Felton v. City of Jackson, Mississippi et al

Filing 15

Memorandum Opinion and Order granting 9 MOTION to Dismiss defendants Vance, White, Davis and Jones individually and officially. All claims against the City are dismissed, save the claims asserted under the ADA. Signed by District Judge Tom S. Lee on 6/14/18 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
LANCE E. FELTON
VS.

PLAINTIFF
CIVIL ACTION NO. 3:18CV74TSL-RHW

CITY OF JACKSON, MISSISSIPPI
CHIEF LEE VANCE, PERSONALLY AND IN HIS OFFICIAL
CAPACITY; ASSISTANT CHIEF ALLEN WHITE,
PERSONALLY AND IN HIS OFFICIAL CAPACITY;
DEPUTY CHIEF JAMES DAVIS, PERSONALLY AND IN
HIS OFFICIAL CAPACITY; COMMANDER THADDEUS
JONES, PERSONALLY AND HIS OFFICIAL CAPACITY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Chief Lee Vance, Assistant Chief Allen White, Deputy Chief James
Davis, and Commander Thaddeus Jones, each of whom has been sued in
his individual and official capacities, to dismiss for failure to
state a claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.

Plaintiff Lance E. Felton, who is proceeding pro

se, has responded in opposition to the motion.

The court, having

considered the memoranda of authorities submitted by the parties,
concludes that the motion should be granted.
Plaintiff Lance Felton was a police officer with the City of
Jackson from December 1995 until his termination in December 2016.
Following his termination, he filed the present action alleging
that the City and the individual defendants, who are alleged to
have been his supervisors in the Jackson Police Department,
violated his rights under various federal statutes, including the

Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.;
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; the
Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; and
the Employment and Reemployment Rights of Members of the Uniformed
Services Act (USERRA), 38 U.S.C. § 4301 et seq.

In addition, he

alleges that defendants violated his rights under the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution.

His claims are grounded in the following alleged

facts.
On April 24, 2014, plaintiff, while attempting to apprehend
an armed assailant, was forced to fire his weapon.

As a result,

pursuant to standard department procedure, he was placed on
administrative leave with pay pending the outcome of an
administrative internal departmental investigation and a mandatory
mental evaluation.

On May 4, 2014, the consulting psychologist

who conducted the mental evaluation reported to former JPD Police
Chief Lindsey Horton that plaintiff exhibited a “high level of
acute distress” attributable to an “acute stress reaction”
following the shooting incident, as a result of which he was
deemed not fit to return to duty at that time.

The psychologist

recommended further therapy for managing plaintiff’s distress and
provided the name of an expert in treating post-traumatic stress
disorder (PTSD) who had indicated a willingness to accept
plaintiff as a patient.
2

Plaintiff alleges that the City was clearly apprised of his
PTSD and yet failed to provide him the additional counseling he
needed.

He further asserts that while he spoke with defendants

Lee Vance and Commander Thaddeus Jones on several occasions
requesting an accommodation, i.e., being allowed to work in a
different capacity commensurate with his disability while he was
receiving treatment, the City failed to provide him any
accommodation.
Plaintiff remained on paid administrative leave for nearly a
year and a half, until being advised by letter dated September 17,
2015 from Police Chief Lee Vance, that his paid administrative
leave would end on September 19, 2015.

In this letter, Chief

Vance wrote that once this leave expired and until such time as
plaintiff was able to provide a statement from a physician showing
he was capable of returning to work, plaintiff could use any
accrued sick or personal leave; Vance suggested, alternatively,
that plaintiff might be eligible for leave under the FMLA.
However, he did not offer any accommodation.

As a result,

plaintiff was forced to use his vacation and sick leave until
those ran out in April 2016.
using FMLA-approved leave.

Then, on April 4, 2016, he began

Plaintiff alleges that on July 5,

2016, a week after his FMLA leave ran out, he was instructed to
report to the police chief’s office the following day.

When he

did so, he was met by Assistant Chief Allen White and Deputy Chief
3

James Davis, who ordered him to return to work the following day
with a letter from his doctor clearing him for duty, failing which
he would be terminated.

Even though he had no letter from a

doctor clearing him for duty, plaintiff reported to work the
following day, and each day thereafter for the next week in the
hopes that he would be put to work in another capacity.

However,

each day he was ordered by Chief Davis to leave since he did not
have a fitness-for-duty letter from his doctor.

After about a

week, Chief Davis and Chief White told him not to return to work
since he did not have a letter clearing him for duty.

Plaintiff

states at that point, he filed a charge of disability
discrimination with the EEOC in order to protect his job.
Two months later, plaintiff received a letter from Police
Chief Vance dated September 9, 2016 advising of the City’s intent
to terminate his employment for violations of the City’s sick
leave and attendance policies.

Following an October 11, 2016 pre-

termination hearing, plaintiff was terminated, effective December
5, 2016, for alleged attendance and sick leave policy violations.
Plaintiff sought review of the termination decision and alleges
that at a May 11, 2017 civil service hearing, he was forced, under
duress and mounting financial hardship, to accept a premature
medical retirement.
On this factual basis, plaintiff purports to state claims
against the City and the individual defendants for disability
4

discrimination and retaliation in violation of the ADA and Title
VII, and violation of the FMLA, USERRA and his Fourteenth
Amendment equal protection rights.
Rule 12(b)(6) Standard
To survive a Rule 12(b)(6) motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, the
complaint “does not need detailed factual allegations,” but it
must provide the plaintiff's grounds for entitlement to relief,
including factual allegations that when assumed to be true “raise
a right to relief above the speculative level.”

Cuvillier v.

Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed. 2d 929
(2007)). In other words, the complaint “must contain sufficient
factual matter, accepted as true, to state a claim for relief that
is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 173 L.Ed. 2d 868 (2009) (internal quotation marks
and citation omitted).
Title VII
While plaintiff purports to sue for disability discrimination
under Title VII, Title VII does not protect against discrimination
based on disability but rather applies only to discrimination
based on “race, color, religion, sex, or national origin.”
U.S.C. § 2000e et seq.

See 42

Avina v. JP Morgan Chase Bank, N.A., 413

F. App'x 764, 766 n.4 (5th Cir. 2011) (“Title VII does not

5

prohibit discrimination because of a disability.”).

Accordingly,

this claim will be dismissed as to all defendants.
ADA
Plaintiff’s ADA claims against the individual defendants will
also be dismissed.

While the Fifth Circuit has not directly

addressed the issue, it is the “virtually universal view” that
Title I of the ADA does not impose liability on individual
employees.

See Roman–Oliveras v. Puerto Rico Elec. Power Auth.,

655 F.3d 43, 51–52 (1st Cir. 2011) (holding that plaintiff's
claims under Title I of the ADA against co-workers were properly
dismissed in accordance with the “virtually universal view” that
Title I of the ADA, like Title VII, does not impose individual
liability); Franklin v. City of Slidell, 936 F. Supp. 2d 691, 703
(E.D. La. 2013) (finding ADA claims against employee defendants
“not legally cognizable” since “individuals are not subject to
liability under Title I of the ADA”) (citations omitted); Jenkins
v. Bd. of Educ. of Houston Indep. Sch. Dist., 937 F. Supp. 608,
613 (S.D. Tex. 1996) (explaining that individual defendants “may
not be held personally liable under the ADA because they do not
fall within the statutory definition of an employer”) (citations
omitted).

Further, since the City of Jackson is named as a

defendant, plaintiff’s official capacity claims against the
individual defendants are superfluous.

See Jenkins, 937 F. Supp.

at 613 (explaining that “because a suit against a public employee

6

in his or her official capacity is simply another way to sue the
public entity, [the plaintiff] cannot show that he would be
prejudiced by the dismissal of the individual HISD defendants from
this case in their official capacities, as HISD is already a
defendant.”) (citations omitted); Taylor v. Leggett, No. CV PX
16-115, 2017 WL 1001281, at *3 (D. Md. Mar. 15, 2017) (holding
that since plaintiff stated claims against county under ADA, “it
would be redundant and superfluous to pursue these same claims
against individual defendants who, in their official capacities,
simply stand in the shoes of the already-sued County defendant”).
FMLA
“The FMLA allows eligible employees to take up to twelve
weeks of leave in any one-year period to address ... the
employee’s own serious health condition.”

Bryant v. Tex. Dep’t of

Aging & Disability Servs., 781 F.3d 764, 768 (5th Cir. 2015)
(citing 29 U.S.C. § 2612(a)(1)(C)–(D)).

Employees who take FMLA

leave “are entitled, upon their return, ‘to be restored ... to the
position of employment held by the employee when the leave
commenced’ or ‘to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms and
conditions of employment.’”

Forbes v. Unit Tex. Drilling, L.L.C.,

526 Fed. App’x 376, 380 (5th Cir. 2013) (quoting 29 U.S.C.

7

§ 2614(a)(1)(A)–(B)).

Section 2615(a)(1) makes it “unlawful for

any employer to interfere with, restrain, or deny the exercise of
or the attempt to exercise” any of these rights.

Thus, a

§ 2615(a)(1) interference-based claim may lie if the employer
fails “to restore an employee to the same or equivalent position”
upon return from his FMLA leave.

McArdle v. Dell Prods., L.P.,

293 Fed. App’x 331, 334 (5th Cir. 2008).
Plaintiff herein has undertaken to assert an FMLA
interference claim against defendants, alleging that defendants
would not allow him to return to work following his twelve weeks
of FMLA-approved leave.

More particularly, he charges defendants

conditioned his return to work on his furnishing a fitness for
duty certification from his health care provider, yet they failed
to provide his health care provider with a list of his essential
job functions.

He further asserts that he requested an

accommodation so that he could return to work but defendants
refused to provide any accommodation.
FMLA regulations state that:
(c) If the employee is unable to perform an essential
function of the position because of a physical or mental
condition, including the continuation of a serious
health condition or an injury or illness also covered by
workers' compensation, the employee has no right to
restoration to another position under the FMLA. The
employer's obligations may, however, be governed by the
Americans with Disabilities Act (ADA), as amended. See
§ 825.702, state leave laws, or workers' compensation
laws.

8

29 C.F.R. § 825.216(c).

According to the allegations of his

complaint, plaintiff was forced to take FMLA leave because, due to
his chronic PTSD, he was unable to perform the essential duties of
his position as a police lieutenant and required an accommodation,
namely, assignment to a different position, in order to continue
his employment with the police department.1

Plaintiff does not

allege that his condition improved or changed during the time he
was on FMLA leave.

On the contrary, he asserts that when

defendants refused to allow him to return to work without a
fitness for duty certification, he informed defendants he could
not provide the requested certification and instead sought an
accommodation, that is, assignment to another position;
defendants, though, failed to provide any accommodation and sent
him home.2

Plaintiff clearly takes the position in his complaint

1

Plaintiff alleges that beginning in March 2016, he
called his supervisor, defendant Jones, expressing his desire to
return to work and “seeking assistance in receiving accommodations
to return to work.” Jones reportedly said he would “look into it
and get back” with plaintiff. Plaintiff alleges that he called
to follow up on this on an almost weekly basis for a month to no
avail. When he ran out of vacation and sick leave, “in a last
desperate attempt to keep his job,” he went on leave under the
FMLA. He alleges that his request for FMLA leave, which included
a statement from his health care provider, yet again alerted
defendants to his PTSD and to his “various requests for
accommodations.”
2

Plaintiff alleges in his complaint that after his FMLA
leave ended, he continued to report for work for more than a week,
“in the hopes that he would be put to work in another capacity.”
Instead, he was repeatedly told to go home. He asserts that he
“requested accommodations several times to return to work,” but
“[d]efendants failed to provide accommodations [and] instead
9

that “because of a physical or mental condition, including the
continuation of a serious health condition,” that is, his chronic
PTSD, he was “unable to perform an essential function of the
position.”

Id.

It follows that he had no right under the FMLA to

restoration to his former position or to another position.

He has

therefore not stated a viable interference claim based on
defendants’ failure to return him to work.

See Warren v. Aetna

Life Ins. Co., No. CIV.A.3:97-CV-1030-R, 1999 WL 615095, at *4
(N.D. Tex. Aug. 13, 1999) (stating that “while the accommodation
issue is not relevant in FMLA analysis, Plaintiff's inability to
perform an essential function deprives her entitlement to
restoration of her (former) position”).3

Based on the foregoing,

terminated” him.
3

While he makes no such allegation in his complaint,
plaintiff does assert in his response to defendants’ motion that
“Defendant City of Jackson violated FMLA rules by failing to give
Plaintiff a Designation Notice and failing to provide Plaintiff’s
treating physician, VA Medical Center, with a description of his
essential work duties while requiring him to provide a Fitness for
Duty Certification,” in violation of 29 C.F.R. § 825.312(b). An
employer's failure to follow FMLA's notice requirements “may
constitute an interference with, restraint, or denial of the
exercise of an employee's FMLA rights,” and an employer “may be
liable for compensation and benefits lost by reason of the
violation, for other actual monetary losses sustained as a direct
result of the violation, and for appropriate equitable or other
relief, including employment, reinstatement, promotion, or any
other relief tailored to the harm suffered.” 29 C.F.R.
§ 825.300(e). Plaintiff’s complaint does not reference any
failure to provide an FMLA-required notice and he does not purport
to assert an FMLA interference claim against any defendant based
on any violation of the notice requirements. Even if the court
were to interpret his response to defendants’ motion as a request
to amend to assert such a claim, the court would deny the request
10

it follows that all of the named defendants are entitled to
dismissal of the FMLA claim.
USERRA
Likewise, all of the named defendants are entitled to
dismissal of the putative USERRA claims.

USERRA “provides a

comprehensive remedial scheme to ensure the employment and
reemployment rights of those called upon to serve in the armed
forces of the United States.”

Morris–Hayes v. Board of Educ. of

Chester Union Free Sch. Dist., 423 F.3d 153, 160 (2d Cir. 2005).
Among other things, USERRA provides for the prompt reemployment of
persons upon their return from their military service.

See 38

on grounds of futility. See Briggs v. Mississippi, 331 F.3d 499,
508 (5th Cir. 2003) (allowing pro se plaintiff to amend would be
futile where amended complaint could not survive a Rule 12(b)(6)
motion to dismiss). Plaintiff, according to his own allegations,
was not harmed by any failure of defendants to comply with any
FMLA notice requirement since even if defendants had provided a
designation notice which identified the essential functions of his
position, plaintiff has alleged that he was unable to perform all
the essential functions of his position, which is the reason he
took FMLA leave in the first place and the reason why, when that
leave expired, he requested an accommodation that would enable him
to return to work. See Bellone v. Southwick-Tolland Reg'l Sch.
Dist., 748 F.3d 418, 423 (1st Cir. 2014)(holding that “[l]ate or
inadequate notices ... are not actionable unless they harm the
employee”); Easley v. YMCA of Metropolitan Milwaukee, 335 Fed.
App’x 626, 632 (7th Cir. 2009) (holding that plaintiff “has not
shown that the omission of formal notification resulted in harm as
is required to recover for a FMLA violation”); Canigiani v. Banc
of Am., No. 17-CV-61270, 2017 WL 4390170, at *3 (S.D. Fla. Oct. 3,
2017) (holding that “a plaintiff must demonstrate that she was
‘prejudiced’ in some way by a defendant's alleged violation of the
FMLA,” though she “need only demonstrate some harm remediable by
either ‘damages’ or ‘equitable relief.’”) (internal quotation
marks and citations omitted).
11

U.S.C. § 4312(a) (providing for reemployment rights and benefits
for persons whose “absence from a position of employment is
necessitated by reason of service in the uniformed services.”); 38
U.S.C. § 4313 (providing that persons entitled to reemployment
under § 4312 shall be promptly reemployed, and prescribing order
of priority for the position such persons receive upon
reemployment).

It also prohibits discrimination or retaliation

against persons because of their service in the military.

See 38

U.S.C. § 4311 (person may not be “denied initial employment,
reemployment, retention in employment, promotion, or any benefit
of employment by an employer” because of his or her military
membership, application for membership, performance of service,
application for service, or obligation to perform military
service).

These sections provide distinct causes of action.

Bradberry v. Jefferson Cty., Tex., 732 F.3d 540, 545 (5th Cir.
2013).
Plaintiff alleges in his complaint that he is a military
veteran, and that consequently, under § 4313 of USERRA, the City
of Jackson was required “to go further than the ADA by making
reasonable efforts to assist [him in] returning to employment,”
including by accommodating his disability.

Section 4313 does

require that an employer who is reemploying a qualified service
member accommodate a service-related disability or reemploy the
service member in an equivalent position.

12

See § 4313(a)(3)

(providing for restoration to a different position of a person
whose disability is incurred in, or aggravated during his military
service, and “who (after reasonable efforts by the employer to
accommodate the disability) is not qualified due to such
disability to be employed in the position of employment in which
the person would have been employed if the continuous employment
of such person with the employer had not been interrupted by” his
military service).

However, this is not a freestanding right;

rather, it arises only when a service member is entitled to
reemployment under § 4312.

“Section 4312 sets forth the basic

right of a returning veteran to be rehired by his past employer
and the basic prerequisites that the veteran must meet in order to
enjoy that right.

Section 4313 sets forth the position of

employment to which the returning veteran must be rehired and
requires that the veteran be ‘promptly reemployed’ in that
position.”

Petty v. Metro. Gov't of Nashville-Davidson Cty., 538

F.3d 431, 440 (6th Cir. 2008).

“[T]he express terms of § 4313

make its application contingent ... on the prerequisites of
§ 4312....”

Id. at 443.

In this case, plaintiff does not complain that he was not
reemployed when he returned from military service.4

4

His complaint

His complaint suggests that he had two tours of military
duty during his tenure with the police department and was
reemployed following both absences. His absence from work
following the shooting in April 2014 was not for military duty.
13

is that the City refused to accommodate him when he developed a
work-related disability, which had its genesis in his military
service.

This clearly does not state a claim for violation of

USERRA’s reemployment provisions.
Plaintiff does not appear to have alleged, or attempted to
allege, a claim for discrimination in violation of USERRA.

To the

extent that he may have sought to do so, such claim necessarily
fails as plaintiff does not allege or even intimate that
defendants discriminated against him because of his prior military
service.

Rather, he alleges only that defendants discriminated

against him on account of a disability, PTSD, which he alleges was
contributed to by his military service.

See Carroll v. Delaware

River Port Authority, 89 F. Supp. 3d 628 (D.N.J. 2015) (USERRA
plaintiff has the initial burden of demonstrating that his
military service, as distinct from a disability resulting from
service, was a substantial or motivating factor in the employer's
decision.”).5
Fourteenth Amendment Equal Protection Clause
To state a claim for violation of the Equal Protection
Clause, a plaintiff must either allege that (1) a state actor

5

The court additionally observes that plaintiff cannot
state a cognizable USERRA discrimination claim for failure to
accommodate his alleged service-connected disability. Section
4311 “does not require accommodation, which is fundamentally
different from an equal-treatment norm.” Sandoval v. City of
Chicago, Illinois, 560 F.3d 703, 705 (7th Cir. 2009).
14

intentionally discriminated against him because of his membership
in a protected class, i.e., a protected class theory, or (2) he
was intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment, i.e., a class of one theory.

Gibson v. Tex. Dep't of

Ins. – Div. of Worker's Comp., 700 F.3d 227, 238 (5th Cir. 2012).
See Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581,
586 (5th Cir. 2016) (class-of-one equal-protection claim lies
where plaintiff claims he was intentionally treated differently
from others similarly situated without a rational basis for such
difference in treatment) (citing Village of Willowbrook v. Olech,
528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000)).
In this case, plaintiff does not allege discrimination based
on membership in a protected class.

Instead, he alleges a

violation of his equal protection right “to be free from
discrimination based on a qualified disability” because “other
officers were afforded accommodations for identical disabilities.”
In other words, he asserts a “class of one” equal protection
claim.

The law is clear, however, that “a class-of-one

equal-protection claim is unavailable in a public employment
context.”

Id. (citing, among other cases, Engquist v. Oregon

Dep't of Agric., 553 U.S. 591, 603, 128 S. Ct. 2146, 170 L. Ed.2d
975 (2008)).

Accordingly, this claim will be dismissed as to all

defendants.

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Conclusion
Based on the foregoing, it is ordered that the motion of
defendants Vance, White, Davis and Jones to dismiss the complaint
against them in their individual and official capacities for
failure to state a claim under Rule 12(b)(6) is granted.
Moreover, for the reasons set forth above, the court, sua sponte,
dismisses all claims asserted against the City, save the claims
asserted under the ADA.6
SO ORDERED this 14th day of June, 2018.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

6

The Fifth Circuit has stated that a district court
generally must give a pro se plaintiff an opportunity to amend
before dismissing his complaint for failure to state a claim,
though “it is harmless error to dismiss a case for failure to
state a claim without giving the plaintiff an opportunity to amend
if the plaintiff has alleged his best case or if the dismissal is
without prejudice.” Lerma v. Falks, 338 Fed. Appx. 472, 474 (5th
Cir. 2009). Here, while plaintiff did not formally request leave
to amend, the court, taking into account the additional factual
allegations and legal assertions set out in his response to the
motion to dismiss, is persuaded that he has already alleged his
“best case.” Moreover, the court’s dismissal of the various
claims is not premised on plaintiff’s failure to plead sufficient
facts, but rather, on the basis that the facts that he has alleged
necessarily preclude recovery as a matter of law.
16