Davis v. The City of New Orleans

Filing 7

ORDER AND REASONS: IT IS ORDERED that the 5 motion is GRANTED, dismissing all claims in the above captioned action, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 6/11/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIE DAVIS

CIVIL ACTION

VERSUS

NO. 18-3529

ORLEANS PARISH COMMUNICATIONS DISTRICT

SECTION “B”(5)

ORDER AND REASONS
Defendant’s motion to dismiss for failure to state a claim is
before the Court. Rec. Doc. 5. Defendant’s motion was set for
submission April 25, 2018. Plaintiff has yet to respond to date.
For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 5) is GRANTED,
dismissing all claims in the above captioned action.
FACTS AND PROCEDURAL HISTORY
On Dec. 12, 2016, Defendant rescinded its offer of employment
to Plaintiff for the position of Deputy Director of Operations
with the Orleans Parish Communications District. Rec. Doc. 5-2 at
1.

Plaintiff

Willie

Davis

(“Plaintiff”)

brought

suit

against

Defendant for violating the Americans with Disabilities Act (ADA)
(42 U.S.C. § 12112). See Rec. Doc. 1-2. Plaintiff, who suffers
from kidney disease, alleges that Defendant withdrew its offer
because of Plaintiff’s “health related disability.” Id. at 2.
Plaintiff originally filed the suit in the Civil District
Court for the Parish of Orleans, State of Louisiana. Rec. Doc. 1

at 1. Defendant timely removed the matter to this Court on the
basis of federal question jurisdiction pursuant to 42 U.S.C. §
12112. Rec. Doc. 5-2 at 1-2. Defendant filed a motion to dismiss
for failure to state a claim, asserting that Plaintiff’s petition
does not indicate he filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) before bringing
suit. Id. at 2.
LAW AND ANALYSIS
Defendant seeks to dismiss the suit contending that Plaintiff
failed to state a claim under Federal Rule of Civil Procedure
12(b)(6). To survive dismissal under 12(b)(6), the plaintiff 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).
The

plaintiff

is

expected

to

plead

these

facts

with

enough

specificity to “raise a right to relief above the speculative
level.” Id., 550 U.S. at 555. Furthermore, “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 Court may grant the motion if it is apparent
that the plaintiff is entitled to no relief “under any state of
facts” brought forth to support his claim. Haines v. Kerner, 404
U.S. 519, 521 (1972).

In employment discrimination context, plaintiffs must exhaust
administrative remedies prior to filing suit in the district court.
Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002).
Exhaustion occurs once the plaintiff files a timely charge with
the EEOC. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.
1996). In return, plaintiff receives a statutory notice of right
to

sue.

Id.

Filing

an

EEOC

charge

is

not

a

jurisdiction

prerequisite, but it is a “precondition to filing suit in district
court.” Cruce v. Brazosport Independent School Dist., 703 F.2d
862, 863 (5th Cir. 1983). Because Louisiana is a “deferral state,”
the plaintiff must file its charge with the EEOC within 300 days
of the initial occurrence of the discriminatory act “to preserve
his right to sue in federal court.” DeBlanc v. St. Tammany Parish
School Bd., 2015 U.S. Dist. LEXIS 33585 at *19 (E.D. La. March 18,
2015) (emphasis added).

District courts have allowed a plaintiff

to amend his pleading before dismissal unless the defects are
incurable or the plaintiff is unable to do so. Great Plains Trust
Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th
Cir. 2002).
Here, Defendant argues that Plaintiff failed to state a viable
ADA discrimination claim by not exhausting administrative remedies
before bringing his claim to federal court. Rec. Doc. 5-2 at 3.
Plaintiff’s petition does not indicate that he filed a timely EEOC
charge. Further, the current record fails to show receipt of a right
to sue letter, which in addition to a timely filed EEOC charge would

serve

as

prerequisites

to

an

ADA

discrimination

claim.

Id.

Plaintiff learned that OPCD rescinded the job offer on Dec. 12,
2016, at the very latest. Rec. Doc. 5-2 at 4. Therefore, the 300day limitations period has lapsed, and Plaintiff can no longer
cure the deficiency by amendment or otherwise due to his failure
to exhaust administrative remedies. Id.
New Orleans, Louisiana, this 11th day of June, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE