Mesa v. The City of San Antonio, Acting by and through its Agent, City Public Service Board d/b/a CPS Energy

Filing 23

ORDER GRANTING IN PART AND DENYING IN PART 17 Motion to Dismiss. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ABEL MESA,
Plaintiff,
VS.

CITY OF SAN ANTONIO, d/b/a CPS
ENERGY,
Defendant.

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Civil Action No. SA-17-CA-654-XR

ORDER
On this date, the Court considered Defendant’s Partial Rule 12 Motion to Dismiss Plaintiff’s
First Amended Complaint (docket no. 17).
I. Background
Plaintiff was hired by CPS Energy in 1990 and is now over age 40. In 2013, his wife was
diagnosed with cancer, and he availed himself of FMLA leave to care for his wife. On September
12, 2016, he sustained an on-the-job injury to his arm and shoulder and sought workers’
compensation benefits. Plaintiff had a doctor’s visit with Texas Med Clinic on September 13 and
scheduled a follow-up on September 16. Plaintiff alleges that “[o]n the 16th Mr. Mesa was
contacted by Broadspire, Defendant’s Third Party FMLA administrator”; “Mesa was seen at Nova
clinic and received a release allowing him to return to work without restrictions on September 20,
2016”; “He returned on the 20th Plaintiff gave his return to work forms and gave them to Vernon
King, his supervisor. Mesa worked that day without incident.”; “On September 21, 2016, Mr. Mesa
was escorted off the job and had his badge taken away. He was told not to return to work until he
heard back from Kevin Drenan, because there was a problem with the paperwork.” Plaintiff further
alleges that he did not get a call until the 28th, when he was told to go to Concentra clinic on
Thursday or Friday to obtain a Fitness for Duty form, and Mesa said he would go on Friday. He
alleges that when he went on Friday, he was told they could not see him and that he needed to call
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Toni in HR. Plaintiff alleges that Toni then told him there had been an appointment for him to go
to Concentra on Thursday the 28th, and was later told they decided to have a meeting with him at
CPS’s downtown office. On October 3, he was informed that because he had not gone to the
September 28 medical appointment, he was being put on leave and would be separated from CPS
on December 1, and would be immediately taken off payroll. Defendant asserts that Plaintiff had
previously elected voluntary retirement beginning December 1.
The First Amended Complaint asserts claims under the Rehabilitation Act, the Americans
with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the
Family and Medical Leave Act (“FMLA”). Defendant filed a partial answer and a partial motion to
dismiss. The motion seeks dismissal of the Rehabilitation Act and ADA claims under Rule 12(b)(6).
II. Analysis
If a complaint fails to state a claim upon which relief can be granted, a court is entitled to
dismiss the complaint as a matter of law. FED. R. CIV. P. 12(b)(6). In considering a motion to
dismiss under 12(b)(6), all factual allegations from the complaint should be taken as true.
Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). Additionally, the facts
are construed favorably to the plaintiff. Id. Courts may look only to the pleadings in determining
whether a plaintiff has adequately stated a claim; consideration of information outside the pleadings
converts the motion to one for summary judgment. FED. R. CIV. P. 12(d). To survive a 12(b)(6)
motion, a complaint must contain “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
1964 (2007). Factual allegations must be sufficient to “raise a right to relief above the speculative
level.” Id. A well-pleaded complaint can survive a motion to dismiss even if actual proof of the
facts alleged is “improbable.” Id. 556.
A. Rehabilitation Act - receipt of federal funding
The Rehabilitation Act prohibits discrimination on the basis of disability by recipients of
federal funds. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 614 n.5 (5th Cir. 2009). It
provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her
or his disability, be . . . subjected to discrimination under any program or activity receiving Federal
financial assistance . . . .” 29 U.S.C. § 794(a). Under the McDonnell Douglas burden-shifting
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framework, a plaintiff must first establish a prima facie case of discrimination, including that the
plaintiff (1) is an individual with a disability, (2) who is otherwise qualified for the position, (3) who
worked for a program or activity receiving federal financial assistance, and (4) was discriminated
against solely by reason of his or her disability. Cohen v. Univ. of Tex. Health Science Ctr., 557 F.
App’x 273, 277-78 (5th Cir. 2014).
Defendant contends that Plaintiff’s Rehabilitation Act claims must be dismissed because he
failed to plead facts that demonstrate that the Act applies to CPS Energy as a whole, much less that
Mesa’s work at CPS Energy causes the Rehabilitation Act to apply to him in particular. Defendant
asserts that, “under current Fifth Circuit precedent, to state a claim under the Rehabilitation Act, a
plaintiff must allege that he personally worked on a program or activity that received grants or other
financial assistance from the federal government.” Motion at 3.
The Court finds that Plaintiff’s allegations are sufficient. In Taylor v. City of Shreveport, 798
F.3d 276, 283 (5th Cir. 2015), the Fifth Circuit held that, to state a § 504 claim, a plaintiff must
allege that the specific program or activity with which he or she was involved receives or directly
benefits from federal financial assistance. But it held sufficient an allegation that “the City receives
federal funds for the police department.” It noted that the police department was a “program or
activity” as defined by the Rehabilitation Act, which includes “a department, agency, special purpose
district, or other instrumentality of a State or of a local government.” 29 U.S.C. § 794(b)(1)(A).
Thus, allegations that the program or activity receives federal funds appear to be sufficient to state
a claim.
Plaintiff’s First Amended Complaint alleges that “Defendant received federal funds and
utilized them as part of its operations.” First Am. Compl. ¶ 9. And Defendant is “the City of San
Antonio acting by and through its agent, City Public Service Board d/b/a CPS Energy.” Construed
liberally, this is sufficient to allege that CPS Energy receives federal funds, which is sufficient to
state a claim. Although Defendant has attached an affidavit to its motion to dismiss, the Court’s
review is limited to the pleadings, and the Court therefore cannot consider the affidavit without
converting the motion to a motion for summary judgment, which it declines to do. The motion to
dismiss the Rehabilitation Act claim on this basis is therefore denied.

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B. Rehabilitation Act and ADA - disability
Plaintiff alleges claims under the ADA and Rehabilitation Act based on (1) his own actual
disability, (2) being perceived or regarded as disabled, and (3) his association with his disabled wife.
Specifically, Plaintiff alleges that he had a temporarily disabling condition that affected his ability
to perform the major life activities of overhead reaching and climbing, that Defendant perceived him
as disabled, and that Defendant took adverse actions against him because of his association with his
wife, who had the disability of cancer. Defendant contends that Plaintiff fails to state a claim under
the first two theories. Plaintiff responds that Defendant’s challenges are evidentiary in nature and
that discovery is needed before dismissal (via summary judgment) should be considered.
Defendant contends that Plaintiff’s First Amended Complaint “falls short of establishing that
he was actually disabled under the ADA or Rehabilitation Act.” Plaintiff alleges that he had a
temporarily disabling condition that affected his ability to perform the major life activities of
overhead reaching and climbing. Defendant argues that Mesa’s factual allegations “fall well short
of establishing he had any sort of substantial limitation on any major life activity, including the two
he cites, overhead reaching and climbing.” Defendant contends that, “eight days of leave to recover
from a brief injury to his arm and shoulder before being able to return to work, as alleged in his First
Amended Complaint, does not amount to a disability under the ADA or the Rehabilitation Act.”
Defendant notes that Plaintiff himself characterizes the injury as temporarily disabling, and fails to
allege facts that the injury led to an impairment that substantially limited any major life activities.
Defendant further contends that Plaintiff fails to show he was regarded as disabled because
he alleges no supporting facts for his conclusory assertion that Defendant perceived him as disabled.
But even if he had alleged such facts, Defendant contends, the “regarded as” definition does not
apply to transitory impairments, which are impairments with an actual or expected duration of six
months or less. See 42 U.S.C. § 12102(3)(B).
To make out a prima facie of discrimination under the McDonnell Douglas burden-shifting
framework under the ADA, the plaintiff must show: (1) he has a disability or was regarded as
disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision
on account of his disability. Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir.
2016). An individual has a disability, if that individual has “a physical impairment that substantially
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limits one or more major life activities.” 42 U.S.C. § 12102(1). The inquiry is “whether [the
plaintiff’s] impairment substantially limits his ability ‘to perform a major life activity as compared
to most people in the general population.’” Cannon, 813 F.3d at 591 (quoting 29 C.F.R. §
1630.2(j)(1)(ii)).
In Cannon, the Fifth Circuit held that the plaintiff’s rotator cuff injury qualified as a disability
under the more relaxed standard in the ADAAA because “lifting” and “reaching” are included in the
list of major life activities in the ADA and the plaintiff’s shoulder injury substantially limited his
ability to perform such tasks based on testimony from the plaintiff and his doctor. Defendant
contends that “Mesa’s on-the-job injury encompassed only two doctor visits and eight days of
recovery before he was able to return to work without restrictions,” but the fact that Mesa returned
to work without restrictions does not necessarily prove that Plaintiff’s injury was fully healed and
no longer limited his ability to lift. Defendant’s motion to dismiss on the basis that Plaintiff has not
pled sufficient facts to show that he was disabled at the time of the adverse employment action is
denied.
The Court in Cannon further held that the plaintiff met the “regarded as” provision because
the “ADA now covers not just someone who is disabled but also those subjected to discrimination
because they are ‘regarded as having . . . an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.” Cannon, 813 F.3d
at 591 (quoting 42 U.S.C. §§ 12102(1)(C), 3(1)(A)). The ADAAA overruled “prior authority
‘requiring a plaintiff to show that the employer regarded him or her as being substantially limited
in a major life activity.’” Id.; see also Dube v. Tex. Health & Human Servs. Comm’n, No. SA-11CV-354-XR, 2012 WL 2397566, at *3 (W.D. Tex. June 25, 2012) (“The ADAAA makes it clear that
under the ‘regarded as’ prong, an employer need only perceive that the individual has a physical or
mental impairment, thus overruling court decisions requiring a plaintiff to show that the employer
regarded him or her as being substantially limited in a major life activity.”).
This Court has noted that the ADAAA “restricts the coverage of individuals who are
‘regarded as’ disabled by excluding individuals with a ‘minor’ and ‘transitory’ condition (e.g., a
condition that lasts, or is expected to last, six months or less.)”. Dube, 2012 WL 2397566, at *4
(citing 42 U.S.C. § 12102(3)(B)). Defendant contends that Plaintiff’s First Amended Complaint
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affirmatively demonstrates that he recovered from his injury within eight days and thus his injury
was minor and transitory for purposes of the “regarded as” prong. But whether Plaintiff had
recovered is not the relevant inquiry for the “regarded as” prong. The relevant inquiry is whether
the employer regarded him as having a physical impairment,1 and Plaintiff has pled that he was not
permitted to return to work, that he needed to obtain a Fitness for Duty form, and that his employer
perceived him as disabled. He does not plead that Defendant perceived him to have a minor or
transitory impairment. The motion to dismiss the “regarded as” claim is denied.
C. Failure to Accommodate
Generally, to prevail on a failure to accommodate claim, a plaintiff must establish that (1)
he is a qualified individual with a disability, (2) the disability and its consequential limitations were
known by the covered employer, and (3) the employer failed to make a reasonable accommodation
for such known limitations. See Feist v. Louisiana, Dep't of Justice, Office of the Atty. Gen., 730
F.3d 450, 452 (5th Cir. 2013). Defendant contends that, to the extent he is alleging a failure to
accommodate, Mesa fails to allege any facts indicating that he requested an accommodation or that
a reasonable accommodation was denied.2 The Court agrees. Nowhere in the Amended Complaint
does Plaintiff allege that he was denied an accommodation.3 The motion to dismiss the claims based
on failure to accommodate is granted, but with leave for Plaintiff to replead if desired.
D. Retaliation
A claim of unlawful retaliation under the ADA requires a plaintiff to make a prima facie case
by showing that (1) he engaged in an activity protected by the ADA, (2) he suffered an adverse
employment action, and (3) there is a causal connection between the protected act and the adverse

1

Spinks v. Trugreen Landcare LLC, 322 F. Supp. 2d 784, 794 (S.D. Tex. 2004) (“courts look to the employer’s
perception of the employee, which involves a question of intent, not to whether the employee has an actual disability”).
Plaintiff has not pled facts establishing that Defendant perceived his impairment as minor and/or transitory, even if it was
so.
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Defendant contends that, to the extent Plaintiff is asserting a failure-to-accommodate claim based on his wife’s
disability, it fails because an employer has no requirement to accommodate a wife’s disability. The Court agrees.
Further, the Fifth Circuit has held that “a request for FMLA leave is not a request for a reasonable accommodation under
the ADA.” Acker v. General Motors LLC, 853 F.3d 784, 791 (5th Cir. 2017).
3

The only mention of accommodation is a statement that “Defendant intentionally retaliated against Claimant
based on his requests for accommodation.” Docket no. 12 ¶ 52.

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action. Weed v. Sidewinder Drilling, Inc., 245 F. Supp. 3d 826, 837 (S.D. Tex. 2017). Plaintiff
alleges that Defendant intentionally retaliated against him based on his requests for accommodation
and leave in violation of the ADA. Docket no. 12 ¶ 52. Defendant argues that Mesa’s retaliation
claim fails because he does not specify any protected conduct that he allegedly engaged in. It is
undisputed that making a request for a reasonable accommodation under the ADA may constitute
engaging in a protected activity. Tabatchnik v. Continental Airlines, 262 F. App’x 674, 676 (5th
Cir. 2008).

However, as discussed above, Plaintiff fails to allege that he requested an

accommodation. And, to the extent he claims retaliation based on his leave request, the Fifth Circuit
has held that a request for FMLA leave is not a request for a reasonable accommodation under the
FMLA. Acker v. General Motors LLC, 853 F.3d 784, 791 (5th Cir. 2017). Accordingly, the motion
to dismiss the retaliation claim is granted, but leave to replead.
Conclusion
Defendant’s partial motion to dismiss (docket no. 17) is GRANTED IN PART and DENIED
IN PART. The motion to dismiss the disability discrimination claims under the ADA and the
Rehabilitation Act is DENIED. The motion to dismiss the failure-to-accommodate and the
retaliation claims under the ADA and the Rehabilitation Act is GRANTED. Plaintiff is given leave
to file an Amended Complaint to attempt to state a claim for failure to accommodate and retaliation,
if desired, within fourteen days of this Order.
SIGNED this 29th day of November, 2017.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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