Pegues v. Board of Supervisors of Louisiana State University and Agriculture and Mechanical College, et al.

Filing 39

ORDER AND REASONS - IT IS ORDERED that Plaintiff file an amended complaint to address the basis of the Court's jurisdiction. Plaintiff's amended complaint shall be filed by no later than Monday, September 17, 2018 at 5:00 p.m. IT IS FURTH ER ORDERED that if the Plaintiff files an amended complaint in accordance with this order, Defendant's 24 motion to dismiss will be denied as moot without prejudice. IT IS FURTHER ORDERED that if the Plaintiff does not file an amended complaint in accordance with this order, Defendant's motion to dismiss will be granted. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERESA PEGUES,
Plaintiff

CIVIL ACTION

VERSUS

NO. 18-2407

THE BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL
COLLEGE, LSU SCHOOL DENTISTRY AND
FACULTY DENTAL PRACTICE
Defendant

SECTION "E" (1)

ORDER AND REASONS
Before the Court is a motion filed by Defendant Board of Supervisors of Louisiana
State University and Agriculture and Mechanical College pursuant to Federal Rule of Civil
Procedure 12(b)(6).1 Defendant moves to dismiss the amended complaint filed by Plaintiff
Teresa Pegues.2 The motion is opposed.3
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2017, Plaintiff Teresa Pegues filed a petition in Louisiana state court
alleging Defendant Board of Supervisors of Louisiana State University and Agriculture
and Mechanical College (“Board of Supervisors”) wrongfully discriminated against her
and dismissed her from the LSU School of Dentistry.4 The case was removed to this Court
on March 6, 2018.5 On March 13, 2018, Defendant moved to dismiss all claims against it
pursuant to Federal Rule of Civil Procedure 12(b)(6).6 On May 3, 2018, this Court ordered
Plaintiff to file an amended complaint to clarify her claims and the factual allegations on

R. Doc. 24.
R. Doc. 18.
3 R. Doc. 27.
4 R. Doc. 1-2.
5 R. Doc. 1.
6 R. Doc. 4.
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which those claims are based.7 Plaintiff filed an amended complaint on May 18, 2018.8 In
it, she states her three remaining claims: (1) failure to accommodate her disability in
violation of Title II of the Americans with Disabilities Act (“ADA”),9 (2) disability-based
discrimination in violation of the ADA, and (3) disability-based discrimination in
violation of Louisiana law.10 On June 8, 2018, Defendant filed a motion to dismiss the
amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).11 Plaintiff filed
an opposition on June 19, 2018,12 and Defendant filed a reply to the opposition on June
28, 2018.13
LAW AND ANALYSIS
Plaintiff brings suit against Defendant Board of Supervisors, an instrumentality of
the State of Louisiana.14 Although Defendant has not raised a defense of sovereign
immunity, the Court will consider it sua sponte because it bears on the Court’s subject
matter jurisdiction.15 Congress may abrogate state sovereign immunity if it “makes its
intention to abrogate unmistakably clear in the language of the statute” and “acts
pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment.”16
Plaintiff brings suit under Title II of the ADA.17 The ADA clearly states Congress’s
intent to abrogate state sovereign immunity.18 In United States v. Georgia,19 the Supreme

R. Doc. 17.
R. Doc. 18.
9 14 U.S.C. § 12131 et seq.
10 R. Doc. 18.
11 R. Doc. 24.
12 R. Doc. 27.
13 R. Doc. 35.
14 See Pastorek v. Trail, 248 F.3d 1140 (5th Cir. 2001) (unpublished table decision) (“[T]he LSU Board is
an ‘arm of the state’ that enjoys Eleventh Amendment immunity.”).
15 See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 333 n.8 (5th Cir. 2002) (“[W]e may consider this
[sovereign immunity] issue sua sponte because it bears on this court's subject-matter jurisdiction.” (citing
Burge v. Parish of St. Tammany, 187 F.3d 452, 465–66 (5th Cir.1999))).
16 Nev. Dep’t. of Human Res. V. Hibbs, 538 U.S. 721, 726 (2003).
17 R. Doc. 24.
18 See Tennessee v. Lane, 541 U.S. 509, 518 (2004) (citing 14 U.S.C. § 12202).
19 546 U.S. 151 (2006).
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Court established a three-part test to determine whether Title II’s abrogation of state
sovereign immunity pursuant to § 5 of the Fourteenth Amendment is valid.20 To make
this determination, a court must consider “on a claim–by-claim basis[:] (1) which aspects
of the [s]tate’s alleged conduct violated Title II; (2) to what extent such misconduct also
violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II
but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation
of sovereign immunity as to that class of conduct is nevertheless valid.”21
The second prong of the Georgia test requires a court to determine whether the
state’s conduct violated the Fourteenth Amendment.22 If the court finds no Fourteenth
Amendment violation, it proceeds to the third prong. The third prong requires a court to
ask “whether the state’s action in the case implicates a constitutional right . . . grounded
in the Fourteenth Amendment’s Equal Protection and Due Process Clauses.”23 If so, the
court determines “whether Title II is congruent and proportional as to the class of cases
implicating” the Fourteenth Amendment right at stake,24 as required by the Supreme
Court’s decision in City of Boerne v. Flores.25 If Title II is congruent and proportional to
the constitutional right, the ADA validly abrogates sovereign immunity for the claim.26
Plaintiff does not identify which right grounded in the Fourteenth Amendment,
equal protection or due process, was violated. Nor does Plaintiff address whether, absent
a Fourteenth Amendment violation, Congress’s purported abrogation of sovereign

See Hale v. King, 642 F.3d 492, 497–98 (5th Cir. 2011).
Georgia, 546 U.S. at 159.
22 Id.
23 Arce v. Louisiana, No. 16-14003, 2017 WL 5619376 at *22 (E.D.La. 2017) (citing Tennessee v. Lane, 541
U.S. 509, 522–23 (2004)) (emphasis added); see also Shaikh v. Texas A&M Univ. Coll. of Med., No. 1620793, 2018 WL 3090415 at *9 (5th Cir. 2018) (finding erroneous a district court’s holding that state
sovereign immunity bars everything but constitutional claims).
24 Id.
25 521 U.S. 507 (1997).
26 Arce, 2017 WL 5619376 at *22.
20
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immunity is nevertheless valid.
Rule 15(a) “requires the trial court to grant leave to amend freely, and the language
of this rule evinces a bias in favor of granting leave to amend.”27 As a result, the Court
grants Plaintiff leave to amend her complaint to address these issues.
CONCLUSION
IT IS ORDERED that Plaintiff file an amended complaint to address the basis of
the Court’s jurisdiction. Plaintiff’s amended complaint shall be filed by no later than
Monday, September 17, 2018 at 5:00 p.m.
IT IS FURTHER ORDERED that if the Plaintiff files an amended complaint in
accordance with this order, Defendant’s motion to dismiss will be denied as moot without
prejudice.
IT IS FURTHER ORDERED that if the Plaintiff does not file an amended
complaint in accordance with this order, Defendant’s motion to dismiss will be granted.
New Orleans, Louisiana, this 27th day of August, 2018.
______________ ________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002) (internal quotation marks
omitted).
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