believe
2

that

there

had

been

a

violation

and

issued

a

Letter

of

Determination that Defendant had discriminated against Gunderson.
Id.

¶

9.

Subsequently,

the

EEOC

attempted

to

remedy

the

discriminatory practice and to secure a conciliation agreement
with Defendant; however, such attempts were unsuccessful and the
EEOC issued a Notice of Failure of Conciliation on September 11,
2017. Id. ¶ 10-13. The EEOC then filed a complaint in this court
against Defendant on September 21, 2017, alleging violations of
the Americans with Disabilities Act, as amended (ADAAA). See Rec.
Doc. 2.
The complaint alleges that Defendant discriminated against
Gunderson by discharging him “because the Defendant perceived him
to

be

a

threat

to

the

safety

of

others

due

to

perceived

‘distraction’ caused by his situational depression or adjustment
disorder in violation of the ADA[AA]. 42 U.S.C. § 12102(3)(A).”
Id. ¶ 27. The complaint also alleges that Defendant unlawfully
discriminated against Gunderson by “forcing [him] to obtain a
medical release before he could return to work after requesting a
referral to the Employee Assistance Program” in violation of 42
U.S.C. § 12112(d)(4)(A), a provision that prohibits employerordered medical exams to determine the nature of an employee’s
disability except under special circumstances. Id. ¶ 32.
The EEOC seeks an injunction to enjoin Defendant from forcing
individuals to seek a medical release to return to work after
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requesting an EAP referral, back-pay with prejudgment interest for
Gunderson, and either reinstatement or front-pay to make Gunderson
whole. Id. at 8-9. Additionally, the EEOC seeks compensation for
past and future pecuniary and nonpecuniary losses, and punitive
damages for Defendant’s “malicious and reckless conduct.” Id. at
9-10.
LAW AND ANALYSIS
“To survive a Rule 12(b)(6) motion to dismiss, . . . [a
plaintiff’s

complaint]

need

only

include

a

‘short

and

plain

statement of the claim showing that the pleader is entitled to
relief.’” Hershey v. Energy Transfer Partners, L.P., 610 F. 3d
239, 245 (5th Cir. 2010) (quoting Fed. R. Civ. P. 8(a)). “A
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “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. at 678 (citing Twombly,
556 U.S. at 556).
The EEOC’s complaint alleges two violations of the ADAAA,
which prohibits a “covered entity” from “discriminat[ing] against
a qualified individual on the basis of disability . . . .” 42
U.S.C.

§ 12112(a).

The

first

claim
4

alleges

“regarded

as”

disability-discrimination in violation of 42 U.S.C. § 12102(3)(A),
which provides that an individual is “regarded as having an
impairment” when “the individual establishes that he or she has
been subjected to an [adverse employment action] . . . because of
an actual or perceived physical or mental impairment whether or
not the impairment limits or is perceived to limit a major life
activity.” The complaint alleges that Gunderson was subjected to
an adverse employment action when he was discharged on June 5,
2013. See Rec. Doc. 2 ¶ 33. The complaint alleges that Defendant
knew of Gunderson’s request for EAP assistance and, based on the
note from the company doctor, that Gunderson was diagnosed with
“situational depression.” Therefore, the EEOC’s position is that
Gunderson was improperly discharged two weeks after Defendant
learned of Gunderson’s depression from the company doctor’s note
because Defendant regarded Gunderson as having depression.
The second claim alleges that Defendant discriminated against
Gunderson in violation of 42 U.S.C. § 12112(d)(4)(A) by requiring
Gunderson to obtain a doctor’s note before returning to work. See
Rec. Doc. 2 ¶ 32. Section 12112(d)(4)(A) provides:
A covered entity shall not require a medical examination
and shall not make inquiries of an employee as to whether
such employee is an individual with a disability or as
to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and
consistent with business necessity.

5

The complaint alleges that Defendant would not allow Gunderson to
return to work after seeking EAP assistance until he obtained a
release from the company doctor. See Id. ¶¶ 22-26. Therefore, the
EEOC maintains that Defendant imposed a medical exam on Gunderson
as an unlawful precondition of his returning to work.
However, Defendant fails to request dismissal of the two
claims actually pleaded in the complaint. Rather, Defendant seeks
dismissal of “all claims . . . arising from a disability under 42
U.S.C.

§

12102(1)(A)

&

(B)”

and

of

“all

claims

. . .

for

allegations of a failure to reasonably accommodate . . . .” Rec.
Doc. 7 ¶¶ 1, 2, 6. But the EEOC’s complaint does not allege
violations of 42 U.S.C. §§ 12102(1)(A) or (B), or a failure to
accommodate. Therefore, Defendant is asking the court to dismiss
claims not before it; consequently, Defendant’s motion must be
denied.1 See, e.g., Holden v. Knight, No. 3-2347, 2004 WL 2347576,
at *5 (E.D. La. Oct. 15, 2004) (declining to address Defendant’s
argument that claim was insufficiently pleaded because claim was
nonexistent). The instant complaint provides sufficient factual

1

Because Plaintiff has not sought leave to amend its complaint, the Court will
not presently entertain arguments about whether Plaintiff would be able to amend
in the future. See Rec. Doc. 14 at 8.

6

and legal allegations to survive the instant motion. Discovery
should reveal the underlying factual details that might support
alleged claims and/or defenses to the same.
New Orleans, Louisiana, this 8th day of March, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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