Picou v. Terminix Pest Control, Inc.

Filing 20

ORDER AND REASONS - IT IS ORDERED that Defendant's 13 Motion to Dismiss is GRANTED. Plaintiff's ADA and PREP Act claims are DISMISSED WITH PREJUDICE. Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge Jane Triche Milazzo on 11/15/2023. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLIE PICOU

CIVIL ACTION

VERSUS

NO. 22-3700

TERMINIX PEST CONTROL, INC.

SECTION: “H”

ORDER AND REASONS
Before the Court is Defendant Terminix Pest Control, Inc.’s Motion to
Dismiss (Doc. 13). For the following reasons, the Motion is GRANTED.
BACKGROUND
This case arises out of Plaintiff Kellie Picou’s termination from her
employment with Defendant Terminix Pest Control, Inc. In August 2021,
Defendant issued a notice to all employees that they must receive the COVID19 vaccine as an ongoing condition of employment. This notice had an exception
for “a disability verified by a physician that prevents you from taking the
vaccine.”1 Plaintiff told Defendant that she had “a documented heart condition,
verified by a physician, which is a disability that prevented [her] from taking
one of the [Emergency Use Authorization] Covid injections because she was
afraid of long-term adverse effects in light of her medical disability.”2 She also
alleges that she had already contracted COVID-19 twice, once within 90 days
of her meeting in December 2021, making her ineligible to receive the vaccine

1
2

Doc. 11-1 at 1.
Doc. 11 at 7.
1

until the 90-day period expired.3 Plaintiff refused to receive the COVID-19
vaccination and was fired shortly thereafter.
On April 22, 2022, Plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission alleging violations of the
Americans with Disabilities Act (“ADA”). She received a Notice of Right to Sue
Letter on August 2, 2022. Plaintiff filed suit in this Court on October 6, 2022,
alleging violations of the Emergency Use Authorization Provision,4 the ADA,5
and the Louisiana Employment Discrimination Law (“LEDL”).6
This Court granted Defendant’s first Motion to Dismiss, holding that
Plaintiff did not adequately plead her claims. Plaintiff subsequently filed an
Amended Complaint pursuant to the Court’s Order and Reasons, bringing
various claims under the ADA, asserting that the Louisiana at-will
employment doctrine is preempted by the Public Readiness and Emergency
Preparedness Act (“PREP Act”), wrongful termination, retaliation, breach of
contract, and violations of the LEDL. Now before the Court is Defendant’s
second Motion to Dismiss Plaintiff’s Claims with Prejudice. Plaintiff opposes.7

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.”8 A claim is
“plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.”9
Id.
21 U.S.C. § 360bbb-3.
5 42 U.S.C. § 12101.
6 LA. REV. STAT. § 23:301.
7 Doc. 16.
8 Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
9 Id.
3

4

2

A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”10 The Court need not,
however, accept as true legal conclusions couched as factual allegations.11
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true.12 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’”
will not suffice.13 Rather, the complaint must contain enough factual
allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs’ claim.14

LAW AND ANALYSIS
Defendant argues that Plaintiff fails to establish any viable cause of
action under the ADA. Plaintiff opposes, stating that she did adequately plead
her ADA claims. Plaintiff also argues that the Court has original jurisdiction
over her state law claims because the PREP Act preempts Louisiana’s at-will
employment doctrine. Alternatively, Plaintiff asserts that this Court may
exercise supplemental jurisdiction over Plaintiff’s state law claims. The Court
will address each contention individually.
a. American With Disabilities Act
Defendant argues that Plaintiff did not plausibly allege a violation of the
ADA under any theory. Plaintiff asserts various claims under the ADA, namely
(1) “Disability and Failure to Accommodate,” (2) “Unlawful Medical
Examination or Inquiry,” and (3) “Regarded Disabled.”15

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
Iqbal, 556 U.S. at 667.
12 Id.
13 Id. at 678 (quoting Twombly, 550 U.S. at 555).
14 Lormand, 565 F.3d at 255–57.
15 Doc. 11.
10
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3

“The ADA prohibits an employer from ‘discriminat[ing] against a
qualified individual on the basis of disability,’ by, among other things,
terminating an individual’s employment.”16 “To establish a prima facie
discrimination claim under the ADA, a plaintiff must prove: (1) that he has a
disability; (2) that he was qualified for the job; [and] (3) that he was subject to
an adverse employment decision on account of his disability.” 17 The ADA
defines a “disability” as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an
impairment.”18 Plaintiff alleges she is disabled under subsections (A) and (C)
because she has a physical impairment that substantially limits her ability to
work anywhere that requires a COVID-19 vaccine, and because Defendant
regarded her as having a physical impairment.
As Plaintiff’s Count One “Disability and Failure to Accommodate” and
Count Three “Regarded Disabled” claims both require Plaintiff to prove she
has a disability as defined by the ADA, the Court will address these claims
first.
i.

Disability and Failure to Accommodate

In Count One, Plaintiff alleges that she “does not possess the physical
ability to safely receive an [Emergency Use Authorization] Covid injection”
because of her heart condition and based on her own research on the effects
that the injections have on recipients’ hearts.19 Plaintiff proceeds to explain
that this results in a “physical impairment that substantially limits the major
Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017) (quoting
Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479 (5th Cir. 2016) (alteration in
original)).
17 Id. (quoting E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (alteration in
original) (quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)).
18 42 U.S.C. § 12102(a).
19 Doc. 11 at 9.
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life activity of ‘working’ in any job where the employer requires its employees
to receive an [Emergency Use Authorization] Covid injection.”20 A disability as
defined by the ADA as a physical impairment that substantially limits a major
life activity. Major life activities include working, seeing, hearing, speaking,
and breathing.21 “Substantially limits” in the context of working as a major life
activity “means [that the employee is] significantly restricted in [their] ability
to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and
abilities.”22 “[T]he inability to perform one aspect of a job while retaining the
ability to perform the work in general does not amount to substantial
limitation of the activity of working.”23
The Court has difficulty ascertaining Plaintiff’s alleged disability.
Plaintiff claims that her disability is a heart condition and then explains that
she is physically unable to receive the COVID-19 vaccine due to her heart
condition, which, in turn precludes her from working for any employer that
requires a COVID-19 vaccination. Plaintiff alleges that her primary care
physician told her not to take the vaccine; her cardiologist could not
recommend any of the vaccines; and further, she conducted her own research
regarding the vaccine’s side effects.24
In its previous Order and Reasons, the Court held that the inability to
receive certain medications and vaccinations is not a major life activity within
the ADA.25 Plaintiff’s argument now appears to have morphed into a more
attenuated chain of causation wherein her heart condition renders her unable
Doc. 11 at 10.
42 U.S.C. § 12102(2)(A).
22 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995) (citing 29 C.F.R. §
1630.2(j)(3)(i)).
23 Id.
24 Doc. 11 at 9.
25 Doc. 10 at 5.
20
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to take certain medications and vaccines, which then prohibits her from
working for any employer whose company policy requires those medications
and vaccinations.
While the United States Supreme Court has held that a degenerative
circulatory disorder affecting blood flow to the heart, which substantially
limited a golfer’s ability to walk, constituted a disability under the ADA,
Plaintiff’s assertion that her heart condition impacts her ability to receive a
vaccine is much different.26 Plaintiff’s Amended Complaint does not explain
how her heart condition directly affects her ability to work in any job, inhibits
her movement, or causes her any pain.27 The intervening event of choosing not
to receive a COVID-19 vaccine is what renders Plaintiff unable to do her job,
not her heart condition.28 The Court does not find Plaintiff’s workaround
compelling and reiterates that it does not consider taking certain medications
and vaccines a major life activity akin to seeing, hearing, speaking or

PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001) (“[The employee] is also an individual
with a disability as defined in the [ADA]. Since birth he has been afflicted with KlippelTrenaunay-Weber Syndrome, a degenerative circulatory disorder that obstructs the flow of
blood from his right leg back to his heart. . . . [He] could no longer walk an 18-hole golf
course.”). Similarly, the Fifth Circuit has required that, in the context of heart conditions, an
employee alleging a disability must also show some substantial impairment to production
level or ability to work. See, e.g., Tanner v. Chase Inv. Servs. Corp., 600 F. App’x 914, 922
(5th Cir. 2015) (finding that an employee with a heart condition was not disabled because
“his production level was about the same before and after [his heart] surgery,” and he offered
no evidence that he was actually disabled); Lawson v. Excel Contractors, L.L.C., No. 2130438, 2022 WL 1793511, at *5 (5th Cir. June 2, 2022) (finding that plaintiff is not disabled
under the ADA because he “offers no evidence showing that his heart condition ‘substantially
limits’ the function of his circulatory system”); Foreman v. The Babcock & Willcox Co., 117
F.3d 800, 805–06 (5th Cir. 1997) (holding that an employee’s heart condition with a
pacemaker was not a disability under the ADA).
27 Carmona v. Southwest Airlines Company, 604 F.3d 848 (5th Cir. 2010).
28 Speaks v. Health Sys. Mgmt., Inc., No. 22-CV-77, 2022 WL 3448649, at *5 (W.D.N.C. Aug.
17, 2022) (“Refusing to get a vaccine required by an employer is not itself an “impairment” of
any sort. Rather, it reflects a personal choice . . . that, while hers to make in this context,
cannot be considered an impairment under the ADA.”).
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breathing.29 As the Court finds that Plaintiff has not adequately pleaded a
disability under the ADA, the first element of a failure to accommodate claim,
Plaintiff’s first claim is dismissed.30
ii.

Regarded Disabled

Plaintiff’s third claim alleges Defendant regarded her as disabled
because (1) “she had the medical status of being unvaccinated,” and (2)
Defendant considered her to be “at a higher risk of becoming infected with and
transmitting COVID-19.”31 Defendant moves to dismiss this claim arguing that
the Amended Complaint fails to show that Defendant linked Plaintiff’s refusal
to receive the vaccine to a physical or mental impairment, and acted in a
discriminatory manner based on that perceived impairment.32
To meet the standard of being a person regarded as having a disability
under 29 C.F.R. § 1630.2(iii), “a plaintiff must show either that ‘(1) a covered
entity mistakenly believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a covered entity
Plaintiff filed a Supplemental Memorandum with this Court, asking it to adopt the holding
of a Pennsylvania District Court that “[m]edical conditions that prevented Plaintiffs from
receiving the Covid-19 vaccine fit within [the ADA’s] definition of impairment.” Doc. 19 (citing
Doe(s) v. Pittsburgh Reg. Transit, No. 2:22-cv-01736, 2023 WL 4867850 (W.D. Penn. July 31,
2023)). Doe(s) is not binding on this Court. This Court finds the facts of the disability in Doe(s)
distinguishable and does not find its rationale otherwise persuasive. In Doe(s), the court
analyzed the severity of plaintiffs’ anaphylaxis, finding that a “permanent, chronic, and
severe allergy” can be a “physical or mental impairment” preventing plaintiffs from getting
the COVID-19 vaccine. The court then concludes, as does Plaintiff, that the plaintiffs
sufficiently pled their disability, without bridging the logical gap and explaining how the
medical condition itself prevents Plaintiffs from the major life activity of working. See Doe(s),
2023 WL 4867850, at *6 (“[T]he allegations . . . support a reasonable inference that the
Plaintiffs were not able to get the Covid-9 [vaccine] because of a ‘physical or mental
impairment.’”).
30 Bright v. Martin, No. 22-30767, 2023 WL 4044437, at *1 (5th Cir. June 15, 2023) (“To
prevail on a failure-to-accommodate claim, the plaintiff must show ‘(1) [he] is a “qualified
individual with a disability;”(2) the disability and its consequential limitations were “known”
by the covered employer; and (3) the employer failed to make “reasonable accommodations”
for such known limitations.’”).
31 Doc. 12 at 17–18.
32 Doc. 15-1 at 5–6.
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mistakenly believes that an actual, nonlimiting impairment substantially
limits one or more major life activities.’”33 Both of these “require that the
plaintiff demonstrate that the employer actually ‘entertain[ed] misperceptions
about the individual—it must believe either that one has a substantially
limiting impairment that one does not have or that one has a substantially
limiting impairment when, in fact, the impairment is not so limiting.’”34
The Court finds that Defendant did not regard Plaintiff as disabled by
instituting a blanket vaccination policy. Defendant circulated an interoffice
memo that required all of its employees to abide by the new vaccination
policy.35 By doing so, Defendant regarded Plaintiff, and all other employees, as
being required to comply with its company policy. Various other courts have
dismissed ADA discrimination suits wherein Plaintiffs alleged that their
employers regarded them as disabled by enforcing COVID-19 vaccination
policies.36 One court noted that misclassifying an employee as having a
Kemp v. Holder, 610 F.3d 231, 237 (5th Cir. 2010) (quoting Sutton v. United Air Lines, Inc.,
527 U.S. 471, 489 (1999) (overturned on other grounds).
34 Id. (quoting Sutton, 527 U.S. at 489).
35 Id.
36 See Sharikov v. Philips Med. Sys. MR, Inc., No. 122-326, 2023 WL 2390360, at *8 (N.D.N.Y.
Mar. 7, 2023) (“The allegation that Defendant perceived Plaintiff as potentially infectious
fails to plausibly allege a claim that the . . . Defendant regarded Plaintiff as having an
impairment); Speaks, 2022 WL 3448649, at *5 (“Refusing to get a vaccine required by an
employer is not itself an “impairment” of any sort. Rather, it reflects a personal choice by [the
plaintiff] that, while hers to make in this context, cannot be considered an impairment under
the ADA”); Gallo v. Wash. Nat’ls Baseball Club, LLC, 2023 WL 2455678 (D.D.C. Mar. 10,
2023) (“The ‘regarded as having’ prong of the ADA’s definition of disability ‘does not cover [a]
case where an employer perceives a person to be presently healthy with only a potential to
become ill and disabled in the future.’”); Applegate v. St. Vincent Health, Inc., 2023 WL
3603975, at *3 (S.D. Ind. May 23, 2023) (“Plaintiffs’ unvaccinated status cannot plausibly
support a claim that Defendants regarded them as disabled under the ADA.”); Shklyar v.
Carboline Co., 616 F. Supp. 3d 920, 926 (E.D. Mo. 2022), aff’d 2023 WL 1487782 (8th Cir.
Feb. 3, 2023); Jorgenson v. Conduent Transp. Sols., Inc., No. 22-cv-1648, 2023 WL 1472022,
at *4 (D. Md. Feb. 2, 2023) (dismissing a plaintiff’s “regarded as” ADA claim because
requiring employees to attest to their vaccination status “does not plausibly reflect a
determination or belief that any of its employees are disabled or impaired”); Earl v. Good
Samaritan Hosp. of Suffern, No. 20-cv-3119, 2021 WL 4462413, at *6 (S.D.N.Y. Sept. 28,
2021) (finding that the plaintiff “failed to plausibly allege that [his employer] perceived him
33

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disability due to a failure to comply with a vaccination policy would “require
inferring that [the employer] misclassified all of its . . . employees as having a
disability. Such an inference is not reasonable.”37 Accordingly, Plaintiff has not
plausibly alleged that Defendant regarded her as having a disability. Plaintiff’s
third claim that her employment was terminated because she was regarded as
disabled also fails.
iii.

Unlawful Medical Examination

Plaintiff’s second claim under the ADA for an unlawful medical inquiry
alleges that Defendant made various unlawful medical inquiries, namely (1)
inquiring into Plaintiff’s vaccination status, and (2) requiring Plaintiff to
submit proof she had been vaccinated. As the Fifth Circuit has held that a
plaintiff “need not assert that he or she has a disability to contest an allegedly
improper medical inquiry or medical examination,” Plaintiff’s medical inquiry
claims under the ADA are not precluded by her failure to adequately plead a
disability under the ADA.38
Under Title I of the ADA, employers cannot require medical
examinations or make medical inquiries into the potential existence of an
employee’s disability or to the nature or severity of an employee’s disability. 39
The provision that Plaintiff is suing under, 42 U.S.C. § 12112(d)(4)(A), states:
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.

to be disabled based on his potential to infect patients with COVID-19” because the
“perception of infectiousness is not the same as perceived disability”).
37 Shklyar, 616 F. Supp. 3d at 926.
38 Taylor v. City of Shreveport, 798 F.3d 276, 284 (5th Cir. 2015).
39 42 U.S.C.A. § 12112.
9

The ADA definition of a disability, discussed above, includes “(A) a
physical or mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such impairment; or (C) being
regarded as having such an impairment.” To establish a claim for an unlawful
medical examination or inquiry under Section 12112(d), a claimant must show
(1) that their “employer obtained the medical information that was disclosed
through [a medical examination] or disability-related inquiry;”40 and (2) that
she “suffered a tangible injury due to the disclosure of the protected medical
information.”41
Inquiring into whether Plaintiff was vaccinated and requiring her to
submit proof that she was vaccinated do not fit this statutory definition.
Defendant was not inquiring into the nature of severity of a disability or
inquiring whether Plaintiff was a person with a disability. The Court notes
that while the Equal Employment Opportunity Commission’s (“EEOC”)
webpage is not binding law, it finds the EEOC’s guidance instructive. The
EEOC specifically stated that inquiring into COVID-19 vaccination status is
not a medical inquiry under the ADA.42 This type of conduct does not implicate
any disability and is not prohibited by the ADA. Additionally, many other
courts have held that inquiries into vaccination status and requiring proof of
Franklin v. City of Slidell, 936 F. Supp. 2d 691, 711 (E.D. La. 2013) (citing Dean v. City of
New Orleans, No. 11-2209, 2012 WL 2564954, at *20 (E.D. La. July 2, 2012), aff’d, 544 F.
App’x 353 (5th Cir. 2013).
41 Id. (citing Dean, 2012 WL 2564954, at *21).
42 U.S. Equal Employment Opportunity Commission, What You Should Know About COVID19 and the ADA, the Rehabilitation Act, and Other EEO Laws (last accessed Oct. 17, 2023,
11:42
AM),
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-adarehabilitation-act-and-other-eeo-laws. The EEOC specifically stated that “[w]hen an
employer asks employees whether they obtained a COVID-19 vaccination, the employer is
not asking the employee a question that is likely to disclose the existence of a disability; there
are many reasons an employee may not show documentation or other confirmation of
vaccination besides having a disability. Therefore, requesting documentation or other
confirmation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s
rules about making such inquiries do not apply.”
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vaccination status are not medical inquiries under the ADA.43 This Court
agrees. Therefore, Plaintiff’s medical inquiry claims under the ADA as to the
inquiries into her vaccination status must be dismissed.
b. Preemption of Plaintiff’s State Law Claims
In her Amended Complaint, Plaintiff argues the Public Readiness and
Emergency Preparedness Act (the “PREP Act”) preempts the Louisiana at-will
employment doctrine and gives this Court original jurisdiction over all her
state law claims. Essentially, Plaintiff argues that her state law claims “arise
under” federal law.44 “The notion that state-law claims can ‘arise under’ federal
law is not intuitive. State questions are not federal questions.”45
There is a narrow exception to this rule, however. “[C]omplete
preemption is an exception to the well-pleaded complaint rule.”46 “The
‘complete preemption doctrine’ provides that the preemptive force of a federal
statute can be ‘so extraordinary’ that it ‘converts an ordinary state common

Balow v. Olmsted Med. Ctr., No. CV 22-1668 ADM/JFD, 2023 WL 2776028, at *6 (D. Minn.
Apr. 4, 2023) (holding that a vaccine is not a procedure that seeks information about
Plaintiffs’ health and is not an inquiry into whether Plaintiffs have a disability); Bobnar v.
AstraZeneca, No. 1:22-CV-02258, 2023 WL 3340466, at *4 (N.D. Ohio May 9, 2023) (holding
that inquiries into an employee’s vaccination status does not constitute an unlawful medical
inquiry and stating that “[t]he EEOC expressly advised that an employer’s COVID-19
vaccination status is not a prohibited medical inquiry under the ADA.”); Friend v.
AstraZeneca Pharms. LP, No. CV SAG-22-03308, 2023 WL 3390820, at *5 (D. Md. May 11,
2023) (holding that “an inquiry about vaccination status does not implicate any disability.”);
Bearbower v. Olmsted Med. Ctr., No. CV 22-2459 ADM/JFD, 2023 WL 2776029, at *6 (D.
Minn. Apr. 4, 2023); Kehren v. Olmsted Med. Ctr., No. CV 22-1560 ADM/JFD, 2023 WL
2776094, at *6 (D. Minn. Apr. 4, 2023); Tipcke v. Olmsted Med. Ctr., No. CV 22-2470
ADM/JFD, 2023 WL 2776098, at *6 (D. Minn. Apr. 4, 2023); Aronson v. Olmsted Med. Ctr.,
No. CV 22-1594 ADM/JFD, 2023 WL 2776095, at *6 (D. Minn. Apr. 4, 2023) (“this
requirement is not an unlawful inquiry under the ADA because inquiring about an
employee’s vaccination status is not likely to elicit information about a disability.”); Librandi
v. Alexion Pharms., Inc., No. 3:22CV1126(MPS), 2023 WL 3993741, at *9 (D. Conn. June 14,
2023).
44 28 U.S.C. § 1331.
45 Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237, 242 (5th Cir. 2022).
46 Rio Grande Underwriters, Inc. v. Pitts Farms, Inc., 276 F.3d 683, 685 (5th Cir. 2001) (citing
Hart v. Bayer Corp., 199 F.3d 239, 244 (5th Cir. 2000)).
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law complaint into one stating a federal claim for purposes of the well-pleaded
complaint rule.”’47 “If a federal cause of action completely pre-empts a state
cause of action any complaint that comes within the scope of the federal cause
of action necessarily ‘arises under’ federal law.”48 Therefore, “[i]f a federal law
is found to completely preempt a field of state law, the state-law claims in the
plaintiff's complaint will be recharacterized as stating a federal cause of
action.”49
To trigger complete preemption in the Fifth Circuit, Plaintiff must show
that “(1) the statute contains a civil enforcement provision that creates a cause
of action that both replaces and protects the analogous area of state law; (2)
there is a specific jurisdictional grant to the federal courts for enforcement of
the right; and (3) there is a clear Congressional intent that claims brought
under the federal law be removable.”’50
The statute in question is the PREP Act. The Fifth Circuit has described
the PREP Act as “shield[ing] covered persons, ‘such as pharmacies and drug
manufacturers,’ from suits and liability ‘during a public-health emergency.’”51
“The PREP Act’s liability shield extends only to the administration . . . or the
use of those covered countermeasures,” such as “vaccines and treatments.”52
“The PREP Act is, at its core, an immunity statute. It does not create a federal

Elliot v. Care Inn of Edna LLC, No. 3:20-CV-3185-S, 2021 WL 2688600, at *3 (N.D. Tex.
June 30, 2021) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 389 (1987)).
48 Caterpillar, 482 U.S. at 393 (quoting Franchise Tax Bd. of Cal. v. Construction Laborers
Vacation Trust for S. Cal., 463 U.S. 1, 24 (1983)); see also Ben. Nat’l Bank v. Anderson, 539
U.S. 1, 8 (2003).
49 Rio Grande, 276 F.3d at 685 (quoting Hart, 199 F.3d at 244).
50 Elliot, 2021 WL 2688600, at *3 (quoting Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir.
2008)).
51 Manyweather, 40 F.4th at 243 (quoting Est. of Maglioli v. All. HC Holdings, LLC, 16 F.4th
393, 400 (3d Cir. 2021)).
52 Id. (quoting 42 U.S.C. § 247d-6d(a)(1))(internal quotations omitted).
47

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cause of action or any rights, duties, or obligations.”53 Under different facts,
the Fifth Circuit has held that the PREP Act fails to satisfy this test.54
As to the first element, the PREP Act does not provide a cause of action
that “replaces and protects the analogous area of state law.”55 It creates a
narrow cause of action for willful misconduct.56 Plaintiff asserts claims for
wrongful termination, retaliation, and breach of contract, which are not
subsumed and replaced by a cause of action for willful misconduct. Nor is the
compensation fund created by the PREP Act a cause of action.57 As a result,
Plaintiff is unable to identify a cause of action that replaces her asserted state
law claims.58

Elliot, 2021 WL 2688600 at *3.
Id. (“The PREP Act does not completely preempt state law negligence claims for COVID19-related injuries, as it fails to satisfy all three prongs of the Fifth Circuit’s test for complete
preemption.”); Manyweather, 40 F.4th at 242 (“We already have decided that the PREP Act
does not preempt state-law negligence claims.”) Mitchell v. Advanced HCS, L.L.C., 28 F.4th
580, 586 (5th Cir. 2022) (“The Act does not completely preempt Mitchell’s state-law
negligence claims.”). These Fifth Circuit cases address the PREP Act’s preemption as it
pertains to the preemption of state law negligence claims, however, the discussion of the
elements of complete preemption is useful regardless.
55 Johnson, 214 F.3d at 632.
56 42 U.S.C. § 247d-6e(d)(1) (the statute defines willful misconduct as “an act or omission that
is taken-- (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or
factual justification; and (iii) in disregard of a known or obvious risk that is so great as to
make it highly probable that the harm will outweigh the benefit.”). Plaintiff does not appear
to allege a willful misconduct claim. To the extent the Court may construe her allegations as
doing so, she does not adequately plead the elements. The willful misconduct exception is
procedurally narrow and requires plaintiffs to satisfy strict standards of pleading and proof,
as well as showing clear and convincing evidence of “willful misconduct which caused death
or serious physical injury.” § 247d-6d(c)(3). Plaintiff cannot meet these strict requirements.
57 Manyweather, 40 F.4th at 242 (5th Cir. 2022) (stating that even if the PREP Act’s
compensation fund was a cause of action, which it was not, Congress denied the courts power
to review how the Secretary administers the compensation fun, which necessarily precludes
complete preemption); Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 586 (5th Cir. 2022)
(“To begin, a ‘compensation fund is not a cause of action.’”).
58 Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 587 (5th Cir. 2022) (“As the Third Circuit
noted, ‘neither the Supreme Court nor any circuit court has extended complete preemption
to a statute because it created a compensation fund.’”).
53
54

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Even assuming that the PREP Act does create a cause of action, the other
elements are not met. The second element, that the act specifically grants
federal courts jurisdiction to enforce the right, is also not met. The PREP Act
specifically gives jurisdiction to Secretary of the Department of Health and
Human Services to administer the compensation fund.59 Claims for willful
misconduct, when permitted, can be brought in the United States District
Court for the District of Columbia after the plaintiff exhausts all
administrative remedies.60 “Thus, except for one narrow exception, PREP Act
claims cannot be brought in federal court.”61 Plaintiff cannot show that the
PREP Act satisfies the second prong.
Finally, there is not a clear congressional intent that the prescribed
remedies be exclusive. The PREP Act does not create a general cause of action,
or specifically grant federal courts jurisdiction to adjudicate such actions,
evincing a lack of congressional intent that the remedies provided be exclusive.
Various other courts have similarly held that the PREP Act fails to completely
preempt state law, and this Court agrees.62 As a result, the Court does not have
original jurisdiction over Plaintiff’s state law wrongful termination,
retaliation, and breach of contract claims. This Court’s jurisdiction over
Plaintiff’s state law claims is supplemental.
42 U.S.C. §§ 247d-6e(a), 247d-6e(b).
Elliot, 2021 WL 2688600, at *4.
61 Id.
62 Elliot, 2021 WL 2688600, at *4 (citing Schuster, 493 F. Supp. 3d at 536-38; Brannon v. J.
Ori, LLC, 2:21-CV-00058-JRG-RSP, 2021 WL 2339196, at *2 (E.D. Tex. June 8, 2021); Gibbs
on behalf of Estate of Velasquez v. Se. SNF LLC, SA-20-CV-01333-JKP-RBF, 2021 WL
1186626, at *3 (W.D. Tex. Mar. 30, 2021); Anson v. HCP Prairie Vill. KS OpCo LLC, No. 20CV-2346 (DDC) (JPO), 2021 WL 308156, at *9-11 (D. Kan. Jan. 29, 2021); Estate of Smith ex
rel. Smith v. The Bristol at Tampa Bay Rehab. & Nursing Ctr., No. 20-CV-2798 (T), 2021 WL
100376, at *1-2 (M.D. Fla. Jan. 12, 2021); Sherod v. Comprehensive Healthcare Mgmt. Servs.,
LLC, No. 20-CV-1198, 2020 WL 6140474, at *7-8 (W.D. Pa. Oct. 16, 2020); Saldana v.
Glenhaven Healthcare LLC, No. 20-CV-5631 (FMO) (MAA), 2020 WL 6713995, at *2 (C.D.
Cal. Oct. 14, 2020); Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d.
518, 528-33 (D.N.J. 2020)).
59
60

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c. State Law Claims
After addressing Plaintiff’s preemption argument, the Court must now
determine whether to exercise supplemental jurisdiction over the remaining
state law claims as it has dismissed all other claims over which it had original
jurisdiction. In her Amended Complaint, Plaintiff asserts that this Court may
exercise supplemental jurisdiction over Plaintiff’s retaliation, wrongful
termination, breach of contract and LEDL claims.63 Defendant does not
address supplemental jurisdiction in its Motion to Dismiss.
Under 28 U.S.C. § 1367(c), district courts have discretion to decline to
exercise supplemental jurisdiction over non-diverse state law claims where the
court has dismissed all claims over which it had original jurisdiction. “The
general rule is that a court should decline to exercise jurisdiction over
remaining state-law claims when all federal-law claims are eliminated before
trial.”64 The Fifth Circuit has advised that in determining whether to
relinquish jurisdiction over pendent state law claims, a court should “look to
the statutory factors set forth by 28 U.S.C. § 1367(c), and to the common law
factors of judicial economy, convenience, fairness, and comity.”65 The statutory
factors concern whether “(1) the claim raises a novel or complex issue of State
Doc. 11 at 1, 21. In its previous Order and Reasons, the Court dismissed Plaintiff’s
retaliation claim as it could not ascertain whether she was suing under federal or state
employment law. Doc. 10 (“As the Court cannot ascertain under which law the Plaintiff is
suing and thus, what the requisite elements are, she did not state a claim upon which relief
can be granted.”). The Court granted Plaintiff leave to amend her complaint. Plaintiff failed
to clarify whether she was suing under federal or state employment law. As Plaintiff grouped
her retaliation claim with her other state law claims in her Amended Complaint and in her
opposition to this Motion, the Court assumes that Plaintiff intended her retaliation claim to
arise under state law and has treated it as such. Doc. 16 at 16 (listing and addressing
wrongful termination, retaliation, and breach of contract together). To the extent Plaintiff
may argue she attempted to plead retaliation under the ADA, it is dismissed for failure to
plead the requisite elements of a retaliation claim under federal law.
64 Brookshire Bros. Holding v. Dayco Products, Inc., 554 F.3d 595, 602 (5th Cir. 2009); see
also Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1465 (5th Cir. 1995) (district
court did not abuse discretion by remanding remaining state claims).
65 Enochs v. Lampasas Cnty., 641 F.3d 155, 158–59 (5th Cir. 2011).
63

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law, (2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction, (3) the district court has
dismissed all claims over which it has original jurisdiction, or (4) in exceptional
circumstances, there are other compelling reasons for declining jurisdiction.”66
Here, the statutory factors weigh in favor of dismissing Plaintiff’s state
law claims. Specifically, the second and third factors weigh heavily in favor of
declining to exercise supplemental jurisdiction because only state law claims
remain pending before this Court. The first factor also weighs against
exercising jurisdiction as Plaintiff’s claim may raise novel issues of law
regarding employment rights in the face of vaccine mandates. Additionally,
judicial economy, convenience, fairness, and comity all weigh in favor of
declining jurisdiction as this claim has not been substantially litigated in this
Court and Louisiana state courts have a significant interest in resolving issues
of state law. As both the statutory and common law factors weigh against
exercising

supplemental

jurisdiction, the

Court

declines to exercise

supplemental jurisdiction and dismisses Plaintiff’s state law claims without
prejudice.
CONCLUSION
For the foregoing reasons, Defendants’ Motion (Doc. 13) is GRANTED.
Plaintiffs’ ADA and PREP Act claims are DISMISSED WITH PREJUDICE.
Plaintiff’s state law claims are DISMISSED WITHOUT PREJUDICE.

66

28 U.S.C. § 1367(c).
16

New Orleans, Louisiana this 15th day of November, 2023.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

17