Butler v. State of Louisiana, Louisiana Department of Safety and Corrections et al

Filing 103

RULING and ORDER: Plaintiff's 52 Motion for Partial Summary Judgment is DENIED. Plaintiff's 65 Motion for Partial Summary Judgment is also DENIED. Defendants' 67 Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART. Signed by Chief Judge Brian A. Jackson on 12/3/2014. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SCOTT J. BUTLER

CIVIL ACTION

VERSUS
STATE OF LOUISIANA, LOUISIANA
DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS, ET AL.

NO.: 12-00420-BAJ-RLB

RULING AND ORDER
Before the Court are Plaintiff’s MOTIONS FOR PARTIAL SUMMARY
JUDGMENT (Doc. 52, Doc. 65) filed by Scott J. Butler, pursuant to Federal Rule
of Civil Procedure 56, seeking summary judgment on his claims (1) that the
termination of his employment was an absolute nullity under Louisiana Law; and
(2) that after the initiation of this lawsuit, while he was still employed as a state
trooper, Defendants ordered him to submit to a psychological examination that was
neither job-related, nor consistent with business necessity. (Doc. 52-1 at p. 5; Doc.
65-1 at p. 5). The State of Louisiana, Louisiana Department of Public Safety and
Corrections, Louisiana State Police and Captain Tom Madden, (collectively,
“Defendants”) oppose the motions.

(Doc. 80, Doc. 88).

Plaintiff filed a reply

memorandum in response to one of Defendants’ two memoranda in opposition.
(Doc. 81).
Also before the Court is Defendants’ MOTION FOR

SUMMARY

JUDGMENT (Doc. 67), seeking an order from this Court dismissing Plaintiff’s

1

claims against them, pursuant to Federal Rule of Civil Procedure 56.

Plaintiff

opposes the motion. 1 (Doc. 87). Defendants filed a reply memorandum in response
to Plaintiff’s memorandum in opposition. (Doc. 94).
Oral argument is not necessary. The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
I.

Background 2
Scott Butler (“Plaintiff”) was employed as a Louisiana State Trooper by the

Louisiana Department of Public Safety (“DPS”), Louisiana State Police (“LSP”) from
September 9, 2000, to April 3, 2013. (Doc. 65-7 at ¶ 1; Doc. 87-9 at ¶ 1). Plaintiff
worked in the following divisions during his tenure with LSP: the Gaming Division
from 2005 to 2010, the Intelligence Division from July 2010 to November 2010, and
as a Road Trooper with Troop G from 2010 to 2013. (Doc. 87-9 at ¶ 2). On or about
October 7, 2010, Plaintiff’s supervisor, Sergeant Jason Turner recommended placing
Plaintiff in a Field Training Program for Intelligence. (Id. at ¶ 4). Plaintiff then
requested to transfer out of Intelligence and back to road patrol at LSP Troop G in
Bossier. (Id.). Plaintiff’s request was granted, and his transfer to Troop G became
effective November 1, 2010. (Id. at ¶ 5).
In his memorandum in opposition, Plaintiff also states that he is no longer pursuing his claim
under the Family Medical Leave Act, his claim for violation of his Fourteenth Amendment rights
under 42 U.S.C. § 1983, or his claim that Captain Madden communicated a diagnosis outside
DPS/LSP. (See Doc. 87 at p. 31).

1

In accordance with Rule 56.1 of the Local Rules of the United States District Court for the Middle
District of Louisiana, both Plaintiff and Defendants submitted statements of undisputed material
facts along with their respective summary judgment motions. (See Doc. 52-16, 65-7, 67-2). Both
parties also submitted responses in opposition to those statements of undisputed material facts,
denying or contesting some of those facts, as permitted by Local Rule 56.2. (See Doc. 80-1, 88-1, 879); Fed. R. Civ. P. 56(c). Accordingly, only certain material facts are deemed admitted for purposes of
this ruling and order.
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The primary purpose of a state trooper assigned to the patrol division is “to
provide highway traffic services by enforcement of criminal and traffic laws in order
to protect life and property.” (Doc. 52-16 at ¶ 2). Initially, in accordance with
standard procedures, Plaintiff was assigned to a series of ride-alongs with other
troopers “to acclimate him to new procedures and technology.” 3 (Doc. 87-9 at ¶ 5).
The troopers from Teams C and Team E participating in the ride-alongs maintained
logs, which documented Plaintiff’s performance. (Id. at ¶¶ 6-7). The nature and
content of these evaluations is disputed. However, Plaintiff’s official performance
evaluations through August 2012 always reflected that he was performing his
duties satisfactorily. (Doc. 52-16 at ¶ 1).
On January 26, 2011, after reviewing the performance logs from Intelligence
and the ride-along reports from Teams C and E, Captain Madden recommended
Plaintiff participate in a psychological fitness for duty examination (“FFDE”). (Doc.
87-9 at ¶ 8).
Pursuant to DPS protocol, the Internal Affairs Division (“Internal Affairs”)
compiles the information that is ultimately submitted in conjunction with a FFDE
referral. (Doc. 52-16 at ¶¶ 18, 19; Doc. 80-1 at ¶ 18). Internal Affairs handles
specialized administrative investigations as warranted and delegated to it by the
Colonel and/or the Chief of Staff of LSP. (Doc. 52-16 at ¶ 15). DPS contracts with a
third party, Matrix, Inc. (“Matrix”), to conduct psychological FFDEs for LSP. (Id. at
¶ 17; Doc. 80-1 at ¶ 17). The FFDEs are administered by licensed psychologists
Plaintiff does not appear to dispute that this is standard procedure generally, but he argues that
his ride-along period was “extended unreasonably because of a perception of disability.” (Doc. 87-9 at
p. 2).
3

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with special training and experience in police psychology.

(Doc. 87-9 at ¶ 9).

Internal Affairs then maintains a case file for each FFDE that is requested. (Doc.
52-16 at ¶ 16). The documents sent to Matrix are kept under the employee’s name
in a secure location in Internal Affairs, but separate from other records. (Doc. 52-16
at ¶ 20).
Here, pursuant to DPS protocol, the job performance documentation was
first submitted to Captain William Davis, Commander of DPS Internal Affairs
Division. (Id.). Then, Captain Davis sent the documentation to Matrix for a prefitness review, whereupon Matrix psychologist, Dr. Cary Rostow (“Dr. Rostow”)
reviewed it, and determined that a FFDE should be conducted. (Id. at ¶ 10). The
depth of Dr. Rostow’s pre-examination review of the documentation submitted to
Matrix is disputed.
On February 8, 2011, Plaintiff appeared for his first FFDE at Matrix in
Baton Rouge as ordered. (Id. at ¶ 11). During the examination, Butler submitted a
February 1, 2011 letter from Theresa Stewart, (“Nurse Stewart”) a certified
psychiatric clinical nurse specialist with LSU Health Sciences, and Dr. James
Patterson, Nurse Stewart’s supervising psychiatrist. (Id.). The letter stated that
Plaintiff was diagnosed with Obsessive Compulsive Disorder (“OCD”) in November
2010, and had been under treatment for the condition. (Id.). The letter also stated
that by January 7, 2011, “all of [Plaintiff’s] compulsive behavior and obsessive
thoughts had stopped” and that Plaintiff “was no longer depressed or showing
symptoms of anxiety or depression.”

(Doc. 67-17).

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In Nurse Stewart and Dr.

Patterson’s opinion, Plaintiff was “fit for duty.”

(Id. at p. 2).

However, after

conducting his own evaluation, Dr. Rostow found Plaintiff unfit for duty. (Doc. 87-9
at ¶ 12). The thoroughness of Dr. Rostow’s examination and the appropriateness of
the types of assessments used are disputed.
Based on Dr. Rostow’s opinion, Plaintiff was relieved of duty on February 9,
2011.

(Id. at ¶ 13).

The following day, Plaintiff submitted a report from Dr.

Patterson, the same psychiatrist who signed the February 1, 2011 letter, which
stated that although Plaintiff was still suffering from OCD, his condition was
neither severe, nor “bothersome in nature.” (Id. at ¶ 14; Doc. 65-7 at ¶ 4). The
parties disagree on the validity of Dr. Patterson’s assessment of Plaintiff’s fitness
for duty. Nevertheless, Plaintiff returned to work at Team C on March 7, 2011.
(Doc. 87-9 at ¶ 15). DPS continued to have Plaintiff participate in ride-alongs with
other experienced troopers as he had before the FFDE was conducted and his leave
of absence commenced. (Id. at ¶ 15). Plaintiff’s attorney later objected to the ridealongs, and DPS acquiesced. (Id.). Plaintiff was permitted to ride alone effective
March 26, 2012. (Id.).
In the interim, Plaintiff filed a complaint of disability discrimination with the
Equal Employment Opportunity Commission. (Doc. 65-7 at ¶ 5). Plaintiff then filed
the instant lawsuit against DPS, LSP, and his supervisor, Captain Tom Madden, in
June of 2012. 4 (Id. at ¶ 6). During discovery, Defendants sought a court order

Plaintiff’s Statement of Undisputed Facts misstates that the instant lawsuit was filed in May of
2012. (Doc. 65-7 at ¶ 6). Plaintiff’s initial Petition was filed in the Nineteenth Judicial Court in East
Baton Rouge Parish on June 4, 2012. (Doc. 1-3 at p. 1). An Amended Petition was filed on June 8,
2012. (Doc. 1-3 at p. 6). The action was removed to this Court on July 13, 2012. (Doc. 1).
4

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compelling Plaintiff to produce his psychiatric treatment records.

(Id. at ¶ 7).

Defendants claimed Plaintiff’s psychiatric records would provide proof that “Butler,
in fact, suffered from a psychiatric condition” as well as prove “the extent of his
psychiatric condition.”

(Id. at ¶ 8).

That same November 11, 2012 Motion to

Compel (Doc. 11) was still pending on January 23, 2013, the date on which
Defendants ordered Plaintiff to submit to a second FFDE. 5 (Doc. 65-7 at ¶ 9).
On December 18, 2012, 6 pursuant to LSP Policy, Plaintiff filed a personnel
grievance against the supervisor of Team D, Lieutenant Kevin Baxer (“Lt. Baxter”).
(Doc. 52-16 at ¶ 3). Plaintiff alleged that Lt. Baxter threw a crash report at him
during a December 9, 2012 meeting and that Lt. Baxter’s recommended edits to
reports Plaintiff wrote would have undermined the integrity of the reports. (Doc.
87-9 at p. 17).

Plaintiff’s next-in-line supervisor, Major Joel Kilpatrick (“Major

Kilpatrick”) then met with Plaintiff on January 2, 2013, to conduct a grievance
review. (Id. at ¶ 18). The substance of their conversation during this meeting is
disputed.
On January 11, 2013, Major Kilpatrick wrote Lieutenant Colonel David
Staton to advise that based upon his observations of Plaintiff, that Plaintiff was
either “unable or unwilling” to perform his job duties. (Doc. 52-16 at ¶ 5). Major

Defendants assert that the filing of the Motion to Compel and the referral for a second FFDE were
“two independent events,” and dispute that the second FFDE was a litigation strategy. (Doc. 88-1 at
¶ 9). However, Defendants do not dispute the dates on which these actions occurred.
5

In Plaintiff’s Response to Defendants’ Statement of Undisputed Facts, he admits the date of the
grievance as December 19, 2012. (Doc. 87-9 at ¶ 17). However, the document in the record lists the
date of the grievance letter as December 18, 2012, with a mailing date of December 19, 2012. (Doc.
80-2 at p. 30).
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Kilpatrick’s motivations for making this statement are disputed. (Id.; Doc. 80-1 at ¶
5). In his letter, Major Kilpatrick also recommended that Plaintiff be sent for a
second psychological FFDE “for determining [the] Department’s most appropriate
course of future action.” (Doc. 52-16 at ¶ 6). Plaintiff was not provided a copy of the
letter, nor given an opportunity to read it. (Id. at ¶ 7). Defendants dispute that
Plaintiff was entitled to read the letter. (Doc. 80-1 at ¶ 7). Major Kilpatrick had no
interaction with Plaintiff after the January 2, 2013 meeting. (Doc. 52-16 at ¶ 9).
Between the grievance meeting on January 2, 2013, and the date of Major
Kilpatrick’s letter, January 11, 2013, no one reported any bizarre, unusual, or
illogical behavior by Plaintiff to Major Kilpatrick. (Id. at ¶ 10). Major Kilpatrick
did not consider any alternative to a FFDE for Plaintiff, (Id. at ¶ 11), though it is
disputed that consideration of alternatives was warranted. (Doc. 80-1 at ¶ 11).
Plaintiff was not relieved of duty and continued to perform the normal duties of a
state trooper while Major Kilpatrick’s FFDE recommendation was pending with
Internal Affairs. (Id. at ¶¶ 12-13).
On January 23, 2013, Defendants ordered Plaintiff to report to Matrix for a
second psychological FFDE. (Id. at ¶ 21).
In advance of Plaintiff’s scheduled psychological examination, Defendants
once again submitted materials about Plaintiff to Matrix for its psychologist, Dr.
Robert Davis’ review. (Doc. 65-7 at ¶ 15). A memo from Assistant Secretary Kathy
D. Williams (“Williams Memo”) was among the documents submitted to Matrix
prior to January 29, 2013.

(Id. at ¶ 16).

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The parties dispute whether that

disclosure was intentional. (Doc. 88-1 at ¶ 16). Though the Williams Memo was in
Dr. Davis’ possession at the time he agreed to schedule Plaintiff’s evaluation, there
is no affirmative evidence that he did, or did not review it. (Id. at ¶ 17; Doc. 65-7 at
¶ 17). At the time the Williams Memo was submitted to Dr. Davis and the second
FFDE was scheduled, Plaintiff had already filed the instant lawsuit against
Defendants. (Doc. 65-7 at ¶ 18). The Williams Memo contained defense counsel’s
mental impressions, conclusions, opinions and legal theories prepared in
anticipation of litigation. (Id. at ¶ 19). The relevance of the memo is disputed. (Id.
at ¶ 20; Doc 88-1 at ¶ 20).
Major Kilpatrick’s January 11, 2013 letter was also among the documents
provided by Defendants to Matrix for purposes of having Plaintiff referred for a
FFDE. (Doc. 52-16 at ¶ 25). One of the questions posed by Matrix to the employer
prior to conducting the FFDE was: “If the FFDE finds that the employee is fit for
duty, would you return the employee to his/her current position or would you
discipline the person for his/her actions.” (Id. at ¶ 26). In response, Captain Davis
indicated “refer for discipline,” based upon information he had received from his
command staff, and/or the LSP Chief of Staff. (Id. at ¶¶ 26-27).
Ultimately, Dr. Davis was retained to provide expert testimony in this case.
(Doc. 65-7 at ¶ 14). It is undisputed that Defendants intended Dr. Davis to function
“as an independent medical examiner who reviews records from another party and
considers such records plus their own observations to render opinion testimony.”

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(Doc. 65-7 at ¶ 22). However, the date of Dr. Davis’ retainer is in dispute. (Doc. 657 at ¶ 14; Doc. 88-1 at ¶ 14).
After receiving the FFDE order, Plaintiff objected, through counsel, to its
demands.

(Doc. 52-16 at ¶ 28).

The FFDE order required Plaintiff to submit

medical, psychological, psychiatric, and pharmacological records, to authorize the
evaluator to submit a written report to LSP, and to waive his right to review the
FFDE report. (Id. at ¶ 22). Defendants contend that this procedure is imposed by
Matrix because of concerns regarding doctor-patient confidentiality. (Doc. 80-1 at ¶
22).

As a result, Defendants refused to withdraw or modify the order and

threatened a penalty, up to and including termination. (Id. at ¶ 29). Plaintiff did
not obey the order. (Id. at ¶ 30). When he failed to show for the examination,
Plaintiff was placed on administrative leave pending investigation for possible
discipline for failure to attend the exam. (Doc. 87-9 at ¶ 21).
On April 3, 2013, Defendants terminated Plaintiff’s employment because he
did not obey the FFDE order. (Doc. 52-16 at ¶ 31; Doc. 87-9 at ¶ 22). Plaintiff
appealed to the State Police Commission, which has stopped proceedings pending
the outcome of Plaintiff’s federal lawsuit. (Doc. 52-16 at ¶ 32).
II.

Standard of Review
Pursuant to the Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In determining whether the movant is entitled to summary judgment,

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the court views the facts in the light most favorable to the non-movant and draws
all reasonable inferences in the non-movant’s favor. Coleman v. Houston
Independent School District, 113 F.3d 528, 533 (5th Cir. 1997).
After a proper motion for summary judgment is made, the non-movant must
set forth specific facts showing there is a genuine issue for trial.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). At this stage, the court does not
evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes.
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied,
502 U.S. 1059 (1992).

However, if the evidence in the record is such that a

reasonable jury, drawing all inferences in favor of the non-moving party, could
arrive at a verdict in that party’s favor, the motion for summary judgment must be
denied. Int’l Shortstop, Inc., 939 F.2d at 1263.
On the other hand, the non-movant’s burden is not satisfied by some
metaphysical doubt as to the material facts, or by conclusory allegations,
unsubstantiated assertions, or a mere scintilla of evidence. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if the
non-movant “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).

In other words, summary judgment will lie only “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with
affidavits if any, show that there is no genuine issue as to any material fact, and

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that the moving party is entitled to judgment as a matter of law.” Sherman v.
Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
III.

Discussion: Plaintiff’s Motions
A.

State Law Nullity Claim

Plaintiff asserts that his termination is an absolute nullity under Louisiana
law because it violates a collection of statutes, entitled “Rights of Law Enforcement
Officers While Under Investigation,” also known as the Peace Officer Bill of Rights.
See La. R.S. 40:2531-2535; La. Civil Code art. 7. Plaintiff further avers that he is
entitled to such protections because: (1) he is a police employee who was “under
investigation with a view to possible disciplinary action,” pursuant to La. R.S.
40:2531(A); (2) LSP placed written adverse comments in his Internal Affairs file
without first permitting him to read and respond, in violation of La. R.S. 40:2533;
(3) the adverse comments were used in evaluating him and ordering him to submit
to a psychological FFDE, (4) he objected to waiving his rights with respect to the
FFDE examination; and (5) LSP unlawfully penalized him for asserting his rights
by terminating his employment, in violation of La. R.S. 40:2535. (Doc. 52-1 at pp. 910).
Even assuming that Plaintiff is correct that these are the applicable
elements, he fails to demonstrate that there are no genuine disputes of material fact
with respect to those elements. First, Defendants’ vehemently contest that Plaintiff
was “under investigation with a view to possible disciplinary action.” (Doc. 80 at pp.
7-13). Instead, they assert that their actions were taken on “a reasonable suspicion

11

of a mental health impairment,” (Doc. 80 at p. 8), and no investigation began until
after Plaintiff’s failure to show for his second FFDE. (Id. at p. 9). In support, they
point to deposition testimony from Major Kilpatrick and Captain Davis that
highlight the difference between assessing psychological fitness and assessing policy
violations. (Id. at pp. 8-10). In his deposition, Captain Davis also testified that a
set procedure is followed in opening administrative investigations, which is
initiated by Colonel Michael Edmonson or his Chief of Staff. (Id. at p. 10). That
procedure was not initiated with respect to Plaintiff until after he failed to attend
the second FFDE.

(Id.).

Given this, Plaintiff’s assertion that “[i]t cannot be

disputed that Butler was under investigation,” (Doc. 52-1 at p. 13), is incorrect.
Accordingly, a genuine dispute of material fact exists regarding whether or not
Plaintiff was “under investigation with a view to possible disciplinary action.”
Resolution of this factual dispute is a necessary predicate to ascertaining whether
the statute in question is applicable to the instant facts at the summary judgment
stage. On this basis alone, summary judgment must be denied.
Additionally, in the alternative, Defendants dispute the constitutionality of
the application of the Peace Officer’s Bill of Rights in the instant case. (Doc. 80 at
pp. 16-20). However, because there are factual issues that must be resolved to
determine whether or not the statute does in fact apply (i.e., whether Plaintiff was

12

“under investigation with a view to possible disciplinary action”), the Court need not
address Defendants’ constitutional argument here. 7
Accordingly, given the existence of material issues of fact, Plaintiff’s motion
for partial summary judgment (Doc. 52-1), and Defendants’ cross-motion for
summary judgment on this issue, must be DENIED.
B.

Rehabilitation Act of 1973

Defendants begin their opposition to Plaintiff’s motion by asserting that
Plaintiff is ineligible for coverage under 42 U.S.C. § 12112(a) because he does not
have a “qualifying disability.” (Doc. 88 at pp. 3-4). However, this point is contrary
to well-established law.
The Rehabilitation Act of 1973 prohibits employment discrimination against
a “qualified individual . . . solely by reason of her or his disability.” 29 U.S.C. §
794(a). The United States Court of Appeals for the Fifth Circuit has summarized
that to qualify for relief under the Rehabilitation Act, a plaintiff must prove that he:
(1) is an “individual with a disability”; (2) is “otherwise qualified” for the job; (3)
worked for a “program or activity receiving Federal financial assistance”; and (4)
suffered discrimination “solely by reason of her or his disability.” Hileman v. City of
Dallas, 115 F.3d 352, 353 (5th Cir. 1997).
At present, the terms “disability” and “individual with a disability” under the
Rehabilitation Act are defined by reference to the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12102. Under the ADA, a “disability” includes (1) “a physical or
As an aside, the Court finds the State of Louisiana’s constitutional challenge of the statute in
question, which was enacted nearly twenty years ago and superficially amended in the Legislature’s
most recent session, extremely questionable.

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mental impairment that substantially limits one or more of the major life activities
of such individual,” (2) “a record of such an impairment,” or (3) “being regarded as
having such an impairment.” 42 U.S.C. § 12102(2). A party is “regarded as having
such an impairment” if the party can show that his or her employer “‘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.’”
Tyler v. La-Z-Boy Corp., 506 F. App'x 265, 267-68 (5th Cir. 2013) (quoting Kemp v.
Holder, 610 F.3d 231, 237 (5th Cir. 2010) and Sutton v. United Air Lines, Inc., 527
U.S. 471, 489 (1999)).
Importantly, “the question of whether an individual's impairment is a
disability under the ADA should not demand extensive analysis.” Neely v. PSEG
Texas, Ltd. P'ship, 735 F.3d 242, 245 (5th Cir. 2013).

“To that end, the [2008

Amendments to the ADA] primarily focus[] on broadening the definition of
‘disability.’” Id. Thus, an individual can establish the “disabled” element of the
prima facie case by showing that he or she was subject to an action prohibited by
the ADA “because of an actual or perceived physical or mental impairment whether
or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.
§ 12102(3)(A) (emphasis added). 8
Defendants urge that Plaintiff must show that his impairment or perceived impairment
substantially limited him from a major life activity. (Doc. 88 at p. 4; Doc. 67-1 at p. 12). However,
Defendants rely on case law that is not current. The ADA was amended on September 25, 2008,
with an effective date of January 1, 2009. ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No.
110-325, 122 Stat. 3553 (2008). After these amendments, such a showing is no longer required. See
42 U.S.C. § 12102(3)(A); Mendoza v. City of Palacios, 962 F. Supp.2d 868 (S.D. Tex. 2013) (in
“regarded as” cases, a plaintiff now need only show that his employer perceived him as having an

8

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Plaintiff contends that Defendants engaged in a number of discriminatory
acts, which evidenced a perception by Defendants that Plaintiff was disabled. 9
(Doc. 87 at pp. 8-29). For example, Defendants asked Plaintiff whether he had been
under the care of a physician or prescribed medication “for anything such as OCD.”
(Doc. 87 at p. 13). They also inquired about whether Plaintiff had “some type of
germ phobia or was paranoid in any way.” (Doc. 67-8 at p. 5). In the performance
evaluations of Plaintiff by his ride-along partners, he was also described as “robotic
like and nervous,” “kind of ‘awkward,’” and “skiddish.” (Doc. 67-10 at pp. 12-13).
Additionally, much of the performance evaluation feedback centered around
suspected “touch issues.” 10 Viewing the facts in the light most favorable to Plaintiff,
the Court finds that given Defendants’ actions during the relevant period, Plaintiff
has presented sufficient evidence to establish a genuine dispute of material fact
from which a jury could conclude that Defendants regarded him as disabled.
With respect to the instant claim, Section 1211(d)(4)(A) of the Americans
with Disabilities Act governs “medical examinations and inquiries.”

Under this

provision, an employer is expressly permitted to require a medical examination and
to make inquiries of an employee as to whether that employee is an individual with
impairment; he is not required to show that he is substantially limited in a major life activity, as is
still required to meet the other two definitions of “disability”).
Specifically, Plaintiff contends that Defendants (1) subjected him to prohibited medical inquiries in
2010 and psychological examinations in 2011 and 2013; (2) used discriminatory standards, criteria
and methods of administering his orientation; (3) segregated him from other troopers; and (4)
coerced him to submit to a second psychological examination in January 2013, retaliated against him
by threatening termination, and then terminated his employment when he objected. (Doc. 87 at p.
9).
9

See, e.g., (Doc. 67-10 at p. 10) (stating that “it is apparent that [Plaintiff] does not really like to
‘touch’ the violator’s paperwork); (Id. at p. 11) (observing Plaintiff “actually touching insurance and
registration paperwork on his stops….. ‘In a normal fashion’”).
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a disability or as to the nature or severity of the disability, if the examination or
inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C.
§ 12112(d)(4)(A).

A plaintiff cannot succeed on a claim under Section 12112(d)

unless the employer obtained the medical information that was disclosed through
an entrance exam or disability-related inquiry. Franklin v. City of Slidell, 936 F.
Supp.2d 691, 711 (E.D. La. 2013) (citations omitted). Additionally, a plaintiff must
allege that he suffered a tangible injury due to the disclosure of the protected
medical information. Id.
Here, Plaintiff argues that Defendants exceeded the scope of permissible
examination by ordering him to submit to a FFDE conducted by an expert witness
the employer retained to provide testimony against him in his pending case. (Doc.
65-1 at p. 15). Plaintiff further asserts that Defendants attempted to use the second
FFDE to circumvent the discovery process. 11 (Doc. 65-1 at p. 16). Thus, according
to Plaintiff, the examination was “litigation related,” not job-related. (Id.).
In support, Plaintiff cites to Defendants’ Memorandum in Opposition to
Plaintiff’s Motion to Compel (Doc. 56), wherein Defendants acknowledged that Dr.
Davis “was specifically retained to offer expert testimony in this case,” citing their
Initial Disclosures of August 17, 2012. (Doc. 56 at p. 4 n.7). Had Dr. Davis’s name
been included in that list, Plaintiff may have had sufficient evidence to confirm his
version of the timeline.

However, Defendants’ motion misstated the facts.

Dr.

Davis’ name was not included in Defendants’ Initial Disclosures of August 17, 2012.
Specifically, Plaintiff avers that Defendants used the FFDE to obtain mental health treatment and
prescription records that Defendants were “having difficulty obtaining through legitimate litigation
discovery process.” (Doc. 65-1 at p. 16).
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(See Doc. 56-3). Therefore, Plaintiff has not offered any affirmative evidence to
confirm the Defendants’ retention of Dr. Davis as an expert prior to the second
FFDE. Plaintiff’s focus on the circumstances surrounding the submission of the
Williams Memo as part of the second FFDE request is equally unavailing, as it fails
to substantiate his assertion that Dr. Davis was a retained expert prior to the
January 2013 FFDE. (See Doc. 65-1 at p. 8).
In opposition, Defendants do not dispute that they received medical
information about Plaintiff through a disability-related inquiry, nor do they dispute
that Plaintiff’s employment was terminated for failure to follow an order requiring
him to submit to the second FFDE. (See Doc 88). However, Defendants contend
that the examination was job-related and consistent with business necessity. (See
Doc. 88 at p. 6; Doc. 67-1 at pp. 17-24). Defendants also dispute the timing of their
retention of Dr. Davis as an expert witness for this matter. (Doc. 88 at p. 7-8).
Curiously, Defendants do not provide the exact date of Dr. Davis’ retention, but
instead point to an April 17, 2013 email from their attorney notifying Plaintiff’s
counsel of their intent to use Dr. Davis as a trial expert in this case. (Id. at p. 8
n.10).
Because the resolution of this timing dispute is critical for resolving whether
Defendants’ actions were job-related and consistent with business necessity,
Plaintiff’s motion for partial summary judgment (Doc. 65-1) must be DENIED.

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IV.

Discussion: Defendants’ Motion
A.

Americans With Disabilities Act
i.

Discrimination under the ADA

The Americans with Disabilities Act (ADA) provides that no covered
employer shall discriminate against a qualified individual with a disability because
of the disability of such individual in regard to the hiring, advancement, or
discharge of employees.

42 U.S.C. § 12112(a).

When considering a motion for

summary judgment in cases involving a claim of discrimination in violation of the
ADA, courts apply the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), which requires that the plaintiff first establish a prima
facie case of discrimination. See McInnis v. Alamo Community College Dist., 207
F.3d 276, 279-280 (5th Cir. 2000) (citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394,
396 (5th Cir. 1995)). 12

Accordingly, the defendant may satisfy its burden on

summary judgment by showing that plaintiff has failed to establish a prima facie
case of discrimination. See Hammond v. Jacobs Field Servs., 499 F. App’x 377, 380
(5th Cir. 2012) (citing McDonnell Douglas Corp., 411 U.S. at 802). To preclude
summary judgment, a plaintiff must then produce sufficient evidence that, when
considered in the light most favorable to the plaintiff, would allow a “reasonable
trier of fact to find” that a prima facie case of discrimination exists. Deas v. River
West, L.P., 152 F.3d 471, 476 (5th Cir. 1998). Once the plaintiff makes his prima
Under this framework, a plaintiff must establish that: (1) he is disabled or is regarded as disabled;
(2) he is qualified for the position; and (3) he was discriminated against because of his disability.
Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007) (citing Gonzales v. City of New
Braunfels, 176 F.3d 834, 836 (5th Cir. 1999)).
12

18

facie showing, the burden then shifts to the defendant-employer to articulate a
legitimate, non-discriminatory reason for the adverse employment action. Once the
defendant articulates such a reason, the burden then shifts back to the plaintiff to
establish by a preponderance of the evidence that the articulated reason was merely
a pretext for unlawful discrimination.

Id. (citing Daigle, 70 F.3d at 396).

Here, Defendants challenge Plaintiff’s ability to establish a prima facie case
of disability discrimination under the “regarded as” disabled theory. (Doc. 67-1 at p.
10). Defendants further contend that even if Plaintiff has established a prima facie
case of discrimination, their actions were warranted as a “business necessity” and
because Plaintiff posed a “direct threat.” (Doc. 67-1 at pp. 16-17; Doc. 94-1 at pp. 45). Defendants would have the burden of proving these defenses at trial, and so,
with respect to these issues, Plaintiff need only show that a genuine issue of
material fact is in dispute or that Defendants have not substantiated an essential
element of their affirmative defense. Further, Plaintiff need not offer all of the
evidence supporting his case, but “only enough evidence from which a jury might
return a verdict in [his] favor.” Int’l Shortstop, Inc., 939 F.2d at 1264 (internal
quotations omitted).
For the reasons outlined previously, the Court is satisfied that Plaintiff has
established the first element of the prima facie case – that Defendants regarded
Plaintiff as disabled.

Thus, to avoid summary judgment, Plaintiff need only

demonstrate that he is qualified for the position, and he was discriminated against
because of his disability. Jenkins, 487 F.3d at 315 (citation omitted).

19

A qualified individual is a person “who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C. § 12111(8). Essential functions
are "fundamental job duties of the employment position . . . not includ[ing] the
marginal functions of the position." 29 C.F.R. §1630.2(n)(1). In assessing whether
an individual is qualified, the ADA requires that consideration be given “to the
employer’s judgment as to what functions of a job are essential.”

42 U.S.C. §

12111(8).
Defendants contend that Plaintiff cannot establish the second element of the
prima facie case because he could not perform the essential functions of his position
as a law enforcement officer, and thus is not a “qualified individual” within the
meaning of 42 U.S.C. § 12111(8). (Doc. 94 at pp. 6-11). In support, Defendants
point to several incidents where Plaintiff allegedly failed to follow procedure while
making various patrol stops. 13 Defendants also contend that in addition to their
own evaluation, they “reasonably relied upon medical evidence to confirm [their]
assessment.” (Doc. 94-1 at p. 8). By contrast, Plaintiff contends that he was a
qualified individual because he received satisfactory evaluations in the weeks
leading up to his first FFDE, as well as after he was permitted to ride alone in

Defendants contend that Plaintiff “failed to properly secure weapons on multiple occasions,” (Doc.
94-1 at p. 7), though they only point to two instances: (1) on December 10, 2010, the Plaintiff did not
move a knife outside of the suspect’s grab area during a mock traffic stop, (Doc 67-5 at p. 4); and (2)
on December 15, 2010, Plaintiff removed the gun of a man with a concealed-carry permit who had
been stopped for speeding, but then ultimately returned the unloaded gun back to its owner. (Doc.
67-10 at p. 8). In the latter incident, Plaintiff was chastised for handing the weapon back because
the owner could “have a bullet in [his] pocket.” (Id.). Defendants also point to the need to instruct
Plaintiff to turn on his cruiser lights when stopped on the highway, and Plaintiff’s tentative driving
while leaving the scene of an accident. (Doc. 67-10 at pp. 10-12).
13

20

March of 2011. Moreover, he continued to work as a road trooper until January 29,
2013, the date of his second FFDE. (Doc. 87 at pp. 7 n.3, 10-12). In further support,
Plaintiff points to testimony from Major Kilpatrick’s deposition that after
interacting with Plaintiff in early January 2013, Major Kilpatrick did not feel that
Plaintiff posed an immediate threat, nor did Plaintiff need to be removed from
patrol. (Id.) (citing Doc. 53-5 at pp. 6-7).
A genuine issue of material fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248.

Under this standard, the Court finds that Plaintiff has alleged

sufficient facts to establish a genuine issue of material fact from which a jury could
conclude that he was qualified to the perform the essential functions of the job.
Plaintiff was employed as a Louisiana State Police officer from September 9,
2000, to April 3, 2013. (Doc. 67-1 at p. 1). Starting in November 2010, Plaintiff was
transferred to Troop G under the command of Captain Madden.

(Id. at p. 2).

Initially, in accordance with standard procedures, Plaintiff was assigned to a series
of ride-alongs with other troopers “to acclimate him to new procedures and
technology.” (Id. at p. 3). The troopers participating in the ride-alongs maintained
logs which documented Plaintiff’s performance. (Id.). Those evaluations contained
mixed assessments of Plaintiff. While Plaintiff’s effectiveness and strengths were
noted on several occasions, 14 his deficiencies were noted on others. 15 However, in

See, e.g., (Doc. 67-4 at p. 4) (noting that Plaintiff “did not display any [noticeable] officer safety
issues”); (Doc. 67-8 p. 10) (noting that Plaintiff “had a very good attitude and his appearance was
excellent”); (Doc. 67-10 at p. 12) (observing that Plaintiff “made good decisions on who he released
(elderly lady who recently had cancer and said seatbelt was uncomfortable, a Trooper’s mother for
14

21

the months leading up to Defendants’ recommendation that Plaintiff submit to a
FFDE, there was no clear indication that Plaintiff was not qualified for the position.
Indeed, on several occasions, Plaintiff’s co-workers noted his improvements, 16 and
opined that although Plaintiff possessed some shortcomings, they could easily be
surmounted with additional training or more experience. 17
After the January FFDE, Dr. Rostow determined that Plaintiff was not fit for
duty, so he was relieved on February 9, 2011. (Doc. 67-1 at p. 5). However, on the
same day, Defendants received a call from Plaintiff’s psychiatrist Dr. James
Patterson, (“Dr. Patterson”) who stated that Plaintiff was fit for duty. (Id. at p. 6).
As a result, Plaintiff was reinstated and returned to work on March 7, 2011, where
he continued to conduct ride-alongs with other troopers. (Id.). Effective March 7,
2012, Plaintiff was permitted to ride alone. (Id.). Defendants continued to evaluate
Plaintiff’s performance, and Plaintiff continued to receive mixed reviews, but

speeding, and the Bossier Parish Sheriff’s mechanic) which I believed that he used some discretion
and common sense”); (Id. at p. 11) (stating that Plaintiff “did a good job”); (Id. at p. 12) (noting that
Plaintiff was “very professional,” had good officer safety, and there were no real issues); (Id.) (noting
that Plaintiff “maintained his officer safety and had no problem ‘handling’ the necessary
paperwork”).
See, e.g., (Doc. 67-10 at p. 4) (Plaintiff’s “sobriety testing was terrible); (Id. at p. 14) (stating that
Plaintiff’s “decision making skills are at best ‘very low’”); (Id. at p. 2) (failing to engage his belt
microphone on multiple occasions); (Id.) (spending an “unreasonable amount of time” investigating
minor accidents).
15

See, e.g., (Doc. 67-10 at p. 10) (noting that Plaintiff “has improved in some areas of his daily patrol
efforts); (Id. at p. 12) (stating that although Plaintiff was “kind of ‘awkward,’” he “is improving”).
16

See, e.g., (Doc. 67-5 at p. 4) (noting Plaintiff’s observed deficiencies “are perishable skills and
should improve with time on patrol”); (Doc. 67-4 at p. 4) (stating the belief that Plaintiff could
“overcome the field sobriety issue [with] more guidance and with practice”).
17

22

Defendants did not seek a second FFDE until January 11, 2013. (See 67-1 at pp. 68).
Thus, although Defendants characterize Plaintiff as “ticking time bomb with
a real and substantial potential for harm,” (Doc. 94-1 at p. 6), Plaintiff continued to
work patrol for months until he was placed on administrative leave pending
investigation for failing to attend his second FFDE. (Doc. 67-1 at pp. 3-9). Indeed,
although Plaintiff was transferred to various teams and given different assignments
at various points, in the period relevant to this litigation, his employment remained
uninterrupted by Defendants except for the brief period in which he was relieved of
duty after the first FFDE. 18 Accordingly, the Court concludes that Plaintiff has
alleged sufficient facts to establish that he was a “qualified individual” for purposes
of the ADA.
The final element of the prima facie case requires proof that the plaintiff was
discriminated against because of his disability. See Jenkins, 487 F. Supp.2d at
1007. Stated differently, Plaintiff must prove that “an adverse employment decision
was made because of his disability.” Kapche v. City of San Antonio, 176 F.3d 840,
842 (5th Cir. 1999).
Defendants contend that “[o]ther than his termination, Plaintiff has failed to
establish that he suffered any adverse employment action.” (Doc. 94-1 at p. 11). In
On February 9, 2011, Dr. Patterson called Defendants to inform them that Plaintiff was in fact fit
for duty. (Doc. 67-1 at p. 6). The following day, Dr. Patterson provided written documentation
asserting the same. (Id.). However, for unknown reasons, Plaintiff did not submit the report to the
DPS until March 2, 2011. (Id.). Plaintiff then returned to work on March 7, 2011. (Id.).
Defendants’ suggest that Plaintiff simply “[chose] to exercise the leave of absence he had been
extended by DPS,” thereby implying that the decision was voluntary. (Id.).
18

23

opposition, Plaintiff avers that Defendants’ took the following discriminatory
actions against Plaintiff because of “the perception that he had a psychological
impairment:” (1) subjecting Plaintiff to psychological evaluations and prohibited
medical inquiries; (2) using discriminatory standards, criteria and methods of
administering Plaintiff’s orientation, (3) segregating and separating Plaintiff from
other troopers; and (4) coercing Plaintiff to submit to a second FFDE in January
2013, “and retaliating against him by threating termination and then terminating
his employment when he objected.” 19 (Doc. 87 at p. 9). Defendants dispute that
these actions constitute adverse employment actions for purposes of an ADA
discrimination claim.
Under the ADA, as in the Title VII context, the Fifth Circuit has adopted a
“strict interpretation of the adverse employment element.” Pegram v. Honeywell,
Inc., 361 F.3d 272, 282 (5th Cir. 2004).

Adverse employment actions consist of

“‘ultimate employment decisions such as hiring, granting leave, discharging,
promoting, and compensating.’” Id. at 282 (quoting Felton v. Polles, 315 F.3d 470,
486 (5th Cir. 2002)). Thus, “where pay, benefits, and level of responsibility remain
the same,” employment actions are typically not considered adverse.

Watts v.

Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999).
Viewing the evidence in a light most favorable to the Plaintiff, the Court
holds that a reasonable jury could find that Plaintiff suffered adverse employment
actions.

First, it is well-established that termination constitutes an adverse

Plaintiff avers that such actions violate 29 C.F.R. §§ 1630.13, 1630.7, 1630.4(a)(2), and 1630.12(a)
and (b). (Doc. 87 at p. 9).
19

24

employment action. See Pegram, 361 F.3d at 282. Moreover, the ADA prohibits
discrimination in the “terms, conditions, and privileges of employment.” 42 U.S.C. §
12112.

This language is broad enough to encompass the actions Plaintiff has

alleged. See 29 C.F.R. § 1630.4(a)(2) (“The term discrimination includes, but is not
limited to, the acts described in §§ 1630.4 through 1630.14 of this part); 29 C.F.R. §
1630.13 (“[I]t is unlawful for a covered entity to require a medical examination of an
employee or to make inquiries as to whether an employee is an individual with a
disability”); 29 C.F.R. § 1630.7 (use of “standards, criteria, or methods of
administration which are not job-related and consistent with business necessity”
are unlawful); 29 C.F.R. § 1630.12 (retaliation, coercion, interference or
intimidation are unlawful). See also Interpretive Guidance to 29 C.F.R. § 1630.5
(“[I]t would be a violation . . . for an employer to limit the duties of an employee
with a disability based on a presumption . . . about the abilities of an individual
with such a disability.”).
Because Plaintiff has produced sufficient evidence to allow “a reasonable trier
of fact to find” that a prima facie case of discrimination exists, Deas, 152 F.2d at
476, the burden shifts to Defendants to proffer legitimate, nondiscriminatory
reasons for its actions. McDonnell Douglas Corp., 411 U.S. at 802.
Defendants’ contend that even if the Court finds that Plaintiff has
established a prima facie case of disability discrimination, their actions were
justified because: (1) Plaintiff posed a direct threat and (2) business necessity
warranted Defendants’ actions. (Doc. 67-1 at pp. 17, 20). Indeed, Defendants assert

25

that DPS would have been “derelict in its public mission” had it not taken the
actions complained about here. (Id. at p. 17).
Under the ADA, employers are permitted to raise an affirmative defense to a
charge of discrimination.

Specifically, an employer may impose a qualification

standard that is job-related and consistent with business necessity. 42 U.S.C. §
12113(a). In addition, a qualification standard “may include a requirement that an
individual shall not pose a direct threat to the health or safety of” himself or others
in the workplace. See 42 U.S.C. § 12113(b). While these two defenses are related,
they require different types of proof.

“Direct threat focuses on the individual

employee, examining the specific risk posed by the employee's disability.” E.E.O.C.
v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000) (citing 29 C.F.R. § 1630.2(r)). “In
contrast, business necessity addresses whether the qualification standard can be
justified as an across-the-board requirement.” Id. Each will be considered in turn.
To constitute a direct threat, an individual must pose a “significant risk to
the health or safety of others that cannot be eliminated by reasonable
accommodation.” 42 U.S.C. § 12111(3). The employer bears the burden of proving
that the employee is a direct threat. Rizzo v. Children's World Learning Ctrs., 84
F.3d 758, 764 (5th Cir. 1996). According to the EEOC's implementing regulations,
the determination that a person poses a direct threat shall be based on an
individualized assessment of the person's “present ability to safely perform the
essential functions of the job.”

29 C.F.R. § 1630.2(r) (providing also that such

assessment “shall be based on a reasonable medical judgment that relies on the

26

most current medical knowledge and/or the best available objective evidence” and
listing four factors relevant to the determination of whether an individual would
pose a direct threat). 20 See also Rizzo, 84 F.2d at 762-63. Moreover, “whether one is
a direct threat is a complicated, fact intensive determination, not a question of law.”
Id. at 764.
Here, there is sufficient evidence for a reasonable jury to conclude that
Plaintiff was not a direct threat to himself, co-workers or the public. Though his
performance was being evaluated and areas of concern were documented,
Defendants did not engage in an interactive process with Plaintiff to determine the
availability of an effective accommodation. See 29 C.F.R. § 1630.2(r). Moreover, the
report issued by Dr. Rostow after the first FFDE indicated that Plaintiff required
“further psychiatric treatment before returning to work.” (Doc. 67-1 at p. 20). Yet,
there is no indication that Plaintiff received any such treatment prior to his March
7, 2011 reinstatement. Had Defendants truly believed that Plaintiff posed a threat
to himself or others, it is doubtful that Plaintiff would have been permitted to
resume work just as he had prior to the FFDE.

Indeed, despite the alleged

deficiencies in his performance, 21 Plaintiff was not relieved of patrol duties until
after he failed to appear for the second FFDE. (Doc. 67-1 at p. 9). Thus, throughout

The four factors to be considered include: “(1) the duration of the risk; (2) the nature and severity
of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of
the potential harm.” 29 C.F.R. § 1630.2(r).
20

Specifically, Defendants point to Plaintiff’s handling of weapons, his alleged “fail[ure] to control
the scene when he stopped violators or investigated a crash,” the discretion exercised by Plaintiff in
issuing tickets, and poor accident investigation. (Doc. 67-1 at p. 17).
21

27

the period relevant to this litigation, other than Plaintiff’s leave of absence, 22
Plaintiff continued to carry a weapon and to perform all of the duties of a state
trooper, including regularly interacting with the public while effecting traffic stops
and investigating accidents. (Id. at pp. 1-9). Accordingly, the Court finds that
Plaintiff has pointed to sufficient evidence from which a rational jury could find that
Defendants’ actions were not justified on the ground that Plaintiff posed a direct
threat to himself and others.
Finally, to establish a business necessity defense, “a defendant must prove by
a preponderance of the evidence that its qualification standards are: (1) uniformly
applied; (2) job-related for the position in question; (3) consistent with business
necessity; and (4) cannot be met by a person with plaintiff's disability even with a
reasonable accommodation.”

Atkins v. Salazar, 677 F.3d 667, 681-82 (5th Cir.

2011).
Rather than articulating how they have met each element required to
establish a business necessity defense, Defendants summarily assert that “the LSP
fitness for duty exam is clearly job related and a business necessity.” (Doc. 67-1 at
p. 24). They also aver that “all of the elements of the Business Necessity defense
have clearly been met in this case.” (Id.) However, short of self-serving conclusory
statements, Defendants offer no specific evidence to support their contentions that
their qualification standards were (1) uniformly applied; 23 (2) job-related; (3)

22

See supra note 9.

With respect to this element, Defendants state that the FFDE is “uniformly applied,” that DPS
contracts with “Matrix, a licensed third-party psychiatrist to perform the exam[s],” and that Matrix

23

28

consistent with business necessity; and (4) could not be met by Plaintiff with a
reasonable accommodation.
The facts also contradict Defendants’ contention that its actions were
warranted as a business necessity. Had Plaintiff truly been exhibiting character
traits which “could potentially lead to catastrophic results,” it seems unlikely that
Plaintiff would have been permitted to ride alone effective March 26, 2012. (Doc.
67-1 at p. 22).

Moreover, although Defendants state that the “uncontroverted

medical evidence demonstrates that Plaintiff had continued issues with paranoid
and irrational thoughts,” (Doc. 67-1 at p. 22), the stark difference between Dr.
Rostow and Dr. Patterson’s assessments regarding Plaintiff’s fitness for duty belies
this assertion.

In a letter dated February 11, 2011, Dr. Patterson and Nurse

Stewart stated that “on January 7, 2011, all of [Plaintiff’s] compulsive behavior and
obsessive thoughts had stopped.” (Doc. 67-17 at p. 1). By contrast, Dr. Rostow’s
February 8, 2011 evaluation characterizes Plaintiff as “paranoid, or unusually
suspicious, anxious, bitter at the treatment he had received from some supervisors,
and was defensive.” (Doc. 67-18 at p. 2). The very purpose underlying the two
evaluations was vastly different as well. As Dr. Rostow’s report clarified, Matrix’s
recommendations were “not meant for clinical purposes,” and not intended “to be
used alone,” but rather were intended “to be part of an overall review of [Plaintiff’s]

uses a specific protocol in rendering its decision. (Doc. 67-1 at p. 24). However, Defendants cite to no
evidence in the record to support these assertions. Summary judgment cannot be granted on the
basis of bare assertions. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (“mere conclusory
allegations are not competent summary judgment evidence”).
29

behavior,” and a “form of consultation only.” (Doc. 67-18 at pp. 1, 2, 7). By contrast,
Plaintiff sought out clinical treatment by seeing Dr. Patterson and Nurse Stewart.
Lastly, Defendants’ citation to case law from other circuits, specifically,
Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir. 1999) and Brownfield
v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010), regarding a different police
department’s procedure with facts that are not analogous to the instant case is
equally unavailing. The police officer in Watson had a history of overreacting, and
was found to be unusually defensive and antagonistic towards his co-workers.
Watson, 177 F.3d at 934. There also was a litany of internal affairs investigations,
disciplinary actions taken and grievances filed against the officer. Id. Eventually,
the officer was relieved of duty without pay prior to undergoing his FFDE. Id.
Similarly, the police officer in Brownfield also had a more checkered past than the
Plaintiff here.

He swore at his superiors, disregarded orders, and was highly

emotional numerous occasions.

Brownfield, 612 F.3d at 1143.

The Police

Department also received a domestic violence call from the officer’s estranged wife,
though charges were never filed. Id. Ultimately, like the police department in
Watson, the police department in Brownfield took action to mitigate the possible
threat posed by the officer before he underwent a FFDE by placing him on
administrative leave. Id. at 1143-44. Plaintiff, by contrast, was only removed from
patrol duty briefly after the first FFDE, and as stated previously, was reinstated
after his own psychiatrist affirmed his fitness for duty shortly thereafter. (Doc. 67-1
at pp. 5-6).

30

Given these inconsistencies, the Court concludes that there is evidence from
which a rational jury could find Defendants actions were not warranted as business
necessity. Accordingly, there being material issues of fact regarding Plaintiff’s ADA
discrimination claim, Defendants’ motion for summary judgment is DENIED.
ii.

Harassment under the ADA

“A cause of action for disability-based harassment is ‘modeled after the
similar claim under Title VII.’” Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d
229, 235 (5th Cir. 2001); McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558,
563 (5th Cir.1998). Thus, to succeed on a claim of disability-based harassment, the
plaintiff must prove:
(1) that she belongs to a protected group; (2) that she was subjected to
unwelcome harassment; (3) that the harassment complained of was
based on her disability or disabilities; (4) that the harassment
complained of affected a term, condition, or privilege of employment;
and (5) that the employer knew or should have known of the
harassment and failed to take prompt, remedial action.
Id. (internal quotations omitted) (quoting Rio v. Runyon, 972 F. Supp. 1446, 1459
(S.D. Fla. 1997)). A plaintiff need not establish the fifth element if the alleged
harasser is a supervisor with immediate or higher authority over the employee.
Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
Plaintiff contends that “[t]he discriminatory actions taken against [him] as
described [in his discrimination claim] . . . viewed in their totality, constitute
harassment based on disability.” (Doc. 87 at p. 31). Simply put, this is insufficient.
A

workplace

environment

is

hostile

when

it

is

“permeated

with

discriminatory intimidation, ridicule, and insult, that is sufficiently pervasive to
31

alter the conditions of the victim's employment.” Dediol v. Best Chevrolet, Inc., 655
F.3d 435, 441 (5th Cir. 2011) (quoting Alaniz v. Zamora–Quezada, 591 F.3d 761,
771 (5th Cir. 2009)). In determining whether a working environment is hostile or
abusive, all circumstances must be considered, including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993).

Incidental or intermittent age-based comments, disrespect, rudeness, or

isolated incidents (unless exceptionally serious) are not discriminatory changes in
the terms and conditions of a worker's employment. Butler v. Ysleta Indep. School
Dist., 161 F.3d 263, 269 n.3 (5th Cir. 19982) (sexual harassment context) (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Even viewing the facts in a light most favorable to Plaintiff, Defendants’
actions simply do not approach a level of conduct that would “destroy [Plaintiff’s]
opportunity to succeed in the workplace.”
omitted).

Hockman, 407 F.3d at 326 (citation

Having failed to point to sufficient evidence from which a jury could

conclude that the harassment complained of was severe or pervasive enough to
affect a term, condition, or privilege of his employment, Plaintiff cannot overcome
Defendants’ motion for summary judgment.
Accordingly, Defendants’ motion for summary judgment on Plaintiff’s ADA
harassment claim is GRANTED.

32

B.

Alleged Violation of Plaintiff’s Right to Privacy

Defendants’ final argument concerns Plaintiff’s claims that the orders to
submit for the FFDEs and the attendant requirement that Plaintiff produce medical
and psychiatric records constituted an actionable invasion of privacy. (See Doc. 67-1
at pp. 24-27; Doc. 94-1 at p. 2).
“The tort of invasion of privacy is directed at redressing the damage which an
individual suffers when legally recognized elements of his right to privacy have
been violated.” Tate v. Woman’s Hosp. Found., 2010-0425 (La. 1/19/11), 56 So. 3d
194, 197 (citing Gorman v. Swaggart, 524 So.2d 915, 920 (La. App. 4 Cir. 1988)).
Louisiana law recognizes a cause of action for unreasonable disclosure of
embarrassing private facts where “defendant's conduct is unreasonable and
seriously interferes with the plaintiff's privacy interest.” See Daly v. Reed, 95-2445
(La. App. 4 Cir. 2/15/96), 669 So.2d 1293, 1294.

“To be actionable, it is not

necessary that there be malicious intent on the part of the defendant; rather the
reasonableness of the defendant's conduct in a breach of privacy action is
determined by balancing the plaintiff's interest in protecting his privacy from
serious invasions with the defendant's interest in pursuing his course of conduct.”
Id.
Here, Defendants first argue that any alleged invasion of privacy claim
related to Plaintiff’s first FFDE has prescribed. (Doc. 67-1 at p. 24). Plaintiff does
not dispute this, and the Court agrees. See La. C.C. art. 3492 (“Delictual actions
are subject to a liberative prescription of one year.”). However, Plaintiff is pursuing

33

his privacy claim with respect to the second FFDE. (Doc. 87 at pp. 31-32). With
respect to that claim, Defendants assert that the case of White v. Gilless, 47 F.3d
1172 (6th Cir. 1995) “establishes that Butler had no right of privacy” over the
psychiatric records he was required to submit. (Doc. 67-1 at p. 26; Doc. 94-1 at p. 2).
However, this is simply not the case. Not only are the facts of White not analogous
to the facts of the instant case, Sixth Circuit precedent does not “establish”
outcomes for courts in the Fifth Circuit. Thus, having failed to demonstrate that
there is no genuine dispute as to any material facts, Defendants are not entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a).
Accordingly, Defendants’ motion for summary judgment on Plaintiff’s
invasion of privacy claim is DENIED.

34