Taylor et al v. City of Shreveport et al
Filing
47
MEMORANDUM RULING granting in part and denying in part 39 Motion for Summary Judgment. Insofar as the motion seeks summary judgment on the Plaintiffs' Rehabilitation Act claims, the motion is DENIED. Insofar as the motion seeks dismissal of the Plaintiffs' claims under Louisiana disability discrimination law, the motion is GRANTED and those claims are DISMISSED WITH PREJUDICE. Insofar as the motion seeks to dismiss the Plaintiffs' Louisiana constitutional claims, the motion is DENIED. IT IS FURTHER ORDERED that the parties contact chambers by 8/31/2016 to set a scheduling conference. Signed by Judge Elizabeth E Foote on 8/24/2016. (crt,Keifer, K)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
FRED TAYLOR, ET AL.
CIVIL ACTION NO. 13-2227
VERSUS
JUDGE ELIZABETH ERNY FOOTE
CITY OF SHREVEPORT, ET AL.
MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before the Court is a motion entitled “Motion for Summary Judgment and Motion To
Dismiss,” filed by the Defendants. Record Document 39. The Plaintiffs, who are all officers
of the Shreveport Police Department ("SPD"), allege that SPD's sick-leave policy violates
the Rehabilitation Act, Louisiana disability discrimination law, and the right to privacy under
the Louisiana Constitution. The Defendants argue that they are entitled to summary
judgment on the Rehabilitation Act claims because the sick-leave policy is job-related and
consistent with business necessity. The Defendants also argue that the state law claims
should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons
announced below, the Court denies the Defendants’ motion with respect to the
Rehabilitation Act claims, grants the motion with respect to the Louisiana disability
discrimination claims, and denies the motion with respect to the Louisiana constitutional
claims.
I.
Factual & Procedural Background
The Plaintiffs initially alleged that several aspects of SPD’s sick-leave policy, which
is memorialized in a general order entitled “SPD 301.06,” and related conduct by SPD
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officers violated the Americans with Disabilities Act of 1990 (“ADA”), the Rehabilitation Act,
and Louisiana law. The Court dismissed the Plaintiffs’ federal claims under Rule 12(b)(6)
and dismissed the Plaintiffs’ remaining state law claims for want of jurisdiction. Record
Document 24. On appeal, the Fifth Circuit affirmed dismissal of all of the Plaintiffs’ federal
claims except their claim that SPD 301.06's inquiry into whether an officer suffers from a
“chronic condition” violates the Rehabilitation Act. Taylor v. City of Shreveport, 798 F.3d
276, 286-87 (5th Cir. 2015). The Fifth Circuit held that SPD 301.06's chronic-condition
inquiry gives rise to a prima facie claim of discrimination under the Rehabilitation Act. Id.
at 286. The court further determined that while it was premature for it to evaluate
whether the Defendants could rebut the Plaintiffs’ prima facie case, "[o]n remand, the City
will have the burden to show that this [chronic-condition] aspect of the SPD-3 Form
requirement is ‘job-related and consistent with business necessity.'" Id. (citation omitted).
With a federal claim before the Court again, the Fifth Circuit also vacated dismissal of the
state law claims, allowing the Court on remand to decide whether to exercise supplemental
jurisdiction over them. Id. at 289.
SPD 301.06 provides that sick leave must be documented after an officer uses any
two days of undocumented sick leave in a calendar year.1 Record Document 42-2, pp. 7-8.
When an officer uses documented sick leave, a healthcare provider must complete a
certificate indicating, among other things, if the “condition [that caused the officer’s
1
SPD 301.06 was updated in 2015. Record Document 42-2, p. 2. Except for
asking about infectious diseases, which is explained in the text below, SPD did not
materially alter the relevant portions of SPD 301.06 when it revised the policy.
Compare Record Document 42-2, pp. 7-8, with Record Document 3-2, pp. 7-8.
Page 2 of 20
absence] is chronic and whether intermittent absences related to the condition may be
possible.” Record Document 42-2, p. 8. The healthcare provider also must indicate the
diagnosis, treatment, and ability of the officer to return to work. Record Document 42-2,
p. 8. In practice, the healthcare provider only completes the chronic-condition component
of the sick-leave certificate if the officer is able to return to work. Record Document 39-1,
p. 2.
A form that the healthcare provider may, but need not, use to complete the
certificate also asks whether there are “infectious or contagious concerns” relating to the
officer’s absence.2 Record Document 42-2, p. 12.
The officer must furnish the sick-leave certificate to his timekeeper or supervisor “as
soon as possible when leaving the medical appointment,” but apparently no later than upon
his return to work, to “permit the timekeeper/supervisor to make staffing adjustments and
maintain accurate attendance records.” Record Document 42-2, p. 8. The supervisor or
timekeeper then must forward the certificate to SPD’s human resources office, where SPD
301.06 instructs SPD to exclusively maintain sick-leave certificates or any copies thereof.
Record Document 42-2, p. 8. If the certificate indicates that the officer’s condition is
chronic, then further certification of the officer’s chronic condition is required. Record
2
The healthcare provider may complete the sick-leave certificate on either a
specific SPD-3 form or on the provider’s letterhead. The only difference between these
formats is that the SPD-3 form alone asks whether there are any infectious concerns
related to the officer’s absence. See Record Document 42-2, p. 12. The Fifth Circuit
has determined, however, that because the healthcare provider must disclose the same
information about the officer’s chronic condition in either format, the format chosen by
the healthcare provider in disclosing information regarding the officer’s chronic
condition is immaterial to the issue of whether requiring the disclosure of that
information violates the Rehabilitation Act. Taylor v. City of Shreveport, 798 F.3d 276,
286 n.47 (5th Cir. 2015).
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Document 42-2, p. 8. Once that certificate is on file with human resources, the officer may
document absences related to the condition by completing a sick-leave certificate directly
without involving a healthcare provider. Id. An officer may also voluntarily complete a
chronic-condition certificate. Record Document 42-4, pp. 2-3.
According to Defendant Duane Huddelston, Deputy Chief of SPD, the purpose of
inquiring into an officer’s chronic condition after documented sick leave is four-fold. Record
Document 39-1. First, the policy helps SPD determine whether an officer is able to perform
the essential functions of his job. Record Document 39-1, p. 4. Second, the policy ensures
the safety of other officers. Record Document 39-1, p. 4. Third, the policy “assists the
Department in scheduling officers in order to provide adequate police coverage.” Record
Document 39-1, p. 3. Fourth, the policy allows SPD “to determine if an additional medical
examination is necessary before allowing an officer to return to work.” Record Document
39-1, p. 4.
The Plaintiffs also allege that in practice, SPD does not properly maintain sick-leave
certificates, allowing for the casual disclosure of officers’ medical information to other
officers and, in rare instances, persons beyond SPD. Record Document 42-4, pp. 3-5.
Specifically, Michael Carter (“Carter”), an SPD officer and former Plaintiff, attests that
superiors leave other officers’ sick-leave certificates on their desks or other places in plain
sight. Record Document 42-4, pp. 3-4. Although Carter indicates that exposure of the
sick-leave certificates is usually unintentional, he alleges that in one instance an officer
deliberately posted medical information regarding another officer on Facebook. Record
Document 42-4, pp. 4-5. Plaintiff Jessica Walker (“Walker”) also alleges that while she was
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taking sick leave, Lt. Rita James discussed her medical condition with other officers on
multiple occasions to insinuate that Walker had fabricated the condition causing her
absence. Record Document 16, p. 9; Record Document 19, p. 1.
The Defendants now move to dismiss all of the Plaintiffs’ claims. They argue that
the Court should issue summary judgment on the Rehabilitation Act claims because they
have shown as a matter of law that the inquiry falls within the business-necessity exception
established by statute. The Defendants also urge the Court to dismiss both of the Plaintiffs’
state law claims pursuant to Rule 12(b)(6). There they argue that the Plaintiffs’ claims
under Louisiana’s disability discrimination statute fail because the Plaintiffs have not plead
that they are disabled persons. And they argue that the Plaintiffs have failed to plead a
claim of invasion of privacy under the Louisiana Constitution because they have not alleged
that their medical information was published to a third party.
II.
Standard
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure "if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). Rule 56(c) "mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial."
Id. If the party moving for summary judgment fails to satisfy its initial burden of
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demonstrating the absence of a genuine issue of material fact, the motion must be denied,
regardless of the nonmovant's response. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
If the motion is properly made, however, Rule 56(c) requires the
nonmovant to go "beyond the pleadings and designate specific facts in the record showing
that there is a genuine issue for trial." Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047
(5th Cir. 1996) (citations omitted). While the nonmovant's burden may not be satisfied by
conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or
a scintilla of evidence, Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047, all factual
controversies must be resolved in favor of the nonmovant, Cooper Tire & Rubber Co. v.
Farese, 423 F.3d 446, 456 (5th Cir. 2005).
To survive a challenge under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Courts are required to accept the plaintiff’s “well-pleaded” facts as true
and construe the complaint in a light favorable to that plaintiff. In re Great Lakes Dredge
& Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (citations omitted). Nonetheless, courts are
not required to accept the veracity of legal conclusions framed as factual allegations. Iqbal,
556 U.S. at 678 (reasoning that under Rule 8, it is not sufficient to merely recite a cause
of action’s elements with supporting conclusory statements). Overall, determining when
a complaint states a plausible claim is a context-specific task, requiring courts to rely on
judicial experience and common sense to assess when a complaint crosses the line from
conceivable to plausible. Id. at 678-80.
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A claim is facially plausible when a plaintiff pleads factual content that permits the
court to reasonably infer a defendant is liable for the alleged misconduct. Iqbal, 556 U.S.
at 678-79. This plausibility standard is not a probability requirement, “but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint
pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly,
550 U.S. at 557).
III.
Discussion
A. Rehabilitation Act Claims
The Defendants argue that they are entitled to summary judgment on the Plaintiffs’
Rehabilitation Act claims because the chronic-condition component of SPD 301.06 is a
business necessity. Section 504 of the Rehabilitation Act prohibits any program or activity
receiving federal financial assistance from discriminating against persons solely because
of their disability. 29 U.S.C. § 794(a) (2012). The complaint alleges that the City of
Shreveport receives federal funds for SPD and the Defendants provide no evidence
suggesting otherwise. Record Document 16, p. 7. SPD also qualifies as a “program or
activity” within the meaning of the Rehabilitation Act. Taylor, 798 F.3d at 283. The
Rehabilitation Act further defines discrimination by incorporating the definitions of
discrimination set forth in Title I of the ADA. 29 U.S.C. § 794(d). Those definitions provide
in pertinent part that:
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
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examination or inquiry is shown to be job-related and consistent with
business necessity.
42 U.S.C. § 12112(d)(4)(A).3 To establish a prima facie claim that a medical inquiry
violates the Rehabilitation Act, the plaintiff must show that the inquiry is “intended to
reveal or necessitates revealing a disability.” Taylor, 798 F.3d at 284 (quoting Lee v. City
of Columbus, 636 F.3d 245, 255 (6th Cir. 2011)).
A defendant may rebut the plaintiff’s prima facie case by demonstrating, pursuant
to the language of the ADA, that the inquiry is “job-related and consistent with business
necessity.” Id. at 286 (quoting 42 U.S.C. § 12112(d)(4)(A)). To establish that SPD
301.06's chronic-condition inquiry qualifies as business necessity under § 12112(d)(4)(A),
the Defendants have the burden of satisfying a two-pronged test. See Conroy v. New York
State Dep't of Corr. Servs., 333 F.3d 88, 97-98 (2d Cir. 2003).4 First, the Defendants must
demonstrate that the business necessity they seek to promote or protect through SPD
301.06's chronic-condition inquiry is “vital to the business.”
See id.
Second, the
Defendants must show that the chronic-condition inquiry is “no broader or more intrusive
than is necessary” to further that business necessity. See id. The Defendants argue that
3
The Plaintiffs have not asserted discrimination claims directly under the ADA
because they have not alleged that they qualify as disabled persons as the ADA defines
that term. Unlike the Rehabilitation Act, the ADA requires that the plaintiff demonstrate
that he is disabled in order to invoke the statute’s protections for disabled persons. See
Taylor, 798 F.3d at 284.
4
The Fifth Circuit has not espoused standards for the business-necessity
exception under 42 U.S.C. § 12112(d)(4)(A). See Franklin v. City of Slidell, 969 F. Supp
2d 644, 655 (E.D. La. 2013). However, Conroy v. New York State Department of
Correctional Services, 333 F.3d 88 (2d Cir. 2003), is generally perceived as the lead
case on the topic.
Page 8 of 20
the chronic-condition inquiry in SPD 301.06 serves four different business necessities: (1)
officers’ fitness for duty, (2) the safety of other officers when a sick officer returns to work,
(3) efficient scheduling of officer shifts, and (4) ensuring that a medical examination is not
necessary before allowing an officer to return to work.5 The Court addresses each of these
proposed business necessities in turn.
i. Fitness for Duty
The Defendants first must show that officers’ fitness for duty is vital to SPD’s
business. See Conroy, 333 F.3d at 97. Ensuring that employees are physically and
psychologically fit to perform their duties qualifies as a business necessity that is vital to
the business. Pennsylvania State Troopers Ass'n v. Miller (PSTA), 621 F. Supp. 2d 246, 257
(M.D. Pa. 2008). Further, “a police department must ensure that its officers are in peak
physical and mental condition.” Taylor, 798 F.3d at 286 (citing Crain v. Bd. of Police
Comm'rs of Metro. Police Dep't of City of St. Louis, 920 F.2d 1402, 1409 (8th Cir. 1990)).
Ensuring that SPD officers are physically and mentally able to perform the essential
functions of their rob is therefore vital to the business of SPD.
Next, the Defendants must demonstrate that the chronic-condition component of
SPD 301.06 is “no broader or more intrusive than is necessary” to furthering SPD’s need
to ensure its officers are fit for duty. See Conroy, 333 F.3d at 98. The chronic-condition
component of SPD 301.06 fails this test in two respects. First, the events triggering an
5
In their reply brief, the Defendants stated that another justification for requiring
the disclosure of a chronic condition is to ensure that “all officers are in peak physical
and mental condition.” The Court construes this justification as a variant of the fitnessfor-duty justification.
Page 9 of 20
inquiry into an officer’s chronic condition under SPD 301.06 do not sufficiently suggest that
the officer is unfit to perform his duties. Generally, an employer may inquire into a
disability even before work performance begins to decline if “the employer can identify
legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or
her duties.” Id.; accord Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010)
(medical examination can meet business necessity exception “if the employer is faced with
‘significant evidence that could cause a reasonable person to inquire as to whether an
employee is still capable of performing his job.’” (quoting Sullivan v. River Valley Sch. Dist.,
197 F.3d 804, 811 (6th Cir. 1999))). Taking a few days of sick leave, by itself, does not
constitute a legitimate, non-discriminatory reason to doubt a law enforcement officer’s
ability to perform his duties. See PSTA, 621 F. Supp. 2d at 250, 265 (no legitimate, nondiscriminatory reason to doubt a correction officer’s ability to perform duties after absence
of only one day); Fountain v. N.Y. State Dep't of Corr. Servs., No. 99-CV-389, 2005 WL
1502146, at *7 (N.D.N.Y. June 23, 2005) (same for absence of four consecutive days).
Under SPD 301.06, SPD inquires into an officer’s chronic condition after he takes any three
days of sick leave in a calendar year. SPD 301.06 is therefore broader than necessary
because its chronic-condition inquiry is not triggered by a legitimate, non-discriminatory
reason to doubt an officer’s capacity perform his duties. See PSTA, 621 F. Supp. 2d at
265; Fountain, 2005 WL 1502146, at *7.
Second, even if SPD 301.06 were to require a legitimate, nondiscriminatory reason
to doubt job performance before it required a chronic-condition inquiry, the inquiry would
still be broader than necessary because it requires disclosure of chronic conditions
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regardless of whether they affect job performance or attendance. Inquiries “must be
limited in scope to what is needed to make an assessment of the employee’s ability to
work.” Scott v. Napolitano, 717 F. Supp. 2d 1071, 1083 (S.D. Cal. 2010) (quoting EEOC
Compliance Manual 902:0190 (2002)). As written, SPD 301.06 instructs the healthcare
provider to “state if the condition is chronic and whether intermittent absences related to
the condition may be possible.” Record Document 42-2, p. 8. The inclusion of “and” in the
directive means that the disclosure of a chronic condition is not contingent on the condition
causing intermittent absences. Moreover, even if this defect were cured, intermittent
absences alone are not indicative of an officer’s fitness for duty. As a result, SPD 301.06's
chronic-condition inquiry is broader than necessary because it is “not limited in scope to
what is needed to make an assessment of the employee’s ability to work.” Scott, 717 F.
Supp. 2d at 1083. Because the Defendants have failed to show as a matter of law that
SPD 301.06 is no broader or more intrusive than is necessary to ensure that SPD officers
are fit for duty, the asserted business necessity of officers’ fitness for duty does not entitle
the Defendants to summary judgment. See Conroy, 333 F.3d at 98.
The Defendants argue that Fountain v. New York State Department of Correctional
Services is distinguishable from this matter. In Fountain, the inquiry at issue required New
York correctional officers who were on sick leave for four or more consecutive days to
provide medical documentation for their absence that indicated, among other things, a
general diagnosis of the cause of their absence. 2005 WL 1502146, at *1-2. In holding
that fitness for duty did not qualify as a business necessity, the court reasoned that the
diagnosis inquiry failed to ensure officers were fit for duty in part because the department
Page 11 of 20
of correctional services did not require officers to submit their documentation immediately
upon returning to work. Id. at *7.
The Defendants distinguish this matter from Fountain on two grounds. First, SPD,
unlike the defendant in Fountain, does require officers taking documented sick leave to
submit a sick-leave certificate as soon as they return to work. Second, unlike the inquiry
in Fountain, the inquiry at issue in this suit seeks information related to an officer’s chroniccondition, not an officer’s general diagnosis. The Defendants’ first point, though well taken
in its own right, fails to account for the other reasons that this Court and the court in
Fountain determined the inquiries before them did not qualify as a business necessity. In
Fountain, as in this matter, the threshold problem with the inquiry is that the event
triggering the inquiry, a few days of sick leave, is not indicative of an officer’s fitness for
duty. See id. Furthermore, the fact that SPD requires prompt submission of a sick-leave
certificate does not cure the overly broad language in SPD 301.06's chronic-condition
inquiry. The Defendants’ second point is inapposite because it mistakes the issue before
the Court. The Fifth Circuit has already held that the chronic-condition inquiry in SPD
301.06 gives rise to a prima facie claim of discrimination under the Rehabilitation Act.
Taylor, 798 F.3d at 286. Thus, the burden is now on the Defendant to show that there is
a business necessity justifying the presumptively illegal chronic-condition inquiry, not to
show that the chronic-condition inquiry does not satisfy the first prong of our inquiry.
The Defendants also argue that the policy is no more intrusive than necessary
because it does not require the healthcare provider to disclose the nature of the chronic
condition, instead requiring only that the provider disclose the fact that the officer suffers
Page 12 of 20
from a chronic condition and whether intermittent absences related to the condition may
be possible. Record Document 45, pp. 3-4. This is not necessarily so. The policy provides
that “if the condition is chronic, evaluation and certification is required within each twelvemonth period.” Record Document 42-2, p. 8.
Although neither party provides any
information on the extent of this further certification and evaluation, its existence creates
a dispute of material fact that the Court must resolve in favor of the Plaintiffs at this stage
in the litigation. The Defendants’ assertion that SPD 301.06 does not require the disclosure
of the nature of an officer’s chronic condition is therefore unavailing.
ii. Officer Safety
The Defendants next contend that ensuring the safety of other SPD officers
qualifies as a business necessity. Workplace safety constitutes a business necessity that
is vital to SPD. See Scott, 717 F. Supp. 2d at 1083. However, the Defendants have failed
to meet their burden of showing that as a matter of law, the chronic-condition inquiry in
SPD 301.06 is no broader or more intrusive than necessary to further this interest. The
chronic-condition inquiry in SPD 301.06, as discussed above, is generic and does not limit
itself to chronic conditions that could endanger other officers. Although a form that the
healthcare provider may use to complete a sick-leave certificate asks the provider to
indicate whether the absence is related to an infectious disease, that portion of the sickleave form is not challenged by the Plaintiffs. The Defendants have therefore failed to
demonstrate as a matter of law that officer safety qualifies as a business necessity under
§ 12112(d)(4)(A).
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iii. Scheduling
The Defendants argue that ensuring the efficient scheduling of officers qualifies as
a business necessity. Because “maintain[ing] adequate coverage on all shifts to manage
daily law enforcement tasks” is of paramount interest to any law enforcement agency,
ensuring continuity in scheduling constitutes a business necessity that is vital to SPD. See
PSTA, 621 F. Supp. 2d at 255. The Defendants, however, have failed to show that the
chronic-condition inquiry is, as a matter of law, no broader or more intrusive than
necessary to ensure efficient scheduling of officer shifts. Again the critical defect in the
chronic-condition is that it is overly broad, i.e., it is not limited to chronic conditions that
could upset SPD’s ability to schedule officer shifts. The Defendants have therefore failed
to demonstrate as a matter of law that scheduling qualifies as a business necessity under
§ 12112(d)(4)(A).
iv. Whether an Officer Requires Further Medical Testing
The Defendants finally argue that determining whether an officer requires further
medical testing qualifies as a business necessity. The Defendants have failed to provide
sufficient facts to establish that the further medical testing, by itself, constitutes a business
necessity that is vital to SPD. By Defendant Duane Huddleston’s own admission, the
chronic-condition portion of the sick-leave certificate is only completed when the healthcare
provider clears the officer for full duty. Because the officer would already be cleared for
work when disclosing a chronic condition, the Court can find no vital interest in SPD
needing to further test the officer.
Consequently, the Defendeants have failed to
demonstrate as a matter of law that any of their proffered justifications for the chronicPage 14 of 20
condition component of SPD 301.06 qualify as a business necessity under 42 U.S.C. §
12112(d)(4)(A). The Court must therefore deny the Defendants’ motion for summary
judgment with respect to the Plaintiffs’ Rehabilitation Act claims.
B. Disability Discrimination Claims under Louisiana Law
The Defendants contend that the Court should dismiss the Plaintiffs’ claims under
Louisiana’s disability discrimination statutes, see La. Stat. Ann. §§ 23:322-324 (2015),
because the Plaintiffs have not alleged that they are disabled. Under Louisiana law, “no
otherwise qualified person with a disability shall, on the basis of a disability, be subjected
to discrimination in employment.” Id. § 23:323. To establish a prima facie case under
section 23:323, the Plaintiffs must show that (1) they suffer from a disability, as defined
by the statute, (2) they are qualified for their jobs, and (3) an adverse employment
decision was made solely because of the disability. Thomas v. La. Casino Cruises, Inc.,
2003-1937, p. 3 (La. App. 1 Cir. 6/25/04), 886 So. 2d 468, 470 (citation omitted). Section
23:322 defines a person with a disability as “any person who has a physical or mental
impairment which substantially limits one or more of the major life activities, or has a
record of such an impairment, or is regarded as having such an impairment.” La. Stat.
Ann. § 23:322(3). “Major life activities” under the statute include “functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working.” Id. § 23:322(7).
Nowhere in the Plaintiffs’ original or two amended complaints do the Plaintiffs either
directly plead that they are disabled persons or allege facts from which the Court could
plausibly infer that they are disabled. Although the Plaintiffs assert in their rebuttal to the
Page 15 of 20
Defendants’ uncontested statement of facts that Officer Walker suffers from chronic
migraine headaches, Record Document 42-1, p. 4, this assertion is not contained in the
complaint and is otherwise wholly unsupported by any evidence. Having failed to plead
that they are disabled persons, the Plaintiffs have failed to state claims of disability
discrimination under Louisiana law that are entitled to relief. See Thomas, 2003-1937, at
3, 886 So. 2d at 470; Twombly, 550 U.S. at 570. The Court accordingly dismisses with
prejudice the Plaintiffs’ claims of disability discrimination under Louisiana law. See Fed. R.
Civ. P. 12(b)(6).
B. Invasion of Privacy Claims under the Louisiana Constitution
The Defendants argue that the Plaintiffs have failed to state viable claims that the
Defendants violated the Plaintiffs’ right to privacy under the Louisiana Constitution.6 Article
I, section 5 of the Louisiana Constitution provides in relevant part that “[e]very person shall
be secure in his person, property, communications, houses, papers, and effects against
unreasonable searches, seizures, or invasions of privacy.” La. Const. art. I, § 5. The
Plaintiffs allege that the Defendants violated their right to privacy under the Louisiana
Constitution when (1) an SPD officer published medical information about another SPD
officer on Facebook, (2) Lt. Rita James discussed Officer Walker’s medical condition with
other officers on multiple occasions, and (3) SPD implemented the chronic-condition
6
In Louisiana, an invasion of privacy may give rise to a claim under either Article
I, section 5 of the Louisiana Constitution or article 2315 of the Louisiana Civil Code as a
tort claim. See Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, 1388 (La. 1979).
The Plaintiffs, however, have only asserted constitutional privacy claims against the
Defendants.
Page 16 of 20
provision of SPD 301.06.
As to the first allegation, the Plaintiffs lack standing to assert any claim stemming
from the Facebook post because their medical information was never allegedly published.
According to Officer Carter, the publication of medical information on Facebook involved
Richard Turpin and Rod Demery, neither of whom are Plaintiffs. Record Document 42-4,
p. 5. Because the Plaintiffs failed to plead that the Facebook incident caused them to
suffer injury in fact, they lack standing to assert any claim arising therefrom. See Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
The second and third allegations, however, survive 12(b)(6) dismissal. Although the
Louisiana Supreme Court has dedicated scant attention to constitutional privacy claims,7
at least one lower Louisiana court has held that the Louisiana Constitution prevents a state
employer from disclosing an employee’s medical records to third parties. See Fox v. City
of Alexandria, 2007-810 (La. App. 3 Cir. 12/5/07), 971 So. 2d 468. In Fox, an employee
of the city of Alexandria, Louisiana, sued the city for disclosing her medical history to a
mortgage lender in response to the lender’s query about whether she had accrued any
7
See State v. Skinner, 2008-2522, p. 6 (La. 5/5/09), 10 So. 3d 1212, 1216 (“The
reasonable expectation of privacy in medical and prescription records is res nova to this
Court."). The Court notes that while Skinner is the only decision from the Louisiana
Supreme Court regarding medical information and the constitutional right to privacy in
Louisiana, its holding is not instructive for the issues before the Court because it only
addressed whether law enforcement must seek a warrant before subpoenaing medical
and prescription records kept by medical providers and pharmacies. See id. 2008-2522,
pp. 6-10, 10 So. 3d at 1216-18. Although the holding was guided in part by the
substantive due process right to privacy under the federal constitution, these references
are too broad to inform the Court’s analysis today. See id. (citing Whalen v. Roe, 429
U.S. 589 (1977)).
Page 17 of 20
days of vacation. 2007-810, at 1, 971 So. 2d at 469. Because the city opined in its
disclosure that the plaintiff’s medical history would prevent her from returning to work, the
mortgage lender rejected the plaintiff’s loan application. Id. The court held that the
employee plaintiff had plead a viable claim under article I, section 5 of the Louisiana
Constitution because she had alleged that the city had “released private information
pertaining to Fox which caused her to suffer general and monetary damages.”
Id.
2007-810, at 4, 971 So. 2d at 471.
Like the plaintiff in Fox, Officer Walker alleges that her supervisor disclosed
information about her medical condition to third persons without authorization from either
the employer or the employee. See 2007-810, at 1, 971 So. 2d at 469. Although the third
party in Fox was unlike the SPD officers who heard about Officer Walker’s condition
because it was not employed by the party responsible for the challenged disclosure, see
id., the Defendants have not provided, and the Court has not found, any case law that
suggests this distinction would defeat a privacy claim brought under the Louisiana
Constitution. Accordingly, the Court declines to dismiss Officer Walker’s claim that the
discussion of her medical information by Lt. Rita James violated the Louisiana Constitution.
However, to the extent that the other Plaintiffs in this suit assert that the disclosure of
medical information to other SPD officers violated their right to privacy under the Louisiana
Constitution, their claims are dismissed because they have not alleged that their medical
information was disclosed and thus lack standing to assert such claims. See Lujan, 504
U.S. at 560.
With respect to the third allegation, at least one lower Louisiana court has held that
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the Louisiana Constitution prevents a state employer from requiring an employee to furnish
medical records that are not related to a legitimate business necessity. See Ennis v. Dep't
of Pub. Safety & Corr., Dixon Corr. Inst., 558 So. 2d 617 (La. Ct. App. 1990). In Ennis v.
Department of Public Safety & Corrections, Dixon Correctional Institute, a corrections
officer brought an administrative action challenging his termination. 558 So. 2d at 624.
The officer was terminated because he refused his supervisors’ direct order to sign a
release granting them access to all of his medical records, which the supervisors had
requested in light of their suspicions that the officer was fabricating the reasons for taking
sick leave. Id. at 624. On appeal, the question became whether the order was illegal. See
id. The court held the order violated his right to privacy under article I, section 5 of the
Louisiana Constitution. Id. at 624-25. According to the court, the order violated the
Louisiana Constitution because it was overly broad, i.e., although ordering the officer to
release medical information related to his questionable absences would have been legal,
ordering the officer to release his entire medical history was illegal because it sought
medical information unrelated to the absences at issue. Id. at 624.
Like the inquiry at issue in Ennis, SPD 301.06's chronic-condition inquiry is
potentially overly broad because it seeks more information than is necessary for any
business necessity. See 558 So. 2d at 624. The Court therefore declines to dismiss the
Plaintiffs’ claim that the chronic-condition inquiry in SPD 301.06 violates the Louisiana
Constitution.
IV.
Conclusion
For the reasons assigned above:
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IT IS ORDERED that the Defendants’ Motion for Summary Judgment and Motion
To Dismiss, Record Document 39, is hereby GRANTED IN PART and DENIED IN PART.
Insofar as the motion seeks summary judgment on the Plaintiffs’ Rehabilitation Act
claims, the motion is DENIED.
Insofar as the motion seeks dismissal of the Plaintiffs’ claims under Louisiana
disability discrimination law, the motion is GRANTED and those claims are DISMISSED
WITH PREJUDICE.
Insofar as the motion seeks to dismiss the Plaintiffs’ Louisiana constitutional claims,
the motion is DENIED.
IT IS FURTHER ORDERED that the parties contact the chambers of Judge
Hornsby by August 31, 2016, to set a scheduling conference in this matter.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 24th day of August,
2016.
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