Liner v. Terminix Pest Control, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LOUIS LINER CIVIL ACTION

VERSUS NO. 22-3698

TERMINIX PEST CONTROL, INC. SECTION: “H”

ORDER AND REASONS

Before the Court is Defendant Terminix Pest Control, Inc.’s Motion to

Dismiss (Doc. 18). For the following reasons, the Motion is GRANTED.

BACKGROUND

This case arises out of Plaintiff Louis Liner’s termination from his

employment with Defendant Terminix Pest Control, Inc. In August 2021,

Defendant issued a notice to all employees that they must receive the COVID-

19 vaccine as an ongoing condition of employment. This notice had exceptions,

including “a disability verified by a physician that prevents you from taking

the vaccine.”1 Plaintiff’s Amended Complaint alleges that he told Defendant he

did not want to receive the vaccine because it would violate his religious beliefs

to receive a vaccine derived from aborted fetal cell lines.2 Additionally, Plaintiff

provided paperwork evidencing that he “had a disability stemming from a

documented family history of blood clotting and myocarditis” that allegedly

preventing him from safely receiving the vaccine.3 Plaintiff alleges that

1 Doc. 16-1 at 1.

2 Doc. 16 at 7.

3 Id.

Defendant refused his requested accommodations without explaining how

granting him an accommodation would result in undue hardship to the

business.4 Plaintiff refused to receive the COVID-19 vaccination and was fired

on September 14, 2021.5

On March 17, 2022, Plaintiff filed a Charge of Discrimination with the

Equal Employment Opportunity Commission alleging violations of the

Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act

of 1964 (“Title VII”). He received a Notice of Right to Sue Letter on August 2,

2022. Plaintiff filed suit in this Court on October 6, 2022, alleging violations of

the Emergency Use Authorization Provision,6 Title VII,7 the ADA,8 and the

Louisiana Employment Discrimination Law (“LEDL”).9

This Court granted Defendant’s first Motion to Dismiss in part, holding

that Plaintiff did not adequately plead his ADA and state law claims. This

Court denied Defendant’s Motion to Dismiss as to Plaintiff’s Title VII claim.

Plaintiff subsequently filed an Amended Complaint pursuant to the Court’s

Order and Reasons, bringing various claims under the ADA, Title VII,

asserting that the Louisiana at-will employment doctrine is preempted by the

Public Readiness and Emergency Preparedness Act (“PREP Act”), wrongful

termination, retaliation, breach of contract, and violations of the LEDL. Now

before the Court is Defendant’s second Motion to Dismiss Plaintiff’s Claims

with Prejudice. Plaintiff opposes.10

4 Id. at 9.

5 Id.

6 21 U.S.C. § 360bbb-3.

7 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

8 42 U.S.C. § 12101.

9 LA. REV. STAT. § 23:301.

10 Doc. 21.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts “to state a claim to relief that is plausible on its face.”11 A claim

is “plausible on its face” when the pleaded facts allow the court to “[d]raw the

reasonable inference that the defendant is liable for the misconduct alleged.”12

A court must accept the complaint’s factual allegations as true and must “draw

all reasonable inferences in the plaintiff’s favor.”13 The Court need not,

however, accept as true legal conclusions couched as factual allegations.14

To be legally sufficient, a complaint must establish more than a “sheer

possibility” that the plaintiff’s claims are true.15 “A pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’”

will not suffice.16 Rather, the complaint must contain enough factual

allegations to raise a reasonable expectation that discovery will reveal evidence

of each element of the plaintiffs’ claim.17

LAW AND ANALYSIS

Defendant argues that Plaintiff fails to establish any viable cause of

action under the ADA and under state law. Plaintiff opposes, stating that he

did adequately plead his claims. Plaintiff also argues that the Court has

original jurisdiction over his state law claims because the PREP Act preempts

Louisiana’s at-will employment doctrine. The Court will address each

contention individually.

11 Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 547 (2007)).

12 Id.

13 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

14 Iqbal, 556 U.S. at 667.

15 Id.

16 Id. at 678 (quoting Twombly, 550 U.S. at 555).

17 Lormand, 565 F.3d at 255–57.

a. American With Disabilities Act

Plaintiff asserts various claims under the ADA, namely (1) “Disability

and Failure to Accommodate,” (2) “Unlawful Medical Examination or Inquiry,”

and (3) “Regarded Disabled.”18 Defendant argues that Plaintiff did not

plausibly allege a violation of the ADA under any theory.

“The ADA prohibits an employer from ‘discriminat[ing] against a

qualified individual on the basis of disability,’ by, among other things,

terminating an individual’s employment.”19 “To establish a prima facie

discrimination claim under the ADA, a plaintiff must prove: (1) that he has a

disability; (2) that he was qualified for the job; [and] (3) that he was subject to

an adverse employment decision on account of his disability.”20 The ADA

defines a “disability” as “(A) a physical or mental impairment that

substantially limits one or more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an

impairment.”21 Plaintiff alleges he is disabled under subsections (A) and (C)

because he has a physical impairment that substantially limits his ability to

work anywhere that requires a COVID-19 vaccine, and because Defendant

regarded him as having a physical impairment.

As Plaintiff’s Count Two “Disability and Failure to Accommodate” and

Count Four “Regarded Disabled” claims both require Plaintiff to prove he has

a disability as defined by the ADA, the Court will address these claims first.

18 Doc. 16.

19 Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017) (quoting

Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479 (5th Cir. 2016) (alteration in

original)).

20 Id. (quoting E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (alteration in

original) (quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)).

21 42 U.S.C. § 12102(a).

i. Disability and Failure to Accommodate

In Count Two, Plaintiff alleges that he “does not possess the physical

ability to safely receive an [Emergency Use Authorization] Covid injection”

because of his family history of blood clotting and myocarditis.22 Plaintiff

proceeds to explain that this results in a “physical impairment that

substantially limits the major life activity of ‘working’ in any job where the

employer requires its employees to receive an [Emergency Use Authorization]

Covid injection.”23 A disability as defined by the ADA is a physical impairment

that substantially limits a major life activity. Major life activities include

working, seeing, hearing, speaking, and breathing.24 “Substantially limits” in

the context of working as a major life activity “means [that the employee is]

significantly restricted in [their] ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average person having

comparable training, skills and abilities.”25 “[T]he inability to perform one

aspect of a job while retaining the ability to perform the work in general does

not amount to substantial limitation of the activity of working.”26

The Court has difficulty ascertaining Plaintiff’s alleged disability.

Plaintiff claims that his disability is a family history of blood clotting and

myocarditis, and then explains that he is physically unable to receive the

COVID-19 vaccine due to this family history, which, in turn precludes him

from working for any employer that requires a COVID-19 vaccination. Plaintiff

alleges that his doctor recommended against getting the vaccine, and further,

22 Doc. 16 at 11.

23 Id.

24 42 U.S.C. § 12102(2)(A).

25 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995) (citing 29 C.F.R. §

1630.2(j)(3)(i)).

26 Id.

that he conducted his own research regarding the side effects on vaccine

recipients’ hearts.27

In its previous Order and Reasons, the Court held that the inability to

receive certain medications and vaccinations is not a major life activity within

the ADA.28 Plaintiff’s argument now appears to have morphed into a more

attenuated chain of causation wherein his family history of blood clotting and

myocarditis renders him unable to take certain medications and vaccines,

which then prohibits him from working for any employer whose company policy

requires those medications and vaccinations. While the United States Supreme

Court has held that a degenerative circulatory disorder that substantially

limited a golfer’s ability to walk constituted a disability under the ADA,

Plaintiff’s assertion that his family history of blood clots and myocarditis

impacts his ability to receive a vaccine is much different.29 Plaintiff does not

allege that he himself has blood clotting or myocarditis. Further, his Amended

Complaint does not explain how his family history of blood clotting or

myocarditis directly affects his ability to work in any job, inhibits his

movement, or causes him any pain. The intervening event of deciding not to

receive a COVID-19 vaccine is what renders Plaintiff unable to do his job, not

his family history of blood clotting and myocarditis.30 The Court does not find

Plaintiff’s workaround compelling and reiterates that it does not consider

27 Doc. 16 at 10–11.

28 Doc. 15 at 6.

29 PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001) (“[The plaintiff] is also an individual

with a disability as defined in the [ADA]. . . . Since birth he has been afflicted with . . . a

degenerative circulatory disorder that obstructs the flow of blood from his right leg back to

his heart. The disease is progressive; it causes severe pain and has atrophied his right leg.

During the latter part of his college career, because of the progress of the disease, [plaintiff]

could no longer walk an 18-hole golf course.”).

30 Speaks v. Health Sys. Mgmt., Inc., No. 22-CV-77, 2022 WL 3448649, at *5 (W.D.N.C. Aug.

17, 2022) (“Refusing to get a vaccine required by an employer is not itself an “impairment” of

any sort. Rather, it reflects a personal choice . . . that, while hers to make in this context,

cannot be considered an impairment under the ADA.”).

taking certain medications and vaccines a major life activity akin to seeing,

hearing, speaking, or breathing.31 As the Court finds that Plaintiff has not

adequately pleaded a disability under the ADA, the first element of a failure

to accommodate claim, Plaintiff’s second claim is dismissed.32

ii. Regarded Disabled

Plaintiff’s fourth claim alleges Defendant regarded him as disabled

because (1) “he had the medical status of being unvaccinated,” and (2)

Defendant considered him to be “at a higher risk of becoming infected with and

transmitting COVID-19.”33 Defendant moves to dismiss this claim arguing that

the Amended Complaint fails to show that Defendant linked Plaintiff’s refusal

to receive the vaccine to a physical or mental impairment, and acted in a

discriminatory manner based on that perceived impairment.34

To meet the standard of being a person regarded as having a disability

under 29 C.F.R. § 1630.2(iii), “a plaintiff must show either that ‘(1) a covered

entity mistakenly believes that a person has a physical impairment that

31 Plaintiff filed a Supplemental Memorandum with this Court, asking it to adopt the holding

of a Pennsylvania District Court that “[m]edical conditions that prevented Plaintiffs from

receiving the Covid-19 vaccine fit within [the ADA’s] definition of impairment.” Doc. 24 (citing

Doe(s) v. Pittsburgh Reg. Transit, No. 2:22-cv-01736, 2023 WL 4867850 (W.D. Penn. July 31,

2023)). Doe(s) is not binding on this Court. This Court finds the facts of the disability in Doe(s)

distinguishable and does not find its rationale otherwise persuasive. In Doe(s), the court

analyzed the severity of plaintiffs’ anaphylaxis, finding that a “permanent, chronic, and

severe allergy” can be a “physical or mental impairment” preventing plaintiffs from getting

the COVID-19 vaccine. The court then concludes, as does Plaintiff, that the plaintiffs

sufficiently pled their disability, without bridging the logical gap and explaining how the

medical condition itself prevents Plaintiffs from the major life activity of working. See Doe(s),

2023 WL 4867850, at *6 (“[T]he allegations . . . support a reasonable inference that the

Plaintiffs were not able to get the Covid-9 [vaccine] because of a ‘physical or mental

impairment.’”).

32 Bright v. Martin, No. 22-30767, 2023 WL 4044437, at *1 (5th Cir. June 15, 2023) (“To

prevail on a failure-to-accommodate claim, the plaintiff must show ‘(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 “reasonable accommodations”

for such known limitations.’”).

33 Doc. 16 at 18, 20.

34 Doc. 18-2 at 5–6.

substantially limits one or more major life activities, or (2) a covered entity

mistakenly believes that an actual, nonlimiting impairment substantially

limits one or more major life activities.’”35 Both of these “require that the

plaintiff demonstrate that the employer actually ‘entertain[ed] misperceptions

about the individual—it must believe either that one has a substantially

limiting impairment that one does not have or that one has a substantially

limiting impairment when, in fact, the impairment is not so limiting.’”36

The Court finds that Defendant did not regard Plaintiff as disabled by

instituting a blanket vaccination policy. Defendant circulated an interoffice

memo that required all of its employees to abide by the new vaccination

policy.37 By doing so, Defendant regarded Plaintiff, and all other employees, as

being required to comply with its company policy. Various other courts have

dismissed ADA discrimination suits wherein Plaintiffs alleged that their

employers regarded them as disabled by enforcing COVID-19 vaccination

policies.38 One court noted that misclassifying an employee as having a

35 Kemp v. Holder, 610 F.3d 231, 237 (5th Cir. 2010) (quoting Sutton v. United Air Lines, Inc.,

527 U.S. 471, 489 (1999) (overturned on other grounds).

36 Id. (quoting Sutton, 527 U.S. at 489).

37 Id.

38 See Sharikov v. Philips Med. Sys. MR, Inc., No. 122-326, 2023 WL 2390360, at *8 (N.D.N.Y.

Mar. 7, 2023) (“The allegation that Defendant perceived Plaintiff as potentially infectious

fails to plausibly allege a claim that the . . . Defendant regarded Plaintiff as having an

impairment); Speaks, 2022 WL 3448649, at *5 (“Refusing to get a vaccine required by an

employer is not itself an “impairment” of any sort. Rather, it reflects a personal choice by [the

plaintiff] that, while hers to make in this context, cannot be considered an impairment under

the ADA”); Gallo v. Wash. Nat’ls Baseball Club, LLC, 2023 WL 2455678 (D.D.C. Mar. 10,

2023) (“The ‘regarded as having’ prong of the ADA’s definition of disability ‘does not cover [a]

case where an employer perceives a person to be presently healthy with only a potential to

become ill and disabled in the future.’”); Applegate v. St. Vincent Health, Inc., 2023 WL

3603975, at *3 (S.D. Ind. May 23, 2023) (“Plaintiffs’ unvaccinated status cannot plausibly

support a claim that Defendants regarded them as disabled under the ADA.”); Shklyar v.

Carboline Co., 616 F. Supp. 3d 920, 926 (E.D. Mo. 2022), aff’d, 2023 WL 1487782 (8th Cir.

Feb. 3, 2023); Jorgenson v. Conduent Transp. Sols., Inc., No. 22-cv-1648, 2023 WL 1472022,

at *4 (D. Md. Feb. 2, 2023) (dismissing a plaintiff’s “regarded as” ADA claim because

requiring employees to attest to their vaccination status “does not plausibly reflect a

determination or belief that any of its employees are disabled or impaired”); Earl v. Good

disability due to a failure to comply with a vaccination policy would “require

inferring that [the employer] misclassified all of its . . . employees as having a

disability. Such an inference is not reasonable.”39 Accordingly, Plaintiff has not

plausibly alleged that Defendant regarded him as having a disability.

Plaintiff’s third claim that his employment was terminated because he was

regarded as disabled also fails.

iii. Unlawful Medical Examination

Plaintiff’s third claim under the ADA for an unlawful medical inquiry

alleges that Defendant made various unlawful medical inquiries, namely (1)

inquiring into Plaintiff’s vaccination status, and (2) requiring Plaintiff to

submit proof he had been vaccinated. As the Fifth Circuit has held that a

plaintiff “need not assert that he or she has a disability to contest an allegedly

improper medical inquiry or medical examination,” Plaintiff’s medical inquiry

claims under the ADA are not precluded by his failure to adequately plead a

disability under the ADA.40

Under Title I of the ADA, employers cannot require medical

examinations or make medical inquiries into the potential existence of an

employee’s disability or to the nature or severity of an employee’s disability.41

The provision that Plaintiff is suing under, 42 U.S.C. § 12112(d)(4)(A), states:

A covered entity shall not require a medical examination and

shall not make inquiries of an employee as to whether such

employee is an individual with a disability or as to the

nature or severity of the disability, unless such examination

Samaritan Hosp. of Suffern, No. 20-cv-3119, 2021 WL 4462413, at *6 (S.D.N.Y. Sept. 28,

2021) (finding that the plaintiff “failed to plausibly allege that [his employer] perceived him

to be disabled based on his potential to infect patients with COVID-19” because the

“perception of infectiousness is not the same as perceived disability”).

39 Shklyar, 616 F. Supp. 3d at 926.

40 Taylor v. City of Shreveport, 798 F.3d 276, 284 (5th Cir. 2015).

41 42 U.S.C.A. § 12112.

or inquiry is shown to be job-related and consistent with

business necessity.

The ADA definition of a disability, discussed above, includes “(A) a

physical or mental impairment that substantially limits one or more major life

activities of such individual; (B) a record of such impairment; or (C) being

regarded as having such an impairment.” To establish a claim for an unlawful

medical examination or inquiry under Section 12112(d), a claimant must show

(1) that their “employer obtained the medical information that was disclosed

through [a medical examination] or disability-related inquiry;”42 and (2) that

he “suffered a tangible injury due to the disclosure of the protected medical

information.”43

Inquiring into whether Plaintiff was vaccinated and requiring him to

submit proof that he was vaccinated do not fit this statutory definition.

Defendant was not inquiring into the nature of severity of a disability or

inquiring whether Plaintiff was a person with a disability. The Court notes

that while the Equal Employment Opportunity Commission’s (“EEOC”)

webpage is not binding law, it finds the EEOC’s guidance instructive. The

EEOC specifically stated that inquiring into COVID-19 vaccination status is

not a medical inquiry under the ADA.44 This type of conduct does not implicate

42 Franklin v. City of Slidell, 936 F. Supp. 2d 691, 711 (E.D. La. 2013) (citing Dean v. City of

New Orleans, No. 11-2209, 2012 WL 2564954, at *20 (E.D. La. July 2, 2012), aff’d, 544 F.

App’x 353 (5th Cir. 2013).

43 Id. (citing Dean, 2012 WL 2564954, at *21).

44 U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-

19 and the ADA, the Rehabilitation Act, and Other EEO Laws (last accessed July 18, 2023,

11:42 AM), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-

rehabilitation-act-and-other-eeo-laws. The EEOC specifically stated that “[w]hen an

employer asks employees whether they obtained a COVID-19 vaccination, the employer is

not asking the employee a question that is likely to disclose the existence of a disability; there

are many reasons an employee may not show documentation or other confirmation of

vaccination besides having a disability. Therefore, requesting documentation or other

confirmation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s

rules about making such inquiries do not apply.”

any disability and is not prohibited by the ADA. Additionally, many other

courts have held that inquiries into vaccination status and requiring proof of

vaccination status are not medical inquiries under the ADA.45 This Court

agrees. Therefore, Plaintiff’s medical inquiry claims under the ADA as to the

inquiries into his vaccination status must be dismissed.

b. Preemption of Plaintiff’s State Law Claims

Plaintiff next argues the Public Readiness and Emergency Preparedness

Act (the “PREP Act”) preempts the Louisiana at-will employment doctrine and

gives this Court original jurisdiction over all his state law claims. Essentially,

Plaintiff argues that his state law claims “arise under” federal law.46 “The

notion that state-law claims can ‘arise under’ federal law is not intuitive. State

questions are not federal questions.”47

There is a narrow exception to this rule, however. “[C]omplete

preemption is an exception to the well-pleaded complaint rule.”48 “The

45 Balow v. Olmsted Med. Ctr., No. CV 22-1668 ADM/JFD, 2023 WL 2776028, at *6 (D. Minn.

Apr. 4, 2023) (holding that a vaccine is not a procedure that seeks information about

Plaintiffs’ health and is not an inquiry into whether Plaintiffs have a disability); Bobnar v.

AstraZeneca, No. 1:22-CV-02258, 2023 WL 3340466, at *4 (N.D. Ohio May 9, 2023) (holding

that inquiries into an employee’s vaccination status does not constitute an unlawful medical

inquiry and stating that “[t]he EEOC expressly advised that an employer’s COVID-19

vaccination status is not a prohibited medical inquiry under the ADA.”); Friend v.

AstraZeneca Pharms. LP, No. CV SAG-22-03308, 2023 WL 3390820, at *5 (D. Md. May 11,

2023) (holding that “an inquiry about vaccination status does not implicate any disability”);

Bearbower v. Olmsted Med. Ctr., No. CV 22-2459 ADM/JFD, 2023 WL 2776029, at *6 (D.

Minn. Apr. 4, 2023); Kehren v. Olmsted Med. Ctr., No. CV 22-1560 ADM/JFD, 2023 WL

2776094, at *6 (D. Minn. Apr. 4, 2023); Tipcke v. Olmsted Med. Ctr., No. CV 22-2470

ADM/JFD, 2023 WL 2776098, at *6 (D. Minn. Apr. 4, 2023); Aronson v. Olmsted Med. Ctr.,

No. CV 22-1594 ADM/JFD, 2023 WL 2776095, at *6 (D. Minn. Apr. 4, 2023) (“[T]his

requirement is not an unlawful inquiry under the ADA because inquiring about an

employee’s vaccination status is not likely to elicit information about a disability.”); Librandi

v. Alexion Pharms., Inc., No. 3:22CV1126(MPS), 2023 WL 3993741, at *9 (D. Conn. June 14,

2023).

46 28 U.S.C. § 1331.

47 Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237, 242 (5th Cir. 2022).

48 Rio Grande Underwriters, Inc. v. Pitts Farms, Inc., 276 F.3d 683, 685 (5th Cir. 2001) (citing

Hart v. Bayer Corp., 199 F.3d 239, 244 (5th Cir. 2000)).

‘complete preemption doctrine’ provides that the preemptive force of a federal

statute can be ‘so extraordinary’ that it ‘converts an ordinary state common

law complaint into one stating a federal claim for purposes of the well-pleaded

complaint rule.”’49 “If a federal cause of action completely pre-empts a state

cause of action any complaint that comes within the scope of the federal cause

of action necessarily ‘arises under’ federal law.”50 Therefore, “[i]f a federal law

is found to completely preempt a field of state law, the state-law claims in the

plaintiff's complaint will be recharacterized as stating a federal cause of

action.”51

To trigger complete preemption in the Fifth Circuit, Plaintiff must show

that “(1) the statute contains a civil enforcement provision that creates a cause

of action that both replaces and protects the analogous area of state law; (2)

there is a specific jurisdictional grant to the federal courts for enforcement of

the right; and (3) there is a clear Congressional intent that claims brought

under the federal law be removable.”’52

The statute in question is the PREP Act. The Fifth Circuit has described

the PREP Act as “shield[ing] covered persons, ‘such as pharmacies and drug

manufacturers,’ from suits and liability ‘during a public-health emergency.’”53

“The PREP Act’s liability shield extends only to the administration . . . or the

use of those covered countermeasures,” such as “vaccines and treatments.”54

49 Elliot v. Care Inn of Edna LLC, No. 3:20-CV-3185-S, 2021 WL 2688600, at *3 (N.D. Tex.

June 30, 2021) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 389 (1987)).

50 Caterpillar, 482 U.S. at 393 (quoting Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation

Trust for S. Cal., 463 U.S. 1, 24 (1983)); see also Ben. Nat’l Bank v. Anderson, 539 U.S. 1, 8

(2003).

51 Rio Grande, 276 F.3d at 685 (quoting Hart, 199 F.3d at 244).

52 Elliot, 2021 WL 2688600, at *3 (quoting Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir.

2008)).

53 Manyweather, 40 F.4th at 243 (quoting Est. of Maglioli v. All. HC Holdings, LLC, 16 F.4th

393, 400 (3d Cir. 2021)).

54 Id. (quoting 42 U.S.C. § 247d-6d(a)(1))(internal quotations omitted).

“The PREP Act is, at its core, an immunity statute. It does not create a federal

cause of action or any rights, duties, or obligations.”55 Under different facts,

the Fifth Circuit has held that the PREP Act fails to satisfy this test.56

As to the first element, the PREP Act does not provide a cause of action

that “replaces and protects the analogous area of state law.”57 It creates a

narrow cause of action for willful misconduct.58 Plaintiff asserts claims for

wrongful termination, retaliation, and breach of contract, which are not

subsumed and replaced by a cause of action for willful misconduct. Nor is the

compensation fund created by the PREP Act a cause of action.59 As a result,

Plaintiff is unable to identify a cause of action that replaces his asserted state

law claims.60

55 Elliot, 2021 WL 2688600, at *3.

56 Id. (“The PREP Act does not completely preempt state law negligence claims for COVID-

19-related injuries, as it fails to satisfy all three prongs of the Fifth Circuit’s test for complete

preemption.”); Manyweather, 40 F.4th at 242 (“We already have decided that the PREP Act

does not preempt state-law negligence claims.”); Mitchell v. Advanced HCS, L.L.C., 28 F.4th

580, 586 (5th Cir. 2022) (“The Act does not completely preempt Mitchell’s state-law

negligence claims.”). These Fifth Circuit cases address the PREP Act’s preemption as it

pertains to the preemption of state law negligence claims, however, the discussion of the

elements of complete preemption is useful regardless.

57 Johnson, 214 F.3d at 632.

58 42 U.S.C. § 247d-6e(d)(1) (the statute defines willful misconduct as “an act or omission that

is taken-- (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or

factual justification; and (iii) in disregard of a known or obvious risk that is so great as to

make it highly probable that the harm will outweigh the benefit.”). Plaintiff does not appear

to allege a willful misconduct claim. To the extent the Court may construe his allegations as

doing so, he does not adequately plead the elements. The willful misconduct exception is

procedurally narrow and requires plaintiffs to satisfy strict standards of pleading and proof,

as well as showing clear and convincing evidence of “willful misconduct which caused death

or serious physical injury.” § 247d-6d(c)(3). Plaintiff cannot meet these strict requirements.

59 Manyweather, 40 F.4th at 242 (5th Cir. 2022) (stating that even if the PREP Act’s

compensation fund was a cause of action, which it was not, Congress denied the courts power

to review how the Secretary administers the compensation fun, which necessarily precludes

complete preemption); Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 586 (5th Cir. 2022)

(“To begin, a ‘compensation fund is not a cause of action.’”).

60 Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 587 (5th Cir. 2022) (“As the Third Circuit

noted, ‘neither the Supreme Court nor any circuit court has extended complete preemption

to a statute because it created a compensation fund.’”).

Even assuming that the PREP Act does create a cause of action, the other

elements are not met. The second element, that the act specifically grants

federal courts jurisdiction to enforce the right, is also not met. The PREP Act

specifically gives jurisdiction to Secretary of the Department of Health and

Human Services to administer the compensation fund.61 Claims for willful

misconduct, when permitted, can be brought in the United States District

Court for the District of Columbia after the plaintiff exhausts all

administrative remedies.62 “Thus, except for one narrow exception, PREP Act

claims cannot be brought in federal court.”63 Plaintiff cannot show that the

PREP Act satisfies the second prong.

Finally, there is not a clear congressional intent that the prescribed

remedies be exclusive. The PREP Act does not create a general cause of action,

or specifically grant federal courts jurisdiction to adjudicate such actions,

evincing a lack of congressional intent that the remedies provided be exclusive.

Various other courts have similarly held that the PREP Act fails to completely

preempt state law, and this Court agrees.64 As a result, the Court does not have

original jurisdiction over Plaintiff’s state law wrongful termination,

retaliation, and breach of contract claims. This Court’s jurisdiction over

Plaintiff’s state law claims is supplemental.

61 42 U.S.C. §§ 247d-6e(a), 247d-6e(b).

62 Elliot, 2021 WL 2688600, at *4.

63 Id.

64 Id. (citing Schuster, 493 F. Supp. 3d at 536-38; Brannon v. J. Ori, LLC, 2:21-CV-00058-

JRG-RSP, 2021 WL 2339196, at *2 (E.D. Tex. June 8, 2021); Gibbs ex rel. Estate of Velasquez

v. Se. SNF LLC, SA-20-CV-01333-JKP-RBF, 2021 WL 1186626, at *3 (W.D. Tex. Mar. 30,

2021); Anson v. HCP Prairie Vill. KS OpCo LLC, No. 20-CV-2346 (DDC) (JPO), 2021 WL

308156, at *9–11 (D. Kan. Jan. 29, 2021); Estate of Smith ex rel. Smith v. The Bristol at

Tampa Bay Rehab. & Nursing Ctr., No. 20-CV-2798 (T), 2021 WL 100376, at *1–2 (M.D. Fla.

Jan. 12, 2021); Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC, No. 20-CV-1198,

2020 WL 6140474, at *7–8 (W.D. Pa. Oct. 16, 2020); Saldana v. Glenhaven Healthcare LLC,

No. 20-CV-5631 (FMO) (MAA), 2020 WL 6713995, at *2 (C.D. Cal. Oct. 14, 2020); Estate of

Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d. 518, 528-33 (D.N.J. 2020)).

c. State Law Claims

Defendant next moves to dismiss Plaintiff’s state law wrongful

termination, retaliation,65 breach of contract, and LEDL claims because

Plaintiff fails to cite statutes creating these alleged exceptions to Louisiana’s

at-will employment doctrine. Plaintiff only responds as to its breach of contract

claim, arguing that the Interoffice Memo was not itself an employment

contract governed by employment at-will doctrine, but rather an ancillary

contract “limited to that aspect of Plaintiff’s employment.”66

i. Wrongful Termination

Under Louisiana law, the default rule of employment at-will governs,

and “an employer is at liberty to dismiss an employee at any time for any

reason without incurring liability for the discharge.”67 State and federal law,

however, provide statutory exceptions to this default rule.68 Plaintiff asserts

that an applicable exception exists for employees “exercis[ing] a statutory right

to refuse being injected with an investigational drug.”69 As Defendant notes,

65 In its previous Order and Reasons, the Court dismissed Plaintiff’s retaliation claim as it

could not ascertain whether he was suing under federal or state employment law. Doc. 15

(“As the Court cannot ascertain under which law the Plaintiff is suing, and thus, what the

requisite elements are, he did not state a claim upon which relief can be granted.”). The Court

granted Plaintiff leave to amend his complaint. Plaintiff failed to clarify whether he was

suing under federal or state employment law. As Plaintiff grouped his retaliation claim with

his other state law claims in his Amended Complaint and in his opposition to this Motion,

the Court assumes that Plaintiff intended his retaliation claim to arise under state law and

has treated it as such. Doc. 21 at 16 (listing and addressing wrongful termination, retaliation,

and breach of contract together). To the extent Plaintiff may argue he attempted to plead

retaliation under the ADA, it is dismissed for failure to plead the requisite elements of a

retaliation claim under federal law.

66 Doc. 21 at 16.

67 Quebedeaux v. Dow Chem. Co., 820 So. 2d 542, 545 (La. 2002) (citing LA. CIV. CODE art.

2747; Williams v. Delta Haven, Inc., 426 So. 2d 637 (La. Ct. App. 2d Cir. 1982)).

68 Id. (citing 42 U.S.C.A. § 2000e et seq. (prohibits discrimination in all aspects of employment

based on race, religion, sex, color, or national origin); 42 U.S.C.A. § 1981 (prohibits

discrimination based on race); LA. REV. STAT. § 23:301 et seq. (prohibits internal

discrimination in terms or conditions of employment based on race, color, creed, religion, sex,

national origin, disability, age, and sickle cell trait)).

69 Doc. 16 at 24.

Plaintiff does not cite to any particular statute in Count VI that provides this

alleged “right to refuse being injected with an investigational drug.” The only

alleged statutory right that Plaintiff cites in his Amended Petition is the PREP

Act, which again “does not create a federal cause of action or any rights, duties,

or obligations.”70 Thus, as the Court cannot ascertain under which statutory

exception Plaintiff is suing, and thus, what the requisite elements are, Plaintiff

has not stated a claim upon which relief can be granted as to his wrongful

termination claim. To the extent that Plaintiff asserts that the PREP Act

serves as an exception to Louisiana employment at-will doctrine, he has

likewise failed to state a claim of wrongful termination upon which relief may

be granted.

ii. Retaliation

Plaintiff alleges in his Amended Complaint that he was “terminated in

retaliation for engaging in the protected activity of exercising rights given to

him pursuant to the federal statutes cited herein.”71 Defendant moves to

dismiss this claim because Plaintiff fails to cite any statutory exception to

Louisiana at-will employment doctrine.

Despite being given leave to amend his complaint to clarify under which

law Plaintiff asserts his retaliation claim, he fails to clarify as to which state

law his retaliation claim arises. Nevertheless, it appears Plaintiff may be

asserting a claim under Louisiana Revised Statutes § 51:2256, which prohibits

employers from conspiring to “retaliate or discriminate in any manner against

a person because he has opposed a practice declared unlawful by [Louisiana

human rights or discrimination laws].”72 The plain language of § 51:2256

70 Elliot, 2021 WL 2688600, at *3.

71 Doc. 16 at 25.

72 LA. REV. STAT. § 51:2256. See also Goings v. Lopinto, No. 22-2549, 2023 WL 2709826, at

*11 (E.D. La. Mar. 30, 2023).

prohibits conspiracies to retaliate against an employee who opposes unlawful

practices under the LEDL or Louisiana Commission on Human Rights Act

(LCHRA).73 However, in Count VII of his Amended Complaint, Plaintiff fails

to plead any facts demonstrating that two or more people conspired in the

alleged retaliation. He further fails to assert that a provision of the LEDL or

LCHRA was violated.74 Thus, Plaintiff has failed to plead sufficient facts to

state a § 51:2256 claim upon which relief may be granted. Because the Court

cannot ascertain under which statutory exception Plaintiff is otherwise suing,

and thus, what the requisite elements are, Plaintiff has not stated a claim of

retaliation upon which relief can be granted.

iii. Breach of Contract

Plaintiff alleges that the Interoffice Memo issued by Defendant to

Plaintiff sets forth the basis of a contract, which was breached when Defendant

terminated Plaintiff’s employment after he requested a medical exemption

from the vaccine requirement. Defendant moves to dismiss this claim, arguing

that the Interoffice Memo is an employment contract, which is governed by

employment at-will doctrine. Plaintiff responds that this contract was not an

employment contract.

Under Louisiana law, the elements of a breach of contract claim are (1)

existence of a contract, (2) party’s breach thereof, and (3) damages.75 However,

in the context of employment law, “[a]bsent a specific contract or agreement

73 Goings, 2023 WL 2709826, at *11.

74 After being given leave to amend his complaint, Plaintiff again fails to cite a single statute

or provide elements of his retaliation claim. Further, even if this Court found that Plaintiff

pled sufficient facts to support a plausible conspiracy, this Court finds infra that Plaintiff has

not stated a claim under the LEDL upon which relief may be granted.

75 Favrot v. Favrot, 68 So. 3d 1099, 1108–09 (La. Ct. App. 4th Cir. 2011) (citing 1436 Jackson

Joint Venture v. World Constr. Co., Inc., 499 So. 2d 426, 427 (La. Ct. App. 4th Cir. 1986);

Hercules Machinery Corp. v. McElwee Bros., Inc., 2002 WL 31015598, at *9 (E.D. La. Sept.

2, 2002)).

establishing a fixed term of employment, an employer is at liberty to dismiss

an employee at any time for any reason without incurring liability for the

discharge.”76 Louisiana courts analyze employee manuals and policies on a

case-by-case basis to determine if they are contracts that bring the employee

outside the scope of employment at-will doctrine, inquiring whether the

manual’s policies were a bargained for condition of employment or a unilateral

expression of company policy and procedure.77 However, “[t]here are no

Louisiana cases holding that employee manuals, policies, or grievances

procedures confer any contractual rights upon employees or create any

exceptions to the ‘employment at will’ doctrine.”78

While on one hand, Plaintiff argues in this Response to Defendant’s

Motion to Dismiss that the Interoffice Memo is not an “employment contract,”

he, on the other hand, alleged in his Amended Complaint that “consideration

for the contract was ‘continued employment with [Defendant Terminix].’”79

Viewing Plaintiff’s factual allegations in a light most favorable to him, if the

Interoffice Memo even sets forth a contract—the first element of a breach of

contract claim—that contract is one of employment.80 This Court is not bound

to accept as true Plaintiff’s legal conclusion, couched as a factual allegation,

that the alleged contract is not an employment contract and therefore not

76 Robinson v. Healthworks Int’l, L.L.C., 837 So. 2d 714, 721 (citing Deus v. Allstate Ins. Co.,

15 F.3d 506 (5th Cir. 1994); Williams v. Delta Haven, Inc., 416 So. 2d 637 (La. Ct. App. 2d

Cir. 1982)).

77 See Wallace v. Shreve Memorial Library, 79 F.3d 427, 430 (5th Cir. 1996) (quoting Leger

v. Tyson Foods, Inc., 670 So. 2d 397, 401–02 (La. Ct. App. 3d Cir. 1996).

78 Hartley v. Univ. of Holy Cross, No. 2022-CA-0840, 2023 WL 4618313, at *22 (La. Ct. App.

4th Cir. July 19, 2023) (citing Stanton v. Tulane Univ. of La., 777 So. 2d 1242, 1250 (La. Ct.

App. 4th Cir. 2001); Mix v. The Univ. of New Orleans, 609 So. 2d 958, 964 (La. Ct. App. 4th

Cir. 1992)).

79 Doc. 16 at 25–26; Doc. 21 at 16.

80 See Clark v. Christus Health N. La., 47 So. 3d 1135, 1139 (La. Ct. App. 2d Cir. 2010) (citing

Vining v. Bardwell, 482 So. 2d 685 (La. Ct. App. 1st Cir. 1985), writ denied, 487 So. 2d 439

(La. 1986)) (“The essential elements of an employment contract include (1) consent, (2) giving

of services in the form of labor, and (3) a fixed price.”).

governed by employment at-will.81 Because the Interoffice Memo does not

create a fixed term of employment and Defendant cites no statutory exception

to Louisiana employment at-will doctrine, Defendant is “at liberty to dismiss

an employee at any time for any reason without incurring liability for the

discharge.”82 Thus, even viewing the facts in a light most favorable to Plaintiff,

he has failed to state a plausible claim for relief as to his breach of contract

claim.83

iv. Louisiana Employment Discrimination Law

In Count IX of his Amended Complaint, Plaintiff asserts that Defendant

violated the LEDL by “discriminat[ing] against Plaintiff in his employment

based on [his] disability.”84 Louisiana Revised Statutes § 23:323 prohibits

discrimination in employment against an “otherwise qualified person with a

disability” on the basis of that disability.85 “[C]laims brought under the LEDL

are analyzed using the same framework and precedent as ADA claims.”86 Thus,

81 Papasan v. Allain, 478 U.S. 165, 186 (1986) (“Although for the purposes of this motion to

dismiss we must take all the factual allegations in the complaint as true, we are not bound

to accept as true a legal conclusion couched as a factual allegation.”).

82 Robinson v. Healthworks Int’l, L.L.C., 837 So. 2d 714, 721 (citing Deus v. Allstate Ins. Co.,

15 F.3d 506 (5th Cir. 1994); Williams v. Delta Haven, Inc., 416 So. 2d 637 (La. Ct. App. 2d

Cir. 1982)). See also Blakemore v. Town of Grambling, 289 So. 3d 681, 687 (La. Ct. App. 2d

Cir. 2020). The Interoffice Memo requires that employees either receive the COVID-19

vaccine or qualify for a provided-for exception. However, complying with the vaccine

requirement does not promise continued employment with Defendant, and Plaintiff does not

attempt to argue that the Interoffice Memo sets a definite term of employment to bring

Plaintiff’s employment outside the scope of Louisiana employment at-will doctrine.

83 Blakemore, 289 So. 3d at 687.

84 Doc. 16 at 26.

85 LA. REV. STAT. § 23:323.

86 Johnson v. JP Morgan Chase Bank, N.A., 293 F. supp. 3d 600, 615 (W.D. La. Monroe Div.

2018) (citing Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989); Scott v.

Turner Indus. Grp., LLC, 2011 WL 5023840, at *4 (M.D. La. Oct. 19, 2021) (“The ADA and

LEDL provide similar rights and remedies, such that Louisiana courts routinely reference

federal ADA jurisprudence when considering LEDL claims.”)). See also Baker v. FedEx

Ground Package Sys. Inc., 278 F. App’x 322, 327 (5th Cir. 2008) (“We look to federal

employment discrimination jurisprudence when interpreting Louisiana’s anti-discrimination

laws.”).

the requirement that a plaintiff plead a disability applies with equal force

here.®7 Because this Court found that Plaintiff failed to plead a disability and

therefore failed to state a claim of discrimination under the ADA, this Court

likewise finds that Plaintiff has not adequately pled a disability under the

LEDL, and his claim that Defendant violated the LEDL must be dismissed.

CONCLUSION

For the foregoing reasons, Defendants’ Motion (Doc. 18) is GRANTED.

Plaintiffs ADA, PREP Act, LEDL discrimination, wrongful termination,

retaliation, and breach of contract claims are DISMISSED WITH

PREJUDICE. Plaintiffs Title VII claims remain pending before the Court.

New Orleans, Louisiana this 16th day of November, 20238.

UNITED STATES DISTRICT JUDGE

87 See Credeur v. La. Through Off. Of Att’y Gen., 860 F.3d 785, 791 n.3 (5th Cir. 2017) (noting

that the same analysis applies to ADA and LEDL claims “because Louisiana courts look to

federal employment discrimination law for guidance in interpreting the State’s anti-

discrimination statute”).

20