Brown v. Transdev Services, Inc.

Filing 17

ORDER AND REASONS: IT IS ORDERED that the 5 motion to dismiss is GRANTED and Plaintiff's "Medical File Retention" claim against Defendant is DISMISSED WITHOUT PREJUDICE. Plaintiff has until 8/27/2018 to amend his claim, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 8/8/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARIUS BROWN

CIVIL ACTION

VERSUS

NO. 18-2490

TRANSDEV SERVICES, INC.

SECTION "B"(4)
ORDER AND REASONS

Before the Court is Defendant’s motion to dismiss for failure
to

state

a

claim.

Rec.

Doc.

5.

Plaintiff

timely

filed

an

opposition. Rec. Doc. 7. Defendant then sought, and was granted,
leave to file a reply. Rec. Doc. 11. For the reasons discussed
below,
IT IS ORDERED that the motion to dismiss (Rec. Doc. 5)
is GRANTED and Plaintiff’s “Medical File Retention” claim
against Defendant is DISMISSED WITHOUT PREJUDICE. Plaintiff
has until August 27, 2018 to
deficiencies

amend

his claim to

address

the

identified in this Order and Reasons. If Plaintiff

does not correct those deficiencies by the latter date, the
deficient claim will be DISMISSED WITH PREJUDICE.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
From January 25, 2016, through June 23, 2016, Plaintiff Darius
Brown was employed by Defendant Transdev Services, Inc. as a bus
operator. Rec. Doc. 1 at 2. During the course of Plaintiff’s
employment, Defendant charged Plaintiff with certain unexcused
absences leading up to his termination. See id.

1

First, on April 7, 2016, Plaintiff informed Defendant that he
would be absent from work due to a medical emergency and could not
leave Ochsner Medical Center without his doctor’s permission. Id.
On April 9, 2016, Plaintiff provided to Defendant a doctor’s note
and discharge paperwork from Ochsner, which indicated that he would
be able to return to work two days later. Id. at 3. Despite this,
Defendant marked Plaintiff with an unexcused absence on April 8,
2016. Id.
Second, on May 2, 2016, Plaintiff had a court appearance and
he contacted Defendant about his absence beforehand. Id. Although
Plaintiff was removed from the schedule for that day, Defendant
subsequently did not schedule Plaintiff for the next shift, which
prompted another unexcused absence. Id.
Third, on May 10, 2016, Plaintiff notified Defendant that he
would miss work, again in anticipation of a previously scheduled
surgery

at

established

Ochsner.
by

Id.

Defendant

Plaintiff
and

followed

provided

the

the

relevant

protocol
medical

paperwork ten days prior to his surgery. Id. This paperwork, in
addition

to

the

paperwork

provided

on

April

9th,

disclosed

Plaintiff’s HIV-positive status. Id. at 3. In spite of Plaintiff’s
compliance with Defendant’s policy, Plaintiff was marked with
another unexcused absence. Id. at 4. Lastly, Plaintiff called in
sick on May 31, 2016, two hours prior to his shift pursuant to

2

company policy. Id. Once again, Defendant charged Plaintiff with
an unexcused absence. Id.
Directly prior to Plaintiff’s firing, he was involved in what
he alleges to be an unpreventable accident on June 11, 2016. Id.
Despite the conclusion by the police that Plaintiff was not at
fault, Defendant placed blame on Plaintiff and terminated his
employment. Id. According to Plaintiff’s Complaint, Defendant only
possesses one medical note from Plaintiff. See id. at 6. Plaintiff
timely filed a “Charge of Discrimination” with the Equal Employment
Opportunity Commission on October 11, 2016. Id. at 5. On December
11, 2016, EEOC returned a “Notice of Right to Sue” letter. Id.
Plaintiff

brings

two

claims

under

the

Americans

with

Disability Act (ADA): (1) Defendant fired Plaintiff on account of
Plaintiff’s

HIV-positive

§ 12112(a),

and

Plaintiff’s

medical

(2)

status,

Defendant
records,

in

violation

failed
in

to

42

U.S.C.

properly

retain

violation

of

of

42

U.S.C.

§ 12112(d)(3)(B). Id. at 5-6. Defendant filed a Rule 12(b)(6)
motion to dismiss Plaintiff’s “Medical File Retention” claim. See
Rec. Doc. 5.
LAW AND ANALYSIS
Defendant

seeks

dismissal

of

Plaintiff’s

“Medical

File

Retention” claim, arguing that Plaintiff has failed to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See
Rec. Doc. 5. For Plaintiff to survive the motion to dismiss, he
3

must plead “enough facts to state a claim to relief that is
plausible on its face.” Atlantic Corp. v. Twombly, 550 U.S. 544,
570

(2007).

Plaintiff

must

plead

the

facts

with

adequate

sufficiency to “raise a right to relief above the speculative
level.” Id. at 555. “[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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The

ADA

imposes

certain

requirements

on

employers

with

respect to maintaining medical documents. At issue in this case is
a provision that states:
A covered entity may require a medical examination after
an offer of employment has been made to a job applicant
and prior to the commencement of the employment duties
of such applicant, and may condition an offer of
employment on the results of such examination, if . . .
information obtained regarding the medical condition or
history of the applicant is collected and maintained on
separate forms and in separate medical files and is
treated as a confidential medical record.
42

U.S.C.

§ 12112(d)(3)(B).

Plaintiff

alleges

that

Defendant

violated this provision by discarding certain medical records that
he

provided

to

justify

absences.

See

Rec.

Doc.

1

¶¶ 47-51.

Plaintiff has not stated a claim under § 12112(d)(3)(B) because he
has not alleged (1) that Defendant disclosed information that it
obtained from a medical examination or inquiry; and (2) that
Defendant’s failure to preserve the medical records caused him any
damage.
4

“[T]o survive a Rule 12(b)(6) motion” on a claim under
§ 12112(d)(3)(B), “the complaint must affirmatively allege that
the defendant obtained the disclosed medical information pursuant
to a medical examination or inquiry.” Taylor v. Shreveport, 798
F.3d 276, 288 (5th Cir. 2015). Section 12112(d)(3)(B) “prohibits
an employer from disclosing an employee's medical information only
if the employer first acquired the information as a result of a
medical inquiry or examination as those terms are defined in the
ADA.”

Id.

“If

the

employee

voluntarily

divulges

the

medical

information to the employer without the employer specifically
demanding the information first, or if the employer otherwise
obtains the medical information outside the context of a medical
inquiry or examination, then the employer has no duty under
§ 12112(d) to keep that information confidential.” Id.
Plaintiff alleges that he provided various medical documents
to excuse certain absences, all pursuant to “company policy.” See
Rec. Doc. 1 ¶¶ 14, 16, 22. But Plaintiff does not describe the
company policy and, importantly, does not explain what type of
medical information, if any, Defendant requested as part of that
company policy. In Taylor, the Fifth Circuit affirmed dismissal of
a

plaintiff’s

claim

under

section

12112(d)(3)(B)

because

the

plaintiff did not sufficiently describe the form that employees
were required to submit when seeking to excuse an absence. See 798
F.3d at 288. Similarly here, Plaintiff offers no facts about the
5

“company policy” that he claims to have followed when providing
medical information to Defendant. See Rec. Doc. 1 ¶¶ 14, 16, 22.
Therefore, Plaintiff’s Complaint currently fails to state a claim
under section 12112(d)(3)(B). See Taylor, 798 F.3d at 287-88.
Plaintiff’s “Medical File Retention” claim also fails because
Plaintiff does not allege that the failure to preserve medical
records caused him damage. See Franklin v. City of Slidell, 936 F.
Supp. 2d 691, 710-11 (E.D. La. 2013) (“A plaintiff must also allege
that he suffered a tangible injury due to the disclosure of the
protected medical information.”); see also Buchanan v. City of San
Antonio, 85 F.3d 196, 199-200 (5th Cir. 1996) (“[T]he ADA requires
a causal link between the violation and the damages sought by the
plaintiff.”). Plaintiff’s complaint alleges that he was wrongfully
terminated, but it does not explain how the alleged failure to
preserve medical documents caused the termination.
The Fifth Circuit has concluded, with respect to a related
medical inquiry provision of the ADA, “that damages liability . . .
must be based on something more than a mere violation[;] . . .
[t]here must be some cognizable injury in fact of which the
violation is a legal and proximate cause for damages to arise from
a single violation.” Armstrong v. Turner Indus., Inc., 141 F.3d
554, 561-62 (5th Cir. 1998); see also Taylor, 798 F.3d at 287
(holding that plaintiffs could “not obtain compensatory damages if
they ultimately prevail[ed] on their medical inquiry claim because
6

none of the Plaintiffs allege[d] that the . . . [medical inquiry]
proximately
reasoning

caused

them

similarly

any

tangible

applies

to

an

injury

in

alleged

fact”).

This

violation

of

§ 12112(d)(3)(B), which is primarily focused on privacy and the
“confidential[ity]” of employee medical records. See 42 U.S.C.
§ 12112(d)(3)(B).

Plaintiff

has

not

alleged

that

his

medical

information was disclosed, which might potentially give rise to an
injury to privacy or reputation. Instead, Plaintiff simply alleges
that Defendant does not have the medical records. Plaintiff’s
complaint does not state a “Medical File Retention” claim because
it does not plead facts that plausibly suggest the failure to
preserve medical documents caused Plaintiff a tangible injury.
New Orleans, Louisiana, this 8th day of August, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

7