# Robertson v. Greenbriar Hospital, LLC

> District Court, E.D. Louisiana · January 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10185160

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185160

## How later opinions describe it (automated extraction)

- affirming dismissal of retaliation claim for failure to exhaust administrative remedies

## Opinion text

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.”
13
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
14
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185160. Public record. Not legal advice.