Smith v. Terminix Pest Control, Inc.

Filing 15

ORDER AND REASONS - IT IS ORDERED that 5 Motion to Dismiss for Failure to State a Claim is GRANTED IN PART. Plaintiff's claims under the Emergency Use Statute, the ADA, and for retaliation, are DISMISSED. Plaintiff shall amend his Complaint within 20 days of this Order to the extent that he can remedy the deficiencies identified herein. Signed by Judge Jane Triche Milazzo on 5/19/2023. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREGG SMITH

CIVIL ACTION

VERSUS

NO. 22-3701

TERMINIX PEST CONTROL, INC.

SECTION: “H”

ORDER AND REASONS
Before the Court is Defendant Terminix Pest Control, Inc.’s Motion to
Dismiss (Doc. 5). For the following reasons, the Motion is GRANTED IN
PART.
BACKGROUND
This case arises out of Plaintiff Gregg Smith’s termination from his
employment with Defendant Terminix Pest Control, Inc. In August 2021,
Defendant issued a notice to all employees that they must receive the COVID19 vaccine by September 15, 2021, 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’s Complaint alleges that he told
Defendant that he did not want to receive the vaccine because it would violate
his religious beliefs to receive a vaccine derived from aborted fetal cell lines. 2
Additionally, Plaintiff stated that “he could not give Informed Consent because
he was afraid to take the Covid-19 vaccines due to fear of long term adverse

1
2

Doc. 1 at 3.
Id. at 4.
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effects in light of his asthma.” 3 Furthermore, Plaintiff alleges that Defendant
refused his requested accommodations without explaining how granting him
an accommodation would result in undue hardship to the business. 4 Plaintiff
refused to receive the COVID-19 vaccination and was fired on August 25,
2021. 5
On March 14, 2022, Plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission alleging violations of the
Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act
of 1964 (“The Civil Rights Act”). He received a Notice of Right to Sue Letter on
August 2, 2022. Plaintiff timely filed suit in this Court on October 6, 2022,
alleging violations of the Emergency Use Authorization Provision, 6 The Civil
Rights Act, 7 the ADA, 8 and the Louisiana Employment Discrimination Law
(“LEDL”). 9
Now before the Court is Defendant’s Motion to Dismiss Plaintiff’s Claims
with Prejudice. Plaintiff opposes. 10
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.” 11 A claim
is “plausible on its face” when the pleaded facts allow the court to “[d]raw the

Id. at 3.
Id. at 4.
5 Id.
6 21 U.S.C. § 360bbb-3.
7 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
8 42 U.S.C. § 12101.
9 LA. REV. STAT. § 23:301.
10 Doc. 10.
11 Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007)).
3
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reasonable inference that the defendant is liable for the misconduct alleged.” 12
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 13

The Court need not,

however, accept as true legal conclusions couched as factual allegations. 14
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true. 15 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’”
will not suffice. 16 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. 17
LAW AND ANALYSIS
Defendant argues that Plaintiff fails to establish viable causes of action
under the Emergency Use Statute, the ADA, and The Civil Rights Act. Without
these claims, Defendant further argues that the Court should decline to
exercise supplemental jurisdiction over Plaintiff’s state law claim. Plaintiff
opposes, stating that he did adequately plead his claims. The Court will
address each claim individually.
a. The Emergency Use Statute
Plaintiff alleges that Defendant’s mandatory COVID-19 vaccination
policy violates his rights under the Emergency Use Authorization statute by
denying him the right to accept or refuse the administration of the vaccine. 18

Id.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
14 Iqbal, 556 U.S. at 667.
15 Id.
16 Id. at 678 (quoting Twombly, 550 U.S. at 555).
17 Lormand, 565 F.3d at 255–57.
18 Doc. 1 at 5.
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The Emergency Use Authorization statute provides that “the Secretary may
authorize the introduction into interstate commerce . . . a drug, device, or
biological product intended for use in an actual or potential emergency” subject
to various conditions, including that those who take the drug, device, or
biological product “are informed . . . of the option to accept or refuse
administration of the product.” 19 Defendant argues that the Emergency Use
Statute does not provide a right of action under which an individual may sue
a private employer, and as such, Plaintiff cannot state a claim. Plaintiff
responds that the plain language of the Emergency Use Statute has been
violated, namely the requirement that “individuals to whom the product is
administered are informed . . . of the option to accept or refuse administration
of the product.” 20 Plaintiff argues that he exercised his rights to refuse the
administration of the product and was fired, which constitutes a violation of
the Emergency Use Statute.
The Court disagrees with this characterization of the law. This statute
authorizes the Secretary of Health and Human Services to approve medical
products for use in an emergency and “requires the Secretary to ensure product
recipients understand the ‘potential benefits and risks of use’ and ‘the option
to accept or refuse administration of the product.’” 21 This statute gives the
Secretary of Health and Human Services power to act in an emergency. It does
not confer a private right to sue. Indeed, the Fifth Circuit has confirmed that
this provision “neither expands nor restricts the responsibilities of private
employers; in fact, it does not apply at all to private employers . . . It does not
confer a private opportunity to sue the government, employer, or worker.” 22
21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(I)-(III).
Doc. 10 (citing 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(I)-(III)).
21 Bridges v. Houston Methodist Hosp., 543 F. Supp. 3d 525, 527 (S.D. Tex. 2021), aff’d sub
nom. Bridges v. Methodist Hosp., No. 21-20311, 2022 WL 2116213 (5th Cir. June 13, 2022).
22 Id.
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Thus, Plaintiff’s claim under the Emergency Use Statute does not have merit
and must be dismissed. 23
b. American With Disabilities Act
Plaintiff claims that he was discriminated against based on his medical
disability. Defendant argues that Plaintiff did not plausibly allege a violation
of the ADA. Plaintiff claims his medical disability is asthma and fear of
vaccines in light of his asthma. 24 He alleges that this fear of long-term adverse
effects in light of his asthma constitutes a disability because he is
“substantially limited in a major life activity, i.e., being able to take certain
medications and/or vaccines.” 25
“To make out a prima facie case of discrimination under the ADA, a
plaintiff must show that (a) he has a disability; (b) he is a qualified individual
for the job to which he is applying; and (c) that an adverse employment decision
was made solely because of his disability.” 26 42 U.S.C. § 12102(a) defines a
“disability” as “a physical or mental impairment that substantially limits one
or more major life activities of such individual.” 27 Major life activities include
working, seeing, hearing, speaking, and breathing. 28
Defendant argues that Plaintiff does not allege enough facts to support
the existence of a disability, much less how his alleged disability substantially
limits a major life activity. Plaintiff states that he has asthma and “fear of long-

Id. Plaintiff attempts to distinguish his case from Bridges; however, his arguments fail.
There, the District Court for the Southern District of Texas addressed this precise issue, held
that there was no private right to sue under the Emergency Use Statute, and was affirmed
on appeal to the Fifth Circuit Court of Appeals. See also Symantha Reed et al. v. Tyson Foods,
Inc., No. 21-CV-01155, 2022 WL 2134410, at *11 (W.D. Tenn. June 14, 2022) (holding that
“there is no private right of action under [21 U.S.C. § 360bbb]”).
24 Doc. 1 at 3.
25 Id.
26 Still v. Freeport-McMoran, Inc., 120 F.3d 50, 51–52 (5th Cir. 1997).
27 42 U.S.C. § 42102(a).
28 42 U.S.C. § 12102(2)(A).
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term adverse effects in light of his asthma” which substantially limits his
ability to take certain medications and vaccinations. 29 The Court finds that the
inability to take certain medications and vaccinations is not a major life
activity akin to speaking, breathing, seeing, or hearing. 30 Viewing all facts in
the light most favorable to Plaintiff, the Court finds that he does not plead the
necessary facts to show that he has a disability under the ADA. As such,
Plaintiff’s ADA claim fails.
c. Retaliation
Plaintiff alleges that “Defendant’s retaliation against Plaintiff was
immediate and unwavering.” 31 However, Plaintiff does not explain any further.
To plausibly plead a claim, the complaint must contain enough factual
allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs’ claim. 32 As the Court cannot ascertain under
which law the Plaintiff is suing, and thus, what the requisite elements are, he
did not state a claim upon which relief can be granted.
d. Title VII of the Civil Rights Act of 1964

Doc. 1 (Plaintiff alleges that he has asthma and “fear of long-term adverse effects in light
of his asthma” which substantially limits his ability to take certain medications and
vaccinations”). In Plaintiff’s Memorandum in Opposition to this Motion, he advances a
different argument: his asthma and “fear of long-term adverse effects in light of his asthma”
constitute a disability under the ADA because he is unable to work in “any occupation and
with any employer that requires a Covid vaccine,” and that working is a major life activity.
Doc. 10 at 5–6. The Court may not consider this argument as it was not pleaded in Plaintiff’s
Complaint.
30 Hustvet v. Allina Health Sys., 910 F.3d 399, 411 (8th Cir. 2018) (holding that there was
“insufficient evidence in the record to support the conclusion that Hustvet’s chemical
sensitivities or allergies substantially or materially limit her ability to perform major life
activities” where she had never “sought any significant medical attention when experiencing
a chemical sensitivity, taken prescription medication because of a serious reaction, or had to
leave work early because of a reaction.”).
31 Doc. 1 at 9.
32 Lormand, 565 F.3d at 255–57.
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Defendant argues that Plaintiff fails to state a claim under the Civil
Rights Act because he did not allege a factual connection between his sincerely
held belief and his termination. Plaintiff alleges that his religious beliefs
prohibit him from taking a vaccine that was “derived from aborted fetal cell
lines,” and that in response to his refusal to receive the vaccine, his
employment was terminated. 33
A Civil Rights Act plaintiff bears the burden to prove a prima facie case
of discrimination by a preponderance of the evidence. 34 “An employee proves a
prima facie case of religious discrimination by showing that the employee: (1)
has a bona fide religious belief that conflicts with an employment requirement;
(2) informed the employer of this belief; and (3) was disciplined for failure to
comply with the conflicting employment requirement.” 35 An adverse
employment action must be “materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” 36 The Court notes that at this stage, however, “a
plaintiff need not make a prima facie showing of discrimination under the
McDonnell Douglas framework in order to survive a motion to dismiss,” as the
prima facie “framework is an evidentiary standard and not a pleading
requirement.” 37 Plaintiff’s Complaint will be evaluated under the “ordinary
rules for assessing the sufficiency of a complaint.” 38
Plaintiff alleges he told Defendant that it would violate Plaintiff’s
sincerely held religious beliefs to take a vaccine derived from aborted fetal cell
Doc. 1 at 4.
Moore v. Metro. Hum. Serv. Dist., No. 09-6470, 2010 WL 1462224, at *4 (E.D. La. Apr. 8,
2010).
35 Jenkins v. State of La., Dept. of Corrections, 874 F.2d 992, 995 (5th Cir. 1989) (citing
Turpen v. Missouri–Kansas–Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984)).
36 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
37 Harrison v. Mayorkas, No. CV 21-161, 2021 WL 5907713, at *6 (E.D. La. Dec. 14, 2021).
38 Id.
33
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lines. 39 As a consequence for his refusal to receive the vaccine, he was fired.
The Court finds that, taking these allegations as true, Plaintiff has established
a prima facie case of religious discrimination. As such, Plaintiff’s claim for
religious discrimination survives Defendant’s Motion to Dismiss.
e. Louisiana Employment Discrimination Law
Defendant requests that this Court decline to exercise supplemental
jurisdiction over Plaintiff’s state law claims in the event Plaintiff’s claims
under the Emergency Use Statute, the ADA, and the Civil Rights Act are
dismissed. Plaintiff’s claim for religious discrimination under the Civil Rights
Act is not dismissed, and thus, this request is denied. The Court shall maintain
supplemental jurisdiction over Plaintiff’s state law claims.

CONCLUSION
For the foregoing reasons, Defendant’s Motion (Doc. 5) is GRANTED IN
PART. Plaintiff’s claims under the Emergency Use Statute, the ADA, and for
retaliation, are DISMISSED. Plaintiff shall amend his Complaint within 20
days of this Order to the extent that he can remedy the deficiencies identified
herein.

New Orleans, Louisiana this 19th day of May, 2023.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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Doc. 1 at 4.
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