Robertson v. Greenbriar Hospital, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHANDA DYSON ROBERTSON CIVIL ACTION

v. NO. 19-11912

GREENBRIER HOSPITAL, LLC, d/b/a SECTION "F"

COVINGTON BEHAVIORAL HEALTH HOSPITAL, ET AL.

ORDER AND REASONS

Before the Court is the defendants’ motion to dismiss. For

the reasons that follow, the motion is GRANTED. Within 14 days,

the plaintiff shall be permitted one opportunity to amend her

deficient claims, if she can in good faith do so.

Background

This workplace discrimination lawsuit arises from allegations

that a hospital employer denied a part-time employee a full-time

Recreational Therapist position because of her son’s disability,

in violation of the Americans with Disabilities Act, and later

terminated her employment in retaliation for filing an EEOC charge

concerning the alleged associational disability discrimination, in

violation of Title VII of the Civil Rights Act.

1

Greenbrier Hospital, LLC, d/b/a Covington Behavioral Health

Hospital, is a 60-bed residential facility that specializes in

treating adult patients who have experienced acute changes in their

emotional and mental wellbeing. The hospital provides psychiatric

services and therapeutic interventions designed to alleviate

stress, provide stability, and improve each patient’s ability to

live a productive and satisfying life.

On May 29, 2014, Chanda Dyson Robertson was hired by Covington

Behavioral Health Hospital as a part-time recreational therapist.

As a recreational therapist, Ms. Robertson created, implemented,

and coordinated programming for the patients, focusing on

recreation, leisure, and life skills. Ms. Robertson reported to

the facility’s Director of Social Services.

In late October 2017, in implementing a reduction-in-force

policy, the facility imposed a hiring freeze. In November 2017,

one of the two full-time Recreational Therapists resigned from

Covington. “The job posting from May 2017 for the CTRS-Certified

Recreational Therapist was still open at the time,” it is alleged,

“so individuals had the ability to submit applications for the

position.” On November 22, 2017, Ms. Robertson applied for the

full-time position following the former therapist’s resignation.

2

However, because of the hiring freeze, Covington did not consider

hiring anyone for the position at that time.

About a week after Ms. Robertson applied for the position,

her supervisor, the Director of Social Services, left employment

at the hospital. Ms. Robertson then approached Covington’s CEO,

Wes Crawford, and told him that her former supervisor had offered

her the full-time Recreational Therapist position. Mr. Crawford

told Ms. Robertson that, in fact, because of the hiring freeze, he

could not approve any offer to transfer her to the full-time

position.

On March 27, 2018, Covington hired Charles Washington as a

full-time Recreational Therapist. Angela Bliss, who had replaced

the outgoing Director of Social Services, was Ms. Robertson’s

supervisor. Ms. Bliss told Ms. Robertson, it is alleged, that she

(Ms. Robertson) was not chosen as the full-time Recreational

Therapist “because she had a disabled son.” Ms. Robertson “assured

all relevant parties that her son’s disability would not preclude

her from performing” the full-time Recreational Therapist position

because she would hire a caregiver for her son.

On July 22, 2018, Ms. Robertson filed a charge with the Equal

Employment Opportunity Commission, alleging associational

disability discrimination in violation of the Americans with

3

Disabilities Act. Specifically, Ms. Robertson named “Acadian

Behavior Health” as her employer and, in Charge Number 461-2018-

01550, wrote:

I have been employed as a part-time Recreational

Therapist for about 4 ½ years. My immediate supervisor

is Angela Bliss and the CEO is Wesley Crawford. In

November 2017, I applied and was selected for the full-

time position of Recreational Therapist. Mr. Crawford

terminated that position and returned me to the part-

time position indicating there were no funds for a full-

time position. In March 2018, I applied again for the

full-time position of Recreational Therapist. I was not

selected. Ms. Bliss informed me that Mr. Crawford did

not select me because of my dependability because I have

a disabled son even though I do not have any attendance

issues or disciplinary actions against me. The company

employs more than 15 persons.

I believe I was denied a promotion because I am a

caregiver to my disabled son which is a violation of the

Americans with Disabilities Act as amended.

From July 23, 2018 to September 27, 2018, Ms. Robertson

continued to work diligently and “received constant praise and

commendation for the quality of her work.” On September 27, 2018,

Ms. Robertson met with Human Resources, at which time the hospital

accused Ms. Robertson of taking information out of patients’ charts

and taking photos at the facility in violation of company policy.

Ms. Robertson alleges that these accusations were made in

retaliation for her EEOC complaint. Although Ms. Robertson admits

that she took a photograph of herself at the facility in July 2018,

4

she alleges that this occurred months before the anti-photography

policy became effective in September 2018.

On October 2, 2018, the Human Resources Director suspended

Ms. Robertson for taking pictures at the facility and for leaving

the September 27th meeting without permission. Her employment was

terminated on October 22, 2018.

On April 18, 2019, Ms. Robertson lodged a second charge of

discrimination with the EEOC. In Charge Number 461-2019-00162,

Ms. Robertson named “Covington Behavioral” as her employer and

alleged retaliation, charging:

I was suspended on October 2, 2018 and subsequently

discharged from my Recreational Therapist position on

October 22, 2018. I had worked for the above-referenced

employer for approximately 4 years.

I was suspended following accusations that I took photos

and information from patient charts for my pending EEOC

charge. I was discharged allegedly because the company

had “trust issues” with me after the false allegations

were made.

I believe that I was suspended and discharged in

retaliation for filing a disability-related EEOC charge

(Charge No. 461-2018-01550) in violation of the

Americans with Disabilities Act, as amended. I reported

my coworkers for mistreatment and not doing their share

of work and my coworkers, in turn, reported that I was

taking photos and information from patient charts for my

for my (sic) EEOC charge which was not true.

5

On May 1, 2019,1 the EEOC issued a right to sue letter on the first

charge, Charge Number 461-2018-01550, pertaining to the alleged

ADA violation. Ms. Robertson alleges in her complaint that the

“EEOC charge regarding defendant’s disciplinary conduct” remains

“pending.”

On July 29, 2019, Ms. Robertson sued Greenbrier Hospital, LLC

and Acadia Healthcare, alleging that the defendants violated the

Americans with Disabilities Act when they failed to promote or

hire her for the full-time Recreational Therapist position due to

her son’s disability and that the defendants violated Title VII

when they fired her in retaliation for the EEOC charge she filed

pertaining to the alleged ADA violation. Ms. Robertson seeks

reinstatement to the position of full-time Recreational Therapist,

back and front pay, compensatory damages, punitive damages, and

attorney’s fees and costs. The defendants now move to dismiss her

claims for failure to state a claim upon which relief may be

granted.

1 The handwritten date on the right to sue letter, which is attached

to the complaint in this lawsuit, is illegible but appears to be

either an “8” or a “5”: thus, it appears that it was issued either

August (8/1/19) or May (5/1/19). Notably, in her complaint, the

plaintiff alleges that the EEOC issued a right to sue letter on

May 1, 2019.

6

I.

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a party to move for dismissal of a complaint for failure to state

a claim upon which relief can be granted. Such a motion is rarely

granted because it is viewed with disfavor. See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser

Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d

1045, 1050 (5th Cir. 1982)).

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,

a pleading must contain a "short and plain statement of the claim

showing that the pleader is entitled to relief." Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).

"[T]he pleading standard Rule 8 announces does not require

'detailed factual allegations,' but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at

678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

In considering a Rule 12(b)(6) motion, the Court “accept[s]

all well-pleaded facts as true and view[s] all facts in the light

most favorable to the plaintiff.” See Thompson v. City of Waco,

Texas, 764 F.3d 500, 502 (5th Cir. 2014)(citing Doe ex rel. Magee

v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th

Cir. 2012)(en banc)). But, in deciding whether dismissal is

7

warranted, the Court will not accept conclusory allegations in the

complaint as true. Id. at 502-03 (citing Iqbal, 556 U.S. at 678).

To survive dismissal, “‘a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603

(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation

marks omitted). “Factual allegations must be enough to raise a

right to relief above the speculative level, on the assumption

that all the allegations in the complaint are true (even if

doubtful in fact).” Twombly, 550 U.S. at 555 (citations and

footnote omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678 (“The plausibility

standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted

unlawfully.”). This is a “context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Id. at 679. “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. at 678 (internal quotations omitted) (citing Twombly,

550 U.S. at 557). “[A] plaintiff’s obligation to provide the

8

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more

than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).

Finally, “[w]hen reviewing a motion to dismiss, a district

court ‘must consider the complaint in its entirety, as well as

other sources ordinarily examined when ruling on Rule 12(b)(6)

motions to dismiss, in particular, documents incorporated into the

complaint by reference, and matters of which a court may take

judicial notice.” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th

Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 322 (2007)). If the Court considers materials

outside of the pleadings, the motion to dismiss must be treated as

a motion for summary judgment under Rule 56. See Causey v. Sewell

Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); see

also Fed. R. Civ. P. 12(d).

II.

Ms. Robertson’s complaint presents two claims. First, she

alleges that the defendants violated the Americans with

Disabilities Act by failing to hire her for a full-time CTRS-

Certified Recreational Therapist position because she has a son

with an unidentified disability. Second, she alleges that the

9

defendants violated Title VII by terminating her employment as a

part-time Recreational Therapist in retaliation for filing an EEOC

charge concerning the alleged ADA violation. Advancing various

grounds, the defendants seek dismissal of both of Ms. Robertson’s

claims.

A.

First, the defendants first move to dismiss the plaintiff’s

associational disability discrimination claim for failure to state

a claim. Because the Court agrees that the plaintiff has failed

to allege certain essential elements of the claim (assuming such

a claim is viable), the Court finds that dismissal is appropriate.

The Americans with Disabilities Act forbids employers from

taking adverse action “because of the known disability of an

individual with whom the qualified individual is known to have a

relationship or association.” 42 U.S.C. § 12112(b)(4). Even so,

the viability of a cause of action for associational discrimination

is unsettled. The Fifth Circuit “has not ‘explicitly recognized

a cause of action for discrimination based on association with a

[disabled] individual, nor have we described what such a claim

requires.’” Spencer v. FEI, Incorporated, 725 Fed.Appx. 263, 267

(5th Cir. 2018)(quoting Grimes v. Wal-Mart Stores Tex., L.L.C.,

505 Fed.Appx. 376, 380 n.1 (5th Cir. 2013)).

10

Assuming without deciding that such a claim were viable, and

further assuming that the McDonnell Douglas burden-shifting

framework applied,2 the Fifth Circuit instructs that a

prima facie case of associational discrimination would

require that the Plaintiff show (1) her qualification

for the job, (2) an adverse employment action [such as

failure to hire], (3) the employer’s knowledge of the

employee’s disabled relative, and (4) that the adverse

employment action occurred under circumstances raising

a reasonable inference that the relative’s disability

was a determining factor in the employer’s adverse

action.

Grimes, 505 Fed.Appx. at 380 n.1. “Once an employee establishes

her prima facie case, the burden shifts to the employer to

‘articulate a legitimate, nondiscriminatory reason’ for the

adverse employment action.” Delaval v. PTech Drilling Tubulars,

L.L.C., 824 F.3d 476, 479 (5th Cir. 2016)(citation omitted). If

the employer articulates such a reason, then the employee must

present evidence that the articulated reason is pretextual. Id.

(citation omitted). The Fifth Circuit “applies a ‘motivating

factor’ test, which provides that ‘discrimination need not be the

2 “[D]irect evidence is rare.” Clark v. Champion Nat’l Sec., Inc.,

--- F.3d ---, 2020 WL 205647, at *4 (5th Cir. 2020)(citation

omitted). Neither side addresses whether Ms. Robertson will pursue

a direct or circumstantial evidence theory. If an employee has no

direct evidence of her Americans with Disabilities Act claim, then

the McDonnell Douglas burden-shifting analysis applies. See

Spencer v. FEI, Incorporated, 725 Fed.Appx. 263, 267 (5th Cir.

2018)(McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973));

E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014).

11

sole reason for the adverse employment decision ... [so long as

it] actually play[s] a role in the employer’s decision making

process and ha[s] a determinative influence on the outcome.’” Id.

at 479-80 (citation omitted).

Although this “framework...governs the standard of proof at

trial,” Ms. Robertson “‘need not make out a prima facie case of

discrimination [or retaliation] to survive a Rule 12(b)(6) motion

to dismiss for failure to state a claim.’” See Stone v. Louisiana

Dept. of Revenue, 590 Fed. Appx. 332, 339 (5th Cir. 2014)(quoting

Raj v. Louisiana State University, 714 F.3d 322, 331 (5th Cir.

2013)). Rather, at the pleading stage, Ms. Robertson must “plead

sufficient facts on all of the ultimate elements of a disparate

treatment [or retaliation] claim to make h[er] case plausible.”

See Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir.

2016); see also Stone, 590 Fed. Appx. at 339. To determine if

sufficient facts are pled, “it can be helpful to reference the

McDonnell Douglas framework on which [the plaintiff] would

continue to rely if [s]he based h[er] claim on circumstantial

evidence.” Chhim, 836 F.3d at 470.

The defendants seek to dismiss the plaintiff’s associational

disability discrimination claim as insufficiently pled because Ms.

Robertson fails to allege facts supporting certain essential

12

elements of her claim, including that she was qualified for the

full-time CTRS-Certified Recreational Therapist position; that her

employer knew that her son was disabled or exactly how he is

disabled; that the position remained open or that she applied for

the open position after the hiring freeze was lifted. The

plaintiff opposes dismissal. Notably, however, Ms. Robertson does

not contest the defendant’s arguments concerning the sufficiency

of her factual allegations; rather, she counters by advancing in

argument various “facts” not contained in her complaint and she

also points to certain “evidence.”3 She also requests leave to

amend her complaint “in accordance with the foregoing” arguments

advanced in opposition to the defendants’ motion to dismiss.

To determine whether dismissal is appropriate, the Court

considers only the factual allegations in the complaint. At this

stage, resort to evidence like text messages or to factual

assertions not contained in the complaint is improper. Considering

the allegations of the complaint, the plaintiff fails to plead

sufficient facts supporting a plausible associational disability

discrimination claim. For example, she fails to allege facts that,

if proved, indicate: she was qualified for the position for which

3 Ms. Robertson attaches text messages that she suggests she advised

her employer that she has a “special needs” child and she also

argues that “[t]he record is abundantly clear that plaintiff was

well qualified for the position.”

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she was not hired; that her employer knew she has a son with a

disability; and that either the position for which she was not

hired remained open or that she re-applied once the hiring freeze

was lifted. Because Ms. Robertson has failed to allege sufficient

facts in her complaint that would state a plausible claim for

associational disability discrimination, her claim must be

dismissed.

B.

Second, the defendants move to dismiss the plaintiff’s

retaliatory discharge claim, contending that the claim is

premature and otherwise fails to state a claim for relief. Ms.

Robertson alleges that the defendants violated Title VII of the

Civil Rights Act when she suffered retaliation, in the form of

termination, after lodging a charge with the EEOC alleging

associational disability discrimination. Putting aside whether

Title VII’s or the ADA’s antiretaliation provision would apply to

the alleged facts,4 the claim must be dismissed without prejudice

for failure to exhaust administrative remedies.

4 Title VII prohibits retaliation against persons who assert rights

under the statute. 42 U.S.C. § 2000e-3(a). Similarly, the ADA

provides:

No person shall discriminate against any individual

because such individual has opposed any act or practice

made unlawful by this chapter or because such individual

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A plaintiff must exhaust her administrative remedies before

pursuing employment discrimination claims in federal court.

Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.

2002); Melgar v. T.B. Butler Publishing Company, Inc., 931 F.3d

375, 378-79 (5th Cir. 2019)(citations omitted)(citing case noting

that the ADA incorporates by reference Title VII’s administrative

procedures). This exhaustion occurs when the complainant files a

charge with the Equal Employment Opportunity Commission, § 2000e-

5(e)(1), (f)(1); 29 U.S.C. § 626(d), and then “receives a statutory

notice of right to sue.” Taylor, 296 F.3d at 379. This charge-

filing prerequisite to suit is a non-jurisdictional claim-

processing rule that “promote[s] the orderly progress of

litigation by requiring that the parties take certain procedural

made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing

under this chapter.

42 U.S.C. § 12203(a). “To show an unlawful retaliation, a

plaintiff must establish a prima facie case of (1) engagement in

an activity protected by the ADA, (2) an adverse employment action,

and (3) a causal connection between the protected act and the

adverse action.” Nall v. BNSF Ry. Co., 917 F.3d 335, 348-49 (5

Cir. 2019)(citations omitted). Once a prima facie case is

established, “the defendant must come forward with a legitimate,

non-discriminatory reason for the adverse employment action.” Id.

at 349. If the defendant offers such a reason, then “the plaintiff

must adduce sufficient evidence that the proffered reason is a

pretext for retaliation. Ultimately, the employee must show that

‘but for’ the protected activity, the adverse employment action

would not have occurred.” Id.

15

steps at certain specified times.” Fort Bend Cnty., Texas v.

Davis, 139 S. Ct. 1843, 1849 (2019). To be sure, “[a]dministrative

exhaustion is important because it provides an opportunity for

voluntary compliance before a civil action is instituted.” Stroy

v. Gibson, 896 F.3d 693, 698 (5th Cir. 2018)(affirming dismissal

of retaliation claim for failure to exhaust administrative

remedies).

Here, the plaintiff filed suit on July 29, 2019. In her

complaint, she concedes that she has not exhausted her retaliation

claim: she alleges that the EEOC issued a notice of right to sue

on May 1, 2019 as to her ADA associational discrimination charge,

but she alleges that her retaliation charge, which she filed on

April 18, 2019, remains “pending.” In an effort to avoid dismissal

on exhaustion grounds, Ms. Robertson argues in her opposition

papers that “[t]he attachments to plaintiff’s complaint clearly

show that the EEOC combined the retaliation and termination charges

and issued a right to sue on both of them on August 1, 2019.” This

argument directly contradicts the allegations of the complaint.

And it is belied by a quick comparison of the two EEOC charges to

the one right to sue letter attached to the complaint: the EEOC

right to sue letter references only one charge number -- that is,

Charge Number 461-2018-01550 -- which pertains to the alleged ADA

associational discrimination violation. The plaintiff offers no

16

right to sue letter referencing Charge Number 461-2019-00162,

which was the charge number assigned to Ms. Robertson’s April 18,

2019 charge for retaliatory discharge.

In another effort to avoid dismissal of her retaliation claim,

the plaintiff contends that she is not required to wait until the

EEOC issues a notice of right to sue because administrative

exhaustion is merely a claim-processing rule. She misunderstands

both the process and case literature. That administrative

exhaustion is a non-jurisdictional claim-processing rule does not

defeat dismissal here. See Story, 896 F.3d at 698 (“Even though

administrative exhaustion is not a jurisdictional requirement, it

is still a requirement.”); cf. Davis, 139 S. Ct. at 1849-51

(characterizing Title VII’s charge-filing requirement as a

“mandatory” claim-processing rule, which means that “a court must

enforce the rule if a party ‘properly raise[s]’ it.”). Here, the

defendants promptly invoked the exhaustion defense in their motion

to dismiss.5 Ms. Robertson offers no argument suggesting how the

5 The Court need not reach the defendants’ arguments that Ms.

Robertson’s factual allegations fail to state a plausible

retaliation claim. Likewise, the Court does not reach Acadia

Healthcare, Inc.’s arguments that it is a separate and distinct

legal entity, that the plaintiff never filed a charge against

Acadia, and that dismissal with prejudice of Ms. Robertson’s claims

is appropriate as to it. The Court merely observes that the

plaintiff named “Acadian Behavior Health” as her employer in her

first EEOC charge, that the EEOC’s notice of right to sue was sent

to Acadia Healthcare, and that the named party requirement or the

17

defendants forfeited the defense; nor does she offer any argument

to excuse her premature filing. The appropriate disposition of

the plaintiff’s unexhausted retaliation claim is thus dismissal

without prejudice; the plaintiff may return to Court after she has

exhausted her administrative remedy. See Story, 896 F.3d at 698

n.2.

Accordingly, for the foregoing reasons, IT IS ORDERED that

the defendants’ motion to dismiss is GRANTED. The plaintiff's

retaliatory discharge claim is hereby dismissed without prejudice

as premature. The plaintiff’s ADA associational discrimination

claim is hereby dismissed without prejudice to the plaintiff’s

opportunity to file an amended complaint to cure the deficiencies

with this claim, if she can in good faith do so, within 14 days.

Failure to do so will result in dismissal of this claim with

prejudice without further notice.

New Orleans, Louisiana, January 22, 2020

Next Cian

UNITED STATES DISTRICT JUDGE

ADA’s hybrid economic realities/common law control test are

generally analyzed in the context of summary judgment motions.

See, e.g., E.E.0.C. v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir.

2014); Williams v. MMO Behavioral Health Systems, LLC, No. 16-

11650, 2018 WL 5886523, at * 6-7 (E.D. La. Nov. 9, 2018).

18